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After ascertaining the original shares of the respective parties in the intestate's personal estate, the Master proceeded to certify, that, in consequence of the deaths of John Lockman Potinger and Henry James Potinger (two of the infant children of the second marriage of Thomas Potinger), their shares in the intestate's personal estate were by the law of Guernsey divisible in equal shares between Richard Potinger and William Potinger, the two sons of the first marriage.
When the cause came on to be heard for further directions, it was contended, on the part of the widow and daughters, that the shares of the deceased children were distributable by the law of England. It being admitted that the personal property was regulated by the law of the domicil of the proprietor, the question was, Whether the deceased children retained their paternal domicil in Guernsey, or acquired a new derivative domicil from their mother in England ?
It was referred back to the Master to report on the domicil of the children at the time of their death ; by his report, dated 8th March 1817, the Master gave his opinion, that the children, at the time of their deaths, were domiciled in England. The cause coming on to be again heard, this question was argued before the Master of the Rolls.
It was admitted that no authority existed upon in the English law. A dictum of Lord Alvanley in Somerville v. Somerville (h), that a minor cannot during his state of pupillage acquire a domicil of his own, was stated obviously to refer to that domicil which a minor could acquire by his own acts, or, according to the expression cited from Bynkershoek, “ proprio marte.” But it was contended, that the domicil of the widow, combining (during her widowhood) the characters of guardian and head of the family, was communicated to her minor children.
(9) Şupra, p. 174.
In the absence of English authorities, the following foreign jurists were referred to, to shew that it was the right of the surviving parent, whether father or mother, to transfer the domicil of the minor children, if this were done fairly, and without any fraudulent intention : Voet. Comm. ad Pand. lib. 5. t. 1. s. 100.; Rodenburg. de Jure Conj. tit. 2. cap. 1. s. 4. cap. 2. ss. 2, 3.; Bynkershoek, Quest. Jur. Priv. lib. 1. c.16.; Denisart, voce Domicile, ss. 9. 14. 37.; Pothier, Coutumes d'Orleans; Introd. Générale, chap. 1. s. l. no. 16. 20.; Mornac, Obs. in Cod. lib. 3. tit. 20. p. 129.; Decisiones Celeberrimi Sequanorum Senatus Dolani, authore Joanne Grivello, Dec. 11. pp. 21. 24.; Code Civ. liv. 1. tit. 3. art. 108.
Cases of settlement under the Poor Laws were also referred to.
Where the mother removes with her infant children, and acquires a new settlement, that settlement is communicated to them, and supersedes their original paternal settlement: Inhabitants of Woodend v. Inhabitants of Paulspury (Raym. 1473. Stra. 746. S. C.); Rex v. Inhabitants of Barton Turfe (Burr. Sett. Ca. 49.); Rex v. Inhabitants of Oulton (Burr. Sett. Ca. 64.); Wooddeson's Lectures, 278, 279.; 1 Nolan's Poor Laws, 236, et seq. to 276.
After the conclusion of the argument, the Master of the Rolls (Sir William Grant) said:
“ On the subject of domicil there is so little to be found in our own law, that we are obliged to resort to the writings of foreign jurists for the decision of most of the questions that arise concerning it. The dictum of Lord Alvanley in Somerville v. Somerville (i) has no relation to the point
(i) 5 Ves. 787.
now in dispute. He is speaking of the power of a minor to acquire a domicil by his own acts.
Here the question is, Whether, after the death of the father, children remaining under the care of the mother follow the domicil which she may acquire, or retain that which their father had at his death, until they are capable of gaining one by acts of their own ? The weight of authority is certainly in favour of the former proposition; it has the sanction both of Voet and Bynkershoek; the former, however, qualifying it by a condition, that the domicil shall not have been changed, for the fraudulent purpose of obtaining an advantage by altering the rule of succession. Pothier, whose authority is equal to that of either, maintains the proposition as thus qualified. There is an introductory chapter to his treatise on the Custom of Orleans, in which he considers several points that are common to all the customs of France, and, among others, the law of domicil. He holds, in opposition to the opinion of some jurists, that a tutor cannot change the domicil of his pupil; but he considers it as clear that the domicil of the surviving mother is also the domicil of the children, provided it be not with a fraudulent view to their succession, that she shifts the place of her abode : and he says, that such fraud would be presumed, if no reasonable motive could be assigned for the change.
