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No. 1.—Whicker v. Hume. - Notes.

ENGLISH NOTES.

In Haldane v. Eckford (1869), L. R., 8 Eq. 631, a residence taken up by a retired Indian civilian in the Island of Jersey, of a temporary character at the commencement, but in fact continued for twenty-five years until the death of the testator, was held sufficient evidence of his having constituted his domicil there.

In Douglas v. Douglas (1871), L. R., 12 Eq. 617, where the domicil of the testator was in question, the facts were as follows: The testator, William Douglas, was Scotch by domicil of origin. From the age of thirteen or fourteen until the death of his father in 1835, when the testator was thirty-two years old, he lived with his father and mother at Brigton in Forfarshire, where his father had possessed an estate. The estate had been sold in lots, but the mansion-house, and home farm had been retained. The testator after his father's death continued to live with his mother at Brigton. Subsequently his mother purchased a house at Broughty-Ferry which she used as a winter residence, using the house at Brigton as a summer residence. The testator resided with her until her death in 1857. After this he made some visits to England; and, in 1860, formed a connection with Miss R., with whom he lived in and near London. He returned occasionally to Scotland, put the house at Brigton in order, and arranged for the management of the farm by a factor. In 1863 he let the house at Brigton to a tenant for two years, reserving himself two rooms in which he stored his furniture. From this time until his death he had no establishment in Scotland. The lease was subsequently extended for a further period of two years and again for a period of three years. On the 13th August, 1863, the testator married Miss R. There was a son born previously and two children subsequently. In September, 1867, the testator took a lease of a house at Streatham for 5 years, and he died at that house on 16 February, 1869. These were the principal facts, with many other details bearing more or less on the intention. WICKENS, V. C., after an elaborate review of the evidence, sums up its legal effect (L. R., 12 Eq. 648) as follows: "The true conclusion from the facts seems to be. that the testator remained from 1863 to his death in a state of mind which might have resulted in his determining to settle in England per manently, but which never did so result; that if he had lived a few years longer, and had found by experiment that Mrs. Douglas and his children would be welcomed or tolerated in society at Brigton, he would have transferred himself there; that if this proved unfavourable, he would have sought another home in England or Scotland, as might happen to be convenient; and that, in fact, he remained to the end of his life un

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decided on the point which is now in question.

Notes.

If so, the onus which lies on those who assert a change of domicil has not been discharged; and, without denying that the case is a peculiar and difficult one, I think, after anxiously weighing all the evidence, of which, of course, I have noticed part only, that the domicil of William Douglas, the testator, was Scotch from his birth to his death."

Where the question arises as to the domicil of a person at a period in his lifetime, the Court may pay regard to the oral evidence upon oath of the person himself to explain the intention of a residence as to which the bare facts taken by themselves would be equivocal. Wilson v. Wilson (1872), L. R., 2 P. & D. 446, 41 L. J. P. & M. 74.

Mere length of residence in one place, where there is no contrary evidence of intention, is sufficient to raise the presumption of intention to make a home there. In King v. Foxwell (1876), 3 Ch. D. 521, 45 L. J. Ch. 693, 24 W. R. 629. K., an Englishman, emigrated to the United States in 1851, and for fifteen years carried on the trade of a shoemaker at Syracuse in the State of New York. He was joined at Syracuse by his wife who died there. In 1854 he made a declaration of citizenship of the United States. In 1866 he married at Syracuse a second wife; and in the following year sailed with his wife to England. Differences having arisen, the wife returned to America, and K. remained in England, where, however, he did not acquire a settled residence. The MASTER OF THE ROLLS held that by the fifteen years residence at Syracuse, K. acquired a domicil of choice in the United States; but that, having abandoned that domicil, his English domicil of origin had reverted.

