UNITED STATES SUPREME COURT DECISIONS ON-LINE

The question of domicile, so far as it depends upon the facts, is one for the jury.

But it was proper for the court to instruct the jury what constituted a domicile in law, and to say further that as the husband had his domicile in Pennsylvania at the time of his death, the domicile of the widow remained also in Pennsylvania. Whether or not she afterwards changed it to South Carolina, was a question clubjuris

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for the jury, to be decided by the evidence. If they believed this evidence, then the domicile of the widow was in South Carolina.

Her acts and declarations, continued for many years, were to be received as evidence of this choice upon her part.

[MR. JUSTICE WAYNE DID NOT SIT IN THIS CAUSE]

This was an action brought by the State of Pennsylvania to recover the sum of $5,820.23, a collateral inheritance tax, alleged to be due from the estate of Mrs. Kohne. It was admitted that unless her domicile was in Pennsylvania, the tax was not due.

The following statement of facts was made by the counsel for the commonwealth, with the exception of the early history of Mrs. Kohne, which was this, according to the testimony of Mr. Pettigru:

"She was born in Charleston, her father and mother being natives of that place. She never went away till after the fall of Charleston in 1780. Her father was then taken off as a prisoner to St. Augustine, and her mother took refuge in Philadelphia, where she and her daughter continued until the cessation of hostilities; they then returned to Charleston, where she resided without interruption until her marriage. In May, 1807, she married Frederick Kohne, then and for many years previously a resident of Charleston, where they resided at first all the year, and afterwards alternately between that place and Philadelphia."

Statement of Facts on the part of the Commonwealth

Mr. Kohne, the husband of Mrs. Eliza Kohne, died in Philadelphia on the 26th day of May, 1829, and was buried there. He was domiciled in Philadelphia at the time of his death, which place was therefore the domicile of his widow at that time. Mr. Kohne, at the time of his death, owned valuable real and personal estate in Philadelphia City and County, and also in Charleston, S.C. Among the Philadelphia property clubjuris

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was a large and elegant mansion house in Chestnut street, built by Mr. Kohne in 1819, and in which he resided with his wife from that time until his death in 1829, except when he visited Charleston, S.C., where he and she usually spent the winter, leaving Philadelphia about October or November, and returning about May. They did not, however, continue these visits to Charleston during the last few years of Mr. Kohne's life, owing to ill health, or other causes, but remained altogether in Philadelphia. Mr. Kohne, at the time of his death, also owned a mansion in Charleston, S.C., in which he and his wife resided during the winter, as already stated. Both mansions were furnished with servants, furniture, plate &c. Mr. Kohne also owned, at the time of his death, a valuable country seat, with thirty acres of land attached, close to the City of Philadelphia, in Turner's Lane, and now within the corporate limits of that city, which was purchased by him in 1807, about the time of his marriage, and during his lifetime was sometimes occupied by Mr. and Mrs. Kohne, and by Mrs. K. after his death.

Mr. Kohne devised his real estate, wherever situate, to his wife for life, with some exceptions in Charleston, S.C. Her life interest extended to the mansions referred to in Philadelphia and Charleston, and to the Turner's Lane property in Philadelphia.

She did not visit Charleston the winter after her husband's death, but spent a part of it in Savannah. After that winter, however, she resumed the routine which had existed some years prior to her husband's death -- that is, of spending from May to October in Philadelphia, and from November to May in Charleston.

After Mr. Kohne's death in 1829, Mrs. Kohne had his body interred in ground belonging to Christ Church, Philadelphia, and she had the grave constructed large enough for two persons beside each other -- doubtless anticipating and providing for what occurred twenty-three years afterwards, her own interment by his side. She was an old member of that church, and had a right to be buried in any part of the ground. Eight years after her husband's death, Mrs. Kohne, in 1837, bought clubjuris

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a lot in Laurel Hill Cemetery, in which she had someone buried, and which she owned at her death.

In the same year, 1837, her real and personal property assessed for taxes in Philadelphia included the mansion in Chestnut street, assessed at $27,600, eight shares South Carolina bank stock, stock in other states &c. These stocks would not have been subject to taxation under the Pennsylvania law, unless she had been domiciled in Pennsylvania, and she continued to pay taxes on them and similar stocks down to the time of her death, in 1852.

