bar and in full satisfaction of all dower and thirds, and all rights and interests at common law or otherwise, to which she might be entitled out or in respect of any estate or estates which he might die seised or possessed of or entitled to in Scotland or elsewhere. And he left, bequeathed, gave, granted, assigned, and disponed to Colonel Douglas all the residue of his goods, gear, debts, and sums of money, and in general the whole of the residue of his moveable means, estate, and effects whatsoever, that might pertain to, be vested in, or owing to him at the time of his decease:-But always with and under the burden of his just debts, deathbed and funeral charges, and legacies and gifts thereinbefore by him given. And he thereby gave, granted, assigned, and disponed to and in favour of Colonel Douglas, his heirs, executors, and assigns, all and singular the lands and heritages, and in general the whole heritable and real estate and effects of what kind or denomination soever and wheresoever situated then belonging to him, or that should belong to him at the time of his decease. The testator died at Heathfield on the 16th February, 1869, and was buried in the grave which he had purchased at Camberwell Cemetery, Forest Hill. On the 19th March, 1869, the plaintiff, Colonel Douglas, and the defendant, Patrick Webster, his executors, duly proved the will in England, and on the 26th August procured the same [which had been executed in duplicate] to be registered in Scotland as a probative writ. Colonel Douglas then also took steps to perfect his title, according to Scotch law, under the trust disposition of the 19th September, 1867. The testator was, at his death, entitled not only to the heritable estates in Scotland, but also to the leasehold house at Putney, the furniture in his house at Upper Streatham, and to other personal property, consisting mainly of money in the English funds, and English stocks and shares, of the aggregate value of 39,2001. or thereabouts, including a large balance at his bankers in London. The testator's widow insisted that the testator's domicil of origin was Scotch, that he had never abandoned it, or ac quired an English domicil, and further, that the defendant William Charles Douglas claimed to be, and (as she believed) was, a lawful child of the testator by reason of the Scotch domicil of the testator. She further alleged that the will of the testator, dated the 21st December, 1868, was not executed with the formalities requisite for passing heritable estate in Scotland, and that such estate had accordingly devolved on the defendant, William Charles Douglas; that notwithstanding the provision made for her by the will, she was entitled to insist on her legal rights in the testator's property, and to claim one-third part of his moveable estate wheresoever situate, and also her terce in his heritable estates in Scotland; that she was also advised that in case it should not be for the benefit of the defendant, William Charles Douglas, to collate or bring into hotchpot the heritable estate in Scotland, which had devolved upon him as the heir-at-law of the testator, the defendants, Robert John Douglas and Mary Ellen Douglas, would be entitled to insist on their exclusive right, by way of legitim, to one-third part of the testator's moveable estate wheresoever situate, in lieu of the provisions made for them by the will; and that if the defendant, William Charles Douglas, should so collate the heritable estate, such last mentioned estate and legitim would be divisible between him and his brother and sister in equal shares; that in order to enable her to make such her election and also to determine whether such collation as aforesaid would be for the benefit of the defendant, William Charles Douglas, and whether it would be for the benefit of any and which of the testator's children to reject the provisions of the will and to insist on their legitim, she was desirous, and it was expedient, that the value of all the testator's real, heritable, and moveable property wheresoever situate, should be ascertained in her suit, and she was also desirous that the trusts of the will might in other respects be carried into execution by the Court. The widow by the bill in her suit prayed as above stated. Colonel Douglas insisted that the testa tor had, in 1861, finally determined to adopt England as the place of his domicil, and relied upon his taking Somers Cottage in that year, on the terms hereinbefore stated, and on the other facts above set forth, as evidence of an intention on the part of the testator to abandon Scotland as his place of residence. Colonel Douglas further insisted that the testator being domiciled in England, and his will of the 21st of December, 1868, being in conformity with the forma lities requisite for passing real, personal, and heritable estates in England and Scotland, the words used by the testator in the residuary gift to him, constituted such gift a perfect and effectual gift and disposition of all the real, personal, and heritable estates of the testator in England and Scotland not therein before disposed of, and that he was therefore absolutely entitled to all the property comprised in the said residuary gift and disposition. He also alleged that he and his coexecutor and trustee had proceeded with the due administration of the testator's estate, and had in the course of their duty assented to the bequests, and transfered or paid over the legacies given to the widow, who had acquiesced in such transfers, and accepted the payments made to her in accordance with the testator's will before she filed the bill in her abovenamed suit. She insisted that she had so done, wholly without prejudice to her rights dehors the will. Colonel Douglas then charged