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THE

LAW JOURNAL REPORTS

FOR

THE YEAR 1906.

CASES

DECIDED BY THE

JUDICIAL COMMITTEE OF

His Majesty's Privy Council,

AND BY THE

House of Lords in Scotch and Irish Appeals,

REPORTED BY

JAMES EYRE THOMPSON,

BARRISTER-AT-LAW.

dh

EDITOR:

JOHN MEWS.

SUB-EDITORS:

W. E. GORDON AND A. J. SPENCER.

VOLUME LXXV.

[CONTEMPORARY WITH LAW REP. [1906] A.C.]

LEL

PUBLISHED FOR THE PROPRIETORS AT THE OFFICE OF

THE LAW JOURNAL REPORTS, 119 CHANCERY LANE, LONDON.

94298

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Decision of the COURT OF SESSION (Brooks v. Brooks's Trustees), 4 Fraser, 1014, affirmed.

Appeal from the decision of the First Division of the Court of Session (the late

Domicil-Abandonment of Domicil of Lord President [Lord Kinross] and Lords Origin-Evidence.

In the acquisition of a new domicil more is required than a mere change of residence; there must be proved a fixed intention to renounce birthright in the place of original domicil and to adopt the political and municipal status involved by permanent residence of choice elsewhere than in the domicil of origin.

A testator who was born in England, where, for many years, to the time of his death, he had large business interests, and houses and estates, each of which he occasionally visited, who had satisfied himself by enquiries of his lawyer that he was still an Englishman, and had executed testamentary dispositions both in Scottish and English form,-Held, not to have abandoned his English domicil simply by reason of his having described his Scottish residence as his "home," and of having lived the greater part of each year for thirty years in Scotland.

* Coram, Earl of Halsbury, Lord Robertson, and Lord Lindley.

VOL. 75.-P.C.

Adam, McLaren, and Kinnear) dated July 15, 1902, which adhered to the Ordinary (Lord Low). The question was interlocutor pronounced by the Lord whether Sir William Cunliffe Brooks, who died in 1900 possessed of large personal estate and also of considerable real estate

both in England and Scotland, was a domiciled Scotsman or Englishman at the time of his death. Lady Huntly, who was his daughter, and her husband were pursuers in the action and claimed that he was domiciled in Scotland, and that, notwithstanding the testator's will, she was entitled in the name of legitim to one-half of one-third of the net amount of his personal estate.

judgment of the Lord President: The following statement is from the

"The most important question in this case is whether the late Sir William Cunliffe Brooks had, at the date of his death on June 9, 1900, acquired a domicil of choice in Scotland, or whether he at that date retained his domicil of origin in England. There is also a question as to

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HUNTLY (MARCHIONESS) v. GASKELL, H.L. whether he had acquired a domicil of choice in Scotland at November 5, 1879, the date of his marriage with the pursuer, Lady Brooks.

"Sir William Cunliffe Brooks was the son of a domiciled Englishman, a banker in Blackburn, Lancashire, and he was born there in 1819. He was educated exclusively in England, he took his degree at Cambridge in 1842, and in the same year he married his first wife, who was an English lady. He was called to the English Bar in 1847, and he practised on the Northern Circuit for a short time. He was, however, about that time assumed by his father as a partner in the banking business, the principal office of which was then in Manchester, and in 1847 he took a lease of Barlow Hall, a residence near Manchester, of which he continued to be the tenant ever afterwards down to the date of his death. In 1864 Sir William's father died, and he then became sole proprietor of the bank. His first wife died in 1865, and in 1869 he was elected member of Parliament for an English constituency. In that year he took a lease of the house No. 5 Grosvenor Square, London, and gave up the direct personal management of the bank, but he continued to carry on the business through the instrumentality of managers till 1888, when he assumed two nephews as partners. By the contract of co-partnery entered into between himself and them, he had right to terminate the partnership at any time, the dissolution to take place on the day of notice, so that they had not any really independent position in the business. His share of the capital of the bank was 300,000l., and the shares of his two partners were 30,000l. and 20,000l. respectively. He had right to eight-tenths of the profits, his partners each having right to one-tenth. appears that the income which Sir William derived from the bank, including interest on capital, amounted to from about 30,000l. to 50,000l. a year. Although Sir William gave up the personal management of the bank in 1869, he remained throughout the rest of his life in constant communication with the head office, and he was daily informed by letter as to the course of the business, He appears to

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have exercised a vigilant supervision over it, and this is not surprising, as the income which he derived from it was not like the return from a safe investment, but a profit from trading in money, which if unskilfully or injudiciously conducted, might have landed him in very large pecuniary loss and possibly in further liability. . .

