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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 30,0007. to 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
HUNTLY (MARCHIONESS) v. GASKELL, H.L. Brooks at the date of his second marriage variety of forms of expression, sometimes in 1879, or at the date of his death in figurative, which the learned Judges from 1900, lost his English domicil of origin, time to time have used in order to indicate and acquired a domicil of choice in Scot- what the particular facts then in debate land ?"
before them point to as the principle upon After a review of the authorities, the which the question should be decided. I learned Lord President (with whom the myself have entertained no doubt what other Judges concurred) came to the con- that question is, and the way in which it clusion that Sir William Cunliffe Brooks should be decided, but, of course, other had not abandoned his English domicil. minds take different views about the
mode in which it should be expressed. I Eve, K.C., and Lord Kinro88 (of the myself think that it is expressed very well Scottish Bar) (Coldridge with them), for indeed by Lord Curriehill, approved and the appellants. — Sir William Cunliffe quoted by Lord President Inglis in the Brooks had clearly intended to make case of Steel v. Steel (1888]." “It is, I Glen Tana his permanent home; he think,” says the learned Judge, “ by no always spoke of it with affection, and as means an easy thing to establish that a his « true home.” For thirty years his man has lost his domicil of origin, for, as visits to England were brief, and for Lord Cranworth said in the case of Moor. business or political purposes only. The house v. Lord (1863),2. In order to acquire test of domicil lies in the intention, and
must intend the intention is evidenced by conduct. It Quatenus in illo exuere patriam,' and I is abundantly clear that the testator venture to translate these words into intended to reside for the rest of his life English as meaning that he must have a in Scotland.
fixed intention or determination to strip [They cited the authorities which are himself of his nationality, or in other always referred to in cases on domicil.] words to renounce his birthright in the
Sir Edward Clarke, K.C., The Lord place of his original domicil. The serious Advocate (T. Shaw, K.C.), W.J. Cullen, character of such a change is very well K.C. (of the Scottish Bar), Charles Church expounded by Lord Curriehill in the case and J. Adam (of the Scottish Bar), for the of Donaldson v. M Clure (1857].3 He respondents, were not heard.
says,—To abandon domicil for
another means something far more than EARL OF HALSBURY.-Notwithstand- a mere change of residence. It imports an ing the length to which this case has intention not only to relinquish those gone, and the exhaustive learning that peculiar rights, privileges, and immunities has been brought to bear upon it in the which the law and constitution of the Courts below and at your Lordships' Bar, domicil confer on the denizens of the it appears to me that it turns upon a very country in their domestic relations, in small point, and I myself have not been their business transactions, in their from the first able to entertain the smallest political and municipal status, and in doubt that the judgment of the Lord the daily affairs of common life, but Ordinary in the first instance, and the also the laws by which the succession to Inner House afterwards, was perfectly property is regulated after death. The correct. More than once in the course of abandonment or change of a domicil is the case I have had occasion to observe therefore a proceeding of a very serious that I do not believe that there is any nature, and an intention to make such an question or doubt about what the law on abandonment requires to be proved by the subject is. It is very often a question satisfactory evidence.' of complicated facts from which the I do not believe that it could be extribunal has to infer a variety of things pressed more clearly or distinctly than it with reference to the domestic and com- is in that judgment; and, applying that mercial life of the person whose status is
(1) 15 Rettie, 896, 908. being enquired into; and naturally, when
(2) 32 L. J. Ch. 295; 10 H.L. C. 272. that is the case, there has been a great (3) 20 Dunlop, 307.
HUNTLY (MARCHIONESS) v. GASKELL, H.L. principle to the question now before your somewhere, which of course involves resiLordships, I say that I regard with some- dence as part of it; and if it was suggested thing like amazement the fact that the that a man had gone to settle at some question should have been debated so particular place and had abandoned all long under the circumstances which are other connection and all other country, I in proof before your Lordships. I should think that inference might be natural have thought that it was very difficult and just; but to suggest in the case of a indeed to suggest with respect to this man of great wealth, who is wandering particular testator that there was the from one place to another from time to slightest indication in any part of his time, although he may spend a larger career of an intention to abandon his part of his time in Scotland than elsedomicil of origin. He was an English- where, that that of itself should be anyman, his property in great measure was thing from which anybody could draw an in England, his constituency which he re- inference that he meant to change his presented in Parliament was in England, domicil, seems to me a very monstrous and I should have thought that it was proposition impossible to doubt that there were at Now upon one part of this case I least three residences which he had, about confess it appears to me that sufficient which it might have been equally said he reliance has not been placed by those who made his home there. It does not follow have had this matter under discussion, that they were all three equally popular and that is the nature of the man himself, with him, or any one of three the main the sort of character he had, and what he abiding-place for the greater part of the was endeavouring to settle. These are all year during which he lived in each of elements to be taken into consideration them in turn. But what is the inference when you come to this question. The to be derived from that? I should have idea had occurred to him during his lifethought that the obvious inference which time that some question might arise as anybody would draw would be that there to his domicil; he had seen some case in was no intention to change his domicil. the Scottish Law Reports which sugThat he had three residences is true; but gested to him that there might be some unless you can show something else than question raised after his death, and he the fact that a man of great wealth, who had been dealing very accurately and had three residences, preferred one rather carefully with the question of how he was than another, either in respect of sport to settle his affairs. He applies to a at the earlier period of his career or in lawyer whom he had great confidence in, respect of the state of his health at a later and says, “Now, is it true that I am a part of his career, clearly he found that domiciled Scotchman?” Can any one Glen Tana agreed with him better and doubt what the meaning of that was? I that the air was better, are you to infer, or must say I infer, together with all the is there any evidence from which you can other learned Judges who have dealt with infer, an intention to change his civil this question, that what he meant was to status ?
