Sherwood v. Judd

3 Bradf. 267

• Court: New York Surrogate's Court
• Decided: September 15, 1855
• Status: Published

Opinion

The Surrogate.

David F. Sherwood having died intestate, a question has arisen as to his residence at the time of his decease, his brothers and sisters alleging that he was domiciled in the State of Connecticut, and his father, that he was domiciled in the State of New York. The point is of consequence, as determining the law of distribution. The intestate was born at Fail-field, Connecticut, in 1816. Before attaining full age, he was in the habit for several years of sailing as a mariner from Southport, on short coasting voyages, returning frequently to his father’s residence. He subsequently went to sea, generally sailing from and returning to the port of New York, and then visiting his native place. In the fall of 1844, he married in the city of New York, and resided with his wife and mother-in-law, at No. 26 Monroe-street: he afterwards got to be master and owner of a vessel, was absent at the south a very considerable period of time during the Mexican war, and ultimately returned to New York. In 1851, his wife was lost at sea, on.a voyage from Savannah—he came back to New York, boarded in East Broadway over a year, and finally after another voyage or two, he died at this place. These facts indicate generally a domicil at New York. The prominent witness to establish a residence in Connecticut, is Mrs. Eunice Beers, a sister of the intestate. Together with her husband, she was a party litigant in the present proceeding, but after the cause had advanced to-the examination of witnesses, they assigned their interest. I do not think that parties can renounce a contestation, and be admitted as witnesses after they have become liable for costs. But still taking her evidence as competent, it is contradicted in its most important features. She says, that her brother after his return from New Orleans in 1849, came with his wife to her house at Fail-field, and that they remained there during the year 1850, except when making visits elsewhere, until the month of November. She also testifies, that on his return from the voyage upon which his wife was lost, he came to her house in February, 1851, “and staid through the year 1851, in Connecticut, principally visiting about.” These statements would place his most usual abode for two years in that State. On the other hand, Mrs. Harris testifies, that the decedent came to board with her at No. 80 East Broadway, in January 1851, and remained about thirteen months ; he went to Connecticut a number of times for two or three days, or a week, but did not give up his room. Mrs. Brewster states, that she let the decedent a sleeping apartment in February, 1851, at her house in Great Jones-street, and subsequently in Grand-street and Clinton-street—he furnished his room, and kept it till he died, though he did not take his meals there till May, 1852. She says, that he was absent in Connecticut in 1851, several weeks; that he remained at home a year before going to sea, and after his return from his last voyage died at her house. Mr. Maddox, a room-mate with the decedent at Mrs. Harris’, the summer and fall of 1851, says, that he was several times absent about two or three weeks. To go back to the year 1850, Mrs. Pease, an acquaintance of Mrs. Sherwood from childhood, testifies, that after their return from Hew Orleans in 1849, Sherwood and his wife boarded at Mrs. Hestelle’s in East Broadway, about two years, and with Mrs. Baker in Henry-street, six or eight weeks, during which period Mrs. Sherwood visited Connecticut several times, the witness on one occasion accompanying her. Mrs. Parker, states, that on their return from Hew Orleans, the decedent and his wife made a visit to Connecticut of about three months, and then boarded at Mrs. Hestelle’s eighteen months, and at Mrs. Baker’s six or eight weeks. This evidence seems to me entirely decisive against a domicil in Connecticut during this period; and yet this is the strongest part of the case of the brothers and sisters. There is not the beginning of proof that the time he spent there, whether long or short, was animo manmdi, with the intention of permanently remaining. His presence there had none of the characteristics of a fixed abode; he was visiting about from one place to another, and all the while had apartments in Hew York.

Without going back more remotely, I think it clear that the decedent was domiciled in Hew York at the time of his marriage in 1844. He marries here, and keeps house. It was sought to escape the force of this fact, by endeavoring to make it appear that the house was kept by his mother-in-law; but she was a poor woman, without the means of supporting the establishment; and the witness Godfrey says distinctly, that Sherwood told him he had purchased new furniture, and hired the whole house. Sherwood’s name was on the doorplate, and his wife continued to live there a year or two, though most of that time he was absent at sea. His absence at the South up to 1849, was not with the intention of changing his residence; and circumstances indicate that subsequently, on his return to Hew York, he had conceived the idea of buying a farm and settling down in Connecticut. This was probably in his mind when visiting at Fairfield with his wife, but in consequence of her expressed dislike of the project, as I should judge, it came to nothing. Mr. Godfrey says, that he also expressed a great aversion to living in Connecticut. I place little stress however on declarations of this character as against a man’s actions and course of conduct. There are many statements of that kind, and some to quite the contrary effect, throughout the case, but they are not entitled to much consideration. Casual remarks in the course of conversation must weigh but little against facts.

