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cards sent to both parties were produced in evidence as exhibits. The question now is whether the trial court was justified in a finding that they were not the same kind of cards for both parties. The order is for 500

"of your post cards, about 34 by 54 inches, in black on white cardboard, with something different on the back, and with what you think best to advertise the florist business."

only against the weight, but against the totality, of the evidence.

The judgment of the district court is therefore reversed, and the case remanded for a new trial.

(88 N. J. Law, 561)
LOCKWOOD v. MAYOR AND COMMON
COUNCIL OF TOWN OF BOON-
TON et al.

1916.)

INTOXICATING LIQUORS 59(2), 104—TRANS-
FERRING LICENSE-"NEW PLACE."

Now an examination of the cards sent to (Supreme Court of New Jersey. March 29, Passaic and the card of Hundertmark shows that the upper border design on both is identical. It consists of a telephone instrument at each end, the Eastern and Western hemi- Boonton for 11 years was situated within 194 A building used as a saloon in the town of spheres in the middle, and the two telephones feet of the curtilage of the public school. The connected by a looped line, the word "post" saloon keeper's license having expired, he closed on the left side and "card" on the right, and the business and quit the premises, and the place a silhouette presentation of what is prob- remained idle for 3 years, during which time no application for license was made to the town ably intended for New York City running council at the regular annual licensing period. through the design. This is absolutely iden- The council upon the application of another satical. The pictures on the back are different, loon keeper, then operating in another place, and were intended to be different each month. adopted a resolution and passed an ordinance transferring his license to the vacant premises The letterpress on the back was intended to as an old place. Held, that such transfer was be different each month. No doubt the script void since, under such abandonment and standlegend on the front was intended to be dif- ing idle, such place lost its character as an ferent each month, but the most cursory in- old place and fell into the category of a new place within 3 Comp. St. 1910, p. 2908, § 84, spection demonstrates that the cards are on prohibiting the granting of a license to sell liqprecisely similar paper; there is no substan-uor in any new place within 200 feet of the curtial variance in size. They are all printed in

black.

tilage of a church, schoolhouse, or armory.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 59, 109; Dec. Dig. 59(2), 104.

For other definitions, see Words and Phrases, Second Series, New Place.]

Original proceedings in certiorari by Warren J. Lockwood to remove a resolution of the Mayor and Common Council of the Town of Boonton, transferring the liquor saloon license of William D. Lewis. Resolution va

cated.

Argued November term, 1915, before PARKER, KALISCH, and MINTURN, JJ.

We cannot see how the trial court could possibly have found that the cards supplied to the Passaic party were not of such a character that their sending constituted a violation of the agreement "not to send these cards to any one else in above line of business," except upon the theory that there would be no violation of the agreement unless the cards so supplied were absolutely identical with those furnished to the defendant in design, language, and make-up. There can be no possible question about the close similarity of the two sets of cards; and there can be no question about the absolute identity of the designs that have just been described, of the paper or cardboard on which they were printed, and the substantial identity of the cards in size. It is quite plain, in MINTURN, J. The town of Boonton, by our view, that the meaning of the agreement its common council, passed a resolution and was that the plaintiff should not supply an ordinance, purporting to transfer a liqcards substantially similar in type and makeup to any one else within the prohibited territory; and the most cursory inspection makes it perfectly evident that the similarity is so close as almost to amount to identity.

[2] While the well-recognized rule is that the finding of a district court on a material question of fact will not be reversed if there is any evidence to support it, the rule is not applicable to cases where there is no evidence to support such a finding, and in our opinion this is such a case. As was said by this court in the case of Goodman v. Lehigh Valley Railroad Co., 75 N. J. Law, 277, 68 Atl. 63, the finding in this case is one, not

Frank H. Pierce, of Boonton, for prosecutor. Claude Garrison, of Boonton, for Mayor and Council. King & Vogt, of Morristown, for defendant Lewis.

uor saloon license of William D. Lewis, from his place on Brook street to premises at the corner of Liberty and Main streets.

