In re the Estate of Shindell

60 A.D.2d 393, 400 N.Y.S.2d 67, 1977 N.Y. App. Div. LEXIS 14391

Opinions

OPINION OF THE COURT

Lane, J.

Dario Shindell came to New York City in 1967 when he was age 63. He died in the State of New York on July 9, 1974. Two unwitnessed holographic wills were drawn by the deceased; one was drawn in 1945, while the deceased lived in the State of California; the second was drawn in 1973 while the deceased lived in the State of New York. The validity of either will is dependent upon whether Shindell was a domiciliary of New York or California.

The law of the State of New York does not recognize holographic wills as valid (EPTL 3-2.2, subd [b]).

* California law, however, does in fact recognize holographic wills when handwritten by the testator himself (Cal Probate Code, § 53) and proof to that end is adduced (Cal Probate Code, § 331; Cal Evidence Code, § 1415).

The Surrogate directed that in this contested probate proceeding a hearing be held on the issue of the domicile of the decedent. The evidence adduced at that hearing revealed that Dario Shindell left California after his arrest and attendant publicity in California which indicated his possible involvement in an art-theft ring. From 1967 to the date of Shindell’s death in 1974, he lived in Manhattan, and he executed successive residential leases there. He also transferred all of his bank accounts to the State of New York; opened a stockbrokerage account in New York; obtained employment in New York for a short period prior to his retirement in 1969; and listed his New York address as his permanent residence on his tax returns. He met and traveled with New York friends; he took advantage of New York’s cultural benefits; and never once during the last seven years of his lifetime ever set foot in the State of California. He left no property in the State of California.

Interestingly enough, in the filing of Shindell’s tax returns, he always listed New York as his residence except for his tax return filed in 1968 reflecting income for the year 1967. In that return only, he listed a California address. When Shin-dell’s father died in 1972, Shindell attended the funeral which was in Washington State. Although he was physically proximate to his former domicile, California, he nonetheless did not go to California to visit with friends or to visit his old haunts but, rather, returned directly to New York.

The objectants to the admission of the 1945 holographic will who seek to prove that Shindell died a California domiciliary take solace in the fact that the decedent had expressed an objection to working in an election campaign in New York, stating, "New York is not my legal residence. * * * I don’t vote here”; and made other statements to individuals with whom he was friendly which indicated that he still would like to go back to California. They also note that the decedent was not registered to vote in New York and did not have a New York driver’s license. Proof by silence generally is not the most convincing of arguments, and we in the majority find it unconvincing in the case at bar as well. The objectants made no showing, for example, that, as an offset to the absence of the New York voting registration by Shindell, or his failure to obtain a New York driver’s license, Shindell did possess a California driver’s license or that he was registered to vote in California.

To the contrary, the brother of the decedent testified about conversations he had with the decedent in 1972, while the decedent was on the West Coast. The decedent was said to have stated that New York was the only place in which he would live because of his cultural activities and because of his "social activities,” which were a great part of his life. He allegedly told his brother that he could never go back to California.

The Surrogate found that the decedent died a domiciliary of California. We disagree and would reverse that finding.

Domicile is defined as "[a] fixed, permanent and principal home to which a person wherever temporarily located always intends to return” (SCPA 103, subd 15). Determination of the intent of an individual is, of course, governed by the acts of that individual. While the words of an individual relative to his intent regarding domicile "are to be heard for what they are worth” (Matter of Newcomb, 192 NY 238, 252), the significance of the words becomes greatly diminished when contradicted overwhelmingly by physical acts and contrary statements.

In Matter of Trowbridge (266 NY 283) the decedent, in 1904, purchased a residence which was his admitted domicile until 1921, when it was destroyed by fire. From 1921 through 1924, Trowbridge lived in New York City; filed a verified statement with Connecticut tax authorities as a nonresident of that State, which declaration was never withdrawn; transferred his name to the resident tax roll of Manhattan; voted solely in New York City; and stated to one of his sons that he was a resident of the State of New York. However, between 1921 and 1924, Trowbridge rebuilt a new home in Noroton, Connecticut, at a cost of a half-million dollars, and from the time the structure was completed in 1924 until the date of his death in May 1931, he lived in his new home in Connecticut. The court found that, despite the repeated declarations and statements of Trowbridge that he lived in New York, nonetheless his establishment of a residence in Connecticut clearly established his domicile in that State rather than in the State of New York.

Similarly, in Petersen v Chemical Bank (32 NY 21) it was established conclusively that the domicile of the decedent Cohen at the time of his death was in Connecticut and not in New York. The court in Petersen was persuaded by the fact that Cohen purchased an expensive house for his residence; furnished it with servants; repaired it; supplied it with furniture and fuel; and died ultimately in Connecticut.

In the case at bar, the alleged declarations of the decedent to some of his friends that he wished to go back to California were far outweighed by his actual continuous residence in the State of New York for a period of seven years; his never returning to California; his maintenance of all his business and social affairs here in New York; and the statement to his own brother that he never intended to return to California.

In sum, the totality of the acts and statements of the decedent permit of only one inference: that he was a domiciliary of New York (cf. Rubin v Irving Trust Co., 305 NY 288, 306). We conclude, therefore, that Dario Shindell died a domiciliary of New York and not a domiciliary of California.

Accordingly, the order of the Surrogate’s Court, New York County (decision of Di Falco, J.; order signed by Midonick, J., pursuant to SCPA 2602, subd 1, par [b]), entered December 30, 1976, determining that the deceased’s domicile when he executed the 1973 instrument purporting to be his last will and testament and at his death was the State of California, should be reversed on the law and the facts, and an order should be entered declaring the decedent’s domicile at the time of the execution of the 1973 instrument, as well as at the date of his death, to be the State of New York, without costs or disbursements.

The three statutory exceptions which would result in the State of New York recognizing the validity of a holographic will are concededly not extant in the case at bar (EPTL 3-2.2, subd [b], pars [1], [2] and [3]).