COUNSEL: Mr. Amphlett, Q.C., and Mr. J. F. Villiers, for the trustees of the will.

Mr. Kay, Q.C., and Mr. Eddis, Q.C., in support of a Jersey domicil.

Mr. De Gex, Q.C., and Mr. W. Dundas Gardiner, followed on the same side.

Mr. Mackeson, Q.C., and Mr. Crossley, for the executors of General Eckford.

Mr. Willcock, Q.C., and Mr. F. N. Cates, followed on the same side, and referred to Drevon v. Drevon

 

SOLICITORS: Solicitors: Messrs. Lambert & Burgin; Mr. William James Myatt; Mr. George Cates.

 

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

 

DATES: 1869 July 19, 20.

 

 

Domicil – Domicil of Origin – Abandonment.

 

The question of domicil is distinct from that of naturalization and allegiance, and in order to effect a change of domicil it is not necessary that a man should do all in his power to divest himself of his original nationality (exuere patriam), it being sufficient that there should be a change of residence of a permanent character voluntarily assumed.

 

Residence originally temporary, and intended for a limited period, may afterwards become general and unlimited, and in such a case, so soon as the change of purpose, or animus manendi, can be inferred, the fact of domicil is established.

 

Application of these principles to the case of a testator whose domicil of origin being Scotch, was employed in the East India Company’s service for thirty-three years, and on finally leaving India took up his residence in Jersey, where he lived continuously for twenty-five years until his death, and was held, under the circumstances, to have lost the Scotch domicil of origin, which reverted on his leaving India, and to have acquired a Jerseydomicil.

 

The requisites for a change of domicil laid down in Moorhouse v. Lord (1), and followed in In re Capdevielle (2), and Attorney-General v. Countess de Wahlstatt (3), considered.

 

THIS was a suit for the administration of the estate of Robert Eckford, who died in Jersey in 1865; and the question of his domicil at the time of his death having been raised, the matter was adjourned into Court.

 

Robert Eckford, the testator, was born in 1779, at Dunfermline, in Fife, of Scottish parents on both sides. He was educated at Edinburgh at the College, and in or before 1799 he went out to India, and shortly afterwards obtained a medical appointment in the company’s service. He remained in India until 1815, when he returned to Europe for two years on leave, spending the greater part of the time in travelling on the continent. In 1817 he was married at Bow Church, Cheapside, to Ann Halliwell, and shortly afterwards, accompanied by his wife, returned to India. His wife came to England, on account of her health, in 1819, and refused to go back to India. In 1823 the testator came to England on

 

(1) 10 H. L. C. 272.

 

(2) 2 H. & C. 985.

 

(3) 3 H. & C. 374. [*632]

 

sick leave, and took up his abode with his wife at the house of his sisters, in Edinburgh, for about two years, during which time two children, who did not survive, were born to him. In 1826 he returned to India alone, and was soon afterwards appointed President of the Medical Board at Bombay. In 1832 he finally left India on a pension and returned to Europe. In the first place, he went to Jersey, where a daughter was born to him in 1834, and for the next few years he seems to have spent his time at Jersey and at St. Servan, on the coast of Brittany, where he interested himself in a sugar refinery, in which he lost money. In 1836 a child was born in Jersey, and died at St. Servan; and in 1837 a child was born at St. Servan and died there. Both these children were in the first instance buried at St. Servan. In 1841 he went to Jersey, where, with the exception of short excursions to Englandand Scotland, he lived continuously up to his death in 1866. Finding that if he bought a house in the island he would not be able to dispose of the whole interest in it by his will, he took a house at St. Helier’s by agreement (defeasible in case of a war between France and England) in May, 1846, and resided in it until his death. It also appeared that he purchased ground and built a brick vault in St. Saviour’s burial ground, Jersey, and caused the remains of the two children that had been buried at St. Servan to be removed and buried in that vault. He also had buried in this vault the nurse of his children and her daughter. In 1851 he inspected the vault, and inquired if there was room in it to bury another person; on being told that by adding two bricks to increase the height there would be room, the testator said, “That will do for me.” His residence in Jersey attracted other members of his family to the island, and, in particular, his brother, General Eckford and his family; his sister, Mrs. Simpson, and her daughter; a nephew, and two grandsons, William James and Robert Eckford, whom the testator treated as his own children, making, and speaking of, his house as their home, and inducing them on his account to live in Jersey.

