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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Dugan v. Atlanta Casualty Companies (06/03/2005) sp-5900

Dugan v. Atlanta Casualty Companies (06/03/2005) sp-5900

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


MICHAEL R. DUGAN,                )
                             		)    Supreme Court No. S-11133
               Appellant,          	)
                              		)    Superior Court No.
     v.  		                   )    3AN-01-33545 CI
ATLANTA CASUALTY              )
COMPANIES,                               )    O P I N I O N
               Appellee.     		 )    [No. 5900 - June 3, 2005]

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage,  Mark  Rindner,  Judge,  and  John
          Suddock, Judge.

          Appearances:  Jeffrey  J.  Barber  and  Steve
          Sims,  Law  Offices of Steve Sims, Anchorage,
          for  Appellant.  James B. Wright,  Jerald  L.
          Marcey and James B. Wright & Associates,  and
          Rebecca   Hozubin,  Wilkerson  &  Associates,
          Anchorage, for Appellee.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          CARPENETI, Justice.


          Michael  Dugan seeks coverage under his sons automobile

insurance  policy  with Atlanta Casualty Co.   We  are  asked  to

determine:  (1) whether the terms of that policy extend  coverage

to  all  blood  relatives  of the named  insured,  regardless  of

residency;  and (2) if not, whether the superior court  erred  in

finding that Dugan, for the purposes of the insurance policy, was

not a resident of his sons household.  Because we answer both  of

these  questions  in the negative, we affirm the superior  courts

judgment in favor of Atlanta Casualty Co.


          In  the  early  hours of September 8,  2001  Dugan  was

struck  as a pedestrian by an uninsured motorist in front of  his

son  Matts  apartment, resulting in severe  injuries.   He  later

attempted to collect as a covered person under the terms of Matts

automobile  insurance policy with Atlanta Casualty Co. (Atlanta),

which  provides uninsured motorist (UM) coverage of  $50,000  per

person / $100,000 per accident for bodily injury.  Atlanta  filed

a  complaint seeking a declaration that Dugan is not entitled  to

insurance  coverage.   Both  parties filed  motions  for  summary


          Superior  Court Judge Mark Rindner denied both motions.

Dugans motion argued that the policys terms extended coverage  to

literally  all blood relatives, without reference to  where  they

lived.   Judge  Rindner  rejected  this  reading,  requiring  the

claimant  to  reside  in the policyholders  household.   Atlantas

motion  asked the court to rule, as a matter of law,  that  Dugan

was  not  a resident of his sons household.  Judge Rindner  noted

that  examining residency is a fact-intensive question  and  that

facts  were in dispute regarding Dugans status.  Accordingly,  he

held  that he cannot rule as a matter of law whether Dugan was  a

resident of Matthews abode.

          That  question  was the sole focus of a  one-day  bench

trial,  over  which  Superior Court Judge John Suddock  presided.

Judge  Suddock found that Dugan was not a resident  of  his  sons

household  and  thus  held that he was not  covered  by  Atlantas

policy.  The court dismissed Dugans remaining counterclaims.  The

findings  of  fact, summarized below, were adopted  by  Dugan  on

appeal  without  qualification.  Atlanta  does  not  dispute  the

accuracy of the findings.

          Michael  Dugan,  fifty years old at  the  time  of  the

accident, has resided in Alaska for most of his life and  at  all

relevant  times maintained an Alaska drivers license  and  Alaska

residency.  Unable to find work in his trade in early 2001, Dugan

traveled to  California.  He brought with him clothes and camping

gear, and stored the bulk of his possessions with his son Michael

in  Anchorage.   In  the  months that followed,  Dugan  lived  in

various  motels and worked at three successive refinery  jobs  in

three  different southern California locations.  By July or early

August  2001, he quit his job and drove to Montana  to  meet  his

girlfriend,  who  lived in Anchorage, and to attend  her  parents

fiftieth anniversary celebration.  Dugan sold his car in Montana,

ending  his need for automobile insurance, and drove to Anchorage

with his girlfriend, arriving around August 26.

