[*353]  I believe that any apparent definition, such as a man’s “settled habitation,” or the like, will always terminate in the ambiguity of the word “settled,” or its equivalents, depending for their interpretation on the intention of the party, which must be collected from various indicia, incapable of precise definition.

Certain general propositions have, however, been established or recognised by decision; and, as is observed by Lord Cottenham in Munro v. Munro (7 C. & F. 16 [, 7 E.R. 1288]), it is of the utmost importance not to depart from any principles which have been established relative to such questions, particularly if such principles be adopted not only by the law of England, but generally by the laws of other countries.

I consider the following propositions to be thus settled:—

1. That a man cannot, at least with reference to the law of succession to personal estate, have two domicile (this is treated as settled by Lord Alvanley, in Somerville v. Somerville (5 Ves. 750 [, 56 E.R. 839])).

2. That every person born in wedlock acquires by birth the domicil of the father; and thus, except in the case of a nomadic horde, of which, perhaps, the gypsies are the only instance in Europe, “quorum plaustra rages rite irarant demos,” every one must have a domicil of origin; and it is therefore evidently more logical to commence au investigation of the question of a man’s domicil from a certain origin, namely, his domicil at birth, than from an accidental circumstance, such as his place of residence at his death.

3. That the domicil of an infant cannot be changed by his own act.

4. That a new domicil cannot be acquired except by  [*354]  intention and act, “animo et facto;” and, apparently, if a man be in itinere, it is a sufficient act for this purpose. (See Sir John Leach’s judgment in Munroe v. Douglas (5 Madd. 379 [, 56 E.R. 940]).)

5. As a corollary, perhaps, to the last proposition, the strongest intention of abandoning a domicil and actual abandonment of residence, will not displace the domicil unless another be acquired.

In Somerville v. Somerville (5 Ves. 749 [, 31 E.R. 839]), Munroe v. Douglas (5 Madd. 379 [, 56 E.R. 940]), and Munro v. Munro (7 C. & F. 876 [, 7 E.R. 1288)]), and the cases there cited, I think abundant authority may be found for the above propositions. There are two questions, however, of great importance in this case, which are not determined by the above propositions, namely:—

[**151]  1. What is the effect upon domicil of an engagement to serve and actual service in India, under a commission in the Indian Army?

2. What must be the conclusion as to domicil in a case where the party has held and occupied two residences, situate in different countries

I shall consider the authorities upon these two points after I have stated the facts to which the law has in this case to be applied. The life of the testator may be conveniently divided into three periods for this purpose. The first, ending on his return from India in 1808; the second, on his return from his second residence in India in 1822; and the third, the period from 1822 to his death.

The testator, General Forbes, was born in Scotland, of Scottish parents. His father was not only domiciled there but was the owner of an estate called Auchernach, which  [*355]  had descended to him from his ancestors, on which, however, there was then no residence.

The testator, in 1786 or 1787 (the date is in dispute), being yet under age, and having a commission in the King’s Army of lieutenant, and apparently also a dormant appointment as cadet in the Indian Army, married the Plaintiff, his cousin, also a Scottish lady; and such marriage was had in Scotland, and a Scottish settlement was made on or after the marriage.

He soon afterwards went out to India, under his appointment in the Indian Army, leaving his father and his wife in Scotland, and being still under age.

There can be no doubt, therefore, that his domicil of origin was Scottish, and that such domicil continued until be atttained his age of twenty-one.

This he did before 1794, when his father died, and the paternal or rather ancestral property of Auchernach descended upon him.

His wife, in 1787, was near her confinement, and in that year had a son, named Charles. In 1796 she also went out to India, to join her husband there.

There was at this time no residence at Auchernach, nor any other residence belonging to the testator in Scotland; but the testator took great interest in the estate, and kept up a correspondence on the subject with persons in Scotland. He and his wife remained in India till 1807, when they left India, the testator being on furlough, and arrived in England in 1808.

The question here arises whether, before 1807, the Scotch domicil of the testator ceased by the acquisition of  [*356]  an Indian or Anglo-Indian domicil and I am of opinion that it did.

I think that this point is concluded by the case of Bruce v. Bruce (note to Marsh v. Hutchinson, 2 B. & P. 229 [, 56 E.R. 940]), which has been followed by several subsequent cases, such as Munroe v. Douglas (5 Madd. 379 [, 56 E.R. 940]), and Craigie v. Lewin (3 Curt, 435 [, 163 E.R. 782]).

