Scottish Court of Session Decisions

Thomas Jaffrey and another (Mrs Mackinnon's trustees), pursuers, brought an action against the Lord Advocate as representing the Commissioners of Inland Revenue, defender, and, for any interest he might have, against Robert Mackinnon, the husband of the pursuer, who died pendente processu, concluding, inter alia, for declarator (first) that Mrs Mackinnon died domiciled in Queensland; (second) that legacy duty and residue duty were not exigible in respect of the bequests of legacies and residue contained in her trust-disposition and settlement; and (third) that succession duty was exigible for the estate of Mrs Mackinnon only in respect of the heritable property situated in Scotland of which she died possessed.

The pursuers pleaded—“(1) The deceased Mrs Isabella Henderson Watson or Mackinnon having been domiciled in Queensland at the date of her death, her estate is not liable in payment of legacy or residue duty, and is liable to succession duty only in respect of her heritage situated in Scotland, and the pursuers are therefore entitled to decree in terms of the declaratory conclusions of the summons.”

The defender pleaded—“(5) The said Mrs Isabella Henderson Watson or Mackinnon having been domiciled in Scotland at the date of her death, this defender should be assoilzied from the conclusions of the summons.”

On 18th March 1919 the Lord Ordinary ( Ormidale) assoilzied the defender from the conclusions of the summons. To his interlocutor was appended the following opinion, from which the facts of the case appear.

“ Opinion.—In this case three questions were presented for determination. ( First) Whether at the date of Mrs Mackinnon's death on 9th September 1915 her husband Robert Mackinnon had acquired a domicile in Queensland? ( Second) In the event of its being held that he had, whether the domicile of Mrs Mackinnon was at the date of her death also in Queensland in respect of the rule that a wife's domicile follows that of her husband? and ( Third) If Mrs Mackinnon's domicile was at the date of her death in Queensland, whether succession duty is exigible from her estate only in respect of the heritable property situated in Scotland of which she died possessed?

First.—The domicile of Robert Mackinnon at the date when he left Aberdeen for Australia was in Scotland. He was born at Campbeltown in Argyll, and it is not suggested that he had at that date lost his domicile of origin.

After leaving Scotland Mackinnon proceeded to Australia, and in Australia he continued to live until his death on 7th January 1918, that is to say, for a period of between twenty-four and twenty-five years. Residence, whatever may be its duration,

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is not of itself sufficient to infer the acquisition of a domicile— Winans, 1904, A.C. 287. In re Patience, 29 Ch. Div. 976—but in every case it may be of importance—greater or less according to the circumstances of each case—as helping to ascertain the animus or intention of the individual whose domicile is in question.

Mackinnon's object in going to Australia was, it is said, if possible by the aid of change of scene and surroundings, to overcome the habit of drinking to excess which he had acquired after leaving the naval service, a habit which had made him a nuisance to his friends and a positive danger to his wife. There seems to me little doubt that it was the anxiety of his wife and friends to get rid of him, rather than any wish of his own, that led him to leave this country. Whether he had resolved at that time never to return to Scotland there is no evidence to show. It is to be regretted that a contract of separation entered into by him and his wife just before his departure has not been recovered.

He landed in Australia at Sydney in January 1894. How long he remained there is uncertain, but possibly until 1899. He then proceeded to Queensland which he never afterwards left. In 1902 he entered into a bigamous marriage, and thereafter for sixteen years until his death resided with his companion, by whom he had two children, in Brisbane or its vicinity. His drinking habits continued, and while he engaged in casual labour—chiefly gardening from time to time—his principal and latterly his only means of subsistence appears to have been a pension which he drew through the British Admiralty.

The evidence of what was Mackinnon's mind on the subject of domicile is meagre and scanty, but along with the fact of his long residence in Australia, it is in my judgment sufficient to infer a settled purpose to make Queensland his permanent home.

His companion Williamina Mackinnon—examined on commission—depones that she asked him in private talk between themselves would he like to take a trip back to Scotland, and he said ‘No,’ he would sooner stop in Queensland because it suited him better; that he said he did not intend to return to Scotland. ‘(Q) Can you say where the said Robert Mackinnon intended to make his permanent home?—(A) Yes. (Q) Where?—(A) In Brisbane.’ Asked by the Commissioner, ‘Did he have enough money to go to Scotland?’ She said ‘No. He said that if he did go back he would have to work his passage there on the boat, but had no intention to go back.’

