COUNSEL: Asquith, K.C. (Bray, K.C., C. Willoughby Williams,and Kekewich with him), for the appellants.

Sir E. Carson, S.-G., and Vaughan Hawkins (Sir R. Finlay, A.-G., with them), for the respondent.

 

SOLICITORS: E. H. Quicke, for H. Montague Williams, Brighton; Solicitor of Inland Revenue.

 

JUDGES: Earl Of Halsbury L.C., Lord Macnaghten, and Lord Lindley.

 

DATE: 1904 May 10.

 

 

Domicil – Domicil of Origin – Abandonment – Acquiring fresh Domicil – Evidence – Onus of Proof.

 

The onus of proving that a domicil has been chosen in substitution for the domicil of origin lies upon those who assert that the domicil of origin has been lost. The domicil of origin continues unless a fixed and settled intention of abandoning the first domicil and acquiring another as the sole domicil is clearly shewn.

 

An American citizen left the United States and lived many years in England, where he died, leaving by will a legacy on which the Crown claimed legacy duty, on the ground that the testator had acquired a domicil in England:–

 

Held, that the onus of shewing a change of domicil was upon the Crown, and (Lord Lindley dissenting) that the proof of a fixed and settled purpose was not clearly made out, and that legacy duty was not payable.

 

The decision of the Court of Appeal reversed.

 

WILLIAM LOUIS WINANS was born in the United States in 1823. In 1859 he came to England and lived there in various places until his death in 1897. By his will he bequeathed an annuity to a relative, and the question in this appeal was whether he was at his death domiciled in England. If he was, legacy duty was payable; otherwise not. The Attorney-General having filed an information against the appellants (who were the executors) to recover the duty, Kennedy and Phillimore JJ. held that the testator was at his decease domiciled in England and that the duty was payable. This decision was affirmed by the Court of Appeal (Collins M.R., Stirling and Mathew L.JJ.) Hence this appeal. The arguments turned entirely on the true inference of fact to be drawn from the evidence, which is fully stated in Lord Macnaghten’s judgment.

 

Feb. 8, 9. Asquith, K.C. (Bray, K.C., C. Willoughby Williams,and Kekewich with him), for the appellants, contended that [*288] the evidence shewed no fixed intention to abandon the domicil of birth and acquire another; or at all events that it was not clearly made out by the Crown, on whom the onus lay.

 

Sir E. Carson, S.-G., and Vaughan Hawkins (Sir R. Finlay, A.-G., with them), for the respondent, contended that the evidence was clear and satisfactory that the testator had a fixed and settled intention to abandon the American domicil and acquire an English one.

 

Asquith, K.C., in reply.

 

The House took time for consideration.

 

May 10. EARL OF HALSBURY L.C. My Lords, the short question here is whether Mr. Winans was at the time of his death domiciled in this country. So far as it is a question of law it is simple enough to state, but when the law has been stated a difficult and complex question of fact arises, which it is almost always very hard to solve.

 

Now the law is plain, that where a domicil of origin is proved it lies upon the person who asserts a change of domicil to establish it, and it is necessary to prove that the person who is alleged to have changed his domicil had a fixed and determined purpose to make the place of his new domicil his permanent home. Although many varieties of expression have been used, I believe the idea of domicil may be quite adequately expressed by the phrase – Was the place intended to be the permanent home? Now Mr. Winans was an American citizen; he resided in Russia for some time; he had various residences in England, and great sporting leases in Scotland. He married in St. Petersburg a Guernsey lady. He had property in the United States, and he originally came to England upon the recommendation of his medical man. He lived a very long time in England, and if I were satisfied that he intended to make England his permanent home I do not think it would make any difference that he had arrived at the determination to make it so by reason of the state of his health, as to which he was very solicitous. It would be enough that for obvious [*289] reasons he had determined to make England his permanent home. But was that his determination? I confess I am not able very confidently to answer that question either way. I have been in considerable doubt, when I view his whole career, whether he ever intended finally to remain here. He had invented cigar-shaped boats, in which he took a deep interest as inventor, and also as one who meant to travel back to his own country when his boats succeeded.

