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Douglas Vs Douglas
EQUITY DOUGLAS v. DOUGLAS. DOUGLAS v. WEBSTER. [1871 D. 110. D. 138.] Also reported as:
[L.R.] 12 Eq. 617 COUNSEL: Sir Roundell Palmer,
Q.C., Mr. Anderson, Q.C., and Mr. Cookson, for the Plaintiff,
Ellen Douglas. Mr. Greene, Q.C., and Mr. Higgins,
for the Defendant the eldest son of the Plaintiff:– Mr. Joshua William, Q.C., and Mr.
Thrupp, for the Defendants the younger children of the
Plaintiff, left the question of domicil to the Court. Mr. Marten appeared for the trustee
Webster, a Defendant in the original and cross suits, but took
no part in the argument. Mr. Dickinson, Q.C., and Mr. Jackson,
for the Defendant, Colonel Douglas:– SOLICITORS: For the Plaintiff
and her Children (who were Defendants): Messrs. Burgoyne, Milnes,
Burgoyne, & Thrupp. For the Defendants Colonel Douglas
and Patrick Webster: Mr. W. M. Webster. JUDGE: Sir John Wickens, V.C. DATES: 1871 May 24, 25, 29,
30, 31; June 3, 5, 7; July 17. Election – Pleading – Suit to
ascertain Value with a view to elect – Domicil. Consideration of the circumstances
under which a person, who is put to election, may file a bill to
have the value of the property, subject to the election,
ascertained. Discussion of Butricke v. Broadhurst (1) and
of Mr. Swanston's note in Dillon v. Parker (2). Robert, son of a domiciled Scotchman,
who, in 1792, at the age of eighteen, entered the Home Office
(London), where he remained till 1802, when he resigned his
office, having married an English lady of fortune, and after
residing for some time in several hired houses in England,
finally settled and died in his family mansion house in
Scotland, which, with part of the family estate, he had
purchased with his wife’s money from his father’s trustees:– Held, that he had not lost his
domicil of origin. The testator, son of Robert, was born
in 1803, during a visit his parents made to London, and from the
age of thirteen resided with his parents in Scotland, paying
occasional visits to England, till his mother’s death in 1857,
after which he let for short terms his family estate, and making
occasional visits to Scotland, resided chiefly in hired houses
in England, where he cohabited with an Englishwoman whom, after
the birth of his first child, he married, and for whom, by an
English will, he made a provision, including a residence in
England to be used after his decease; and having in the Scotch
form disponed of his Scotch real estate to his nephew, died in
England, where he was buried in a grave he had purchased for the
interment of his step-brother:– Held, that his domicil was Scotch. The intention required to effect a
change of domicil (as distinguished from the acts embodying it)
is an intention to settle in a new country as a permanent home,
and this is sufficient without any intention to change civil
status, and, semble, even though an intention to retain the old
civil status be proved. Donaldson v. M’Clure (3),
Moorhouse v. Lord (4), Attorney-General v. Countess de
Wahlstatt (5), Udny v. Udny (6), Haldane v.
Eckford (7), Aitchison v. Dixon (8), discussed. WILLIAM DOUGLAS, a domiciled
Scotchman, the grandfather of the testator, on the 28th of
November, 1767, on his marriage with Elizabeth Graham, settled
his hereditary estate of Brigton, Forfarshire, on himself and
his heirs male, with a provision for (1) 1 Ves. 171. (2) 1 Sw. 381, n. (3) 20 Court of Sess. Cas. (2nd
Series) 307. (4) 10 H. L. C. 272. (5) 3 H. & C. 374. (6) Law Rep. 1 H. L., Sc. 441. (7) Ibid. 8 Eq. 631. (8) Ibid. 10 Eq. 589. [*618] younger children. William Douglas was
also proprietor of other family estates, situated at Glammis and
Broughty Ferry, in Scotland. On the 12th of April, 1773, his
eldest son, Robert Douglas, was born at Dundee, and was brought
up in Scotland till 1790, when he was sent to France to be
educated, in order to qualify him for an office under the
British Government. In 1792 Robert returned to England, and
shortly afterwards was appointed to a clerkship in the Home
Office, which office he held till 1802. During this time he
lodged in Pall Mall, but spent a great deal of his spare time at
Clapham, at the house of an intimate friend named Webster. About
the year 1800 Mr. Webster died, and his widow after his death
rented a house called Langham House, Suffolk. In June, 1802,
Robert Douglas, who was then lodging in London, was married to
Mrs. Webster, who had considerable means, in the parish church
of Langham, Suffolk. In November of the same year he resigned
his clerkship in the Home Office, which was worth then about
£300 a year. In the entry in the parish book,
Robert Douglas was described as of the parish of St George,
Hanover Square, London. From the time of his marriage Robert
Douglas maintained himself on his wife’s property, and resided
till 1814 at Aldborough, Suffolk, Newby Wiske, Yorkshire, and
other places in England, where he engaged houses for short
terms, paying occasional visits to Scotland. On the 4th of August, 1803, William
Douglas, the eldest son of Robert Douglas, was born in London,
while his parents were on a visit, and during their occupancy of
Langham House. In 1804 William Douglas, the
grandfather, executed a trust deed of Brigton in favour of
creditors, with a power of sale, but continued to reside there
till 1810, when he removed to Broughty Ferry, where he died in
1814. In 1811 the Brigton estate was sold
in lots, and the mansion house and grounds, with part of the
land surrounding it, were purchased by Robert Douglas,
principally with money borrowed from his wife’s trustees. The
remainder of the estate was sold to Lord Strathmore. In a letter written to his father by
Robert Douglas, and dated the 8th of October, 1811, occurs the
following passage:– “In consequence of my wife’s determination
of having a home of her [*619 own, she delayed writing until it
could be ascertained what you could do for me to enable us to
make Brigton that home; and upon receipt of your letter of the
22nd of November, containing your promise to assist me, she
wrote to her trustees.” Shortly after his father’s death, in
1814, Robert Douglas refurnished Brigton, and resided there,
with his wife and son, till his death on the 8th of August,
1835. The furniture in the house at the
time of his death belonged to Mrs. Douglas. William Douglas, the testator, at his
father’s death was thirty-two years of age. From 1815 or 1816 he
had always resided with his father and mother at Brigton as his
home, which, after the sale in 1811, consisted of the
mansion-house and grounds and the home farm. After Robert
Douglas’s death Mrs. Douglas lived with her son at Brigton,
defraying all the household expenses, and her son, the testator,
managed the farm, which was kept in hand and was his own
property. In June, 1846, Mrs. Douglas bought a house at Broughty
Ferry called Carbat House, distant about twelve miles from
Brigton, which she occupied as a winter residence, and Brigton
as a summer residence, till her death on the 9th of September,
1857. Between the death of his father and mother the testator
occasionally paid short visits to England. During these visits
he became acquainted with a Mrs. Rigge, the widow of a perfumer,
who, with her two daughters, who were milliners, lived in New
Bond Street. On the 30th of September, 1857, he wrote to the
eldest daughter, announcing his intention of shortly visiting
London, which he soon afterwards fulfilled. The principal events in connection
with the testator’s acts and residence from his mother’s death
were as follows:– 1857. Sept. 9. Mrs.
