Attorney General v. Rowe, 1 Hurl. & Hodgson v. De Beauchesne (ubi shews that Mr. Phillimore subsequently altered his opinion as to a general domicil being acquired by a residence for a special purpose only Phillimore on Domicil (ubi supra). Where a man marries a woman by whom he has previously had a child, it is not to be presumed that he would prefer that child to be illegitimate rather than legitimate; and to suppose that the testator did not know the Scotch law on the subject is too absurd to be entertained for a moment-even if the rule of law were not to the contrary. Where England and Scotland are to the extent to which they are-one country-and, except for some legal purposes only-completely identified, it is ridiculous to say that a Scotchman, taking a lease of a house in Englandnever saying he means to abandon his Scotch domicil, and never in fact parting with his interest in his Scotch property -intends to give up his Scotch domicil -to illegitimatise one of his children— and further to produce all the consequences of quasi expatriation;-to say that, is to assert something more irrational than I can find words to express-even if to do so would not be to allege a conclusion totally opposed to all the recent authorities on the subject. A colonial judgeship does not vary the domicil of origin. It is not so lost. Here moreover you have this fact that while the alleged English domicil was being acquired by the testator's father, the grandfather (his father) was alive, and all that the son really acquired, away from Scotland, was income derived from his official appointment. It is quite impossible to contend for an English domicil as that of the testator's father. Then comes another question, did the testator, who was manifestly Scotch by origin, really do anything to change that domicil to an English one? Did any single act of his, or all taken together, shew an intention on his part never to return to Scotland, but to live permanently in England? Certainly not. But unless that can be proved, the domicil of the testator must be held to have continued till his death what it was at his birth, namely, Scotch. The onus of proof is on the other side. It was said in answer, that prima facie a man's domicil is where he lives and dies, and therefore the onus is on our side. But can any argument be more fallacious? Forbes v. Forbes (ubi supra) is clear as to that. Phillimore on Domicil (ubi supra) was largely cited. But The Attorney General v. Blucher de Wahlstatt (ubi supra), and Lord Kingsdown's judgment in Moorhouse v. Lord (ubi supra) shew that to establish a change of domicil of origin by any one, you must prove, not that the person whose domicil is in dispute intended to change his nationality and allegiance, but simply his domicil, in the ordinary sense of that word Atchison v. Dixon (ubi supra); Haldane v. Eckford (ubi supra). This case is in all respects a most peculiar one. The whole argument for the relinquishment of the Scotch domicil of origin is based upon the letting, for a few years only, of the Brigton mansion! and as to the other facts, they really amount to nothing, as a support of the claim to the English domicil. Bell v. Kennedy (ubi supra), is of no force against the widow's case here; and on the whole, I say, that the testator's domicil was, from his birth to his death, Scotch; that it must be so determined, and that all the ordinary consequences must follow from that decision. [WICKENS, V.C.-What do you say as to the legal advice given to this gentleman on the occasion of making his will -his last will? Does not that shew that he believed his domicil to be an English one ?] I was and still am utterly unable to follow the reasoning as to that; because, with respect to real estate, that must be governed by the lex loci rei sitæ. WICKENS, V.C.-William Douglas, the testator in these causes, died in England on the 16th of February, 1869, leaving a widow, Ellen Douglas, and three children by her, one of whom, William Charles, His was born on the 18th of June, 1862, fourteen months before the marriage of his parents. William Douglas had, besides considerable moveable property, a leasehold house at Putney in England, and some heritable estate in Scotland. will, in the English form, is dated the 21st of December, 1868. By it the testator devised and bequeathed his property as follows: [The Vice Chancellor then stated the will as above set forth, and continued]-The testator had, on the 19th of September, 1867, fifteen months before the date of his will, executed, with what his advisers and he considered the formalities required by the law of Scotland for the execution of deeds and testamentary documents, a trust disposition and settlement, by which he gave, granted, disponed, and assigned to and in favour of Col. Douglas and his heirs and assigns, an estate at Brigton in Forfarshire, worth, it seems, about 400l. a year, the only remaining portion of a family estate of considerable importance which had belonged to his ancestors. The testator seems to bave had other heritable estate in Scotland, namely, a moiety of a house and land at. Broughty Ferry, which is not noticed in the trust disposition. This latter property is said to produce about 451. a year. Two suits are now before the Court, one (Douglas