COUNSEL: Mr. Anderson, Q.C., Mr. Kay, Q.C., and Mr. Mounsey, for the Plaintiffs.

Mr. Fry, Q.C., Mr. Marten, and Mr. Forbes (Sir Roundell Palmer, Q.C., with them), for the Defendants.

 

SOLICITORS: Messrs. Sharp & Ullithorne; Messrs. Baxter, Rose, Norton, & Co.

 

JUDGE: Sir W. M. James, V.C.

 

DATES: 1870 June 6, 7, 24.

 

 

Domicil – Domicil of Origin – Abandonment – Reduction into Possession.

 

The rule that a man will be considered as domiciled in the place where his wife permanently resides, and in which he has fixed his establishment, is not affected by the circumstance that the choice of residence has been made in deference to the wishes of the wife, and that the house has been bought and furnished at her instance and with her money.

 

A fund to which a married woman becomes entitled during coverture will not be considered as reduced into possession by the husband where he has not been at any time in a position to assert his rights by action for the amount as money had and received to his use.

 

A., being sole executor and trustee of X.’s will, appointed B. and C. as his co-trustees, and by deed assigned all X.’s property to himself, B., and C., upon the trusts of the will. B. (who was also A.’s solicitor), as trustee opened an account at a bank in the name of “The Executor of X.” A share of X.’s estate, to which X.’s wife, or A. in her right, was entitled, having become divisible, B., after advising her as to an investment, drew a cheque in his own name in favour of A.’s wife, and the money was invested in a debenture which was taken in the names of B. and D. as trustees for her:–

 

Held, that there had been no reduction into possession of the share by A.

 

THIS was a suit by the legal personal representatives of William Allan, deceased, for the purpose of recovering a share of the lapsed residuary personal estate of John Gott, deceased, which became divisible among his next of kin, one of whom was the Defendant Mrs. Allan, during the lifetime of the said William Allan, her husband.

 

The circumstances of the case are so fully detailed in the judgment, that it will be sufficient to state that the claim on behalf of the Plaintiffs was rested upon the following grounds, as stated in the bill:–

 

1. That William Allan being domiciled in Scotland at the time of his marriage with the Defendant, Mrs. Allan, in 1829, and continuing so domiciled down to his death in 1868, he was, according to the law of Scotland, entitled to all personal property which accrued to her during the subsistence of the marriage, whether reduced into possession by him in the lifetime of his wife or not, and entitled jure mariti to the distributive share to which she as one of the next of kin of John Gott was entitled of his [*590] residuary personal estate, whether reduced into possession during Allan’s lifetime or not.

 

2. That whether William Allan was domiciled in Scotland or not at the death of John Gott in 1867, or afterwards, there had been, in fact, a reduction into possession by Allan during his lifetime of the £7000, the share of Mrs. Allan in that part of John Gott’s personal estate which became divisible before the death of Allan.

 

On the other hand, the Defendants contended that the domicil of William Allan had ceased to be Scottish not later than December, 1841, and was English down to his death; that the £7000 was not reduced into possession by him during his lifetime, so that on his death Mrs. Allan became, and now was, absolutely entitled not only to her share of the outstanding personal estate of John Gott, but also to the £7000. It was also contended on behalf of the Defendants, that even if William Allan died a domiciled Scotchman, or even if there had been a reduction into possession of the £7000 by Allan during his lifetime, Allan, by force of the provisoes contained in his marriage settlement (executed in the Scotch form) had precluded himself and his representatives from claiming against Mrs. Allan any part of her personal estate, whether reduced into possession in his lifetime or not.

 

Mr. Anderson, Q.C., Mr. Kay, Q.C., and Mr. Mounsey, for the Plaintiffs, upon the contention that William Allan’s Scotch domicil of origin had never been abandoned, referred to Munro v. Munro (1), Aikman v. Aikman (2), Udny v. Udny (3), Moorhouse v. Lord ( 4), and Haldane v. Eckford (5).

 

[The VICE-CHANCELLOR referred to Forbes v. Forbes (6).]