Douglas died. Dec. .
Testator came to London and took lodgings in
St. James’s Place, London.
1858. Jan. 19. Opened an
account with the Royal Bank of Scotland
in Dundee. Mar. .
Returned to Scotland for a short visit. Ordered
sale of his mother’s house at Broughty Ferry. Apr. .
Visited Bridge of Allan, and then returned to
London. [*620] May to July. Resident at
Brigton; which he described as
“dismally dull.” Aug. . Went
to England. Wrote from Dover to his
housekeeper at Brigton, directing letters to
be sent to 42, New Bond Street, where he
would get them on his way through.
Sept. and Oct. Resident
at Brigton.
Nov. .
Returned to St. James’s Place, and on the 20th of
November removed to 42, New Bond Street. 1859. Mar. . Gave
directions for painting and repairing
Brigton. Apr. . Again
in St. James’s Place. Opened an account
at Coutts's, and gave Brigton as his address,
which he afterwards changed to Marlborough
Terrace and Sommers Cottage.
1860. Feb. . Testator at
Brigton; hired a fishing-boat, and
remained in Scotland. Chiefly at Brigton
till September, and in October he let the
home farm at Brigton to a Mr. Guthrie. 1860. Oct. . Returned to
England, and rented a house, No. 3,
Marlborough Terrace, Old Kent Road, to which,
shortly afterwards, he removed and lived with
the Plaintiff, Ellen Douglas, as his wife, till
he removed to Sommers Cottage, Brixton. 1860. .
During this year Brigton was managed chiefly
by P. Webster, who had been appointed factor
soon after Mrs. Douglas’ death.
Nov. 26. Refused
to let Brigton, as it would throw him
out of a home altogether.
1861. May to July. Testator during
part of this time at Brigton,
which he spoke of as his home.
July 26.
Negotiated with landlord of Sommers Cottage,
Brixton Hill, near London, for purchase. Aug. .
Testator at Brigton, afterwards at Bridge of
Allan; stated he “would not let Brigton.” Sept. .
Removed to Sommers Cottage, of which he had
taken a lease for three or seven years. 1862. Mar., May, and July. Testator
paid short visits to Brigton. June 18. Eldest
son born at Sommer’s Cottage; in register [*621]
father described as independent gentleman, of
Sommers Cottage, Brixton Hill.
July . Trust
disposition of property in Scotland in
favour of nephew, Defendant Colonel Douglas,
prepared. Sept. .
Testator “thinks of letting Brigton” Nov. 6.
Plate-chest sent to Forfar Bank with a view of
letting Brigton.
1863. Jan. . Brigton
advertised to be let. Feb. . Let
Brigton to a Mr. Millar; but refused to
grant more than two years, though a longer
term had been in contemplation; and reserved
two rooms and a room above the granary. Apr. .
Testator at Brigton; stored away furniture and
discharged his servants.
Aug. .
Millar applied for extension of lease, but was refused. Aug. 13. Testator
married Ellen Rigge at Folkestone. Aug. 19. Made will
purporting to dispose of his real property
in Scotland in favour of Colonel Douglas. Dec. .
Purchased a grave at Camberwell Cemetery for
the interment of his step-brother.
1864. Jan. 25. Made another
will disposing of Brigton.
Aug. . Gave
up pew at Brigton as “not a residenter.” Nov. .
Testator made another will, disposing of Brigton. 1865. Jan. 5. Testator’s
second child born. July .
Testator agreed to extend Millar’s lease for two
years.
Contemplated purchase of a freehold estate at
Harrow. Aug. .
Testator at Broughty Ferry.
Sept. 26.
Execution of new lease of Brigton, reserving bow-room
and bed rooms. Dec. .
Purchased long leasehold house at Putney,
describing himself as of Sommers Cottage.
Plate sent up from Scotland by Mr. Webster. 1866. May . Made an
investment in the funds, and described
himself of Sommers Cottage.
[*622] June 14. Third
child born at Sommers Cottage. Aug. . Took
a pew at Brixton Church.
1867. May 25. Testator
made another will in the English form,
purporting to dispose of Brigton in favour of
Colonel Douglas.
Aug. 30. Testator
describes himself as a “residenter” in
England. Sept. .
Testator, after again contemplating the purchase
of a freehold, abandoned the idea, and took a
lease of Heathfield, Streatham for 53ò4 years,
and removed there.
Sept. .
Testator closed his account with the Dundee
Bank, which he had opened in 1858.
Sept. .
Testator made a trust disposition of Brigton in
favour of Colonel Douglas.
1868. June 25. Final lease of
Brigton to Mr. Millar fur three
years. Testator gave up the rooms he had
reserved there, and removed his furniture and
pictures to Heathfield.
Dec. 21. Last
will, in English form, substantially identical
with two previous wills in the same year,
being to the effect hereinafter stated. 1869. Feb. 16. Died at
Heathfield.