 

It may be that your Lordships do not think that he was likely to succeed, but it may confidently be asserted that the inventor thoroughly believed that he would succeed. It is true that great reliance might not only be placed upon his great acquisition of sporting areas in Scotland, but, on the other hand, they were treated by him rather as profit-making investments than because he himself was devoted to sport; but even in this, as in some other parts of his conduct, it is difficult to say that a certain inference could be deduced from what he did. Being a man of enormous wealth, he never made such a home for himself or his family as one would have expected if he had really meant to remain permanently in England. Like all questions of fact dependent upon a variety of smaller facts, it is possible to treat this or that evidence as conclusive, and different minds will attribute different degrees of importance to the same facts.

 

I must admit that I have regarded the whole history of Mr. Winans’ life differently at different stages of the argument, and the conclusion I have come to is that I cannot say that I can come to a satisfactory conclusion either way; but then the law relieves me from the embarrassment which would otherwise condemn me to the solution of an insoluble problem, because it directs me in my present state of mind to consider upon whom is the burden of proof. Undoubtedly it is upon the Crown, and, as I cannot bring myself to a conclusion, either way, whether Mr. Winans did or did not intend to change his domicil, his domicil of origin must remain, and I, therefore, am of opinion that the judgment of the Court of Appeal ought to be reversed. [*290]

 

LORD MACNAGHTEN. My Lords, there is, I think, hardly any branch of law which has been more frequently or more fully discussed in this House in comparatively modern times than the law of domicil. Difficulties have arisen, and difficulties must arise now and then, in coming to a conclusion upon the facts of a particular case. But those difficulties, as Lord Cottenham said, are “much diminished by keeping steadily in view the principle which ought to guide the decision as to the application of the facts.”

 

Domicil of origin, or as it is sometimes called, perhaps less accurately, “domicil of birth,” differs from domicil of choice mainly in this – that its character is more enduring, its hold stronger, and less easily shaken off.

 

In Munro v. Munro (1) Lord Cottenham observed that it was one of the principles adopted, not only by the law of England, but generally by the laws of other countries, “that the domicil of origin must prevail until the party has not only acquired another, but has manifested and carried into execution an intention of abandoning his former domicil and acquiring another as his sole domicil. … Residence alone,” he adds, “has no effect per se, though it may be most important as a ground from which to infer intention.” “The law,” said Lord Cairns L.C. in Bell v. Kennedy (2), “is beyond all doubt clear with regard to the domicil of birth that the personal status indicated by that term clings and adheres to the subject of it until an actual change is made by which the personal status of another domicil is acquired.” The onus of proving that a domicil has been chosen in substitution for the domicil of origin lies upon those who assert that the domicil of origin has been lost.

 

“Residence and domicil,” as Lord Westbury points out (3), “are two perfectly distinct things. … Although residence may be some small primä facie proof of domicil, it is by no means to be inferred from the fact of residence that domicil results, even although you do not find the party had any other

 

(1) (1840) 7 Cl. & F. 876; 51 R. R. 103.

 

(2) (1868) L. R. 1 H. L., Sc. 310.

 

(3) L. R. 1 H. L., Sc. 320, at p. 321. [*291]

 

residence in existence or in contemplation.” Lord Chelmsford’s opinion – Udny v. Udny (1) – was that “in a competition between a domicil of origin and an alleged subsequently acquired domicil there may be circumstances to shew that however long a residence may have continued, no intention of acquiring a domicil may have existed at any one moment during the whole of the continuance of such residence. The question in such a case is not whether there is evidence of an intention to retain the domicil of origin, but whether it is proved that there was an intention to acquire another domicil.”

 

Such an intention, I think, is not to be inferred from an attitude of indifference or a disinclination to move increasing with increasing years, least of all from the absence of any manifestation of intention one way or the other. It must be, to quote Lord Westbury again, a “fixed and settled purpose.” “And,” says his Lordship (2), “unless you are able to shew that with perfect clearness and satisfaction to yourselves, it follows that a domicil of origin continues.” So heavy is the burden cast upon those who seek to shew that the domicil of origin has been superseded by a domicil of choice! And rightly, I think. A change of domicil is a serious matter – serious enough when the competition is between two domicils both within the ambit of one and the same kingdom or country – more serious still when one of the two is altogether foreign. The change may involve far-reaching consequences in regard to succession and distribution and other things which depend on domicil.

