In re Kiernan

Upon the settlement of this account there arises a dispute as to whether the domicile of the deceased is in the state of Connecticut or New York, a's, the statutes of distribution being different in the different states, it makes a difference as to who will be entitled to inherit the estate.

The facts are as follows: Edward J. Kiernan, the father of this intestate, died at the city of Brooklyn in the year 1894, leaving a last will and testament, which was duly proved in the surrogate’s court, Kings county. After making provisions for his estate being held by his executors in trust for his children, he nominated his mother, Rosanna Kiernan, a resident of New Haven, Conn., to be the testamentary guardian of such children. After the admission of the will of said Edward J. Kiernan, his mother duly qualified as testamentary guardian for his infant children under the will. She lived at Brooklyn for a short period of time, and endeavored to conduct the undertaking business which he had left to her. Subsequently, finding it unprofitable, she returned to New Haven, where she had always resided. Before she did so one of the children of Edward J. Kiernan died, and shortly afterward another died, leaving only Jane

The question to be decided, therefore, from these facts, is whether the deceased’s domicile, under these circumstances, became changed from New York state to Connecticut. In the consideration of this question, a few general principles are well established: First. The domicile of the infant, after the death of both parents, will be that of the last 'surviving parent. Kennedy v. Ryall, 67 N. Y. 379 . Second. That the decedent, being non sui juris, could not change her own domicile. Ex parte Dawson, 3 Bradf. Sur. 130. Third. That, under all ordinary circumstances, the domicile of the guardian is the domicile of the-infant ward.

The question whether a guardian, acting in good faith, has power to change the legal residence and domicile of an infant has been one about which there has been considerable dispute. It seems to me that we must recognize in this country that the writings and views of the earliest writers on this subject were written where the change of domicile from one country to another was different from one state to another of this Union, and hence that it is very reasonable and probable that the ancient writers should have been disinclined to consider that guardians had this power, as the consequences were vastly greater ; but where the various states of this country are all one union, and the inhabitants of the various states are in fact one people, except that there may be differences as to matters of descent, and other more or less local regulations in the different states, it seems to me that a more liberal and general rule should be recognized, and that where a‘guardian in good faith, for the benefit of the ward or for other good purposes, should change from one state to another, it should be deemed that she has the power to change the domicile of the infant. The propriety of a more reasonable interpretation of this matter has been recognized by Chancellor Kent. Schouler, in his Domestic Relations (section 334), decides the same principle by stating:

“It would be unwise for American courts to apply, as between states nnited under one general government, - the same rigidly exclusive doctrines which foreign countries, differing in religion, custom, and different institutions, may see fit to adopt in their intercourse with one another; for such change might be for the direct benefit of the ward’s health, education, or personal surroundings, and the same guardian might procure a new appointment in the state of the new domicile.”

The guardian who made the change in this case was the paternal grandmother of this infant. If she had not made the change, .and the infant had died a resident of the state of New York, then, under the laws of this state, the property would have' gone to the grand

But it seems to me this case can be decided on a broader ground, and that it is not necessary to have the question solely turn upon the power which a guardian possesses to change the domicile of a ward. The deceased father of this infant unquestionably could in his lifetime have changed his residence, and therefore have legally changed the residence of the infant. It seems to me that by his will, in which he appointed his mother, whom he recognized as being domiciled in New Haven, the testamentary guardian of this infant, he, in practically explicit terms, directed that this infant should be taken to New Haven, and therefore that its domicile should be changed, as, when he directed that his mother should be appointed guardian, he appreciated that she had been domiciled with her husband at New Haven, and that the most of her other children, including her daughters, resided there, and it was evidently his idea that his children would be taken charge of by his mother at the place of her domicile, and not the possibility or contingency of his mother coming to Brooklyn to attend to the same. That it was his idea that his children would be taken to New Haven is further evidenced by the clause in his will in which he provided that, in evezit of his mother not being alive at the time of his death, then cer

A very similar case to the one under consideration is that of White v. Howard, 52 Barb. 294 . In that case the testator died domiciled at New Haven, Conn. His property was to be held in trust by his executors for the benefit of his child, and by his will he named, as the guardian of his child, a lady residing in New York, and in the event of her death he named her successor, who was also a resident of New York. The child went to live with the guardian in New York, and died during minority, while attending school in Connecticut. In passing upon the question the court states as follows (page 318):

“I think the determination of the question as to the domicile of the testator’s daughter at the time of her death does not depend upon the determination of any question as to her power while a minor and a ward, or the power of her guardian to choose or create a new or another domicile. It is manifest from the will that her father expected and intended that she should, upon and after his death, during her minority, reside in New York, under the care and protection of her guardian residing there. It is evident that the father intended hy his will, upon and after his death, to change her domicile from Connecticut to New York.”

The special guardian herein has also made objection to the bill which the administrator has paid for the funeral expenses of this infant. The undertaker was ■ the uncle of this infant, and was subsequently appointed administrator, who has presented this account for settlement. Under the direction of his mother (the guardian of 'said infant), he attended to all the necessities of the funeral. It is apparent that this bill is manifestly excessive. The undertaker admitted that the casket which was furnished was a very expensive casket; in fact, that in his entire practice as an undertaker he had never furnished 'so expensive a casket, although he knew of other caskets which had been furnished funerals which cost more. To permit a bill of this kind to be incurred for a child, who naturally did not have a large circle of acquaintances, and leaving but a small estate of some $6,000 or $7,000, is manifestly improper. The items of $450, contained in said undertaker’s bill, for an “extra casket,” and also of $40 for the “extra chestnut box,” are disallowed. One hundred and fifty dollars would have procured a suitable casket, and $25 would have procured a suitable box, and the administrator should therefore be surcharged with the difference in these amounts.

L,et a decree be presented for settlement in accordance with the terms of this opinion. Decreed accordingly.