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Lyon v. Glaser

Decided: March 6, 1972.

JAMES A. LYON, JR., EXECUTOR OF THE ESTATE OF OLIVE R. LYON, PLAINTIFF-APPELLANT,
v.
SIDNEY GLASER, ACTING DIRECTOR OF THE DIVISION OF TAXATION OF THE STATE OF NEW JERSEY, GEORGE F. KUGLER, JR., ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, AND JOSEPH M. MCCRANE, TREASURER OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS



For reversal: Chief Justice Weintraub and Justices Francis, Proctor, Hall, Schettino and Mountain. For reversal and remandment: Jacobs. The opinion of the Court was delivered by Francis, J. Jacobs, J. (dissenting).

Francis

On March 30, 1967 Olive R. Lyon, 85 years of age, died in the University Hospital, Baltimore, Maryland, less than 24 hours after being hospitalized with a heart attack. Although a resident of New Jersey for a great many years, she had been living with her son in Baltimore for a considerable period before her death. The New Jersey Transfer Inheritance Tax Bureau held that her Baltimore abode did not change her status as a New Jersey domiciliary, and so imposed an inheritance tax on her estate in accordance with N.J.S.A. 54:34-1, subd. a. The Appellate Division affirmed the assessment in an unreported per curiam opinion. We granted the Executor's petition for certification. 58 N.J. 435 (1971).

The section of the Transfer Inheritance Tax Act referred to provides that a tax shall be imposed upon the transfer of real or personal property of the value of $500 or over,

a. Where real or tangible personal property situated in this State or intangible personal property wherever situated is transferred by will or by the intestate laws of this State from a resident of this State dying seized or possessed thereof.

In this statutory context "resident" means domiciliary, and "residence," when spoken of for purposes of imposition of the tax, signifies "domicil." In re Estate of Gillmore, 101 N.J. Super. 77, 85-87 (App. Div.), certif. den. 52 N.J. 175 (1968); In re Fisher, 13 N.J. Super. 48, 55 (App. Div. 1951); In re Rueff's Estate, 157 Misc. 680, 284 N.Y.S. [60 NJ Page 264] 426 (Sur. Ct. 1935), aff'd mem. 249 App. Div. 617, 292 N.Y.S. 183 (1936), app. dis. 273 N.Y. 530, 7 N.E. 2d 677 (1937). Here they are convertible terms. Domicil is very much a matter of the mind -- of intention. One may be acquired, or changed to a new one, when there is a concurrence of certain elements; i.e., an actual and physical taking up of an abode in a particular State, accompanied by an intention to make his home there permanently or at least indefinitely, and to abandon his old domicil. A person has the right to choose his own domicil, and his motive in doing so is immaterial. The change may be made to avoid taxation, so long as the necessary ingredients for establishment of the new domicil are present.*fn1 A very short period of residence in a given place may be sufficient to show domicil, but mere residence, regardless of its length, is not sufficient. It has been said that concurrence, even for a moment, of physical presence at a dwelling place with the intention of making it a permanent abode, effects a change of domicil. And once established, the domicil continues until a new one is found to have been acquired through an application of the same tests. In re Fisher, supra; Cromwell v. Neeld, 15 N.J. Super. 296, 300-301 (App. Div. 1951); In re Dorrance, 115 N.J. Eq. 268, 274-275 (Prerog. Ct. 1934), aff'd per curiam sub nom. Dorrance v. Thayer-Martin, 13 N.J. Misc. 168 (Sup. Ct. 1935), aff'd o.b. 116 N.J.L. 362 (E. & A. 1936); Slater v. Munroe, 313 Mass. 538, 48 N.E. 2d 149 (1943); State ex rel. Orr v. Buder, 308 Md. 237, 271 S.W. 508 (1925); In re Appleby's Estate, 106 N.Y.S. 2d 294 (Sur. Ct. 1951), aff'd mem. 279 App. 993, 112 N.Y.S. 2d 493 (1952); Schillerstrom v. Schillerstrom, 75 N.D. 667, 32 N.W. 2d 106 (1948); 25 Am. Jur. 2d Domicil, §§ 16, 17, pp. 13-15 (1966); Restatement (Second) of Conflicts of Laws, §§ 15-19, pp. 61-79 (1971). Since the concept

of domicil involves the concurrence of physical presence in a particular State, and an intention to make that State one's home, determination of a disputed issue on the subject requires an evaluation of all the facts and circumstances of the case.

In the proceeding in the Transfer Inheritance Tax Bureau no testimony was taken. The question of Mrs. Lyon's domicil at the time of her death was decided solely on the basis of affidavits and documents submitted on behalf of her estate. The appeal to the Appellate Division from the determination that she was a New Jersey domiciliary on the critical date, and her estate therefore taxable, was confined to the record so made.

It appears that Mrs. Lyon was born in New Jersey on March 13, 1882. She lived here from infancy and throughout her married life until her husband, James A. Lyon, died on March 15, 1965. Their entire marital life was spent in the home owned by them at 721 Turnpike, Pompton Plains, New Jersey. Some years before Lyon's death, their son and only child, Dr. James A. Lyon, Jr., had taken up residence, and the practice of medicine in Baltimore. He was living there with his wife and children during the period with which we are principally concerned here.

When her husband died, Mrs. Lyon was 83 years of age, and although not an invalid and apparently not suffering from any malady requiring constant medical care or confinement, she had the physical infirmity commonly found in a person of her age. Following the loss of her husband she was alone in the Pompton Plains home until a married niece came to stay with her temporarily. According to the niece, Mrs. Lyon had outlived most of her close friends and very few persons visited her. With the exception of an invalid brother of advanced age, her closest relatives were her son and grandchildren in Maryland. The niece asserted also in her affidavit that the loss of her husband imposed a great emotional strain on Mrs. Lyon, and it soon became apparent that she would not be able to remain in her home.

