let conjointly by the lessor and the lessee, the latter remaining responsible for the rent; or even the present lease may be cancelled at the end of six months' notice after one year of holding; and provided that the hiring shall only cease in the month of January." In 1840, being in London, he instructed his solicitor to prepare a will for him, which was accordingly done in the common form, and sent to Paris, but before its arrival there, Mr. Lawson, an English solicitor, practising at Paris, had prepared another. On the arrival of the English will a codicil was added by Mr. Lawson, and the will and codicil were both executed on the 8th December, 1840. The description of the testator inserted in the will was, "J. B. Gilchrist, of the city of Edinburgh, but now residing at 10, Rue Matignon (1), in the city of Paris." At the time of making his will, he was possessed of the following property: A freehold estate at Sydney, New South Wales; a freehold flat, or floor, in Hunter Street, Edinburgh; 100 shares in the Commercial Bank of Scotland, valued at 17,450l.; and 2,000l. capital stock of the Bank of England; household furniture in Paris; and 5,842 copies of his Oriental works, and some ornamental furniture, which were in London, the last having been expressly left with friends to keep till his "return" to London.

The will gave to his wife his household goods, furniture and plate, linen, glass, china, carriage, horses, jewels, trinkets, wines, &c., and money in his house for her absolute *use and benefit. And his estate at Sydney and in Edinburgh, and all his residuary, real and personal estate, he gave to Joseph Hume, Esq., M.P.; Charles Holland, Esq., M.D.; John Macgregor, Esq., one of the secretaries of the Board of Trade; and John Bowring, Esq., LL.D. (all of London); and Robert Veritz, Esq., M.D., of Paris, physician to the British Embassy there, on trust to convert the same into money, and to invest the produce (but so that it might be disposed of to charitable purposes), on trust to pay certain annuities, and then on such trusts as by any codicil he might direct. By the codicil he directed and appointed "that the trustees or trustee for the time being, shall stand possessed of, and interested in, the residue. or surplus of the trust monies, stocks, funds, and securities thereby to them bequeathed in trust. Upon trust to apply and appropriate the same in such manner as they, my said trustees or trustee, shall in their absolute and uncontrolled discretion think proper and expedient, for the benefit, and advancement, and propagation of education and learning in every part of the world, as far as circumstances will permit."

(1) This name is misspelt or misprinted in different ways where it occurs in the original report.-F. P

The testator died at Paris on the 8th January, 1841, and on the 13th January the will and codicil were proved by all the executors except Dr. Veritz in the Prerogative Court of Canterbury. In August, 1841, they were duly registered and confirmed in Scotland.

On the 30th July, 1841, the appellant, as the heir-at-law and one of the next of kin of the testator, filed his bill (which was afterwards amended) in Chancery against the executors (and other necessary parties), and the Attorney-General, alleging that, by the law of Scotland, the real estate of the testator did not pass by the will and codicil, that the real estate at New South Wales did not pass *thereby, but that all the real estate, after satisfying lawful charges thereon, belonged to the heir-at-law; that the trusts thereof were inoperative and void; that the residuary estate was undisposed of, and that, subject to the debts of the testator, the same by the law of the testator's domicile, belonged to his next of kin (exclusive of the widow's interest) and he prayed for a declaration accordingly, and for an account.

In November, 1842, the executors filed their bill, praying that it might be declared that the will was well proved, and that the trusts thereof ought to be carried into effect.

By an order of the COURT made in both causes, in January, 1843, it was referred to Master Richards to inquire where the testator was domiciled at the time of his death, and who were his heir-at-law and next of kin. In December, 1844, the Master reported, that the appellant was his heir-at-law, and that certain other persons were his next of kin; and in November, 1849, he made a farther report, by which he found that the testator was domiciled in London.

The appellant excepted to this report, insisting that it ought to have been found, that the domicile was either Scotch or French. The exceptions were overruled by Lord LANGDALE (January, 1851). The cause was heard before Sir JOHN ROMILLY, who (April 30, 1851) declared the will to contain a good charitable bequest, and decreed accordingly (1). The case was taken on appeal before the Lords Justices, and the decree of the MASTER OF THE ROLLS affirmed (2). The present appeal was then brought against both these decrees.

[Mr. Rolt and Mr. Greene (Mr. Morris and Mr. Springall Thompson with them) for the appellant.

Mr. R. Palmer (Mr. Anderson and Mr. Bagshawe with him) for the respondents.

The Solicitor-General (Sir H. Cairns, Mr. Wilkins with him) in support of the validity of the will.

(1) 92 R. R. 200 (14 Beav. 509).

(2) 91 R. R. 151 (1 D. M. & G. 506).

Mr. Rolt, in reply.

The questions raised and the arguments of counsel thereon are sufficiently stated for the purpose of this report in the following judgment. ]

THE LORD CHANCELLOR (Lord CHELMSFORD) after stating the terms of the will and codicil, said:

Upon the argument at the Bar three main questions were raised: first, upon the domicile of the testator; Secondly, whether the Statute of Mortmain, 9 Geo. II. c. 36, applied to a devise of lands, situated in New South Wales, and rendered the devise for charitable uses void; and, thirdly, whether the trust upon which the residue was given, constituted a valid charitable bequest. Upon the point of domicile, an objection was made on the part of the respondents, that it was not competent to the appellant to enter into that question, inasmuch as it was concluded by the probate of the will which had been granted by the Prerogative Court. And it is necessary, therefore, very shortly to consider what is the effect of a grant of probate upon a question of this kind.

