effected. It provided for the settlement of the debts of the bankrupts by the payment to the creditors of 10 per cent. in cash and 15 per cent. in two notes, one to become due in 6 months, and the other to become due in 12 months. The composition was confirmed by the United States District Court for the Southern District of New York, and the cash and the notes were delivered by the trustee in bankruptcy to the creditors, including the creditor American Exchange National Bank, the principal defendant in this action. The plaintiff offered evidence to show that, when the defendant American Exchange National Bank was asked to sign the composition agreement, it refused. Thereupon it was agreed between the bankrupts and the defendant bank that, if the bank would sign the composition agreement, the bankrupts would give to the bank an additional note for 25 per cent. of its claim, and would secure all the notes by a conveyance of the equity of the bankrupts in the premises No. 74 Greenwich street. The bank then signed the composition agreement. Thereafter, and after the other creditors had signed the composition, the bankrupts delivered to the bank an additional note for 25 per cent. of its claim, and secured all the notes by a conveyance to the defendant Rush, who was acting for and on behalf of the bank, of the equity possessed by them in the Greenwich street premises. I think that there is sufficient evidence in the case to support the plaintiff's theory thereof. It is not disputed that the bank actually received 25 per cent. more in notes than did the other creditors; that it actually accepted, as collateral security for the payment of this note, a conveyance of the property; and that the deed was not recorded until about a month after it was delivered. There is proof that these arrangements were made prior to the signing of the composition agreement by the bank. The bank concedes that the bankrupts executed and delivered the deed of 74 Greenwich street to the defendant Rush for its benefit, and that notes for the additional 25 per cent. were also received, for its benefit, and for the benefit of the Market & Fulton National Bank. The bank, however, declared that as a consideration for these transactions it surrendered to the bankrupts notes aggregating over $9,500. [1] It is needless to assert that a composition agreement, in order to be effectual, must essentially provide that every creditor who signs and agrees to take the reduced payments offered does so on condition that every other creditor shall do likewise. [2] If one creditor receives more than another creditor, or if he receives security which another creditor does not receive, then the composition agreement fails of its purposes. It becomes fraudulent, and whatever is unfairly acquired in excess of the other creditors may be recovered back by the injured creditors. Hanover National Bank v. Blake, 142 N. Y. 404, 37 N. E. 519, 27 L. R. A. 33, 40 Am. St. Rep. 607. In that case the court said: "The general principle has been long settled in England and here that a secret agreement, which induces a creditor to agree to a composition by the promise of a preference, or of some undue advantage, over the other creditors, is utterly repugnant to the composition agreement, and, from its fraudulent nature, is avoided by the law. The very essence of a composition agreement is that all creditors come in upon terms of equality; and that equality would be destroyed, if the secret agreement were given effect." In that case the composition agreement was upheld, but it was conclusively established that, where one creditor secretly received more that the other creditors or received security for the same, what he received was void, and could be set aside, and recovered. The bank's claim that its delivery of the notes of $9,500 constituted a new and valuable consideration for its preference lacks substance, and is wholly insufficient. Union National Bank v. Warner, 12 Hun, 306. It appeared that these notes were overdue, and no effort had been made to collect them from the maker. There are, besides, two significant features adduced in the evidence which are damaging to the defendant's case: (a) The bank in proving its claim in bankruptcy included the liability of the bankrupts as indorsers of these notes in its claim; and (b) the deed of trust in evidence shows that the real estate was held both as security for the composition notes and for the additional note of 25 per cent. which the bank received. It is undoubted that the bankrupts at the time of the transfer were insolvent. The property has been sold under foreclosure proceedings. [3] The plaintiff, therefore, is entitled to a judgment for the value of the property at the time it was conveyed to the defendant Rush, plus its rental value during the time it was held in trust for the bank. Fox v. Erbe, 100 App. Div. 343, 91 N. Y. Supp. 832, affirmed 184 N. Y. 542, 76 N. E. 1095; Salt Springs National Bank v. Fancher, 92 Hun, 330, 36 N. Y. Supp. 742. The case of Fullerton v. Viall, 42 How. Prac. 294, is authority for the proposition that creditors are entitled to the value of the property in the hands of the fraudulent grantee at the time of the conveyance, irrespective of whether or not the grantee gained a profit or sustained a loss by his transaction. There was testimony offered that the equity in the premises was worth at the time of the transfer the sum of $9,000. I am not satisfied that it was worth this amount. The defendant claims that the equity had no value whatsoever. Before findings are submitted, I will hear counsel in regard to the submission of additional testimony as to the value of the equity. Judgment for plaintiff. UNITED STATES TRUST CO. v. HART et al. (Supreme Court, Appellate Division, First Department. May 3, 1912.) 