The affidavits show that prior to James Lyon's death, Dr. Lyon had asked his parents to live with him in Maryland, and agreed to build an addition on his home to provide comfortable living quarters for them. Apparently the addition, consisting of a bedroom, sitting room and bath, had been completed some unstated time before his father's death. Upon the father's death, Dr. Lyon renewed the request that his mother move to his Baltimore home. Four weeks thereafter, in mid-April 1965, he drove her to Baltimore. It seems fair to say from the record that at this time some doubt existed as to whether Mrs. Lyon had made up her mind definitely to live permanently with her son. However, on her arrival in Baltimore, it was obvious that she was suffering from the infirmities of her age, and a long standing heart condition. Soon after her arrival she was examined by a heart specialist who recommended that she move to Baltimore where her son could look after her. This doctor saw her on four occasions in 1965, and thereafter at two or three month intervals until her death on March 30, 1967. He said in his affidavit that it was his opinion, with which she came to agree, that she could not take care of herself alone at her New Jersey home.

When Mrs. Lyon came to Baltimore she brought all of her clothing, summer and winter, her furs and silverware. Thereafter she kept her furs stored at a department store in Baltimore. It was not necessary to move the furniture from her Pompton Plains home because the living quarters in her son's house were already furnished. However, she did arrange to have a few of her favorite pieces delivered there. After April 1965 she never again lived in Pompton Plains, except for one month visits in the summer of 1965 and 1966. The house there was not sold, apparently for sentimental reasons, and so she could see her few remaining friends in New Jersey, when she wished. It is noteworthy in this connection that in conversation with the minister of the church she and her husband had attended in Pompton Plains, she told him she was reluctant to dispose of the house there because she and her husband had lived in it

throughout their married life. Moreover, she could afford to keep the property, as she did not need the money a sale would bring. Except for a two months' stay at her son's summer home at Long Beach Island at the New Jersey shore in the summer of 1965 and 1966 and the one month visit thereafter to the Pompton Plains house, she spent all of her time in Baltimore. On these visits to New Jersey she brought along only such clothes as would be appropriate for the period involved.

Undisputed affidavits of Mrs. Lyon's niece, acquaintances, and the minister of her former church in Pompton Plains refer to declarations by her after her removal to Baltimore that she was happy there with her son and grandchildren, and that she considered her son's home as her permanent residence. These declarations, although hearsay, are of course admissible and have a substantial probative value on the issue of domicil. In re Harrison, 20 N.J. Super. 162, 170-171 (Cty. Ct. 1952); 25 Am. Jur. 2d, supra, Domicil, § 89, pp. 63-64. Obviously, Mrs. Lyon's declarations, made without any object or inducement to deceive the disinterested persons to whom she made them, are very strong evidence of her intention. Moreover, on moving to Baltimore she arranged with the Pompton Plains Post Office to send her mail to the new address, and that instruction was never changed. After April 1965 she no longer remained an active member of any religious organization, club or society in New Jersey. In 1966 and 1967 her federal income tax returns bearing the Maryland address were filed with the District Director of Internal Revenue in Baltimore.

In December 1965 a practical nurse who lived in Baltimore was engaged as a companion for Mrs. Lyon. The nurse's affidavit says her hours at Dr. Lyon's home were from 8:30 A.M. to 4:30 P.M., five days a week. Her services were not required because of Mrs. Lyon's physical or mental health, but because she was lonely after the death of her husband, and Dr. and Mrs. Lyon were busy with their own affairs and family and so could not devote their entire time

to her. However, they were able to provide companionship on evenings and week-ends.

According to the companion, Mrs. Lyon spoke often of her son's home as her home, and said she would spend the rest of her days in Maryland; further that she would not think of living anywhere else and would never return to New Jersey on a permanent basis. One of her greatest pleasures was helping her grandchildren in the evening with their homework. She was plainly devoted to her only son and his family, and she had made him executor and sole beneficiary under her will. In her affidavit the companion said also that on leaving for New Jersey in the summer of 1966 Mrs. Lyon asked her not to make any commitments for the fall because she wished her to continue in her companion status. During the summer Mrs. Lyon telephoned her and on one occasion told her she "would be home soon," meaning the Baltimore home.

On March 29, 1967, almost two years after coming to her son's Baltimore home, Mrs. Lyon suffered a heart attack and was taken to the University of Maryland Hospital. The record gives her permanent address at the time of admission as 301 South Wind Road, Baltimore, Maryland. Her admission was classed as "emergency" and it appears that Dr. Lyon had given his consent to the necessary treatment or surgery. Upon her death -- the next day -- the death certificate was prepared by Dr. William H. Barker, Jr., a staff physician. He noted her Baltimore home address thereon in ink. Copies of this certificate were given to the funeral director who had charge of her burial in the plot in Pompton Plains, New Jersey, where her husband had been interred. The death certificate issued by the Baltimore City Bureau of Vital Records lists her address as 721 Turnpike, Pompton Plains, New Jersey, and at the bottom contains the name of the funeral director in script. The New Jersey address is typewritten but the rest of the form is printed in ink, obviously by Dr. Barker. As noted, the death certificate as prepared by the doctor at the hospital bears the Baltimore

home address in his printing, but the City's certificate contains a typewritten change to the Pompton Plains address. The affidavits of the persons involved at the hospital all reveal beyond question that they neither changed nor authorized a change in Mrs. Lyon's home address; and Dr. Lyon asserts that the death certificate was prepared without consultation with him. The strong inference is that the change was made by the funeral director probably because of the Pompton Plains burial. The inference could not be verified because the funeral director has since died. ...


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