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 Englandseems 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.