that the testator being domiciled in England at the date of his will and the time of his death, his widow was not entitled to insist on any other right in the testator's personal property in England or Scotland, or his real or heritable property in Scotland, than was conferred upon her by the will of the 21st of December, 1868, or to claim as jus relicta or otherwise one-third or any part of his moveable estate, or her terce or other right in his heritable estate in Scotland, which, subject to the provisions of the will, was the absolute property of Colonel Douglas, and that therefore neither the defendant, William Charles Douglas, nor the defendant, John Robert Douglas, was entitled to collate or bring into hotchpot such heritable estate in Scotland, as the same did not devolve upon them, or either of them, but such heritable estate passed by the will absolutely to Colonel Douglas as aforesaid, and no case of election arose on the part of the widow. Colonel Douglas, in support of his right to the relief he sought in his suit, submitted, first, that the domicil of origin and birth of the testator was in England, which was moreover the domicil of his parents, Robert Douglas and Elizabeth Douglas, when he was born, and that even if Robert Douglas and Elizabeth Douglas afterwards abandoned their English and acquired a Scotch domicil, whereby, as an effect, the domicil of the testator followed that of his parents, such change of domicil was, as to the testator, compulsory, and he was at liberty either to adopt such changed domicil, if it was so changed, or to acquire one for himself, on attaining his majority; and, second, that the testator never adopted or acquired a domicil in Scotland, and that he did adopt and acquire for himself a domicil in England; or third, that by his subsequent residence in England, his acquisition of property there, and his marriage, birth of children, and death in England, his domicil of origin and birth revived, and he died domiciled in England. Colonel Douglas, by the bill in his suit, prayed as above stated. Sir Roundell Palmer, Mr. Anderson, and Mr. Montague Cookson, for the plaintiff in the first suit, namely, the testator's widow. Colonel Douglas, the residuary devisee and legatee, has filed his bill in the second suit, in order to have the question of domicil expressly decided, and upon that depends the widow's right to the election on which she insists, as against Colonel Douglas. She is therefore entitled to the aid of this Court to settle, for her, the ancillary questions which she raises by her bill, and it is correct both in substance and form. But the important question in the case is, that of the testator's domicil. We say it was Scotch throughout, from the day of his birth to that of his death. 1. The domicil of his parents was clearly 5. Nothing in the testator's residence in England, nor in his acts and conduct there, shew any intention on his part to abandon his Scotch domicil. 6. His various dealings with the Scotch property shew his intention to retain his Scotch domicil. On the question of domicil, they citedIn re Capdevielle, 2 Hurl. & C. 985; 8. c. 33 Law J. Rep. (N.S.) Exch. 306; Lord v. Colvin, 28 Law J. Rep. (N.s.) Chanc. 361; s. c. 4 Drew. 366; Moorhouse v. Lord, 10 H. L. Cas. 272; s. c. 32 Law J. Rep. (N.S.) Chanc. 295; Aikman v. Aikman, 3 Macq. H.L, Johnstone v. Beattie, 10 Cl. & F. 42; (N.S.) Chanc. 705; s. c. Law Rep. Brown v. Smith, 21 Law J. Rep. Bell v. Kennedy, Law Rep. 1 Scot. Udny v. Udny, Ibid. 441; Somerville v. Somerville. 5 Ves. jun. Arnott v. Groom, 9 Scot. Sessions Ca. (2nd series) 142; Sharpe v. Crispin, 38 Law J. Rep. NEW SERIES, 41.-CHANC. (N.S.) Prob. & M. 17; s. c. Law Attorney General v. Blucher de Wahl- Whicker v. Hume, 7 H. L. Cas. 124; Doe dem. Birtwhistle v. Vardill, 5 B, Potinger v. Weightman, 3 Mer. 67; Phillimore on Domicil, 37; White v. Finlay, 24 Scot. Sessions Cas. Howden v. Crighton, 1 Scot. Sessions Scott v. Bentley, 1 Kay & J. 281; Warrender v. Warrender, 2 Cl. & F. Crookenden v. Fuller, 1 Sw. & Tr. 441; s. c. 29 Law J. Rep. (N.S.) Prob. & M. 1; Vattel (by Chitty), 100. Mr. Greene and Mr. J. N. Higgins were for the eldest son of the testator. Mr. Joshua Williams and Mr. Thrupp, for the younger children of the testator, submitted the question of domicil, on their behalf, to the Court. Mr. Dickinson and Mr. H. M. Jackson, for Colonel Douglas : 1. The bill in the first suit is not correct, either in substance or in form. The widow is a specific legatee, and yet she seeks a general administration of the testator's estate, without alleging that it is in any danger. 2. She claims some relief, according to Scotch law, while the will makes a provision for her in lieu of all dower and M thirds. Then the question of election is not one in which she is properly interested. If it can be so considered, then she has elected, by filing the bill in her suit. But all that is really contemplated by her, is a question of collation and election between the infant defendants; that is a question with which she has nothing to do Dillon v. Parker, 1 Swanst. 381, n. Brodie v. Barry, 2 Ves. & B. 127, is no authority for this case. Butricke v. Broadhurst, 1 Ves. jun. 171. 3. The question whether the English Will passes the Scotch realty need not perhaps be discussed. Upon it, however, the following are authorities: M'Laren on Wills, vol. 1, 179; Leslie v. M'Leod, Law Rep. 2 H. L. Howden v. Crighton (ubi supra). 4. Then as to the testator's domicil. The question of domicil is almost always one that depends as much, if not more, on the facts of the case, than the interpretation of the law with respect to those facts. Here the domicil of the testator was at his birth, his marriage, and his death, undoubtedly English. His domicil of origin was English because his parents' domicil when he went to reside at Cannes, vacated his English status, but not his domicil. [WICKENS, V.C.