United Kingdom House of Lords Decisions

Sir Roundell Palmer. Q.C., and Cotton, Q.C., for appellant.

At advising—

The Lord Chancellor said that he was sorry to observe that the date of the summons in this case was so far back as 1858, and that no less then sixteen interlocutors would be overturned if the house were to reverse the judgment of the Court of Session. A claim was made in the present case by a daughter of Mr Bell of Enterkin for a share of the goods in communion of her parents at the death of her mother. Whether she was entitled to this depended on the domicile of the mother at the date of her death, which took place in 1838, and this, again, depended on the domicile of the claimant's father. It was a curious and unusual duty the House had to perform—viz., to determine what was the domicile of a person who was still alive. Mr Bell, the claimant's father, had been born in Jamaica, had gone to Scotland for education, travelled, and then returned at the age of 22 to Jamaica, where he succeeded to and continued for many years to manage his father's estate of Woodstock. He became custos of the parish of St George, and a member of Assembly, and resided in the island till 1837. It was evident, therefore, that Jamaica was the domicile of his birth, and his undoubted domicile up to that time. In 1834 the emancipation of the slaves and his failing health caused Mr Bell to think of leaving the island, and about this time he purchased two small estates in Scotland; but as it is clear that he never meant to live on these, and was at the date of the purchase a Jamaican, these facts could not affect the question. The expressions used by him in his correspondence at this time, such as coming home, were merely the language of a colonist when speaking of the mother country. In these circumstances the onus of proof was on those alleging a change of domicile. There was every presumption in favour of the domicile of birth; and the question was, Had Mr Bell acquired a Scotch domicile before the death of his wife? When he came to Edinburgh from Jamaica he lived with his mother-in-law, and paid part of the home expenses, and was looking out for an estate in Scotland. He had evidently a preponderating desire to settle in Scotland. His wife and her mother and all their friends desired it. It is further undoubted that he has since become a domiciled Scotsman, but up to his wife's death in 1858 all this only amounted to an intention which might have been altered had an eligible property in England appeared in the market. That he thought of this appears from the fact that his family dreaded it. The evidence of the family servants on the question of intention was a mere matter of opinion on their part, and worthless unless they could point to something said or done by Mr Bell which indicated the state of his mind on the subject. His Lordship then examined the correspondence which was in evidence, and showed from it that, three months after Mr Bell's arrival in Scotland, he complained seriously of the climate, and spoke of settling in Canada or Australia; that three months after, he wrote that he had not bought an estate in Scotland, and was not likely to do so. At two months later, in March 1858, he wrote about returning to Jamaica, and leaving a country which was stormy, and a people who were always bragging about their great-grandfathers; and that, two months after, he leased Rochrigg for a year, but still complained of the cold climate. All this showed that if he had got a property he might have stayed in Scotland, but if not, then he would not have stayed; so that it could not be held that he was settled there, or that he had acquired a new domicile at this time, which was the date of his wife's death. He therefore advised their Lordships to sustain the appeal, and reverse the judgment of the court below.

Lord Cranworth said it was true that, prima facie, a man's domicile was where he resided, and so it had been argued that Mr Bell's residing at Rochrigg, in Scotland, raised the presumption of his Scotch domicile; but then there was a prior and stronger presumption created by the fact that there was a domicile of origin, and that was in no doubt. Mr Bell desired to domicile himself in Scotland, but his subsequent letters showed a change in his de sires, and there was no fact following upon the animus which would create the new domicile.

Lord Westbury said the question in the present case was, had Mr Bell the settled purpose to make that change? The only thing which indicated this was his going to Scotland; but then this was explained by the natural desire he had to visit his wife's relatives. Residence was not domicile, though often confounded with it. The circumstances indicated only a resolution, but no fixity of purpose; and he therefore concurred in holding that no Scotch domicile had been acquired at the date of Mrs Bell's death. His Lordship concluded by expressing deep regret at the expense and time wasted in this suit, when it was clear from the very commencement that the only point which ought to have been discussed was that of domicile.

Lord Colonsay said he thought the case a very nice and difficult one on the evidence, but on the whole concurred with the other noble Lords.

Judgment reversed, with costs.