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Taormina v. Taormina Corp.

Court of Chancery of Delaware, New Castle County

November 24, 1954

Rosa Maggio TAORMINA, Executrix under the Last Will and Testament of Calogero Taormina, Deceased, and Samuel Miles Fink, Ancillary Administrator of the Estate of Calogero Taormina, Deceased, Plaintiffs,
v.
TAORMINA CORPORATION, a corporation of the State of Delaware; Eustachio A. Taormina; Madeline Mule Taormina; Madeline Mule Taormina, guardian for Rosalle Jane Taormina; Frank Culicchia; Mary Taormina; Mary Taormina, Usufructuary for Rose, Anthony F., Mary Ella and Josephine Taormina; Anthony F. Taormina; Charles A. Messina, individually and as copartners trading under the firm name of Taormina Company, Defendants. Rosalie Maria Agnes Taormina Compagno, Intervener.

Probate proceeding. The Court of Chancery, Seitz, Chancellor, held that, where last American domicile of naturalized American citizen, who died in Italy, was in Mississippi, citizen's assets would be distributed under his will in accordance with Mississippi law regardless of whether he was domiciled in Italy at time of death since, under Italian law, distribution is according to law of decedent's nationality.

Order in accordance with opinion.

Where last American domicile of naturalized American citizen, who died in Italy, was in Mississippi, citizen's assets would be distributed under his will in accordance with Mississippi law regardless of whether he was domiciled in Italy at time of death since, under Italian law, distribution is according to law of decedent's nationality. Civil Code Italy, art. 23.

Page 401

[35 Del.Ch. 18] James L. Latchum (of Berl, Potter & Anderson), Wilmington, and Samuel Miles Fink, New York City, for plaintiffs.

Josiah Marvel, Jr. (of Logan, Marvel, Boggs & Theisen), Wilmington, and W. W. Young (of Terriberry, Young, Rault & Carroll), New Orleans, La., for intervener.

SEITZ, Chancellor.

While this case is now before the Court for the entry of a decree of distribution of the personal assets of the estate of Calogero Taormina (called ‘ Taormina’ or ‘ decedent’ ) located in Delaware, the question to be determined is the law governing such distribution.

The parties are in agreement that the following statement of legal principles found in a previous opinion of the preceding Chancellor in Taormina v. Taormina Corp., Del.Ch., 78 A.2d 473, 477, accurately [35 Del.Ch. 19] reflects the Delaware law governing the ascertainment of domicile:

‘ The question of domicile is one of law based on fact. The acquirement of a new domicile and the abandonment of an old depends upon the acquisition of a dwelling place with the intention to make that place home. There must be an actual abandonment of the former domicile and the acquisition of a new dwelling place with the intention to make that home in order to acquire a new domicile. The mere absence from one's place of residence for a long period of time on business, pleasure, reasons of health, or other special purposes will not result in the abandonment of a former domicile and the acquisition of a new one of choice. There must be some proof of other facts from which the necessary intent can be implied.’

See also New York Trust Co. v. Riley, 24 Del.Ch. 354, 16 A.2d 772.

In order to apply the quoted law, it is necessary to narrate in some detail the course of Taormina's career for many years-a career filled with examples of the vicissitudes of life.

Taormina was born in Partanno, Italy on November 4, 1901. He immigrated to New Orleans, Louisiana in 1920 and in 1924 married Maria Uddo. The intervener, Rosalie Compagno, was born of this marriage on November 4, 1924. Taormina's first wife died in 1925. The decedent continued to reside in New Orleans. But after the death of his wife, his daughter Rosalie, went to live with her maternal aunts and never thereafter lived with Taormina.

On May 9, 1929, Taormina became a naturalized citizen of the United States in a proceeding in Louisiana. In 1932, the decedent visited Italy and while there took unto himself another wife, Rosa Maggio. He returned to the United States in September 1932. In late 1932 he and the new Mrs. Taormina went to live in Donna, Texas where he worked for the Uddo-Taormina Corporation. He and his wife furnished a rented home in Donna and it was there that their first child was born on April 29, 1933. Taormina suffered a heart attack on July 27, 1933 and shortly thereafter the decedent [35 Del.Ch. 20] and his family visited New Orleans to have an opportunity for medical treatment. During the first part of this period, they were guests of their relatives and did not pay any rent. Thereafter, Taormina and his wife rented a cottage in New Orleans for a short period. This was done to avoid further inconvenience to the family with whom they were staying. While in New Orleans their home in Donna, Texas was destroyed by a cyclone. Taormina's brother salvaged a few pieces of their furniture and shipped them to the decedent in New Orleans. Taormina did not work during this period in New Orleans.

Upon the advice of Taormina's New Orleans physician that the climate and the condition of the Gulf Coast were imperative for his well-being, the decedent and ...


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