resided in Philadelphia, and, with a view of settling an annuity on his wife, he employed him, the said Andrew Whyte, to purchase some land in the neighbourhood of Crail; and that the said Andrew Whyte made an offer for same accordingly, but did not obtain the purchase. And that by the deposition of Robert Murray, the said Robert Murray made oath, that he knew the said testator, Robert Chiene, for a period of thirty years before his death, and from the time he was a boy at school; that he had heard the said Robert Chiene was born at Crail, and that at the time the said Robert Murray knew him as at school, he resided with his mother, Anne Brown, at the town of Crail; that the said deponent, Robert Murray, went abroad himself early in life, and did not return to Crail till the year 1787, so that he knew not the early part of the said Robert Chiene's history intervening betwixt his leaving the school at Crail and his return to that place after mentioned; that he knew the said Robert Chiene returned to Crail in the year 1802, where he resided till his death, which happened in the month of November in the said year; that he understood, although he had no particular occasion to know the same, that some years previous to the said Robert Chiene's return to Crail, as before mentioned, a dwelling-house, with gardens, with some other property, was purchased on account of him and his brother jointly in that burgh; that on the said Robert Chiene's return he at first rented a house at Crail, in which he resided for some months, and afterwards removed to the one he had purchased, after it had undergone some repairs, and resided therein till his death; that he had heard the said Robert Chiene married a sister of the wife of Patrick Brown, deceased, sometime a captain of a merchant ship, and a native of Crail, a brother of Mr. William Brown, the then postmaster of Crail; and that he had heard the said Robert Chiene's wife had resided, and still resided, in America. And the said Master further

certified, that three several letters, appearing to have been written by the testator to the plaintiff, bearing date respectively the 1st day of November, 1801; the 21st day of March, 1802; and the 25th of August, 1802, had been exhibited to him, and the handwriting of the said testator proved by an affidavit of William Penrose, made in the said cause, on the 12th day of December, 1807, the contents of which letters, inasmuch as they appeared to him to show the said testator's intentions as to residence, he had set forth in the third schedule annexed to his report. And the said Master was of opinion, that the said testator was domiciled in Scotland at the time of his decease."

The decree of the Master of the Rolls was, accordingly, that the testator was domiciled in Scotland at the time of his decease, and that his property should be distributed according to the law of Scotland. It does not appear that the question of bastardy entered into consideration in the Chancery proceedings; nor does it appear, whether the testator had received letters of legitimation or not.

In the case of Munroe v. Douglas a similar question occurred in the Court of Chancery, in regard to the domicil of Dr. Munroe (t), in June and July 1820. Dr. Munroe was born in Scotland, and educated there to the profession of a surgeon. At the age of nineteen he went out to Calcutta, and in 1771 he was appointed assistant surgeon in the East India Company's service. In 1811 he obtained the rank of surgeon in his Majesty's service; but this was only local rank.

In 1797 he was married in India to a lady who survived him. On 15th March 1813 he made his will in India, and added a codicil thereto on the 22d September 1814. In January 1815 he left India, and arrived in England

(t) 5 Maddock, 379.

on the 15th of June following. He took a house in England, but, owing to ill-health, he became undetermined whether he should continue to reside in England, or spend, his days in Scotland. He continued in England till July 1816, when he went on a visit to Scotland, and died at Sir Robert Lawrie's seat there, without leaving issue, on the 8th of August 1816.

By his will the testator gave property to his wife to the amount of 1000l. a year and upwards. He gave legacies to his nephews and nieces; but he had not disposed of the remainder of his property, amounting nearly to 60,000l.

