The succession of a Scotsman who had resided many years in the West Indies, where he had acquired a valuable plantation, but who had returned to his native country for the recovery of his health, and died there, found to be regulated by the law of Scotland, altho' a proof was offered that he meant to have returned to the West Indies if his health had permitted.
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William Macdonald, a native of Scotland, acquired a considerable plantation in Jamaica, where he had resided about fifteen years. In 1779, he was appointed lieutenant in the 79th regiment of foot, at that time quartered in the Island; he also got the command of a fort in it. In 1783, he obtained leave of absence for a year, that he might return to Scotland for the recovery of his health. He died a few months after his arrival. The 79th regiment was by this time reduced. He had no effects in Scotland, and his only property in England were two bills which he had transmitted from Jamaica before he left it, in order, as was said, to purchase various articles for his plantation.
His father intromitted with the funds in England.
Jean Macdonald, and other sisters of the deceased, brought an action against him to account for their brother's executry. The defender died during the dependence of this action, leaving his grand-son, Alexander Laing, his heir, as to the succession of his son. The rights of the parties turned upon the question, Whether William Macdonald had his domicil in Jamaica or in Scotland? Laing offered to prove, that the deceased meant to have returned to Jamaica, if his health had permitted, and that he had no intention of residing in this country. And
Pleaded; Moveable succession is regulated by the law of the country where the deceased resided animo remanendi. To which country this description belongs, is to be ascertained not merely by the place of his birth, or of his death, but by the whole circumstances in his situation; See case of Bruce against Bruce, No 115. p. 4617. Upon this principle, William Macdonald had his domicil in Jamaica.
The Lord Ordinary found, the succession was to be regulated by the law of Scotland, in respect that William Macdonald died in Scotland his native country, where he had resided several months before his death.
A reclaiming petition having been presented, the Court were of opinion, that the domicil of William Macdonald was in Scotland, and that the proof offered was incompetent, and therefore unanimously “refused” the petition without answers.
A second reclaiming petition, along with which were produced two letters of the deceased, as shewing his intention to return to Jamaica upon the recovery of his health, was appointed to be answered. Upon advising which, some of the Judges came to be of opinion, that the domicil of the deceased was in Jamaica. A considerable majority, however, remained of their former sentiments.
The Court “adhered.”
Lord Ordinary, Dunsinnan.For the Petitioner, Jo. Burnet.Alt. Tho. Wilson.Clerk, Colquhoun.
Fol. Dic. v. 3. p. 224. Fac. Col. No 133. p. 306.