          The  superior  court  found  that  Dugans  purpose   in

returning  to Alaska was to visit his children and grandchildren;

to  look  for  work so that he could remain; and to  explore  the

possibility of marriage with his girlfriend.  He apparently had a

standing  offer  of employment back in California,  to  which  he

would  return if unable to find work in Alaska.  The court  found

that  [h]is  duration  of  stay was  undetermined;  he  at  least

intended  to  remain here until he received two checks  from  his

employ  in  California; those checks arrived around  October  19,


          Without   an  apartment  of  his  own,  Dugans   living

arrangement  involved  three  individuals.   The  first  was  his

girlfriend.   He stayed at her Peters Creek home the first  night

back  in  Anchorage, but not again because she worked  the  night

shift  as  a nurse at the Alaska Native Service Hospital  and  he

would  have been isolated at her home, without a car.  On  nights

when  she  was not working, the two went camping.  Dugan received

his  PFD check at his girlfriends address.  The second individual

was  his  son Michael, the Anchorage homeowner.  While Dugan  did

not  stay with this son, he used the house for long-term  storage

and  for  a  primary  mailing address, as it  provided  a  stable

homeowner address.

          The  third  individual was his son Matt, who  shared  a

rented  two-bedroom  duplex apartment in Anchorage  with  a  male

roommate.  On nights when he was not camping with his girlfriend,

Dugan  slept  on the floor in Matts living room, in his  sleeping

bag.   Dugan  did  not have a key and did not  pay  any  rent  or

utilities.   He  had no assigned sleeping space.  His  girlfriend

normally  picked him up after her shift ended, at 6  a.m.;  after

spending the day with her, he would return to Matts apartment  in

the  evening  hours.  Judge Suddock described Dugans presence  as

low  impact, noting that he got along well with his son  and  the

roommate, often left before his sons roommate awoke, and did  not

leave his possessions lying around.

          The   superior  court  characterized  Dugans  stay   as


          His   likely  tenure  at  the  apartment  was
          indeterminate.    There   was   no   explicit
          understanding as to his exact  plans;  he  in
          fact   had  no  exact  plans.   He  was  most
          analogous  to a young traveler,  crashing  at
          the  home  of  more stably situated  friends,
          with  the nuance that the friend was his son.
          He  would  likely stay until his son  or  the
          roommate threw him out (although there was no
          evidence of the slightest discord); or he got
          tired  of sleeping on the floor; or he got  a
          job at a site providing housing; or he got  a
          local  job and could afford his own room;  or
          he   became   discouraged  and  returned   to
          California.   Depending  on  the  caprice  of
          circumstance,  he could have  stayed  another
          week, or a substantially longer time.
Matt  testified that his father was staying at his place off  and

on,  but that he was not otherwise sure what the father was doing

or how long he intended to stay.  Similarly, the roommate did not

convey  a  sense  that the father had become a  resident  of  the

apartment.   Matts  landlord did not know  of  or  permit  Dugans

presence.  According to the superior court, if Dugan was in  town

for  two weeks before the accident, [he] spent about eight nights

at   his   sons   apartment,  and  about  five  nights   camping.

Based on these findings, the superior court ruled that Dugan  was

not a resident of his sons household under the policy.  Judgment,

as  well  as  attorneys  fees totaling $11,819,  was  awarded  to

Atlanta.  Dugan appeals.


          We   review  questions  of  law  and  a  trial   courts

application of law to fact de novo and adopt the rule of law that

is  most  persuasive in light of precedent, reason, and  policy.1

The  interpretation of contract language is a question of law  we

review  de  novo.2   We  look to four factors  when  interpreting

contracts: (1) the language of the disputed policy provision; (2)

the  language  of  other provisions in the policy;  (3)  relevant

extrinsic  evidence;  and  (4)  case  law  interpreting   similar



     A.   Dugans   Interpretation  of  the  Policy  Language   Is


          The  printed  form  of Atlantas policy,  held  by  Matt

Dugan, includes Part C, Uninsured/Underinsured Motorist Coverage,

which obligates Atlanta to pay those damages a covered person  is

legally  entitled  to but otherwise unable to  recover  from  the

owner  or operator of an uninsured or underinsured motor vehicle.

