Bempde v. Johnstone. Graham v. Johnstone.

HIGH COURT OF CHANCERY

Original Eng. Rep. version, PDF

Original Citation: (1796) 3 Ves Jun 198

English Reports Citation: 30 E.R. 967

June 12th, 1796.

Bempde v. Johnstone. Graham v. Johnstone. June 12th 1796.

The personal property of an intestate, wherever situated, must be distributed by the law of the country, where his domicil was ; which is prima facie th e place of his residence : but that may be rebutted and supported by circumstances.

George, late Marquis of Annandale, died in 1792, intestate, without issue, and a lunatic. The question, upon which these causes were instituted, was, whether his personal property, which was very considerable, should be distributed according to the law [199] of England or of Scotland. Sir Richard Johnstone Vanden Bempde and Charles Johnstone, half brothers of the Marquis on the side of his mother, and Lady Christian Graham, only surviving issue of Henrietta, late Countess of Hopetoun, half siater of the Marquis on the side of his father, were his next of kin by the law of England; and Lady Christian Graham alone was entitled by the law of Scotland. The material facts were these. William, Marquis of Annandale, in 1718, his first wife having died in 1716, married the daughter of Vanden Bempde; and by her had two sons George and John. He was one of the sixteen peers elected to represent the peerage of Scotland. After his second marriage he never returned to Scotland; but lived at Whitehall and Ashsted in houses, which he rented. He died at Bath in 1721. Upon the death of his eldest son James, in 1730, George, his eldest son by the second marriage, succeeded to the title. He was born in 1720 at his father's house in London. He continued there, till he was sent to Eton ; where he remained till 1734 ; except in the vacation ; when he visited his mother in London. Leaving Eton he went abroad, and continued abroad in different places till 1738; when he returned to London; whence in a few days he went to Scotland. He continued there a little more than a month ; then returned to London; remained there about two months; and then went abroad. He continued abroad in different places till December 1739; when he returned to England; and he remained in London till April 1740. Then he went to Scotland. The beginning of October he returned to England. In May 1741, he again went to Scotland : he returned to England about the middle of July; and in January 1742, he went abroad. In November he returned to England ; and remained there till December 1743 ; except that he was in Paris a fortnight or three weeks in that year. In December 1743, he went abroad. In the middle of April 1744, he returned to England ; and remained there till his death. In 1747 a commission of lunacy issued against him; and he was found a lunatic from December 1744:. By the will of his maternal grandfather Vanden Bempde a very narrow allowance was given to the Mar¡quis and his brother, till they should attain the age of twenty-three ; and, after either had attained that age, the trustees were directed to settle the estates upon such of them, as they should think fit, and his heirs male ; and in default of appointment they were devised to Marquis George and his issue male in strict settlement, with several remainders over. The [200] trustees making no appointment, the Marquis became entitled under that will to the estates devised, including Hackness Hall in Yorkshire and a house in

968 BEMPDE V. JOHNSTONE 3 VES. JTTN. 201.

Pall Mall. He did not become possessed of property in Scotland till 1733 or 1734 after a long litigation with the Hopetoun family upon the effect of a settlement by Marquis James. The journey of Marquis George to Scotland in 1741 was for the purpose of procuring his brother to be elected member of parliament for the boroughs near his estate : upon the two other occasions he went on visits to his mother and others. He lived in lodgings and ready-furnished houses on account of his narrow income.

A great deal of evidence from the Marquis's letters was produced to shew his pre¡ference of the one country to the other. The arguments, which took up the greater part of Hilary Term, went very much at large into the learning of the civil law as to the domicil of the Marquis and his father. Bruce v. Bruce, Lashley v. Hogg, and Balfour v. Scott (stated in Somermlle v. Lord Somervtile, 5 Ves. 750 ; 6 Bro. P. C. 550, 577 ; 7 Bro. P. C. 5G6), all before the House of Lords, were cited.