By his will in the English form,
dated the 21st of December, 1868, after revoking all other
wills, he gave to his widow his plate and household effects, and
his balance in his bankers’ hands. He gave to his nephew,
Colonel Douglas and Patrick Webster, whom he appointed his
executors, his leasehold house at Putney on trust, to allow his
widow to reside in it, and after her death to retain it as a
residence for his children till the youngest should attain
twenty-one, or to sell it and to hold the proceeds on the same
trust as a legacy of £10,000, thereinafter given, with a proviso
that it might be sold, with the widow’s consent, in her
lifetime, in which case she was to receive the income of the
proceeds during her lifetime, and the capital was to go in the
same way as the £10,000. He directed his executors to set apart
3 per cent. stock, the equivalent of £7200, and to pay the
income to the widow for life, after which it was to go as the
£10,000. He bequeathed to his [*623] executors £10,000 sterling
in trust for and to be equally divided among his children who
should attain twenty-one, with the usual provisions for
maintenance, advancement, and accumulation, with a proviso that
if no child of the testator attained twenty-one the capital
should fall into the residue of his estate. The testator
declared that the provisions made by his will for his wife
should be taken by her in lieu of all dower and thirds, and all
other 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 vesting in, or owing to him
at the time of his decease. But always with and under the burden
of all his just debts, death-bed, 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 assignees, 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 executors duly proved the will,
and paid to the widow certain inconsiderable sums in pursuance
of the trusts of the will. She subsequently, by her solicitors,
served notice that she did not accept such payments by way of
election to take the benefits given her by the will. On the 9th
of September, 1869, she filed this bill against the trustees and
her own children, alleging that the real estate in Scotland did
not pass by the will, but had devolved on Defendant,
William
Charles Douglas, and praying, 1, that the trusts of the will of
the testator might be carried into execution under the direction
of the Court; 2, that for the above purpose all necessary
accounts might be taken, directions given, and inquiries made,
including an inquiry as to the testator’s domicil, and an
inquiry of what real and heritable estate he died seised or
possessed of, either in Scotland or elsewhere, and what was the
value of his real and heritable estate and moveable property at
his death; 3, that [*624] all questions of collation and
election proper to be determined with reference to his property
might be determined in this suit; 4, for further relief. The case made by the Plaintiff was
stated in the tenth paragraph of the bill, as follows:– “The Plaintiff is advised, that
notwithstanding the provision made for her by the will, she is
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 estate
in Scotland. The Plaintiff is also advised that in case it shall
not be for the benefit of the Defendant, William Charles
Douglas, to collate or bring into hotchpot the heritable estate
in Scotland, which has devolved upon him as such heir-at-law of
the testator, the Defendants, Robert and Mary Douglas (his
brother and sister), will be entitled to insist on the exclusive
right by way of legitim to one-third of the testator’s moveable
estate, wheresoever situate, in lieu of the provisions made for
them by the will, and that if the said William Charles Douglas
shall so collate the said heritable estates, such heritable
estate and legitim will be divisible between him and his brother
and sister in equal shares.” On the 11th of November, 1869,
Colonel Douglas filed a cross bill against the widow and her
children, praying, 1, that it might be declared that the
testator at the times of making his will and of his death was
domiciled in England, and that his personal estate wherever
situate became disposable by the law of England, and that the
same had been effectually disposed of by the will of the 21st of
December, 1868; 2, that the Plaintiff (in cross bill) was
entitled to the personal estate not specifically bequeathed,
subject to the payment of debts, funeral expenses, legacy duty
and legacies; 3, that all necessary accounts might be taken and
directions given. Sir Roundell Palmer, Q.C., Mr.
Anderson, Q.C., and Mr. Cookson, for the Plaintiff, Ellen
Douglas. Mr. Greene, Q.C., and Mr. Higgins,
for the Defendant the eldest son of the Plaintiff:– The question to be decided is one
partly of fact and partly of [*625] legal presumption arising
from facts. There is in this case no declaration of intention
either way, and no evidence of intention beyond what may be
collected from the testator’s acts. The first point to be considered is
the domicil of origin, because if it can be shewn that before he
took up his abode in Englandthe testator’s domicil of origin was
Scotch, the burden of proof that he changed it lies on the
Defendant Colonel Douglas. It is also important for the
Plaintiff to establish a Scotch domicil of origin if she can,
because the tenacity of a domicil of origin is greater than one
which has been acquired: Lord v. Colvin (1); Moorhouse
v. Lord (2); Whicker v. Hume (3); Munro v. Munro
(4 ); In re Capdevielle (5); Aikman v. Aikman (6);
Donaldson v. M’Clure (7). Some criticism had been made on
the language of Lord Kingsdown in Moorhouse v. Lord, but
it extended only to the expressions used and not to the meaning. It is the common case of both parties
that a man can have but one domicil: Somerville v. Somerville
(8); and that the parents of an infant have power to change his
domicil by changing their own: Johnstone v. Beattie (9). [The VICE-CHANCELLOR:– It seems
doubtful whether a guardian call change an infant’s domicil. The
difficulty is that a person may be guardian in one place and not
in another.] The domicil of origin of the testator
was that of his father Robert Douglas: Patris originem
unusquisque sequitur: Cod. b. x. t. 32, l. 36. Now the domicil
of origin of Robert was unquestionably Scotch. The Defendant
Colonel Douglas is therefore bound to shew that Robert Douglas,
by accepting and holding a clerkship in the Home Office, from
1792 to 1802, and by his partial residence in England during
that period, changed his Scotch domicil to an English one. But
it is well settled that the servants of the Crown do not by
their change of residence, necessitated by the duties of their
office, thus change the domicil: (1) 4 Drew. 366, 422. (2) 10 H. L. C. 272, 286, 288 – 291. (3) 7 Ibid. 124. (4) 7 Cl. & F. 842. (5) 2 H. & C. 985. (6) 3 Macq. 854. (7) 20 Court of Sess. Cas. (2nd
Series) 307. (8) 5 Ves. 750. (9) 10 Cl. & F. 42, 133. [*626] Attorney-General v. Napier
(1); Warrender v. Warrender (2); Brown v. Smith
(3); Udny v. Udny (4). Even assuming Robert Douglasto
have gone to England, not to hold an office under the Crown, but
to gain a livelihood, his domicil of origin would have remained
unchanged: Jopp v. Wood (5). But suppose the testator’s domicil of
origin to be English; he was taken to Scotland by his parents at
an early period, was brought up and educated by his parents in
Scotland on his father’s hereditary property, and thereby
acquired for himself a Scotch domicil, which he retained till
his mother’s death in 1857: Arnott v. Groom (6);
Scrimshire v. Scrimshire (7). Then what was the effect on his
domicil, whether of origin or acquired, which was produced by
his residence in England from 1857 to 1869. Nothing occurred
during that period to warrant a presumption that he intended to
change his domicil, or, upon the principle laid down in the
authorities, to work a change. Suppose it were proved that his
intention was to remain in England during his wife’s life, that
would not be sufficient to work a change in his domicil, whether
of origin or acquisition: Donaldson v. M’Clure (8). Having a house and establishment in
one country is perfectly consistent with a domicil elsewhere:
Munro v. Munro (9); Bell v. Kennedy (10); In re
Capdevielle (11); Udny v. Udny; Aikman v. Aikman
(12); Moorhouse v. Lord (13); Somerville v.