Mr Fitzgerald, a Brisbane solicitor, who handed him the letter, says that in the conversation he had with him he appeared to be quite an intelligent person, a person who must have had a fairly good education. That is of importance, because Mr Fitzgerald also says that he read the letter over to him and explained the contents to him, and that he appreciated the contents. That was in answer to the question, ‘Did you explain to him that if he were domiciled in Scotland he would have certain rights in the estate of his deceased wife?’

It is to be noted that the letter also stated that the trustees of his wife were advised that he had lost his Scots domicile and become domiciled in Australia, by the law of which country he was entitled to no right or interest in his wife's estate.

Now in reply to a question by Mr Fitzgerald whether he understood the contents of the letter, he said that he understood from the letter that his position was that he was not entitled to anything from his wife's estate. In one view of that answer it was tantamount to an admission that he was domiciled in Australia. It was suggested to him that it might be advisable for him to get advice on the matter, and he said he did not intend to bother.

It is true that at the date of this interview, 16th March 1916, Mackinnon was very ill, and that he remained very ill until his death in January 1918, but still there was ample time for him—if he considered himself a domiciled Scotsman—to do something towards trying to get his right to a share of his wife's estate established.

It may be that the knowledge that he had contracted a bigamous marriage acted as a deterrent to his returning to Scotland, but his entering into that marriage was a deliberate act on Mackinnon's part, and indicates that he had by that time made up his mind to say good-bye to Scotland and settle in Queensland.

In my opinion the pursuers have proved that Mackinnon had at the date of his wife's death abandoned his Scottish and acquired a Queensland domicile.

Second.—Mackinnon having acquired a domicile in Queensland, was that of his wife also in Queensland? The defenders contend that it was in Scotland? They do not maintain that she had acquired a new domicile, but only that she retained the domicile she had at the time when her husband left her. This distinction it is said is of importance. It certainly is so in determining questions of jurisdiction in actions of divorce. If after a cause of action has arisen the husband leaves his wife and acquires a new domicile, she is nevertheless entitled to convene him to the courts of the country which had been the joint domicile. On the other hand she could not acquire for herself a new domicile and sue him in the courts of that domicile— Redding v. Bedding, 15 R. 1102; Le Sueur, L.R., 1 Prob. Div.

This, however, is not an action of divorce, and no question of jurisdiction is raised. The sole matter of inquiry is whether the domicile of Mrs Mackinnon—the domicile which falls to regulate the succession to her moveable estate—is in Scotland or Australia.

The general rule undoubtedly is that the domicile of a wife during coverture follows that of her husband—Stair, i, 4, 9; Fraser, H. & W. 867; Dicey, 132; Bar (Gillespie's Transl., 2nd ed.), 117. The rule was recognised in many of the cases cited to me. Most of these cases were consistorial actions in which the main topic was the question of

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jurisdiction, and they do not therefore directly apply. The rule is referred to in Jack v. Jack, 24 D. 467; Warrender, 2 Sh. and Cl. 1, 546; In re Daly's Settlement, 25 Beavan 456; and Low v. Low, 19 R. 115. In the latter case Lord Trayner states the rule to be undoubted that the wife cannot have or acquire a domicile different from her husband's.

Exceptions have, however, been indicated if not expressly affirmed by decisions. Divorce a vinculo terminates the rule, and Lord Cranworth in Dolphin v. Robbins is obviously of opinion that a decree for judi cial separation has the same effect. ‘The question,’ he says, ‘where a person is domiciled is a mere question of fact—where has he established his permanent home? In the case of a wife the policy of the law interferes and declares that her home is necessarily the home of her husband; at least it is so prima facie; but where by judicial sentence the husband has lost the right to compel the wife to live with him, and the wife can no longer insist on his receiving her to partake of his bed and board, the argument which goes to assert that she cannot set up a home of her own and so establish a domicile different from that of her husband is not to my mind altogether satisfactory. The power to do so interferes with no marital right during the marriage except that which he has lost by the divorce a mensa et thoro. She must establish a home for herself in point of fact, and the only question is, supposing that home to be one where the laws of succession to personal property are different from those prevailing at the home of her husband, which law in the case of her death is to prevail?’ He lays emphasis on the fact of a judicial decree having been obtained—‘It does not at all follow that it can be open to anyone after the death of the wife to say, not that she had judicially acquired the right to live separate from her husband, but that facts existed which would have enabled her to obtain a decree giving her that right or preventing the husband from insisting on her return.’