 

The testator at one time entertained the notion of buying land in Van Diemen’s Land for these grandchildren, but it was not carried into effect. One of them got an appointment in the Union Bank, London, in 1855, and remained there until 1864, when he [*633] went to live in Jersey at the request of his grandfather, who had tried to get him an appointment in Jersey.

 

In the summer of 1864 the testator went to Scotland with William James Eckford, with the view of purchasing property, and visited Eckford, the supposed place of origin of the family, but was disappointed with the damp appearance of the place, and instead of staying a month, as was originally intended, came back in a fortnight, without making any purchase, and abandoned the idea. On this, and other occasions, the testator expressed himself strongly against the climate of Scotland, saying that it was miserable, he could not endure it on account of the cold, and that the east winds hurt his eyes.

 

The testator’s wife, with whom he had not lived for some years before her death, died in England, in 1861.

 

In 1863 his name was put, but without his previous knowledge, on the rate list of Jersey, which gave him a vote. In February, 1865, the testator laid down about fifty or sixty dozen of wine, and at the time of his death there were about 200 dozen of wine in the cellar of the house where he resided in St. Helier’s.

 

In 1863 he buried a friend of his, Miss Robertson, at his own expense in the general cemetery; when asked why he went to this expense, and whether there would not have been room for one more person in the vault in St. Saviour’s, he seemed annoyed, and said, “Yes, but I will not bury any one there.”

 

In his will, which bore date the 28th of March, 1862, the testator described himself as “late President of the Medical Board of Bombay, now residing in Jersey.” The will was prepared by an English solicitor practising in Jersey, and in February, 1865, this gentleman was consulted by the testator in reference to a proposed codicil, by which portions of his property were to be accumulated until the time fixed or giving up the Paris and Orleans Railwayto the French Government (between eighty and ninety years hence). The solicitor explained to him that such a disposition would be prevented by the Thellusson Act if he were domiciled in England, at the time of his death, but that if his legal domicil were Jersey, such a disposition would, he thought, be valid and effectual. The solicitor also stated that he explained to the testator that by the expression “his domicil,” he meant the place where he had [*634] made his home with the intention of remaining in it as his home, and that the testator was a man of considerable shrewdness and intelligence, and appeared to understand fully what was said to him with regard to his will and codicil and his domicil, “and I have no doubt whatever that he executed the last-mentioned codicil in the conviction that he was then legally domiciled in Jersey.” The testator executed the codicil containing this direction to accumulate on the 15th of February, 1865, and died in Jersey a few days afterwards, where he was buried. The provisions of the will are not material, except that the trustees were directed to invest the residue of the trust moneys in the purchase of a landed estate in the parish of Eckford, Roxburghshire, N.B., or near to that parish, if a suitable estate could be found, to be settled on his grandson, William James Eckford, in conformity with the Scotch law of entail; the technical terms used being Scottish.

 

The codicil, made in February, 1865, directed that the trusts directed by the will, for investment of the trust moneys in the purchase of a landed estate in the parish of Eckford, should not be carried into effect until the time fixed for giving up the Paris and Orleans Railway (in which part of the testator’s property was invested) to the French Government. The trustees were directed to pay to William James Eckford “the annual sum of £500 during his life, provided he shall so long continue in Jersey, or in the event of his residing elsewhere than in Jersey, the annual sum of £365.”

 

A mass of affidavits had been filed for the purpose of establishing on the one side a Jersey domicil of adoption, and on the other for the purpose of shewing that the Scotch domicil of origin, which reverted on the testator’s return from India in 1832, and abandonment of his Anglo-Indian domicil, had never been lost.

