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In re Swertlow

Decided: April 27, 1979.

IN THE MATTER OF THEODORE SWERTLOW, A/K/A ISIDORE SWERTLOW, DECEASED. TAUBA HOROWITZ, EXECUTRIX OF THE ESTATE OF THEODORE SWERTLOW, PETITIONER-APPELLANT,
v.
STATE OF NEW JERSEY, RESPONDENT-RESPONDENT



On appeal from the Division of Taxation.

Matthews, Kole and Milmed.

Per Curiam

[168 NJSuper Page 91] This is an appeal from a determination that the estate of which petitioner is executrix is liable for the New Jersey inheritance tax. The executrix contends that decedent was not a domiciliary of New Jersey at the time of his death. More specifically, she contends: (1) there was

insufficient credible evidence in the record to uphold the finding that decedent had been domiciled in New Jersey; (2) the New Jersey Transfer Inheritance Tax Bureau had no jurisdiction to decide whether decedent had the mental capacity to change his domicile to New Jersey because a New York court had earlier made that determination and hence had exclusive jurisdiction; (3) the earlier New York decision (that decedent was a domiciliary of New York) must be given full faith and credit here; (4) the hearing officer improperly interpreted a New Jersey Superior Court decision involving decedent, and (5) because only a question of law is involved we can decide the question of domicile anew on appeal.

Decedent had lived in New York City from the date of his birth in 1903 until sometime in 1973. Then, after a sister with whom he had lived died, he moved to a rest home in Haskell, New Jersey. He stayed there until August 8, 1973 when he moved to the Miriam Apartments which are operated by the Daughters of Miriam Association in Clifton, New Jersey.

He moved most of his money to the Prospect Park National Bank and opened a safe deposit box in the same institution. He owned no real property in New York and apparently never acquired any here.

At some time in 1973 his brother brought a proceeding in the New York Supreme Court to have himself appointed conservator of any of decedent's property which was still located in New York. An attorney appeared for Mr. Swertlow (decedent herein) to contest the New York court's jurisdiction. The court took proof on the issue of domicile and concluded that decedent had been removed to New Jersey "under suspicious circumstances." The basis for this conclusion remains unclear since apparently no records of that proceeding are now extant. A psychiatric report submitted to the New York court concluded that decedent was not able to manage his own property. The New York judge therefore decided that decedent had insufficient mental capacity to make

any decision regarding a change of domicile and he appointed decedent's brother as conservator.

The New York conservatorship proceeding is used for persons who have not been judicially declared incompetent but whose ability to care for their property has been substantially impaired. N.Y. Mental Hygiene Law, ยง 77.01 (McKinney). No similar proceeding exists in this State.

Shortly before the New York order was signed on November 16, 1973 decedent became concerned that his brother would withdraw from the New Jersey bank funds decedent had deposited there. He therefore obtained from the New Jersey Superior Court an order to show cause why the bank should not refuse to release his money and why his brother should not be enjoined from attempting to remove decedent from New Jersey.

When the conservator appeared before the Superior Court he asked the judge to give full faith and credit to the New York order and direct the bank to turn over the New Jersey assets to him. The judge refused, noting that New Jersey had no office comparable to a conservator. It was undisputed that by New Jersey standards decedent was not incompetent. Apparently because the New York order purported to control only property located in New York, the judge refused to give full faith and credit to it.

When decedent died in New Jersey the Transfer Inheritance Tax Bureau contended that his estate was subject to tax and made its own independent determination that he was a domiciliary of this State. The hearing officer held that the proofs before him (which included the records of the New York and New Jersey proceedings) showed that decedent's mental condition ...


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