Scottish Court of Session Decisions

On 27th November 1911 Cooper Corbidge, C.A., London, trustee in the bankruptcy of Samuel Wallace May Somerville, residing in Cornwall, pursuer, brought an action against the bankrupt's former wife Mrs Caroline Stuart May Somerville, defender, and the bankrupt for reduction of a decree of divorce pronounced against the bankrupt by Lord Dewar on 18th June 1910, the ground of reduction being that Mr Somerville was a domiciled Englishman, and that accordingly the Court which pronounced the decree had no jurisdiction.

The facts are given in the opinion ( infra) of the Lord Ordinary ( Cullen), who on 12th November 1913 granted decree as craved.

Opinion.—“The question now falling to be decided on the proof recently taken is whether the bankrupt Samuel Wallace May Somerville was domiciled in Scotland at the time of the decree of divorce under reduction. He was born in 1871 in Liverpool, where his father John May Somerville resided and carried on business as a merchant, and as the first question raised relates to the domicile which he derived from his father, it is necessary to consider how the matter of John May Somerville's domicile stands; and as, further, it is conceded by the defender that the domicile of a child follows, during the years of dependency, that of the father, the critical period at which John May Somerville's domicile falls to be regarded is not earlier than the year 1885, when according to Scots law Samuel Wallace May Somerville emerged from pupillarity.

“John May Somerville, the bankrupt's father, was born at Broomrig, near Dumfries, in 1840. His parents were both Scotch, his father's name Deing Samuel Henderson Somerville. There was a property called Whitecroft in the Somerville family. It was in Dumfriesshire, but nothing more is ascertained about it than this, that while the father of Samuel Henderson Somerville had directed it in his will to be entailed, the entail was ineffective, as the property had to be sold at his death to pay debts. The free proceeds were settled in trust for the benefit of Samuel Henderson Somerville and his wife in liferent in the first place, and for other purposes.

In 1855, when John May Somerville was fifteen years of age, his father Samuel Henderson Somerville gave up residence in Scotland and went to reside abroad, partly from motives of economy and partly from considerations affecting his health. He resided in various places on the Continent, and died at Ragatz in Switzerland in 1875. He never resumed residence in Scotland, although he visited it from time to time. He would appear to have remained during his life domiciled in Scotland.

John May Somerville, the bankrupt's father, left Scotland with his father in 1855, being then fifteen years of age. He never thereafter resumed residence in Scotland. His education was completed in Paris. Thereafter he adopted a mercantile career, and in 1856 or 1857 entered an office in Liverpool as an apprentice. On the completion of his training there he accepted service with a firm in Bombay, where he remained for some years. When he left the service of that firm he returned, about 1868, to Liverpool, and entered into partnership there with the witness Mr Hawkes for the purpose of carrying on a mercantile business under the style of Hawkes, Somerville, & Company. The partnership was from year to year, and continued for twenty-six years.

He married in 1870 a Miss Walker belonging to Glasgow. An antenuptial contract was entered into in Scottish form, which was drawn by the lady's solicitors in Glasgow and revised by Messrs Fraser, Stodart,

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& Company, W. S., Edinburgh, who had been the solicitors of the Somerville family, and continued to act for John May Somerville throughout his life. The deed contained an exclusion of jus relictæ and legitim.

From the period of his return from India about 1868 until 1901 John May Somerville resided in Liverpool (in which I include Birkenhead). The houses which he occupied would appear to have been held on lease. He latterly lived in Bidstone Road, Birkenhead, in a large house handsomely furnished. His father died in 1875. His mother thereafter came to live in family with him, and continued to live with him until her death in 1885. His wife died in 1891. At the end of 1894 he retired from business. He continued to live in Bidstone Road, Birkenhead, until 1901. About this latter period his health became unsatisfactory, and on medical advice he went to live in Bath. The lease of his house in Birkenhead had come to an end and he gave up the house. He entered into an agreement with a brother resident in London whereby the latter hired from him his furniture, which was of considerable value. At Bath he lived in rooms. From there he went on occasional visits to Liverpool. Between 1901 and his death his settled residence was in Bath. His death occurred in 1908 at Weymouth, where he had gone on a short holiday.