Lord Chancellor [Loughborough]. The great value of the property and the con sideration of the parties produced in this case a large field of argument; and I am much obliged to the Bar for their great ingenuity, and the great research, they made. I do not recollect ever to have heard with more satisfaction an argument carried on upon any point. I do not go into the detail of it; not from any disrespect to it, or any idea, that the points do not deserve to be stated, and to receive such answer as might occur to me to give them : but all questions of succession are in their nature questions of positive law; and if the argument had raised a doubt in my mind, and I were not inclined to follow the rule, that has prevailed in other cases, I am bound by repeated decisions in the House of Lords to make the decree, I intend to make ; that the Marquis had that domicil in England, that decides upon the succession to his personal property, and carries the distribution according to the law of England. The point has been established in the cases in the House of Lords, which, if it was quite new and open, always appeared to me to be susceptible of a great deal of argument: whether in the case of a person dying intestate, having property in different places and subject to different laws, the law of each place should not obtain in the distribution [201] °f tne property situated there. ' Many foreign lawyers have held that proposition. There was a time, when the Courts of Scotland certainly held so. The judgments in the House of Lords have taken a contrary course ; that there can be but one law : they must fix the place of the domicil; and the law of that country, where the domicil is, decides, wherever the property is situated. That I take to he fixed law now. The Court of Session has conformed to those decisions ; according to which the Courts of Great Britain, both of Scotland and England, are bound to act. The question, what was the domicil, has been with regard to Lord Annandale established upon a very few pro¡positions. Born in this country : educated in this country : this country was the seat of his expectations for the greater part of his life ; reckoning his life to terminate at the period of his lunacy. During the greater part of that period he had no expectations of fortune, settlement, or establishment, any where but in this country, according to the disposition, his maternal grandfather made in his favour. The habit of his education carried him abroad at an early period. Returned, he never had a residence in Scotland. He never was there at any period with a fixed purpose of remaining. His existence there was purely a purpose of either visit or business; and both circumscribed and defined in their time. Wherever he had a place of residence, that could not be referred to an occasional and temporary purpose, that is found in England, and no where else. I am not clear, that the period of his lunacy is totally to be discarded. But I will take him to have died then. For the greater part of the period previous to that he was fixed in this country ^and fixed by all those ties, that describe a settled residence, and dis¡tinguish it from that, which is temporary and occasional. The argument then rests upon the domicil of his father. In the first place, that question, what was the domicil of his father, is of itself a question, I am not called upon to decide ; and I am by no means prepared to adopt the proposition, that his father should be considered as having had a domicil in Scotland. In the latter part of his life bis domicil de facto was un¡questionably in England. During the latter part of it, and from an epoch remarkable enough, when contracting a second marriage, and forming a new family, all the cir¡cumstances of his family at that period point much more to England than to Scotland. The question of domicil prima facw is much more a question of fact than of law. The actual place, where he is, is prima facie to a great many given purposes his domicil. You [202] encounter that, if you shew, it is either constrained, or from the necessity of his affairs, or transitory ; that he is a sojourner ; and you take from it all character of

3VES. jun. 203. m'kenny v. east india company 969

permanency. If on the contrary you shew, that the place of his residence is the seat of his fortune ; if the place of his birth, upon which I lay the least stress ; but if the place of his education, where he acquired all his early habits, friends, and connexions, and all the links, that attach him to society, are found there; if you add to that, that he had no other fixed residence upon an establishment of his own, you answer the question ; which would be, where does he reside 1 In London. Is that his domicil 3 It is; unless you shew, that is not the place, where he would be, if there was no particular circumstance to determine his position in some other place at that period. In this case every thing leads one to conclude, that the place, where Lord Annandale is found, is the place, where he would be, no occasion taking him to any other place. When that is fixed, and you have found all the circumstances, that give a character of permanency to that place, where he really is, it is in vain to inquire, where was his father's domicil. The case, last determined in the House of Lords, is the case of Sir Charles Douglas. (Ommaney v. Bingham, stated in Somerville v. Lord Somerville, 5 Ves. 750.) I particularly had the benefit of hearing all the arguments so well pressed in this cause and also at the Bar of the House in that. It fell to my share to pronounce the judgment: but it was much more formed by Lord Thurlow and settled in concert with him The general course of the reasoning he approved. It was one of the strongest cases; for there was first a determination of the Court of Session upon the point. Great respect was due to that. They had determined the point. The judgment was reversed. It came before the House with all the respect due to the Court of Session upon the very point, and under circumstances, that affected the feelings of every one ; for the conse¡quences of the judgment, the House of Lords found themselves obliged to give, were harsh and cruel. If the particular circumstances, raising very just sentiments in every mind, could prevail against the uniformity of rule, it is so much the duty of Courts of Justice to establish, there could be no case, in which the feelings would have led one farther. Lord Annandale's case is not near so strong. The habits of Sir Charles Douglas were military. He had no settled property. His life had been passed in very different parts of the world. If the consideration of his original domicil could have had the weight, that is attempted in this case, it would have had much more there; for there was less [203] of positive fixed residence there than in this case. At one time he was in Russia; at another in Holland ; and in a fixed situation as commander of a ship in the Russian and Dutch service. His activity rendered him not much settled any where. It was necessary to take him, where he waa found. The cause had this additional circumstance, that he happened to die in Scotland, the place of bis birth : but undoubtedly he went there for a very temporary purpose; a mere visit to his family, when going to take a command upon the American service. That is so strong a case, tbat it makes it rather improper in me to have said so much. Dismiss the bill of Lady Graham : tax all the parties their costs; and let the distribution be according to the prayer of the other bill. (Note : Thorpe v. Watkin, 2 Ves. [sen.] 35. Pipon v. Pipon, Burn v. Cole, Amb. 25, 215. In the former case Lord Hardwicke observes, that, if the disposition of the property was to depend upon the locality, it would have the mis¡chievous consequence of deterring foreigners from dealing in the English Funds. See Somerville v. Lord Somerville, 5 Ves. 750. Potinger v. Wightman, 3 Mer. 67. Munroe v. Douglas, 5 Madd. 379.)