Scottish Court of Session Decisions

Miss Jessie Shepherd, daughter of the late John Shepherd, sometime an official in the General Post Office, Edinburgh, died in Penrith on 17th May 1896. She left a trust-disposition and settlement, which was executed in Scotland in the Scottish form, by which she conveyed her whole estate to trustees. She directed her trustees, inter alia, to pay the following legacies:—“Five hundred pounds to Rachel Wilson, Domestic Servant in my employment, for her devoted services to our family for a number of years, and to my dear friend and ‘sister in deed if not in word,’ (commonly called Lena), of Ten Brunstane Road, Joppa, and now taking care of my sister's children in Penrith, the sum of One thousand pounds unconditionally, and a second sum of One thousand pounds to be given to her twelve years from the date of these presents should she still have fulfilled a ‘mother's part’ to my dear little nephews and nieces, and looked after their welfare, and failing her to whoever has faithfully done so, of which my trustees shall be the sole judges, and to whom I hereby commit full power to give or withhold payment as to them may in the circumstances appear proper.”

The income of the trust-estate was to be paid to her brother-in-law Richard Ballingall Neville, and the capital of the residue was to be divided among the children of her deceased sister.

There was also found in her repositories a holograph writing headed, “codicil to will,” which was in the following terms:—

“I, Jessie Shepherd, who in May hurriedly drew up a will at Edinburgh (for the benefit of those I believed to be my truest friends), reserving at the same time the right to cancel, alter, or add to any part of it, on more mature reflection, do this 24th day of June 1895, declare my latest wishes now to be the following undermentioned items, which I leave in the hands of my trustees to see properly executed:—

1st. To Rachel Wilson I leave £300 instead of the £500 before mentioned in my will.

three hundred

2nd. To J. H. Jenkins (Lena) ‘my sister in deed if not in word’ in the past, the sum of 1000 shillings (not £1000), and ‘a second 1000 shillings (not £1000) to be left to her,’ &c., &c., ‘or to any one else whom my trustees may think fit’ 12 years hence.

3rd. To R. B. Neville, my dear sister's husband, I leave the life interest of my means & estate only so long as he does not marry again. Should he do so, my whole estate to remain out at compound interest for the children of my sister, until the sons marry (when they may have their shares) or until the death of the said R. B. Neville.

4th. To Eliza Fairbairn, my dear Cousin, I leave all my furniture & £500. Said furniture not to be put to auction. Should she not wish it, let it go to some of my dearest friends who do. 5th. To Ettie Buchan, my dear friend, I leave all my photographic views & also £500.

6th. Some personal momento to all my other friends as they may desire. To P. Flint my MSS.

Jessie Shepherd.”

The validity of this document having been disputed, an action was raised by two of the beneficiaries thereunder, Miss Eliza Fairbairn and Miss Hester Caroline Buchan against the trustees acting under the trust-disposition and the beneficiaries named therein, craving the Court for declarator—“That the said Miss Jessie Shepherd died upon 17th May, 1896, domiciled in Scotland; and that the writing, holograph of the said Miss Jessie Shepherd, and purporting to have been made and executed by her upon the 24th day of June 1895, is a valid and effectual codicil to the said trust-disposition and settlement executed by her as aforesaid.”

Answers were lodged by the defenders Miss Jenkins and Mr Richard Ballingall Neville. The trustees intimated their intention to watch the proceedings in the action, and the curator ad litem who was appointed to protect the interests of the pupil children of Mr Richard Ballingall Neville stated that it was to the interest of his wards to maintain the validity of the codicil, and that accordingly he adopted the pleas and averments of the pursuers.

The pursuers averred that the domicile of origin of the testatrix was in Scotland, and that she died without ever having lost such domicile.

The defender pleaded—(1) The said testatrix having been a domiciled Englishwoman from her birth, or at any rate having been domiciled in England at the date of her death, her estate falls to be distributed according to the law of that country.

The Lord Ordinary ( Kyllachy) allowed a proof.