Somerville (14). The Defendants rely on certain
expressions of the testator, such as these: “I am a residenter
in England,” and, “I find Brigtondismally dull;” but mere
expressions at different times of preference of one country over
another, even if these amounted to so much, are not sufficient
to effect a change of domicil: Moorhouse v. Lord (15);
Forbes v. Forbes (16). Even the purchase of a place (1) 6 Ex. 217. (2) 2 Cl. & F. 488, 528-9. (3) 21 L. J. (Ch.) 356. (4) Law Rep. 1 H. L., Sc. 441. (5) 28 Beav. 53; S. C. on motion for
rehearing, 3 N. R. 404. (6) 9 Court of Sess. Cas. (2nd
Series) 142. (7) 2 Hagg. Consist, 395-405. (8) 6 Jur. (N.S.) 407; S. C. 20 Court
of Sess. Cas. (2nd Series) 307. (9) 7 Cl. & F. 842, 880. (10) Law Rep. 1 H. L., Sc. 307. (11) 2 H. & C. 985. (12) 3 Macq. 854. (13) 10 H. L. C. 272. (14) 5 Ves. 750, 764. (15) 10 H. L. C. 272, 288. (16) Kay, 341, 364. [*627] of residence in England would not of
itself be conclusive: Hodgson v. De Beauchesne (1). There being no declaration of
intention by the testator, the Court must look at his acts and
conduct, and the fair inference from these is that, though for
obvious reasons he remained absent from Scotland for a time, his
purpose was, so soon as his friends should become reconciled to
his marriage, to return to Brigton. It is impossible in this
case to find any point of time when the testator can be said to
have determined to fix his home in England; and without that
evidence, direct or implied, mere residence is immaterial. So
far from there being that evidence here the weight of the
evidence is the other way. Down to the last the testator held
public offices in Scotland. His last cheque was signed “William
Douglas, of Brigton.” The envelope containing his will was
endorsed “William Douglas of Brigton.” His persistent refusal to
let Brigton except for short terms can only be accounted for by
the hypothesis, corroborated by his whole conduct, that he
intended, probably at no fixed period, but when opportunity
offered, to settle finally in Scotland on his paternal
inheritance. Having regard to the whole case the
declaration of the Court ought to be that the testator at the
date of the birth of his eldest son, of his will, and of his
death, was domiciled in Scotland. [They also cited Birtwhistle v.
Vardill (2); Crookenden v. Fuller (3); Potinger v.
Wightman (4); In the Goods of Donaldson (5); Vattel
by Chitty (6); Scott v. Bentley (7). On the question, whether the will
would pass real estate in Scotland, the following authorities
were referred to: Maclaren on Wills(8); Bell’s Principles(9);
Purvis v. Purvis (10); Statutes 19 & 20 Vict. c. 89, 31 & 32
Vict. c. 101, s. 20; White v. Finlay (11); Leslie v.
Macleod (12); Howden v. Crighton (13).] (1) 12 Moo. P. C. 285. (2) 7 Cl. & F. 895. (3) 1 Sw. & Tr. 441. (4) 3 Mer. 67. (5) 2 Curt. 386. (6) Page 100. (7) 1 K. &. J. 281. (8) Vol. i. p. 42, s. 79. (9) Fol. 1637. (10) 23 Court of Sess. Cas. (2nd
Series) 812. (11) 24 Ibid. 38. (12) Law Rep. 2 H. L., Sc. 44. (13) 1 Court of Sess. Cas. (1st
Series) 18. [*628] Mr. Joshua William, Q.C., and Mr.
Thrupp, for the Defendants the younger children of the
Plaintiff, left the question of domicil to the Court. Mr. Marten appeared for the trustee
Webster, a Defendant in the original and cross suits, but took
no part in the argument. Mr. Dickinson, Q.C., and Mr. Jackson,
for the Defendant, Colonel Douglas:– The suit is improperly framed, and in
this form cannot be maintained. The Plaintiff is a specific
legatee, and can only maintain a suit for general
administration, on an allegation that the funds are in peril,
which she nowhere avers. The Plaintiff, however, asks general
administration, no foundation being laid for it: “that all
questions of election and collation may be determined” in which
she has no interest. The bill alleges that she is entitled to
her terce of real and third of personal estate, both in
Scotland, under her widow’s title of jus relicti; but the will
which she seeks to have administered declares that the provision
made for her thereby shall be in lieu of all dower or thirds.
This is not a question of election, therefore, so far as the
Plaintiff is concerned, but of conditional gift. If so, the Plaintiff can have no
interest in any question of domicil, and cannot maintain a suit
to have it determined; neither can she file a bill to have
determined any question of election. She does not claim under a
testamentary disposition an estate which was not the property of
the testator, nor does she seek by this bill to make the person,
whose estate the testator has affected to dispose of, make an
election. She claims by Scotch law her terce of the testator’s
real estate, what in England would be called the legal estate in
her terce. Even if the land were in England, she could not
maintain a suit for this purpose, except for the peculiar
jurisdiction exercised by this Court in cases of dower and
partition. [The VICE-CHANCELLOR:– In Penn v.
Lord Baltimore (1) the real estate of which partition was
sought was in America.] But relief was sought there under the
peculiar jurisdiction as to partition. (1) 1 Ves. Sen. 445; 2 Wh. & T. L. C.
1st Ed. p. 664. [*629] It has been argued that the Plaintiff
may file a bill to have the value of the property ascertained,
with a view to her election; but even if such a suit could be
maintained, that is not the object sought here, which only
contemplates the collation and election between the infants. The
Plaintiff has no interest in such election. There is nothing she
can bring into hotchpot. It has been argued, also, that this
Court will assist a person not having a legal title to ascertain
the condition of the property with a view to electing; but even
if this be so, it can only be on a bill specifically framed for
this purpose, which this bill is not. But is that the law? Mr.
Swanston, in his note in Dillon v. Parker (1), discusses
the question, and from his view it would seem that the person to
elect is not the person to file the bill. [The VICE-CHANCELLOR:– Mr. Swanston
shews that election is as much a legal doctrine as a doctrine of
this Court; but that it is this Court which fixes the time for
electing.] Brodie v. Barry (2) is the
case relied on in support of a Plaintiff’s right to file a bill,
in order to enable him to elect; but it is no authority at all.
The bill was filed in that case by nephews and nieces of the
deceased, to compel the heiress-at-law to elect. The converse
proposition does not follow, nor is there any clear decision in
support of such doctrine. [The VICE-CHANCELLOR:– It is a point
of general importance. Butricke v. Broadhurst (3) seems
to apply.] The marginal note in that case is,
that a party having a right to elect may file a bill to have the
property cleared is order to elect to advantage. That proposition is too general. In
Butricke v. Broadhurst the Plaintiff was the person to
make the election, but the bill was not filed for that purpose,
but to have the benefit of the estate. The question of election
was raised against him, whether after what had happened he must
not be held to have elected. That case, therefore, does not help
the Plaintiff here. The next point is as to the
sufficiency of the will to pass real (1) 1 Sw. 381, n. (2) 2 V. & B. 127, 130. (3) 3 Bro. C. C. 88; 1 Ves. 171.
