Scottish Court of Session Decisions

Sir William Cunliffe Brooks died on 9th June 1900, leaving a trust-disposition and settlement in the Scottish form and prepared in Scotland, and a last will and testament in the English form and prepared in England, both executed on 29th April 1900.

He was survived by his widow, Dame Jane Davidson or Brooks, and by two daughters, children of a former marriage, the Marchioness of Huntly and Lady Francis Cecil, sometime widow of Lord Francis Cecil and now wife of Captain Tillard, R.N. Lady Francis Cecil had six children—Mrs Ethel Francis Sophia Cecil or Hawkshaw, and three other daughters, Violet Dorothea Cecil, Edith Celendine Cecil, and Esterel Edith Philippa Louisa Tillard, and two sons, Ean Francis Cecil and Richard William Francis Cecil. Of the last-named all but the eldest daughter were in minority.

By the trust-disposition and settlement Sir William disponed and conveyed to his trustees his whole heritable property in Scotland (excluding Fasnadarroch therein and hereinafter mentioned), in trust (first) for payment of the expenses connected with the trust, and (second) in order that his trustees should hold the residue of his said heritable property for behoof of his grandson Ean Francis Cecil in fee, should he attain the age of twenty-five years, whom failing for behoof of certain other heirs therein mentioned, and under the declarations therein specified. By the said settlement Sir William confirmed a disposition granted by him on 18th July 1892 of the lands and house called Fasnadarroch in favour of his daughter Lady Francis Cecil. By the last will and testament Sir William made a number of pecuniary legacies and other bequests, and with regard to the residue of his estate he directed that it should be held in trust for all or any of his grandchildren or grandchild who should be living at his decease, and being a grandson or grandsons should attain the age of twenty-one years, or being a grand-daughter or

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grand-daughters, should attain that age or marry.

An action was raised by Lady Brooks against the trustees acting under the aforesaid trust-disposition and settlement and last will and testament, concluding for declarator “(first) that the said Sir William Cunliffe Brooks was at the date of his death, which occurred on the 9th day of June 1900, a domiciled Scotsman; and (second) that the pursuer was entitled to payment of one-third of the net amount of his moveable or personal estate in name of jus relictæ.”

The pursuer averred that at the date of his marriage with her Sir William was a domiciled Scotsman, and that he continued to be so down to the date of his death.

The defenders averred that Sir William's domicile of origin was English, and that he retained it till his death.

They pleaded—“(4) The statements of the pursuer, so far as material, being unfounded in fact, the defenders should be assoilzied, with expenses.”

An action was also raised against the trustees by the Marchioness of Huntly, elder daughter of Sir William Brooks, concluding for declarator that Sir William was a domiciled Scotsman and that the pursuer was entitled to legitim.

The Lord Ordinary ( Low) allowed the parties in both actions a proof of their averments.

The proof and argument in Lady Brooks' case was adopted by counsel for Lady Huntly.

At the commencement of the proof minutes were lodged by (1) Mrs Hawkshaw, and (2) by the remaining children of Lady Francis Cecil, craving leave to sist themselves as defenders to the actions, and to adopt the defences lodged by the trustees. The minuters were duly sisted, and the Court appointed Mr A. O. Mackenzie, advocate, as curator ad litem to the minor and pupil children. At the end of the proof the compearing defenders craved and were granted leave to amend the defences in Lady Brooks' action by adding certain averments to the answers, and the following additional plea—“(6) Esto that Sir William Cunliffe Brooks had acquired a Scotch domicile at the date of his death, his domicile at the date of his marriage was English, and it having been an implied condition of the antenuptial marriage-contract into which he entered with the pursuer that the law of England should continue to regulate their rights as spouses, the pursuer is not entitled to insist in the present claim, which is founded on the law of Scotland, and the defenders ought therefore to be assoilzied from the conclusions of the summons.”

The pursuer obtained leave to add the following pleas—“(2) The pursuer is entitled to decree in respect that the late Sir William Cunliffe Brooks' domicile was in Scotland, both at the date of his marriage with the pursuer and at his death. (3) The pursuer is entitled to her jus relictæ as concluded for, in respect that her right thereto is not excluded by the said marriage settlement, whether construed according to the law of England or according to the law of Scotland. (4) Esto that the late Sir William Cunliffe Brooks was domiciled in England at the date of his marriage, the pursuer's legal rights in his estate do not fall to be determined by the law of England, but by the law of Scotland, being the law of his domicile at the date of his death.”

Additional proof was allowed and led on the point raised by the amendment.

The following narrative of the purport of the proof and of the documents, so far as necessary for the decision of the case, is taken from the opinion of the Lord Ordinary (Low):—“In this action the pursuer seeks to have it declared that her husband, the late Sir William Cunliffe Brooks, was at the date of his death a domiciled Scotsman, and that she is entitled to jus relictæ.

“The material facts of the case—in regard to which there is little dispute—appear to me to be as follows:—

Sir William Cunliffe Brooks was born in 1819 in Blackburn, Lancashire, where his father carried on the business of banker. He was educated in England, and in 1842 graduated at Cambridge, and soon afterwards he married his first wife, who was an English lady. He was called to the English bar in 1847, but in the same year he became a partner with his father in the banking business, the chief office of which by that time had been transferred to Manchester. He then took a lease of Barlow Hall, which is situated a short distance from Manchester, and which was his residence so long as he continued to take an active part in the business of the bank.

