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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Special Case - Wauchope's Executor v. Mrs Wauchope [1877] ScotLR 14_576 (23 June 1877) URL: http://www.bailii.org/scot/cases/ScotCS/1877/14SLR0576.html Cite as: [1877] ScotLR 14_576, [1877] SLR 14_576 |
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Observations
A Scotchman joined the Civil Service of the East India Company in 1841, and, with the exception of two short absences, resided in India from 1842 to 1873. He was on leave of absence on furlough in Europe when he died in 1875. In a question as to the domicile of the deceased, held that it was Anglo-Indian, and therefore, for the purposes of succession, English, and that neither the Act 21 and 22 Vict. cap. 106, vesting the territories of British India in Her Majesty Queen Victoria, nor the provisions of the “Indian Succession Act 1865,” operated any change when an Anglo-Indian domicile had been acquired before these Acts came into operation.
Observations on the case of Bruces v. Bruce, M. 4617, H. of L. 3 Pat. App. 163.
This was a Special Case presented by David Baird Wauchope, Esq., wine merchant in Leith, executor-nominate quoad estate in Great Britain of the deceased Samuel Wauchope, C.B., under his will, dated 21st July 1875, of the first part; and Mrs Catherine Baldock Fagan or Wauchope, widow of the said Samuel Wauchope, of the
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second part. The case set forth that the deceased Samuel Wauchope, C.B., was born legitimate in Scotland, of Scottish parents, in the year 1822. In the year 1841 the said deceased entered the Civil Service of the East India Company (Bengal Presidency); in 1842 he went to British India; and at the time of his death, which took place at Engelberg, Switzerland, on 23d July 1875, he was in the service of the Crown in British India, which became vested in Her Majesty by the Statute 21 and 22 Vict. cap. 106. During the period of his service he had visited Scotland twice on short leave and once on furlough, and returned to India. In the year 1873 he left British India, having obtained leave of absence on furlough for two years, together with five days subsidiary leave, from October 23, 1873, and returned to Scotland, where he resided in a house rented by the year, the lease of which to Whitsunday 1876 was current at his death. During the summer of 1875 he went abroad on account of his health, and died of the date above mentioned. At the time of his death he had served the requisite number of years to entitle him to retire from service, but he had not retired from service, and was in receipt of furlough allowance at the time of his death. In 1843 the deceased married at Calcutta the party of the second part. Of the marriage three children only, daughters, survived. The deceased had entered into no contract of marriage, either antenuptial or postnuptial, with the party of the second part. The deceased left no heritable property in Great Britain, but he died possessed of moveable estate in Scotland, moveable estate in England, and moveable and real estate in British India. He executed a will two days before his death. A question had arisen between the parties to the case as to the right of the second party jure relictm to the moveable estate left by the deceased. It was maintained by the first party hereto that the deceased had lost his domicile of origin, and acquired an Anglo-Indian domicile. If the domicile of the deceased at his death was Anglo-Indian, it was admitted that his succession must be regulated by the law of England, and that by that law his widow was not entitled to any portion of his moveable estate disposed of by the will, but was entitled to one-third of the moveable estate not disposed of, besides the legacy of furniture thereby bequeathed to her. On the other hand, it was maintained by the second party hereto that, under the provisions of “The Indian Succession Act ‘1865,’ the domicile of the deceased was Scotch, and that the succession must be regulated by the law of Scotland, and that she was entitled jure relictœ to one-third of his moveable estate. In the event of its being found that she was entitled to jus relictœ, the second party also claimed the legacy of furniture bequeathed to her by the will. But in the event of its being found that the deceased's domicile at his death was Anglo-Indian, the second party claimed the said legacy of furniture and one-third of the moveable estate not disposed of by the will.
The following questions were submitted:— “(1) Was the domicile of the deceased Samuel Wauehope Scotch at the time of his death? (2) Is the second party entitled to one-third of the moveable estate of the deceased jure relictœ? (3) Is the second party entitled to claim both jus revon. lictce and the legacy of furniture bequeathed to her by the will?”