 

In support of the Jersey domicil, the main facts relied upon were: his choice of Jersey as a home, and continuous residence there for nearly thirty years until his death; his praise of the climate as the finest in the world (resembling that of the hills in India), and the only one that suited him, and his abuse of the Scotch climate as unbearable and unendurable from the cold his statement that he had done with it, and that as a medical man he could not advise the deponent (one of his grandsons) to go there. The same [*635] witness also deposed to a conversation in which the testator in reference to leaving Jersey, said: “What would be the use of my leaving Jersey, where I have lived so long? The friends of my youth are all dead and gone, and all my connections are in Jersey, and I have ties in Jersey. I am not at my time of life going to form new connections;” his invariable speaking of Jersey as his home, and often-expressed determination never to leave it, except in the event of a war with France; his purchase of a grave in Jersey, removal thither of his children’s bodies from their place of burial in France; statement to witness “that that for one thing would keep him in Jersey,” and expressed wish (which was carried out) of being himself buried in that grave; his laying down fifty dozen wine in his cellars shortly before his death, and constantly keeping up a large stock, though his own consumption was small; his invitations to his grandsons to come and spend their holidays “at home” with him in Jersey; the explanation given to him by the solicitor employed to prepare the codicil to his will as to the effect of the Thellusson Act, unless his legal domicil at the time of his death were Jersey, and explanation of the term “domicil,” and execution of the codicil in the conviction that he was legally domiciled in Jersey.

 

On the other hand, in support of the Scotch domicil, evidence was given to the effect that the testator had great love for Scotland, for Scotch people, and for everything Scotch; that he prided himself on being Scotch, and down to the time of his death was thoroughly Scotch at heart; had a great longing for Scotland, and desired to buy land there; was fond of singing Scotch songs; for a year and a half before his death received a Scotch newspaper regularly, and said to his servant, “Mind you must not touch this, it comes from Scotland,” and if there were any letters from Scotlandwould open them first. It was also stated that he disliked the Jersey laws, particularly those relating to real property, and often said to his brother, “Never buy a house in Jersey.” He also said to Mrs. Simpson, his sister, when she spoke of settling in the island: “You must not consider my residence here as a certainty, for if William (his grandson) could obtain any permanent appointment in a bank in England, I would leave Jersey and settle in England to be near him.” [*636]

 

It was, however, stated by one of the grandsons, in explanation, that the testator did not like his sister’s coming to Jersey, and did not want to have her settled there near him.

 

Some of the witnesses stated their belief that the residence of the testator in Jersey was merely temporary until he was able to find a place where he could buy land and settle down permanently, and also that he would have been greatly enraged if it had been suggested to him that he had made himself a Jerseyman. In explanation of the removal of the bodies of his children from St. Servan to the vault in Jersey, his sister stated her belief that the testator did not consider the burial-ground at St. Servan safe from violation after the Revolution of 1830, as he anticipated further troubles of the same kind.

 

Mr. Amphlett, Q.C., and Mr. J. F. Villiers, for the trustees of the will.

 

Mr. Kay, Q.C., and Mr. Eddis, Q.C., in support of a Jersey domicil:–

 

We admit that the Scotch domicil of origin reverted when, on finally leaving India in 1832, the testator’s Anglo-Indian domicil was given up, but that Scotch domicil of origin was lost by the deliberate voluntary choice, under no imperious necessity, of Jersey as a permanent place of residence. His continuous residence there for twenty-five years, his often expressed determination never to leave it, his selection of a burial ground for himself and his children, and especially the removal to the vault of the bodies of his two children already buried in France; the execution of his codicil with the distinct intimation that it would be inoperative unless his domicil were Jersey, and, on the other hand, the impossibility, from the climate, of residing in Scotland, the absence of any wish to do so, his determination never to return there, in spite of the supposed hankering for Scotland and Scotch things mentioned by some of the witnesses; his expression that he “had done with Scotland,” his not possessing any property there (which made the case stronger than Forbes v. Forbes (1)), are all circumstances conclusively shewing the acquisition of a Jersey domicil animo