From 1868, when John May Somerville went into partnership with Mr Hawkes, until he went to Bath in 1901, he resided, as I have said, in Liverpool. And as a person's residence in a particular place may be of one kind or another, and may involve, or may not, his settlement there, I am of opinion that John May Somerville was fully settled in Liverpool. Apart from holidays in pursuit of sport (to which I shall advert in a moment) all the elements which go to make up a settled residence were present. His business and worldly interest were centred in Liverpool, and his local interests and ties were just those of any domiciled Englishman residing there. He never had a residence elsewhere. He did not, prior to 1901, express any desire or intention of leaving Liverpool and of going to live elsewhere. In particular, he did not express any desire or intention of going to live in Scotland. He was freed from his direct business tie with Liverpool when he retired from his firm in 1894, but he made no change in his residence. It is true that he had a current lease of his house. But had he entertained any definite desire of returning to his native country, I take it that the disposal of the remainder of his lease would not have presented any great obstacle. It is also true that in 1897 he proposed to his brother a hiring arrangement regarding his furniture (afterwards carried out in 1901), but this was apparently only because he thought it better not to keep up such a large establishment for his sole accommodation. The proposal was not associated with any intention of going to Scotland.

John May Somerville was a keen sportsman, and his holidays were devoted to the pursuit of sport in the form of shooting and fishing. He spent them in Scotland, Ireland, and Norway, but more particularly in Scotland, where for a number of years he shared shootings and fishings with a friend, Mr Beauford. These were in the north, mostly in Ross-shire. Mr Beauford and he stayed there in a hotel, there being no lodge available. The account given of his comings and goings shows clearly enough that these were regulated merely by sporting objects. He never resorted for sport to Dumfriesshire, his native county, or to the south of Scotland. Indeed the evidence does not show that he ever visited that part of Scotland after he left it at the age of fifteen. I do not regard these sporting holidays in the north of Scotland as a material element in the case. They are no more evidence of an animus revertendi on the part of John May Somerville than they would be evidence of an animus on the part of his co-tenant Mr Beauford to settle in Scotland.

John May Somerville would appear to have had a marked Scottish sentiment. But he was content to cherish it on a foreign soil.

Much stress is laid by the defender on certain declarations as to domicile made by John May Somerville in his testamentary writings. Of these he executed a number. In 1890 he made a new will, which was drawn up by Mr Fraser, W.S., Edinburgh, whose services as his solicitor he retained throughout his life. In drawing up this will of 1890 Mr Fraser inserted a description of the testator as a domiciled Scotsman, and in sending the draft to Mr Somerville for approval he drew attention to the description adding that in his opinion Mr Somerville was still domiciled in Scotland, and that a declared domicile in Scotland would facilitate the winding up of his estate on his death. Mr Somerville returned the draft approved, without making any reference to the topic of domicile, and the will was executed as framed. In subsequent testamentary writings framed by Mr Fraser the description was repeated without any further reference to it in communications between him and his client. The defender points to these various documents embodying declarations by Mr Somerville as to his domicile. Now in certain cases, as, for example, in cases of double residence and a separation of interests between one country and another, such declarations may be of some importance. In other cases declarations as to domicile will be of no importance. A man cannot change his domicile merely by a declaration. If he is born and lives out his life in Scotland, he cannot make himself domiciled in England by declaring that country to be the place of his domicile. Econverso if he migrates to England and settles in it, animo manendi, he cannot retain his Scottish domicile, contrary to the facts of his life, by declaring himself still domiciled in Scotland. His declaration in such circumstances is merely a defiance of the legal rule as to domicile under which settlement in a foreign country, animo manendi, involves the acquisition of a domicile there, although the person in question may either know nothing about the legal conception of domicile, or, if he does, may desire, contrary

