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In Re Estate of Stahl

JULY 27, 1973.

IN RE ESTATE OF LEONARD STAHL, DECEASED — (URSULA STAHL, PETITIONER-APPELLANT,

v.

THOMAS S. CHUHAK, ADMR. OF THE ESTATE OF LEONARD STAHL, DECEASED, DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. FRANK M. SIRACUSA, Judge, presiding.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Petitioner Ursula Stahl filed a petition in the Estate of Leonard Stahl, deceased, requesting:

1. the revocation of Letters of Administration issued to the Public Administrator and the issuance of Letters of Administration De Bonis Non to her as common-law widow and sole surviving heir of decedent, and

2. a declaration that the contents of a certain safety deposit box pass to her outside the estate.

Following a hearing held without a jury the court found, inter alia:

1. that petitioner was not the wife and is not the widow of the decedent, Leonard Stahl, and

2. that she had no interest in the contents of the safe deposit box.

Petitioner appeals from those findings.

The first issue presented is whether petitioner was the wife and is the widow of Leonard Stahl by virtue of the laws of Texas, thus entitling her to an intestate share of his estate. Ill. Rev. Stat. 1969, ch. 3, par. 11(3).

The necessary facts surrounding this question may be summarized briefly. Petitioner left her husband, Benjamin Mills, and five children on November 1, 1969, and went to live with Leonard Stahl. No divorce was obtained. Mills died on May 20, 1970, thereby removing any legal impediment to the consummation of a marriage with Leonard Stahl. (Ill. Rev. Stat. 1969, ch. 38, par. 11-12.) In July of 1970 the decedent traveled to Texas for a period of three days for the purpose of a vacation and the consideration of that state as a future retirement site. Petitioner accompanied him and evidence was introduced which suggested they held themselves out as husband and wife during this brief stay. Further, petitioner testified, without objection, that marital vows were privately exchanged in their hotel room. Upon return to Chicago they continued their relationship until decedent's death on February 1, 1971.

• 1 Petitioner contends that the court erred in not determining that she was the common-law widow of decedent since Texas recognizes common-law marriages. She claims that she and decedent were domiciled in Texas and that since the marriage was legal there, such marriage was valid in Illinois upon their return to Illinois. (Citing Peirce v. Peirce, 378 Ill. 185, 39 N.E.2d 990.) In that case the court stated the general rule that marital status is governed by the law of the state of domicile but expressly found that the parties were not domiciled in Illinois and that they were in Nevada "for the purposes and with the intent of making their home there."

• 2 Thus, we need only focus on the single issue of the domicile of the parties. We think the evidence patently establishes that the parties were at all times domiciled in Illinois. The court in Owego Community School Dist. v. Goodrich, 28 Ill. App.2d 407, 171 N.E.2d 816, 820, gave this test for the determination of domicile.

"A person can have only one domicile and once he establishes a domicile or permanent residence he retains it until a new one is established. To establish a domicile, two things are required. First, a person must physically go to the new home and live there. Secondly, he must do so with the intention of making it his permanent home."

• 3 The proof offered here falls far short of establishing a Texas domicile. In the most favorable light, the evidence only suggests a future intent to permanently reside in Texas. This is clearly insufficient. ...


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