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In Re Estate of Elson





Appeal from the Circuit Court of Du Page County; the Hon. Edwin L. Douglas, Judge, presiding.


Petitioner, Margo Elson, appeals from an order of the trial court which dismissed her petition for letters of administration. On appeal, she asserts that Natalie Elson, her deceased sister, was a resident of Illinois at the time of her death and had not changed her residence permanently from Illinois to Pennsylvania.

Natalie Elson died in the State of Pennsylvania on November 14, 1981, as a result of an automobile accident. Decedent's sister, Margo Elson, filed a petition for letters of administration in the circuit court of Du Page County, Illinois, on February 19, 1982, in which she alleged that Natalie was a resident of Du Page County at the time of her death. Decedent's father, Dr. Ralph Elson, entered a special and limited appearance and filed a motion to strike and dismiss the petition in which he asserted, among other things, that Natalie was domiciled in Pennsylvania at the time of her death. After consideration of the evidence the trial court determined that Natalie Elson was a domiciliary of Pennsylvania at the time of her death and, accordingly, dismissed the petition pursuant to Dr. Elson's motion. Margo Elson appeals.

Testimony at trial disclosed that Natalie Elson, who died at the age of 27, lived her entire life in Illinois, except for the five or six days she resided in Pennsylvania immediately prior to her death on November 14, 1981. According to one witness, Natalie's primary interest in life was horses and she had studied recreation and equine sciences or horsemanship while attending Southern Illinois University. After graduating from college, Natalie completed an equestrian internship, taught horseback riding to handicapped children, trained horses, and trained with an instructor in Minooka, Illinois, to further her education. During the last six years she lived in Illinois, Natalie often changed residences and lived in six different places in Illinois during that period.

Natalie decided to study dressage at Hillview Farm in Pennsylvania under the tutelage of an instructor named Ralph Hill; she had studied dressage earlier in Minooka, Illinois. While in Pennsylvania, she was to be a working student whereby she would receive lessons in horsemanship in exchange for cleaning stalls and exercising horses at the farm and she lived in a boarding house across the road from Hillview Farm. Evidence was presented that Natalie's aspiration was to compete in the 1984 Olympics as a rider; also important to her was the improvement of her riding techniques and the acquisition of sufficient knowledge and expertise about riding and training horses to enable her to teach other people.

Shortly before her death, Natalie told her father that she would become rich and famous and would buy a horse farm where Dr. Elson could retire. She said she was going to look for real estate in Illinois on a part-time basis; that is why she had secured an Illinois real estate license. Natalie also informed her father she would return to Illinois to visit.

Natalie's former boyfriend, Kyran Cahill, testified that she had informed him shortly before departing for Pennsylvania that she would put her possessions in storage and would return to Illinois probably within a year; she was going to give it a year in Pennsylvania. It was his impression that she went to Pennsylvania as a student, not to move there, and that she would have returned to Illinois within a year. Patricia Hollowed, another friend of Natalie, stated that she had no reason to believe that Natalie intended to make Pennsylvania her permanent residence.

In her deposition Margo Elson stated that Natalie had informed her she intended to stay in Pennsylvania for approximately one year and then intended to return to Illinois to be a professional riding instructor. Margo also stated that she had no doubt that Natalie intended to return to Illinois for a few weeks to pick up her belongings to take them to her new abode, which could be anywhere as long as it furthered her goal of riding in the Olympics.

Joan Elson, Natalie's stepmother, found an unmailed letter in Natalie's room at the boarding house which she had written to her sister, Margo, on November 13, 1981, the day before Natalie died. In it the decedent stated that she had "moved to Pennsylvania!" and that she had found a good home for her dog in Illinois.

