dissenting. I disagree with the majority’s determination that, for purposes of the probation of his will and the administration of his estate, Willie John Balentine was a resident of Stone County at the time of his death. As the majority states, Arkansas Code Annotated section 28-40-102(a)(1) provides that the venue for the probate of a will and the administration of a decedent’s estate is the county where the decedent resided at the time of his or her death.
A person’s “residence” is the place of actual abode, not a home that a person expects to occupy at some future time. Leathers v. Warmack, 341 Ark. 609, 19 S.W.3d 27 (2000). Our supreme court has defined “place of abode” as “something more than a place of temporary sojourning,” implying a degree ofpermanence. Id. (citing Shinn v. Heath, 259 Ark. 577, 587, 535 S.W.2d 57, 62 (1976)). “[A] given place may be a ‘place of abode’ of a party, though he may be actually absent therefrom for a long period of time.” Id. at 618, 19 S.W.3d at 34. Each case must be decided on its own facts. Id.
In Smith v. Rudolph, 221 Ark. 900, 256 S.W.2d 736 (1953), the decedent died in an automobile accident. Her ex-husband, with whom she had resided in Pulaski County, was appointed administrator of the decedent’s estate in Pulaski County. The decedent’s father applied for letters of administration in the Clark County probate court, alleging that at the time of his daughter’s death, she was a resident of Clark County. The decedent’s father also intervened in the Pulaski County proceedings, asking that the order appointing the decedent’s ex-husband as administrator be vacated and set aside. The Pulaski County court so vacated. On appeal, our supreme court determined that the decedent had been a resident of Clark County at the time of her death, as “the evidence showed that at the time [of her divorce], her father sent a truck to Little Rock for her possessions and a car for her. She immediately removed everything she possessed to her father’s home in Gurdon, where she lived until her death.” The court provided, “Residence being a matter of intention, we hold, as indicated, that the preponderance of the testimony is not against the court’s finding that [the decedent] was a resident of Clark County at the time of her death.” Smith v. Rudolph, 221 Ark. at 902, 256 S.W.2d at 737.
On the other hand, in Monis v. Garmon, 285 Ark. 259, 686 S.W.2d 396 (1985), our supreme court determined that the decedent, who at the time of her death lived in a Fort Worth, Texas, nursing home, was a resident of Sebastian County for purposes of the administration of her estate. The court stated:
With respect to the second point, we cannot say the finding as to domicile was clearly erroneous. “To effect a change of residence or domicile, there must be an actual abandonment of the first domicile, coupled with an intention not to return to it, and there must be a new domicile acquired by actual residence in another place or jurisdiction, with the intention of making the last-acquired residence a permanent home.” The intent to abandon one’s domicile and take up another must be ascertained from all the facts and circumstances in any particular case.
Here, the decedent was a long time resident of Ft. Smith. After her fall there was no one to care for her in her home so she was moved to nursing homes, first to Oklahoma, then to Texas. While in the Ft. Worth nursing home, she fell again, prolonging her convalescence in Ft.Worth.
After Mrs. Morrison was moved to Oklahoma, and thereafter in the Texas nursing home, her home in Ft. Smith was kept in a state of readiness for her return. None of the furniture was removed, utilities were kept on, her car was parked in the carport and the yard was regularly maintained, all with her knowledge and approval. She maintained her membership in the First United Methodist Church of Ft. Smith and on numerous occasions expressed to her grandchildren and to neighbors a steadfast hope of returning to her home in Ft. Smith — to be with friends, and to engage in normal activities. Although there was evidence of a contrary intent, we cannot say the finding of the probate judge was clearly erroneous.
Our holding in Oakes v. Oakes, [219 Ark. 363,242 S.W2d 128 (1951)], is instructive. Mrs. Oakes, an Arkansas domiciliary, developed tuberculosis and entered a sanitarium in New Mexico in 1947. She took only her clothing, leaving her furniture and household goods in her home in Arkansas. Her two children went to five with grandparents in Texas. She returned to Arkansas three years later to testify in the divorce case she had filed against her husband. She told the court she planned to return to the sanitarium for an indefinite duration. We found no evidence that Mrs. Oakes had acquired a new domicile and added: “A change of residence for the purpose of benefiting [sic] one’s health does not usually effect a change of domicile. Such a change is looked upon as temporary merely, even though the actual time spent in the new residence may be long.”
Morris v. Gannon, 285 Ark. at 262-263, 686 S.W.2d at 398 (internal citations omitted).
In the instant case, the decedent did not take everything he possessed to Stone County as in Smith v. Rudolph, supra. He left Lee County not because he intended to make Stone County his residence, but because he could not cook or bathe himself, placing this case factually akin to Morris v. Garmon, supra. Prior to his move to Stone County, the decedent did these things with the assistance of appellee until their relationship soured. Thereafter, from April 1999 until his death, the decedent was a boarder in appellant’s home in Stone County, Arkansas. The decedent took with him only a few of his belongings, including a few clothes, some pictures, his Bible, shotgun, phonebook, and fishing equipment. He left his home in Lee County in a state of readiness for his return. None of the furniture was removed and his car remained parked in front of his home. He even maintained a bank account in Lee County. Bearing these facts in mind, the decedent went to Stone County because of health concerns, and this move did not effect a change of his residency from Lee County.
I am authorized to state that Judge Gladwin joins me in this dissent.