[*630] estate in Scotland; but it is not
properly raised by the bill, and need not be argued on this
occasion. The main question is as to the
testator’s domicil, and it has been contended that the objection
as to entertaining this question on the Plaintiff’s bill is
cured by the cross bill; but it is not necessary to ascertain
the question of the testator’s domicil at the date of the birth
of the first child to make such decree as is sought by the cross
hill. The question, however, being before the Court, the
Defendant does not shrink from the argument. It has been argued that the place of
birth and place of death do not affect the question. This may be
true as to place of birth, but is not true as to the place of
death, because without evidence to rebut the inference, the
place of death is the place of domicil, and the onus probandi
lies on those who would fix it elsewhere: Williamson
Executors (1). The definition of domicil is
difficult, and has often been attempted without success: perhaps
the best is that given by Sir Robert Phillimore in his treatise
on Domicil (2), in which he discusses an American decision –
Guier v. O’Donnel (3). These passages are applicable to the
case of domicil both of the testator and his father Robert
Douglas. A brief examination of the authorities will, in
connection with the evidence here, shew that the domicils of the
father and the testator were both English. The first case to be
considered is Bempde v. Johnstone (4), find as to that
the first observation that occurs is that the marginal note is
too general to be of much value. On referring, however, to the
Lord Chancellor’s judgment, which states the facts on which it
proceeds, he considers that domicil is more a question of fact
than of law, and in examining the facts he lays less stress on
the place of birth than on the place of residence, “and where
the links were to be found which attached the testator to
society, such as wife and children.” Applying that principle to
the present case, all the evidence indicated England as the
domicil of the testator. Then take the case of Forbes v.
Forbes (5) which was cursorily (1) Page 1199, 3rd Ed.; p. 1403, 6th
Ed. (2) Paragraph of the smaller work,
180. (3) Paragraphs 198, 226, 256, 258,
264, 269. (4) 3 Ves. 198. (5) Kay, 341. [*631] mentioned on the other side. That
case was determined on a number of what have been called
equivocal circumstances, among which were the marriage and
necessary establishment of the testator. It is common ground
between the Plaintiffs and Defendant that there can only be one
domicil, and that an infant cannot change his domicil. In the result, the Court gave effect
to the English domicil, and deprived the Scotch wife (the true
wife) of a considerable part of the property. Then comes the case of Udny v.
Udny (1), which has been much relied on by the other side,
as shewing that before a new domicil can be acquired there must
be some act to relinquish the old one; but that case is really
an authority in our favour. When the testator came to England he
gradually loosened and finally dissolved the ties that connected
him with Scotland, and by his marriage and the establishment he
set up for his wife and family, and the provisions he made for
his widow’s residence in this country, shewed in the clearest
way his intention of settling in England. It is not necessary,
on the authority of Udny v. Udny, for him to abandon his
character as a Scotch proprietor; because, as Lord Westbury
pointed out in that case, political status and domicil are two
distinct things. Then follows the very important case
of Haldane v. Eckford (2); important both because the
facts were very similar to the facts here, and also as
explaining and putting on a proper footing the decision in
Moorhouse v. Lord (3), where certain loose expressions
occasioned some misconception as to the state of law, and which
also ran through the decisions in two other cases, In re
Capdeville (4) and Attorney-General v. Countess de
Wahlstatt (5). In Haldane v. Eckford, which
bears here a great resemblance to this, particularly as to the
preparation of a will which in Jersey would be valid but invalid
in England, the Vice-Chancellor said the rule laid down in
Udny v. Udny must be considered as differing from that laid
down in In re Capdeville and Attorney-General v.
Countess de Wahlstatt, following Moorhouse v. Lord,
where occurred (1) Law Rep. 1 H. L., Sc. 441. (2) Ibid. 8 Eq. 631. (3) 10 H. L. C. 272. (4) 2 H. & C. 985. (5) 3 H. & C. 374. [*632] the unfortunate expression of exuere
patriam. The case of Haldane v. Eckford (1), in which the
decision established the Jersey domicil, is a clear authority in
the defendant’s favour. Aitchison v. Dixon (2), also a
decision of the same Judge, is important, as shewing the weight
to be attributed, in determining a man’s domicil, to the
circumstance of his having an establishment for his wife and
family in a particular place. The Vice-Chancellor, in his
judgment, said that the circumstances brought the case within
the principle of Forbes v. Forbes (3), and made it even
stronger. Upon these authorities the fair conclusion must be,
that both Robert the father and the testator had an English
domicil. The testator’s mother was an
Englishwoman, and her property in the English funds greatly
exceeded the value of the testator’s ancestral property in
Scotland. From his mother’s death in 1857 he gradually weakened
the ties that bound him to Scotland, and at length, by his
marriage and the birth of his children, and his establishment in
England, his abandonment of the rooms he held at Brigton, and
his disposition of the hereditary property in favour of his
nephew, he severed them altogether. Of the eleven things which
Sir Robert Phillimore (4) puts as tests, where they exist in
this case, most are in favour of a Scotch domicil. The first,
birth or origin, may be arguable, but the weight of the evidence
is in favour of an English birth and origin. The next, oral or
written declarations, there are none in this case. He signed
himself “Douglas of Brigton” but that might be by way of
distinction from other Douglases. The next mentioned by
Phillimore, the place of death, is of course English. The next,
the residence of his wife and family, is also English, and in
this respect this case is stronger than Forbes v. Forbes
and Aitchison v. Dixon, because the desire of the wife,
which was referred to as an important element in the latter
case, is here acquiesced in, if not originated by, the husband.
The next point, trade or pursuit, does not enter into this case.
The next, the depositing of documents and papers, hardly applies
here, because the papers relating to the Scotch property were in
Scotland, and those relating to the English property were in
England. The importance which attaches in some of the (1) Law Rep. 8 Eq. 631. (2) Ibid. 10 Eq. 589. (3) Kay, 341. (4) Page 100. [*633] cases to the site of the family
mansion is here removed, because it was let to a tenant, and the
residence of the testator was elsewhere. The next article is,
descriptive or legal documents; but here again, where the
testator was dealing with Scotch property, being in Scotland, he
described himself as Scotch, but when with English property,
here in England, he described himself as English; and where in
his will he is dealing with both English and Scotch property he
described himself as of both. Then follows possession and
exercise of political rights; but this testator, though
appointed a Commissioner of Supply and of Roads, never appears
to have acted in these capacities; he aided in endowing a
church, it is true, but he simultaneously wrote to give up his
pew on the ground that he was no longer a “residenter.” The next
point, the possession of real estate, has already been noticed.