 

To the same effect was the inquiry which Lord Cairns proposed for the consideration of the House in Bell v. Kennedy. (3) It was this: Whether the person whose domicil was in question had “determined” to make, and had, in fact, made the alleged domicil of choice “his home with the intention of establishing himself and his family there, and ending his days in that country”? In a later case, Douglas v. Douglas (4), which came before Wickens V.-C., who was an excellent lawyer, and owing to the official position which he long held

 

(1) (1869) L. R. 1 H. L., Sc. 455.

 

(2) L. R. 1 H. L., Sc. 321.

 

(3) L. R. 1 H. L., Sc. 311.

 

(4) (1871) L. R. 12 Eq. 645. [*292]

 

peculiarly conversant with cases of this sort, all the authorities were reviewed. The competition there was between a Scotch domicil of origin and an alleged English domicil of choice. The learned Vice-Chancellor thought the case “a peculiar and difficult one.” He put the question in this way: “What has to be here considered,” he said, “is whether the testator …. ever actually declared a final and deliberate intention of settling in England, or whether his conduct and declarations lead to the belief that he would have declared such an intention if the necessity of making the election between the countries had arisen.”

 

My Lords, if the authorities I have cited are still law, the question which your Lordships have to consider must, I think, be this: Has it been proved “with perfect clearness and satisfaction to yourselves” that Mr. Winans had at the time of his death formed a “fixed and settled purpose” – “a determination” – “a final and deliberate intention” – to abandon his American domicil and settle in England?

 

Considering the amount of Mr. Winans’ fortune, which was between two and three millions in marketable securities, and the length of his residence in this country, it is somewhat singular that the evidence offered on the question before your Lordships should be so meagre. There is not a single letter written by or to him, or a memorandum or note of any sort made by him, which bears directly on the point. There is nothing but long-continued residence in England on the one hand and some oral declarations and some words in some legal documents on the other. There is nothing else except such inference as may be drawn from a consideration of Mr. Winans’ character and disposition, the life he led here, and the objects which he seems to have had most at heart.

 

The principal events in Mr. Winans’ life may be stated briefly. He was born in the United States in 1823. He lived there till 1850, residing in Baltimore with his father, a railway contractor, and employed in his father’s business. Mr. Winans’ eldest son, Walter, who was examined in this case, says that when he spoke of Baltimore he always called it “home.” In 1850 Mr. Winans went to Russia. He was [*293] employed by the Russian Government, as his father had been, in equipping railways there on the American system. During the Crimean War he rendered assistance to the Russian Government in the construction and the equipment of gunboats to be used against the enemy – England and England’s ally. In Russia he married a Guernsey lady, the daughter of a gentleman also employed by the Russian Government. He had two sons by her. In 1859 his health broke down. There were symptoms of consumption, and he was warned by his doctor that another winter in Russia would probably be fatal. He was advised to winter in Brighton in England. Very reluctantly, under medical orders, he left St. Petersburg and spent the winter in a hotel at Brighton, returning to Russia when the winter was over. In 1860 he took a furnished house in Brighton, No. 2, Chichester Terrace, for a term of five years, determinable at the end of any year. He also took the next house, No. 1, for a term of twenty-one years, determinable at the fifth, seventh, or fourteenth year. He connected the two houses structurally. He held both these houses at the time of his death – the furnished house, No. 2, as tenant from year to year and No. 1 on a tenancy similar to that on which it was originally taken. From 1860 down to 1870 or 1871 he used to spend the winter at Brighton and about eight months of the year in Russia. In 1870 he gave up his house in St. Petersburg, and took a lease of some shooting in Scotland, apparently for the sake of his sons, for he shot very little himself. From 1871 to 1883 he spent about two months in Russia, two or three months in Kissingen in Germany, and the rest of the year in Brighton, Scotland, or London. In 1883 he ceased to visit Russia, thenceforward dividing his time between Kissingen, Brighton, London, and Scotland. This mode of life continued until 1893. After that date he spent the whole of the year in England – in London, Brighton, and the country. He never bought an estate in England for himself or for either of his sons. As far as he was concerned “he preferred living in furnished houses or hotels” – so his son says.