v. Douglas) by the testator's widow against the executors and the testator's three children, and the other (Douglas v. Webster) a cross suit by Colonel Douglas, the testator's residuary legatee, and who was also one of his executors, against the other executor and the widow and children of the testator. The plaintiff in the first suit asserts that the testator's domicil was Scotch, and that she as his widow is entitled, if she chooses, to elect between the benefits given to her by his will on the one hand, and one-third of his moveables, and her terce in his heritable estate in the other; and she claims, or is alleged to claim, that the Court of Chancery shall give her the means of making such an election by ascertaining the value of the subjects between which it is to be made, and giving her, in so far as it has jurisdiction to do so, the benefit of her election when made. It is, perhaps, too broadly stated by Lord Thurlow (1), whose dictum has been adopted by Mr. Swanston (Dillon v. Parker (2), and other text writers, that the Court of Chancery will in all cases entertain a suit by a person put to election to ascertain the value of the objects between which election is to be made. No doubt there is in almost all cases jurisdiction in equity to compel a final election, so as to quiet the title of those interested in the objects of which one is to be chosen, and the Court, as a condition of compelling such a final election, secures to the person compelled to make it, all the information necessary to guide him in doing so. It is also generally, though not perhaps universally true, that a person for whose benefit conditions will be imposed by the Court, before it makes an order against him, can entitle himself to the benefit of the conditions by filing a bill, and offering by it to submit to the order. But if, for instance, the Brigton estate in the present case had been given to a stranger, I do not at present feel satisfied that Ellen Douglas, if entitled to elect between her widow's rights and her legacy, could have sustained a bill against the executors and that stranger, to have the value of the Brigton estate ascertained. It is not, however, necessary to consider this. Colonel Douglas, who is one of the executors, and residuary legatee, also claims the bulk of the real estate, and what he does not take is devolved on the heir, who is an infant, before the Court, and makes no opposition. And Colonel Douglas has filed a cross bill, which, although it seeks to establish an English domicil in the testator, and therefore denies the widow's right of election altogether, prays (not conditionally, but absolutely) for a general administration of the personalty. Under all these circumstances the Court has, I think, jurisdiction on the hearing of these two causes to decide the question of the testator's domicil at the time of his will and of his death, on which depends the widow's alleged right to election; and also, if she is held to have the right, to (1) 1 Ves. jun. 171. (2) 1 Swanst. 381 (note), direct such enquiries as may be necessary to guide her in exercising it, and, as far as possible, to give effect to it. The plaintiff in Douglas v. Douglas asks, however, something beyond this. She desires to have it ascertained on whom the Brigton estate devolves, or, in other words, whether her election is to be made against her own son, or partly against him, and partly and principally against Colonel Douglas, a stranger in blood to herself; and further, whether the election is to be made against her son born before the marriage, or her son born after the marriage. And she consequently asks a decision, not only on the question whether the trust disposition in favour of Colonel Douglas was revoked, but also on the question whether her first-born son is legitimate, which involves the question of the testator's domicil at the time of that son's birth and of the father's subsequent marriage. It seems to me that she is entitled to do so. Supposing the Court of Chancery to recognise and give effect to her right of election, it will also compensate, as far as possible, the persons disappointed by its exercise, which, of course, involves the ascertaining of them. Therefore, notwithstanding the elaborate argument addressed to me on the subject, I consider that the question where the testator was domiciled at the birth of his son, William Charles, and the question whether the trust disposition of 1867 was revoked by the subsequent will, are properly before the Court of Chancery in this suit. The question of domicil is that to which the voluminous evidence was mainly directed, and which was principally argued at the hearing. It arises in a double form, for the domicil of origin of William Douglas, the testator, depends on the domicil of his father, Robert Douglas, at the time of William's birth; and it has been argued that Robert, though his domicil of origin was Scotch, had acquired at that time an English domicil. This contention seems groundless. Robert, the eldest son of a Scotch laird of ancient family and considerable property, was sent to Paris in 1789, when he was 16 years old, to be educated, it would seem, for the public service of Great Britain. On his return in 1792 he became a clerk in the Home Office, and so continued till 