I apprehend that the question does not turn upon the simple fact of the party being under an obligation by his commission to serve in India; but when an officer accepts a commission or employment, the duties of which necessarily require residence in India, and there is no stipulated period of service, and he proceeds to India accordingly, the law, from such circumstances, presumes an intention consistent with his duty, and holds his residence to be animo et facto in India.

I do not think that his being a lieutenant on half-pay in a disbanded King’s regiment affects the question. Some reliance was placed by Sir F. Thesiger on the apparent exception in the civil law of the ease where a soldier has property elsewhere; and on Lord Thurlow’s observation in Bruce v. Bruce (note to Marsh v. Hutchinson, 2 B. & P. 229 [, 56 E.R. 940]), that Bruce bad no property in Scotland. But the mere possession of real estate, without any residence, was held by Lord Stoweil, in the Dree Gœbraeders (4 Rob. 235 [, 165 E.R. 596]), to be insufficient to fix the domicil or national charaçter of the person not resident upon it; and I think it concluded by authority, in which conclusion my reason entirely acquiesces, that a service in India, under a commission in the Indian Army, of a person having no other residence creates an Indian domicil.

[*357]  The question remains whether this acquired domicil was subsequently changed and a new domicil acquired; and, if so, whether such new domicil was in England or Scotland; for I agree with Sir F. Thesiger that there may be a difference between an Anglo-Indian and an English domicil.

The facts, subsequent to 1808, are these: The General remained on furlough in Great Britain from 1808 to 1812. During this time he built a mansion (for so he  [**152]  styles it in legal documents) on the Auchernach estate. He took great interest in its progress, and though he had lodgings near London went down frequently to superintend the building, residing at a farm-house near the spot; and on two occasions, namely, 1809 and 1811, the Plaintiff, in her answer to the cross-bill, which has been read in evidence, says that she went and resided with him at some neighbouring place. In a letter written in February 1819, to his father-in-law, on which much observation has been made in another part of the case, the testator speaks of arrangements during his absence, and refers to the hope of returning permanently to Scotland, and of seeing his father-in-law at Auchernach.

In 1812 the testator and his wife (the Plaintiff) returned to India, and the testator remained there till 1822, his wife having returned in 1818. The Plaintiff, in her answer to the cross-bill, says that on two several occasions, between 1818 and 1822, she went to the new mansion and resided there with her son Charles, who appears to have been more frequently there from 1816. The general, during the whole period of his absence, wrote frequent letters to those who managed the property, and took great interest in the house and grounds.

I am of opinion that the testator’s domicil remained  [*358]  unchanged during all the period up to his leaving India in 1822. The furlough, or limited leave of absence, implied that it was his duty to return, and he appears always to have intended to return to India; and, therefore, whatever intention might be indicated by his building his house of ultimately residing in Scotland, there was no intention up to 1822, an much less any act by which the Anglo-Indian domicil was abandoned.

But I now coma to by far the most important part of the case, the only part in fact which occasions any difficulty; for up to this time the testator bas had but one residence, and the really difficult questions of domicil have usually arisen only in those cases where the party has had two residences; for since the law recognises one domicil only in respect of succession to personal estate, the point to be determined is which of the two residences formed the domicil.

The facts of the case can, I think, be briefly stated.

The testator, having acquired the rank of general, and being colonel of a regiment, landed in England about November 1822. He at first took a furnished house in Sloane Street, by the week, as appears by several receipts, and he occupied this house until July 1823. He also hired servants, and bills are put in evidence of this date for “the liveries of a coachman and footman.” He went down in June 1823, accompanied by the Plaintiff, to Auchernach, where his son Charles had been living since 1816, and where, as I before observed, the Plaintiff had been with her son twice during the general’s absence. How long they remained there does not distinctly appear; but, after going there, and in the same year 1823, he took a lease of another house, No. 121 in Sloane Street, in which house he resided every winter till the year 1841, and in  [*359]  which be continued to reside throughout the year from 1841 till his death in 1851, under the circumstances to which I shall presently refer. He renewed the lease of the house in May 1850.

From the time of his first going to Auchernach, in 1823 down to 1741, he appears to have gone every year to Auchernach from about May to November, dividing the year nearly equally between the two places.

I may observe that it is clear that his Anglo-Indian domicil was now abandoned, and that the testator must be taken to have become domiciled either at Auchernach or in Sloane Street, for he had no intention whatever of returning to India; and I regard, as immaterial in the question of domicil the remote possibility of his being called upon as colonel of a regiment to return at some indefinite period to active service in India. The case is thus brought to that of a double residence; and the first inquiry is which of these was, ab initio, his chosen domicil; and if it were the residence in Sloane Street, the further inquiry becomes unnecessary; if it were Auchernach, it would have to be considered whether he afterwards abandoned it for Sloane Street.

