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.

service.

Entry into the service of the East India Company East India Company's formerly effected a change of domicile. Bruce v. Bruce, service.

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 Cl. & 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.

of choice.

A domicile of choice is acquired by a person who fixes Domicile 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.

A person may by the duties of his position or by his Disability to acquire profession be disqualified from acquiring a domicile of domicile choice.

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

of choice.

Ambassa

dor or peer.

Compulsory residence.

Residence for sake of health.

Domicile

of choice con-ti

tuted by

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.

But there is nothing in the position of an ambassador 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.

A domicile of choice can only be acquired by choice, 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. 1089.

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.

A person compelled to go abroad for the sake of his 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 of choice is a mixed question of intention and fact; there must be an intention to reside permanently in 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.

was.

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

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

quo se

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 Permato which no definite limit of time can be assigned.

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.

nent residence.

to return.

Where a person has in fact taken up a permanent resi- Intention dence in a country, that country will be his domicile notwithstanding 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.

residences.

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

domicile of

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

441; King v. Foxwell, 3 Ch. D. 518; overruling Munroe v. Douglas, 5 Mad. 379, 405, so far as inconsistent.

By 24 & 25 Vict. c. 121, where a convention has been entered into with a foreign state willing to adopt the provisions of the Act, an order in Council may direct that no British subject resident in such state shall acquire a domicile there unless he shall have been resident there for a year, and shall have made a declaration of his intention to become domiciled there; and the subjects of the foreign state are to acquire a British domicile only after the same formalities have been gone through.

9

CHAPTER II.

GENERAL CHARACTERISTICS OF TESTAMENTARY

INSTRUMENTS.

A GIFT intended to be testamentary can only be effectually Testamentary gift. made by an instrument duly executed as a will. Thus, a direction to give property to a person after the donor's death, where the donor retains full control of the property in his life, is invalid. Powell v. Hellicar, 26 B. 261; Fletcher v. Fletcher, 4 Ha. 79; Hughes v. Stubbs, 1 Ha. 481; Maguire v. Dodd, 9 Ir. Ch. 452; Farquharson v. Cure, 2 Coll. 356; Gough v. Findon, 7 Ex. 48.

In the same way a deed not intended to have any Deed to effect till the settlor's death is testamentary. Consett after

v. Bell, 1 Y. & C. C. 569; Rigden v. Vallier, 2 Ves. Sen. 253; Dillon v. Coppin, 4 M. & Cr. 647; In bonis Morgan, 1 P. & D. 214; Fielding v. Walshaw, 27 W. R. 492.

take effect

death.

settle

ment.

A voluntary settlement, though reserving to the settlor Voluntary a life interest and containing a power of revocation, is not testamentary. Thompson v. Browne, 3 M. & K. 32. The case of A.-G. v. Jones, 3 Pr. 368, is overruled; see Majoribanks v. Hovenden, 1 Dru. 11, 27, 29; Sheldon v. Sheldon, 1 Rob. 83; Brown v. Adv.-G., 1 Macq. 79; see too Hope v. Harman, 11 Jur. 1097; Hope v. Hope, 10 B. 581.

Similarly, an instrument coming into operation immediately, and of which no part is revocable, more especially if it involves anything in the nature of consideration, cannot take effect as a will. In bonis Robinson, 1 P. & D. 384 ;