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JUDICIAL COMMITTEE OF
HIS MAJESTY'S PRIVY COUNCIL
AND OF THE
HOUSE OF LORDS
[IN THE HOUSE OF LORDS.]
Decision of the COURT OF SESSION HUNTLY (MARCHIONESS) (Brooks v: Brooks's Trustees), 4 Fraser, 1905.
1014, affirmed. Dec. 12, 13, 14. v. GASKELL AND
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.
Adam, McLaren, and Kinnear) dated
July 15, 1902, which adhered' to the In the acquisition of a new domicil interlocutor pronounced by the Lord more is required than a mere change of Ordinary (Lord Low). The question was residence ; there must be proved a fixed whether Sir William Cunliffe Brooks, who intention to renounce birthright in the died in 1900 possessed of large personal place of original domicil and to adopt the
estate and also of considerable real estate political and municipal status involved by
both in England and Scotland, was a permanent residence of choice elsewhere
domiciled Scotsman or Englishman at than in the domicil of origin.
the time of his death. Lady Huntly, A testator who was born in England, who was his daughter, and ber husband where, for many years, to the time of his
were pursuers in the action and claimed death, he had large business interests, and
that he was domiciled in Scotland, and houses and estates, each of which he
that, notwithstanding the testator's will, occasionally visited, who had satisfied nim
she was entitled in the name of legitim to self by enquiries of his lawyer that he was
one-half of one-third of the net amount still an Englishman, and had executed
of his personal estate. testamentary dispositions both in Scottish
The following statement is from the and English form, -Held, not to have judgment of the Lord President: abandoned his English domicil simply by "The most important question in this reason of his having described his Scottish
case is whether the late Sir William Cunresidence as his “home," and of having liffe Brooks had, at the date of his death lived the greater part of each year for on June 9, 1900, acquired a domicil of thirty years in Scotland,
choice in Scotland, or whether he at that * Coram, Earl of Halsbury, Lord Robertson,
date retained his domicil of origin in and Lord Lindley.
England. There is also a question as to VOL. 75.-P.C.
HUNTLY (MARCHIONESS) v. GASKELL, H.L. whether he had acquired a domicil of have exercised a vigilant supervision over choice in Scotland at November 5, 1879, it, and this is not surprising, as the the date of his marriage with the pursuer, income which he derived from it was not Lady Brooks.
like the return from a safe investment, " Sir William Cunliffe Brooks was the but a profit from trading in money, which son of a domiciled Englishman, a banker if unskilfully or injudiciously conducted, in Blackburn, Lancashire, and he was might have landed him in very large born there in 1819. He was educated pecuniary loss and possibly in further exclusively in England, he took his degree liability. .. at Cambridge in 1842, and in the same “Sir William inherited from his father year he married his first wife, who was extensive landed estates in Lancashire an English lady. He was called to the and Cheshire, yielding a rental of about English Bar in 1847, and he practised on 20,0001. a year. There was no mansion. the Northern Circuit for a short time. house upon these estates, but a considerHe was, however, about that time assumed able part of them was situated at no great by his father as a partner in the banking distance from Barlow Hall. These estates business, the principal office of which was were let to tenants, and latterly considerthen in Manchester, and in 1847 he took able portions of them were successfully a lease of Barlow Hall, a residence near developed as building land. For several Manchester, of which he continued to be years prior to 1869, Sir William came to the tenant ever afterwards down to the Scotland for purposes of sport in autumn, date of his death. In 1864 Sir William's and in that year he became tenant, under father died, and he then became sole pro- a lease for eleven seasons, of the forest of prietor of the bank. His first wife died Glen Tana, which belonged to the Marquis in 1865, and in 1869 he was elected of Huntly, and was situated near Aboyne member of Parliament for an English Castle, then the residence of the marquis. constituency. In that year he took a In 1869 the marquis married the elder of lease of the house No. 5 Grosvenor Square, Sir William's two daughters, who were London, and gave up the direct personal his only surviving children. In 1872, management of the bank, but he con- when Sir William was still lessee of Glen tinued to carry on the business through Tana, he established a private chapel the instrumentality of managers till there called the church of St. Lesmo. 1888, when he assumed two nephews as In 1876 the existing leases were renounced, partners. By the contract of co-partnery and Sir William obtained a new lease for entered into between himself and them, fifteen and a-half years from Martinmas he had right to terminate the partnership of that year of the forest, estate, and fishat any time, the dissolution to take place ings of Glen Tana and other lands. on the day of notice, so that they had “Sir William's second daughter was not any really independent position in married to Lord Francis Cecil, son of the the business. His share of the capital of Marquis of Exeter, in 1874, and in 1879 the bank was 300,0001., and the shares Sir William married Miss Davidson, a of his two partners were 30,0001. and Scottish lady, by whom he was survived, 20,0001. respectively. He had right to and who is the pursuer in the leading eight-tenths of the profits, his partners action. The marriage settlement between each having right to one-tenth. It Sir William and Miss Davidson is in the appears that the income which Sir William English form, and it was prepared by Mr. derived from the bank, including interest Wood, his solicitor in Manchester. The on capital, amounted to from about trustees under it were English, and the 30,0001. tó 50,0001. a year. Although settlement contains none of the provisions Sir William gave up the personal manage- usual and appropriate to the case of ment of the bank in 1869, he remained Scottish persons in the position of Sir throughout the rest of his life in constant William and his wife. . . . In accordance communication with the head office, and with Sir William's wish the marriage he was daily informed by letter as to the took place in the church of St. Lesmo, course of the business. He appears to and in the register then signed his usual HUNTLY (MARCHIONESS) v. GASKELL, H.L. residence is stated to be 5 Grosvenor clear that he was much attached to it, as Square, London.