 

The jus mariti was not excluded, and the rights of the parties under the marriage contract must be governed by the law of the domicil: Duncan v. Cannan (7); and that, consequently, according to Scotch law, the representatives of the husband, and not the widow, were entitled to any property that accrued to the wife

 

(1) 7 Cl. & F. 842.

 

(2) 3 Macq. 884.

 

(3) Law Rep. 1 H. L., Sc., 441.

 

(4) 10 H. L. C. 272.

 

(5) Law Rep. 8 Eq. 631.

 

(6) Kay, 341.

 

(7) 18 Beav. 128. [*591]

 

during the marriage: Leslie v. Baillie (1). Upon the question of reduction into possession they cited Wombwell v. Laver (2).

 

Mr. Fry, Q.C., Mr. Marten, and Mr. Forbes (Sir Roundell Palmer, Q.C., with them), for the Defendants, were not called upon to argue the question of domicil.

 

Upon the question of reduction into possession by William Allan, and in support of the proposition that his legal right was controlled by the equitable right of his wife, they cited Ex parte Norton (3), Sturgis v. Champneys (4), Bond v. Simmons (5), Burdon v. Dean (6), and Blount v. Bestland (7).

 

The settlement of 1829 must be construed according to its obvious import: King of Spain v. Machado (8); Este v. Smyth (9); and the particular provision was intended to keep property accruing to the wife from becoming common property, and, as such, subject to the administration of the husband.

 

Mr. Anderson, in reply.

 

June 24. SIR W. M. JAMES, V.C.:–

 

The question in this suit is, whether the Plaintiffs, as the representatives of a deceased husband, or the Defendant, the surviving wife, are entitled to a large sum of money, part of the estate of one John Gott, deceased. John Gott died seised and possessed of property of great value, the residue of which he had bequeathed by his will to a brother. The brother having predeceased him, there was a lapse of that gift. Mrs. Allan, the Defendant, then the wife of one William Allan, was one of the next of kin of John Gott, and as such entitled to a share of that lapsed bequest. She alleges that the domicil of her deceased husband at his death was English, and that he having died without reducing the property into possession, her right by survivorship attached; and she contends, further, that by the terms of an ante-nuptial settlement, and independently of

 

(1) 2 Y. & C. Ch. 91.

 

(2) 2 Sim. 360.

 

(3) 25 L. J. (Bky.) 43.

 

(4) 5 My. & Cr. 97.

 

(5) 3 Atk. 20.

 

(6) 2 Ves. 607.

 

(7) 5 Ves. 515.

 

(8) 4 Russ. 225.

 

(9) 18 Beav. 112. [*592]

 

the reduction into possession, the husband had effectually precluded himself from all marital rights in respect of the property which had so devolved on her.

 

On the other side, it was contended that the domicil at the death was Scotch; that there was a reduction into possession of a considerable sum, which had effectually vested the property in the husband jure mariti prior to his death; and that the settlement, according to its true construction, did not affect the marital right. The Plaintiffs did not, however, contend that the settlement, proprio vigore, gave the husband any right to that particular property. Their claim was based on the operation of the Scotch law on a Scotch domicil.

 

The first and most material question to be disposed of is the question of domicil.

 