The main provisions of the Indian Succession Act 1865, entitled “An Act to amend and define the law of intestate and testamentary succession in British India,” founded on by the parties, were as follows:—
“Past I.—Preliminary
“(2) Except as provided by this Act, or by any other law for the time being in force, the rules herein contained shall constitute the law of British India applicable to all cases of intestate or testamentary succession.
“Pabt II.—Of Domicile.
“(5) Succession to the immoveable property in British India of a person deceased is regulated by the law of British India, wherever he may have had his domicile at the time of his death. Succession to the moveable property of a person deceased is regulated by the law of the country in which he had his domicile at the time of his death.
6. A person can only have one domicile for the purpose of succession to his moveable property.
“9. The domicile of origin prevails until a new domicile has been acquired.
“10 A man acquires a new domicile by taking up his fixed habitation in a country which is not that of his domicile of origin.
“ Explanation.—A man is not to be considered as having taken up his fixed habitation in British India merely by reason of his residing there in her Majesty's civil or military service, or in the exercise of any profession or calling.
“ Illustration.
“A, whose domicile of origin is in France, comes to reside in British India, under an engagement with the British Indian Government for a number of years. It is his intention to return to France at the end of that period. He does not acquire a domicile in British India.
“11. Any person may acquire a domicile in British India by making and deposing in some office in British India (to be fixed by the local government) a declaration, in writing under his hand, of his desire to acquire such domicile, provided that he shall have been resident in British India for one year immediately preceding the time of his making such declaration.
“13. A new domicile continues until the former domicile has been resumed or a new one acquired.
“19. If a man dies leaving moveable property in British India, in the absence of proof of any domicile elsewhere, succession to the property is regulated by the law of British India.”
Argued for first party—(1) The domicile of the deceased was Anglo-Indian, and the right to jus relictœ was therefore excluded— Bruces v. Bruce, Mor. 4617, and April 15, 1790, 3 Paton App. 163, and 2 Bos. and Puller 230. An acquired domicile continues till a new one is acquired, which can be done only animo et facto— Munroe v. Douglas, July 3, 1820, 5 Maddoch's Ch. Rep. 379; Craigie and Craigie v. Lewin and Others, Feb. 28, 1843, 3 Curteis Eccles. Rep. 435; Bell v. Kennedy, May 14, 1868, 4 Macph. (H. of L.) 69, Law Rep. 1 Scot, and Div. App. 307; Forbes v. Forbes, Feb. 9, 1854, 23 L.J. (N.S.) Ch. 724; Allardice v. Onslow, Jan. 23, 1864, 10 Jurist (N.S.) 352;
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Moorhouse v. Lord, March 1863, 32 L.J. Ch. 295, and 9 Jurist (N.S.) 677; Aikman v. Aikman, March 12, 1861, 21 D. 757, and 3 Macq. App. 854; Udney v. Udney, June 3, 1869, 5 Macph. 164, and 7 Macph. (H. of L.) 89; Hamilton v. Dallas, Nov. 9, 1875, Law Rep. 1 Ch. Div. 257; in re Capdevielle, June 13, 1864, 2 Hurlstone and Coltman 985; Savigny's Conflict of Laws (translated by Guthrie), p. 59, note D. (2) No change on the common law rule has been made by the Acts transferring the territories of Hindostan from the East India Company to the Crown—3 and 4 Will. IV. c. 85; 16 and 17 Vict. c. 95; 21 and 22 Vict. c. 106; 24 and 25 Vict. c. 67; 28 and 29 Vict. c. 17. (3) The Indian Succession Act 1865 makes no real change in the law of domicile, at least as regards civil servants who had at its date acquired an Anglo-Indian domicile. (4) The claim to the legacy of furniture is inconsistent with the claim of jus relictœ. Argued for second party—(1) The case of Munroe v. Douglas was decided with reference to service under a private company, not the Crown. The doctrine of suspended domicile is extended by Udney v. Udney; Munro v. Munro, Nov. 15, 1837, 16 S. 18 (Lord Moncreiff's opinion, at p. 35), and Aug. 10, 1840, 1 Robinson's App. 492; Mc'Donald v. Lang, Nov. 27, 1794, Mor. 4627; Drevon v. Drevon, June 13, 1864, 34 L.J. Ch. 129; Hook v. Hook, Feb. 7, 1862, 24 D. 488 (Lord Kinloeh's judgment). (2) This is altered by the Act 21 and 22 Vict. c. 106.