It seems to me that every part satisfy his own mind, because he thought of his career points to the same conclu- some question, which unfortunately has, sion. Being a very wealthy man, and notwithstanding his care, arisen, might doing whatever he liked to do, he might arise after his death. He wanted to be go to Antibes at one time with as much advised whether there was anything he idea of change, in the sense of changing could do in order to prevent such a queshis status at Antibes, as at Glen Tana; tion arising, upon which he is assured — but the real truth was that no change of and I think accurately assured-by the any sort or kind is suggested by what he learned gentleman who was advising him, did. It is admitted that mere residence that there was no doubt whatever that he is in itself nothing. There may be con- was an Englishman, and that he need not tinuous residence, or, what I think has trouble himself about any questions which been appropriately suggested as being the might arise on the difference between most satisfactory word to use, “ settling" Scottish and English law and the suggestion HUNTLY (MARCHIONESS) v. GASKELL, H.L. that he was a Scotchman. More than intended by a domicil of choice to make once he has this assurance given to him. Scotland his home, or Scotland the place Now is there the slightest evidence that of his domicil, so as to put in peril the after that he did or said, or desired to question which he obviously was disdo or say anything which could raise any turbed about at one time-namely, whedoubt upon the matter about which he ther or not the laws of Scotland and the had been so completely assured by his difference between English and Scottish legal adviser? Of course, the answer must law might interfere with testamentary be that there was nothing. What is the dispositions. inference which your Lordships must
Under the circumstances I move your draw from that? To my mind it is per- Lordships that this appeal be dismissed. fectly clear that he knew, because it had
It appears to me that the question lies been explained to him-he was not with- now in a very narrow compass indeed, out advice—what the distinction was, and we have satisfactorily, I think, come and what domicil meant, and the assur- to a conclusion, in accordance with that ance that he was an Englishman con- of every other judicial authority which tented him and satisfied him, and he did has been appealed to, that there is no no more.
doubt whatever that the domicil of origin For my own part I cannot entertain of Sir William Cunliffe Brooks was the smallest doubt that from that moment England, and that accordingly this appeal he had satisfied himself that he was, as must be dismissed. he intended to be, an Englishman, and retained his English domicil. Under LORD ROBERTSON.—I think the present those circumstances it appears to me, not- a very clear case. withstanding the enormous length to In the first place it is not a case like which this case has gone, that there is a Bell v. Kennedy (1867],4 where a man has very plain and obvious answer to the severed all ties with the country of his appellants' case.
birth except the inseparable one of birth, I do not think it is necessary to go where, accordingly, there is but one through all the different points of fact question to consider, and that is the which have been called to our attention adequacy of the residence in the new by the learned counsel who has with great country to constitute domicil. In the diligence and care presented every fact present case, not only was the testator, that could be appropriately presented to Sir William Cunliffe Brooks, born in your Lordships for consideration, because England, but he remained to his death I must say, having read the Lord Ordi- deeply rooted in England by business nary's judgment and the judgment of which he continued to carry on, by large Lord Kinnear, I have come to the con- real property which he retained, and by clusion that every topic that could be two residences which he never ceased to invoked and discussed has been satisfac- keep open and periodically to stay in. It torily invoked and discussed by the differ- may truly be said of him that he severed ent learned Judges who have given their none of his ties to England; and the attention to this subject; and, speaking only point made is that having, like for myself, I say most sincerely that I do many Englishmen, bought a house in not think there is anything more to be Scotland, he, being very rich and master said about it. They have exhausted the
They have exhausted the of his own time, spent much the greater whole topic.
Every portion of this part of the year there. Even on this gentleman's life has been examined with point it is well to observe that his buying the minutest care, and the only inference Glen Tana was due to compelling circumI think that I can possibly draw from stances, and was not an act of election. the picture that has been presented to us No doubt at all he was very fond of the by this accurate bistorical narrative of place; and, being a person of emphatic this gentleman's life is that he never had and florid speech, he spoke of it occasionthe slightest idea of abandoning his ally—especially (although not always) domicil of origin, and least of all that he
(4) L. R. 1 H.L. (Sc.) 307.