-Though by the law an Englishman cannot get rid of his allegiance to his sovereign, he may, concurrently with his domicil, have a divided duty to discharge to the country of his adoption.] Udny v. Udny (ubi supra) introduced no new law. It only corrected the old. Haldane v. Eckford, Law Rep. 8 Eq. 631; one. That was a case in which a Jersey domicil was pronounced for. That case is similar in its nature to this So in Atchison v. Dixon (ubi supra). The mere fact that the testator here was the owner of a Scotch estate does not affect the question of his domicil. That estate came to him, devolved on him, completely, on his mother's death. But the mere devolution of property to a man cannot affect his domicil. That must always be determined by his "intentions as to it; and those must be proved from the facts of each particular case. Here, inter alia, the testator having the two banking accounts, found it convenient to put an end to the Scotch one, and to keep up, as he did, the English one. But why was that convenient? Simply, because he had come to reside permanently in England Phillimore on Domicil,-100, 150, 180. The place where a man dies is that of his presumed domicil, and the onus of disproving that is on those who allege the contrary. Here the purchase of the grave is a very material fact. Bempde v. Johnston, 3 Ves. jun. 198, shews that it is also of importance to consider the place where a man's wife and children are residing. Here they were in England. Forbes v. Forbes (ubi supra) is a case, and there cannot be a better one, in support of Colonel Douglas's view that the domicil was English throughout. If the testator's intentions are to prevail, it is plain that the holding the domicil to be English can alone give them due and full effect Storey on Domicil in his Conflict of Moorhouse v. Lord (uhi supra). In Udny v. Udny (ubi supra), the change of domicil was one that involved a subjection to different laws: not so where, as in this case, a man leaves Edinburgh for London. Both Scotch and English are alike Britons Whicker v. Hume (ubi supra). [WICKENS, V.C.-Naturalisation and allegiance involve very different ideas. In the Courts of foreign countries, civil and political rights are tending to an assimilation with each other.] Lord v. Colvin (ubi supra) is in fact overruled by Udny v. Udny (ubi supra). Then it is said, and rightly, that where a testator keeps his wife and children, there is his domicil. Their domicil is clearly his. [WICKENS, V.C.-I think the domicil of an infant, acquired through his parent or guardian, is a domicil, not of origin but of choice, though the choice is not that of the infant.] Forbes v. Forbes (ubi supra); Maxwell v. Maclure (ubi supra); Storey's Conflict of Laws, 41; Williams on Executors (6th Edit.), 1403. Another consideration in this case is, that the testator bought a house in England. He, no doubt, felt that he had in some respects made a mistake, and that his wife might not be welcomed if he were to go back again to Scotland. Therefore, he had every inducement to remain, where he had fixed his home, in England. All his acts and his negotiations for the purchase of land in this country, and his repeated investments in English securities, shew that he never intended to make his abode permanently elsewhere than in this country Munro v. Munro (ubi supra). Lastly, there are here no declarations, and the dealings with documents, such as we do find, afford no very strong presumption either way. Taken, however, in conjunction with acts in England, they are corroborative of an English domicil. Mr. A. G. Marten was for Patrick Webster. Sir Roundell Palmer, in reply. 1. As to the frame of the widow's suit. It is undoubtedly correct. She is entitled to a full administration of her husband's estate in this Court; to all that this Court can give her, to ascertain her rights; and this Court can give her what she asks. It is contrary to all the principles on which this Court decides questions of "election" to hold that a person cannot file a bill to enforce his or her right to elect, or that a bill filed with respect to election is neces sarily in itself an exercise of the right to elect. Knowledge is a sine qua non, in cases of election. Here not only was the widow's bill not intended to be an election by her but when she filed it she did not know all the facts she ought to have known for an election. The Court cannot, therefore, decide it to be so. 2. As to the question of the testator's domicil. He was the heir apparent of an old Scotch family. He was the owner of a residence in Scotland and in the habit of coming to England for short visits only. So far this case presents no analogy whatever to those which have been so freely cited, of Anglo-Indian domicil; and even with respect to those, it is more than doubtful whether the House of Lords would now follow some of the decisions which it has pronounced. It used to be said that an English person who entered into the covenanted service of the East India Company, bound himself for life; and, therefore, his domicil became Indian. But that is a case sui generis, quite unlike any other; and most unlike that of a clerk of the Crown. No such clerk has contracted, as did the covenanted servant of the company; and the appointment which the government gives to its clerk is but a revocable one. Now, however, there are no covenanted servants, and the whole chain of the reasoning is so far weakened, if not broken entirely Forbes v. Forbes (ubi supra); Udny v. Udny (ubi supra). So also consular service does not destroy the domicil of origin Sharp v. Chrispin (ubi supra); |