(3) The Act of 1865 applies to all except the persons mentioned in section 331. (4) No intention to exclude the widow from her legal rights appears on the face of the will— Howden v. Crighton, May 18, 1821, 1 S. 18; White v. Finlay, Nov. 15, 1861, 24 D. 38; Henderson v. Henderson, 1782, Mor. 191.
At advising—
In regard to the first of these questions, I assume it to have been conclusively decided in the case of Bruce, (cited supra) and the other decisions which followed on Lord Thurlow's judgment in that case, that residence in India in the service of the East India Company, either in the civil or military capacity, constituted an Indian, and therefore, for the purposes of succession, an English domicile. It may, no doubt, be a question whether the views on which this result was arrived at were altogether unimpeachable, but it has been confirmed in so many subsequent cases that it seems to me to be too late now to raise any contention on that subject. It was there held that a civil servant, covenanting with the East India Company and residing in India in the discharge of that contract, had sufficiently indicated his intention of establishing his domicile there, although, no doubt, he probably entertained the intention, more or less remote, of returning to the country of his birth. I do not think it necessary to enter at any length into the principle on which the combination of residence and intention—the factum and animus—are held to denote and determine a change of the domicile of origin. This principle has been considered of late in a great many instructive cases. It is enough that it has been conclusively held that service as a civilian with the East India Company, and continuous residence in that country, does obliterate the domicile of origin, and create what was called an Anglo-Indian domicile.
In the present case, the deceased Samuel Wauchope entered the East Indian Company's service as a civilian in the year 1841, and, with the exception of two short absences, he resided in India from 1842 to 1873, a period of thirty-one years. In 1858, more than fifteen years after Mr Wauchope had taken up his residence in India, the Act of that year was passed, transferring the functions of the East India directors and the government of the East Indian provinces to the Crown. It has been suggested in one or two recent cases that the decision in the case of Bruce proceeded on the fact that the East India Company was a trading company, and that service with it was equivalent to, if not identical with, service with a foreign Government: and that now that the service, whether in a civil or military capacity, in that country is service under the Crown, the principle of the judgment no longer applies.
I do not think it necessary to express any opinion on these doubts, excepting to say that I should be slow to hold that the concidence of residence and intention on which the case of Bruce proceeded was in any degree altered by the transference of the Government from the East India Company to the Crown. The Government took over the public obligations of the Company, and continued the services of those who had been previously employed by the Company, on substantially the same terms. It is nearly twenty years since that transference was made, and, as far as I know, it has not as yet been found that any alteration on this question of domicile was thereby introduced.
But, however this question may be solved, it can have no application to the present case. There can be no doubt that Samuel Wauchope acquired an Indian domicile; the question is whether he has lost it and as domicile can only be lost by an intention to abandon it, accompanied by abandonment, I think it clear that no such elements are to be found in the present case.
The second question raises some considerations of interest and novelty. It depends upon the terms of the Act of the Indian Council of 1865. This Act, which is in substance and effect a codification of the law of intestate and testamentary succession for British India, contains a series of legal definitions and propositions, accompanied with illustrations applicable to the subject-matter treated of. Among other propositions is this one—“10. A man acquires a new domicile by taking up his fixed habitation in a country which is not that of his domicile of origin.” Then follow these words—“Explanation —
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It is not necessary to dispute that, if by a law passed by competent authority a person resident in any country is declared not to be domiciled there, the provision must receive effect in whatever forum it is pleaded, for every country has the right of determining for itself under what circumstances a domicile within it shall be acquired; and if Mr Wauchope had continued to live in India under a law which enacted that he should not be domiciled there, it would have been very difficult to resist the conclusion that the intention to abandon the domicile of origin had ceased. It might be different if the law of the foreign country prescribed certain elements which should constitute a domicile .within it. For in such a case it might quite well be that the forum in which the question was tried might, notwithstanding an international principle, apply its own law of domicile in any question occurring before it. But I imagine that no such conflict can arise in the present case, mainly because the words of this provision cannot, in my opinion, affect a domicile already acquired. Whatever be its true construction—and the words are far too popular and wanting in precision to make its interpretation altogether satisfactory—it is plain that the provision relates to the acquisition and not to the retention of a domicile. Indeed it is provided by No. 13 of the same code that a ‘‘new domicile continues until the former domicile has been acquired”— a proposition not very philosophically expressed, but in substance manifestly true. The existing domicile must continue until something has been done by the person leaving the domicile to abandon it in fact and in intention, and therefore, as the explanation adjected to article 10 only defines in what circumstances a man is not to be considered as having acquired a new domicile and lost an old one, it cannot be applied to the case of a person who had already acquired an Indian domicile.