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to law, to avert the consequences of his actings. It is true that a man can only change his domicile animo et facto. But, as I underst and the law of the matter, the factum is residence in a new country and the animus is the animus manendi, that is to say, residence there with the intention of continuing such residence permanently, or indefinitely, with out any animus revertendi. If a man settles himself in a new country of his free choice, either with a definitely realised intention of residing there to the end of his days or (as is the more common case) with the intention of residing there indefinitely, and without harbouring any intention of reverting to the country he has left, a change of domicile follows, and it is not required as a condition of such change that he should know what domicile involves, should think about it, and, being seised of the subject, should make a resolution—superadded to his intention of permanent or indefinitely prolonged residence—to effectuate the legal change. Most people who change their domicile by settlement in a new country never apply their minds to the legal aspect of the matter, and make no resolution regarding it. They settle and the law attaches the change in their legal relations. To take an extreme case, an illiterate person who never heard of the subject of domicile, is incapable of intelligently grasping its meaning, and is ignorant of the fact that the laws of England and Scotland differ, may change his domicile by leaving the one country and settling down permanently in the other. This, of course, does not figure the case of John May Somerville, whom I am willing to credit with a knowledge of what domicile means, and with a realised intention of continuing to be domiciled in Scotland. But I apply the observations on which I have ventured to this effect that John May Somerville, having settled himself permanently or indefinitely in England with no intention of ever reverting to Scotland as a home, became in consequence domiciled in England, and could not avert his change of domicile by electing to describe himself as a domiciled Scotsman. ‘Domicile of choice is a conclusion of 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. This is a description of the circumstances which create or constitute a domicile, and not a definition of the term. There must be a residence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief of illness. And it must be residence fixed not for any defined period or particular purpose, but general and indefinite in its future duration. It is true that residence, originally temporary, or intended only for a limited period, may afterwards become general and unlimited, and in such a case, so soon as the change of purpose or the animus manendi can be inferred, the fact of domicile is established.’— Per Lord Westbury in Udny v. Udny, L.R. I Sc. App. 441, and 7 Macph. (H.L.) 99. This statement may be susceptible of amplification in cases of double residence and division of life as between one country and another. But I appeal to it as satisfactorily stating the rule as to the constitution of a domicile of choice in such a case as that of John May Somerville, who voluntarily fixed his sole residence in England with an unlimited or indefinite intention of continuing to reside there. And I cannot say that I have much difficulty in holding that John May Somerville was at the date of his death in 1908 domiciled in England. The question at issue, however, draws back, ex hypothesi, to the year 1885. I equally hold that he was at that period domiciled in England. He then had had his sole residence in England for about seventeen years. He had no tie with Scotland save that of birth and ancestry. His business and worldly interests were centred in England. He had not expressed or evinced any intention of reverting to Scotland as a place of residence. And the facts of his life after 1885 may, I think, be legitimately referred to as confirming the inference which I draw of his animus manendi at the earlier period.

If the issue presented for decision on this head of the case had been as to John May Somerville's domicile in 1871, when his son, the bankrupt, was born, I should have felt more difficulty. At that time he had only resided and had his business in Liverpool for three years. But, ex concessis, I am not called on to decide that question. Length of residence counts, taken along with the other circumstances of a man's life. And I am of opinion, on a review of the facts of John May Somerville's life, that at least by the year 1885 he had by settled residence in England become domiciled there.

If I am right in the view above expressed, it is decisive of the case, as Samuel Wallace May Somerville, the bankrupt, at least when he emerged from pupillarity according to Scots Law in 1885, took an English domicile derived from the domicile of choice of his father. But as I may be wrong, there remains for consideration the question as to the domicile of Samuel Wallace May Somerville at the date of the decree of divorce under reduction, on the assumption that his domicile derived from his father when he emerged from pupillarity in 1885 was a Scottish domicile.