The last point enumerated by Phillimore, length of residence and
lapse of time, is always important: the testator, in this case,
left Brigton in 1863, and except that he made occasional visits
to Scotland for short periods, remained in England till his
death. In some of the cases the period of time was ten, fifteen,
and even twenty years; but, though in this case the lapse of
time is not great, yet coupled with the family connection, the
establishment in England, and the complete settlement in
England, it is sufficient to shew that the animus went with the
factum, and proves an English domicil. There is another
circumstance, the purchase of a grave, which, though not
conclusive of itself, according to Hodgson v. De Beauchesne
(1) must and will have great weight in determining this case. With reference to the cases cited on
the other side it may be enough to point out that the
Plaintiff’s case is mainly based on dicta in Moorhouse v.
Lord (2), which are practically overruled by Udny v. Udny
(3). Upon the facts proved in the case and
on the principles laid down in the authorities, an English
domicil is established. Story’s Conflict of Laws (4);
Pusey v. Desbouverie (5); Hoskins v. Mathews (6); and
Thomson v. Advocate-Genera l(7), were also cited. (1) 12 Moo. P. C. 285. (2) 10 H. L. C. 272. (3) Law Rep. 1 H. L., Sc. 441. (4) Sections 41, 46. (5) 3 P. Wms. 315. (6) 8 D. M. & G. 13. (7) 12 Cl. & F. 1. [*634] Sir Roundell Palmer, in reply:– Two points have been made in
opposition to the Plaintiff’s claim: first as to the frame of
the suit, and secondly as to the testator’s domicil. It has been
contended, too, that the Plaintiff has already elected; but that
proposition is wholly unsustainable, as election can only be
established upon evidence that the person whose acts are said to
be an election possessed full knowledge of the subject matter:
Streatfield v. Streatfield (1), and the cases there
cited. Even admitting that the rule is too
broadly laid down in Dillon v. Parker (2) it is
impossible to dispute the jurisdiction of the Court to assist
the Plaintiff as against the residuary legatee, who has filed a
cross bill to have the domicil determined, on which depends the
Plaintiff’s right of election. Then arises the question of domicil,
both of Robert the father and the testator. As to the father, it is now well
settled that to hold an office under the Crown requiring absence
from the holder’s native country does not change his domicil.
There is no analogy between cases like the present and the
decisions as to Anglo-Indian domicil. Nor would those decisions
be followed now. It used to be held that an Englishman who
entered into the covenanted service of the East India Company
had bound himself for life; but a case of that kind is peculiar
and has no application to others. It is well settled that
residence in another country does not change a man’s domicil
where it is in the consular service: Sharpe v. Crispin
(3); or in the military service: Hodgson v. De Beauchesne
(4); or in the judicial service: Attorney-General v. Rowe
(5). The Defendants rely on the passages cited from Phillimore
on Domicil; but it is quite clear that the learned author
changed his mind. There is in this case no declaration
of intention; but all the probabilities are that the testator
did not intend to change his domicil, which he knew must have
the effect of bastardizing his eldest son. If this result, which
must have been known to the testator as a Scotchman, be compared
with the evidence on which (1) 1 Sw. 447; 1 Wh. & T. L. C. 1st
Ed. p. 248; 3rd Ed. 303. (2) 1 Sw. 381, n. (3) Law Rep. 1 P. & D. 611. (4) 12 Moo. P. C. 285. (5) 1 H. & C. 31. [*635] the Defendant relies, that he let for
a short term his Scotch mansion and took a lease of a small
house in England quite inadequate to his position, the
conclusion in favour of the Plaintiff is inevitable. The burden
of proof lies on the Defendant to shew his intention to change
his domicil of origin. It has been contended, that the
testator’s wife and children being resident in England the
burden lies on the Plaintiff; but that is clearly a mistake:
Forbes v. Forbes (1); Phillimore on Domicil(2). To establish
a change of domicil of origin it is necessary to shew that the
person whose domicil is in question intended to change his
domicil, as distinguished from his nationality and allegiance:
Attorney-General v. Countess de Wahlstatt (3);
Moorhouse v. Lord (4). The cases of Aitchison v. Dixon
(5) and Haldane v. Eckford (6) have no application to
this case, which is peculiar in its circumstances. Upon the whole, the testator’s
domicil has been shewn to be Scotch by origin and birth, and the
necessary consequences must follow. July 17. SIR JOHN WICKENS, V.C.:– William Douglas, the testator in
these causes, died in Englandon the 16th of February, 1869,
leaving a widow, Ellen Douglas, and three children by her; one
of whom, William Charles, 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. His will, in the
English form, is dated the 21st of December, 1868. By it, the
testator, after revoking all wills and testamentary dispositions
by him theretofore made, gave to his widow his plate, furniture,
wine, carriages, and horses, and stable and garden utensils, and
his balance in the hands of his bankers, Messrs. Coutts & Co.
And he bequeathed to his nephew Colonel Douglas, and Patrick
Webster, whom he appointed executors, the leasehold house at
Putney, in trust, to allow his widow to reside in (1) Kay, 341. (2) Passim. (3) 3 H. & C. 374. (4) 10 H. L. C. 272, 292. (5) Law Rep. 10 Eq. 589. (6) Ibid. 8 Eq. 631. [*636] it; and after her death either to
retain it as a residence for his children till the youngest
should attain twenty-one, or to sell it, and hold the proceeds
on the same trust as a legacy of £10,000 mentioned afterwards,
with a proviso that it might be sold, with the widow’s consent,
in her lifetime; in which case she was to receive the income of
the proceeds during her life, and the capital, afterwards, was
to go as the £10,000. The testator further directed his
executors to retain or provide out of his estate £3 per cent.
