Opinion
Opinion delivered January 21, 1929.
1. EXECUTORS AND ADMINISTRATORS. — Where deceased had established his residence in Desha County, having lived there with his wife for four years, although before his death he had separated from her and was working in Louisiana, his residence for purpose of administering on his estate will be held to be in that county, in the absence of proof that he had established a residence in Louisiana. 2. EXECUTORS AND ADMINISTRATORS — RESIDENCE — BURDEN OF PROOF. — Where deceased is shown to have established his residence in a certain county, the burden of proof is on one who seeks to have letters of administration granted in such county set aside to show that deceased was not a resident of such county when he died.
Appeal from Desha Circuit Court; T. G. Parham, Judge; affirmed.
J. R. Parker, for appellant.
A. A. Poff, Claude M. Cruce and W. R. Donham, for appellee.
STATEMENT BY THE COURT.
This action was brought by appellant, appointed administrator of the estate of W. E. Johnson, deceased, by the probate court of Chicot County, to have the letters of administration issued by the probate court of Desha County on Johnson's estate canceled, it being alleged that the deceased, Johnson, was a resident of Chicot County at the time of his death.
It appears from the testimony that the deceased, Johnson, was killed in Rochelle, La., and working out of Alexandria at the time. He lived at McGehee, Ark., about three years before he was killed. There was testimony tending to show that he had lived in Chicot County before his marriage to the daughter of Mr. Honeycutt, a farmer residing in that county, and that he had, after his marriage, taken his wife to McGehee, where they lived and kept house for four years, and where decedent was a member of the lodge of locomotive firemen and kept his membership until the time of his death. He came to see his wife and children at the home of her parents when they were visiting there, and, during such times when he was not employed on the railroad, worked on the farm of his father-in-law. He and his wife had been separated some time before his death, and he had established no home after leaving McGehee, where they kept house together for four years.
The court instructed the jury, over appellant's objection, that the question for its determination was the legal residence at and just before the time of his death, the burden of proof being upon the party attempting to show that he was not a resident of Desha County and to prove that fact by a preponderance of evidence, and refused to tell the jury that, if they found he had lived or established a home in Chicot County, the burden of proof would be upon the defendant to show by a preponderance of the evidence that he had abandoned his home there, and from the judgment on the verdict against him appellant brings this appeal.
The undisputed testimony shows that the deceased, after his marriage, had established his home at McGehee, in Desha County, where he and his wife lived and kept house for four years, and where his work as fireman on the railroad required his residence, and where his membership in the order of locomotive firemen was kept until his death. He went down into Louisiana later, following his occupation of a railroad fireman, but never lived with his wife, who had abandoned him, nor established a home there.
The fact that deceased, after leaving McGehee, was down in Louisiana following his occupation of a railroad fireman, would not change his domicile or residence, under the circumstances of this case, from McGehee, in Desha County, where it had been established, it not being shown that he had established a home or residence in Louisiana except as indicated. Crone v. Cooper, 43 Ark. 552; State Life Insurance Co. v. Ford, 101 Ark. 521, 142 S.W. 863; Wheat v. Smith, 50 Ark. 266, 7 S.W. 161.
The testimony shows conclusively that deceased had established his home and residence with his wife at McGehee, in Desha County, where he worked and remained for four years after his marriage, necessarily showing an abandonment of any home or residence he might have had theretofore in Chicot County, and, such being the case, with letters of administration issued on his estate in that county, where the residence was shown to have been established, the burden of proof was correctly declared by the court to be upon the appellant, who attacked the legality of the issuance of letters of administration to appellee on the ground that his intestate was not a resident of Desha County, where the letters were issued.
The verdict of the jury is amply supported by the testimony, and the judgment is affirmed.