particular matter which had occurred in Edinburgh, he described it as "a blow which dissolution cannot efface from the conscious retrospective mind, wherever it may wing its flight, and one that impels me to disown and deny my country as a tyrannical stepmother, to whom, since my return after a long absence, I owe nought save the deepest disgust.” He sold his house at Edin

burgh, and most of his furniture; but brought the rest to London; he likewise removed his name from the books [*127] of the municipality and from the various societies of which he had previously become a member. He visited Edinburgh once or twice afterwards during the life of his mother, and memorialised the sheriff depute and the inhabitants of Nicholson-square to have the name changed into Borthwick-square, but he was unsuccessful in his object, and he never expressed any intention of returning to reside in Edinburgh. In 1826, he took part in establishing the University of London, became a proprietor of shares therein, and accepted the office of professor of Hindostanee to the University, but resigned that office in 1828, and became a private lecturer on Oriental language. In 1833, he set up in London a newspaper, which failed; and in January, 1834, he executed in London a will according to the English forms. He had in the meantime paid some short visits to the Continent, but in May, 1834, he went to reside near Paris; and before going, wrote a letter, in which he said his reason for going to the Continent was that he was unwilling prematurely to expose either his wife or himself to those annoyances in the metropolis, where for six months they had both suffered severely in body and mind, also to say nothing of his purse, which his arch enemy was determined to sink to the lowest ebb, to torment him while labouring under a complication of evils, and one of them a dangerous disease," when he was very far from having yet escaped, and that to flee from similar visitations in future, was the grand object of his wish, and he had requested his kind helpmate to cross the channel once more in search of that tranquillity which he could not expect in his own country, while beset as he had been by needy and greedy blood relations, all sighing for his death."

In July, 1837, he took a residence, with coach-house and stables, at Paris, on lease for three, six, or nine years,

* determinable on six months' notice given before the [*128] expiration of the three or the six years. The lease also

No. 1. Whicker v. Hume, 7 H. L. Cas. 128, 129.

contained the following proviso, not to assign "in whole or in part without the consent, in writing, of the lessor. Only in the case of unforeseen events which shall force the lessee to quit Paris, or in another case also unforeseen, the interests of his family, the house may be let conjointly by the lessor and the lessee, the latter remaining responsible for the rent; or even the present lease may be cancelled at the end of six months' notice after one year of holding; and provided that the hiring shall only cease in the month of January." In 1840, being in London, he instructed his solicitor to prepare a will for him, which was accordingly done in the common form, and sent to Paris; but before its arrival there, Mr. Lawson, an English solicitor, practising at Paris, had prepared another. On the arrival of the English will, a codicil was added by Mr. Lawson, and the will and codicil were both executed on the 8th December, 1840. The description of the testator inserted in the will was, "J. B. Gilchrist, of the city of Edinburgh, but now residing at 10 Rue Mategnon, in the city of Paris." At the time of making his will, he was possessed of the following property: A freehold estate at Sydney, New South Wales; a freehold flat, or floor, in Hunter Street, Edinburgh; 100 shares in the Commercial Bank of Scotland, valued at £17,450; and £2,000 capital stock of the Bank of England; household furniture in Paris; and 5842 copies of his Oriental works, and some ornamental furniture, which were in London, the last having been expressly left with friends to keep till his "return" to London.

-

The will gave to his wife his household goods, furniture and plate, linen, glass, china, carriage, horses, jewels, trin[* 129] kets, wines, &c. - and money in his house for her absolute use and benefit. And his estate at Sydney and in Edinburgh, and all his residuary real and personal estate, he gave to Joseph Hume, Esq., M. P., Charles Holland, Esq. M. D., John Macgregor, Esq., one of the Secretaries of the Board of Trade, and John Bowring, Esq., LL. D. (all of London); and Robert Veritz, Esq. M. D., of Paris, physician to the British embassy there, on trust to convert the same into money, and to invest the produce (but so that it might be disposed of to charitable purposes), on trust to pay certain annuities, and then on such trusts as by any codicil he might direct. By the codicil he directed and ap pointed "that the trustees or trustee for the time being shall

No. 1.Whicker v. Hume, 7 H. L. Cas. 129, 130.

stand possessed of and interested in the residue or surplus of the trust monies, stocks, funds, and securities thereby to them bequeathed in trust. Upon trust to apply and appropriate the same in such manner as they, my said trustees or trustee, shall in their absolute and uncontrolled discretion think proper and expedient for the benefit, and advancement, and propagation of education and learning in every part of the world, as far as circumstances will permit."

The testator died at Paris on the 8th January, 1841, and on the 13th January the will and codicil were proved by all the executors except Dr. Veritz in the Prerogative Court of Canterbury. In August, 1841, they were duly registered and confirmed in Scotland.