The testator’s domicil of origin was undoubtedly Scotch. He was born and bred in Scotland. He was the head of a good Scotch family. He was a considerable landed proprietor in Scotland, and a banker in Edinburgh, was a citizen of that city, and was selected to fill the office of Lord Provost. He came, however, in the year 1829, to England, for a wife, being then of the ripe age of forty, and had the good fortune to win the hand of a widow lady of considerable wealth and expectations, who was six years his junior. He took her with him to Scotland, and there can be no doubt that the conjugal home and domicil were intended to be, and originally were, Scottish. At this time W. Allan had two Scotch residences, one a country-house at a place called the Glen, his patrimonial estate, and another at a house No. 11, Hillside Crescent, a crescent built on a property called Hillside, also his patrimonial estate, which had become valuable as building land. In the year 1833, Mr. and Mrs. Allan went abroad, giving up the Hillside Crescent house, and travelled about until the year 1836, when they returned and resumed their residence at the Glen, and so resumed their Scotch home and domicil. At the end of 1841, Mr. and Mrs. Allan again left Scotland, and spent the year 1841 in various parts of England and Wales, but without any fixed residence. In 1843, Mr. Allan, being a great sufferer from gout, went to Buxton. In that year he, or, as the Plaintiffs put it, Mrs. Allan, took a furnished house at Wyebridge, near Buxton, and [*593] thereupon Mrs. Allan removed all her furniture which was at the Glen, and which appears to have constituted the furniture of that house, to the Pantechnicon at London, and thereupon the Glen was given up and let to another brother, and Mr. and Mrs. Allanceased to have, and never again had, any house or home in Scotland. After residing for some time in the house at Wyebridge as a furnished house, Mrs. Allan’s trustees were induced to lay out a portion of her money in the purchase of it. Such a purchase, there can be no doubt, was made, not by way of profitable investment of trust moneys, but with a view to permanent residence, and Mrs. Allan’s furniture was thereupon brought to this house. This house so furnished was retained until the year 1858, and although not occupied by them during the greater part of that time, their servants were always left there, and the furniture left there, so as to be at all times available for residence. From 1841 to 1852, Mr. Allan never was in Scotland. In 1852, Mr. Allan’s brother and partner became incapacitated for business, and Mr. Allan, in February of that year, returned to Edinburgh and resumed his place at the bank. His health did not permit him to remain there permanently, and in the month of June, 1852, he was compelled to abandon all hope of pursuing his vocation, and he left Edinburgh and Scotland, and never afterwards returned there except for a few short visits.

 

Mr. Allan’s disease, the gout, about this time flew to his head and affected his mind. He was, in the summer of 1853, placed in a private asylum. He was then removed to an asylum at Hanwell, where he remained until March, 1854.

 

From this period the narrative may be given in the language of Dr. Corsellis, the medical attendant of Mr. Allan:– “In March, 1854, Mr. Allan left the said private asylum at Hanwell and proceeded to travel on the Continent, accompanied by me. Mr. Allan’s medical advisers at this time considered that complete change of air and scene would be most conducive to his recovery, and I was requested by his friends to accompany him on his journey. Mr. Allan and I remained on the Continent for upwards of two years, until some time in or about March, 1856, when we returned to England. During the time when we were on the Continent we visited various places on the Continent, and spent two winters at [*594] Boulogne. On returning to England in 1856, Mr. Allan and I joined Mrs. Allan at the Queen’s Hotel, Norwood, and I left him there. A few months afterwards, and in the same year, 1856, I received a request from Mrs. Allan to join her and Mr. Allan again at Ryde, and accordingly 1 did so, and I went with them from Ryde to Dover, and thence to Torquay. We remained at Torquaya few days only, the place not being considered suitable for Mr. Allan in his then state of health. From Torquay we went to the Bedford Hotel at Brighton. Whilst at the Bedford Hotel at Brighton, on this occasion, I accompanied Mr. Allan, at his request, to a house agent to inquire for a house at Brighton. Mrs. Allan, however, had already taken a furnished house, No. 50, Marine Parade, and we removed from the Bedford Hotel to that house, and remained and spent the winter of 1856-7 at No. 50, Marine Parade, Brighton, accordingly. In the year 1857, Mr. and Mrs. Allan and myself visited Windermere, where a house had been taken for Mr. and Mrs. Allan, and we remained there until the autumn of that year. During the summer of 1857, and while we were at Windermere, Mrs. Aitchison, the sister of Mr. Allan, Mrs. Aitchison’s daughters, and her son the Plaintiff, William Aitchison, now Colonel Aitchison, visited Mr. and Mrs. Allan there. In the latter part of the summer or autumn of 1857, Mr. and Mrs. Allanand myself returned to a hotel at Brighton, where we remained a short time, and until they removed into Harwood House, Brighton, which was a furnished house, and thenceforward we lodged there during the winter of 1857-8. In the year 1858, the house No. 7, Chichester Terrace, Brighton, was taken, and while it was in preparation for occupation and until the removal there of Mrs. Allan’s furniture, which was at their house at Buxton, Mr. and Mrs. Allanand I went first to Red Hall, Forest Hill, and thence to Tunbridge Wells, and at the latter place we occupied a furnished house in Calverley Park. In October, 1858, we removed from the house in Calverley Park, Tunbridge Wells, to the house, No. 7, Chichester Terrace, and Mr. Allan continued to reside there until his death on the 6th of July, 1868.”

