Gambar halaman
PDF
ePub

domicile and the marriage of the testator. In bonis Reid, 1 P. & D. 74.

The validity of wills of personal property, except in the case Domicile. of British subjects dying after August 1861, is governed by the law of the testator's domicile at the date of the death. Anstruther v. Chalmer, 2 Sim. 1; Stanley v. Bernes, 3 Hagg. 373; Price v. Dewhurst, 8 Sim. 279; 4 M. & Cr. 76; Preston v. Melvill, 8 Cl. & F. 1; Craigie v. Lewin, 3 Curt. 435; De Zichy Ferraris v. Lord Hertford, 3 Curt. 468; Bremmer v. Freeman, 10 Moo. P. C. 306; Enohin v. Wylie, 10 H. L. 1; see Eames v. Hacon, 16 Ch. D. 407.

Legislative changes in the law of the country, where the deceased was domiciled, made after his death, though with express reference to his will, cannot be considered in deciding upon the right to have the will proved in this country. Lynch v. Provisional Government of Paraguay, 2 P. & D. 268. The administration of the personal property of a deceased Domicile

governs person, whether a British subject or not, including the adminisconstruction of his will, is governed by the law of the testator's domicile at the time of his death. Enohin v. tion of Wylie, 10 W. R. 467; 10 H. L. 1.

In matters of procedure, such as payment of interest on legacies, the Court follows its own practice. Hamilton y. Dallas, 38 L. T. N. S. 215. The question of domicile is independent of naturalisation Domicile

indepenand allegiance. Udny v. Udny, L. R. 1 H. L. Sc. 441 ; dent of Haldane v. Eckford, 8 Eq. 631 ; Brunel v. Brunel, 12 Eq.

allegiance. 299; Douglas v. Douglas, 12 Eq. 617. The following cases on this point are overruled :—Moorhouse v. Lord, 10 H. L. 272; In re Capdevielle, 2 H. & C. 985; A.-G. v. Countess de Wahlstatt, 3 H. & C. 374; Jopp v. Wood, 34 B. 88; 13 W. R. 481; Maltass v. Maltass, 1 Rob. 67.

According to English law every person has a domicile. If a domicile of choice lias not been acquired, the law

tration and construc

will.

attributes to him a domicile, which may be called his

domicile of origin. Domicile

The domicile of origin of a legitimate child is that of of origin of children. its father, of an illegitimate child that of its mother.

Dalhousie v. Macdouall, 7 Cl. & F. 817; Munro v. Munro, 7 CI. & F. 842; Re Patten, 6 Jur. N. S. 151.

After the death of their father the domicile of infant children is the domicile of the mother as long as she remains a widow. Potinger v. Wightman, 3 Mer. 67; see Johnston v. Beattie, 10 CI. & F. 42, 66.

It is unsettled whether the capacity of the widow to alter the domicile of her infant children is not lost on her second marriage. See Dicey on Dom., 102, citing Ryall v. Kennedy, 40 N. Y. Sup. Ct. 347, where it was held that upon remarriage of the widow the domicile which infants

had immediately before the mother's remarriage remained. Of lunatic,

The domicile of a person, who is a lunatic when he attains his majority and so remains up to the time of his death, changes with that of his father in the case of a legitimate child and with that of his mother in the case of an illegitimate child, when there is no committee of the person. Sharpe v. Crispin, 1 P. & D. 611.

It is doubtful whether a guardian can change an infant's

domicile. Douglas v. Douglas, 12 Eq. 617, 625. Of married The domicile of a married woman at any given time is

the domicile of her husband at that time. Warrender v. Warrender, 2 Cl. & F. 488; Dalhousie v. Macdouall, 7 Cl. & F.817; Whitcomb v. Whitcomb, 2 Curt. 351; Dolphin v. Robins, 7 H. L. 390; Bell v. Kennedy, L. R. 1 H.L. Sc. 307.

A married woman living apart from her husband under an agreement for a separation has no power to change her domicile by her own act.

Warrender v. Warrender, 2 Cl. & F. 488. In re Daly's Settlement, 25 B. 456.

After a decree for a divorce the wife can select her own domicile. Williams v. Dormer, 2 Rob. 505.

[ocr errors]

woman,

a

a

service.

It would seem that the same rule should apply after a judicial separation. See Dolphin v. Robins, 7 H. L., pp. 416, 420; Le Sueur v. Le Sueur, 1 P. D. 139; 2 P. D. 79.

Persons entering the military service of any state acquire Military the domicile of that state. President of United States v. Drummond, 12 W. R. 701; 33 B. 449.

But the domicile of a person domiciled within the United Kingdom, for instance in Jersey, is not changed by entering the military service of the Crown. Re Patten, 6 Jur. N. S. 151; Brown v. Smith, 15 B. 444; Yelverton v. Yelverton, 29 L. J. P. 34; 1 Sw. & T. 574.

Entry into the service of the East India Company East India formerly effected a change of domicile.

Bruce v. Bruce, service.

Company's 2 B. & P. 229, n.; 6 B. P. C. 566; Munroe v. Douglas, 5 Mad. 379; Forbes v. Forbes, Kay 341; Craigie v. Lewin, 3 Curt. 435.