1. DOMICILE (§ 1*)-DEFINITION. One's domicile is the place where he has his true, fixed, permanent home and principal establishment, to which whenever he is absent he has an intention of returning. [Ed. Note.-For other cases, see Domicile, Cent. Dig. § 1; Dec. Dig. § 1.* For other definitions, see Words and Phrases, vol. 3, pp. 2168-2179; vol. 8, pp. 7641-7642.] 2. DOMICILE (§ 6*)—What LAW GOVERNS. For the purpose of succeeding to property rights, a person must have a domicile; but he can have but one. [Ed. Note. For other cases, see Domicile, Cent. Dig. § 4; Dec. Dig. § 6.*] 3. DOMICILE (§ 8*)—ACQUISITION-PRESUMPTIONS-BURDEN OF PROOF. The domicile of origin is presumed to continue until a new one is acquired, and the burden of proof rests on the party alleging a change of domicile. [Ed. Note.-For other cases, see Domicile, Cent. Dig. §§ 36, 37; Dec. Dig. § 8.*] 4. DOMICILE (§ 4*)—"CHANGE OF DOMICILE"-ACTS CONSTITUTING. To effect a change of domicile for the purpose of succession, there must be a change of residence and an intention to abandon the former domicile, and acquire another as the sole domicile. Length of residence alone does not effect a change, nor does intention alone do it. [Ed. Note.-For other cases, see Domicile, Cent. Dig. §§ 5-23; Dec. Dig. § 4.* For other definitions, see Words and Phrases, vol. 2, pp. 1051-1059; vol. 8, p. 7599.] 5. DOMICILE (§ 6*)—ACQUISITION-CHANGE OF DOMICILE EVIDENCE. A person born in Virginia in 1836 removed with his parents to New York City in 1859, where he resided and actively engaged in business until 1870. From then until 1880 he took frequent trips abroad. From 1880 until his death he spent most of his time in Paris, where he had a residence, returning to the United States from time to time. While living in Paris he became a member of the American Colony, and purchased a burial lot in the American Cemetery, in which he was buried. He voted in New York in 1875, 1876, and 1877. He kept substantially all of his property, except a house and furniture, in New York. He did not renounce his citizenship nor take any steps to become a citizen of France. In several wills made from 1887 to 1898, and a codicil executed in 1905, he described himself as domiciled in New York. In a deed executed in 1894 he described himself as a citizen of New York, temporarily residing in Paris. In 1907, in testifying under a commission issued out of the Supreme Court of New York, he stated that his residence was in New York. In 1904 he declared, for the purpose of getting his baggage through the port of New York, that he was a resident of France. Held, that he died domiciled in New York. [Ed. Note. For other cases, see Domicile, Cent. Dig. § 4; Dec. Dig. § 6.*] Appeal from Trial Term, New York County. Action by the United States Trust Company, as executor of Benjamin Hart, deceased, against Benjamin Hart and others, for the construction of the will of deceased. From a judgment construing the •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 135 N.Y.S.-6 will, Isabelle Lucchesi Guillemin and Grace Seeley Hiller, as executrix of Estelle Kitty Wright, deceased, separately appeal. Affirmed. Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and MILLER, JJ. etc. Donald Harper, of New York City, for appellant Guillemin. Franklin Bien, of New York City, for appellant Hiller, as executrix, George L. Shearer, of New York City, for respondent United States Trust Co. Frederic R. Coudert, of New York City, for respondents Hart & Nathan. MCLAUGHLIN, J. This action was brought to settle certain claims made concerning the administration and distribution of the estate of Benjamin Hart, deceased. The judgment appealed from determined, among other things, that the will and codicils of the testator should be construed and effect given to them in accordance with the laws of the state of New York. Two separate appeals were taken from the judgment-one by the defendant Guillemin and the other by the defendant Hiller, as executrix of Estelle Kitty Wright, deceased. On the argument several interesting questions were discussed by the respective counsel, but the conclusion at which I have arrived renders it unnecessary to consider but one, viz., whether the testator at the time of his death was domiciled in the state of New York. If he were, then the judgment is right and should be affirmed; otherwise, it should be reversed and a new trial ordered. The determination of a person's domicile