It is insisted inter alia by the prosecutor that these proceedings should be set aside in the first place because the premises to which the transfer was made is not a new place within the meaning of the statute gov. erning the sale of liquors, and because the place in question is within 200 feet of public school grounds, and so militates against the same statute.

The facts are that the building in question is 193.9 feet from the curtilage of the Boonton public school; that for 11 years

anterior to June 10, 1912, it was duly 11censed for the sale of liquor, and after that period remained unoccupied for 3 years, until the transfer under review was made; that on June 3, 1912, the then owner, Swanton, was refused a license upon the ground that he was guilty of violating the excise law; and that on June 10th, he quit the place and his license having expired the business ceased to exist; that on August 12, 1912, he conveyed the premises to the Paterson Brewing & Malting Company; and that not until October 6, 1913, was an application made for a license; that the application was then laid over from time to time until February 2, 1914, when it was returned to John Conn, the applicant.

p. 2908, § 84, P. L. 1889, p. 83, amended P. L. 1906, p. 203.

This act was construed by this court in Eckersley v. Abbott, 79 N. J. Law, 157, 74 Atl. 313, where Mr. Justice Bergen says that it was not the legislative intent to prevent the renewal or continuance of a license, “unless there is a real and substantial abandonment of the business."

In all the cases following this adjudication, where the granting of the license was affirmed by this court, the ratio decidendi was that the owner, by a persistent and continuous course of conduct in and about the premises, had maintained his claim to have the premises considered and treated by the licensing body as an existing inn, tavern, or house of public entertainment.

In Parnes v. Board of Excise, 82 N. J. Law, 285, 82 Atl. 313, the place was out of busi

And such substantially was the situation in Londa v. Kling, 83 N. J. Law, 405, 85 Atl. 220, and in Presbyterian Church v. Miller, 85 N. J. Law, 463, 89 Atl. 999.

In May, 1914, one Porter made a similar application which was never acted upon. On November 16, 1914, the defendant Lewis, who then had a place on Brook street, ap-ness only one year, and at the first available plied for a transfer of his license from that opportunity application was made for a liplace to the place in question, but no action cense. was then taken upon the application. The regular licensing period was in May of 1915, but no application was made at that time, but on July 22, 1915, at an adjourned meeting, Lewis presented an application for a transfer of license from Brook street to the place in question, and the resolution in question was then passed granting the transfer. Evidently doubting the legality of the transfer by resolution, on August 10, 1915, the mayor called a special meeting to be held that evening, without designating the object of the call. Six of the eight members of the council attended, and the ordinance was introduced. The next evening at another special meeting similarly called, five of the eight members being present, the ordinance in question was adopted.

On August 9th, the court of common pleas of Morris county appointed a board of excise commissioners for the town, and on the next day the board organized. For the purposes of this case, we deem it necessary only to say that the place in question by reason of the revocation of its license on June 3, 1912, and its abandonment shortly thereafter by its then owner, together with the fact that it remained closed for over three years from that period, while the council at each annual licensing period met without receiving an application for a license, the place lost its character as an old place, and in contemplation of the statute is thereby relegated to the category of a new place, and must be dealt with as such.

The statute dealing with the subject is as follows:

In this case it is manifest from the record that the reason for the abandonment of the premises by Swanton was that the character of the house had become notoriously unenviable, and quite obviously therefore it was difficult to obtain an occupant or an applicant satisfactory to the council, who would stand sponsor for the place. In such a posture the method of transfer of license adopted here from an existing inoffensive licensed place, to the place in question, apparently presented the only available modus operandi, which the council at a special meeting could adopt, to rehabilitate it as an old place, and thus exclude it from the statutory prohibition.

The premises in view of the circumstances remain, however, in the category of a new place, and are subject to the statutory requirements of such a status; and the proceedings adopted by the council were therefore ineffectual to restore the premises to its lost status, as an old place.