Sir William's father died in 1864, and he then became sole partner of the bank. In 1864 also he purchased premises in Lombard Street, London, and established a branch of his bank there. The head office, however, continued to be in Manchester. In 1865 his wife died, and in 1869 he was elected Member of Parliament for the Macclesfield Division of Cheshire, and took a lease of the house No. 5 Grosvenor Square, London. In the same year he gave up the personal management of the bank, but continued to carry on the business through the agency of managers until the year 1888, when he assumed his nephews Samuel Burd Brooks and John Brooks Close Brooks as partners. These gentlemen took the surname of Brooks, by Sir William's desire, when they were assumed as partners. By the contract of copartnery Sir William was entitled to put an end to the partnership at any time—‘Such dissolution to take effect on the day of the date of notice.’ Sir William's share of the capital of the bank was £300,000, the shares of his partners being £30,000 and £25,000 respectively. Sir William's share of the profits was fixed at eight-tenths, each of his partners receiving one-tenth. According to a statement which was produced, Sir William during his life derived an income from the bank, including interest on capital, of (in round numbers) from £30,000 to £50,000 a-year. Although after the year

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1869 Sir William ceased to take an active part in the banking business, he continued throughout his life to be in daily, or almost daily, communication with the head office, and he appears to have kept himself informed as to the general course of the business, and to have exercised a general supervision.

Sir William also succeeded his father in large landed estates in Lancashire and Cheshire, the rental of which latterly exceeded £20,000 a-year. There was no mansion-house on these estates, but a considerable part of them was in the vicinity of Barlow Hall. I may here mention that Barlow Hall is a commodious residence (apparently an old mansion-house), built in a picturesque style of architecture, and surrounded by attractive grounds.

Sir William appears to have made his acquaintance with the Highlands of Scotland sometime in the sixties, when he visited his friend, the witness Mr Sidebottom, who had a deer forest in the Blackmount district. Sir William subsequently took Drummond Castle, and in 1869 he went to Glen Tana on Deeside. The chief reason, in the first instance, for the selection of Glen Tana by Sir William as a highland residence, appears to have been that it was near Aboyne Castle, the seat of the Marquis of Huntly, who had married his elder daughter. Glen Tana was also then the property of the Marquis of Huntly.

When Sir William first went to Glen Tana a lease for a limited period seems to have been prepared, but was not executed. In 1871, however, the Marquis of Huntly granted to Sir William a lease for twenty years, or for Sir William's life, or for his own life. Sir William had desired to have a lease for his life, but the fact that the estate was entailed was thought to create a difficulty, and accordingly a lease in the terms which I have mentioned was adopted.

In 1872 an event occurred to which the pursuer attaches considerable importance. Sir William either built or converted a cottage at Glen Tana into a private chapel, which was consecrated for Divine service according to the rites of the Episcopalian Church. It was called the Church of St Lesmo.

In 1874 Sir William's second daughter was married to Lord Francis Cecil, and in 1879 he himself married Miss Davidson, daughter of Lieutenant-Colonel Sir David Davidson, K.C.B., a Scottish gentleman who resided near Edinburgh. The marriage settlement was in the English form, and was prepared by Mr Wood, Sir William's solicitor in Manchester. The settlement narrates that Sir William had paid to certain persons as trustees the sum of £50,000. The purposes of the trust (after certain directions as to the disposal of the income during the joint lives of the spouses) were to pay the income of the trust fund to the pursuer during her life in the event of her surviving her husband, and to hold the capital for the children of the marriage, whom failing (the event which happened), for Sir William, his executors, administrators, or assigns absolutely. The trustees were three English gentlemen nominated by Sir William. The marriage took place, by Sir William's express desire, in the Chapel of St Lesmo. In the register Sir William's ‘usual residence’ is entered as ‘5 Grosvenor Square, London.’

In 1885 Sir William lost his seat for the Macclesfield Division of Cheshire, but in the following year he was elected unopposed for the Altrincham Division of the county—a constituency which he continued to represent until 1892, when he retired from Parliament. In the same year (1886) a baronetcy was conferred upon him. The patent was in favour of ‘William Cunliffe Brooks of the city of Manchester.’

In 1888 Sir William purchased Aboyne Castle. In 1891 he purchased Glen Tana, and in 1899 the estate of Ferrar. I do not think that I put it too strongly when I say Sir William would have preferred not to make these purchases, but that he was compelled, or at all events induced, by circumstances to do so. The Marquis of Huntly appears to have fallen into grave financial embarrassment, and Sir William purchased Aboyne to save his daughter's residence from her husband's creditors. The amount of land which he acquired along with Aboyne Castle was comparatively small, so that the Castle was much too large a mansion-house for the estate. Therefore when the adjoining lands of Ferrar came into the market it seems to have been a prudent thing to do, and commercially a sound transaction, for Sir William to buy the lands and add them to the Aboyne estate.

In regard to Glen Tana Sir William would have preferred to have remained the tenant of the Marquis of Huntly, but when it became necessary that the estate should be sold for payment of debt, Sir William purchased it because he did not choose that anyone else should be his landlord. His own expression was that he purchased Glen Tana with ‘a knife at his throat.’

From 1869 onwards Sir William's principal residence was Glen Tana. He always resided some part of the year at Grosvenor Square and Barlow Hall, but his residence at these houses was, generally speaking, confined to what was necessary for the performance of his parliamentary or other duties and the transaction of business. During the six years from 1894 to 1899, both inclusive (these being the last six complete years of his life), his average residence at Barlow Hall was thirteen days, at Grosvenor Square forty-one days, and at Glen Tana 267 days. In 1900, down to the 9th of June, when he died, he had resided sixty-three days at Barlow Hall, twenty-four days at Grosvenor Square, and seventy-three days at Glen Tana. During his residence at Barlow Hall in that year he was engaged in having his final testamentary settlements prepared. I may mention that Sir William also occasionally spent some time during the winter at Antibes in the south of France, but I do not think that his visits there have any

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bearing upon the question at issue.