The case of Platt v. Attorney General of New South Wales (1878), 3 App. Cas. 325, 47 L. J. P. C. 26, 38 L. T. 74, 26 W. R. 516, when stripped of immaterial details, appears a very simple one. A person in New South Wales who had amassed a large fortune as a sheep farmer at various stations, purchased a lease of ninety years of a plot of land, on which he built a house at an expense of £16,000. On the 1st of October, 1864, he commenced to occupy the house with his wife and family and a large establishment, and they continued to reside there until his death on 16th December, 1866. It was held that he had established his domicil there.

In Doucet v. Geoghegan (C. A. 1878), 9 Ch. D. 441, 26 W. R. 825, the question was whether the succession to personalty was to be regulated by English or French law. The testator was originally a Frenchman, but had lived twenty-seven years in England, during which time he was engaged first as an assistant and then as a partner in a hosiery business. He was twice married in England, and did not on either occasion conform to the formalities required by French law for the

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legalization of marriages of Frenchmen in a foreign country. In the year 1869 the testator and his partner established a branch business in Paris. After his second marriage in 1856, the testator and his wife lived over the business premises in Regent Street; they afterwards removed to lodgings in Bentinck Street, where they resided between eleven and twelve years, and then the testator took a lease of a house in Albion Road, St. John's Wood, in which he lived until his death in 1874. Evidence was given by the plaintiff, who was the widow in support of the French domicil as follows: That the testator always and continuously expressed an intention of returning to live in France when he had made sufficient money to do so; that he refused to purchase a house or to take a longer lease than three years, because it would interfere with his returning to France; that he always desired to improve the branch business in Paris, which would enable him to live there and to establish his son in that business; that, after being taken ill, he was still more anxious to return to France, because he thought that his native air would improve his health. That he went to Paris two or three times a year, sometimes with his wife, and remained there two, three, and four weeks at a time; that he refused to be naturalized in England, and often spoke of the advantage he derived in being a Frenchman, as it exempted him from serving on juries. That on being urged to make a will he had said it was unnecessary, since the French law provided for the distribution of his property. (This was some time previous to the making of the will which was now disputed on the ground of the operation of French law.) Other witnesses deposed to the fact that the testator had frequently in the strongest terms expressed his intention of returning to France and permanently settling there, when he had made sufficient money to enable him to do so. The evidence on the other side was to the effect that, although in the first years of his residence in England he had a vague idea of returning to France, he never referred to this in later years, but on the contrary, refused to accept the proposal of one of his partners that he should remain half the year in Paris for the sake of improving the Paris business, because he said that since his father and mother's death he had no interest in living in France. It was held by the Court of Appeal, affirming the judgment of MALINS, V. C., that the evidence showed the testator's domicil to be English.

The MASTER OF THE ROLLS cited from the judgment of Dr. LUSHINGTON in Hodges v. Beauchesne, 12 Moo. P. C. at p. 329:-"Length of residence, according to its time and circumstances, raises the presumption of intention to acquire domicil. The residence may be such, so long and so continuous, as to raise a presumption nearly, if not quite, amounting to a præsumptio juris et de jure; a presumption not to be

No. 1. Whicker v. Hume. Notes.

rebutted by declarations of intention, or otherwise than by actual removal." And upon the case before him (Doucet v. Geoghegan) he concluded his judgment (9 Ch. D. 456) as follows: "The contention here is, not that the declarations can be read to show a change back to his original domicil, but to prove that he never intended to acquire a domicil in England. But they are much too indefinite for that purpose. A declaration that a man means to return when he has acquired a fortune is not sufficient to outweigh actions which show an intention of permanent residence. In all the cases a difficulty arises as to the meaning of the word 'domicil'; but it evidently implies the intention to make the place one's home, and a home is itself suggestive of permanency. It is impossible to lay down an absolute definition of domicil, but in the present case there is every element that makes a home. The testator

had no other home or place of residence; he showed by his actions no intention to change his residence. It is true that he only took his house for three or four years, but that is not sufficient to show an intention to change his residence. On the whole, it appears to me that there is nothing to outweigh the natural result of his acts, and that looking at his acts fairly, as a jury ought to do, the Court can come to no other conclusion than that his domicil was English. The appeal must therefore be dismissed with costs."