stock equivalent to £7200 sterling, and pay the income to his
widow for life; afterwards it was also to go as the £10,000; and
he bequeathed to his executors £10,000 sterling, in trust for
and to be equally divided among his children who should attain
twenty-one, with the provisions for advancement, maintenance,
and accumulations which are usual in similar cases. If no child
of the testator’s should attain twenty-one, the funds were to
fall into the residue. The testator declared that the provisions
made by his will for his wife should be taken by her in lieu,
and bar, and in full satisfaction of all dower and thirds, and
other 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 vesting in, or
owing to him at the time of his decease. But always with and
under the burden of all his just debts, death-bed, 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 assignees,
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 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 [*637] and
settlement; by which he gave, granted, disponed and assigned to
and in favour of Colonel Douglas, and his heirs and assignees,
an estate at Brigton, in Forfarshire, worth, it seems, about
£400 a year; the only remaining portion of a family estate of
considerable importance which had belonged to his ancestors. The
testator seems to have had other heritable estate in Scotland,
viz., 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 £45 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, 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 her heritable estate
on 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 in Butricke v. Broadhurst (1), whose dictum
has been adopted by Mr. Swanston in the note to 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 perhaps not universally, true that a
person for whose benefit conditions will be imposed by the Court
before it makes an order against him, can (1) 1 Ves. 172. (2) 1 Sw. 381, n. [*638] 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 has devolved on the infant heir, who is
before the Court, and makes no opposition. And Colonel Douglas
has himself 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 that right, to direct
such inquiries 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 [*639] 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 principally 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
sixteen 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 £300 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'sfather 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, [*640] when he was forty-three, 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 feasible. But it
is not necessary for the present purpose to determine more than
that, on the 4th of 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 twenty,
and continued in it till he was thirty, 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 latter time he was the heir-expectant of a large Scotch
estate not yet encumbered, and which might never have been
encumbered had his father died before 1804. His near relations
were Scotch, and settled in Scotland, and it may be inferred
that he was much attached to them. Either at the time of his
marriage or at a time a little before it he certainly looked on
Brigton as his home. It seems impossible to infer a deliberate
intention of changing all this because when in some pecuniary
distress, and tired probably of an occupation in which he rose
very slowly, he married an English widow with a good jointure,
while the much larger means which he might expect to succeed to
were then in a state of expectancy. Therefore the testator’s domicil of
origin was, I think, Scotch, though he was probably born in
England; and the question arises whether this continued till his
death or not. The testator’s personal history may
be shortly stated as follows. At the death of his father, which
took place on the 2nd of August, 1835, he was just thirty-two
years old. Up to that time he had [*641] from the age of
thirteen or fourteen, 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 decreased by the sale of a further portion of it to
Lord Strathmore, at the price of £18,000; 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 immediate or whole expense of the indoor
establishment, the son living with her and managing the farm,
which was his own property, and was kept in hand. In 1846 Mrs.
Douglas bought a house at Broughty Ferry, which is a seaside
place on the Firth 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. He
occasionally visited England, and his visits seem to have been
generally or always short ones. This state of things continued
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 seaside 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 [*642 Terrace, Kingsland Road, to which,
before the end of 1860, he removed with the Plaintiff in the
original suit, then Miss Ellen Rigge, and where 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 Sommers 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 at Sommers Cottage, and there, on the 18th
of September, 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 with reference to the execution of a trust
disposition of his heritable estate in favour of his nephew,
Charles 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 argued 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 lie 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 [*643] 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 twelve, or thirteen 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 be hardly
lighter than if it had been Scotch, as I hold it to have been.
In any case the onus of shewing a 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 he must be shewn to
have intended. 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 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 as, for purposes of civil status, a citizen of one
country, and to assume a position as, for the like purposes, the
citizen of another. This stricter view is supported by opinions
of great weight, amongst others by the Lord President in
Donaldson v. McClure (1); that of the Lord Chief Baron
Pollock in Attorney-General v. Countess de Wahlstatt (2),
and by some expressions used by the late Lords Cranworth and
Kingsdown. And it would be an extremely convenient one, since
if, for the purpose of shewing that a man had changed his
domicil, it were necessary to shew that the notion of a change
of the civil status had occurred to his mind and been accepted
by his will, the attempt would in most cases fail. Few men think
of or wish for a change of civil domicil as such, except,
perhaps, in certain cases where a man desiring to change his
political domicil contemplates the change of civil domicil as (1) 20 Court of Sess. Cas. (2nd
Series) 307. (2) 3 H. & C. 374. [*644] involved in it, and occasionally
where the object of the change is to escape into a freer
condition of marriage law. And cases like Haldane v. Eckford
(1), where the change of civil status can be shewn to have been
recognised and accepted by a person who had no special reason to
desire it, and probably did not desire it, are very rare indeed.
The stricter rule would, therefore, in the great majority of
cases, leave the domicil to be governed by origin, which, it
seems to me, would be in every respect a convenient view. In
this case, if I considered the stricter rule as law, I should
have no difficulty whatever in holding that the testator never
changed his domicil. I feel sure that the idea of changing his
civil status from that of a Scotchman, under Scotch law, to that
of an Englishman, under English law, never occurred to him, and
that if it had occurred to him he would have repudiated it.
Probably the question as to his eldest son’s legitimacy would of
itself have been conclusive on this point. But I cannot satisfy myself that the
stricter rule, as I have called it, can be considered as the law
of England. It never was I believe the law of any other country,
except perhaps Scotland, or recognised as law by any of the text
writers of European authority who have dealt with questions of
domicil, and it is difficult to believe that the law of England
has drifted so far from the general principles on which it
professed to be founded and which it always professed to follow.
It seems to me, as it did to Vice-Chancellor James, in
Haldane v. Eckford, that the intention required for a change
of domicil, as distinguished from the action embodying it, is an
intention to settle in a new country as a permanent home, and
that if this intention exists and is sufficiently carried into
effect certain legal consequences follow from it, whether such
consequences were intended or not, and perhaps even though the
person in question may have intended the exact contrary. The
case of a person wishing to settle permanently in a country
different from that of his domicil, but to retain, as regards
testamentary and matrimonial matters, and as regards civil
status generally, the law of the country that he leaves, may
have rarely arisen and is perhaps not likely to arise. When it
arises, if it ever should arise, the determination ought, I
think, to (1) Law Rep. 8 Eq. 631. [*645] be, that the intention was sufficient
to warrant a conclusion in favour of a change of domicil. It
may, perhaps, be added, that to prove such an intention as is
necessary to establish a change of domicil, and in the absence
of evidence that the intention actually existed (which can be
shewn by express declaration, and in no other way) the evidence
must lead to the inference that if the question had been
formally submitted to the person whose domicil is in question,
he would have expressed his wish in favour of a change. Possibly
where the actual residence in the acquired domicil has been very
long an unconscious change of mind may be inferred, though it
may be doubtful whether it would have been declared or admitted
if the question had been actually raised. Such unconscious
changes of opinion on the most important subjects happen not
unfrequently in such a space of time as the thirty-two years
residence in England, which occurred in Udny v. Udny (1).