Sir William kept his domestic estabment at Glen Tana, and he built houses there for the families of some of his servants who were married. When he went to Grosvenor Square or Barlow Hall he took such servants with him as he considered to be necessary for the occasion. The house in Grosvenor Square was looked after in his absence by a housekeeper, who had two housemaids under her. He had also certain carriages which always remained in London. Barlow Hall was also in charge of a housekeeper and housemaids, and there was always a sufficient staff of gardeners there to keep the place in order. The instructions to the housekeepers at Grosvenor Square and at Barlow Hall were to have the houses ready for occupation upon a day's notice.

Sir William became extremely attached to Glen Tana. He spent enormous sums of money upon or in connection with the estate, and especially in later years when he was not so able to indulge in field sports as formerly, the planning and superintending the construction of the various roads which he made, and buildings which he erected, seems to have been the chief pleasure of his life.

Sir William had an account with a bank in Aboyne, but that seems only to have been used for local purposes, such as the payment of the accounts of local tradesmen, and certain payments in connection with the Glen Tana estate. All other payments, including the wages of his servants, were made by cheques upon Manchester.

Sir William died on 9th June 1900. He left instructions in his will that if he died abroad he should be buried where he died, but that if he died in the United Kingdom he should be buried at Glen Tana. He was accordingly buried there. He seems to have frequently considered where he should be buried. But I think that the evidence shows that he did not finally make up his mind on the matter until he made his last will shortly before his death.

Some time prior to his death Sir William seems to have entertained the idea of giving up his house in London, and he made inquiries with the view of selling the furniture. He also appears sometimes to have spoken of giving up Barlow Hall, but I do not think that he ever had any serious intention of doing so. As matter of fact he was in possession of both houses at the time of his death.

He left two testamentary settlements. One in the Scotch form and prepared in Scotland, the other in the English form prepared by Mr Wood, his legal adviser in Manchester. The former dealt only with the Scotch estates, the latter with all his other means and estate. His own wish had been to leave only one settlement, but Mr Wood advised him, and ultimately he accepted the advice, to have a Scotch settlement dealing with the Scotch estates prepared by a conveyancer in Scotland. The trustees under both the settlements were the same. They are all Englishmen residing in England.

By his Scotch settlement he left his whole heritable estates in Scotland to trustees for behoof of his grandson Ean Francis Cecil, and the heirs of his body, whom failing his grandson Richard Cecil and the heirs of his body, whom failing to his daughter Lady Francis Cecil. A liferent of Aboyne Castle was reserved to Lady Huntly.

By the English settlement Sir William left his personal property in Scotland (which I understand consisted entirely of furniture and other corporeal moveables) to the persons who were to take the Scotch estates. The whole residue of his estate, real and personal, he directed to be realised and divided among his grandsons and granddaughters.

In the Scotch settlement Sir William is described as ‘Sir William Cunliffe Brooks, Baronet, of Glen Tana,’ and in the English settlement as ‘Sir William Cunliffe Brooks of the city of Manchester, Baronet.’ He made first and last an immense number of wills. In those made according to the English form prior to 1895 he is described as ‘of No. 5 Grosvenor Square, in the county of Middlesex, of Barlow Hall, in the county of Lancaster, and of the Forest of Glen Tana, in the county of Aberdeen, Baronet,’ and in those made after 1895 as ‘of the city of Manchester, Baronet.’ When making a settlement of his Scotch estates according to the Scotch form he was described as ‘Bart of Glen Tana.’ I do not think that the designations in the various wills can be regarded as being simply those which were selected by the conveyancer who prepared the deeds, because Sir William was a man who scrutinised the smallest details, and there is evidence that he was particular in regard to the way in which he was designated in any deed which he proposed to execute.

There is also evidence, upon which both parties relied, which shows that Sir William's attention was called to the question of his domicile. In 1892 he wrote to Mr Wood,—‘See enclosed. Am I a domiciled Scot?’ The ‘enclosed’ was a cutting from a newspaper in the following terms:—‘The Sutherland Heirlooms:—Important Decision. A domiciled Scotchman could not make a will by which he disposed of his personal estate to more than a certain extent.’

In reply Mr Wood gave a very decided opinion that Sir William was not a domiciled Scot. In 1893, however, Sir William sent to Mr Wood a newspaper report of a case which had been brought in the Court of Session, in which the question of the domicile of Sir James Mackenzie of Glenmuick was raised. In an accompanying letter he wrote—‘At the risk of telling you what you already know, I send the enclosed to direct your attention to the question of Scotch and English domiciles.’ Mr Wood replied that his opinion remained the same, namely, that Sir William's domicile was English.

Again in 1895 Sir William recurred to the matter. A case in regard to the domicile of an artist (a Scotsman by birth) had

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been decided in the English courts. Sir William sent to Mr Wood a newspaper report of the case, and wrote—‘You will care to see the enclosed on domicile.’ Mr Wood again replied that he had no doubt as to Sir William's domicile being English. There is no evidence that Sir William ever again opened the question of his domicile.

The pursuer argued that the correspondence showed that Sir William was himself doubtful as to the country of his domicile, otherwise he would from the first have accepted the opinion of Mr Wood.

