Hall, Admx. v. Morris

Bruñe, C. J., delivered the opinion of the Court. The principal controversy in this case is whether one Martin F. Harp was domiciled in Maryland or in Florida at the time of his death on May 23, 1954. The appellant, Mrs. ³⁹⁹ Edith Johnson Hall, a sister of the late Mrs. Harp, who had predeceased her husband, offered the will of Mr. Harp for probate in the Orphans’ Court for Charles County. It was there admitted to probate, and Mrs. Hall was appointed administratrix c.t.a. of Mr. Harp’s estate.

Mrs. Alice Harp Morris, the appellee, a sister of Mr. Harp, then filed a petition seeking the revocation of the letters and the transmittal of the will to Florida for probate. This petition asserted that the decedent had been domiciled in Florida. The administratrix c.t.a. filed an answer asserting that he was domiciled in Maryland. After a hearing the Orphans’ Court rendered a decision that the decedent had been domiciled in Maryland.

Mrs. Morris took an appeal to the Circuit Court for Charles County under Code (1951), Article 5, Section 69. In accordance with that Section the case was tried de novo in the Circuit Court. It was heard by Judge Digges, sitting without a jury. The testimony of ten witnesses was taken in open court, and the testimony of six others, taken by deposition, was offered in evidence.

Judge Digges filed a comprehensive opinion and an order in conformity therewith. In the order he recited findings of fact (a) that Harp was never a legal resident of Maryland and (b) that at the time of his death he was domiciled in Florida. The first paragraph of his order accordingly reversed the decision of the Orphans’ Court on the matter of domicile. The second paragraph of the order provided that “the construction and interpretation” of Mr. Harp’s will and “the distribution of personal estate thereunder must be according to the law of the State of Florida since no contrary intention appears from the Will of Martin H. Harp”, and the third paragraph directed that the costs of the appeal be paid out of the estate in the hands of the administratrix c.t.a.

The appeal is from that order. The primary question before us is, as stated, with regard to the domicile of Mr. Harp. There is a further question before us with regard to the second paragraph of the order. Mr. Harp’s will was executed in 1928.

At that time he was domiciled in Illinois. Illinois, we are informed, has a statute which saves legacies from lapsing; so does Maryland. (Code (1951), Article 93, Section 351, which also applies to de ⁴⁰⁰ vises.) Florida, we are told, does not have an anti-lapse statute. Behind the question of domicile lie controversies between the heirs or next of kin of the husband and the heirs or next of kin of the wife, as to whether or not the testator’s gifts are saved by an anti-lapse statute and as to the proper construction of his will.

Mr. Harp’s will is brief. By the first item he directed the payment of his debts and funeral expenses; by the third, he appointed his wife as his executrix. The second item consists of two sentences. By the first of these he gave, devised and bequeathed all of his property, real, personal or mixed, to his wife; by the second, he undertook to give, devise and bequeath all the rest, residue and remainder of his property, real, personal or mixed, in fee simple, to his “wife, Minnie Harp, her heirs or assigns forever.” To dispose of the secondary question first, we do not think that any question as to the construction or interpretation of the will was before the Orphans’ Court or before the Circuit Court on appeal therefrom in the present case; and certainly we do not undertake to decide any such question on this appeal.

The sole question controverted was one of domicile, and there was no attempt to seek a construction or interpretation of the will at this stage of the proceedings. The second paragraph of the order of the Circuit Court is a correct statement of the law under Lowndes v. Cooch, 87 Md. 478 , 39 A. 1045 , in saying that the distribution of personal property is to be made in accordance with the law of the decedent’s domicile. We do not understand that paragraph to undertake to decide what the law of Florida may be, what effect, if any, might be accorded in this case to the Illinois law under the Florida law or what the law of Illinois (if applicable) may be. We do not understand this paragraph of the order of the Circuit Court to undertake to do more than state the rule of Lowndes v. Cooch, supra; nor do we take it as precluding the remission of the net estate to an administrator c.t.a. appointed by the Florida court having probate jurisdiction-over Mr. Harp’s estate, for distribution under the orders of that court.