"Sir William inherited from his father extensive landed estates in Lancashire and Cheshire, yielding a rental of about 20,000l. a year. There was no mansionhouse upon these estates, but a considerable part of them was situated at no great distance from Barlow Hall. These estates were let to tenants, and latterly considerable portions of them were successfully developed as building land. For several years prior to 1869, Sir William came to Scotland for purposes of sport in autumn, and in that year he became tenant, under a lease for eleven seasons, of the forest of Glen Tana, which belonged to the Marquis of Huntly, and was situated near Aboyne Castle, then the residence of the marquis. In 1869 the marquis married the elder of Sir William's two daughters, who were his only surviving children. In 1872, when Sir William was still lessee of Glen Tana, he established a private chapel there called the church of St. Lesmo. In 1876 the existing leases were renounced, and Sir William obtained a new lease for fifteen and a-half years from Martinmas of that year of the forest, estate, and fishings of Glen Tana and other lands.

"Sir William's second daughter was married to Lord Francis Cecil, son of the Marquis of Exeter, in 1874, and in 1879 Sir William married Miss Davidson, a Scottish lady, by whom he was survived, and who is the pursuer in the leading action. The marriage settlement between Sir William and Miss Davidson is in the English form, and it was prepared by Mr. Wood, his solicitor in Manchester. The trustees under it were English, and the settlement contains none of the provisions usual and appropriate to the case of Scottish persons in the position of Sir William and his wife. . . . In accordance with Sir William's wish the marriage took place in the church of St. Lesmo, and in the register then signed his usual

HUNTLY (MARCHIONESS) v. GASKELL, H.L. residence is stated to be 5 Grosvenor Square, London.

"Sir William did not retain his seat at the election of 1885, but in 1886 he was elected for another division of Cheshire, a seat which he held till 1892, when he finally retired from Parliament. In 1886 he was made a baronet, the patent being granted in favour of 'William Cunliffe Brooks of the city of Manchester.' He seems to have always been proud of being known and regarded as a 'Manchester man.' I find no evidence that Sir William's interest in his banking business, or in his English properties, ever flagged, and to the end his gifts by way of charity were much larger in England than in Scotland.

He was

particular in correcting the proofs for peerages and similar books of reference, so as to shew that he retained his English position and interests. Thus in the proofs for the entries in Debrett's and Burke's Peerages in 1900, the last year of his life, corrected by himself, Barlow Hall and Manchester are mentioned before the forest of Glen Tana in the statement of his 'seats,' so on his menu-cards and ball-programmes he had a picture of Barlow Hall at the top, and of Glen Tana at the bottom, of the first page. Sir William purchased Aboyne Castle in 1888, Glen Tana in 1891, and the estate of Ferrar in 1899. . . . The price which he paid for Glen Tana was 120,000l. It appears that at the date of his death Sir William was proprietor of real estate in England of the value of about 543,000l., as against heritable estate in Scotland of the value of about 261,000l.; and it was stated by the defenders' counsel, and not disputed, that he had received 685,3147. in rents from his English properties in thirty-six years.

"Sir William resided chiefly at Glen Tana from the year 1869, although he resided also for relatively small portions of each year at 5 Grosvenor Square and Barlow Hall. From 1869 till his death his principal domestic establishment was at Glen Tana, No. 5 Grosvenor Square and Barlow Hall being each in charge of a housekeeper and housemaids. His chief residence for the last thirty years of his life was thus at Glen Tana, and it is

clear that he was much attached to it, as also that he greatly enjoyed living therefirst for the sport and amenity which it provided, and latterly also for the pleasure which he derived from making improvements upon it. Sir William, by his will, expressed the desire that if he died abroad he should be buried abroad, but that if he died in Great Britain or Ireland he should be buried at Glen Tana, and accordingly on his death, on June 9, 1900, he was buried there. His views as to how his remains should be disposed of after his death appear to have fluctuated. At one time he seems to have desired that he should be buried at Ashton, and at another time that he should be cremated.

"Sir William had desired to leave only one testamentary settlement, but, by the advice of Mr. Wood, his solicitor in Manchester, he executed two, one in the English form, dealing with his general estates, and the other in the Scottish form, dealing with his landed property in Scotland. The trustees under both settlements are the same-English gentlemen resident in England. By his Scottish testamentary settlement Sir William left his whole heritable estates in Scotland to trustees for behoof of his eldest grandson, Ean Francis Cecil and the heirs of his body, whom failing, his grandson Richard Cecil and the heirs of his body, whom failing, to his daughter Lady Francis Cecil, and he provided a life rent of Aboyne Castle to Lady Huntly. By his English settlement he left his personal property in Scotland to the beneficiaries to whom his Scottish estates were bequeathed, and he directed that the whole residue of his estates, real and personal, should be realised and divided among his grandchildren. In his Scottish settlement he was described as of Glen Tana,' and in his English settlement as 'of the city of Manchester.' . . . It appears from letters which passed between Sir William and his English solicitor, Mr. Wood, that his attention had been called to the question of his domicil, but if he entertained doubts on the subject these seem to have been removed by the assurances of Mr. Wood that he was domiciled in England. Upon these facts the question arises, Had Sir William Cunliffe

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