 

(1) Kay, 341. [*637]

 

et facto, and the abandonment of the reverted domicil of origin. According to the earlier cases every requisite for a change from the Scotch domicil of origin to the Jersey domicil of choice has been fulfilled: Forbes v. Forbes (1); Whicker v. Hume (2); Attorney-General v. Fitzgerald (3); Aikman v. Aikman (4); Hoskins v. Matthews (5); Lord v. Colvin (6).

 

No doubt these cases have to some extent been broken in upon by the observations made in Moorhouse v. Lord (7): “In order to lose a domicil of origin and acquire a new domicil a man must intend quatenus in illo exuere patriam;” and again, “Change of residence, however long and continued, does not effect a change of domicil as regulating the testamentary acts of the individual. A man must intend to become a Frenchman instead of an Englishman” – following the definition of domicil given by Lord Wensleydale in Aikman v. Aikman (8) – “every man’s domicil of origin must be presumed to continue until he has acquired another sole domicil by actual residence with the intention of abandoning his domicil of origin. This change must be animo et facto, and the burden of proof unquestionably lies upon the party who asserts the change.” In In re Capdevielle (9), however, Bramwell, B., says, “To say that a man cannot abandon his domicil of origin without doing all that is in him to divest himself of his country, is a proposition which, with great submission, I think cannot be maintained” (10); Attorney-General v. Countess de Wahlstatt (11). But the law has been placed upon its original footing by the recent decision of the House of Lords in Udny v. Udny (12), where the Lord Chancellor says:– “I think some of the expressions used in former cases as to the intent ‘exuere patriam,’ or to become ‘a Frenchman instead of an Englishman,' go beyond the question of domicil. The question of naturalization and of allegiance is distinct from that of domicil. A man may continue to be an Englishman, and yet his contracts and the succession to his estate may have to be determined by the law of the country in

 

(1) Kay, 341.

 

(2) 7 H. L. C. 124.

 

(3) 3 Drew. 610.

 

(4) 3 Macq. 854.

 

(5) 8 D. M. & G. 13, 26.

 

(6) 4 Drew. 366.

 

(7) 10 H. L. C. 272, 283, 291.

 

(8) 3 Macq. 854, 877.

 

(9) 2 H. & C. 985.

 

(10) Ibid. 1015.

 

(11) 3 Ibid. 374.

 

(12) 1 H. L., Sc. 441, 452. [*638]

 

which he has chosen to settle himself.” And Lord Westbury sums up the law thus: “Domicil of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place with an unlimited intention of continuing to reside there.” [The passage referred to is given in extenso in His Honour’s judgment.]

 

[They also referred to Colville v. Lauder (1); President of United States v. Drummond (2).

 

The VICE-CHANCELLOR, on asking what were the authorities as to Anglo-Indian domicil, was referred to Bruce v. Bruce (3); Munroe v. Douglas (4); Craigie v. Lewin (5).

 

Mr. De Gex, Q.C., and Mr. W. Dundas Gardiner, followed on the same side.

 

Mr. Mackeson, Q.C., and Mr. Crossley, for the executors of General Eckford:–

 

The domicil of the testator at the time of his death was Scotch. The testator did not adopt Jersey as his country, or in any way identify himself with the place. It cannot be said of him that he put off his Scotch nationality in order to become a Jerseyman. His residence in the island was merely temporary, because he liked the climate and the cheapness of the place, and, like other Scotchmen, he made it a mere half-way house between India and Scotland, for which he always retained his affection as the land of his birth, and where he intended to purchase an estate and found a family. He never would buy land in Jersey, and within two years of his death he went to Scotland for the express purpose of buying an estate in Eckford, and his intention of residing and ending his days there was only frustrated by the climate not suiting him.

