Proponent seeks to probate a one-sentence unwitnessed holographic will dated June 25, 1945 bequeathing to her the decedent’s entire estate. Objectants premised their opposition on a subsequent instrument purporting to be a more detailed unwitnessed holographic will dated August 19, 1973 executed by decedent in New York City which, inter alia, revoked the prior 1945 holographic will executed by decedent in California.1 Proponent moved to strike the objections or, in the alternative, for summary judgment. Surrogate Di Falco held the motion for summary judgment in abeyance pending determination of the limited issue of domicile. A hearing on this issue was held before Surrogate Di Falco which resulted in an order determining that the decedent was domiciled in the State of California on August 19, 1973 when he executed the purported holographic will dated that day, and that decedent was also domiciled in *398California at the time of his death. The validity of the 1973 instrument, the Surrogate ordered, was to be determined on the basis of decedent’s California domicile at the time of execution of said instrument. This appeal followed.
A holographic will is valid in New York only if made by a person so authorized to make such will as provided for in EPTL 3-2.2. It is not urged that decedent was so authorized. Accordingly, the issue of domicile is critical.
It is conceded that decedent came to New York from California in 1967, his domicile at that time, and that he died in New York on July 9, 1974. Testimony elicited at the hearing discloses that the reason for decedent’s departure from California was the notoriety generated by certain publicity and decedent’s endeavor to obtain a new abode until that notoriety was dissipated. Further proof revealed that decedent resided in New York from 1967 to the time of his death in 1974, first at hotels and then in an apartment under long leases. As noted by the Surrogate: "he filed New York tax returns, maintained New York bank and stock brokerage accounts and had a social and cultural life in this City of New York.” Several witnesses testified to repeated declarations by the decedent that he considered California to be his home and intended to return there.
"Domicile” is defined in SCPA 103 (subd 15) as "[a] fixed, permanent and principal home to which a person wherever temporarily located always intends to return.” A domicile of a person "is the place where a person lives, with the intention of making it his fixed and permanent home. It is that place in which one has voluntarily fixed his abode with a present intention of making it his permanent home * * * There is a difference in meaning between residence and domicil, * * * 'Residence’ in its strict sense means merely 'place of abode.’ It is of a temporary character and the fact that it is such makes it in law no domicil. Residence is the abode or place where one actually lives. It implies an established abode fixed permanently for a time for business or other purposes, although there may be an intent existing all the while to return to the true domicil. Residence is determined by physical fact alone, but domicil depends on intent * * * 'Residence’ means simply living in a particular locality, but 'domicil’ means living in that locality with intent to make it a fixed and permanent home” (17 NY Jur, Domicil and Residence, § 2).
In Rawstorne v Maguire (265 NY 204, 208) the Court of *399Appeals observed: "Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one’s domicile. The existing [emphasis supplied] domicile, whether of origin or selection, continues until a new one is acquired.”
It is well recognized that "[t]he abandonment of an established domicil is a prerequisite to the acquisition of a new one, and to establish a change of domicil, such abandonment must clearly appear. In other words, the intent required in the acquisition of a new domicil involves an intent to abandon the old dwelling place as a home. To effect the abandonment of one’s domicil in favor of another, there must be choice of a new domicil, actual residence in the place chosen, and intent that it shall be the principal and permanent residence * * * However, since no person can be without a domicil, and since an established domicil continues until superseded by another, even if an established domicil has been abandoned, or an attempt has been made to abandon it, it remains as the domicil the law will assign, unless and until another is shown to have been adopted. Renunciation of one home is not sufficient as a change of domicil without the acquisition of another” (17 NY Jur, Domicil and Residence, § 13). As noted in Matter of Newcomb (192 NY 238, 250): "The existing domicile, whether of origin or selection, continues until a new one is acquired and the burden of proof rests upon the party who alleges a change. The question is one of fact rather than law * * * In order to acquire a new domicile there must be a union of residence and intention. Residence without intention, or intention without residence is of no avail. Mere change of residence although continued for a long time does not effect a change of domcile, while a change of residence even for a short time with the intention in good faith to change the domicile, has that effect. Uno solo die constituitur domicilium si de volúntate appareat. Residence is necessary, for there can be no domicile without it, and important as evidence, for it bears strongly upon intention, but not controlling, for unless combined with intention it cannot effect a change of domicile.”
It is beyond cavil that the decedent herein established a residence in New York. What must be decided is whether he adopted New York as his domicile. Given California as his established domicile in 1967 when he left that State for New York, it is presumed to continue until shown to have been *400abandoned. Further, assuming abandonment of California as the domicile, that State remains the domicile the law will assign, unless or until another is shown to have been adopted. In Matter of Blankford (241 NY 180, 183) Judge Cardozo declared: "Renunciation of one home is not sufficient without the acquisition of another. The domicile of origin continues until displaced and superseded by a domicile of choice [citation].” Patently, the burden of proof is on the party claiming that such domicile was succeeded by a later one (Matter of Newcomb, supra; Dupuy v Wurtz, 53 NY 556; Matter of Lydig, 191 App Div 117; Matter of Lamoutte, 195 Misc 907, 910).