In 1839, she purchased a dwelling house and lot of ground in Philadelphia, and the conveyance describes her as Eliza Kohne, of the same city, viz., Philadelphia, widow. This conveyance she refers to in her will, in devising the property to Susan Ingles, one of her servants.

Mrs. Kohne continued to reside alternately in Charleston and Philadelphia, according to the season of the year, until April 30, 1850, when she left Charleston, to return there no more, and came to Philadelphia, followed soon after by her whole Charleston household, except one old female servant, all of whom remained with her in Philadelphia until her death, March 16, 1852, and none of them returned to Charleston during her life. These were Emma and her husband, Jacob, Peter, Margaret, and Carolina, servants or slaves.

Mr. Frederick Kohne's name is found in the Philadelphia Directories from 1814, and Mrs. Eliza Kohne's from 1830 to 1852.

When the cause came on for trial, there was much evidence given upon both sides, when the court instructed the jury as follows:

"That a question of domicile was one of mixed law and fact. That it was for the court to instruct the jury what constituted domicile, and for the jury to apply the principles of law laid down by the court to the facts as found by them, and thus render a true verdict on the issue they were sworn to try; that the jury had no right to disregard the law as stated by the court, and the court had no right to dictate to them on the

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facts which they were bound to find on their own responsibility."

"The court then proceeded to define the meaning of the word domicile, and the principles of law on the subject, reading from their charge on the Aspden case such parts of it as had a proper application to the general question and were applicable to this case. That charge is found in White v. Brown, 1 Wall. Jr. In application of these general principles of the law to this case, the court stated that it had been affirmed that the domicile of Frederick Kohne was Pennsylvania, because, for three or four years before his death, he had been unable to return to his house in Charleston, had died and was buried in Philadelphia, and called himself, in his will, 'Frederick Kohne, of the City of Philadelphia.' Under these circumstances, it appears his executors did not see fit to dispute his domicile, but submitted to pay the collateral inheritance tax; that, notwithstanding all this, it was not a very clear case that his domicile was in Pennsylvania, had his executors seen fit to dispute it. But for the purposes of this case, we should assume that fact; that, from the legal unity of husband and wife, her domicile was necessarily his while the marriage existed; after his death, she was free to choose her own domicile. If the jury find, that after his death she returned to her former domicile in Charleston, took possession of the house and servants devised to her; lived in that house six or seven months of every year, calling it her home, spending only a few weeks in the spring and fall in her house here, and the remainder of the summer at watering places; coming north in the summer for the sake of her health, always intending to return to her house in Charleston; that she was hindered returning the last time from sickness; if she consulted counsel how she might avoid giving any pretense to the tax-gatherers of Pennsylvania to treat her as domiciled here; if she carefully denied at all times her citizenship in Philadelphia, even to erasing it from printed lists of her church donations, as the assertion of a falsehood; if she refused to have some of her furniture removed here, for fear such a fact would be seized upon after her death for the purpose of asserting her domicile here; if she called herself, in her will, 'of

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Charleston;' if, when absent from that place, she always spoke of returning to it as her home, and did return to it as such, till hindered by sickness -- if the jury believed this evidence of defendant's witnesses, testimony which has not been contradicted or denied, it would be absurd to say her domicile was not where she asserted it to be, to-wit, in the City of Charleston. It is true, the mere speaking of a place as home, in the cant language of the Canadians and other provincials, without any act showing an intention of returning to it, would amount to nothing. But if the acts and the language concur, as proved by these witnesses in this case, it would be a denial to the deceased of the right to choose her own domicile, not to allow her acts and declarations, continued for many years, to be conclusive of the fact."

Exceptions were taken to parts of this charge, and the case came up to this Court.

It was argued by Mr. Scott and Mr. Hood for the plaintiff in error, and by Mr. Gerhard for the defendant.

The points stated by the counsel for the plaintiff in error were the following:

1. That the court charged the jury as to part only of the evidence, viz., that for the defendant.

2. That the court charged the jury as to facts of which there was no evidence.

3. That in effect the court took from the jury the sole material fact in the cause, viz., the domicile of Mrs. Kohne at the time of her death.

In order to sustain these points, it was necessary for the counsel for the plaintiff in error to establish two propositions:

1. To show, from an examination of the evidence, that the instructions of the court were in opposition to or not sustained by it.

2. That this was an error to be corrected by this Court, and in support of this proposition they cited numerous authorities. But as this Court was of opinion that the first proposition was not made out, it is not necessary to recite the authorities in support of the second. clubjuris

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