 

Two events in his life referred to in the argument have, I [*294] think, no bearing on the question before your Lordships. In 1877, to please his wife, he bought the Crown lease of a house in Palace Gardens. But he never lived there after 1892. It was shut up, and he tried to dispose of it. When he bought the lease he seems to have made particular inquiries in order to ascertain whether there was anything in the conditions of the lease which might prevent his parting with it at any time he pleased. He never liked to “hamper” himself. Any prudent person would probably have done the same. Then there was his unfortunate experiment in the management and improvement of deer forests in Scotland. He took vast tracts of forest, not, perhaps, altogether for sporting purposes, as sport is understood in this country. After a time he inclosed the ground with miles of fencing to prevent the deer straying. He had a notion that the value of the forest for letting purposes would be much increased by stopping shooting for some years, and allowing the stags a longer term of undisturbed life. However, he got into trouble with the crofters and with his lessors, and he became rather unpopular both with those by whom deer-stalking is highly esteemed and those to whom deer forests are an abomination. He thought, too, he had rather wasted money on the shootings; so he gave up his experiment, and he seems to have got rid of all the Scotch shootings before his death.

 

My Lords, in the dearth of evidence by written or oral declaration as to Mr. Winans’ intentions, it seems to me to be important to consider what manner of man Mr. Winans was, what were the main objects of his existence, and what sort of a life he lived in this country. I think there is a good deal of force in some observations that were made both by Lord Cranworth and Lord Wensleydale in the case of Whicker v. Hume (1) to the effect that in these days, when the tendency of the educated and leisured classes is to become cosmopolitan – if I may use the word – you must look very narrowly into the nature of a residence suggested as a domicil of choice before you deprive a man of his native domicil.

 

Mr. Winans was a person of considerable ability and of singular tenacity of purpose, self-centred, and strangely

 

(1) (1858) 10 H. L. C. 124. [*295]

 

uncommunicative. He was not interested in many things, but whatever he did he did, as his son says, thoroughly. He became completely absorbed in a scheme when he took it up. At the same time he lived a very retired – almost a secluded – life. He took no part in general or municipal politics. He rarely went into society. He had no intimate friends, if, indeed, he had any friends at all, in this country. There is no evidence that he was interested in any charity or charitable or philanthropic institution in England. Although he was on affectionate terms with his two sons, he never let them into his secrets. “He always worked his business himself,” his son says, “and never brought us into the business affairs in any way.” And although at odd times he mentioned his property in America, he never allowed even his eldest son “to understand much about it.”

 

Mr. Winans had three objects in life. His first object was his health. He nursed and tended it with wonderful devotion. He took his temperature several times a day. He had regular times for taking his temperature, and regular times for taking his various waters and medicines.

 

Besides the care of his health, there were two other objects which engrossed his thoughts. The first was the construction of spindle-shaped vessels commonly called cigar ships. This form of vessel was, as Mr. Winans asserted, an invention of the Winans family. Many patents were taken out for it both in England and in America. It was claimed that vessels of this type would be able to cross the Atlantic without pitching or rolling. In an application to Congress in the year 1892 Mr. Winans represented himself as attached heart and soul to his country, and asked for protection for a long term of years in consideration of the great expenditure which he and his family had incurred in perfecting the invention, and the vast benefits that would result from it to the people of the United States. Mr. Winans declared his confident expectation that a fleet of spindle-shaped vessels subsidized by Congress would restore to America the carrying trade which had fallen into the hands of England and other foreign nations, secure to America the command of the sea, and make it impossible for Great [*296] Britain to maintain war against the United States. Such a fleet as he described in his application could, he said, “meet war vessels in open sea near the European side and destroy one vessel after another, so that none of them would be able to reach our shores.” In the development of his invention Mr. Winans stated that he had incurred an expense nearly equal to four millions of dollars.

 

Mr. Winans’ confidence in this project remained unshaken to the end of his life, and he kept an office in Beaufort Gardens where a staff of engineers and draftsmen was engaged in working out the problem.