Hew York was the decedent’s place of business for many years—he signed all his papers as of Hew York—his vessels were registered here—he sailed from and returned to this port—he married here, kept house and left his wife here, when going abroad. It is said the residence of the wife cannot affect the question, because the domicil of the wife follows that of the husband; without controverting that legal doctrine, it is manifest that the residence of the family is an important element in determining the abode of the head of the family. The wife is usually placed at home. If not accompanying her husband abroad, her residence is ordinarily the point to which he expects to return, and which he esteems his place of permanent domicil. There is another fact, which, in a nicely balanced case, would be decisive. In 1852, the decedent became owner of the bark Cuba, and declared under oath at the Custom House that his “ present place of abode or residence” was Hew York. This sworn statement standing alone would carry great force, but when it is in harmony with the other features of the case, its effect is quite conclusive. An effort was made to prove the decedent had paid a poll tax as a resident of Connecticut, but it failed, at least as to any period within twelve years before his death. The deed of land in Connecticut, which was introduced describing him as of Fairfield, does not appear to have been recorded at his request, and the date of the instrument was in 1840, some four years before his marriage. It is true, Connecticut was his domicil of origin, but that circumstance is of very little consequence, save in a doubtful case, (1 Burge's Com., 36, & see Bruce vs. Bruce, 2 Bos. & Pull. 230,) while on the other hand it sheds light upon the nature of his visits there, and explains their motive. It was natural enough, after an absence of months and years, that he should favor his relations with even protracted visits. But we should regard the probable motive of the act, in order to judge of its character, and certainly we cannot put our finger on any one of these visits and say that it was made with the intention of acquiring or resuming a residence, nor as to all of them put together can we find proof of a continuing purpose of claiming or keeping a domicil at the place of his birth—’as against the indicia of a permanent abode which attach to the New York residence. Was he a resident of Connecticut, when living with his wife in Munroe street—or when boarding with her in East Broadway more than a year, after their return from New Orleans—or when boarding after her decease with Mrs. Harris for twelve or fifteen months—or in 1852, when declaring under oath that his residence was in New York.

I think his domicil here as well established as was consistent with the nature of his calling. He had no family except his wife, and his living at lodgings after the decease of his mother-in-law does not detract from the permanence of his abode. (Whicker vs. Hume, 5 Eng. Law & Eq. R., 52.) That he remained here only while preparing for sea is not sustained by the proof, though if it had been the case, it would have been nothing extraordinary for an industrious sailing master. What was this man’s general habit of life ? That is always the great and leading inquiry in questions of domicil. While on land, where were his business interests centered, where did his occupations fix him and bis necessities call him—what was the point of his home affections? As between Sherwood’s short and occasional visits to Connecticut and the continued character of his abode in Hew York, whether at housekeeping or boarding, married or unmarried—as between the entire absence of interest in property or business there, and the presence of all his interests here—could it be said without violence to every fair and natural inference to be drawn from the habits and pursuits of mankind, that his purpose, his objects and his employments here were temporary, and that there was a fixed intention of a settled habitation at Fairfield? -I concede the principle that sailors whiles following their avocation, do not necessarily change their domicil; but it is true, nevertheless, that sailors may change their domicil, and, as, if they mind their business, they have but little time to spend on land, we are limited perforce to a narrow sphere of observation or field of deduction. But even within that small compass we may discover a few facts that would be controlling. If a sailor marries, supports his wife, and invariably returns to her when on land, that circumstance alone would go far to make her place of residence his own home and abode. But there is a wide difference between a mariner shipping from one port or another, and equally at home -in any, without a single tie to attach him— and the master of a vessel, a man of substance, having his business always centered in one spot, from which he is absent only for a temporary purpose, to which he constantly returns, where he marries and lives with his wife, where he describes his residence in a sworn ofiicial document, and where he dies. The home of the former is about as unstable and floating as the element on which he earns his livelihood, that of the latter as determined, constant, and settled as the nature of his pursuits admits. As to the former, we may be compelled to resort to the domicil of origin in default of finding any other, as to the latter, there can be no difficulty in discovering his usual abode and habitation. I have no hesitation in the present instance, in determining that the decedent’s domicil was at the time of his death, as well as antecedently, in the city of New York, and distribution must accordingly be decreed according to the statutes of this State.