I think this sufficiently plain upon the words of the provision, and it would be contrary to all principles of legislation, and a most mischievous precedent, to apply these words inferentially to a case they do not express, and indeed exclude, and to give them a retrospective effect on the status, personal and domestic relations, deeds and conveyances, mortis causa as well as inter vivos, of all the civil servants in India at the date at which the Act passed. I am therefore of opinion that Mr Wauchope had acquired an Anglo-Indian domicile, and that he never lost it.
Second, it follows that the widow's claim to her jus relictœ, so far as it depends on the law of Scotland, is excluded.
It is hardly necessary for us to answer the question put to us on the other alternative, but my opinion is, that this is a settlement of the whole of Mr Wauchope's estate, and that the widow, could not claim her jus relictœ, and at the same time take advantage of the bequest in her favour contained in the deed.
After careful consideration I have come to be of opinion that this question must be answered in the negative. It is true that the late Mr Wauchope was born in Scotland; and therefore that his domicile of origin was Scotch. But in early life he went to India, where he entered the Civil Service of the East India Company, and continued in that country and service upwards of 30 years, during which time he visited Scotland twice on short leave and once on furlough.
Such being generally the state of matters, I think it so clear on the authorities, and especially the decision of this Court and the House of Lords in the well-known case of Bruces v. Bruce, in 1790 (Mor. 4617, 3 Pat. Appeals 163) that it is impossible not to hold that the late Mr Wauchope, by entering and continuing in India in the service of the East India Company till 1858, when that Company ceased to exist and its interests were transferred to the Crown, had then lost his domicile of origin and acquired an Anglo-Indian domicile.
It was contended, however, that the extinction of the East India Company in 1858, and the circumstance of the late Mr Wauchope becoming on that event a servant of the Crown, distinguishes the present case from that of Bruces v. Bruce, and renders the principle of the judgment in that case inapplicable. I am unable to think so. It is true that one of the reasons assigned for the judgment in Bruce's case was that the party whose domicile formed the subject of dispute was in the service of the Company, and not in a British regiment which might have been in India only occasionally; but the position of the late Mr Wauchope was precisely of the same nature after as well as before 1858, when the East India Company ceased to exist and the Crown came into its place. It could no more be said of him, after his service was transferred to the Crown in 1858 than it could previously, that his service in India was only occasional. The reason and principle of the decision in the case of Bruces v. Bruce appears therefore, so far, to be clearly applicable to the present.
Neither can I see anything in the “Indian Succession Act 1865” that can be held to affect the matter. The “explanation” which follows article 10 in that Act, to the effect that “a man is not to be considered as having taken up his fixed habitation in British India merely by reason of his residing there in Her Majesty's civil or military service, or in the exercise of any profession or calling,” appears to me to be no more than an announcement in a concentrated form of the settled law on the subject as exemplified by the case of Bruces v. Bruce, for, according to the terms of the judgment in that case, besides the circumstance of the party going to India and entering the service of the East India Company, there were the further circumstances of his not having declared any fixed or settled intention of returning to Scotland to remain there.
If I am right in those views, it follows there is nothing in the present case to distinguish it
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It results from my answer to the first question as now given that the second and third questions, if it be necessary to answer them at all, must be answered in the negative.
In the year 1841 Mr Wauchope, then only about 19 years of age, entered the Civil Service of the East India Company, and in that service he next year went to British India. At that time the East India Company was a private company; its rights and interests were not transferred to or vested in the Crown till the Statute of 1858.