 

The only addition to this narrative which it is necessary to make is, that the house at Brighton was bought by the trustee of Mrs. Allan, and that thereupon the Wyebridge house was sold, and the [*595] furniture removed from it to the Brighton house. Mr. Allan being then seventy and Mrs. Allan sixty-four, they settled down at Brighton in a house purchased in order that it might be their future residence.

 

In the year 1853, Mr. Allan’s affairs were placed by the Court of Session in Edinburgh in the hands of a curator bonis, and he so continued under the protection of that Court until the year 1859, when the Court was satisfied that he had recovered so as to be able to manage his own business. He appointed one Mr. Sprott his factor and commissioner. His landed property was heavily incumbered, or, at all events, he was largely indebted, and partly by his curator bonis, and partly by his factor and commissioner after his mental recovery, the Glen estate, his favourite property, was sold, and that not being sufficient, a very large portion of his Hillsideproperty had to be sacrificed, and the residue still remained incumbered, so that at the time of his death his own net income was little, if at all, more than £500 a year; and if he had returned to Scotland on his own means, the former Lord Provost and banker, the Laird of the Glen and of Hillside, would have so returned, comparatively, a broken man. His wife’s income was £3000 a year, He seems, however, to have clung to his territorial distinctions. He was long Mr. Allan of the Glen and of Hillside – then, and to the last, Mr. Allan, of Hillside – he retained some of the old superiorities in more than one county, which had in the pre-Reform era entitled him to be placed on the roll of freeholders. And claiming his place as a citizen of Edinburgh, and being a zealous Conservative, he, in the last year of his life, went down hoping to be present at a great banquet there given to Mr. Disraeli. Unfortunately he took cold; a fatal bronchitis set in, and he returned to his home at Brighton, where he died in the year 1868. He was buried at a burying-place near Brighton, which, according to Mrs. Allan’s testimony, he had, some considerable time previously, selected as his last resting-place.

 

This history seems to me to bring the case completely within that of Forbes v. Forbes (1) with this distinction, making this case stronger, that in that case General Forbes had actually a residence in Scotland, where he resided a great part of each year, had an

 

(1) Kay, 341. [*596]

 

establishment, and was actually engaged in performing the territorial, the magisterial and other duties of a great Scotch laird; but which were held not to countervail the fact that his English house was the conjugal residence.

 

It is, however, contended in this case that there is this difference: that from Mr. Allan’s state of health, mental and bodily, the choice of residence was really not his but that of his wife, upon whom both his pecuniary means and his condition made him so dependent; who appears to have watched over him herself; to have provided him with attendants and a physician; and to have spent her large income liberally in providing him with every comfort his condition was capable of.

 

It is clear, however, that except during the interval between 1853 and 1859 he must be considered as of perfectly sound mind; indeed, in the latter ten years of his life, when he was unexpectedly called upon to perform the duties of an executor and trustee of a large estate, he shewed himself a singularly active and intelligent man of business. Being of sound mind, it was he, of course, who was the head and master. The comparative opulence of the wife can make no difference. The residence and home at Brighton were not the less his because he may have deferred, however implicitly, to her wishes. It indeed makes the conclusion in favour of a Brighton domicil irresistible when we find that it was in the highest degree improbable that the wife should ever have voluntarily returned to a Scotch home; that the husband had every motive of interest, of gratitude, and of affection to say to his partner, “Your country shall be our country, the home of your selection shall be our home.” The suggestion that he, possibly or probably, would have returned to his Scotch relations in the very improbable event of his surviving her, seems to me of no weight, even if there were, which there is not, evidence of any such intention. When she, at the age of sixty-four, bought and furnished the house at Brighton I have no doubt she bought it to be their permanent home, and I have no doubt that he, the grateful and dependent invalid of seventy, meant there to live the rest of his life by her side, there to die in her arms, to be removed to the resting-place close by which he had selected. I have no doubt, therefore, that the domicil was English and not Scotch. [*597]