The domicile of origin endures until an actual change is made by which another domicile is acquired. Bell v. Kennedy, L. R. 1 H. L. Sc. 307; Ommaney v. Bingham, cit. 5 Ves. 757 ; Somerville v. Lord Somerville, 5 Ves. 749, 786 ; Moore v. Budd, 4 Hag. 346; Munro v. Munro, 7 CI. & F. 842, 876; Countess of Dalhousie v. Macdouall, 7 Cl. & F. 817; A.-G. v. Dunn, 6 M. & W. 511; De Bonneval v. De Bonneval, 1 Curt. 856. A domicile of choice is acquired by a person who fixes Domicile

of choice. his sole or principal residence in a country which is not his country of origin with the intention of residing there for a period not limited as to time. King v. Foxwell, 3 Ch. D. 518; Drevon v. Drevon, 12 W. R. 946; The Harmony, 2 Rob. Ad. 322; Bempde v. Johnstone, 3 Ves. 198.

v A person may by the duties of his position or by his Disability profession be disqualified from acquiring a domicile of domicile

to acquire choice.

of choice. Thus it seems that an officer holding a commission from the Crown cannot acquire a new domicile unless he is on

a

half-pay. Craigie v. Lewin, 3 Curt. 435; Hodgson v. De Beauclerc, 12 Moo. P. C. 285; Cockrell v. Cockrell, 25

L. J. Ch. 730. Ambassa- But there is nothing in the position of an ambassador dor or peer. or peer of the realm to prevent the acquisition of a domicile

of choice. Heath v. Samson, 14 B. 441; A.-G. v. Kent, 1

H. & C. 12; Hamilton v. Dallas, 1 Ch. D. 257. Compul- A domicile of choice can only be acquired by choice, sory resi. dence.

therefore a compulsory residence abroad as a refugee, or to avoid creditors, will not effect a change of domicile, unless followed by voluntary adoption of the new domicile. De Bonneval v. De Bonneval, 1 Curt. 864; Pitt v. Pitt, 12 W. R. 1039.

Similarly residence abroad in the performance of a public duty, such as that of judge, military officer or consul, does not in itself confer a foreign domicile.

. A.-G. v. Rowe, 1 H. & C. 31; A.-G. v. Napier, 6 Ex. 217;

Sharpe v. Crispin, 1 P. & D. 611. Residence A person compelled to go abroad for the sake of his health,

health would probably not acquire a foreign domicile. See Johnston v. Beattie, 10 Cl. & F. 42, p. 138.

But where a foreign country is selected as a residence in the hope or opinion that it may be better suited to the health or constitution, a domicile of choice may be

acquired. Hoskins v. Matthews, 8 D. M. & G. 13. Domicile Domicile of choice is a mixed question of intention and

fact; there must be an intention to reside permanently in tuted by completed a particular country, followed by actual residence. Where intention. the intention is clear, length of residence would be

.
immaterial.

Where there is no direct evidence of intention, length of residence is material as showing what the intention

for sake of

of choice con-ti

was.

Thus a fixed intention to adopt a certain place as a domicile, followed by arrival at that place, would, it seems,

quo se

at once constitute that place a domicile. Bell v. Kennedy, L. R. 1 H. L. Sc. 307.

The fact of residence in a particular place will not con- Quærens stitute that place a domicile of choice so long as the conferat. person residing is in search of some permanent place of residence, and has not made up his mind where it shall be. Bell v. Kennedy, L. R. 1 H. L. Sc. 307; Whicker v. Hume, 7 H. L. 124. By permanent residence must be understood residence Perma

nent resito which no definite limit of time can be assigned.

dence. Thus residence abroad with a view to making a fortune will effect a change of domicile. Lyall v. Paton, 25 L. J. Ch. 746; Allardice v. Onslow, 33 L. J. Ch. 434,

So an intention to reside in a country as long as another person lives is in effect an intention to reside permanently. Anderson v. Laneuville, 9 Moo. P. C. 325.

Where a person has in fact taken up a permanent resi- Intention dence in a country, that country will be his domicile not- to return. withstanding an intention to retain his domicile of origin, or some other domicile. A.-G. v. Kent, 1 H. & C. 12; A.-G. v. Fitzgerald, 3 Dr. 610; In re Steer, 3 H. & N. 594; Doucet v. Geoghegan, 26 W. R. 825; 9 Ch. D. 441. See too, Stanley v. Bernes, 3 Hag. 373 ; Anderson v. Laneuville, 9 Moo. P. C. 325; In bonis Raffenel, 3 Sw. & T. 49; Stevenson v. Masson, 17 Eq. 78.

Where a person has two residences, the place where he usually resides with his wife and family will be considered residences, his place of domicile. Forbes v. Forbes, Kay, 341; Aitcheson v. Dicon, 10 Eq. 589; Platt v. A.-G. of New South Wales, 3 App. C. 336. Where a domicile of choice is abandoned, the domicile Revival of

domicile of of origin is revived until a fresh domicile of choice is origin. acquired. The Indian Chief, 3 Rob. Adm. 12; In bonis Bionchi, 3 Sw. & T. 16; Udny v. Udny, L. R. 1 H. L. Sc.

,

Two

« SebelumnyaLanjutkan »