I am inclined to think that the sounder inference is that for which the defenders contend, that Sir William was in the end satisfied with Mr Wood's reiterated opinion. Sir William was extremely pertinacious, and was not the man to allow a matter in which he was interested to rest until he was satisfied. And the question of domicile was one in which he was interested. I think that there is no doubt that what first drew his attention to the matter was the statement in the report of the Sutherland case that a domiciled Scotsman could not make a will by which he disposed of his personal estate to more than a certain extent. That was a point which touched Sir William closely. The position of the Marquis of Huntly's affairs caused him much trouble, and his correspondence shows how anxious he was to secure that any provision which he might make for Lady Huntly should not fall into the hands of the Marquis or his creditors. If Sir William had thought that there was any chance of Lady Huntly being entitled to claim as her absolute property part of his personal estate, I think that we would have found him seeking for some means by which such a result could be avoided.”

It also appeared from the proof and from the documentary evidence that down to his death Sir William exercised a very minute supervision over the management of his English estates, and that he kept up his connection with Manchester by subscribing to its local institutions and charities, and by taking part in its social life and public functions.

On 4th July 1901 the Lord Ordinary pronounced the following interlocutor:—“Assoilzies the defenders from the conclusions of the summons, and decerns: And having heard counsel for the parties on the question of expenses, finds the defenders the testamentary trustees of the late Sir William Cunliffe Brooks liable to the pursuer in the expenses of the discussion in the Procedure Roll, and quoad ultra Finds the said defenders entitled to expenses, with the exception of expenses incurred by them in connection with the amendment of the record by the compearing defenders, and the procedure following thereon and occasioned thereby: Finds the compearing defenders liable to the pursuer in the expenses occasioned by the said amendment and the procedure following thereon and caused thereby, and quoad ultra Finds the said compearing defenders neither entitled to nor liable in expenses,” &c.

Opinion.—…. “I have now stated what appear to me to be the material facts of the case, and I shall now consider what is the rule of law which falls to be applied in such circumstances.

The pursuer founded upon the question which was formulated by Lord Chancellor Cairns in the case of Bell v. Kennedy ( 6 Macph. (H.L.) 69), and upon Lord Westbury's definition of a domicile of choice in the case of Udny v. Udny ( 7 Macph. (H.L.) 89). In the former case Lord Cairns stated the issue thus—‘The question which I will ask your Lordships to consider in the present case is in substance this—whether the appellant had determined to make and had made Scotland his home, with the intention of establishing himself and his family there, and ending his days in that country?’ In the case of Udny Lord Westbury said—‘Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with the unlimited intention of continuing to reside there.’

The pursuer argued that the idea which had prevailed prior to these cases, that it was necessary to the acquisition of a new domicile that there should be evidence that the party intended to abandon his old domicile was no longer the law, but that evidence of residence for a sufficient period animo manendi was all that was required, and was conclusive. If that view of the law is sound, I think that it would be difficult to resist the conclusion that Sir William had acquired a Scotch domicile, because he had for nearly thirty years voluntarily fixed his chief residence at Glen Tana, with an unlimited intention of continuing to reside there.

It has, however, been repeatedly recognised that the question of domicile is always one which depends upon the special circumstances of each particular case, and that it is impossible to frame a definition which will be applicable to every case. Therefore a proposition which is unimpeachable and complete when read in reference to the circumstances of one case may be inapplicable, or at all events incomplete, when applied to the different circumstances of another case.

Now, shortly stated, the circumstances in Bell v. Kennedy were these. Mr Bell had been born in Jamaica and had carried on business there as a planter for many years, but ultimately, owing apparently to the abolition of slavery, he sold his estate and wound up his affairs in Jamaica and left that country for good. He came to Scotland, and had resided there for some years when his wife died, and the question was whether at her death he had acquired a Scotch domicile. There was no doubt or dispute that he had abandoned Jamaica and severed all connection with that country, and therefore the only point at issue was whether his residence in Scotland had been in fact and intention such as is required for the acquisition of a domicile of choice.

In the case of Udny the question was

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whether a son of Colonel Udny born out of wedlock had been legitimised by the subsequent marriage of his parents. That question depended upon the domicile of Colonel Udny, 1st, at the date of his son's birth, and 2nd, at the date of the marriage. It was held without difficulty that Colonel Udny's domicile of origin was Scotch, although he was born in Leghorn. It was also held to be clear that his domicile was Scotch at the date of his marriage. The question of difficulty was as to his domicile at the date of his son's birth. He had been for some years in the army, and had then retired and set up a house and establishment in London, where he resided for thirty-three years, only visiting Scotland from time to time to look after an estate to which he had succeeded. Prior to the commencement of his residence in London he had only been in Scotland occasionally and for temporary purposes. He ultimately fell into debt, and being pressed by his creditors left London and went to Boulogne. It was during his residence there that his son was born. It was held by the Second Division that Colonel Udny had never acquired a domicile in England. Upon that question there was considerable discussion among the learned Lords, who heard the case upon appeal, although they were agreed that it was not necessary to decide the point, as the circumstances under which Colonel Udny left London and went to Boulogne showed that he had abandoned any domicile which he ever had in England. The Lord Chancellor (Hatherly) expressed no opinion as to whether Colonel Udny had or had not at one time acquired an English domicile. Lord Chelmsford was evidently of opinion that no such domicile had ever been acquired, on the ground that residence, however long continued, was not sufficient, unless there was evidence of intention to acquire a new domicile instead of the domicile of origin, and he doubted if there was sufficient evidence of such intention. Lord Westbury, on the other hand, was of opinion that Colonel Udny had acquired an English domicile by his residence in London, and it was as I read his opinion in that connection that he pronounced the dictum which I have quoted. Indeed, it seems to me that Lord Chelmsford and Lord Westbury differed to some extent as to what was necessary to the acquisition by Colonel Udny of an English domicile. The former thought that there must be evidence of intention to acquire a new domicile, while the view of the latter was that it was sufficient if it was proved that Colonel Udny had voluntarily fixed his chief residence in London, with an unlimited intention of continuing to reside there.