A domicile of origin persists until another is acquired by choice. But as a domicile of origin may arise under one set of circumstances or another, it will yield more or less readily to facts pointing to an intention to change it, according to the circumstances of the particular case. It is one case, for example, if a man, having his domicile of origin in Scotland, has been born there, and continues in settled residence with all his worldly interests there, and only in middle life makes the change to a new country of residence, say England, which gives rise to the question. It is another case if the man is born, say in England, where his Scotch father is temporarily settled, and grows up to manhood there, if he has no direct personal relations with Scotland, has never taken up residence

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there, and has nothing to bind him to that country save the tie of ancestry. As between two such cases the onus of proving an animus manendi in England will be less easily discharged in the former, the man having been rooted in Scotland in point of fact, and it being necessary to show that he intended to uproot himself and transplant himself in England. In the latter case there are no roots to uplift, and it may be the more easily shown that the man intended to settle in the country where he was born and has grown up.

The latter of these cases is that of the bankrupt Samuel Wallace May Somerville. He was born in Liverpool, where his father resided and carried on business, and he was thus educated in England in the same way as the son of any domiciled Englishman, first at Harrow and thereafter at Sandhurst. He never resided in Scotland—apart from accompanying his father sometimes on sporting holidays—and he had no tie with Scotland calculated to lead him to resort thither unless his father, on whom he was dependent, should have chosen to revert to Scotland, which he never did. If Samuel Wallace May Somerville, on attaining manhood, had entered on the pursuit of a profession in England, nothing more, I think, would have been necessary to show that he had made England his home by adoption, and to attach to him a domicile of choice therein. As it was, he entered the army, and so did not locate himself specifically in England. He went with his regiment to India, where in 1899 he married the defender, being then twenty-eight years of age. He turned out improvident and dissolute. Not long after his marriage he resigned his commission, for reasons which the evidence does not make clear. He returned with his wife to England, where he resided until January 1901. He was in debt, and his father agreed to clear his feet on condition that he went to New Zealand. He lived with his wife and child in New Zealand on an allowance from his father until his father's death in 1908. Immediately on receipt of notice of his father's death he returned to Britain and went to Edinburgh to interview Mr Fraser, W.S., regarding his inheritance. This may be stated to have been (1) a fund of £5000 or thereby falling to him absolutely, and (2) a liferent interest in a settled fund of £18,000 or thereby which is at stake in this action. Having ascertained what fell to him, he then determined to purchase a residence in the South of England. The selection of the South of England was influenced by the health of his wife. The purchase of a residence—in contrast to the renting of one—was influenced by Mrs Somerville's view that her husband's available capital would be more safely disposed of in that way than if left in his hands. In the result the bankrupt purchased a residence known as Warnford Cottage, in Hampshire, at the price of £2150. It was not in good tenantable repair, and he proceeded to have it made so, and also to have it enlarged by the building of a billiard room. For these purposes he contracted with a firm in London, whose account forms the greater part of his liabilities under his bankruptcy. The repairs and beautifying of the house, and the addition thereto, were duly carried out, and in September 1909 the bankrupt settled down in residence at Warnford Cottage with his wife and child. Unfortunately he had spent in other ways most of the money which should have gone to pay the bill for the house, and in October 1909 he was served with a writ at the instance of the London firm. On 2nd November he left Warnford Cottage for London, and he did not thereafter live with the defender. In April 1910 the defender raised against him in this Court an action of divorce on the ground of adultery committed by him in London in November 1909, and in that action she obtained, on 18th June 1910, the decree in absence which the pursuer now seeks to reduce. Since he left Warnford Cottage on 2nd November 1909 the bankrupt has resided in England, and since the decree of divorce he has subsisted on an allowance made to him by the defender.