Since it is conceded in the briefs that the premises are within the statutory prohibited distance from the curtilage of the public school, it follows that the resolution providing for the transfer of the license must be vacated, with costs.

(86 N. J. Eq. 80) GIVERNAUD et al. v. VARIEL et al. (No. 32/592.)

1916.)

(Syllabus by the Court.)
4(2)-CHANGE-INTENT.

"No license shall be granted to sell spirituous, (Court of Chancery of New Jersey. Feb. 5, vinous, malt or brewed liquors by less measure than one quart * in any new place within two hundred feet of the curtilage of a church edifice, schoolhouse, or armory, measured between the nearest point of the same and nearest point of the building wherein such liquors, or any of them, are intended to be sold." 3 ̊C. S.

DOMICILE

The testator's domicile of origin was France. He became a naturalized citizen of the United States in 1873, his domicile of choice be

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ing West Hoboken, N. J. He left a wife and two | office in Green street, New York City. The children in France, who are the complainants bill was filed by the first wife of the tesin this cause. In 1871 he obtained a divorce in this state and remarried; one son being the offspring of this second marriage. In 1896, having amassed a fortune of $300,000, he decided to take apartments in New York, as he was constantly attending different places of amusement in that city, almost every night in the week, and he did not feel strong enough to come back to West Hoboken at night. He made New York bis headquarters, but was away traveling in different parts of the world a very great part of his time. He on many occasions emphasized the fact that he was still domiciled in New Jersey. He died in Los Angeles, Cal., in 1908, where he had bought a house in his son's name. Held, that he never abandoned his domicile of choice, namely, West Hoboken. [Ed. Note. For other cases, see Domicile, Cent. Dig. 88 9, 22; Dec. Dig. 4(2).]

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LEWIS, V. C. The only question which the court considers it necessary to decide in this case is whether Barthelemy Louis Givernaud had his domicile in the state of New Jersey at the time of his death, which occurred on January 2, 1908, at Los Angeles, Cal.

For a clear understanding I will set forth at this time the facts bearing on the case: The testator, Barthelemy Louis Givernaud, was born in Lyon, France, on April 21, 1835. On April 5, 1860, he married, in France, Josephine Haour; both of them being French citizens. Two children were born of that marriage, viz., the complainants Joseph Givernaud and Noemi Josephine Marie Genin, née Givernaud, both born at Lyon, Joseph being born June 5, 1861, and Noemi on August 30, 1862. By judgments rendered February 7, 1866, and August 1, 1866, in the Civil Tribunal of Lyon, Madame Josephine Givernaud obtained a separation from her husband, dissolving the community existing between them as to their property, and giving ner leave to live separate and apart from him, and the custody of their children, on the ground of "abuse and injuries" and "abandonment." He came to the United States of America in 1866, established himself in West Hoboken, obtained in 1871 a divorce in this court upon service by publication on the ground of "desertion," and thereafter contracted another marriage with Palmyre Elizabeth Lida Corriveau on the 30th day of May, 1872, and as the fruit of this second marriage a son, Charles L. Givernaud, was born to them. All three children are alive at the present time. In the course of time the testator became a very prosperous man, having factories at West Hoboken,

tator and her two children born of their marriage, but she, the first wife, died during the taking of testimony, but by stipulation the testimony stands. In the year 1873 the testator became a citizen of the United States, and from the time of his second marriage until 1896 he lived with his wife at Spring and High streets, in West Hoboken. The second wife is also deceased. The testator died on January 2, 1908, at Los Angeles, Cal., having, on or about the 4th day of November, 1907, executed a last will and testament in writing, which was admitted to probate by the surrogate of the county of Hudson on the 14th day of January, 1908.

The trust scheme contained in articles 9, 10, and 11 of the will is claimed by the complainants to be void under the New York law against perpetuities, found in Laws 1897, c. 417, § 2.