It is plain that the circumstances of this case are in strong contrast to those in Bell and in Udny. Sir William Brooks was not only an Englishman by origin but he had spent the best years of his life in England, carrying on a large business there and identifying himself in a very marked way with Manchester. When he took up his chief residence in Scotland he did not sever his connection with England, but continued to conduct his business there through the agency first of managers and then of partners, over whom he all along exercised a certain amount of control; and he continued to hold his English estates, and even added to them. Thus the seat of his fortunes and of his chief material interests remained in England, and he retained his English residences, which were always ready for his occupation, and which he in fact occupied for a part of every year.

In such circumstances I think that more is needed to establish a change of domicile than would have been required if Sir William, although English by origin, had never had a settled residence or occupation in England (which was the kind of case which arose in Udny), or if when he went to Scotland he had by unequivocal acts severed his connection with England, as Mr Bell in the case of Bell v. Kennedy severed his connection with Jamaica. I am of opinion that the circumstances being such as we have in this case, it lies upon the party alleging a change of domicile to prove that there was an intention to make a change of domicile, and that residence alone (although of course it is an essential element), however long continued, is not necessarily of itself sufficient to establish such an intention.

The first authority which I shall cite in support of that view is the case of Somerville ( 5 Vesey 750). The question there was as to the domicile of Lord Somerville, whose domicile of origin was Scotch, who had estates both in England and Scotland, and who resided part of the year in England and part of it in Scotland. The Master of the Rolls (Lord Alvanley) in a well-known judgment, said—‘The original domicile, or, as it is called, the forum originis, or the domicile of origin, is to prevail until the party has not only acquired another but has manifested and carried into execution an intention of abandoning his former domicile and taking another as his sole domicile.’

That statement of the law has been recognised and adopted in the House of Lords in many cases, to some of which I shall refer.

In the case of Munro v. Munro ( 1 Rob. 492) the question was whether Sir Hugh Munro, a Scottish baronet who was possessed of estates in Scotland, had acquired an English domicile. A majority of the Judges in this Court held that he had acquired an English domicile, but the judgment was reversed upon appeal. The ground upon which judgment was given in this Court was, that Sir Hugh had removed his residence to London ‘with a view to a long and settled though indefinite abode,’ that he had taken a lease for twenty-one years of the house in which he resided in London, and that he had during his residence there ‘no adequately furnished house for his accommodation and no domestic establishment in Scotland.’ That is very like the line of argument upon which the pursuer contends

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that she is entitled to succeed in this case.

In the House of Lords the leading judgment was pronounced by Lord Cottenham, who repeated the words which I have quoted from Lord Alvanley's judgment in the case of Somerville as being a sound statement of the law. He subsequently said—‘If then it be the rule of the law of Scotland that the domicile of origin must prevail unless it be proved that the party has acquired another by residence, coupled with the intention of making that his sole residence, and abandoning his domicile of origin, I cannot think that there will be much difficulty in coming to a satisfactory conclusion upon examining the evidence with reference to this rule.’

The next case to which I shall refer is that of Donaldson v. M'Clure ( 20 D. 307, affd. 4 Macq. 852, and 1 Paterson 938), the circumstances of which are in some respects very like those of the present case. M'Clure, who was a Scotchman by origin, had gone to England as a lad, and settled in Wigan, where he prospered in business and made a fortune. After some five-and-thirty years he purchased a small property in Scotland upon which he built a mansion-house. The house in Wigan in which he had lived having been taken by a railway company, he removed with his wife and establishment to his house in Scotland, which was his chief residence until the death of his wife three years afterwards. He still, however, retained a house in Wigan under the charge of a housekeeper, and he frequently visited Wigan for short periods, and in many ways kept up his connection with that town. The question raised was as to the place of his domicile at the date of his wife's death. It was clear that he had acquired a domicile in England, but it was maintained that when he left Wigan and took up his principal residence in Scotland his domicile was changed. The First Division held that he had not lost his domicile in England, and that judgment was affirmed by the House of Lords.

Lord Curriehill, in a well-known passage, stated the law thus—‘It is proper to keep in view what is meant by an animus or intention to abandon one domicile for another. It means something far more than a mere change of residence. It imports an intention not only to relinquish those peculiar rights, privileges, and immunities which the law and constitution of the domicile confers on the denizens of the country in their domestic relations, such as those of husband and wife, parent and child, master and servant, in their purchases and sales and other business transactions, in their political or municipal status, and in their daily affairs of common life, but also the laws by which the succession of property is regulated after death. The abandonment or change of domicile is therefore a proceeding of a very serious nature, and an intention to make such an abandonment requires to be proven by satisfactory evidence. And considering that the domicile which the defender is alleged to have abandoned was in a locality where from his boyhood he had spent his life in active and prosperous business, and where he was enjoying the status and society and the municipal and political privileges to which he had risen, I desiderate clear evidence of his intention to abandon that domicile, and to change it to another domicile in a locality, where, so far as appears, he was a stranger.’

It is said that that cannot be regarded as a sound statement of the law, because it received no approval when the case went to the House of Lords, and was inconsistent with the principles laid down in the subsequent cases of Bell v. Kennedy and of Udny. I am unable to take that view. There is nothing in the opinion delivered in the case in the House of Lords to suggest that Lord Curriehill's statement of the law was not regarded as sound, and it is not in my judgment inconsistent with the views expressed in the cases of Bell and Udny, when the essential difference in the circumstances of these cases, upon which I have already commented, is considered.