66 There never was a case in which there could be less suspicion of fraud than the present. The father and mother were both natives of England ; they had no long residence in Guernsey; and, after the father's death, there was an end of the only tie which connected the family with that island. That the mother should return to this country, and bring her children with her, was so much a matter of course, that the fact of her doing so can excite no suspicion of an improper motive; and I think, therefore, the Master has rightly found the deceased children to have been domiciled in England. It is, consequently, by the law of this country that the succession to their personal property must be regulated.” (K)
(k) Hitherto this is understood to be the only reported case upon this branch of the law, relative to a change of domicil during infancy or minority. In 1827, a case occurred in the Court of Session in Scotland, in regard to the domicil of Robert Alexander Paterson Wallace, connected with this point. He was born in Scotland : his father, Captain Wallace, was by birth a Scotchman, and an officer in the army, who had married Miss Oliver, an English lady, in England. The father named guardians to his child, one of whom (the maternal grandfather, Mr. Oliver) resided in England; and another (Mr. Hathorn) resided in Scotland; but the father dying when the infant was of tender years, he was carried by his mother into England. She also dying when the child was in infancy, he continued in England under the charge of his maternal grandfather, who was one of his guardians, and went to English schools, and an English university. The bulk of the property consisted in stock of the Bank of Scotland. He occasionally visited that country, as well before as after he came of age. He purchased a small landed estate in Scotland after he attained majority. He died at Hastings, in England, on the 29th of May, 1824, at the age of 22 years and 7 months, a bachelor and intestate.
His personal property was claimed in the Court of Session in Scotland by his maternal grandfather, as his next of kin, according to the law of England; and by his uncle and aunt by the father's side as his next of kin, according to the law of Scotland. The law as to change of domicil during minority was much discussed in that case. The Lord Ordinary (Cringletie) held, that after the age of puberty the minor had a right to choose his own domicil; that tutor datur persone, curator rei; and he was inclined to the English domicil.
He gave out the following note on the cause, when he pronounced an interlocutor thereon: -“ 3d December 1827. The Lord Ordinary regrets that the parties have thought it necessary to detail the circumstances of Capt. Wallace's marriage with Miss Oliver in England, and the terms of his contract of marriage with that lady; as, to the Lord Ordinary, they appear not to have the least bearing on the cause. A man,' by marrying in England an English woman, does not thereby become domiciled there; nor is it necessary that he should reside a day there for that purpose; far less does he make his children domiciled there by the mere act of marrying in England. The lady must reside in a certain parish for a specified time, to enable her to be married in the church of it, and an oath must be made that such has been her residence and domicil; otherwise she requires a special licence to be married. Of this the Lord Ordinary can inform the parties, for he
Cases in which the Succession to real or heritable, and also
as to personal Estate, was involved in the same Decision.
The first of these mixed cases, in point of date, which
knows it personally; he married a lady born under English law, and who had resided all her life in and near London: he had to make oath that she had lived in the parish of Acton for a certain time, and he entered into a contract of marriage in the English form; but that had no more effect in fixing his domicil than the winds of heaven. Capt. Wallace, having been a Scotchman in the army, did not acquire any domicil by marrying there, but returned to Edinburgh, where he sold out of the army, lived here for some time, and died here.
There can therefore be no doubt that he died here, domiciled as a Scotchman.
" As to his son Robert Alexander Paterson Wallace, it is admitted that he was born in Edinburgh, and went to England with his mother. Even had there been no contract made before he was permitted to accompany her, the Lord Ordinary could have no doubt that, had he died in pupilarity, his legal domicil of Scotland could not have been changed by his residence in England; a pupil has no persona standi, has no will in law, and he cannot act for himself - could not fix his domicil cannot make a will. But the matter is quite changed when he passes the years of pupilarity. As a domiciled Scotchman he is entitled to act for himself, with the consent of his curators; he is entitled to live where he pleases; for curators have no controul over his person.
· Hence,' says Erskine (b. i. tit. 7. s. 14.), ' also, though the natural person of a pupil is under the power either of his tutor or next cognate, yet a curator cannot claim the custody of a minor's person, who hath attained the age of puberty, or prescribe to him where he must reside. A minor can make a will disposing of his personal succession, and of course can do so by change of domicil. The defenders seem totally to have lost sight of this principle. They state their case as if Mr. Hathorn could have prevented Robert Alexander Wallace from living in England; as if he placed him there, and was at the expense of his education there; when it is quite plain, that it was Mr. Hathorn's indispensable duty to advance the minor's own funds to him, for a suitable and reasonable maintenance and education. Still, residence merely for education may be questionable how far it constitutes a domicil to govern succession. But when education is over, when a man attains majority, and still resides in England, making only short visits to Scotland; having no house of his own in which he lives in Scotland, and dies in England in a house of his own;- the Lord Ordinary confesses that he thinks that there is