Scottish Court of Session Decisions

Remit to English Counsel held unnecessary, there being no technical terms in the deed requiring interpretation.

Opinion, that A's domicile at the date of the will was foreign.

In 1842 David Gow, a Scotchman, left Scotland for Singapore. After remaining at Singapore for three or four years he went to Hong Kong, where for many years he carried on the trade of a shipbuilder, in partnership with George Harper. About the year 1861 Gow proposed finally leaving Hong Kong and returning to Scotland, his partner Harper remaining to take charge of the business at Hong Kong, but Harper asked Gow to remain, in order that he, Harper, might first come to this country to see his

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friends. Gow consented to this arrangement. Harper intended going back to Hong-Kong in about six months, but he remained away for about two years. About two months after Harper's return to Hong Kong Gow left, leaving Mr Harper to wind up the business at Hong Kong, and returned to Scotland.

On 29th May 1863, a few days before he left Hong Kong, Gow executed a last will and testament, in the English form, whereby he directed his executors thereinafter named to get in and convert into money, as soon as conveniently might be after his decease, subject, however, to the provision in that behalf thereinafter contained and expressed, all his property, estate, and effects, of whatsoever kind, not consisting of money or securities for money, and thereout, in the first place, to pay and discharge his just debts and funeral and testamentary expenses. He gave and bequeathed to each of his sisters. Miss Betsy Gow, Miss Jane Gow, and Mrs Margaret Kemp, the sum of 10,000 dollars current in Hong Kong: he gave and bequeathed to each of his executors thereinafter named the sum of £100 sterling, as a mark of his esteem and regard; all the residue of his property and estate he gave and bequeathed to George Harper, of Victoria, in the colony of Hong Kong, shipbuilder, and James Kemp of Hamilton, in the county of Lanark, in Scotland, their executors, administrators, and assigns, in trust, that they and the survivor of them, and the executors and administrators of such survivor, and their and his assigns, should invest the same in their or his names or name, in or upon such securities, whether government or public, or real or personal, and whether in the United Kingdom or in any other of the colonies, or in the East Indies, as to them or him should in their or his discretion seem fit, with power from time to time to alter, vary, and transpose the same securities for others, and should stand possessed of and interested in all such trust monies, stocks, investments, and securities, and the interest, dividends, and annual proceeds thereof in trust for his nephew, David Gow Kemp, defender, his executors, administrators, and assigns, his interest therein to become vested on his attaining the age of twenty-one years: And in case his said nephew, David Gow Kemp, should die under the age of twenty-one, then in trust as to two-thirds thereof for the said James Kemp, his executors, administrators, and assigns, and as to the remaining one-third for his said sisters, Miss Betsy Gow and Miss Jane Gow, and their respective executors, administrators, and assigns, in equal shares, &c.

On his return from China, Gow visited his relatives in Scotland; and while there he, in the month of August 1864, purchased a small house, and piece of ground attached thereto, called Silverwells, near Bothwell, Lanarkshire. This house, which he furnished at his own expense, he allowed his sisters Betsy and Jane Gow to occupy; but he likewise resided in this house himself when in Scotland after the date of its purchase. After this date he usually spent the summer in Scotland and the winter in London. He had no fixed residence, however, in England, and when residing in London, or elsewhere than in Scotland, he resided almost exclusively in hotels. Toward the end of 1864 Gow purchased a larger piece of ground adjoining Silverwells, and entered into contracts for building thereon a dwelling-house for his own occupation. This house was in course of erection, but uncompleted, at the time of Gow's death, on 21st November 1866. He was possessed of no other heritable property in Scotland than these subjects.

Besides these facts, which were admitted by all the parties, it was further admitted that the will was executed by Gow a few days before he left Hong Kong, when he had not only avowed his intention of returning to this country, but must have been making preparations for doing so; that during the whole time Gow was abroad he kept up a correspondence with his relatives, and for the last two or three years of his residence abroad he wrote by almost every mail; that Gow's letters and correspondence, more especially his letters, for two or three years before his return to this country, all showed that he had an animus revertendi, and that his wish was to make a fortune and return to his native land.