is many times difficult. This follows because it depends upon intention to be ascertained from facts which necessarily are so different in each case that precedents are of little assistance. [1] It has been defined as the place where one has "his true, fixed, permanent home and principal establishment, to which whenever he is absent he has an intention of returning." Story, Conflict of Laws (8th Ed.) p. 41. [2, 3] It is the well-settled law, at least in this state, that for the purpose of succeeding to property rights a person (a) must have a domicile somewhere; (b) that he can have but one; (c) that the domicile of origin is presumed to continue until a new one is acquired (Dupuy v. Wurtz, 53 N. Y. 556); and (d) that the burden of proof rests upon the party alleging a change of domicile (Matter of Newcomb, 192 N. Y. 238, 84 N. E. 950). [4] In view of the importance, as well as the difficulty, of determining with any degree of accuracy where a person was domiciled at a given time, certain fundamental rules have been established which, when the facts are ascertained, are to be applied. Thus in Dupuy v. Wurtz, supra: "To effect a change of domicile for the purpose of succession there must be not only a change of residence, but an intention to abandon the former domicile and acquire another as the sole domicile. There must be both residence in the alleged adopted domicile and intention to adopt such place of residence as the sole domicile. Residence alone has no effect per se, though it Length may be most important as a ground from which to infer intention. of residence alone will not effect the change. Intention alone will not do it, but the two taken together do constitute a change of domicile." And in the Matter of Newcomb, supra: "The existing domicile, whether of origin or selection, continues until a new one is acquired, and the burden of proof rests upon the party who alleges a change. The question is one of fact rather than law, and it frequently depends upon a variety of circumstances which differ as widely as the peculiarities of individuals. Less evidence is required to establish a change of domicile from one state to another than from one nation to another. In order to acquire a new domicile, there must be a union of residence and intention. Residence without intention, or intention without residence, is of no avail. Mere change of residence, although continued for a long time, does not effect a change of domicile while a change of residence even for a short time, with the intention in good faith to change the domicile, has that effect." The English rule is even stronger than our own. Lord Cranworth in Moorhouse v. Lord, 10 H. L. C. 272, said: "In order to acquire a new domicile, tenus in illo exuere patriam. * a man must intend quaIt is not enough that you merely mean to take another house in some other place, and that on account of your health or for some other reason you think it tolerably certain that you had better remain there all the days of your life. That does not signify. You do not lose your domicile of origin or your presumed domicile merely because you go to some other place that suits your health better, unless, indeed, you mean either on account of your health or for some other motive to cease to te a Scotchman and become an Englishman or a Frenchman or a German. In that case, if you give up everything you left behind you and establish yourself elsewhere, you may change your domicile." This rule was reiterated in Huntley v. Gaskell (1906 Appeal Cas. 56), where Lord Halsbury, after referring with approval to the opinion of Lord Cransworth in Moorhouse v. Lord, supra, said that one, in order to change his domicile, "must have a fixed intention or determination to strip himself of his nationality, or, in other words, to renounce his birthright in the place of his original domicile." [5] Applying the foregoing rules to the undisputed facts in the case before us, I am unable to see how one can seriously question that the testator's domicile at the time of his death was in New York. He was born about 1836 in Virginia and there remained until 1859, when, with his father and mother, he removed to 118 Madison avenue, New York City, where he lived until the death of his father and mother: the former occurring in 1862 and the latter in 1878. Shortly after the death of his mother, he took up his residence at the Manhattan Club in the city of New York, remaining a member thereof until the time of his death. After taking up his residence in New York, he was actively engaged in business until about 1869 or 1870, and from then on until about 1880 took frequent trips abroad. From 1880 (he having in the meantime retired from business) until his death he spent most of his time in Paris, where he had a residence, returning to America from time to time. The last trip he made was in 1904. In 1881 he married the defendant Wright in London, but in the early part of 1883 he returned to New York, where, in May of that year he procured a judgment of divorce from her. Some time prior to 1892 he took into his household in Paris the defendant Guillemin, then |