The case of In re Patience, Patience v. Main (1885), 29 Ch. D. 976, 54 L. J. Ch. 897, 52 L. T. 687, 33 W. R. 501, furnishes perhaps an extreme case where the unsettled character of the residence in a country has precluded the inference of intention to make a home there, notwithstanding residence in the same country for a lengthened period. The intestate was born in 1792 of parents in a humble position of life, at A. in the county of Ross in Scotland. In the year 1810 he obtained a commission in the army and immediately proceeded with his regiment on foreign service and served in various parts of the world from that time until 1860, when he sold his commission and retired from the army. From 1860 until his death he lived in lodgings, hotels, and boardinghouses in London, Margate, Ramsgate, Folkstone, Hastings, Harrogate, and other places, in England, and died intestate and a bachelor at a private hotel in London in 1882. From the time of his obtaining his commission in 1810, he never revisited Scotland, and for the last 22 years of life he was never out of England. He was a reticent man, and there was practically no evidence of intention except what may be inferred from the above facts. CHITTY, J., held that an English domicil was not established. After stating the facts and reviewing the cases he said (29 Ch. D. 984): — "It appears to me, therefore, that I must take into consideration the nature and character of the residence, and it appears that the intestate in this case was moving about Eng

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land, and I think his shifting about from place to place shows a fluctuating and unsettled mind; and that the fact of residence, although for 22 years, standing alone without any other circumstances to show the intention, is insufficient to warrant me in coming to the conclusion that he had intended to make England his home."

In re Grove, Vaucher v. Solicitor to the Treasury (C. A. 1888) 40 Ch. D. 216, 58 L. J. Ch. 57, 59 L. T. 587, 37 W. R. 1, was a case of somewhat complicated facts; and, as to the inference, there was some difference of opinion among the Judges. But the case may be taken as establishing the point that where the question is whether a domicil of choice at a particular period is established, acts, events, and declarations subsequent to the time in question are admissible in evidence as to the intention at that time; and in the opinion, at all events, of the majority of the Court the inference of intention from a residence of ten years up to the period in question, is much strengthened by continuance of the residence for a lengthened period afterwards.

With the case of In re Patience, Patience v. Main (supra), may be contrasted the decision of the same Judge, confirmed by the Court of Appeal in Re Craignish, Craignish v. Hewitt (C. A. 1892) 1892, 3 Ch. 180, 67 L. T. 689. The case had the peculiarity, which also occurred in Bell v. Kennedy (No. 4, p. 764, post), L. R., 1 H. L. Sc. 307, that the question was, not the domicil at the time of the death, but at the death of the wife, when the husband claimed a share in the succession to the wife's separate property, notwithstanding her will, according to Scotch law. The plaintiff accordingly gave his evidence as to his own domicil, which he contended was Scotch. It appeared that the plaintiff's domicil of origin was Scotch; that he led a roving life up to the time of his marriage in 1883, when he was in his 47th year. That after the mar riage he went with his wife on a trip to Nice, and from Nice returned to London, where they stayed at Fisher's Hotel, Clifford Street. His wife presented him with a yacht, which was his only property, and was kept at Cowes. In the years 1883, 1884, and 1885 the plaintiff and his wife used the yacht for trips to the Mediterranean, &c. Whatever expeditions they made, they always came back to London, where they lived in various hotels and furnished rooms. On the 4th of January, 1886, the plaintiff signed an agreement for taking No. 25 Albert Gate, on a tenancy commencing the 15th of that month for a year certain with an option to the plaintiff to continue for another year, and if not required by the landlord, for a further term. He entered into possession accordingly, and resided there with his wife until their separation, which occurred in June or July following. The house was taken partly furnished. The wife had furniture in a repository, and some of this was removed to the house. After the separation the house was given

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