Such being the material facts of the bankrupt's life, the question under consideration is, whether, if his domicile of origin was Scotch, he retained that domicile at the period of the divorce, or, on the contrary, had then become settled, permanently or indefinitely, in England, so as to acquire a domicile of choice there. The question is a somewhat narrow one. I have come to the conclusion that his domicile was in England, and I shall state my reasons for so thinking. In the first place, his assumed Scottish domicile of origin carried with it no linking of his actual life with Scotland. He has never had any residence there. I put aside the sporting holidays with his father as not material to the issue. Apart from the time he spent abroad he has lived all his life in England and has had no home elsewhere. These facts might not have been enough, under the conditions of his life, to definitely fix him in England as being by choice the country in which he had settled animo manendi. But what he did after his father's death, when he became independent as to means of living, seems to me to be sufficient to show his intention to settle in England animo manendi. He purchased Warnford Cottage in Hampshire, and the circumstances attending its purchase make it clear in my opinion that he intended to settle in it with an indefinite intention of continuing to reside there. There was no intention of merely sojourning there or elsewhere in England with a prospect of ultimately resorting to Scotland. It is true that the bankrupt has, or professes to have, a strong inherited sentiment for Scotland. Also that he seems to have had airy dreams of some impossible future when he might reacquire Whitecroft in Dumfriesshire; but these were quite divorced from the realities of his situation, and formed no factor in the practical ordering of his life. When his father died, and he had ascertained his inheritance, he took up residence in England, and there is, in my opinion, no reliable evidence to show that he entertained an intention of leaving England for Scotland

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in the future. People do not, for the most part, come to a resolution that they will end their days in a particular place where they live. What they usually do is to settle down or continue settled in residence in a particular country with an indefinite intention of continuing to reside there. And such an intention constitutes the animus manendi required to attach to them a domicile in the country where they are so settled.

The period of the bankrupt's actual residence at Warnford Cottage was very brief. And the question under consideration would, no doubt, have been easier of solution had he resided there for a prolonged period after he made the purchase. But the material element, on the facts as they stand, is not the brevity of his residence but his intention of residence as importing an animus manendi in England or not. I am of opinion that he did settle animo manendi in England, where he has since resided, and, accordingly, that if the domicile he derived from his father be assumed to have been in Scotland, he had at the date of the decree of divorce under reduction acquired, by choice, a domicile in England.

Following the views which I have expressed I shall pronounce decree of reduction in terms of the conclusions of the summons.”

Mrs Somerville reclaimed, and argued—The Lord Ordinary was in error in regarding the year 1885—when the bankrupt became sui juris— as the critical date; the critical date was 1871, the year of his birth. At that date his father's domicile was Scotch. The bankrupt's domicile of origin was therefore Scotch. Esto that when he attained pupil—larity he could have acquired an English domicile, he had never done so. The onus of showing that a domicile of origin had been abandoned was a heavy one, and the pursuer had failed to discharge it. As to what would infer abandonment of a domicile of origin and the acquisition of a domicile of choice, reference was made to the following authorities—Westlake's Private International Law (5th ed.), sec. 256 et seq.; Hoskins v. Matthews (1855), 8De G. M. & G. 13; in re Steer (1858), 3 H. & N. 594; Moor house v. Lord (1863), 10 H.L.C. 272; Capdevielle v. Capdevielle, (1869) 21 L.T. 660; Steel v. Steel, July 13, 1888, 15 R. 896, 25 S.L.R. 675; Fairbairn v. Neville, November 30, 1897, 25 R. 192, 35 S.L.R. 178; Brooks v. Brooks' Trustees, July 15, 1902, 4 F. 1014, 39 S.L.R. 816, aff. December 14, 1905, 8 F. (H.L.) 4, 43 S.L.R. 112; Winans v. Attorney-General, [1904] AC 287.

Argued for respondent—The evidence showed that the bankrupt's domicile of origin was English, and if that were so the reclaimer's case admittedly failed. If, however, the bankrupt's domicile of origin were Scotch, the facts showed that he had abandoned it, and that at the date of the divorce he was a domiciled Englishman. As to what was sufficient to acquire a domicile of choice, reference was made to Somerville v. Somerville (1801), 5 Vesey 749a; Donaldson v. M'Clure, December 18, 1857, 20 D. 307; Hodgson v. De Beauchesne, (1858) 12 Moore P.C. R. 285; Bell v. Kennedy, May 14, 1868, 6 Macph. (H.L.) 69, 5 S.L.R. 566; Udny v. Udny, June 3, 1869, 7 Macph. (H.L.) 89; Douglas v. Douglas, (1871) L.R., 12 Eq. 617; in re Craignish, [1892] 3 Ch 180; Murray v. Maclachlan, (1900) 8 S.L.T. 233.

At advising—