Under Part C, a covered person includes, among others, you or any

family  member.  The term family member is a defined term in  the

opening section of the policy, which reads:

          Family member means a person related to you by:
          1. blood,
          2. marriage; or
          3. adoption, including a ward or foster child
              who is a resident of your household.
          Dugan  argued below, as he does here, that the phrasing

and  punctuation of this provision are ambiguous, leading to  two

possible interpretations.  The first, urged by Atlanta,  is  that

the  residual  clause  (who  is  a resident  of  your  household)

modifies  the entire list, thus imposing a residency  requirement

on  all  three  types of family members.  The second,  argued  by

Dugan,  suggests  that  the residual clause   modifies  only  the

immediately preceding language (ward and foster child)  and  that

          those related by blood or marriage need not share a residence to

be  covered.  He argues that because ambiguous insurance policies

are  construed  against the insurance company  and  in  favor  of

coverage,  he  should  be covered by the policy  irrespective  of

residency.   The  superior  court rejected  these  arguments  and

agreed  with  Atlanta  that  the  residual  clause  unambiguously

modified  the  entire list, requiring residency  for  all  family

members:  to  read  otherwise is not consistent  with  the  other

policy  provisions,  far-fetched, and  would  lead  to  an  over-

extension  of the policys intended coverage.  We agree  with  the

superior courts analysis.

          We  interpret ambiguous insurance policies in favor  of

the  purported insured.4  However, the mere fact that two parties

to    an    insurance   contract   have   differing    subjective

interpretations  of  that contract does not  make  it  ambiguous.

Rather,  ambiguity  exists only when the  contract,  taken  as  a

whole,  is reasonably subject to differing interpretations.5   We

determine  the  existence  of  an ambiguity  by  determining  the

reasonable expectations of the contracting parties.6  We  discern

reasonable  expectations  from  the  language  of  the   disputed

provisions,  other  provisions, and relevant extrinsic  evidence,

with guidance from case law interpreting similar provisions.7

          Dugan finds ambiguity in the grammar and layout of  the

provision.   Specifically, he points  out  the  puzzling  use  of

punctuation  within the list  a comma after blood,  a  semi-colon

after marriage, a comma after adoption, then nothing after foster

child.   He  also emphasizes the fact that the final  clause  has

been indented, appearing to be aligned with the third item of the

list.   Dugan  contends  that  such  drafting  implies  that  the

residency language applies only to wards and foster children  and

thus the meaning of the provision is, at least, ambiguous.

          We  agree  that  the drafting is sloppy  and  careless.

Throughout  the  policy,  Atlanta  inconsistently  formats  lists

e.g.,  sometimes  indenting residual language while  other  times

          placing it flush with the left margin.  We can easily imagine

scenarios in which such erratic punctuation and pagination make a

provision  ambiguous, resulting in a finding  of  coverage  where

perhaps  none  was intended.  This provision, however,  does  not

present  such a case.  The language simply cannot support  Dugans

position.   It  is  well  settled that  in  situations  in  which

reasonable interpretation favors the insurer, and any other would

be strained and tenuous, no compulsion exists to torture or twist

the language of the contract.8  This is such a situation.