In giving judgment in the case in the House of Lords the Lord Chancellor (Campbell) and Lord Cranworth did little more than express their concurrence in the view taken by the Judges of the First Division, but Lord Wensleydale referred to the case of Somerville (which I have already cited) as correctly laying down the law applicable to such a case, and stated as a clear proposition that a person cannot acquire a new domicile ‘to the effect of regulating the succession to his estate unless he has abandoned his former domicile animo et facto.’

The same learned Lord, in the case of Aikman v. Aikman ( 3 Macq. 854, 1 Paterson 997), succinctly stated the law thus—‘Every man's domicile of origin must be presumed to continue until he has acquired another sole domicile by actual residence with the intention of abandoning his domicile of origin. This rule is laid down in the case of Somerville, and has been acted upon ever since.’

Finally, in the case of Steel v. Steel ( 15 R. 896), in which all the authorities were reviewed, the First Division held it to be settled that the rule laid down in the case of Somerville was applicable to cases in which the question was not whether the domicile of origin having been undoubtedly abandoned, a new domicile had been acquired elsewhere, but whether the domicile of origin had ever been abandoned.

There is one other case to which I must refer, namely, Moorhouse v. Lord ( 10 H.L.C. 272), a judgment which I did not mention in its order on account of the criticism and discussion which it has evoked.

The question was whether a Scotchman who had taken up his residence in France had acquired a domicile there. Lord Cranworth said—‘In order to acquire a new domicile a man must intend quatenus in illo exuere patriam,’ and (he added) that it must be established that the party meant ‘to cease to be a Scotchman, and become an Englishman or a Frenchman or a German.’ Lord Kingsdown in the same

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case said—‘A man must intend to become a Frenchman instead of an Englishman.’

Now, it has been recognised that in these opinions the noble and learned Lords went beyond the question of domicile and strayed into the region of naturalisation and allegiance. It is to be remembered, however, that the question was whether a Scotchman had lost his Scotch domicile and acquired one in France, and it has been recognised that stronger evidence of intention is required where the party is alleged to have acquired a domicile in a truly foreign country than in the case of an Englishman going to Scotland or a Scotchman going to England. But even assuming that in order to establish that a Scotchman or an Englishman has acquired a domicile in France or Germany, it is necessary to prove that he intended exuere patriam, I am of opinion that no such excessive onus is laid upon a party alleging that an Englishman by origin has acquired a domicile in Scotland. It is not necessary to prove that he intended to cast off his country or to strip himself of his nationality, but it is necessary, in my judgment, in such circumstances as those with which I am dealing, to prove not only that he took up his residence in the country in which he is alleged to have acquired a domicile as his sole or chief residence, with an unlimited intention of continuing that residence, but also that it was his intention to acquire a domicile there and to abandon his domicile of origin.

That being in my opinion the rule of law applicable to such a case as the present, I shall now consider what is the result of applying the rule to the facts.

I do not propose to examine the evidence in detail, because although there are a great number of minor incidents which might be founded on as pointing in this direction or in that, the decision of the question does not in my opinion depend upon the balancing of minor details, but upon the broad and outstanding facts of the case.

It seems to me that the one fact upon which the pursuer must rely (and I by no means underrate its importance) is that Sir William lived at Glen Tana for nearly thirty years as his chief residence, and that his intention (which he carried out) was to continue his residence there during his life. All the other main facts of the case seem to me to imply that Sir William had never relinquished his English domicile.

As I have shown, it has been laid down by the highest authority that residence alone is not sufficient to establish a change of domicile. There must also be evidence of intention to give up the old domicile and to acquire the new. I am of opinion, however, that it is not necessary that in all cases there should be evidence of such intention distinct and separate from the evidence of residence and its surrounding circumstances. The residence may be of such a kind, and entered upon and continued in such circumstances, that the inference is irresistible that there was an intention to acquire a domicile in the country of residence, and to abandon a domicile previously held. As an example of such a case I may refer to in re Steer ( 28 L.J., Exch. 22).

I shall therefore consider, in the first place, what was the character of Sir William's residence at Glen Tana, what were the motives which induced him to take up his residence there, and what was his object in continuing that residence.

I suppose that it is not open to doubt that Sir William first went to the Highlands of Scotland for the same reasons for which so many rich Englishmen acquire residences there. He was attracted by the sport, the pure air, the scenery, and the relaxation obtained from the cares of life and the burden of business; and the chief reason for his selecting Glen Tana as the particular part of the Highlands in which to fix his residence was that his married daughter lived in that neighbourhood. I see no reason to suppose that the same motives which first brought Sir William to the Highlands were not in great measure those which kept him there. He was perhaps exceptional in this respect that he never tired of the Highlands, and that his love for Glen Tana was greater than that which a man usually feels for a place which he has not acquired until somewhat late in life. But then, if I gauge his character correctly, Sir William was a man of ardent temperament, whose feelings and sentiments were apt to be stronger than those of ordinary men.

Another reason why Sir William spent the greater part of the year at Glen Tana was that he found there constant occupation and interest in making roads and erecting buildings, upon which, as I have said, he spent vast sums. That expenditure was greatly relied upon by the pursuer as showing that Sir William had settled at Glen Tana as the seat of his family, and as the place in which all his interests were centred. That view would have had much greater force if the expenditure had been made upon truly improving and developing the estate, even although the improvements had been carried out upon the lavish scale which only a very rich man could afford. But although some of Sir William's expenditure was of that nature, the bulk of it, instead of improving the estate, will be found, I apprehend, by those who succeed him, to have created a very serious burden.

