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Matter of Estate of James M. Harrison

Decided: May 29, 1952.

IN THE MATTER OF THE ESTATE OF JAMES M. HARRISON, DECEASED


Drewen, J.c.c.

Drewen

This is an order to show cause why the probate of decedent's will by the Surrogate of Hudson County should not be vacated and set aside. The question raised is the single one of domicile.

On September 18, 1950, decedent and his wife came to reside as registered guests at the Hotel Plaza in Jersey City; and they were still resident there when, on November 17, 1950, decedent died. His will had been executed on November 9, 1950. The ruling depends on whether the hotel residence had the character of domicile.

Decedent's coming to reside in Jersey City was the culmination of a series of facts and circumstances that are of first importance to the question, and must, therefore, be reviewed.

It begins in the year 1929, while decedent was living in Cleveland, Ohio, where he had been resident, and apparently domiciled, continuously since 1922. In May, 1929, coincidental with his retirement from business, he established separate trusts for his wife and for each of his two children.

The Hudson Trust Company of Hoboken was named as trustee. Part of decedent's securities were transferred to these trusts and the remainder deposited in a custodial account in his name in the trustee bank. At the same time he opened a checking account there for himself and his wife. In October, 1929, the couple vacated their Cleveland apartment and began a course of traveling from place to place at comparatively brief intervals which continued until 1934. During this period of five years they spent time in New York City, Washington, D.C., Detroit, Cleveland, and at a number of resorts. It is apparent from a variety of things, as will be shown, that during these years of itinerance they had no established domicile. But in May, 1934, decedent purchased a home in Westport, N.Y., where he and his wife resided until 1941. From time to time they journeyed away from the Westport residence to other parts of the country, always to return there, until the Westport home was sold in June, 1941. While residing at Westport decedent filed a New York State income tax return as a New York resident, and he filed his federal income tax return with the Collector of Internal Revenue at Albany. The furniture that had been in use in the Westport home was disposed of when the house was sold, and also some of the furnishings. The furnishings not sold were shipped to the home of decedent's daughter in Michigan. With the sale of the Westport property there ended all indicia of domicile at that place.

In the same month (on June 26, 1941) decedent wrote to the Hudson Trust Company from the Commodore Hotel in Cleveland: "Please send all mail to the above address until further notice," and on August 12th of that year he wrote to the bank in Hoboken acknowledging certain information respecting personal property taxes in New Jersey, and adding: "We will be drifting east along about the 1st of September and will find some spot for so-called permanent address." From this I take it that no idea of permanence attached to the situation surrounding the couple's mode of living at the time.

The winter of 1941-2 was spent in a furnished hotel in Florida; the summer of 1942 was spent in Detroit. In September of 1942 the couple took up residence in the Hotel Statler in Buffalo, N.Y. In March, 1943, they returned to the Hotel Commodore in Cleveland, and in the same month decedent wrote from there to the bank in Hoboken: "For your information my official address (Federal Tax, etc.) is 56 Oakdale Blvd., Pleasant Ridge, Mich." This was the address of his daughter and it was given as decedent's own address in each of his federal income tax returns for the years 1943 to 1948, inclusive. During the winter of 1943-4, the couple again occupied a furnished apartment in Florida. From and after June, 1944, they resided for one year in Washington, D.C., leaving there for the Mayo Clinic in Rochester, Minn., because of the wife's having suffered a stroke. The winter of 1945-6 was spent at a hotel in Florida, after which the couple stayed for a short time at a hotel in Syracuse, N.Y. Following this they resided at a hotel in Atlantic City, remaining there through the winter of 1946-7. Then followed periods of residence at hotels in Washington, D.C., and Florida. Approximately the first half of 1948 was spent at hotels in Atlantic City and New York City, the couple moving to the Hotel Carter in Cleveland on August 1 of that year.

At or about this time the Westport furnishings were taken from the daughter's home in Michigan and placed in storage in Detroit. The widow testifies that this was in contemplation of trans-shipping them to California where they thought they might settle. After a month at a Chicago hotel they moved, in November, 1948, to the Hotel Hilton at Albuquerque, N.M., going from there to California, where they arrived at the end of November, 1948. On November 22, 1948, decedent wrote the bank in Hoboken that he was changing his address from that of his daughter to that of the bank in Hoboken, and that "* * * for Sheriffs and F.B.I. our address is H.T. Co.," the meaning of which I take to be that the bank was to be his address for all tax and financial

purposes, though, as we shall see, he used it on at least two occasions for hotel registration, one other than its use at the Plaza here. The prospect of the home in California did not materialize, apparently because of the wife's becoming ill there, and in June, 1949, they were at a hotel in Minneapolis, Minn. Under date of April 11, 1949, the bank received from decedent the following message: "I sent my first quarterly Income Tax payment to Newark and ...


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