also that he greatly enjoyed living there“Sir William did not retain his seat at first for the sport and amenity which it the election of 1885, but in 1886 he was provided, and latterly also for the pleasure elected for another division of Cheshire,
which he derived from making improvea seat which he held till 1892, when he ments upon it. Sir William, by his will, finally retired from Parliament. In expressed the desire that if he died abroad 1886 he was made a baronet, the patent he should be buried abroad, but that if he being granted in favour of William Cun- died in Great Britain or Ireland he should liffe Brooks of the city of Manchester.'
be buried at Glen Tana, and accordingly He seems to have always been proud of on his death, on June 9, 1900, he was being known and regarded as a Man- buried there. His views as to how his chester man.' I find no evidence that remains should be disposed of after his Sir William's interest in his banking death appear to have fluctuated. At one business, or in his English properties, time he seems to have desired that he ever flagged, and to the end his gifts should be buried at Ashton, and at by way of charity were much larger in another time that he should be cremated. England than in Scotland.
He was “ Sir William had desired to leave only particular in correcting the proofs for one testamentary settlement, but, by the peerages and similar books of reference, so advice of Mr. Wood, his solicitor in as to shew that he retained his English Manchester, he executed two, one in the position and interests. Thus in the English form, dealing with his general proofs for the entries in Debrett's and estates, and the other in the Scottish Burke's Peerages in 1900, the last year of form, dealing with his landed property in his life, corrected by himself, Barlow Hall Scotland. The trustees under both settleand Manchester are mentioned before the ments are the same-English gentlemen forest of Glen Tana in the statement of resident in England. By his Scottish his seats,' so on his menu-cards and testamentary settlement Sir William left ball-programmes he had a picture of his whole heritable estates in Scotland Barlow Hall at the top, and of Glen Tana to trustees for behoof of his eldest grandat the bottom, of the first page. Sir son, Ean Francis Cecil and the heirs of William purchased Aboyne Castle in his body, whom failing, his grandson 1888, Glen Tana in 1891, and the estate Richard Cecil and the heirs of his of Ferrar in 1899. ... The price which body, whom failing, to his daughter he paid for Glen Tana was 120,0001. It Lady Francis Cecil, and he provided a life appears that at the date of his death Sir rent of Aboyne Castle to Lady Huntly. William was proprietor of real estate in By his English settlement he left his England of the value of about 543,0001., personal property in Scotland to the as against heritable estate in Scotland of beneficiaries to whom his Scottish estates the value of about 261,0001. ; and it was were bequeathed, and he directed that stated by the defenders' counsel, and not the whole residue of his estates, real and disputed, that he had received 685,3141. personal, should be realised and divided in rents from his English properties in among his grandchildren. In his Scottish thirty-six years.
settlement he was described as of Glen “Sir William resided chiefly at Glen Tana,' and in his English settlement as of Tana from the year 1869, although he the city of Manchester.'
. . It appears resided also for relatively small portions from letters which passed between Sir of each year at 5 Grosvenor Square and William and his English solicitor, Mr. Barlow Hall. From 1869 till his death Wood, that his attention had been called his principal domestic establishment was to the question of his domicil, but if he at Glen Tana, No. 5 Grosvenor Square entertained doubts on the subject these and Barlow Hall being each in charge of seem to have been removed by the asa housekeeper and housemaids. His surances of Mr. Wood that he was domichief residence for the last thirty years of ciled in England. Upon these facts the his life was thus at Glen Tana, and it is question arises, Had Sir William Cunlifte