What were the motives which induced Sir William to indulge in such expenditure may be very well gathered from what he himself said upon the subject. If it was suggested that he was spending an unnecessary amount of money upon some particular object, he would say that it was better than ‘throwing it over a horse's tail,’ or ‘across a green board.’ I think that that was equivalent to saying, ‘I have plenty of money, and I find interest and occupation for my spare time by staying at Glen Tana and indulging my fancy for road-making and building, just as another man in my position might keep a string of racehorses and go to Newmarket.’

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It therefore seems to me that Sir William spent the greater part of the year at Glen Tana, not because the serious interests of his life centred there, but because he had so arranged his business and other affairs in England that, with the aid of well-selected managers and partners, he could carry them on without much personal attendance, and so was left free to devote a large part of his time to those sports and pursuits in which he took delight. I can gather no indication in the evidence of any disposition on his part to allow his business or his other interests in England to be prejudiced by or sacrificed to the attractions of Glen Tana. If he had found that his business was not prospering, and that it was necessary for him to give to it his personal attendance, I see no reason to doubt that he would have done so, even although the result might have been to reduce his annual residence at Glen Tana to something like the ordinary duration of a business man's holiday.

Such being the character of Sir William's residence at Glen Tana, to what extent did he keep up his connection with England?

1. Throughout his life he carried on a very large business as private banker in England—a business in which he was interested to the extent of eight-tenths, in which he had £300,000 invested, and over which he exercised constant supervision.

2. He possessed and retained large landed estates in England, and he added to these estates, and kept himself conversant with, and controlled, down to minute details, their management.

3. He represented an English constituency until 1892, when he retired from Parliament at the age of seventy-three.

4. He retained two residences in England, one in London and one near the head office of his bank, and in the vicinity of his estates. Both these residences were furnished in a manner which rendered them suitable for the occupation of a person in his position in life. Both houses were kept ready for occupation at any time, and he resided at both during a part of each year.

5. When he was married a second time in 1879 his marriage settlement was prepared in England according to the English form, and in view of the law regulating the rights of husband and wife in England.

6. When he received a baronetcy in 1888 (seventeen years after he took up his residence at Glen Tana) he took a patent in which he was described as ‘of Manchester.’

7. To the last he kept up his connection with Manchester by subscribing to its local institutious and charities, and by taking part in its social life and public functions.

8. It was almost to the last his wish to leave only one testamentary settlement of his affairs, that settlement to be in the English form, and prepared by his English solicitor. In the end he yielded to the advice of his English solicitor that his Scotch estates should be dealt with by a settlement framed according to the requirements of Scotch conveyancing, but his whole other means and estate, including his personal estate in Scotland, were dealt with in the English settlement, and the trustees under both settlements were Englishmen resident in England.

I do not think that Sir William could, while living the greater part of the year at Glen Tana, have kept up his connection with England in a more unequivocal way, and having regard to the whole facts of the case, I can come to no other conclusion than that he never intended to relinquish, and did not in fact relinquish, his status as a domiciled Englishman.

At a very late stage of the proceedings the beneficiaries who were sisted as defenders amended the record by adding certain statements chiefly in regard to the effect which, according to the law of England, the settlement made upon the marriage between the pursuer and Sir William had upon the rights of the spouses. They also added a plea-in-law to the effect that assuming that Sir William had acquired a domicile in Scotland at the date of his death, he was still domiciled in England at the date of his marriage to the pursuer, and that accordingly the marriage settlement regulated the rights of the spouses, and the pursuer had no claim to, jus relictæ.

In the view which I have taken it is unnecessary to consider that plea, but on the ground that Sir William never lost his English domicile I shall assoilzie the defenders.”

A similar interlocutor was pronounced in Lady Huntly's action.

Both pursuers reclaimed, and argued—The Lord Ordinary had mistaken the real issue of the case, and if the true issue had been stated by him, he must, on his findings in fact, have given judgment in favour of the pursuer. The true issue was that stated by Lord Cairns in Bell v. Kennedy, May 14, 1868, 6 Macph. (H.L.) 69, 5 S.L.R. 566, and Lord Westbury in Udny v. Udny, June 3, 1869, 7 Macph. (H.L.) 89. The question as there stated was, whether Sir William had intended to make and had made Scotland his home with the intention of permanently residing there. If the pursuer could establish this—as undoubtedly she had established it—then the judgment of the Court must be in her favour. The Lord Ordinary, however, had added another element which he considered necessary to establish a change of domicile, viz., an intention to change one's civil status from one country to another, an apprehension of the effect of doing so, and an intention of doing it. That was an entirely erroneous principle depending on old doctrines which received no countenance in modern cases. If it were given effect to the result would be that a man who knew nothing about the civil effects of a change of domicile, or even that there was such a thing as domicile, and moved from England to Scotland with the intention of living permanently in Scotland, leaving no interests in England, and having no intention whatever of returning there, would yet not be held to have abandoned his English domicile. In view of the decided cases such a result would manifestly be absurd. The Lord