 

There was another scheme which Mr. Winans hoped to develop and work in connection with his fleet of spindle-shaped vessels. In 1859 a property in Baltimore, about 200 acres in extent, called Ferry Bar, was purchased on behalf of the Winans family originally for the purpose of being used, as Mr. Winans states in a letter of January 31, 1882, “for the service of the sea-going steamers of the spindle-shaped form.” The scheme was that the water frontage should be used for wharves and docks, while a portion of the property should be laid out for the building of first-class houses as a sort of Belgravia. There Mr. Winans intended to build a big house for himself and control the undertaking, which would make the property, he thought, when developed, worth one million sterling. Nothing practical came of this scheme, because the members of the family could not agree among themselves how the property was to be developed. So Mr. Winans determined to wait until he could get the whole into his own hands. Then he would develop the property himself in his own way and according to his own ideas. He did not succeed in acquiring the entire interest until just before his death. At the date of his death, his son says, “he was working night and day on it.” I find that in the conveyances of the last portion of the Ferry Bar property, which were prepared just before his death, and which are dated June 16, 1897, Mr. Winans is described as “of City of Baltimore, but now sojourning in the City of London, England.”

 

Of course, to us these schemes of Mr. Winans appear wild, [*297] visionary, and chimerical. But I have no doubt that to a man like Mr. Winans, wholly wrapt up in himself, they were very real. They were the dream of his life. For forty years he kept them steadily in view. And one was anti-English and the other wholly American.

 

It was in connection with these schemes that the latest and clearest declaration of intention was made by Mr. Winans. Mr. H. Montague Williams, who was his solicitor at Brighton, says that about two years before his death – a time which in cross-examination he fixed in the winter of 1895 or beginning of 1896 – Mr. Winans entered into rather a lengthy disquisition about the Ferry Bar property. Mr. Winans told him that he was making arrangements for buying the remaining shares in it, that a good deal of it belonged to him, and that he intended when he had done that to go out to America and live in Baltimore and develop the estate there himself. Mr. Williams says he remembers Mr. Winans particularly saying, “If I do that it will be worth a million pounds”; and he adds, “The decided way in which he said ‘I shall go out to Baltimore’ (or words to that effect) struck me at the time.”

 

The only other circumstance to be mentioned is that in his will dated February 4, 1897, Mr. Winans describes himself as a “citizen of the United States of America.”

 

It was argued on behalf of the Crown that, although Mr. Winans may have been prevented by the state of his health from returning to America when he left Russia, and although he could not have safely attempted the voyage in the latter years of his life, yet there was a time in which he might have ventured to cross the Atlantic in an ordinary liner. The obvious answer is that at that time, when divided counsels and family disagreements prevented the development of the Ferry Bar property, he had no object in going to Baltimore.

 

Then it was said that the length of time during which Mr. Winans resided in this country leads to the inference that he must have become content to make this country his home. Length of time is of course a very important element in questions of domicil. An unconscious change may come over a man’s mind. If the man goes about and mixes in society [*298] that is not an improbable result. But in the case of a person like Mr. Winans, who kept himself to himself and had little or no intercourse with his fellow men, it seems to me that at the end of any space of time, however long, his mind would probably be in the state it was at the beginning. When he came to this country he was a sojourner and a stranger, and he was, I think, a sojourner and a stranger in it when he died.

 

On the whole I am unable to come to the conclusion that Mr. Winans ever formed a fixed and settled purpose of abandoning his American domicil and settling finally in England. I think up to the very last he had an expectation or hope of returning to America and seeing his grand schemes inaugurated. To take the test proposed by Wickens V.-C., “if the question had arisen in a form requiring a deliberate or solemn determination,” I have no doubt Mr. Winans, who was, as his son says, “entirely American in all his ideas and sympathies,” would have answered it in favour of America.

 

I am therefore of opinion that the Crown has not discharged the onus cast upon it, and I think that the order appealed from ought to be reversed.

 

LORD LINDLEY. My Lords, Mr. Winans, whose domicil is in question, was born in 1823 in the State of New Jersey, in the United States of America. His father was an American citizen. In what State his father was domiciled when his son was born does not appear. But when his son was a child about three years old, the father and son settled in Baltimore, in the State of Maryland, and there they remained until 1850, when the son left America and went to Russia on business. He never returned to America. After spending some years in Russia he settled in England with his wife and family, and he died in this country in 1897. It is quite unnecessary to consider whether Mr. Winans’ domicil of origin was in New Jersey or in Maryland. Whichever it was it was American, as distinguished from British, and the question for your Lordships’ determination is whether he lost his American domicil of origin (in whatever State it may have been), and whether, when he died, he had acquired a domicil in this country. [*299]

 

