Before Farrell, Glickman, and Washington, Associate Judges.
The opinion of the court was delivered by: Farrell, Associate Judge
Appeals from the Superior Court of the District of Columbia
(Hon. Wendell P. Gardner, Jr., Hon. Cheryl M. Long, Trial Judges)
These consolidated appeals arise from the administration and distribution of the estate of Elise Derricotte, who died intestate. Appellants Gilbert and Preston Phillips ("appellants" or "the Phillips brothers") are Ms. Derricotte's first cousins once removed. They challenge the finding of the trial court, after a bench trial, that Ms. Derricotte was domiciled in the District of Columbia rather than Maryland at the time of her death. They further contest the evidentiary basis (actually only a portion of it) for the trial court's finding that Ida Brown Bryant was the first cousin of Ms. Derricotte and thus the rightful heir to her estate under District of Columbia law; and they contend in any event that Ms. Bryant's heirship claim was barred by the statute of limitations. Finally, they challenge other rulings by the trial court including its decision to terminate their appointment as the personal representatives of the estate. Attorney Mabel D. Haden, who filed suit on behalf of certain creditors during the administration of the estate, contests the refusal of the trial court to award her attorneys' fees out of the "common fund" she claims to have obtained on behalf of the estate. We reject all of these contentions and affirm the judgment and orders of the Superior Court.
Elise Derricotte died on December 8, 1992, at the age of 94, leaving no will. Within two months the Phillips brothers, who were the sons of her first cousin, petitioned for probate in the Superior Court of the District of Columbia asking to be made the personal representatives of Ms. Derricotte's estate and claiming to be her only surviving heirs. The petition was granted, and letters of administration were granted to the Phillips brothers, who then filed Waivers of Filing Inventory and Accounts and distributed $526,534 of the estate's personal property to themselves. In August of 1993, three of Ms. Derricotte's creditors moved to set aside the distribution of the estate, claiming entitlement to payment for services they had previously rendered to the decedent. They also sought removal of the Phillips brothers as personal representatives, asserting that the brothers were not the rightful heirs because Ms. Derricotte had a first cousin, Ida Bryant, who was still alive. The court dismissed the creditors' suit insofar as it sought removal and a finding of true heirship, concluding that they lacked standing to bring these claims. A copy of their complaint, however, had been sent to Ida Brown Bryant, who thereby learned of the probate matter for the first time.
The Phillips brothers' probate petition did not mention Ms. Bryant as a possible heir even though (as evidence later proved) they had grown up believing her to be their aunt and Ms. Derricotte's first cousin. Ida Brown Bryant is a mentally incompetent elderly woman who is a ward of the state of Maryland residing at Crownsville Hospital Center - a fact known to appellant Gilbert Phillips since it was he who admitted her to the hospital. After learning of the probate proceeding from the creditors' complaint, Ms. Bryant's guardian at the Maryland Department of Aging filed an amended answer and cross-claim seeking removal of the Phillips brothers as personal representatives and a declaration that Ida Brown Bryant was the rightful heir to the Derricotte estate. The Phillips brothers moved to dismiss on the ground that the cross-claim was barred by the statute of limitations. The Superior Court directed their removal as personal representatives and appointed a replacement. The court then conducted successive bench trials on (a) whether Ms. Derricotte had been a District of Columbia domiciliary at the time of her death rather than (as the Phillips brothers maintained) a domiciliary of Maryland, *fn1 and (b) whether Ms. Bryant was Ms. Derricotte's first cousin. The trial court found that Ms. Derricotte had been domiciled in the District at the time of her death, and that Ms. Brown was the only surviving first cousin and thus the sole heir of the decedent.
Although their petition for probate asserted that Ms. Derricotte was a domiciliary of the District of Columbia, the Phillips brothers contend that they later determined this to be error and that the trial court likewise erred in finding that she was domiciled in the District at the time of her death. In part their argument is that the trial court wrongly shifted the burden of proof to them to prove domicile despite Ms. Derricotte's admitted residence in Maryland at the time of death, since "[t]he place where a [person] lives is properly taken to be [her] domicile until facts adduced establish the contrary." District of Columbia v. Murphy, 314 U.S. 441, 455 (1941) (quoted in Andrews v. District of Columbia, 443 A.2d 566, 569 (D.C. 1982)). We hold that the court properly assigned the burden of proof and that the record fairly supports its mixed legal-factual conclusion that Ms. Derricotte was domiciled in the District of Columbia. See D.C. Code § 17-305 (a)(1997); Pace v. District of Columbia, 77 U.S. App. D.C. 332, 336, 135 F.2d 249, 253 (1943) ("A domiciliary determination involves a compound consideration of fact and law.").
It is undisputed that Ms. Derricotte was a domiciliary of the District until 1988, having lived there for many years. Domicile, once established, is presumed to continue until it is shown to have been changed. Dixon v. Dixon, 190 A.2d 652, 654 (D.C. 1963). "The two requisites for establishing a change of domicile are `(1) physical presence, and (2) an intent to abandon the former domicile and remain [in the new one] for an indefinite period of time.'" District of Columbia v. Woods, 465 A.2d 385, 387 (D.C. 1983) (quoting Heater v. Heater, 155 A.2d 523, 524 (D.C. 1959)). The Phillips brothers contend that they met their burden under this standard by showing that Ms. Derricotte sold her house in the District in 1988 and took up residence in Maryland where she remained until her death in 1992. But physical presence, even for an extended length of time, does not defeat the presumption of continuing domicile unless an intent "to abandon a former domicile" in favor of a new one is also proven. Id. The burden of proving both elements - presence and intent to establish a new place of abode - is "on the party who claims that a change of domicile has taken place." Bartell v. Bartell, 344 A.2d 139, 143 (Md. 1975); see Andrews, 443 A.2d at 569.
The trial court found that, although Ms. Derricotte moved to Maryland and lived there continuously until her death, the evidence failed to establish her intent to relinquish the domicile she had long enjoyed in the District of Columbia. Because her house on Allison Street in the District was too big and had too many steps for her to climb at her age, she sold it and moved to the Charter House, a single story apartment building in Silver Spring, Maryland, not far outside the District. Before moving in she signed only a two year lease. Two long- time friends testified that she was never happy at the Charter House, repeatedly expressed her desire to return to the District, and frequently went house-hunting with them looking only at houses in the District. *fn2 In April 1989, only seven months after her move to Maryland, Ms. Derricotte bought a house in the District and arranged for one of her nieces to move in with her there to assist her. The arrangement fell through before Ms. Derricotte could move and she sold the house in August 1989, but she gave a portion of the proceeds to a close friend (and licensed real estate broker) to hold as a deposit on another house she expected to buy in the District. Thereafter, she continued to go on weekly outings to find a house, again only in the District of Columbia. Throughout her residence in Maryland she commuted to the District to do her banking and attend church.
On these facts the Phillips brothers describe Ms. Derricotte's state of mind as a mere "floating intention to return to the District at some future time," quoting Adams v. Adams, 136 A.2d 866, 867 (D.C. 1957) (citation omitted). The trial court could fairly conclude, however, that her years-long and continuing association with the District, her dissatisfaction with the Charter House, and especially her actions in purchasing a new residence in the District and taking steps to buy yet another one with the ...