The following facts appeared from the admissions of the parties on record, and as a result of the proof:—

Mr John Shepherd was an Englishman by birth, having been born in Westmoreland of English parents. In 1845 he removed from Westmoreland to Edinburgh, having received an appointment to a clerkship in the General Post Office, Edinburgh. At that time appointments in the General Post Office were to individual offices, and there was no transference from place to place except in special circumstances. It was accordingly of the nature of a permanent appointment. He was not in the service of the Government prior to this appointment. In 1858 he married Miss Janet Black Gloag, a daughter of Dr James Gloag, a teacher in the Edinburgh Academy, with whom he entered into an antenuptial contract of marriage in Scotch form. The contract contained the usual clauses as to the provisions in favour of the wife and children being in satisfaction of their claims to terce and jus relictæ and to legitim respectively.

After Mr Shepherd's marriage he resided in Portobello till his death, which occurred in 1895. His wife died in 1873. There were seven children of the marriage, all of whom, with the exception of two who died in infancy, were brought up and educated in Edinburgh or the vicinity. Only two of his family survived Mr Shepherd, Mrs Neville, who died within a few weeks of his death, and Miss Jessie Shepherd. Mr and Mrs Shepherd, and all their family who predeceased them, were buried in Warriston Cemetery, Edinburgh. For seventeen years prior to his death Mr Shepherd had retired from service in the Post Office upon a pension, and during the whole of this period he lived at No. 20 Brighton Place, Portobello, which he had purchased in 1876, He was also the proprietor of Murton, a small estate of 100 acres, in Westmoreland, which had been in the possession of his family for many years. There

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was a house on the estate, the use of which Mr Shepherd allowed to his unmarried sisters, out he was in the habit of spending his holidays there every year so long as he remained in the Post Office, and after his retirement he paid two or three visits there every year. He retained in his own hands until his death the cultivation of part of the estate.

With regard to the expressions used by Mr Shepherd from time to time, as bearing on the question whether he had the animus manendi in Scotland there was a considerable conflict of evidence. On the one hand, it was proved that he had a great affection for Murton, that he was very proud of his position as a landowner in England, and of the yeoman family from which he was descended. Evidence was given by Westmoreland friends to the effect that Mr Shepherd always regarded himself as an Englishman, that he spoke of Murton as his home, and expressed his intention of returning and of settling permanently there. On the other hand, witnesses spoke as to his liking for Portobello, and to expressions used by him to the effect that while he was fond of Murton, he never intended to return there for good. It was proved that Mrs Shepherd did not agree with her husband's sisters, and she inserted in her will a clause expressive of her desire that her children should not go to Murton.

With regard to Miss Jessie Shepherd the facts were as follows:—She was born in Edinburgh on 25th January 1863, and resided with her father in Portobello for several years after attaining majority. Being, however, in delicate health she was accustomed during the last few years of her life to spend a portion of each year abroad or in health resorts in various parts of Scotland and England. In the autumn of 1892 she went to the Canary Islands, where she resided until the death of her father in March 1895, when she returned to England. On her return from abroad in May, Miss Shepherd came to Penrith and resided in lodgings for a few weeks, and in July she took a three years' lease of a house there. This period was longer than the one for which she originally wished to take the house, the longer term being the result of a compromise by which the landlord agreed to do certain repairs.

Mrs Neville, the last surviving sister of Miss Shepherd, had died a few weeks previously, and her children, to whom Miss Shepherd was greatly attached, were living with their father at Penrith under the charge of the defender Miss Jenkins. Miss Shepherd was at this time in an advanced stage of consumption, and Mr Neville was unwilling that his children should be too much with her, a circumstance which distressed her very much, and caused a temporary coolness between her and Miss Jenkins, who had been her great friend. Miss Shepherd furnished her house partly with furniture taken from her father's house in Portobello, having sold that house, and part of the furniture in it. In February 1896 she also took a lease of a garden nearly adjoining her house. Shortly afterwards she came up to Edinburgh and spent seven weeks there, during which time she was largely occupied in examining different sites for a house which she proposed building on the south side of the city, and she employed an architect to prepare plans for it. Shortly after her return to Penrith she died very suddenly on the 17th May. With regard to Miss Shepherd's intentions as to her residence for the rest of her life, there was again a conflict of evidence, her friends giving various accounts as to her having expressed her intention to live in Penrith and in Edinburgh. She was in a very delicate state of health, and the result of the evidence was to show that she had no fixed plans, but was constantly changing her mind.