But in cases not involving a very long time, I apprehend that in
order to establish a change of domicil it must be shewn that the
intention required actually existed, or made reasonably certain
that it would have been formed or expressed if the question had
arisen in a form requiring a deliberate or solemn determination. What, therefore, has to be here
considered is, whether the testator William Douglas ever
actually declared a final and deliberate intention of settling
in England, or whether his conduct and declarations lead to the
belief that he would have declared such an intention if the
necessity of making his election between the countries had
arisen. Any suggestion as to unconscious change in a long space
of time can hardly apply to this case. For it seems impossible
to date his supposed intentions of change of domicil before his
marriage and the first letting of Brigton house, both of which
events occurred in the latter half of 1863, and therefore less
than six years before his death. In these six years his
connection with Scotland was no doubt lessened; and it seems to
me far from impossible that if he had lived longer it might have
ceased altogether. Throughout 1864 he resided in England, and in
June of that year he gave up his pew in the Episcopal chapel
which he had attended while living in Scotland. In (1) Law Rep. 1 H. L., Sc. 441. [*646] January, 1865, his second child was
born; in the same year he agreed to grant an additional term of
three years to the tenant of Brigton house (in which he still
reserved rooms), and thought of buying, but did not buy, a
freehold estate at Harrow. In December of the same year he
bought the long leasehold house at Putney, which he afterwards
bequeathed to his widow. This house he bought for the express
purpose of making it a jointure house, and without any intention
of living in it himself. The year 1865 was remarkable also as
the last year in which he visited Scotland. In 1866 his third
child was born, and he removed to a house in Streatham, which,
in the next year, 1867, he took for a term of little over five
years. In the latter year, 1867, he meditated, but did not
complete, another purchase of freehold land in England, and
closed the banking account which he had up to that time kept at
the Royal Bank of Scotland. In the same year certain
circumstances occurred which were much relied on by the
Plaintiff in the cross suit, but which, when duly considered,
seem of no weight. The testator was an habitual maker of wills,
and in 1867 he made one, the seventh or eighth I think, of which
there are traces. While making this, which was in the English
form, a well-founded doubt occurred to him whether it would pass
his real estate in Scotland, and being advised that it would not
do so, he, on the 19th of September, 1867, executed the trust
disposition of Brigton under which Colonel Douglas claims. This
circumstance was relied on in argument as bringing the case
within Haldane v. Eckford (1), where a testator’s
recognition of himself as being under the law of Jersey, for
certain testamentary purposes, was held tantamount to a
declaration that he had intended to acquire, and considered
himself to have acquired, a Jersey civil domicil. But the
argument entirely fails. A domiciled Scotchman can, according to
Scotch law, and independently of the Act 24 & 25 Vict. c. 114,
which in 1867 had been some years in force, make a valid will as
to moveables, if he does so according to the forms of the
country in which he is resident; and if this be kept in mind,
the inference that the testator considered himself a domiciled
Englishman, because he considered it clear that his moveable
property would pass by an English will, (1) Law Rep. 8 Eq. 631. [*647] appears to fail altogether. To revert
to the narrative of the testator’s life, he seems, in 1868, to
have relaxed still further his hold on Brigton by giving up part
of the rooms which he had reserved to himself in the house, and
transporting to England or selling some of the furniture which
remained there; and in June of that year he agreed to grant to
the tenant a further term of three years from Whitsuntide, 1869.
On the 16th of February, 1869, he died. I have mentioned, I believe, the
principal circumstances which are relied on as evidence that the
testator, on or after 1863, changed his domicil from a Scotch
one to an English one. There is no allegation of any declared
intention on his part to settle finally out of Scotland. If
anything, the evidence of declarations, though in no way
conclusive, seems to me the other way. The change must be
established, if at all, as an inference from facts, and without
the important element of any such lapse of time as can, for the
present purpose, be considered a long one. It seems to me that,
when carefully looked at, the facts do not warrant the inference
which, on behalf of Colonel Douglas, it is sought to draw from
them. The circumstance of the alleged domicil being the
residence of the testator’s wife and children has been much
relied on in Forbes v. Forbes (1), and other cases,
though the supposed rule that a man will be considered as
domiciled where his wife and children permanently reside, which
is referred to in the head-note in Aitchison v. Dixon
(2), seems not to be established by the judgment in that case,
or by Forbes v. Forbes, and is hardly to be reconciled
either with the general tenor of the authorities, or with
principle. And it may not be immaterial to remark, that the
relation between the testator in this case and his wife and
children was not quite the normal one, so that the general rule,
if it existed, might not apply quite as strongly as in ordinary
cases. He certainly had some hesitation in introducing his wife
to his family in Scotland as his wife; and there is evidence
that he never considered either of his sons, though the younger
one was undoubtedly legitimate, as his heir in the sense of
being the person to succeed to the Brigton estates, and be the
Scotch head of his own branch of his ancient family. The fair
inference from the (1) Kay, 341. (2) Law Rep. 10 Eq. 589. [*648] facts seems to be that, though the
testator intended his wife to live in England after his death,
which (considering the disposition of his Scotch property) was
the natural arrangement, he had not, at least up to the date of
his last will, definitively abandoned the idea of returning to
Brigton himself, and believed that after a certain time, and
possibly a tentative visit or two, he might do so with Mrs.
Douglas and his children; so that, in fact, he never
contemplated England as the site of his ultimate matrimonial
home if his life and his wife’s were prolonged. That he was a
man accustomed to change his mind appears from his numerous
wills, and indeed from his whole history. It is clear that he
did not consider any of the places which he successively
occupied in England as his settled and ultimate home. Though all
the places which he took active steps to buy were in England,
there seems no reason to doubt, and some reason for believing,
that even if he ultimately abandoned Brigton, he would have
availed himself of any very favourable opportunity that offered
itself of buying a place of residence in some other part of
Scotland. That he wished to make, in some place which he never
discovered, a home more permanent than he possessed after
Brigton ceased for a time to be his home, seems clear. That he
tried in vain to find it in England seems also clear. But it is
not clear that he had made up his mind to find it there, and
there only. 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 permanently, 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 undecided on the point which is now in question. 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. [*649] If this be the true conclusion, the
widow had originally a right to elect between her rights as a
Scotch widow and her rights under the will. That she made no
binding election before filing the bill seems to be clear,
having regard to the principles on which the Court deals with
such elections. And the bill, which was obviously not intended
as an election, cannot be treated as amounting to one. The decree must, I think, be made in
both suits, and will be substantially according to the minutes
prepared on behalf of the Plaintiff in the original suit. But it
will be better to place first the declaration as to domicil, and
let the account and inquiries follow.
S
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