1. A party may give in evidence his declarations in his own favor, if they accompany some act and are part of the res gestae. The declarations of Chase, testified to by Emmons, appear to come within this rule. His intention in going to Cornish was material on the question of domicile. What he said therefore at the time as to his purpose, whether it was to remain permanently or to return to Boston after a time, was admissible. His declarations appear to have been made in the ordinary course of business, and are explanatory of his intention in going to Cornish. Sessions v. Little, 9 N.H. 271; Tenney v. Evans, 14 N.H. 343; Plumer v. French,22 N.H. 450; Kilburn v. Bennett, 3 Met. 199; Wilson v. Terry, 9 Allen 214.
2. Whether or not Chase paid a tax on real estate in Boston is immaterial, real estate being taxable in the place where it is situate. Ella M. Atwood's testimony, that she saw a Boston poll tax bill at his Boston place of residence, may have had some tendency to show that he was assessed for, and paid, a poll tax in Boston. The fact that he consented to be taxed there for his poll in 1885 was evidence on the question of his intention in regard to continuing Boston as his permanent domicile. The objection that the tax bill should have been produced as being the best evidence, does not appear to have been taken at the trial.
3. The testimony of Glover, Byrne, Palmer, Johnson, and Raynesford, as to declarations of Chase explanatory of his going to, returning from, or staying at Cornish, was competent. His intention being an independent question tried, his declarations were competent, whether res gestae or not.
4. The declarations of the plaintiff's testate, testified to by Minerva P. Cobb, were competent as admissions of a party.
5. A question is made whether the statute (Laws 1889, c. 74) excludes the defendant from testifying, the plaintiff not having elected to testify. The controversy is, whether there shall be administration in New Hampshire on the estate of Daniel Chase. There is no controversy in regard to the Chellis estate. The interest the plaintiff's mother had in the Chase estate was that of heir to one fourth part of it, if it shall be determined that the estate ought to be distributed through administration in New Hampshire; but if administered in Massachusetts, the widow takes the whole. The plaintiff is also heir to one fourth part, dependent upon the same contingency. If he had petitioned in his personal capacity and not as executor of his mother's will, no question of the right of the defendant to testify could have arisen. Nominally, this suit is prosecuted for the recovery of his mother's one fourth part of his brother's estate. In fact, the suit is for the *Page 592 recovery of one half of that estate for his own benefit. His mother's whole estate was given to him by her will. If any sum, therefore, shall be distributed as her share, it will be distributed to him. In the most favorable aspect for the plaintiff, this controversy is one in which each party has an equal interest. In applying the statute regard is had to the actual situation of the parties, whether nominal or real, — whether the party who appears in the record as an executor or administrator is really prosecuting or defending in his representative capacity, or is in fact the real party in interest Drew v. McDaniel, 60 N.H. 480; Marcy v. Amazeen,61 N.H. 131; Berry v. McArdle, 62 N.H. 354; Welch v. Adams, 63 N.H. 344,351; Emery v. Clough, 63 N.H. 552, 556. As the plaintiff is prosecuting this appeal in fact for his personal benefit, the defendant was properly admitted to testify.
The certificate of the register of probate of Suffolk county was properly received. Welch v. Adams, qua supra. But if it were necessary, the authentication could be completed after verdict. Roulo v. Valcour,58 N.H. 347.
6. The question whether a person has a domicile or home at a given place is one of fact, to be determined under proper instructions. It involves an inquiry as to the acts of the party, and the intention with which such acts are done. His declarations as to his intention are not conclusive. They may be so inconsistent with any reasonable interpretation to be put upon his acts that the inevitable conclusion may be that they were not made in good faith. The second request for instructions was not for these reasons true, as matter of law. Besides, it does not appear that Chase had a summer residence at Cornish. But if it did, it is conceded that his domicile was in Boston until May, 1885, and the question tried was, not whether he had a choice between two residences, but whether he had abandoned his Boston residence. The request, therefore, if correct as matter of law, was not called for by the facts.
The other instructions requested were included in substance in those given. It is no cause for exception that they were not given in the language requested. Besides, there is ground for apprehension that if they had been given in the naked form in which they were presented, and without comment or explanation, the jury might not have got that clear understanding of the law of the case which was necessary for the proper application of the facts.
Exceptions overruled.
BLODGETT, J., did not sit: the others concurred. *Page 593