In re the Last Will of Zerega — 35 N.Y. St. Rep. 558

Majority

p. 558

In the Matter of the Last Will, etc., of Augustus Zerega, Deceased.

(Supreme Court, General Term, First Department,

Filed December 29, 1890.)

Headnote

1. Will—Residence.

A man may reside where he chooses, and although by a quasi fiction of the law he may be located in different places for public purposes, such as taxation and the like, yet his home he determines for himself, and where that is in this state his residence as described for the appropriation of his estate by the legal processes provided by law, is where that is situate.

2. Same—Pkobate—Jubisdictioh.

It appeared that testator claimed his residence in Westchester county; that he voted and paid taxes there, and when he expressed a wish to sell his residence there it was coupled with a statement that he might travel. Reid, t'.at his residence was in that county, although he spent the winters with his daughter in New York, and that the surrogate of New Yorkhad no jurisdiction of proceedings to probate his will, and that the consent of the parties interested in the estate and the acceptance of letters by the executors conferred no jurisdiction.

p. 559

Appeal from order of the surrogate denying application to revoke probate of will.

A. Gallup, for app’lt; DeWitt, Lo ckman & De Witt, Samuel Huntington and Horace Barnard, for other parties.

This application, so far as it charges Mr. Barnard with misrepresentations, is not sustained. The facts and circumstances disclosed and duly considered justify this conclusion. It is not deemed at all necessary to state them in detail.

The proposition that Mr. Zerega at the time of his death was a resident of the city of Hew York has not been sustained, however, but, on the contrary, has been successfully assailed. He had a temporary abode here, it is true, but it was in a house occupied by his daughter, for whose use it seems to have been purchased at the time of her marriage.

He paid for his accommodation therein while he remained in it, which was during the interval between his departure from his residence in Westchester in the fall of the year and the following spring, a mode of life adopted and kept up for many years prior to his death. The testimony of disinterested persons of his admissions and declarations in regard to his residence establishes the conclusion that he considered himself to be a resident of Westchester, and so described himself in his will; and this necessarily went hand in hand with his intention to be such a resident, and made him such by act and expressed intent.

In addition to this he voted and paid taxes there, and when he expressed his wish to sell his residence there it was coupled with a statement of an object in view, namely, that he might travel, but not to return to a city residence here, and indeed not making any reference to it

This indicated a wish to change his mode of life, and to be relieved from a local habitation.

When the residence is thus adopted and proclaimed, especially in connection with an existing domicil, it is not necessary to seek the aid of adjudications bearing upon the much distorted questions of residence and domicil, and the difference between them for certain purposes, taxation and the like. A man may reside where he chooses, and although by a quasi fiction of the law he may be located in different places for public purposes, such as taxation and the like, yet his home he determines for himself, and where that is in this state, his residence as described for the appropriation of his estate by the legal processes provided by law is where that is situate. The Code gives ho jurisdiction to the surrogate of this county in such a case.

It is true that the parties interested in the estate gave consent to the probate, and that the executors accepted letters testamentary based upon it; but this did not confer jurisdiction, and is therefore of no avail. The standing in court of these persons is such that if the probate could be upheld, it should not be interfered with on their application, whether the motive which induced the application was made in good faith or otherwise.

The surrogate proceeded upon papers regular upon their face,,

p. 560

and containing all the requisite jurisdictional facts under the provisions of the Code, §§ 2474r-2476, and the estate could be administered in all respects as well under his authority as that of any other. But the question of jurisdiction is always a factor ■of great and continuing importance in courts of justice, and its -absence may be successfully resorted to as a destructive negation.

The order appealed from must be reversed, but without costs.

Van Brunt, P. J., and Daniels, J., concur.