Now, if the testator had died in or soon after June 1823, when he went down with the Plaintiff to Auchernach, and before he had taken the lease of the house in Sloane Street, then, in the absence of any testimony as to his intention of acquiring a permanent residence in London, and an establishment there, the necessary conclusion  [**153]  would, I think, have been that he became domiciled in Scotland: But this conclusion would arise merely from the absence of any such evidence of an opposite tendency as his subsequent acts afford; and there is nothing illogical in accepting subsequent acts as evidence of the original  [*360]  intention; for, even in criminal matters, the felonious intention of an apparently lawful acquisition of property is confirmed from the subsequent conduct of the accused. Looking to these facts, that the, general had, before June 1823, an establishment of servants in London; and that he never attempted, and can never be supposed to have intended, to pass the winter at Auchernach, I think I am bound to regard his intention of taking the house in London to have been formed before he left London for Scotland, though apparently carried into effect on or soon after his return.

Again, then, I have to ask, which of these residences was his chosen domicil, ab initio?

In support of his choice of a Scottish domicil the Plaintiff alleges

1. That it was his domicil of origin.

2. That, independently of his residing at Auchernach, his course of conduct, as proved in evidence, shews his attachment to Scotland as his country, and to Auchernach as his ancestral property; and the following facts are established in evidence:—

That he gave directions as to the management of the Scotch property even when in India, from the time of his father’s death in 1794; that on his return from India, in 1808, he superintended the building of the mansion; that on leaving for India, in 1812, he wrote to his father-in-law expressing his hope of returning and seeing him at Auchernach; that he continued to keep up a constant correspondence about the property and its management; that his son resided there occasionally during his absence, and his wife spent some time there with her son on her return in 1818; that he went down there with her in July 1823, before he had a fixed abode in London; that, in 1827, he registered the settlement of 1787; and afterwards strictly entailed the Auchernach es-[*361]-tate upon his illegitimate issue (his son Charles having died in 1825, and, by his will, required the heirs in tail to reside, during a part of the year, in the mansion he had built; that he, in 1835, laid out £80,000 in the purchase of an estate in Scotland called Dunnottar; and that he desired, by his will, to be buried in a mausoleum at Auchernach.

3. That he resided half the year at Auchernach; and that the residence was kept furnished, and that he had an establishment there, consisting of a reeve or bailiff, cook, gardener and coachman; and that he continually superintended all the details of the property by letter.

4. That he took upon himself the public duties of a Commissioner of Taxes and of a Justice of the Peace, and exercised his rights as a heritor with reference to a pew in the church and the appointment of a schoolmaster.

5. That he had a safe constructed there in which he kept his pedigree, his commissions and other documents, and, in particular, his will, and the codicils thereto (except, I believe, the last).

6. That, in his deeds and will, he describes himself as of Auchernach

7. That, in oral declarations, he treated Auchernach as his home; and Chalmers, a witness for the Plaintiff, and also the Defendant, Gordon Forbes, called by the Defendants, both speak to this.

8. That, if Scotland be thus established as his domicil, then he never abandoned the intention of returning thither; but that it appears from the evidence of his medical man that, in 1841, he was advised, on account of his health, not to go there, because of the distance from medical advice; and that, down to 1844, he frequently expressed his intention of going down; and in a letter of that year he desires that the property may not be let, as he has not made up his mind whether he shall go down; and that his house was kept in a state fit for his reception down to 1850,  [*362]  as proved by Mr. Clarke; and, in fact, that increasing infirmity alone prevented his returning thither.

On the other hand, the Defendants, in support of the choice of Sloane Street as a domicil, allege:—

1. That General Forbes had, in India, acquired an English domicil, and must be shown to have abandoned it. I have, however, dealt with this suggestion by observing  [**154]  that an Anglo-Indian is not an English domicil; and his Anglo-Indian domicil was clearly abandoned in 1823 in favour either of Scotland or of England.

2. That the residence in Scotland must be regarded as nothing more than a place for the summer excursions of the general; and that it was not, a mansion fit for a person of his fortune, but an inconsiderable dwelling-house; in support of which view evidence bas been given that the mason contracted to build it for £450; and the general himself in a letter stated £30 a year to be too high a rental for it, and suggested its full value to be £20 a year.

3. That he never took the Plaintiff, his wife, to reside there; but that she always resided in Sloane Street, or made summer excursions elsewhere.