In light of the above legal principles the testimony and evidence presented at the hearing disclose that the Surrogate correctly concluded that the proponent had failed to sustain her burden of establishing by clear and convincing proof that the decedent had established a new domicile in New York. In addition to the testimony hereinabove delineated, there was testimony that decedent refused to become active in the New York chapter of the American Association for Retired People or to head a Senior Citizens’ Committee for a presidential candidate in New York because of his avowed reason that he did not know when he would return to California and was only in New York temporarily. Indeed, one of the witnesses declared that decedent did not initially apply for Social Security benefits in New York because he regarded himself as not a "resident” of this State. Morton B. Jackson, a California attorney, a friend of decedent since 1959 who shared a common interest with decedent in opera and music, testified to conversations had with decedent in 1972 and 1973 respecting possible job opportunities in the operatic musical field in California and that decedent expressed an interest in those opportunities and a willingness to return to California. In this connection the decedent stated that he regarded California as his home, often considered returning to California and desired a suitable opportunity to return. Further, it appears decedent met with a Mr. Saunderson in April, 1973 in New York to discuss the possibility of the former’s taking an opera related post in California.
Decedent’s brother testified that in 1972, when decedent visited him in the State of Washington to attend their father’s funeral, the latter declared that New York was the only place he would live in because of its cultural advantages respecting the theatre and that he could not return to California because *401of the events which prompted him to depart that State in 1967.2
Proponent’s reliance on the fact that decedent filed tax returns while residing in New York, showing New York as his residence, is not dispositive. It is the issue of domicile, not residence which is controlling. As the Surrogate succinctly states: "A long term residence engenders a milieu of cultural exchanges, financial transactions and compliance with local tax, license and other regulations. These are as inescapable as the purchase of food, clothing and shelter. Thus, 'while acts speak louder than words, the words must be heard for what they are worth.’ (Matter of Newcomb, supra, p. 251.)”
The contention that decedent retained domicile in California in 1973 at the date of his death is not supported by evidence of retaining connections by decedent with California after 1967, but rather rests on the lack of clear and convincing evidence of his establishing a new domicile in New York. Domicile being a question of intent, only the decedent could actually know his own intent. His declarations on this issue viewed in the context of the absence of any ulterior motive in such expressions, are most compelling. To reiterate some salient considerations: decedent left California under circumstances indicating he felt constrained to do so, not because he freely wanted to do so; seven of his friends and acquaintances testified to oral expressions by decedent that he regarded California as "home,” desired to return there someday and viewed New York as a temporary residence. Decedent’s brother testified to a contrary oral expression by decedent to the effect that he felt he could never return to California and that New York was his home. Finally, it appears that decedent while in New York did meet with a California resident, Mr. Saunderson, who was visiting New York in 1973, under circumstances indicating a desire to obtain employment in California in an operatic related capacity. Common sense dictates that on this record there is presented the picture of an individual who did not desire to cut off contact with a domicile he felt forced to leave. The composite picture, then, is at least one where the acquisition of a new domicile in New York has not been sufficiently demonstrated. Under these circumstances, the law steps in and assigns a domicile which, for legal purposes, every person must be deemed to have.
*402Accordingly, it is concluded that the Surrogate correctly determined that "on all of the credible evidence on this record that petitioner has failed to meet her burden of change of domicile.”
The order of the Surrogate’s Court, New York County (Midonick, S.), entered December 30, 1976, which adjudged that Dario Shindell was domiciled in the State of California on August 19, 1973 and at the time of his death, should be affirmed.
Capozzoli, J., concurs with Lane, J.; Kupferman J. P., concurs in an opinion; Lupiano, J., dissents in an opinion
Order, Surrogate’s Court of the State of New York, New York County (decision of Di Falco, S.; order signed by Midonick, S. pursuant to SCPA 2602, subd 1, par [b]), entered on December 30, 1976, reversed on the law and the facts, and an order entered declaring the decedent’s domicile at the time of the execution of the 1973 instrument, as well as at the date of his death, to be the State of New York, without costs and without disbursements.
. Under the 1973 instrument, the decedent’s brother is to act as executor and is to receive one quarter of the estate with the decedent’s sister-in-law and two friends to receive each a quarter share.
. Milton Shindell, decedent’s brother, is a beneficiary under the 1973 instrument and not under the 1945 will and this testimony, supportive of proponent, his sister, would appear to be against his own interest.