The Lord Ordinary ( Kyllachy) on 30th April pronounced the following interlocutor:—“Finds that the deceased Miss Jessie Shepherd was at the time of her death in May 1896, and also at the date of her codicil of 24th June 1895, a domiciled Scotswoman: With this finding appoints the cause to be enrolled for further procedure, and grants leave to reclaim.”

Opinion.—“I have found this case to be attended with some difficulty, and on one point I may say that my opinion has wavered. But in result I have come to the conclusion that Miss Shepherd's domicile of origin was in Scotland, and that she had not at the time of her death acquired a domicile of choice in England.

I cannot say that I have much doubt as to Miss Shepherd's domicile of origin. She was born in Portobello, and resided there—except while abroad for her health—until shortly before her death. Her mother was a Scotch lady, and her father was an official in the Edinburgh Post Office. I apprehend, however, that her domicile of origin depends upon her father's domicile at the time of her birth, and although there is a good deal of evidence on that subject, it appears to me that, stated shortly, the matter stands thus:—The late Mr John Shepherd was by birth an Englishman, and inherited and possessed a small estate in Westmoreland. In 1844, when quite a young man, he entered the service of the Edinburgh Post Office, and took up his residence in Portobello, where he married and his children were born. He resided there until his death in 1895, paying only occasional visits to his English property, and he continued this residence in Portobello notwithstanding that in 1878 he retired from the Postal Service and was free to reside where he chose. These facts are, in my opinion, conclusive as to his having adopted Scotland as a domicile of choice. There is some evidence to the effect that he, latterly at least, had some idea of returning to Westmoreland. But there is about as much evidence the other way. And in any case it appears to me that having once settled in Scotland with the intention of living there indefinitely, he became thereby a domiciled Scotsman, and had done nothing at the date of his death to change the Scotch domicile so acquired.

The question, therefore, is, whether

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Miss Shepherd lost her Scotch domicile of origin and acquired an English domicile of choice before her death, which took place in May 1896. Now, she certainly did not do so during her father's life. She was a good deal abroad, but she was unmarried, and she remained a member of her father's family until his death, which, as I have said, occurred only a year before her own. The point for decision is therefore narrowed to this—whether in the year which elapsed between her father's death and her own, she is proved to have adopted England animo et facto as her permanent home.

It is here that I think, if anywhere, that the evidence presents some difficulty. It is unquestionable that, on her return from Teneriffe after her father's death, Miss Shepherd broke up the establishment at Portobello, sold the house and furniture, and took a three years' lease of a small house at Penrith, which she furnished, and of which she took possession in July 1895. It is also the fact that, apart from certain visits to Edinburgh, mainly on business, she continued to reside in Penrith down to the time of her death. Moreover, she had certain ties to that district, arising from her interest in her father's Westmoreland property, and from the residence in Penrith of her brother-in-law and nephews and nieces, who were her nearest relatives. In these circumstances it is forcibly argued that the prima facie inference from her action is and must be that she had settled in Penrith animo remanendi. And it must be acknowledged that if there were no evidence of the young lady's views and intentions beyond what may be gathered from her proceedings in the summer of 1895 it would be difficult to resist the suggested inference. But, on the other hand, it has to be kept in view that a domicile of origin is not easily lost. The onus is always on those who seek to displace it, and to satisfy that onus the change must be a change, as it is expressed, both animo et facto. It is not, therefore, conclusive that Miss Shepherd should have taken a three years' lease of the house in question, or even that she had settled in that house with the intention of remaining during the period of the lease. It may be that being entirely free, and being, as she was, of a somewhat unsettled disposition, she took up house in Penrith only as an experiment, and had not prior to her death got beyond the stage of being resolved to give the place a trial—looking about in the meantime in Edinburgh and elsewhere for a residence which might suit better her delicate health and social requirements. That is the point for decision, and on a review of the whole evidence it does appear to me that such is, on the whole, the preferable and just conclusion.