4. That he kept a full establishment of servants in Sloane Street, but had no servants, except the cook and gardener, at Auchernach and he used to hire occasional female servants by the month when he went down, applying for that purpose to the hotel-keeper at Aberdeen.

5. That he repeatedly expressed a strong dislike to Auchernach, and used to say to the hotel-keeper, when returning thence, that he was going home.

6. That he entertained his friends in London according to his rank in society, and belonged to several clubs there.

7. That he took a long lease of the house in Sloane Street, and renewed it, and attended a meeting of ratepayers at Chelsea.

[*363]  8. That a duplicate of his will, and all the codicils thereto, were in Sloane Street.

9. That, in a document relating to an action of declarator in Scotland, he describes himself as “of Auchernach, residing in London,” and in his codicils to his will as now residing in Sloane Street.”

10. That, even if Auchernach were first selected as his abode, yet, by residing ten years previously to his death in Sloane Street, and dying there, he must be taken to have ultimately adopted Sloane Street as his domicil.

Now, setting aside for a moment the question of the testator’s ultimate continuous residence in Sloane Street, which would be more- properly considered in the question of whether he had first acquired and then abandoned a Scotch domicil, I have no hesitation in saying that, if the testator had not been a married man, the evidence preponderates in favour of his having acquired, in 1823, a Scottish domicil. I think that the house was a sufficient mansion in his own judgment, and it is his judgment that can alone decide his choice, for the residence of himself and those who came after him. The charge of £450 for its erection seems to have been for the work and labour of the mason, and not for materials; his estimate of its annual value was made when he was attempting to evade the income tax; and he describes it as a, mansion in the instrument in which ho imposes residence on the owner of the property. Looking, therefore, to his domicil of origin, his residing there half the year, and his being a Justice of the Peace, and his keeping his pedigree and other documents there, and his general attachment to Scotland, I do not think that the difference of the two establishments (had he, I say, been a single man) would have countervailed these indicia of preference. I do not sat much value on his oral declarations to Chalmers or Gordon Forbes on the one hand, or to the innkeeper at Aberdeen on the other; nor  [*364]  on his description of himself in deeds, which seem, except in some French cases, to have been regarded as of little weight where a person has two residences. In the action of declarator be naturally describes himself as “of Auchernach, and residing in London,” because it was an action as to the property in Scotland; and he adds “residing in London,” it being incidental to the act be was doing to shew that he was out of the jurisdiction. His expressions of disgust at Auchernach appear to have, been ebullitions of temper, and but of little moment, But the main feature in this case, and that which I think must determine it in favour of the original selection of his domicil in Sloane Street, is that the testator was a married man; and that not only his chief establishment of servants, but his wife, constantly resided there, and not in Scotland, and, in fact, his wife’s residence appears to have determined that of the household. I know of no instance in which a married man, having two houses, in both of which he has been in the habit of residing, bas been held not to be domiciled in that in which his wife and, principal establishment of servants  [**155]  always remained when he was at the other. I say always remained, for I think it clear on the evidence that the Plaintiff, was never herself settled at Auchernach, and no establishment was formed there suitable for her residence. She went thither with the testator in July 1 for how long does not appear; and she went again in 1830, but at no other time; and when, she went she took her own maid with her; and from 1823 to 1851, with these exceptions, she and the testator’s principal establishment of servants remained always in Sloane Street.

If, in applying to our, own times the definition of the code “ubi quis larem ac fortunarum suarum summam constituit,” an equivalent be sought to “larem” the wife would, I think, without impropriety, be regarded as the tutelary genius of our homes.

 [*365]  The expression,

“Linquenda tellus, et domus, et placens Uxor,”

shews how close was the association of wife, and home in the mind even of a heathen poet. Ror. Lib, 2, Carre. 14.)

Lord Brougham has taken this view in that part of his speech on moving the judgment in Sir George Warrender’s case (2 C. & F. 337 [, 6 E.R. 1239]), where he says: “A connection formed for cohabitation, for, mutual comfort, protection and endearment, appears to be a contract having a most peculiar reference to the contemplated residence of the wedded pair; the home where they are to fulfil their mutual promises, and perform those duties which were the objects of the union; in a word, their domicil, the place so beautifully described, by the civilian: “Domicilii quoque intuitu conveniri quisque potest in eo scilicet loco in quo larem rerumque ac fortunarum suarum summam constituit, unde rursus non sit discessurus si nihil avocet, undeque cum profectus est peregrinari videtur.”

