Scrimgeour v. Chase

McClain, J.

The decedent, William Murray, died intestate at the home of his daughter, Mrs. Baker, at Belle Plaine, in Benton County, on the 20th day of November, 1906. Letters of administration on his estate were granted in that county, and his property distributed to his two daughters, Mrs. Baker and Mrs. Chase, both defendants in this case. Subsequently letters of administration on the estate were granted in Tama County, where deceased had formerly resided, and this plaintiff was appointed administrator. A claim against the estate being filed with the court in Tama County and allowed by the administrator, proceedings were instituted against the two defendants above named and others to subject property of the deceased in their hands to- the payment of said claim. Defendants pleaded want of jurisdiction of the court to grant administration -in Tama County, alleging that decedent was a resident of Benton County at the time of his death, and that his estate had been properly distributed in the probate proceeding previously had in that county. After hearing evidence as to the residence of deceased at the time of his *370 death, the court dismissed the proceedings against these defendants.

If decedent was in fact a resident of Benton County when he died, the distribution of his estate’ in the proceeding in Benton county was proper, and the court rightly refused to interfere with the disposition of decedent’s property regularly made in that proceeding. The question to be determined was one of fact, and the finding of the court is entitled to the force and effect of the verdict of a jury as to the facts, and should not be interfered with on this appeal, if there is any evidence in its support. Some years prior to his death decedent had lived in Belle Plaine in Benton County, but, on being divorced from his wife, had removed to Clutier in Tama County, where he engaged in the business of buying and shipping chickens. On November 15, 1906, he received a severe injury, which finally resulted in his death. On November 17th he was visited at his rooms in Clutier by his daughter, Mrs. Baker, and his fbrmer wife, and arrangements were made by them for his removal to Belle Plaine, and on the morning of the 18th he arrived in Belle Plaine, remaining in the home of his daughter Mrs. Baker until his death. The real controversy in the trial court was as to whether deceased voluntarily and consciously went to Belle Plaine with the purpose of abandoning his residence at Clutier, and thereby became a resident of Benton County, so that the probate court of that county properly entertained jurisdiction to administer his estate.

_• decedents: residence: evidence. There was evidence tending to show that prior to receiving his injury decedent had definitely planned to close up his business at Clutier and go to live with his daughter at Belle Plaine, and that he had so far acted in carrying out this intention as to pack up his personal belongings in readiness to go to Belle Plaine within a few days when he was injured. The evidence also tends to show that decedent consciously *371 and voluntarily assented to his removal to Belle Plaine by his daughter and his former wife, and that, after reaching the home of his daughter, he knew where he was, and acquiesced in such removal. Counsel for appellant argue that the intent to remove formed while in Clutier was immaterial, as residence can not be determined by intent alone, but we think it was entirely competent to show the intent to remove as bearing on the question whether the subsequent removal was voluntary and in accordance with a purpose to change his residence to Belle Plaine. If there was an intent to remove and- a voluntarily removal in substantial accordance with that intent, it would be immaterial that the removal was accompanied by circumstances or took place under conditions not originally anticipated.

2. Same. It is argued that the expressions of purpose on the part of decedent did not indicate an intent to make Belle Plaine his permanent home, but that the purpose was, on 2. same other hand, to remain for a time with the daughter at Belle Plaine, and afterward with the other daughter, Mrs. Chase, at Clinton. But, if there was a definite intention to abandon his residence at Clutier, .and such residence was in fact abandoned without any intention to return, then it would be immaterial how long he intended to remain at Belle Plaine. Fuller v. McDonnell, 75 Iowa, 220 ; State v. Hemsworth; 112 Iowa, 1 . We have no difficulty here as to the distinction between residence and domicile. ' If deceased had abandoned his residence in Clutier, and voluntarily removed to Belle Plaine, the latter was the place of his residence and his domicile at the time of his death, for he had no other residence. If deceased actually removed from Tama County-with a definite intention of not returning, then the court of that county had no jurisdiction to grant administration on his estate, and properly refused to entertain the supplementary proceedings against the defendants, and the question whether there was such residence in Benton County *372 as to justify the administration of his estate in that county wqs really immaterial.

3' communications with decedent: conclusion. • Errors are assigned in the admission of evidence over defendants’ objection as., to the contents of letters written by deceased to his daughter, Mrs. Baker, with regard to his intention to leave Clutier and reside with her. As already indicated, it was proper . . to show decedents previous intention as ■ -*- . throwing light on his purpose in voluntarily consenting to be removed from Clutier to Belle Plaine.

His former wife, not being a party to this proceeding, nor in any way interested therein, was not incompetent under Code, section 4604, 4607, to testify as to the contents of these letters which she had read and which had been subsequently destroyed. Mrs. Baker as a witness simply identified the letters, and was not asked to testify as to their contents. Objection was also made to a question asked the former wife as to whether deceased was conscious when she was with him at Clutier. This question was not objectionable as calling for a conclusion, for it related to a fact within the witness’ observation.

4' of estates: proceedings; There was no inconsistency in the action of the court in dismissing the proceedings against these defendants without canceling the letters of administration in Tama County. Defendants had not asked that such letters be canceléd, and it was immaterial to. them whether the administrator appointed in Tama County should continue to attempt administration on- the estate of deceased. The relief which defendants sought was to be discharged from the supplementary proceeding in which it was sought to have them account for property of deceased alleged to be in their possession. This relief might properly be granted without canceling the letters of administration.

We find no error in the record, and the judgment is affirmedl.