When she departed for Pennsylvania, Natalie took her horse with her as well as a carload of personal belongings. Upon arriving in Pennsylvania, Natalie, who lived near the Pennsylvania-Delaware border, established bank accounts in Delaware. She also had a safety deposit box there which contained certificates of deposit, horse ownership papers, and the Illinois title to her car. According to her father, Natalie took all her personal property to Pennsylvania with the exception of items she left in storage in Illinois and a safety deposit box in Illinois which contained her jewelry. The items which Natalie stored in the warehouse included clothing, furniture and a saddle; the storage lease agreement listed her father's Deerfield, Illinois, residence as her mailing address and stated that she was employed at Hillview Farm in Pennsylvania. In addition, due to the fact that Natalie could not have a dog with her at Hillview Farm, she gave it to a friend in Illinois. It was also established that Natalie possessed an Illinois driver's license.

After Natalie's death, Dr. Elson was appointed administrator of her estate by a court in Pennsylvania which issued letters testamentary and he distributed all of the property which Natalie owned in Illinois. Dr. Elson was not certain whether his attorney in Pennsylvania had filed a wrongful death action there as a result of his daughter's death. The record also reflects that a wrongful death action was filed in Lake County, Illinois, on behalf of the doctor's ex-wife; Dr. Elson was granted leave to intervene in that suit as an heir of his deceased daughter.

Petitioner contends that the evidence failed to establish that Natalie Elson intended to abandon her lifelong residence in Illinois in favor of establishing residence in Pennsylvania. She asserts too that Dr. Elson, as objector to her petition for the issuance of letters testamentary, failed to satisfy his burden of proof that Natalie intended to abandon her Illinois residence permanently and establish Pennsylvania as her new, permanent residence.

• 1 The long-standing rule in Illinois is that although the terms "residence" and "domicile" have different shades of meaning, they are generally construed synonymously when used in statutes unless their meaning is limited by express definition or by the context of the act. (Hatcher v. Anders (1983), 117 Ill. App.3d 236, 239.) While section 5-1 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 110 1/2, par. 5-1) uses the word "residence" in setting forth the place for the probate of a will or the administration of an estate, the statute does not expressly limit the word's meaning by definition. Also, it is clear that the courts> of this State have employed the concept of domicile in probate matters. (See, e.g., Schultz v. Chicago City Bank & Trust Co. (1943), 384 Ill. 148, 156-58; In re Estate of Jackson (1977), 48 Ill. App.3d 1035, 1037-38.) Thus, it appears that the two terms are used synonymously under the Probate Act.

• 2-4 An Illinois circuit court in probate may exercise jurisdiction over the estate of a decedent either when the deceased was domiciled in Illinois or at the time of her death owned property in this State. (In re Estate of Jackson (1977), 48 Ill. App.3d 1035, 1037.) "Domicile" has been defined as the place where a person has her true, permanent home to which she intends to return whenever she is absent. (Keck v. Keck (1974), 56 Ill.2d 508, 514; Schultz v. Chicago City Bank & Trust Co. (1943), 384 Ill. 148, 156; In re Marriage of Hanlon (1983), 116 Ill. App.3d 157, 160.) Domicile is a continuing thing, and from the moment a person is born she must, at all times, have a domicile. (Stein v. County Board of School Trustees (1967), 85 Ill. App.2d 251, 257, aff'd (1968), 40 Ill.2d 477.) A person can have only one domicile; once a domicile is established, it continues until a new one is actually acquired. (In re Estate of Stahl (1973), 13 Ill. App.3d 680, 683; Oswego Community Consolidated School District No. 434 v. Goodrich (1960), 28 Ill. App.2d 407, 417; see Schultz v. Chicago City Bank & Trust Co. (1943), 384 Ill. 148, 156.) To effect a change of domicile there must be an actual abandonment of the first domicile, coupled with an intent not to return to it; also, physical presence must be established in another place with the intention of making the last-acquired residence her permanent home. Schultz v. Chicago City Bank & Trust Co. (1943), 384 Ill. 148, 156-57; Miller v. Brinton (1920), 294 Ill. 177, 186; Stein v. County Board of School Trustees ...

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