Pothier, in the passage of the Coutumes d’Orleans, cited in Munroe v. Douglas (5 Madd. 393 [, 56 E.R. 940]), lays this down as the first of the distinctions in favour of one' of two residences as to domicil; and says that one should decide “pour le lieu où il laisse sa femme et sa famille lorsqu’il va dans l’autre.”

Grotius, in speaking of the criteria of domicil, says: “Accedit altera conjectura ex invectione familiæ et bonorum” (Phill. 118, n.); and Lord Stowell, in the case of The Phœnix (3 Rob. 189 [, 165 E.R. 431]), says: “He is not a married man holding any connexion with that place by the residence of his wife and family.”

[*366]  Story, in his “Conflict of Laws,” says: “If a married man bas his family fixed in one place and does his business in another, the former is considered the place of his abode,” though, as Dr. Phillimore observes, be does not cite any decided case to that effect.

The effect of the residence of the wife being, after all, but evidence of intention may be rebutted by stronger evidence of a contrary character. If, as in Sir George Warrender’s case, the husband were living apart from the' wife; if, perhaps, some particular state of health required the wife to reside in a warm climate not agreeable to her husband, or the like, so that he was obliged to visit his wife-away from home, he might still be domiciled at residence of his own apart from her. But no such facts exist here. It is true that the general had unhappily formed an adulterous connexion, but not with a party living in Scotland; and the Plaintiff hints, rather than states, that after 1830 the residence at Auchernach became distasteful to her, owing, it is alleged, to some connexion of the illegitimate children with that place. It is also said, not by her but in the argument, that her son, who died in 1825, had resided there, and that his memory was associated with the place. But I am now considering the first choice of abode; and I do not find that the general ever contemplated his wife’s residence at Auchernach but, that he did contemplate her residence in Sloane Street, and that, the establishment of servants suitable for a joint residence of husband and wife in the condition of life in which I find these parties was in London and not at Auchernach. The wife clearly, I think, on the evidence, was a traveller and visitor only whenever she went to Auebernach, and was at home only in Sloane Street. It appears to me that her husband, in so deciding on her residence, did, in fact; also decide that there was to be his own home, and that he therefore never reacquired a domicil in Scotland,  [**156] [*367]  As there was no necessity originally for the Plaintiff absenting herself from Auchernach, neither was there any necessity for the testator fixing his residence in London, it must have been his free choice in every respect; he could have resided in parts of Scotland during the winter, or he could have from time to time visited the South, without taking a permanent residence and fixing his establishment there. It may also be observed that, if a party select two residences, in one of which he can reside all the year, whilst in the other his health will not permit him to so; and he must from the first be aware that, should his health fail him, his days must be passed where alone he can constantly reside; there is an additional reason for concluding that be regards such place from the first as that which must be his borne, a conclusion greatly fortified by his chief establishment being from the first fixed there.

It is not necessary for me therefore to consider whether or not, if the Scottish domicil had been reacquired, it would be lost and an English one substituted for it by the last ten years of the testator’s life being passed in Scotland. Munro v. Munro (7 C. & F. 876 [, 7 E.R. 1288]) affords strong ground for saying that this would be a question of difficulty. I think, from the evidence, it is clear that the testator wished to make his usual journeys to Scotland, if he were equal to them. Whether, when he resigned himself to the impossibility of so doing, such resignation must be taken to have been equivalent to a purpose of changing his domicil is, I think, a point of considerable nicety. There are no indications, however, in evidence of a wish or intention to return after 1844. If I had been compelled to come to conclusion, I should probably have held that he had abandoned his Scottish domicil, and by choice resigned himself to an English home.

 [*368]  The case of the Plaintiff has, therefore, failed; but I do not think such failure ought to be visited with costs. The question of domicil was one that, looking to all the acts of the testator, might be fairly raised, though I do not wish to intimate any doubt in my own mind in respect of the conclusion at which I have arrived. The questions which remained behind, had this been decided in the Plaintiff’s favour, especially respecting the time of her marriage, were raised in a great measure by declarations and conduct of the testator himself. The disposition of his property has been that which was necessarily most painful to a wife; and the mode in which he attempted to screen himself against any interference with that disposition, by setting up a settlement that he at one time at least intended to abrogate, and had, with more generosity and justice than he has since shewn, declared to be trifling, would sufficiently dispose the Court not to visit with costs an unsuccessful attempt on her part to obtain the proportion of her husband’s property, recognised by the law of Scotland as her due, and not perhaps even to English notions extravagant, after more than sixty years of union.

The bill must therefore be dismissed without costs.

 [end]