 

The passage cited from Lord Westbury’s judgment in Udny v. Udny (6), does not correctly state the law. It is now settled that mere residence, for however long a period – a thousand years according to what Mascardus says he was taught by Bartolus (cited in Phillimore on Domicil (7)) – will not suffice to establish a new domicil. “The domicil of origin is to prevail until the party has

 

(1) Phill. on Dom. 22, 23.

 

(2) 33 Beav. 449.

 

(3) 2 B. & P. 229, n.

 

(4) 5 Madd. 379.

 

(5) 3 Curt. 435.

 

(6) 1 H. L., Sc. 441, 458.

 

(7) § 273. [*639]

 

not only acquired another, but has manifested and carried into execution an intention of abandoning his former domicil, and taking another as his sole domicil:” Somerville v. Lord Somerville (1); Aikman v. Aikman (2); Moorhouse v. Lord (3). A mere indefinite intention to remain in a place which you like is not sufficient, as stated by Lord Cranworth in Moorhouse v. Lord (4): “It is not enough that you merely mean to take another house in some other place, and that on account of your health, or for some other reason, you think it tolerably certain that you had better remain there all the days of your life. That does not signify; you do not lose your domicil of origin, or your resumed domicil, merely because you go to some other place that suits your health better, unless, indeed, you mean either on account of your health, or for some other motive, to cease to be a Scotchman, and become an Englishman, or a Frenchman, or a German.” And again, in Udny v. Udny (5), Lord Chelmsford says: “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. As already shewn, the domicil of origin remains till a new one is acquired animo et facto.” [Reference was also made to other passages in the judgments of Lord Chelmsford and of the Lord Chancellor in that case.] If the law of Jersey was to decide the devolution of his property, why was not the will made in accordance with the law of Jersey? So far from this being the case it was full of technical expressions derived from the Scotch law.

 

Reliance has been placed upon the purchase of a vault in Jerseyand having his children buried there, but that is disposed of by Hodgson v. De Beauchesne (6), where the purchase of a burial place in Paris was not considered “as any cogent evidence of an intention to acquire French domicil by shewing a determination to remain and die in France.”

 

(1) 5 Ves. 750, 787.

 

(2) 3 Macq. 854, 877.

 

(3) 10 H. L. C. 272, 285.

 

(4) 10 H. L. C. 283.

 

(5) 1 H. L., Sc. 441, 455.

 

(6) 12 Moo. P. C. 285. [*640]

 

Mr. Willcock, Q.C., and Mr. F. N. Cates, followed on the same side, and referred to Drevon v. Drevon (1).

 

SIR W. M. JAMES, V.C.:–

 

The law in this case is very clearly laid down in the judgment of Lord Westbury in the case, to which I have been referred on both sides, of Udny v. Udny (2) in the House of Lords. He says(3): “Domicil of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. This is a description of the circumstances which create or constitute a domicil, 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 from illness; and it must be residence fixed not for a limited period, or particular purpose, but generally, and indefinite in its future contemplation. It is true that residence originally temporary, or intended for a limited period, may afterwards become general and unlimited, and in such a case, so soon as the change of purpose, or animus manendi, can be inferred, the fact of domicil is established.”

 

That is the rule as laid down by Lord Westbury. In substance it is the same as the rule laid down in the same case by the Lord Chancellor, and differs but slightly, I think, from the rule as laid down by Lord Chelmsford. I agree that it must be considered as differing from the rule as laid down in what may be called the intermediate class of cases in the Exchequer: In re Capdevielle (4); Attorney-General v. Countess de Wahlstatt (5); following the decision in the House of Lords, Moorhouse v. Lord (6), in which, if I may use the expression, that unfortunate term exuere patriam was introduced, as if it were a question of nationality, and not of more or less permanence of residence. It does differ from those cases, but it differs in bringing back the law to that which (in my opinion) was always, before those cases, considered to have been the law, and evidently is the law as laid down by the treatise writers, viz.,

 

(1) 34 L. J. (Ch.) 129.

 

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

 

(3) Ibid. 458.