This action was now raised by Gow's executors for the purpose of having it found that Gow's sisters, defenders, were not entitled both to retain the heritable property belonging to Gow at his death, and also to take the legacies bequeathed to them by him.

The executors pleaded—“(1) The domicile of the said David Gow was Scotch both at the date of executing his last said will and testament and at the time of his death, and the same must be construed according to the law of Scotland. (2) On a sound construction of the said last will and testament the defenders, the said Misses Betsy and Jane Gow and Mrs Margaret Gow or Kemp, are not entitled both to the legacies left by the testator, and to his heritable estate.”

For Gow's sisters, defenders, it was pleaded—“(1) The domicile of the said David Gow, at the date of the execution of the said testament, was in Hong Kong, and the said testament must therefore be construed according to English law. (2) According to English law the present defenders are not, by the terms of the will, put to their election between the legacies given to them by the will and the heritage which belonged to the testator, but are entitled to take both. (4) Assuming that, at the date of the execution of the said will, Mr Gow's domicile was Scotch, his testament was invalid according to Scotch common law, and its only efficacy is conferred by the Act 24 and 25 Vict. c. 114. (6) Assuming David Gow's domicile at the date of the execution of the said will to have been Scotch, there is not on the face of the said will any such indication of a purpose to deal with the Scotch heritage as to allow of the application of the doctrine of approbate and reprobate.”

The nephew, who was also called as a defender, maintained the same pleas as did the executors.

The Lord Ordinary pronounced an interlocutor sustaining the claim of the pursuers, adding this note:—“From the history of the life of the testator Mr David Gow, which is very clearly given in the record and relative minute of admissions, it appears that he was a Scotchman by birth, and lived in Scotland till he was about 25 years of age, when he went abroad to seek his fortunes.” His Lordship then gave a narrative of the facts, and continued:—

“These are the whole material facts connected with Mr Gow's residence abroad, extending over a period of between twenty-three and twenty-four years. While still at Hong Kong, within a few days of his finally leaving it, and when he must have been making preparations for doing so, Mr Gow, on 29th May 1863, executed the last will and testament which has given rise to the present action. It is in the English form, and expresses his purposes in very plain and intelligible language. By it he means his partner Mr Harper and his

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brother-in-law Mr David Kemp to be his executors, and directs them to get in and convert into money, as soon as conveniently may be after his decease, all his property, estate, and effects of whatsoever kind, not consisting of money or securities for money, and thereout, in the first place, to pay his just debts and funeral and testamentary expenses. He then gives and bequeaths to each of his three sisters, Miss Betsy Gow, Miss Jane Gow, and Mrs Margaret Kemp, the defenders in this action, the the sum of 10,000 dollars current in Hong Kong; and after a trifling legacy to each of his executors, he gives and bequeaths all the residue of his property and estate to his said executors, and their executors, administrators, and assigns, in trust, to invest the same in their names upon such securities as to them shall seem fit, for David Gow Kemp, his nephew, whose interest therein is declared to become vested on his attaining the age of 21 years; and in case of his nephew, the said David Gow Kemp, dying under the age of 21 years, then in trust for James Kemp, the husband of Mrs Margaret Kemp, and her two sisters Miss Betsy Gow and Miss Jane Gow, and their several executors and assigns, in certain proportions, with various provisions as to the application of the income and annual proceeds of the residue in and towards the maintenance, support, and education of the said David Gow Kemp, until the same should become indefeasibly vested or payable as aforesaid. The will was duly proved in the Prerogative Court of Canterbury on 23d January 1867.