The widow filed a bill in Chancery against the executors of the will, contending that the testator had his domicil in Scotland at the time of his death, and that she was entitled, by the law of that country, to one half of the property. In his will the testator says, in regard to his undisposed property, "I will not dispose of the remainder of

my property till I come home, when it is my intention to cultivate a more intimate acquaintance with the junior members of my family, in order that I may divide my property equally among them." Many letters were given in evidence, written by the testator while in India, to show that his determination was to spend his latter days in Scotland. Letters and conversations were also given in evidence to prove that, after the testator's return to England, his health was such that he became undetermined whether he should spend his days in England or in Scotland. Clear evidence was adduced to show, that when he went to Scotland in 1816 it was only on a visit, and without any intention of permanently residing there. The evidence was very voluminous.

In the pleadings, the decisions pronounced in the House of Lords, and in the Courts of England and Scotland, are specially referred to, commencing with the case of

Bruce v. Bruce.

Various references were also made to the Corpus Juris (u), and to the writings of the foreign jurists. (x)

After the pleadings were finished the Vice-Chancellor (Sir John Leach) gave the following judgment on the

cause:

"It is settled by the case of Major Bruce, that a residence in India, for the purpose of following a profession there, in the service of the East India Company, creates a new domicil. It is not to be disputed, therefore, that Dr. Munroe acquired a domicil in India.

"It is said, that having afterwards quitted India, in the intention never to return thither, he abandoned his acquired domicil, and that the forum originis revived. As to this point, I can find no difference in principle between the original domicil and an acquired domicil; and such is clearly the understanding of Pothier in one of the which has been referred to.

passages

"A domicil cannot be lost by mere abandonment. It is not to be defeated animo merely, but animo et facto (y) and necessarily remains until a subsequent domicil be acquired, unless the party die in itinere toward an intended domicil. It has been stated, that, in point of fact, the testator went to Scotland in the intention to fix his permanent residence there; but this statement is not supported by the evidence.

"It has also been stated, that the testator, knowing he was in a dying state, went to Scotland, in order to lay his bones with his ancestors; but this, too, is clearly disproved.

(u) The following texts in the Civil Law were quoted:-Cod. lib. 10. tit. 38. s. 4.; tit. 39. s. 1. 3. Dig. lib. 50. tit. 16. s.203. (x) The following foreign jurists were referred to: Voet. ad pandectas, lib. 5. tit. 1. s. 92. 96, 97. 99. Pothier, Coutumes d'Orleans, Introd. c. 1. s. 1. No. 7. 9. Denisart, tit. Domicile. Cochin, tom. v. p. 5. (y) See the preceding case of Colville v. Lauder, where a contrary rule appears to have been laid down in Scotland. Supra, 166.

It may be represented as the certain fact here, that when this gentleman left England, on his visit to Scotland, he had formed no settled purpose of permanent residence there or elsewhere; that he meant to remain a few months only in Scotland, and to winter in the south of France; and, with this fluctuation of mind on the subject of his future domicil, he was surprised by death, at the house of a relation in Scotland. I am of opinion, therefore, that Dr. Munroe acquired no new domicil after he quitted India, and that his Indian domicil subsisted at his death.

"A domicil in India is, in legal effect, a domicil in the province of Canterbury; and the law of England, and not the law of Scotland, is, therefore, to be applied to his personal property."

In the case of Anstruther v. Chalmer, in the Court of Chancery, in February 1825 and February 1826, a question occurred in regard to the construction of a testamentary instrument executed by Miss Catherine Anstruther, which was prepared in Scotland, but was construed by the law of her English domicil.

Miss Anstruther was a native of Scotland. In 1821, she came to reside in England, and was domiciled in London up to the time of her death. She, however, from time to time, occasionally visited Scotland; on one of these visits, in 1814, she employed a writer to the signet to prepare a testamentary instrument in regard to the disposition of her property. This was dated the 16th of December 1814, and was entirely in the Scotch form. (2) It commenced thus: "I Miss Catherine Anstruther, daughter of Sir Robert Anstruther of Balcaskie, Baronet, for the love and affection I have and bear to Sir Alexander Anstruther of Caplie,

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(z) 2 Simons, 1. This was in the nature of what is termed a settlement in Scotland. (See ante, p. 98.).