          In  viewing the policy, it is clear that the  residency

language  is not the mere continuation of the adoption  language,

despite  the  lack  of punctuation, because it  has  been  placed

squarely  on  the line below.  If it were solely  qualifying  the

adoption  language, that portion of the residency language  which

could  have fit on the same line as the adoption language  before

reaching the right margin would have occupied that space.9

          More   importantly,  Dugans  reading  leads  to  absurd

results.    First,  it  would  create  coverage  for  all   blood

relatives,  including  unknown  or  long-lost  relatives   living

thousands  of  miles  away.  We have seen no  evidence  that  any

insurance company has ever offered such vast coverage.10  Second,

it would require residency for wards and foster children, but not

for blood relatives.  Such an arbitrary distinction cannot be the

intent  of  the  provision.11  Dugans reading  also  leads  to  a

potential  redundancy:  Because shared residency is  an  inherent

aspect  of  the  foster parent-child relationship,  it  would  be

particularly unnecessary to include language requiring  residency

in  those  relationships.  In contrast to all of  these  unlikely

situations, Atlantas reading produces results that seem  well  in

line with normal industry practice.12

          An Illinois appellate court came to the same conclusion

in  Yarbert v. Industrial Fire and Casualty Insurance  Co.13   In

that  case, a mother making a claim on her sons insurance  policy

argued  that use of the word relative in the UM/UIM section   was

          not restricted by an earlier sections definition of the word that

required  residency, thus allowing her to claim that  the  policy

covered  all  of  his  relatives, wherever  found.14   The  court

rejected  her  contention,  finding  this  construction  patently

unreasonable and leading to absurd consequences.15

          Because  we  find  that  Dugans interpretation  of  the

policy is not a reasonable one, we reject his contention that the

provision is ambiguous.16  Accordingly, we agree with Atlanta that

the  policy  unambiguously requires  a  family  member  to  be  a

resident  in the policyholders household to be covered under  its


     B.   The  Superior Court Did Not Err in Finding  that  Dugan
          Was Not a Resident of His Sons Household.
          Dugan  next contends that the superior court  erred  by

adopting  and  applying  an improper legal  test  in  determining

whether  Dugan  was  a resident of his sons household  under  the

insurance  policy.   Dugan does not appeal  the  superior  courts

findings of fact.  The question presented is therefore one solely

of law.18

          After a one-day bench trial on residency, Judge Suddock

issued  an  order  with findings of fact,  a  discussion  of  the

relevant  law,  and a conclusion that Dugan was not  a  resident.

The  superior court noted that we have declined to adopt a  fixed

legal  test for determining whether a person is a resident of  an

insureds  household.  Instead, the superior court determined  the

named  insureds  reasonable expectations as to  whether  coverage

extends  to  a  relative,  in  light  of  the  factual  situation

presented,  the  policy language as construed by the  Court,  and

relevant precedent.  After reviewing cases from Alaska and  other

jurisdictions,  it  concluded that a  reasonable  person  in  the

position  of the son would not have expected that his  automobile

insurance  policy provided coverage for his visiting father,  who

was  living out of a back pack and sleeping on the floor, who had

not arranged for a stay of any particular duration, and who might

depart at any day.  Accordingly, it awarded judgment to Atlanta.

          Dugan  alleges that, in doing so, the court  improperly

adopted a test that required permanency or a set intended  length

of  duration  in  order to find a person to be a  resident  of  a

household, and that it gave undue weight to such factors  as  the

visitor  having  a  separate  bedroom,  a  lease  agreement,  and

sophisticated  communication between the  father  and  son  about

their plans.

          We recently considered who qualifies as a resident of a

household under an insurance policy.  In Simmons v. Insurance Co.

of  North America19 we explicitly declined to formulate  a  fixed

rule,  and instead required that  the facts of each case must  be

examined  to determine whether the named insured . .  .  and  his

relatives  have ceased to be residents of the same household.  20

Thus,  we remanded the factual issues of when residency ended  to

the trial court for appropriate findings.21

          We  have also construed these terms in two other cases.

In  Lumbermens Mutual Casualty Co. v. Continental Casualty Co.,22

we  held that a wife killed in an automobile accident had been  a

resident  of the same household as her husband, even  though  the

husband and wife had been separated for over two months, the wife

had  filed  suit  for divorce, and the husband had  obtained  the

insurance  policy  after his wife had filed suit  for  divorce.23

During the separation, the wife remained in the family home  with

the couples children, while the husband stayed with relatives  or

at  a hotel, regularly visited his wife and children at the home,

paid all house, utility and grocery expenses for the family,  and

ultimately wished to reconcile with his wife.24  We rejected  the

insurers request to limit resident of the same household to those

who  are  literally under the same roof, but rather examined  the

facts  of  the particular case and determined that,  despite  the

husbands temporary absence, the couple remained residents of  the

same household at the time of the accident.25

          We  came  to  a  similar  conclusion  in  Wainscott  v.

