I have been unable to examine all the authorities cited in the very learned and exhaustive brief of the counsel for the appellant. Time did not permit. His extensive quotations from the text of the authorities cited and the elementary works, reports of this State and the most of those of the United States courts, mentioned in his brief, have been read and considered.
Mrs. Wurts, with her husband, John Wurts, went to Europe in 1859, having previously been domiciled for many years at the city of Hew York, where he owned a valuable house, in which they had long resided. Mr. Wurts died abroad, in 1861, without having returned to the United States, leaving a last will whereby he devised to his said wife a large real and personal estate in this country, including the said residence, which she retained till her death. She never afterwards returned to the United States: She executed her last will at Hice, in 1868, according to the formalities directed by the laws of the State of Hew York. The personal property devised was managed, after the death of her hnsband, by an agent residing in Hew York, and, as I understand, her large real estate in that city was also devised by the said will. Her place of nativity was the United States, as was also that of her said husband. She left no children, and the respondent, Charles P. Wurts, is the residuary legatee under her said will, whereby, if it has been duly executed, he takes the' larger portion of the estate of the testatrix.
Mr. and Mrs. Wurts were in failing health when they left Hew York, in 1859, and went to Europe in the hope of restoring it. The object of the journey appears not to have been obtained by either of them. During her residence abroad, by letters to friends in the United States, and also in conversation with persons whom she
Domicil is controlled by intention. The intention is evidenced, often, by circumstances attending a residence, as well as by declarations.. The. domicil of birth or origin continues until it is proven to have been abandoned, or a new one has been obtained. Some importance is attached by the appellant to the fact that Mrs. Wurts occupied rooms at the same hotel, at Nice, every winter, which she furnished, in part, herself. It. is a circumstance, undoubtedly, but like the others upon which his
The surrogate has, in an elaborate opinion, very carefully collated and examined a large amount of authority bearing upon the subject, and has, I think, arrived at a just and proper conclusion. I think the expression of the wishes of the testatrix, in her will, should be regarded as clear evidence of her intention in respect to domicil.
We are referred to a statute of this State requiring a will of personal estate, made by a person not a citizen of this State, to be executed according to the laws of the country in which the same was executed. (2 R. S. 69, Edm. ed.) This statute has no application. Having-reached the conclusion that Mrs. Wurts has never changed her domicil, it is entirely apparent that her citizenship in Hew York has not been lost. She cannot have gained a citizenship elsewhere, while her domicil remains, as we have seen, at Hew York.
It appears that there is no arbitrary rule by which the domicil of a person is proven. Each case must be decided according to the particular facts and circumstances which surround it. Mrs. Wurts was settled, and her domicil for many years was with her husband, at the city of Hew York. It rests with the appellant to prove that she has ever formed the intention of changing it, or that the facts and circumstances which belong to her case are such that they are entirely inconsistent with an
The judgment must be affirmed, with costs.