1802. On the 24th of June in that year he married Mrs. Webster, the widow of a gentleman with whom he had been on very intimate terms, and who had died the year before. Mrs. Webster had considerable means, and Robert Douglas, who was then, it seems, in debt, but did not disclose the fact to his wife, shortly after his marriage resigned his clerkship in the Home Office, which produced him 300l. a year, and lived with his wife, and apparently on his wife's means, at a succession of hired houses in England, visiting, however, Scotland in every year, and keeping up his connection with his family there. In 1811 the Brigton estate, which Robert's father had in 1804 subjected to a trust disposition in favour of his creditors, was sold. Robert himself bought (principally, it seems, with money borrowed from his wife's trustees) the mansion and grounds of Brigton, and some part of the estate immediately adjoining them. The rest, about two-thirds perhaps of the whole, was bought by Lord Strathmore. In September, 1814, Robert's father died. Very shortly afterwards Robert refurnished Brigton, and made it fit for occupation, and he and his wife thenceforth resided there till his death in 1835. That Robert's domicil of origin was Scotch, was not and could not be denied. It is equally undeniable that his domicil from 1816, when he was 43, to his death, was also Scotch. In order, therefore, to counteract the presumption that it was Scotch throughout, it would be necessary to shew, first, that he acquired another sole domicil by actual residence in England with the intention of settling there, and secondly, that after doing so, he changed his mind and settled in Scotland. I see no reason to believe that he ever changed his mind on the subject. It seems to me more than probable that when on his father's death he went to live in Scotland, he was only doing that which he had always wished and intended to do if circumstances should make it possible. But it is not necessary for the present purpose to determine more than that on 4th August, 1803, when the testator was born, his father had not yet cast off his domicil of origin. Now considering that he entered the Home Office when he was 20, and continued in it till he was 30, it is difficult to extract from his having lived in London lodgings while he discharged his duties as clerk in that office, any intention to settle finally and for life in England. The supposed change must be placed somewhere between the end of 1802 when he resigned his clerkship, or at the earliest the middle of 1802, when he seems first to have thought of resigning it, and August, 1803. At this time he was the expectant heir of a large Scotch estate, not yet incumbered and which might never have been incumbered, and his father died before 1804. His family was Scotch and settled in Scotland, and it may be inferred that he was much attached to them. Up to the time of his marriage or a time a little before it, he constantly looked on Brigton as his home. It seems impossible to me to infer a deliberate intention of changing all this, because while in some pecuniary distress, and tired probably of an occupation in which he rose very slowly, he married an English widow with a good present jointure, and while the much larger means which he might then expect to succeed to were in a state of expectancy. Therefore the testator's domicil of origin, though he was probably born in England, seems to me to have been Scotch, and the question arises whether this continued till his death or not? The testator's personal history may be stated shortly as follows. At the death of his father, which took place on the 2nd of August, 1835, he was just 32 years old. Up to that time, he had from the age of 13 or 14 lived at Brigton with his father and mother, without any further interruption than may have arisen from occasional visits or excursions. Some time in the latter part of the life of Robert Douglas, the Brigton estate had been materially diminished by the sale of a further portion of it to Lord Strathmore at the price of 18,000l. And it seems to have consisted, when Robert died, of the mansion house and grounds, and a single farm called the Home Farm. Mrs. Douglas, the testator's mother, continued to live at Brigton after her husband's death, and the testator lived with her as before; the mother paying the principal or whole expense of the indoor establishment, the son living with her, and managing the farm which was her own property and was kept in hand. In 1846 Mrs. Douglas bought a house at Broughty Ferry, which is a sea-side place on the Frith of Tay ten or twelve miles from Brigton, and thenceforth till her death she occupied this house (which was called Carbat House) as her principal residence, her son living with her, and still farming the land at Brigton and yachting. This seems to have constituted his chief occupation. Не оссаsionally visited England, and his visits seem to have been generally or always short ones. This state of things con tinued with little or no variation till September, 1857, when his mother died. Before this event, the testator had become acquainted with a family of the name of Rigge, consisting of a mother and two daughters. Mrs. Rigge, the widow of a perfumer, lived (I infer) with her two daughters, who