 

(4) 2 H. & C. 985.

 

(5) 3 Ibid. 374.

 

(6) 10 H. L. C. 272. [*641]

 

that domicil was to be considered as changed whenever there was a change of residence of a permanent character voluntarily assumed. The rule is expressed in the judgment of Lord Justice Turner, in Hoskins v. Matthews (1). There he says: “The question to be determined is, what is the just conclusion as to the change of Mr. Matthews' domicil to be deduced from these facts. Questions of change of domicil depend upon the animus and the factum. There is, in this case, no doubt as to the factum. That the villa Lorenziwas the home of Mr. Matthews for a long time before his death, and in the most forcible sense in which the word 'home' can be used, seems to me to admit of no question. It was the place in which he had set up his establishment, in which his fortune, so far as his fortune admitted of locality, was centred, in which he lived with such of his children as were not at school or in the world, which he destined for their future residence, from which he went forth, and to which he returned, and in which he expected to die. There is not, so far as I can see, any element wanting in this case which could tend to constitute a domicil de facto.”

 

With very few, and not, to my mind, material variations, that state of things pointed out by Lord Justice Turner may be predicated of the case now before me. Beyond all question the testator did reside in Jersey. He resided there for a great number of years. It was the place from which he went out when he went to visit or travel; it was the place to which he returned after he had visited or travelled (2). It was the place in which he set up his family, because it appears that, having no children, there were two grandchildren to whom he seems to have been exceedingly attached, one of whom resided there with him from 1853 as his permanent home. With respect to this grandson, we have this very material fact, that the testator did at one time contemplate a change of residence from Jersey, but it was with the view of continuing to reside with this grandson, whom he considered, apparently, the most important member of his family, and as to whom he made this very important provision, that he should have a very much larger annual

 

(1) 8 D. M. & G. 13, 26.

 

(2) “In eodem singulos habere domicilium non ambigitur ubi quis larem rerumque ac fortunarum summam constituit; unde rursus non sit discessurus si nihil avocet; unde cum profectus est peregrinari videtur: quod si rediit peregrinari jam destitit.” – Cod. Lib. 10, tit. 39, l. 7. [*642]

 

income in case of his continuing to reside in Jersey, which place, therefore, was contemplated by the testator as the future residence of the person who had been constituted his heir by his will. Add to that the very important fact of his bringing the remains of his children from a cemetery in France to be buried in Jersey. I think that is by no means the immaterial fact as it was pressed upon me that it was by counsel for the Respondents. I can conceive nothing which indicates so completely an intention to make a permanent residence as the selection of a burial place for his children, to whom he was attached, and who were actually already buried elsewhere. I do not think that the force of that fact, and the inference I should draw from it of his intention to make that his permanent residence, is in any way diminished by the consideration that the immediate cause of the removal was his fear that the remains, or the burial place in France where they were placed, might be desecrated. He would not have removed them to Jersey unless he were satisfied as to Jersey being their permanent resting place, and the place in which he himself expressed his wish to be buried. Then it is not immaterial that, when he was preparing his will, he was reminded that the will would be good – the soundness of that advice, in point of law, is not a matter for me to determine – if he were domiciled in Jersey, and therefore acting, as I must suppose he did, upon his own notion that he was domiciled in Jersey, he proceeded to execute the will thus prepared. I apprehend that would have exactly the same effect as if he had said, “I, having elected to make my domicil in Jersey, do make this my will.”

 

Having regard to all these facts, to the length of residence (in itself a very material fact) continued and unbroken for so many years, and to the other circumstances that I have mentioned, I am of opinion that the case is at least as strong as Forbes v. Forbes (1), and quite as strong as Udny v. Udny (2), where it was considered by the majority of the Judges that Colonel Udny had acquired an English domicil, which he afterwards abandoned. My decision must, therefore, be in favour of a Jersey domicil.

 

Costs of all parties of the inquiry as between solicitor and client.

 

(1) Kay, 341.

 

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