It is true, as I have observed, that the lease of Alma House was for three years. But there is evidence that Miss Shepherd would have preferred, if possible, to have had it from year to year, and there is certainly evidence that within a few months of taking possession she was discussing the prospect of buying or building a house in the Morning side district of Edinburgh. It is, moreover, not in dispute that in the spring of 1896 she spent seven weeks in Edinburgh, during which she was largely occupied in examining different sites for a proposed house in the south side of the city. In point of fact she employed an architect and had plans prepared, and some at least of her friends were and are satisfied that if she had not died, as she did somewhat suddenly soon after her return to Penrith, she would have shortly returned to Edinburgh and made it her home. I do not, of course, say that if it were once established that she had taken up house in Penrith, not tentatively, but with the resolve to settle there permanently, or at least indefinitely, the fluctuations of purpose to which I have referred would have been of much importance. But the question being quo animo is the Penrith establishment set up, it does seem to me legitimate—and indeed essential—to accept all light which can be derived from the acts of the deceased and the expression of her views and sentiments during the whole period down to her death. As I have said, this part of the case is not free from difficulty, but on the whole I have reached the result which I have expressed, and shall therefore, as. desired by the parties, pronounce a finding as to Miss Shepherd's domicile, which will be to the effect that her domicile of origin is Scotch, and that there is no sufficient evidence that she acquired an English domicile before her death.”

The defenders Richard Neville and Miss Jenkins reclaimed, and argued — 1. John Shepherd. The onus of showing that he had changed his domicile lay on the reclaimers— Steel v. Steel, July 13, 1888, 15 R. 896 at 908; Aikman v. Aikman, 1861, 3 Macq. 854; 1859, 21 D. 757. At any rate, Mr Shepherd had not acquired a Scotch domicile in 1863. The cases cited by the respondents on Anglo-Indian domicile were no longer good law, having been set aside by more recent decisions. Accordingly, the contention of the respondents that the acceptance of a Government appointment in Scotland ipso facto inferred a change of domicile could not be supported— ex parte Cunningham, 1884, L.R., 13 Q.B.D. 418 at 425; Udny v. Udny, June 3, 1869, 7 Macph. (H. of L.) 98; Steel v. Steel, supra, Munro v. Munro, August 10, 1840, 1 Robinson App. 492. The case of Forbes v. Forbes, February 9, 1854, 23 L.J., Oh. 724, was bad law from beginning to end, the judgment ignoring the fact that the domicile of origin reverted on the loss of an acquired domicile. In Clark v. Newmarsh, February 13, 1836, 14 S. 488, there were elements which rendered it unnecessary to found upon the nature of the employment. In Commissioners of Inland Revenue v. Gordon's Executors, February 4, 1850, 12 D. 657, the fact that there was no estate in Scotland belonging to the person whose domicile was in question weighed strongly with the Court. Accordingly, the fact that Mr Shepherd before his retirement was obliged by his employment to reside in Scotland, so far from inferring a change of

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domicile, supported the reclaimers' view as showing that his residence was not of choice but of necessity. As soon as he was free his visits to Murton became longer and more important, and it was clear that had it not been for the health of his daughters he would have gone to reside there permanently. But if such return had been prevented by the state of his own health it would not have affected his domicile, and the same argument would apply when it was the health of his family. Accordingly, while the period after 1878 might be used to a certain extent to interpret his intentions before 1863, it did not warrant the inference that he never intended to return. Only “relative and proper” weight was to be given to the actings of the later period to interpret the intentions of the former— In re Grove, 1887, L.R. 40 Ch. Div. 216. With regard to the argument founded by the respondents on the marriage-contract, it should be remembered that it was drawn up by a Scotch agent who would as a matter of course insert the clauses as to legitim, &c. The fact that the wife and children were excluded from rights which they might have, did not amount to an assertion that Mr Shepherd considered himself a Scotchman, and that his wife and children naturally had such rights— Keith's Trustees v. Keith, July 17, 1857, 19 D. 1040. The case of Doucet v. Geoghegan, 1878, L.R., 9 Ch. Div. 441, was one concerned with a will where the fact that the provisions would have no effect if the testator were French showed that he considered himself English. 2. Miss Shepherd. If the reclaimers were right in their contention that Mr Shepherd had not acquired a Scotch domicile in 1863, even if he acquired one after his retirement, then Miss Shepherd, having been born English, the task of showing that she had reverted to her original domicile was not a difficult one. The history of her actings after her father's death furnished ample evidence to prove this, and even if it was held that she had been born Scotch, her actings proved that she had deliberately made up her mind to reside permanently in England, and had acquired an English domicile. Her prolonged residence abroad, the sale of the house in Scotland, and leasing of a house in England, were all elements supporting this view.