Ossenkop.26  In Wainscott, the father had moved out of the family

          home into an apartment, continued to pay bills and insurance

premiums, and believed that reconciliation was still conceivable.27

The  wife, on the other hand, stayed in the family home with  the

daughter, filed for divorce and intended her separation . . .  to

be  permanent.28  The issue in the case was whether the daughter,

who  had  died  in  an automobile accident, could  qualify  as  a

resident  of  her fathers household.29  We found that  while  the

inter-spousal relationship may have been permanently severed, the

separation  in  the  parent-child  relationship   which  was  the

essential relationship in the case  may have been only temporary.30

We  noted that a child of divorced parents may, depending on  the

facts, be regarded as being in the household of both.31

          Without  overruling Lumbermens, we adopted  a  rule  of

construction that the policy must be construed so as  to  provide

that coverage which a layman would reasonably have expected given

his lay interpretation of the policys terms. 32  We then deemed it

reasonable for a father to expect that his insurance covered  his

minor children  who continued to live in a household for which he

was  the  sole  source  of support   during  the  interim  period

between  the  initial separation and establishment of  the  final

provisions  for  care  and custody.33  Accordingly,  we  affirmed

summary judgment to the father.34

          In  the  present  case,  the superior  court  correctly

applied this reasonable expectations test.  It did not purport to

alter  or  modify  this  test in any way.  After  making  factual

findings  and  examining  how  other jurisdictions  have  handled

similar  cases, the court concluded that a reasonable  person  in

Dugans  sons position would not have expected coverage for Dugan,

who  was living out of a back pack and sleeping on the floor, who

had  not arranged for a stay of any particular duration, and  who

might depart any day.  Because the court correctly identified and

applied the proper legal test in making its analysis, it did  not


          We  also  note that the courts conclusion that the  son

          did not have reasonable expectations that his father was a

resident  of his household comports with the ordinary  dictionary

definition   of   resident.   Websters  Third  New  International

Dictionary  gives  two definitions that are  relevant,  and  both

stress  permanency: dwelling or having an abode for  a  continued

length  of time; one who dwells in a place for a period  of  some

duration.35  Similarly, under reside this dictionary  provides  a

synonym   note  distinguishing  residing  from  staying:   reside

signifies  a fixed, settled, or legal abode and stay  connotes  a

temporary habitation or visits with friends and relatives.36

          These dictionary definitions may be somewhat rigid  and

unhelpful as applied to certain unusual situations, such as where

a  couple  is breaking up and the husband moves into a hotel  but

still claims coverage for his children.37  But the definitions do

seem  to  speak directly to whether Dugan crossed the  line  from

being   a   visitor/guest  to  being  a  resident.   With   these

definitions in mind, the superior courts findings of fact in this

matter  lead naturally to the conclusion that Dugan was merely  a

visitor or guest.

          We   also  reject  Dugans  arguments  that  the   court

considered  improper  factors and that it gave  undue  weight  to

other   factors.   The  superior  courts  conclusion  was   amply

supported  by  its  factual findings that Dugan  had  no  key  or

assigned   space  within  the  apartment,  that  his  mail   went

elsewhere,  that his stay was far from exclusive or lengthy,  and

that  his  stay  had  no intended duration.  No  one  factor  was

treated  as dispositive; rather, the court came to its conclusion

because there was little to nothing in the record to suggest that

Michael  Dugan, Matt Dugan, or anyone else considered Michael  to

be  a  resident of the household.  By not appealing the  superior

courts  factual  findings, Dugan accepts  those  findings,  which

include,  among other things, findings that Dugan was a transient

merely  crashing at his sons for about eight nights in a two-week

period.   Consideration  of  these  facts  is  proper  under  the

          reasonable expectations test.

          Accordingly,  we uphold the superior courts  conclusion

that  Dugan  was not a resident of his sons household  under  the

insurance policy.38


          Because  the  policy did not extend coverage  to  blood

relatives  of  the  policy holder who were not residents  of  his

household, and because the courts finding that Michael Dugan  was

not a resident of his sons household was not erroneous, we AFFIRM

the superior courts judgment.

     1    Rausch v. Devine, 80 P.3d 733, 737 (Alaska 2003).

     2     Simmons v. Insurance Co. of N. America, 17 P.3d 56, 59
(Alaska 2001).

     3    Id.

     4    Id. at 62.

     5     U.S.  Fire Ins. Co. v. Colver, 600 P.2d 1,  3  (Alaska
1979) (quoting Modern Constr., Inc. v. Barce, Inc., 556 P.2d 528,
529 (Alaska 1976)) (emphasis added).