(So far, we understand, Florida has appointed only an ancillary administrator, c.t.a.) On the question of domicile, there seems to be no contro ⁴⁰¹ versy over the fact that Mr. Harp was domiciled in Illinois in 1928 or over the fact that he acquired a new domicile in Washington, D. C., probably about 1933 or 1934, and retained it until 1950. In the late 1940’s, Mr. and Mrs. Harp were engaged in business as concessionaires at amusement parks, or the like, or on excursion vessels operating in the Washington or Chesapeake Bay area. Mr. Harp was also in partnership with a Mr. Cyril W. Martin in certain concessions at Gwynn Oak Park in Baltimore, which were actually operated by Mr. Martin or under his direction. Mr. Harp for some years “worked the boats” and Mrs. Harp operated a concession at Marshall Hall Park, Accokeek, Charles County, Maryland.

The Harps started working at Marshall Hall Park in 1934. After Mr. Harp ceased to work on ships, both Mr. and Mrs. Harp worked at Marshall Hall Park. While he was “working the boats,” he often came to the Park, but not during the day. All of the Harps’ concession activities were carried on during the spring and summer, when amusement parks and excursion boats were in operation.

They had their home in Washington for some years in an apartment which they rented from Mrs. Harp’s niece and the latter’s husband, the Winklers. It was their custom to visit Florida each winter— a custom which began when they were living in Kewanee, Illinois. In 1950 the Winklers sold their apartment house where the Harps lived. After a brief stay with the Winklers at another address in Washington (1218 Buchanan Street, N. E.), the Harps moved to Marshall Hall Park and lived in a room behind the concession which they operated.

They took there some of the furniture which they had had in Washington. In the fall of 1950 they went to Florida, and in November of that year they bought a home in St. Petersburg, Florida. For the next three years they spent about six months in Florida and then came up to Marshall Hall Park about two weeks before it opened for business in the spring and returned to Florida two or three weeks after it closed at the end of the summer season. Apparently in 1953 they wanted better quarters at Marshall Hall Park and paid for putting up a new ⁴⁰² building at a cost of about $5,000, which seems to have been intended for use both for their popcorn concession and for their living quarters.

Mrs. Harp died at St. Petersburg, Florida, on January 3, 1954, and was buried there. Mr. Harp returned to Marshall Hall Park, Maryland, in the spring of 1954, and died there on May 23 of that year. His body, too, was buried at St. Petersburg. In this case, as in Shapiro v. Marcus, 211 Md. 83, 124 A. 2d 846 , there is no controversy over the legal rules which determine the question of domicile, and the questions here, as there, are factual.

The appellant raises one contention with regard to the facts which she seeks to rest upon the Shapiro case. This relates to the weight to be given to the findings of the Orphans’ Court, which had found in her favor on the issue of domicile. This contention (even if properly raised) is not tenable. The Shapiro case came to this Court on a direct appeal from an Orphans’ Court.

We there followed several prior decisions of this Court and held that the judgment of the Orphans’ Court on a disputed question of fact, litigated by adversary proceedings, should not be reversed unless clearly erroneous. Here, however, the case does not come to us on direct appeal from an Orphans’ Court, but reaches us on appeal from a Circuit Court, where, in accordance with Section 69 of Article 5 of the Code, the case was tried de novo. The record does not even include the evidence submitted to the Orphans’ Court. In the Circuit Court the case was tried by the Judge, sitting without a jury, and Rule 886 a of the Maryland Rules (Rule 9 (c) of our former General Rules of Practice and Procedure, Part Three, III) is applicable.

Under it the judgment of the Circuit Court is not to be set aside on the evidence unless clearly erroneous, and due regard is to be given to the opportunity of the trial court to judge the credibility of the witnesses. The appellant contends that Mr. Harp acquired a domicile in Maryland in 1950, that he did not acquire a domicile in Florida and that, even if he had, he acquired a domicile in Maryland in 1954, following his wife’s death. The trial Court found against the appellant on all of these contentions. ⁴⁰³ The appellant argues that the Harps acquired a domicile at Marshall Hall Park in 1950 after leaving Washington and before going to Florida in the fall. We fully agree with the learned trial judge in rejecting this contention.

They worked as and where they had worked before; they stayed there during the season. We