Argued for respondents—1. Mr Shepherd was in 1863 a domiciled Scotchman. It was true that there was a certain onus to discharge in order to prove abandonment of domicile of origin, but such as it was they had fully discharged it. The dicta of the Lord President in Steel v. Steel were quite sound as applying to Rangoon, but did not apply to an Englishman becoming a Scotchman and vice versa. The dicta of Lord Cranworth on the doctrine “ exuere patriam” quoted there were discredited in Udny v. Udny, supra, at p. 96 and 100; Haldane v. Eckford, 1869, L.R. 8, Eq. 631 at 640; Daucet v. Geoghegan, supra, at p. 457; Brunel v. Brunel, 1871, L.R. 12, Eq. 298 at 301. This was not a case of changing nationality, and as was pointed out by Lord Adam in Vincent v. Earl of Buchan, March 19, 1889, 16 R. 637 at 645, the considerations applying to a foreigner were not the same. The facts in Mr Shepherd's life which bore out the respondent's contention were (1) his acceptance of an appointment in the post office, (2) his marriage with a Scotch lady, and (3) his actings after his retirement. The fact that he had accepted a Government appointment which he knew to be of a permanent character was in itself enough to effect a change of domicile. This was established by a series of cases commencing with those of Anglo-Indian domicile— Clarke v. Newmarsh, supra, Gordon's Executors, supra, Bruce v. Bruce, April 15, 1790, 3 Pat. 163; Wauchope v. Wauchope, June 23, 1877, 4 R. 945; Forbes v. Forbes, supra, Jarman on Wills, i. 15. Burge's Commentaries, i. 47. The dictum, of Lord Westbury in the case of Udny v. Udny, supra, at p. 99, applied to the case of a consulate, and was not intended to reverse the whole series of decisions. A consul was a quasi ambassador, and it was natural that he should not lose his domicile of origin by accepting that office any more than a soldier on military service. In any case, apart from the authority of the Anglo-Indian cases, the acceptance of an office such as this, taken along with other circumstances, was strong evidence in support of a change of domicile. 2. The marriage-contract in Scotch form was another important piece of evidence as corroborating the first— Forbes v. Forbes, supra, Lashley v. Hog, 1804, 4 Pat. 581; Doucet v. Geoghegan, supra. 3. It was quite legitimate to argue from Mr Shepherd's actings after his retirement that he had always intended to make Scotland his home— In re Grove, supra. The purchase of a house in Portobello was an element of importance. It could not be said that this was a case of double residence, for while Mr Shepherd was undoubtedly attached to Murton, he never really lived there after coming to Scotland, or made it his “home” in any sense of the word. But even if he had not changed his domicile in 1863, there could be no question that he did so on his retirement when he continued to live in Portobello, the best evidence of his animus being this factum, whatever expressions of intention he may have uttered— Haldane v. Eckford, 1869, L.R., 8 Eq. 631; Brunel v. Brunel, supra; In re Steer, 1858, 3 H. & N. 594. Accordingly Miss Shepherd had undoubtedly acquired a Scotch domicile, even if it were held that she was not born Scotch. Taking the former as the worst view for the respondents, the evidence as to her intentions was of such a conflicting nature as to show that she really had no fixed ideas upon the subject of her future home. There was not enough in her actings to imply an abandonment of domicile even if it were but an acquired one, and the argument applied a fortiori if it were held to be her domicile of origin.

At advising—