Scottish Court of Session Decisions

Thomas Buchanan was the son of Scottish parents, and was born in 1829 at Killearn, where he was brought up and educated. He was engaged in business in Scotland from 1849 until 1866, when he went to Belfast, where he carried on business for some years. In 1873 his wife obtained decree of divorce against him on the ground of desertion. In 1874 he went to Manchester, and he lived in lodgings there until shortly before his death, which occurred in Glasgow in September 1889. He was survived by a daughter—Jane Forsyth Buchanan or Ferguson—who was born in 1866. While in Manchester he was agent for his brothers' firm of John Buchanan & Brothers. Upon 14th May 1889 Thomas Buchanan executed a will in the English form, by which he bequeathed various sums to his brothers and nephews, and the residue of about £5000 to the children of his brother Alexander. The will and testament contained the following clause—“I have, as will be observed, omitted to leave my daughter Jane any legacy, share of residue, or other interest under this my will. This I have done purposely, as it is my intention and wish that she shall not receive any benefit under the same. And I declare my domicile to be England, and that I have no intention of abandoning such domicile.”

The testator's brother Robert Buchanan, as executor, obtained probate in England, and was proceeding to administer the estate there when the deceased's daughter obtained interdict in the Sheriff Court at Glasgow against the distribution of the estate. The executor accordingly raised an administration suit in the Chancery Division of the High Court of Justice in England, in which on 16th December 1889 Mr Justice Chitty ordered, inter alia—“(6) An inquiry whether the testator was at the time of his decease domiciled in England, and if it shall be found that the testator was not domiciled in England, where was his domicile. And in the event of its being found that the testator was domiciled in Scotland, (7) an inquiry whether the personal estate of the testator is subject to payment of any and what portion thereof to any child or children of the testator living at the time of his death notwithstanding the provisions of his said will.”

Upon 23d December 1889 the deceased's daughter brought an action of reduction of her father's will, and declarator that at the date of his death he was a domiciled Scotsman, and that the pursuer as his lawful child was entitled to claim at least her legitim out of the moveable estate belonging to him at the time of his death.

The defenders pleaded—(1) Forum non conveniens. (2) Lis alibi pendens.

Issues were adjusted by the Lord Ordinary for the trial of the cause, two of which related to the reductive conclusions of the summons, and the third to the question of domicile.

Upon 17th October 1889 the pursuer abandoned by minnte the reductive conclusions of the summons on the ground that a will prior to that of 14th May 1889 had been discovered which prevented her taking any benefit even if that will was reduced, and the case was remitted to the Outer House.

Upon 5th November 1890 the Lord Ordinary ( Trayner) repelled the first and second pleas-in-law for the defenders, and allowed a proof as to the domicile of the late Thomas Buchanan.

The defenders reclaimed.

At advising—