Now, there is no doubt that it is the province and the duty of the Ecclesiastical Court to ascertain what was the domicile of the party whose will is offered for probate, in order to ascertain whether that is a valid will, the testator having complied with all the requisites of the law of the country in which he was domiciled. But if probate is granted of a will, then that conclusively establishes in all Courts that the will was executed according to the law of the country where the testator was domiciled. Supposing the fact to be, that the testator was domiciled in a foreign country, and the will was not executed according to the law of that country, still, if it had been admitted to probate by the proper Ecclesiastical Court here, no other Court could go back upon the factum and raise any question with respect to the validity of the will.

That seems to be exemplified and established by the case of Douglas v. Cooper (1). There a married woman, under the power of appointment in a marriage settlement, which was to be exercised by a will, to be executed with certain formalities, made an instrument, which was admitted to probate by the Ecclesiastical Court, and the MASTER OF THE ROLLS held that he was concluded by the judgment of the Ecclesiastical Court granting probate, from considering the question, whether it was a will; namely, whether it was such an instrument as was required by the power, and that the office and duty of (1) 3 My. & K. 378.

the Court were confined to the consideration of the question, whether that instrument was executed with the formalities which were required by the powers.

Therefore, I apprehend, that this will having been admitted to probate, it must be taken to be a valid will wherever it shall turn out that the testator was residing at the time of his death, but that the place of domicile is still open for consideration, and also the validity of the bequest contained in the will, and the effect of it according to the law of the domicile of the testator. The question, therefore, being open for consideration as to where the testator was domiciled at the time of his death, it will be necessary to enter shortly into the consideration of the evidence upon that subject, upon which I apprehend that your Lordships will feel no very great difficulty.

The testator was a native of Scotland, born there in the year 1759. In the year 1782, being then of the age of 23, he went to India, and shortly afterwards entered into the service of the East India Company as a medical officer. He continued in the service of the East India Company in India till the year 1804, and by his services with the East India Company, he acquired what has been called in several cases an Anglo-Indian domicile. He returned to his native country in the year 1804, married there in 1808, and shortly after his return he retired from the service of *the East India Company upon a pension which he enjoyed down to the time of his death, which was in the month of January, 1841.

There is no doubt that his domicile of origin, revived by his return to, and residence in, his native country. But it is unnecessary to pursue the circumstances of that residence, because your Lordships have already intimated a very strong opinion that in the year 1817, and in subsequent years the circumstances showed that he had relinquished that domicile of origin, and that the real contest was between two alleged subsequently acquired domiciles. In the year 1817, as I have already stated, he quitted Scotland, never permanently to return, and established himself in London. He was a person well skilled in Oriental languages and literature; he was the author of several Oriental works, and, at the time he came to London, he had a large stock of those works on hand at his booksellers. And it was alleged that the reason of his coming to London was to promote the sale of those works. He seemed to have considered that the best mode of advancing his object was to give public lectures on Oriental literature; and about the year 1821 he obtained employment from the directors of the East India Company, as professor of the Hindostanee language, for

three years, which was renewed at the expiration of that time. for a farther term of three years, and, afterwards, for one year, which brings us down to the year 1828. At the expiration of his employment under the East India Company, he lectured gratuitously, as it is said, for the purpose of facilitating the same object which he had in view, and which brought him to London.

Upon his first arrival in London with his wife, he went into furnished lodgings, and continued to reside with his wife in furnished lodgings down to the year 1822. He then took a furnished house in Clarges Street at a rent of *400l. a year, and he lived in that house for five years, at the end of which time he removed to another house, No. 38, in the same street, which he occupied for another year. That again brings us down to the year 1828. During the time he was residing in Clarges Street, in the years 1825, 1826, and 1827, he made excursions to the Continent, but kept on his house in London, and returned from time to time to his residence. In the year 1828 he went abroad and lived in various parts of the Continent for three years, down to the year 1831. He then again returned to London. He appears to have remained a very short time in London in that year, 1831. He went abroad in the same year, whether for pleasure or for health is wholly immaterial; but he remained abroad upon that last occasion from the year 1831 down to the year 1833, and again he returned to London. In the month of May, 1833, he proposed to establish a newspaper, and for that purpose he took a house in the Strand, and he continued to hold that house, having employed persons to assist him in this undertaking or speculation, of a newspaper. He held that house for a year, but the speculation entirely failed. In the year 1834 he abandoned it, and in that year, 1834, he quitted England for Paris, and he only returned to England occasionally from the year 1834 down to the period of his death in 1841, namely, in the years 1839 and 1840.

Now, my Lords, the question is, whether, during the long period which I have mentioned, from the year 1817 down to the year 1834, the testator having clearly abandoned his domicile. of origin, he had not acquired a new domicile in England. And I think your Lordships will entertain very little doubt that such a domicile was, in point of fact, acquired. It seems to me, that the nature of his residence and his constant returns from the Continent, bring that residence completely within the definition *of domicile which is given in the Digest (1): "Unde (1) Bk. 50, tit. 16, s. 203.

WHICKER

V.

HUME.

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