It is admitted that, if the testator was domiciled in New Jersey at the time of his death, the said trust is a legal one, and the only doubt of its legality would arise in case the court found that he was not dom

iciled in New Jersey at the time of his death. My own opinion is that, if the testator were domiciled in New York at the time of his death, the New York courts would have to pass on the legality of this trust scheme, and not the courts of New Jersey. However, as I have concluded that the testator was domiciled in New Jersey when he died, I find it unnecessary to decide as to whether this court would have jurisdiction to decide on the legality of the trust if he had been domiciled in New York or elsewhere than in New Jersey at the time of his death.

The testimony shows that for many years the testator devoted himself to building up his business, and after he had become successful he devoted himself more and more to theaters, concerts and other amusements. He loved to travel and visit distant countries. He became acquainted with a dentist named Torillhon, and Dr. Torillhon became his companion, the testator being willing to pay the expenses of the companionship, and they used to go together to theaters and other entertainments in New York about five times a week, coming back to West Hoboken each night. That continued until the year 1896, when the testator decided to take apartments in New York. In the winter of 1895-96, when caught in a snowstorm while returning from New York to West Hoboken, the testator said to Dr. Torillhon:

"I cannot stand these rough nights any more. I like my theater, so I think that next winter I will take a room in a hotel or somewhere in New York, so that I can enjoy my theater."

And the next fall he asked Dr. Bertini and Dr. Torillhon to rent an apartment for him in New York, which they did. His wife con. tinued to live in West Hoboken until 1898,

New York, but not to live with her husband, the testator. They were uncongenial, and the testator never lived with Madame Givernaud after she left Hoboken in 1898, although he used to take meals with her occasionally. His brother lived in Homestead, N. J., and a room was set apart for him there which was called "Mr. Louis' room." He had changes of clothing there and the use of a bedroom, but the defendants do not claim that he was domiciled anywhere else than in West Hoboken. Their claim is that he never changed his domicile from West Hoboken.

There is no doubt whatever that the testator firmly believed that he was domiciled in New Jersey. He certainly supposed there could be no possible question about that. In the fall of 1896 he asked Dr. Bertini and Dr. Torillhon to look up an apartmnet for him in New York, and they rented one under Dr. Bertini's name, though the testator paid the rent. Dr. Torillhon testifies that at that time he asked him if he was going to leave his house to become a citizen of New York, and that he replied: "Never; my home is in West Hoboken, and I stay there." In 1898, when he was still living in New York, Mme. Givernaud sold the house in West Hoboken, and Dr. Torillhon testifies:

"I said to him, 'What are you going to do now; shall you make New York your residence?' and he said, 'No; I never intend to live in New York.' He said he had an aversion to becoming a resident of New York City, positively; he told me that positively 20 times."

Again, in the fall of 1898, Louis Givernaud made an affidavit in which he swore that he was a resident of West Hoboken, to avoid the payment of taxes in New York. There was no evidence offered to show that he paid taxes in New Jersey or elsewhere after 1898.

At the time of drawing the will in question the testator, when asked by his attorney, Abel I. Smith, if he were still a resident of West Hoboken, stated that his domicile was there, and he would be buried there. Mr. Smith testified:

"I asked him whether he had changed his residence, and said it was proper for me to know that, as the laws in different states varied in regard to bequests to charitable institutions. Mr. Givernaud said to me: 'No, I have not changed my residence; my domicile is here, and word 'domicile,' because when he used the word I have not changed it.' I am positive about the 'domicile' he said it in French, and used the word 'domicile,' and said to me, 'Is "domicile" right?" and I said, 'Yes; it is the same in English as in French "domicile."