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Ordinary's view was based on the following series of cases:— Somerville, 1801, 5 Vesey 750; Clarke v. Newmarsh, February 16, 1836, 14 S. 488; Munro v. Munro, August 10, 1840, 1 Rob. App. 492; Donaldson v. M'Clure, December 18, 1857, 20 D. 307 (Lord Curriehill at p. 321), affd. March 7, 1860, 3 Macq. 852; Aikman v. Aikman, March 12, 1861, 3 Macq. 854. In particular, he had been influenced by the opinion of Lord Curriehill in Donaldson. That opinion, however, if carried to its logical conclusion, would produce the absurd result indicated above. It was true that the doctrine laid down in these cases had been quoted with approval by the Lord President in Steel v. Steel, July 13, 1888, 15 R. 896, 25 S.L.R. 675, but his dicta thereon were manifestly obiter, that being a perfectly clear case upon the facts that the person whose domicile was in question never intended to reside permanently out of the country of his domicile of origin. In any view, these cases were entirely inconsistent with the cases of Bell and Udny, and with the latest Scotch case, Fairbairn v. Neville, November 30, 1897, 25 R. 192 (Lord President, at p. 202–3), 35 S.L.R. 178. There were three cases where domicile was held to be in a country though the person in question did his best to make out that he never had any such intention—that is, in spite of his expressed intention— in re Steer, 1858, 3 H. & N. 594, 28 L.J. Ex. 22; Doucet v. Geoghegan, 1878, 9 Ch. Div. 441; Craignish v. Hewitt, [1892], 3 Ch. 180. See also Abd-ul-messih v. Farra, 1888, 13 App Cas 431; Haldane v. Eckford, 1869, L.R., 8 Eq. 631; Brunel v. Brunel, 1871, L.R., 12 Eq. 298; Douglas v. Douglas, 1871, L.R., 12 Eq. 617; Forbes v. Forbes, February 9, 1854, 23 L.J., Ch. 724; Whicker v. Hume, 1858, 7 H.L.C. (Clark) 124; Attorney-General v. Winans, 1901, 85 L.T. 508; Westlake's Private International Law (3rd ed.), p. 304; Dicey's Conflict of Laws, pp. 108–10; Foote's Jurisprudence, p. 26. It was clear, therefore, from the preponderance of modern authorities that the additional onus thrown by the Lord Ordinary upon the pursuer of showing that Sir William had intentionally abandoned his English domicile and acquired a Scotch one was erroneous. If in fact he relinquished his status as a domiciled Englishman by taking up his permanent residence in Scotland, then the law would do the rest, apart altogether from what his view may have been. But if that were the true issue before the Court, then there could he no doubt from what were almost the admitted facts that Sir William intended to make and did make Scotland his permanent home from 1869 onwards, and accordingly the Court must decide in favour of the pursuers. The fact that he inherited and continued to possess considerable property in England, and that he drew a large income therefrom and from the bank, did not counterbalance the fact of his permanent home being in Scotland— Fairbairn v. Neville, supra; Anderson v. Laneuville, 1854, 9 Moore, P.C. 325; Forbes v. Forbes, supra; Platt v. Attorney-General of New South Wales, 1878, 3 App Cas 336; Attorney-General v. Winans, supra.

Argued for the defenders—The pursuers' argument came to this, that domicile depended upon residence, and residence alone. They denuded the question of what was domicile from every other consideration whatever, and argued'that all that was necessary for the acquisition of a new domicile was evidence of residence for a sufficient period animo remanendi. That was not the correct issue. Both the elements of abandonment and of acquisition must be present in the animus which had its con summation in the factum of the residen ce. There must be an intention of abandoning the domicile of origin and of acquiring a new one. It might well be that the facts in a case were so strong that such an intention would be inferred from them without any express declaration, but the mere fact of residence for an indefinite time did not come up to that. The cases upon which the Lord Ordinary had founded in support of this proposition amply bore it out. Nor was the law in any way altered by the decisions in Bell v. Kennedy, 6 Macph. (H.L.) 69, 5 S.L.R. 566; and Udny v. Udny, 7 Macph. (H.L.) 89. In Bell v. Kennedy the whole point was, not whether a man had or had not acquired a Scotch domicile, but whether he had acquired a Scotch domicile at a certain time. There was no question at all that the domicile of origin had been abandoned, and the one step in the process of acquiring a new domicile having thus been taken so far as intention was concerned, the only controversy therefore was at what point of time a new domicile had been acquired. Accordingly, Lord Cairns was not laying down any absolute rule conflicting with that laid down in previous cases, but was merely calling attention to the question of fact in that particular case. In the same way, in Udny v. Udny the only question was one of residence. It was equally clear there that England had been abandoned, and accordingly the element existing in the present case, the question of intention to abandon the domicile of origin, did not arise there. The observations of Lord Westbury were confined to the facts of that particular case, which were connected with residence and with residence alone, while in the present case residence was merely one in gredient of domicile. Nor was the opinion of Lord President Robertson in Fairbairn v. Neville ( 25 R. 192) at variance with the defender's view. He in the same way was dealing with a case where the domicile of origin had been clearly and intentionally abandoned. In that case the man had spent his whole professional life in Scotland and had continued to reside there after retiring from his office. Moreover, there he never really had an English residence; he only succeeded to a small estate in England after coming to Scotland, and did not take up such a connection with it as to make the case one of double residence such as was found here. There was accordingly nothing to displace the authority of the cases upon which the Lord Ordinary founded. On the

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contrary, the doctrine laid down in them was approved in the recent cases of Vincent v. Earl of Buchan, March 19, 1889, 16 R. 637, 26 S.L.R. 481; Steel v. Steel, July 13, 1888, 15 R. 896, 25 S.L.R. 675; Sourdis v. Keyser, March 11, 1902, 18 Times Law Reports, 414. If that were the law it was perfectly clear on the evidence that Sir William—while admittedly he preferred to live and did live the greater part of the last years of his life in Scotland—had never shown any intention of abandoning his domicile of origin, but had kept up to the end of his life the strongest connection with England, where all the more serious interests of his life had been and continued to be centred. The pursuer had therefore failed in discharging the serious onus of proving abandonment of the domicile of origin.

Counsel for the compearing defender and respondent Mrs Hawkshaw advanced argument in support of the additional plea for the compearing defenders, which in view of the decision of the Court it is unnecessary to set out

At advising—