My Lords, I take it to be clearly settled – by the Lauderdale Peerage Case (1); Udny v. Udny (2); Bell v. Kennedy (3) – that the burden of proof in all inquiries of this nature lies upon those who assert that a domicil of origin has been lost, and that some other domicil has been acquired. Further, I take it to be clearly settled that no person who is sui juris can change his domicil without a physical change of place, coupled with an intention to adopt the place to which he goes as his home or fixed abode or permanent residence, whichever expression may be preferred. If a change of residence is proved, the intention necessary to establish a change of domicil is an intention to adopt the second residence as home, or, in other words, an intention to remain without any intention of further change except possibly for some temporary purpose: see Story’s Conflict of Laws, s. 43, and In re Craignish (4), Attorney-General v. Pottinger (5), and Douglas v. Douglas. (6)

 

My Lords, the change of residence here is plain enough, and need not be enlarged upon. The difficulty is about the intention of Mr. Winans with reference to the change. The exact time when he made up his mind to settle here cannot be ascertained. There is no document or conversation which enables any one to fix the date. But it by no means follows that when he died it cannot be inferred that he must have abandoned all thoughts of going back to America and settling there, and have gradually become content to make his home in this country without contemplating any change. If this can be established, a change of domicil will be the legal result: Haldane v. Eckford (7); Douglas v. Douglas. (8) An intention to change nationality, to cease to be an American and to become an Englishman, was said to be necessary in Moorhouse v. Lord (9); but that view was decided to be incorrect in Udny v. Udny. (2)

 

Intention may be inferred from conduct, and there are

 

(1) (1885) 10 App. Cas. 692.

 

(2) L. R. 1 H. L., Sc. 441.

 

(3) L. R. 1 H. L., Sc. 307.

 

(4) [1892] 3 Ch. at p. 192.

 

(5) (1861) 6 H. & N. 733.

 

(6) L. R. 12 Eq. 643-4.

 

(7) (1869) L. R. 8 Eq. 631.

 

(8) L. R. 12 Eq. 617.

 

(9) (1863) 10 H. L. 272. [*300]

 

cases in which domicil has been changed, notwithstanding a clear statement that no change of domicil was intended: see Re Steer (1), and per Wickens V.-C. in 12 Eq. 644. An expressed intention to return for a temporary purpose, or in some possible event which never happens, will not prevail over a clear inference from other circumstances of an intention to remain: see Attorney-General v. Pottinger (2), per Bramwell B., and Doucet v. Geoghegan. (3)

 

My Lords, I do not propose to refer at length to the details of Mr. Winans’ life. They were elaborately brought to your Lordships’ attention by counsel, and have been most graphically described by my noble and learned friend who has just addressed the House. There is no real controversy about the facts. The question is what inference ought to be drawn from them. Here I have the misfortune to differ from my noble and learned friends who have just addressed the House. I have arrived at the same conclusion as that arrived at by Phillimore J. and the Court of Appeal. I cannot myself draw any other inference than that which they have drawn: Where was Mr. Winans’ home – his settled permanent home? He had one and only one, and that one was in this country; and long before he died I am satisfied that he had given up all serious idea of returning to his native country. He was an American citizen permanently settled in this country. But although so settled he was proud of his nationality and had no intention to change it. He may at one time have looked back on Baltimore as his possible ultimate home, but he had ceased to do so long before he died. In 1880 he proposed to build a house for himself in Baltimore; but this came to nothing, and none of his later schemes for developing his property there were carried out in his lifetime, nor did they involve any change of residence on his part. A dim hope and expectation of being at some time able to return to America when he had succeeded in constructing a ship to his liking – which he never did – is spoken to by his son, but when last does not appear. I can find nothing to displace

 

(1) (1858) 3 H. & N. 599.

 

(2) 6 H. & N. 747.

 

(3) (1878) 9 Ch. D. 441. [*301]

 

the only inference which I can draw from Mr. Winans’ conduct for the last twenty or twenty-five years of his life.

 

In my opinion the appeal should be dismissed with costs.

 

Orders of the Court of Appeal and Queen’s Bench Division reversed with costs here and below: the respondent to repay to the appellants the amount of the legacy duty paid by them: cause remitted to the King’s Bench Division.

 

Lords’ Journals, May 10, 1904.