At all times when the question was broached the testator insisted strenuously that his domicile was New Jersey, and he went there to have his will drawn up in accordance with the laws of the state of New Jersey. The witness Joseph Braubach, however, testified that he overheard him saying to two gentlemen in New York, in his apartment, that he was glad he was through with West Hoboken. That might mean, "I am glad I don't have to go back there nights," and, in view of all his other statements, I must conclude that that is what he did mean; he certainly was not through with West Hoboken, as his factories remained there. He lived in many different apartments in New York, and he was away from New York much more than he was in New York. At the time of his death, shortly after he made the will in suit, he had no property in New Jersey, but kept his fortune, consisting of personal property, amounting to about $300,000, in a safe deposit vault in New York. In 1898 he made an extended trip to the West with Dr. Torillhon, and then returned to New York, staying there two weeks, and then took several short trips before going to Europe. In 1899 they went to California, to Hot Springs, to Glenwood Spa, and then came back to New York, The summer was spent at Atlantic City. Early in 1900 Mr. Givernaud again went to California. A few weeks after his return from California he went to Europe, accompanied by his son Charles and the wife of Charles, returning in the fall to New York. They then went to Atlantic City, and came back to stay in New York, making short trips. These returns were all to his son's apartments, with the exception of the return from California, when he went to the Von Hoffman Flats. In 1901 the testator, his son Charles and wife, and Dr. Torillhon returned from Los Angeles and Honolulu to the New York apartment in Sixty-Eighth street. He spent the summer of 1901 at Atlantic City, Now as to the law on the subject of domiand returned in the fall, making short trips cile: Every man, woman and child has a from New York as a base in the fall of 1902. domicile of origin. He may, however, choose The winter of 1902-03 was spent by Mr. another domicile for himself, but if he abanGivernaud in California, returning to New dons his domicile of choice without adopting York in the spring. And so it went on. He another domicile in the manner prescribed by was constantly on the go. Sometimes he law, then his domicile of origin becomes his would spend a night in Homestead. Between domicile. So that in this case, if the testa1896 and 1907 he moved to five different tor, when he left West Hoboken in 1896, had

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As a matter of fact, the meaning in French of the word "domicile" is not necessarily always the same as in English, but the word in that language may denote a domicile in name which is used for legal purposes only, while the actual domicile is maintained in an entirely different place. Again, before he left for California in 1907, he had a conversation with Dr. Torillhon's sister, which Dr. Torillhon reports as follows:

"He had bought a house, I believe, in California. He had bought it in his son's name, like he always did, and she said to him, 'Now you are a resident of California;' and he said, 'Not a bit; I am a resident of West Hoboken.""

and did not take up such a residence in New York or elsewhere (animo manendi), then his domicile would revert to his place of birth, namely, Lyon, France.

"Domicile can only be changed animo et facto, and residence alone, although decisive as to the factum is an equivocal act as to the animus." "Domicile imports an abiding and .a permanent home and not a mere temporary one.'

"The acquisition of a new domicile involves the abandonment of the previous domicile, and to effect the change the animus of abandonment must be shown."

Jopp v. Wood, 4 De G., J. & S. 616, 4 N. R. 422, 34 L J. Ch. 212.

"A change of domicile must be a residence sine animo revertendi. A temporary residence or business does not change the domicile; also: (1) Every presumption is to be made in favor of the original domicile; (2) no change can occur without an actual residence in a new place; and (3) no new domicile can be obtained without a clear intention of abandoning the old."

"A mere change of residence, however long continued, does not effect a change of domicile in a testamentary sense, unless there is also an intention to change the domicile or throw off his native country, as, for example, if an Englishman goes to France, he must not only reside in France, but intend to become a Frenchman instead of an Englishman, before his domicile will be held changed."

See Mews English Case Law Digest, vol. 8, p. 234 et seq., tit. "Domicile."

"The onus of proving a change of domicile is on the party alleging it." Monroe v. Douglas, 5 Madd. 379.

"No length of residence without the intention of remaining will constitute domicile."

