Scottish Court of Session Decisions

Melville Babington Smith was born on 24th September 1838, of Scottish parents, in the parish of Tinwald and county of Dumfries. In 1862 he and his elder brother, George Greig Smith, went to New Zealand, where George occupied himself in sheep farming, while Melville engaged in various occupations. In the course of his business he travelled a great deal, and made various visits to Scotland. In 1881 the two brothers purchased jointly the sheep farm of Pouparæ,

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near Gisborne, which was worked under the personal superintendence of both for their joint behoof. In February 1885, George, being in bad health, determined to visit Scotland, and Melville resolved to accompany him. Before starting both brothers employed a solicitor at Gisborne to make their wills, and they then set out, leaving the farm in charge of a manager. They arrived in Scotland, where George died on 22nd January 1886. He left a widow, Mrs Elizabeth Wright or Smith, and two pupil children, Walter and Mary Smith. By his above-mentioned will he appointed his widow to be the guardian of his children. She was also his sole executrix accepting and acting under his will.

In consequence of his brother's death it became necessary to realise the farm of Pouparæ, and Melville tried, but in vain, to dispose of it through a London agency. He accordingly went to New Zealand himself, and the farm and stock were realised in November 1886, and accounts between the brothers afterwards adjusted by a New Zealand accountant. Melville had the share of the estate falling to him invested in stock issued by the Union Bank of Australia in London. Having settled these matters, he started to return to Scotland, but was taken ill at New York, and died there upon 9th July 1887. He was never married. In his portmanteau was found the will of 6th February 1885.

By this his last will and testament he revoked all previous wills. He appointed two gentlemen in New Zealand to be the “trustees and executors of this my will;” he bequeathed certain legacies; and lastly—“And I give, devise, and bequeath all the rest, residue, and remainder of my real and personal estate, of whatsoever nature and kind soever, unto my said trustees upon trust, to sell and convert the same into money, and out of the proceeds of such sale and conversion, in the first, to pay all my just debts, funeral and testamentary expenses, and then to pay the residue thereof in manner following, namely, one-third of such nett proceeds to my brother George Greig Smith and his heirs absolutely; one other third to my brother James Smith of Park End, Lochmaben, Scotland; and the remaining one-third equally between my sisters, Jane Smith and Mary Smith, as tenants in common: And I devise unto my said trustees all estates vested in me as trustee or mortgagee, according to the equities thereof.—In witness whereof, I have to this, my last will and testament, set my hand this 6th day of February 1885. — Melville Babington Smith. — Signed by the said testator Melville Babington Smith as and for his last will and testament, in the presence of us, both present at the same time, who, in his presence, at his request, and in the presence of each other, have hereto subscribed our names as witnesses—Edward Chas. Ward jr., solicitor, Gisborne; Charles C. Lucas, solicitor's clerk, Gisborne.”

After all the purposes of the will had been satisfied except the bequest to George Greig Smith and his heirs absolutely,’ questions arose between the parties, and this special case was presented for the opinion of the Court by (1) Mrs Mary Smith, the surviving sister and executrixdative of Melville Babington Smith; (2) the surviving brothers and sisters of Melville Smith or their representatives; (3) the children of George Greig Smith and their mother as their guardian, nominated and appointed by him in his will of 6th February 1885, being all the known next-of-kin and heirs in mobilibus of George Greig Smith.

The second parties maintained that Melville Babington Smith died domiciled in New Zealand, and that the law of that country fell to be applied in construing his will. They further maintained that even if the testator died domiciled in Scotland the law of New Zealand should be applied. It was admitted by all parties that by the law of New Zealand the bequest to George Smith lapsed by his predecease, and that the parties entitled to share in the residue would be the next-of-kin of Melville Babington Smith. The third parties maintained that the testator died domiciled in Scotland, that the law of Scotland fell to be applied in construing his will, and that by it the bequest to George Greig Smith and his heirs absolutely, did not lapse by his predeceasing the testator, and fell now to be paid to his children as his heirs.

These questions were submitted—“(1) Was Melville Babington Smith domiciled in Scotland at the date of his death? (2) Assuming that the first question is answered in the affirmative, does the law of Scotland or the law of New Zealand regulate his testamentary succession?”

At the bar it was admitted and a minute was lodged by the second parties to the effect that Melville Babington Smith was a domiciled Scotsman when he died.

The second party argued—It was admitted that Mr Smith was domiciled in Scotland, and it was no doubt true that the usual course was to construe the will by the law of the testator's domicile—M'Laren on Wills, i. 39. The Act of 1861 (24 and 25 Vict. cap. 114) provided that a will should be held good if made according to the law of the place where the testator was residing at the time. But the presumption that the law of the domicile was to rule could be redargued, and in this case the law of New Zealand ought to rule. The intention of the testator must rule, and the testator intended New Zealand and not Scottish law to rule. At the time the settlement was made the testator was possessed of heritable property in New Zealand, and had no property elsewhere— Mitchell & Baxter v. Davies, December, 3, 1875, 3 R. 208; Rainsford v. Maxwell, February 6, 1852, 14 D. 450. The persons who were appointed as trustees were resident in that country— Ferguson v. Majoribanks, April 1, 1853, 15 D. 637. The testator had gone to a New Zealand solicitor to prepare the deed, who had used the professional language to which he was accustomed in drawing up the deed, supposing it was to be construed by the law

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which was applicable to the words he used. There were various technical phrases which could only be explained by the law of New Zealand, and it was therefore proper to have the whole will construed by that law— Thomson's Trustees v. Alexander, December 18, 1851, 14 D. 217; Trotter v. Trotter, June 10, 1829, 3 W. & S. 407.

The third party argued—Assuming that Mr Smith's domicile was Scotland, there was no reason why the ordinary rule that the law of the domicile governs the construction of the will should be put aside—Storey's Conflict of Law, 601; Bar's International Law, 476. The will was validly drawn up by the New Zealand solicitor, the only person to whom Smith could go in order to have his wishes put into shape by a professional man; it was therefore valid to convey moveable property in Scotland, and must be construed by the law of Scotland— Purvis' Trustees v. Purvis' Executors, March 23, 1861, 23 D. 812. The same rule obtained in England— Anstruther v. Chalmer, February 6, 1826, 2 Simon's Rep. 1; Enohin v. Wylies, April 3, 1862, 10 Clark's Rep. (H.L.) 1. Although there were some technical words in the will that did not afford sufficient indication of the intention of the testator to induce the Court to hold that it must be construed according to New Zealand law— Bradford v. Young, April 30, 1885, 29 L.R., C.D. 617. All the facts were against the idea that the testator wished any other law than that of Scotland to govern the construction of his settlement.

At advising—