Mr Wauchope appears to have entered the Company's service in the usual way and on the usual terms. His appointment was of a permanent nature and indefinite as to its duration. In point of fact, that employment lasted till Mr Wauchope's death, being a period of about 34 years. He was in the same service at his death, although, as the rights and powers of the Company had been transferred to Her Majesty, he was at his death in the service of the Crown.
During that long period of service Mr Wauchope resided in British India, only visiting Scotland three times in all. He married in India in 1843, and he never took up any permanent domicile anywhere else. He died in Switzerland during an absence from his service, but he contemplated returning to it, for he was only absent from India on furlough, which had not expired at the time of his death.
I think it is fixed by the authorities referred to at the bar that a person accepting permanent private employment in British India, and residing there in pursuance thereof, the employment being of indefinite duration and involving lengthened residence in India, acquires an Anglo-Indian domicile, unless there be very strong circumstances and indications to the contrary. A mere indefinite intention ultimately to return to Scotland when a sufficient fortune is made, or an adequate retiring pension is earned, will not per se prevent the acquisition of an Anglo-Indian domicile. The present case is a stronger case than usual for holding that an Anglo-Indian domicile was acquired, for not only did Mr Wauchope marry and settle in India for 34 years, but he had no residence in Scotland or anywhore else than in India, and he had no patrimonial estate or real estate of any kind in Scotland by means of which his connection with that country might be kept up. From 1841 to 1858 the East India Company was just a private trading company with large possessions in India.
If, then, Mr Wauchope had died previous to 1858, and before the East India Company and its whole interests were vested in the Crown, I think he must have been held a domiciled Anglo-Indian. I think this is the result of the authorities bearing on such a question, and to which your Lordships have referred. But it was contended that Mr Wauchope's becoming a servant of the Crown in 1858 raised a different presumption at least from and after that date, and the Indian Succession Act of 1865 was strongly founded on, particularly the explanation annexed to section 10, which provides that “a man is not to be considered as having taken up his fixed habitation in British India merely by reason of his residing there in Her Majesty's civil or military service or in the exercise of any profession or calling.”
Now, if Mr Wauchope, instead of entering the service of the East India Company in 1841, when it was a private company, had entered the Indian Service of the Crown after 1858, and particularly if he had entered subsequent to the Indian Act of 1865, I think there would have been very strong grounds for maintaining that he had not thereby lost his Scotch domicile of origin, even although he remained in India for a very considerable time. At least in a case where the facts are so bare as those set forth in this joint case, and where there are no indications of change of domicile except the mere circumstance of residence and service, I think the abandonment of the domicile of origin would not thereby be presumed. But I cannot hold that the transference of British India to the Crown in 1858, even coupled with the Indian Act of 1865, had the effect of changing the legal domicile of all those who had gone out to India long before 1858, and who had, according to the then existing law, acquired an Anglo-Indian domicile prior to the change effected in 1858 and prior to the Indian Act of 1865. I do not think any such result can be ascribed either to the Vesting Act of 1858 or to the Indian Succession Act of 1865. It would require some very express and explicit enactment to produce an effect so startling as would be the change, whether inversion or reversion, of the legal domicile of the whole personel then serving the East India Company in British India. I cannot give any such effect either to the transference of the East India Company to the Crown or to the Indian Succession Act of 1865.
I feel compelled therefore to decide the present case just as if it had arisen in 1858, and if I find upon the facts stated, as I do, that in 1858 Mr Wauchope was a domiciled Anglo-Indian, and if I find upon the facts stated, as I do, that nothing has occurred since 1858 whereby Mr Wauchope has lost his Anglo-Indian domicile and has acquired a new one, then I must conclude, as I do, that Mr Wauchope's domicile at his death was Anglo-Indian.
The Court pronounced the following interlocutor:—
“The Lords having heard counsel in the Special Case, are of opinion and find that the late Samuel Wauchope's domicile was in
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Counsel for the party of the First Part — Kinnear—W. J. Mure. Agents— J. & F. Anderson, W.S.
Counsel for the party of the Second Part— Asher—Hunter. Agent— R. B. Ranken, W.S.