See Stout v. Leonard, 37 N. J. Law (8 Vr.) 492; Cadwalader v. Howell, 18 N. J. Law (3 Harr.) 138; Valentine v. Valentine, 61 N. J. Eq. (16 Dick.) 400, 48 Atl. 593; Crawford v. Wilson, 4 Barb. (N. Y.) 504, at page 518; Matter of Thompson, 1 Wend. (N. Y.) 45; Frost v. Brisbin, 19 Wend. (N. Y.) 13, 32 Am. Dec. 423; Haggart v. Morgan, 5 N. Y. 422, at page 427, 55 Am. Dec. 350; Matter of White, 116 App. Div. 183, 101 N. Y. Supp. 551; Matter of Newcomb, 192 N. Y. 238, 84 N. E. 950; Flatauer v. Loser, 156 App. Div. 591, 141 N. Y. Supp. 951 (N. Y. App. Div. First Department, May 16, 1913); also the recent English case of Huntley v. Gaskell, 1906 App. Cas., 56; Watkinson v. Watkinson, 68 N. J. Eq. 632, 60 Atl. 931, 69 L. R. A. 397, 6 Ann. Cas.

326.

Ac

A careful study of the evidence entirely satisfies me that the testator was domiciled in New Jersey at the time of his death. tions do speak louder than words, and the courts place greater reliance on them, but I see nothing in Mr. Givernaud's actions to contradict his statements regarding his domicile. For convenience sake he made New York his headquarters after the year 1896, when he was in this section of the country, but I cannot see that he ever made it his home in any sense of the word. True, he spent very little time in New Jersey after 1896, except to attend to his business here, but I am entirely satisfied that he never had any intention of abandoning his domicile in New Jersey, and never for an instant

formed any intention of remaining indefinitely in any other state or country. Having reached this conclusion, the case is disposed of, and there is nothing further necessary to be said in the matter, and no reason exists for the court to pass upon the other questions which have been raised.

(86 N. J. Eq. 107)

SMITH v. SCHOPPER et al. (No. 35/481.) (Court of Chancery of New Jersey. Feb. 14, 1916.)

1. GIFTS 47(3) — GIFTS INTER VIVOS-VALIDITY-BURDEN OF PROOF.

Where complainant, who was of advanced age and whose hearing and vision were impaired, assigned a large portion of his property to defendant, who occupied towards him a confidential relation, being his trustee, business adviser, and closest intimate, and complainant at that time had no independent advice, defendant has the burden of showing that the transaction free and voluntary. was understood by complainant and that it was

[Ed. Note.-For other cases, see Gifts, Cent. Dig. §§ 85, 86; Dec. Dig. 47(3).]

2. GIFTS 49(2)-GIFTS INTER VIVOS-VALIDITY EVIDENCE.

In a suit to set aside a gift inter vivos, evidence held insufficient to show that complainant understood the nature of the transaction or that it was voluntary.

[Ed. Note.-For other cases, see Gifts, Cent. Dig. § 98; Dec. Dig. 49(2).]

3. GIFTS 42-GIFTS INTER VIVOS-VALIDITY.

Where defendant, who was complainant's trustee and adviser, coerced him into assigntion of the property given to defendant's wife ing a large portion of his property, that porand children pursuant to complainant's alleged desire may be recovered; such parties standing in no better position than defendant, to whom the assignment was made.

[Ed. Note.-For other cases, see Gifts, Cent. Dig. §§ 16, 21, 75-78; Dec. Dig. 42.] 4. WILLS-AGREEMENT TO MAKE

Complainant agreed to make a will in defendant's favor if he would act as his business adviser and personal intimate. Defendant faithfully discharged those duties, but, desiring security, coerced complainant into assigning to him a portion of his property before death, and the defendant having discharged his obligations after the assignment, and the assignment not appearing oppressive, quære: should not the complainant be required to do equity by compensating the defendant Theodor for for services rendered before a redelivery is ordered?

Bill by Alexander M. Smith against Theodor H. Schopper and others. Decree for complainant.

Hudspeth, Rysdyk & Garrison, of Jersey City, for complainant. J. T. Congleton and F. E. Bradner, both of Newark, for defend

ants.

GRIFFIN, V. C. The bill in this cause is filed to obtain a decree setting aside an assignment operating as a gift inter vivos, on the ground that it was obtained by undue influence. The assignment was made by the complainant to the defendant Theodor H

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