Scottish Court of Session Decisions

“ Note.—This is a competition in which claims of legitim and jus relictæ have been made, and the question for consideration is, whether the deceased Dr Arnott died domiciled in Scotland, so that his estate should be subject to these claims according to the law of Scotland. In such cases it not unfrequently happens that the question of the domicile of the intestate predecessor involves the consideration of many conflicting elements of evidence extending over a long period of time. But in the view I take of this case there is no conflict of evidence, and the question is one of principle, which admits of being stated in few words.

“Dr Arnott was born in Scotland, and was of Scotch extraction. Scotland was therefore indisputably his domicile of origin. It appears to me to be as little open to dispute that during his residence at Cheltenham in the capacity of a practising physician Dr Arnott's domicile was in England. Dr Arnott, immediately after his graduation at the University of Edinburgh, engaged in practice, first at Ruthin in Wales, next at Lancaster, and finally at Cheltenham, where he continued in practice until 1870. During the whole of this period, extending from the year 1833 until 1870, there is nothing whatever to connect him with Scotland except the circumstances of his birth, parentage, and education to which I have referred. But in 1873 Dr Arnott retired from practice, and broke up his establishment at Cheltenham. For some years thereafter he resided at different places in England and Scotland, and the choice of his residence from time to time appears to have been determined by considerations of comfort, convenience, and health, rather than by the intention of forming any permanent connection with any particular spot of Her Majesty's dominions, or any particular locality. From 1870 to 1873 he resided at a country house in Worcestershire; from 1873 to 1877 he resided at Milkbank, Dumfriesshire; and from 1877 to 1880 he resided in a furnished house at Cheltenham. There can be little doubt that during the last-mentioned period Dr Arnott's choice of a residence was influenced by attachment to the place and the society which was associated in his mind with the useful and interesting professional pursuits in which he had been engaged during a considerable part of an active life. If his term of life had ended during this period, it is easy to see that a case of ambiguous domicile would have arisen. The train of circumstances which constituted his English domicile had come to an end with his retirement from practice, and it is not so clear that his return to Cheltenham under circumstances that present no clear indication of permanence would amount to a revival or continuation of the domicile of choice. But it is not necessary that I should express a definite opinion as to the domicile of Dr Arnott during the period from 1877 to 1880. In 1880 Dr Arnott again broke up his establishment at Cheltenham, and came to live with his sister-in-law at Kirkconnel Hall, Dumfriesshire, under a family arrangement by which he had the use of certain apartments and contributed to the household expenditure. Dr Arnott's wife was in infirm health when he went with her to Kirkconnel Hall, and he evidently did not contemplate that during their joint lives they should ever occupy a house of their own. Dr Arnott died at Kirkconnel Hall in May 1883 survived by his wife. If during his residence there he had any domicile of choice, it was at Kirkconnel Hall, and therefore in Scotland. He had no other home, no residence of any kind elsewhere, no business ties, no connection with Cheltenham except that the securities on which his money was invested were in the keeping of a banking firm at Cheltenham, who were his financial agents during his residence there, and with whom he was naturally content that the securities should remain, having no immediate motive for withdrawing them.

“If Dr Arnott's residence at Kirkconnel Hall was not of such a character as would constitute in legal effect an acquired domicile, then the only alternative conclusion which I could deduce from the facts is that at the time of his death Dr Arnott had no domicile of choice. In that case his domicile will be determined by the convenient and equitable rule of general jurisprudence, that an intestate who has not fixed his domicile anywhere is subject as regards the administration of his estate to the local laws of his domicile of origin. Whether we hold that the domicile of origin revives whenever the acquired domicile is abandoned, or whether, in accordance with what appears to me the more correct opinion, we are to hold that the domicile of origin is inherent through life, its effect being only suspended during the continuance of a domicile fixed elsewhere, there can be no doubt as to the generality of the rule, that the domicile of origin governs the succession unless it is for the time being displaced by the voluntary act of the deceased. In the present case, and during the last three years of Dr Arnott's life, I see no evidence of intention on his part to acquire a domicile, or to continue a domicile previously acquired elsewhere than in Scotland. I therefore sustain the claim of Mr Archibald James Arnott for his legitim, and the claim of Mrs Arnott for her jus relicæ. If there is any question as to the mode of division of the estate, or as to the sum to which these parties are respectively entitled, the case may be enrolled for further procedure.”