“In this state of the facts, questions were raised at the debate with regard both to the domicile of the deceased and the construction of his will. For the pursuers, his executors, it was contended that, notwithstanding his long residence abroad, the testator had never lost his original domicile, and was a domiciled Scotchman not only at the date of his death, but at the date of the execution of his will at Hong Kong, on 29th May 1863, in respect of his intention to return home having been plainly indicated and declared before his will was made. In support of that proposition they relied chiefly on the cases of Whicker v. Hume, 7 Clarke, p. 124; Udny v. Udny, 5 Macph., p. 164; and Jopp v. Wood, Eng. Law Journal, Chancery Reports, p. 212, in which last case the native domicile was held to have been retained even though the party had had a continuous Indian residence for thirty years all but a single year. Founding upon these authorities, the pursuers maintained that the will executed at Hong Kong must be read and construed according to the law of Scotland, that being the law in the language of which the testator intended to speak, though driven by the accidental necessity of his position to have the deed executed according to the forms of the law of England, which was the law of the colony where he was living at the time. But according to the law of Scotland the defenders are not entitled both to the legacies bequeathed to them and also to the heritable estate left by the testator at his death. They are met by the doctrine of approbate and reprobate.

“For the defenders, on the other hand, while it was admitted that the domicile at death was Scotch, it was contended that it was foreign at the date of the execution of the will, and that consequently the will required the aid of the foreign law in order to ascertain not only the perfect formality and validity of its execution, but also the interpretation of its meaning and intention; and they pleaded that, according to the foreign law, which is English, they are not put to their election between the legacies given them by the will and the heritage which belonged to the testator, but are entitled to take both,—the former by the terms of the bequest in their favour, and the latter as heirs at law of the testator.

“The Lord Ordinary has not thought it necessary to determine the somewhat nice and difficult question which is raised by the decision in the case of Jopp v. Wood. Had he been forced to do so, he would have determined it against the pursuers, and would have held that David Gow had lost his native domicile, and was domiciled in Hong Kong at the date of the execution of his will. But assuming that to be so, the Lord Ordinary is satisfied that the admitted fact of the domicile at death being Scotch is quite sufficient for the decision of the question as to the rights of the parties under this will. Had any inquiry been needed as to the validity of the execution of the will, or as to the legal meaning of its terms, these matters must have been determined by English law. But no such inquiry is necessary. The will having been admitted to probate in the English Court has thereby been ascertained to be a valid testamentary writing according to the forms of the law of England; and as regards its meaning and import, these are so plain and unequivocal on the face of the instrument as to need no interpretation of foreign law to say what they are. There is absolutely no technical expression giving rise to any difficulty, but the words employed are such as may be construed by any Judge conversant with the language in which the will is written. See Thomson's Trustees v. Alexander, 14 D. 217.

“The testator gives 10,000 dollars to each of his sisters, and to his nephew, through his executors, as trustees, he gives and bequeaths all the residue of his property and estate; that is to say, every thing that was not otherwise disposed of. At the time when he made this settlement, which was evidently a settlement of his entire means and estate, he was possessed of no heritable property. He did not acquire that till after his return to Scotland, and accordingly in his will he makes no mention of heritage, and cannot be presumed to have had it specially in his contemplation at all. But the bequest of residue includes everything belonging to him at his death in whatever form it might happen to be. His intention with regard to such residue admits of no doubt. His nephew was the favoured person to whom it was wholly given. His sisters were to have none of it. They were to receive, in the first instance, no more than their pecuniary legacies; and to make the intention in that respect all the more clear, it is only in the event of the nephew dying before a specified age that a provision is made for the distribution of the residue among the sisters.

“In these circumstances, having regard to the plainly evinced intention of the testator, and holding that his will is to receive effect according to the law of Scotland, where he had his domicile at the time of his death, the Lord Ordinary thinks that this is a clear case for the application of the principle of approbate and reprobate in bar of the claim of the defenders. The validity of the will being established, and the meaning of its terms free from any ambiguity, he apprehends that there is no ground for having recourse to the law of England in order to inquire what would be the effect of such an instrument according to that law.”

The defenders acquiesced.