*

On the 30th of July, 1841, the appellant as the heir-at-law and one of the next of kin of the testator, filed his bill (which was afterwards amended) in Chancery against the executors (and other necessary parties), and the Attorney-General, alleging that, by the law of Scotland, the real estate of the testator did not pass by the will and codicil, that the real estate at New South Wales did not pass thereby, but that all the real estate, [*130] after satisfying lawful charges thereon, belonged to the heir-at-law; that the trusts thereof were inoperative and void; that the residuary estate was undisposed of, and that, subject to the debts of the testator, the same by the law of the testator's domicil, belonged to his next-of-kin (exclusive of the widow's interest) and he prayed for a declaration accordingly, and for an account.

In November, 1842, the executors filed their bill praying that it might be declared that the will was well proved, and that the trusts thereof ought to be carried into effect.

By an order of the Court made in both causes, in January, 1843, it was referred to Master Richards to inquire where the testator was domiciled at the time of his death, and who were his heir-atlaw and next-of-kin. In December, 1844, the Master reported, that the Appellant was his heir-at-law, and that certain other persons were his next-of-kin; and in November, 1849, he made a farther report, by which he found that the testator was domiciled in London.

The appellant excepted to this report, insisting that it ought to have been found, that the domicil was either Scotch or French. The exceptions were overruled by Lord LANGDALE (January, 1851,

13 Beav. 366). The cause was heard before Sir JOHN ROMILLY, who (April 30, 1851), declared the will to contain a good charitable bequest, and decreed accordingly (14 Beav. 509). The case was taken on appeal before the Lords Justices, and the decree of the MASTER OF THE ROLLS affirmed (1 De G. M. & G. 506). The present appeal was then brought against both these decrees. [* 131] *Mr. Rolt and Mr. Greene (Mr. Morris and Mr. Springall Thompson were with them) for the appellant.

[138]

Mr. R. Palmer (Mr. Anderson and Mr. Bagshawe were with him) for the respondents.

The Solicitor-General (Sir H. Cairns), with whom was Mr. Wilkins, was heard in support of the validity of the will. Mr. Rolt replied.

[*143]

*The LORD CHANCELLOR (Lord CHELMSFORD) after stating the terms of the will and codicil, said:

Upon the argument at the Bar three main questions were raised: first, upon the domicil of the testator; secondly, whether the Statute of Mortmain, 9 Geo. II. c. 36, applied to a devise of lands, situated in New South Wales, and rendered the devise for charitable uses void; and, thirdly, whether the trust upon which the residue was given, constituted a valid charitable bequest. Upon the point of domicil, an objection was made on the part of the respondents, that it was not competent to the appellant to enter into that question, inasmuch as it was concluded by the probate of the will which had been granted by the Prerogative Court. And it is necessary, therefore, very shortly, to consider what is the effect of a grant of probate upon a question of this kind.

Now, there is no doubt that it is the province and the duty of the Ecclesiastical Court to ascertain what was the domicil of the party whose will is offered for probate, in order to ascertain whether that is a valid will, the testator having complied with all the requisites of the law of the country in which he was domiciled. But if probate is granted of a will, then that conclusively establishes in all Courts that the will was executed according to the law of the country where the testator was domiciled. Supposing the fact to be, that the testator was domiciled in a foreign country, and the will was not executed according to the law of that country, still, if it had been admitted to probate by the proper Ecclesiastical Court here, no other Court could go back upon the

factum and raise any question with respect to the validity of the will.

That seems to be exemplified and established by the case of Douglas v. Cooper, 3 My. & K. 378. There a married

*

woman, under the power of appointment in a marriage [*144] settlement, which was to be exercised by a will to be executed with certain formalities, made an instrument, which was admitted to probate by the Ecclesiastical Court, and the MASTER OF THE ROLLS held that he was concluded by the judgment of the Ecclesiastical Court granting probate, from considering the question, whether it was a will; namely, whether it was such an instrument as was required by the power, and that the office and duty of the Court were confined to the consideration of the question, whether that instrument was executed with the formalities which were required by the powers.

Therefore, I apprehend, that this will having been admitted to probate, it must be taken to be a valid will wherever it shall turn out that the testator was residing at the time of his death, but that the place of domicil is still open for consideration, and also the validity of the bequest contained in the will, and the effect of it according to the law of the domicil of the testator. The question, therefore, being open for consideration as to where the testator was domiciled at the time of his death, it will be necessary to enter shortly into the consideration of the evidence upon that subject, upon which I apprehend that your Lordships will feel no very great difficulty.

The testator was a native of Scotland, born there in the year 1759. In the year 1782, being then of the age of 23, he went to India, and shortly afterwards entered into the service of the East India Company as a medical officer. He continued in the service of the East India Company in India till the year 1804, and by his services with the East India Company, he acquired what has been called in several cases an Anglo-Indian domicil. He returned to his native country in the year 1804, married there in 1808, and shortly after his return he retired from the service of *the East India Company upon a pension which he [*145] enjoyed down to the time of his death, which was in the

month of January, 1841.

There is no doubt that his domicil of origin revived by his return to, and residence in, his native country. But it is unnec