A New York Probate Lawyer this probate proceeding, objections were filed and a jury demanded by the respondents. A motion is made by them to dismiss the petition before any trial on the merits upon the ground that the decedent was not a (domiciliary) resident of Nassau County at her death. They request that the proceeding be forwarded to New York County as the proper county of residence and also for the convenience of witnesses.
In support of the motion, there have been filed affidavits of respondents’ attorney and of respondent man along with copies of affidavits and exhibits which had been previously submitted to the court in connection with an application to revoke letters testamentary which had been issued to the proponent here on the estate of the decedent’s husband, who died on May 26, 1975.
A New York Will Lawyer in opposition to the motion various other facts are asserted to sustain proponent’s claim that Nassau County was the domiciliary residence of decedent and both attorneys have submitted memoranda in support of their respective positions. The court has examined them and will discuss below the various facts alleged by both sides.
Staten Island Probate Lawyers the moving papers here argue that the marital domicile of this decedent and her predeceased husband was an apartment on 196th Street in New York County. They concede that she was injured in an automobile accident and removed to one or more New York City hospitals before going to a nursing home in Nassau County where she died. Movants contend only that as a result of a brain injury received in that accident her condition became progressively worse so that she became incompetent; that as a result of such incompetence she did not have the necessary intent to change her domicile and therefore it remains in New York County.
The proponent asserts in opposition the previous finding of the court that the marital domicile was broken while both decedents were hospitalized when the husband authorized his brother to remove his clothing to the brother’s home in Old Westbury, Nassau County. The proponent also asserts that the husband’s bank accounts were also removed to this county pursuant to a general unlimited power of attorney which the movants concede was granted to the proponent.
The proponent also asserts that proceedings in Nassau County Supreme Court to appoint a conservator for decedent are res judicata on the question of the decedent’s domicile because it was held by the justice presiding there in an opinion that the decedent was then a resident of the County of Nassau. The proponent also asserts that she had not theretofore been judicially declared incompetent. The proponent argues that the conservator proceedings and the finding of residence in Nassau County is binding upon the respondents because one of them and their present attorneys were parties therein, contested the appointment of the proponent as conservator and cross-pleaded for respondent’s appointment instead.
Nassau County Probate Lawyers the ruling of the court is that the finding of residence by the Supreme Court is not binding as res judicata or on collateral estoppel because that part of the decision referred only to venue of that court and was not an issue necessarily determined or essential to the appointment of a conservator.
Other findings in the Supreme Court, however, were essential to the judgment and constituted a determination against the movants’ allegations of fraud and falsity interposed therein as against this proponent. The Supreme Court also determined that the decedent had not been declared incompetent prior to that proceeding and of course it did not therein make any finding of incompetence.
The movants affirmatively allege that decedent was a domiciliary of New York County at the time of her death and that her residence continued specifically to remain in Manhattan, which concededly was the marital domicile. The change of that domicile, however, was determined by the earlier decision of this court in the decedent’s husband’s estate. The movant’s petition therein was dismissed, and properly so, upon the grounds that he lacked status having no pecuniary or other interest in that estate. The court’s decision in that estate is now held to bind the movants on the principles of equitable estoppel, or as res judicata not because of the movant’s personal appearance or the part he played, but because both movants are claiming here by privity with and through the decedent; the latter herself having been a party to her husband’s estate proceedings.
The finding of the husband’s domicile as a fact was necessary to jurisdiction in the earlier proceeding and binds the movants here whether by res judicata or the principles of equitable estoppel. It is of course well settled law that a fact, once decided in an earlier suit, is conclusively established between the parties (or their privies) in any later suit, provided it was necessary to the result in the first suit.
The arguments and assertions now presented clearly show there is no dispute that these two decedents had lived harmoniously together as husband and wife and had not been separated either by judicial decree or by choice, until his death. Under the settled law of the state the domicile of the wife necessarily followed that of the husband. It was so held when a woman upon marriage takes the domicile of her husband by operation of law and the legal domicile of the wife is prima facie that of her husband. This rule, no doubt, is a creation and a survival of the theory of the common law that her very being was merged in that of her husband. Unity of person no longer exists but the husband is still the head of the family, the bread-winner in theory and duty if not in fact. He selects the place of abode of the family and it is the duty of the wife to abide by his decision unless it is unsafe or imprudent for her to do so. It is his choice that governs, not hers, until he forfeits it. Even her physical presence would not be required to effect the change. Her domicile or residence would follow his.
It would be anomalous for the court collaterally to reverse its prior decision based upon the movants’ present offer of proof which is contrary to its previous findings that the marital domicile was changed by the husband prior to his death.
These movants are claiming, in other words, as distributees of the widow, that the marital domicile was not changed and continued to be in Manhattan even up to her death, despite the fact that the court had made a judicial determination in her husband’s estate, binding upon the widow, that he, and therefore both, were at his death domiciled in Nassau County. And the same address was stated in the petition there as her residence!
Based upon the foregoing analysis the court finds that the decedent’s domiciliary residence was in Old Westbury, Nassau County, at the time of her husband’s death and that it continued unless and until superseded by a new domicile. The also finds that unless proof is adduced that she changed it to New York County before her death, the decedent’s domiciliary is in New York. The motion must be denied. Accordingly, if the movants still wish to press their motion on the question of domicile, they will have the burden to show such change. Their present assertions to the effect that she was incompetent prior to the husband’s death are irrelevant to the issue. Neither have they shown sufficient reason to change the place of trial for convenience of witnesses.
Accordingly, the corrections requested by counsel are accepted. It should also be noted that the prior decision dealt only with arguments of counsel and there were no findings of fact. The motion was denied with leave to movants to tender an offer of proof acceptable to the court and the decision stands, with permission to request a hearing if one is desired. The record is now corrected to show that movants made no concessions relating to the automobile accident.
When couple start a life together, their home becomes a witness to all the memories they make. If you want to prove domiciliary in the middle of a probate proceeding, consult the Nassau County Probate Lawyer together with the Nassau County Will Contest Attorney from Stephen Bilkis and Associates.