     6     Simmons, 17 P.3d at 62 (citing Zito v. Zito, 969  P.2d
1144, 1147 n.4 (Alaska 1998)).

     7     Id.  (quoting Williams v. Crawford, 982 P.2d 250,  253
(Alaska 1999)).

     8     Ness v. Natl Indem. Co. of Neb., 247 F. Supp. 944, 947
(D. Alaska 1965).

     9     After reviewing the policy, it is clear that at  least
the  first three words of the residency clause (who is  a)  would
have easily fit within the margins had it been placed on the same
line as the adoption language.

     10    In many UM/UIM cases, the meaning of the terms resident
and  household is debated, because in those cases residency is  a
precondition  for a relative to collect under the  policy.   See,
e.g.,  9  Couch on Ins.  123:11 (3d ed. 2004) (Household Coverage
and  Exclusions,  Generally   Who Are  Relatives  or  Members  of
Household). There appears to be no case law regarding any  UM/UIM
policy  that  did  not require residency in the primary  insureds
household for coverage of a relative.

     11      Even  Dugan  concedes  that  [t]he  reason  for  the
distinction may not be clear and that a person who knew something
about insurance might think [this distinction] unusual.

     12    It is also worth noting that there is no evidence that
the  policy  holder,  Matt Dugan, read the policy  to  cover  his
father.   When questioned on the issue, Matt responded,  I  never
read  my policies.  I dont know what they cover.  Matt Dugan last
renewed  his automobile insurance policy on or around  April  30,
2001, at a time when his father was still living in California.

     13    372 N.E.2d 886 (Ill. App. 1978).

     14    Id. at 887.

     15    Id.

     16     In doing so, we also reject a fortiori his contention
that  the provision unambiguously extends coverage to all  family

     17    Dugan also argues that residency should not be required
because   the   terms  resident  and  household  themselves   are
ambiguous.   To negate residency, however, Dugan must prove  that
the phrasing or sentence structure is ambiguous  such that it  is
unclear  whether or not the qualification applies  not  that  the
terms of residency themselves are ambiguous.  The requirements of
the  terms  resident and household are addressed  infra  in  Part

     18    Rausch v. Devine, 80 P.3d 733, 737 (Alaska 2003).

     19    17 P.3d 56 (Alaska 2001).

     20    Id. at 64 (quoting Wainscott v. Ossenkop, 633 P.2d 237,
240  (Alaska 1981)).  This case, of course, involves whether  the
relative had commenced, not ceased, residency.

     21    Id.

     22    387 P.2d 104 (Alaska 1963).

     23    Id. at 106-07.

     24    Id. at 106.

     25    Id. at 106-07.

     26    633 P.2d 237 (Alaska 1981).

     27    Id. at 239.

     28    Id.

     29    Id.

     30    Id. at 240-41.

     31    Id. at 241.

     32     Id. at 243-45 (quoting Contl Ins. Co. v. Bussel,  498
P.2d 706, 710 (Alaska 1972)).

     33    Id. at 244.

     34    Id. at 245.

     35    Websters Third New International Dictionary, Unabridged
1931 (1961).

     36    Id.

     37    See, e.g., Wainscott, 633 P.2d at 239.

     38    Dugans briefing concludes by noting that [w]hen . .  .
Dugan  had an intent to get a job in Alaska and resided with  his
son,  his  Alaska  residency  was  established  from  that  point
forward.   Coverage  is  in  order.   However,  Dugan  fails   to
appreciate  the distinction between legal domicile and  residency
in a household for the purposes of an insurance contract.  As the
Wisconsin Supreme Court noted, [e]very person has a domicile  but
not  every  person  is  a  member of a  household.   Pamperin  v.
Milwaukee  Mut.  Ins. Co., 197 N.W.2d 783, 788  (Wis.  1972).   A
transient  visitor does not become the resident  of  a  household
merely  because  he  has no other abode.   Id.  at  787.   Dugans
residency  within the State of Alaska, or his legal domicile,  is
analytically and legally distinct from his residency  within  his
sons household.  Thus, the fact that Dugan was an Alaska resident
has  no  bearing  on  whether  he was  a  resident  of  his  sons