 

The domicil being English, then next arises the question of the reduction into possession. This question arises in this way:– Mr. Allan was himself the sole surviving executor and trustee of Mr. John Gott’s will. By the frame of that will, subject to certain specific and other bequests, the whole personal estate of John Gottwas bequeathed to the trustees. Finding himself the sole executor and trustee, Mr. Allan appointed two gentlemen, Mr. Ewart of Liverpool, and the Defendant Dixon, to be co-trustees with him, and, by a deed, he conveyed and assigned all the freehold property and all the personal property of the testator to himself and the other trustees upon the trusts of the will. This, of course, did not denude him of his character or of his responsibilities as executor, but was an assent to the bequest on trust, and was as complete an assignment of the personal estate as it was possible for an executor to make. The execution of this deed was followed by the institution of a suit by Mr. Allan, in the name and right of himself and wife, against the trustees for the administration of the estate, in which there was the usual administration decree. The Defendant Dixon was resident near Leeds, where Mr. John Gott’s property, to a great extent, lay; and he was not only a trustee, but his firm of Benjamin Dixon & Son were the solicitors of Mr. Allan.

 

An account was opened at the Leeds Bank in the name of “The Executor of John Gott.” This account, however, was opened by the Defendant Dixon, the trustee, and he has deposed that he did it as trustee, that he, when he opened it, informed the manager that he alone was to draw upon it. Accordingly, all cheques upon that account were drawn by him. There being considerable sums to that account divisible amongst the persons beneficially interested he proceeded to divide them, and he ascertained that £7000 was the quota of the share which Mrs. Allan, or Mr. Allan in her right, was entitled to of the lapsed residue. Mr. Allan appears to have been very unwell at that time, and Mrs. Allan was communicated with, and was advised as to the investment of that sum, and acquiesced in such advice. Thereupon a cheque was drawn by the Defendant Dixon, in his own name, to Mrs. E. Allan or bearer; the printed words “or order” being struck out; but those words having been there the cheque was apparently not considered negotiable without her indorsement. Mr. Dixon, jun., thereupon indorsed the cheque [*598]

 

“E. Allan.” With that cheque the investment was at once made, and the cheque having passed through a bank at Sheffield, was honoured by the Leeds Bank; the amount being debited to the account of “the Executor of John Gott.” The investment consisted of a debenture of the South Yorkshire Railway and River Dun Company,which was taken in the names of the Defendant Dixon and Joseph Christopher Ewart, as trustees for Mrs. Allan. It is contended that the £7000 being actually drawn for in Mr. Allan’s lifetime by Mr. Allan’s solicitor, was effectually severed from the estate; that the cheque was drawn in payment of the share, and being in the hands of the solicitors of Mr. Allan was in their hands as his cheque and property, and so reduced into possession as if it had been placed to his private account in the same bank; that the investment of it by direction of his wife, without his knowledge, could not alter the property; and that such investment, being made with moneys which had so become his, is part of his estate. I cannot accede to this view. Whether rightly or wrongly, the cheque was drawn, not for him in his marital right, but for his wife as distinguished from him, and there never was a moment of time at which he could have brought an action against any person for the £7000 as moneys had and received to his use. The utmost he could, or his representatives can, claim would be to treat the transaction as unauthorized, and to insist on the £7000 being replaced in the bank as if it had never been drawn against; in which case it is clear that it would have been part of the unadministered residuary estate under the control of the trustees at his death, not reduced into possession by him, and passing clearly by survivorship to his widow.

 

Having thus answered the question of domicil and the question of reduction into possession in favour of the widow, it is not necessary to consider any question as to the marriage settlement. The bill of the Plaintiffs must be dismissed, but, under the circumstances, dismissed without costs.