were milliners in New Bond Street, and let lodgings. The testator on his mother's death came to England, where he seems to have spent two or three months, returning to Scotland in the spring of 1858. About that time, Carbat House, the sea-side residence of Mrs. Douglas the testator's mother, was sold. He was in England in November, 1858, and apparently spent the winter there. At the beginning of the next year, 1859, Brigton House was papered and painted. Nothing else remarkable seems to have occurred in that year, except that the testator then for the first time opened an account with a London banker. In 1860 a remarkable change occurred. In October of that year, he let to a tenant named Guthrie, the home farm at Brigton, which had up to that time been in his own hands; and about the same time he took a house in Marlborough Terrace, Kingsland Road, to which, before the end of 1860, he removed with the plaintiff in the original suit, then Miss Ellen Rigge; and there they lived together, it seems, in a humble and obscure way, as man and wife for some months. In September, 1861, he again removed with Miss Rigge to Somers Cottage at Brixton, where his style of living was more in conformity with his means and position. Both in 1860 and 1861 he had made repeated visits to Brigton, and in the latter year the drawing-room there was newly furnished. In and throughout 1862 the testator's English residence was still Somers Cottage, and there, on the 18th of June, 1862, Miss Rigge was confined of a child, the defendant William Charles Douglas. Very soon after this the testator was in Scotland (where he had been in the earlier part of the same year), and gave instructions for the preparation of a trust disposition of his heritable estate in favour of his nephew, Colonel William Douglas. In the autumn of the same year occurs the first mention of an intention on the testator's part to let Brigton, and this was actually done in the succeeding year. The mansion there was, in 1863, let for two years to a Mr. Millar; the testator, though he is said to have originally wished to let it for five years, declining eventually to part with it for more than two years certain. The testator reserved to himself two rooms for the preservation of his furniture, but no servant of his remained there, and from this time forth during the remainder of his life (between five and six years) he had no establishment in Scotland. In August of the same year he married Miss Rigge at Folkestone in Kent. The counsel for Colonel Douglas, who assert that the testator's domicil at his death was English, and who argue that his domicil of origin was also English, do not deny that he must be considered a domiciled Scotchman from 1816, or thereabouts, till some time after his mother's death in 1857. Of course it would be on them to prove the change, whether his Scotch domicil was a domicil of origin or acquired. For many purposes, no doubt, a domicil of origin requires more to change it than a domicil of acquisition. Independently of any authority nothing is easier to understand than that a Scotchman by birth considers himself to be a Scotchman in a much more definite and solemn sense than that in which a Scotchman who has acquired an English domicil by settling in England, considers himself to be an Englishman. But in this case, if the testator's Scotch domicil had been an acquired and not an original domicil, it was so acquired as to resemble an original domicil rather than an acquired one. For it can hardly be doubted that from the age of 12 or 13 at any rate the testator had no idea of any home except a Scotch home, and thought of his father as a Scotch laird and nothing else. Hence I conceive that if the testator's domicil of origin had been English, the burthen on those who contend that he changed his then Scotch domicil after his mother's death, would lie hardly lighter than if it had been Scotch, as I hold it to have been. In any case the onus of shewing the change lies on them. It is universally or all but universally true, that in order to prove that the domicil of an adult of sound mind has been changed an intention on his part must be shewn. The question on which opinions have differed is, as to what must be shewn in order to prove the intention. According to one view it is sufficient to shew that he intended to settle in a new country, to establish his principal or sole and permanent home there, though the legal consequences of his so doing on his civil status may never have entered his mind. According to the other view, it is necessary to shew that he intended to change his civil status, to give up his position for purposes of civil status as a citizen of one country, and to assume a position for the like purposes as the citizen of another. This stricter view is supported by opinions of great weight, amongst others, by that of the Lord President in Donaldson v. Maclure (3), that of the Lord Chief Baron Pollock and other judges in Wahlstatt's case (ubi supra), and by some expressions made by the late Lords Cranworth and Kingsdown. I think it would be an extremely convenient one, since, if for the purpose of proving a man had changed his domicil it were necessary to shew that the notion of a change of his (3) Second Series of Decisions, vol. 20, p. 32. |