He further says—‘And before quitting the subject I should add that there may be exceptional cases to which even without judicial separation the general rule would not apply, as, for instance, where the husband has abjured the realm, has deserted his wife and established himself permanently in a foreign country, or has committed felony and been transported.’

The illustrations given are concerned with circumstances which, as I understand them, would not in themselves give the wife any right to obtain a judicial decree for separation, ‘desertion’ not then affording a ground for judicial proceedings at the instance of the wife any more than abjuration of the realm.

In a later case ( Le Sueur v. Le Sueur, supra) Sir Robert Phillimore expressed the opinion that in the case of desertion a decree of judicial separation was not a sine quo non. ‘The doctrine,’ he says, ‘that the domicile of the wife is necessarily that of the husband must surely admit of some exceptions, such as those referred to by Lord Cranworth. It is founded indeed upon the duty of the wife to live with her husband, but also on the presumption that he will be faithful to his married vow.’

His Lordship concludes—‘Upon the whole I am disposed to assume in favour of the petitioner the correctness of the opinion that desertion on the part of the husband may entitle the wife without a decree of judicial separation to choose a new domicile for herself, and in coming to that conclusion I am aware that I am going a step further than judicial decisions have yet gone.’

That opinion has never been challenged, and I am disposed to follow it. Except that in the present case the question of domicile is raised after the death of the wife, the circumstances here are no less clamant than in Le Sueur's case. Mrs Mackinnon on the facts disclosed might have obtained a judicial decree of separation, indeed of divorce a vinculo, and she had taken steps to obtain such a decree before her death, so that her mind with regard to terminating the marital rights of her husband is clearly ascertained. This appears to me a fact of vital importance, and to differentiate the case from that figured by Lord Cranworth in Dolphin v. Robbins, and to distinguish it also from the case of Mackenzie v. Mackenzie, 1911, 1 Ch. 578. As I have indicated already, Mackinnon did not at the date of his leaving Scotland desert his wife, but by the time he contracted his bigamous marriage I am satisfied that he had deserted her and he was also guilty of adultery. I am not satisfied that the Scots Court had jurisdiction to try the divorce action raised by Mrs Mackinnon, because no cause of action had arisen when her husband left her, and in my opinion he changed his Scots domicile in perfect good faith, but that does not appear to me to be of any materiality in the present case. In point of fact he had very clearly abandoned his wife and been unfaithful to his marriage vow, and had thus destroyed completely the basis on which the rule that the wife's domicile follows that of her husband is founded. In my judgment, therefore, Mrs Mackinnon's domicile at the date of her death was in Scotland.

Third.—As I have held that Mrs Mackinnon's domicile was in Scotland and not in Queensland, this question does not arise for decision, but I may say that in my opinion the defender's contention is not well founded. Under reference to the case of Wallace v. Attorney-General, L.R., 1 Ch. App. 1, and the commentary thereon in Hanson (6th ed.), pp. 607–8, succession duty in the case of the will of a testator who dies domiciled abroad falls to be imposed only on those who claim title by virtue of the law of this country. The will here was made not out of the United Kingdom but in Scotland, and in accordance with the law of Scotland. That being so it is validly executed, according to the law of Queensland. Mr Harney's evidence and opinion are conclusive on that point. No doubt he says that the Wills Act operates in Queensland, and that it is by operation of the provisions of that Act that Mrs Mackinnon's

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will is good according to the law of Queensland, but that again is because the Wills Act is part of the law of Queensland in virtue of the incorporation of the general law of England which took place in 1861, when Queensland was formed into a state.”

The pursuers reclaimed, and argued—Mrs Mackinnon's husband was at the date of her death domiciled in Queensland. On that part of the case the Lord Ordinary was right. The evidence showed that he had made his permanent home there. The only question arose from the fact that he had contracted a bigamous marriage there. The adoption of such a step was a strong indication of the intention to settle in Australia. The fact that he thereby rendered himself liable to be criminally prosecuted in Scotland at best merely operated as a consideration to deter him from returning to Scotland; it did not prevent him doing so, and in any event it had no effect on his freedom of choice of a home outside Scotland. A sentence of transportation probably only operated as a change of domicile when the question arose in the jurisdiction pronouncing the sentence—Dicey, Conflict of Laws, 2nd ed., p. 147. The liability to sentence if the person involved returned to the country of his domicile did not in itself prevent his acquiring a domicile elsewhere— In re Martin [1900] P 211, per Lord Lindley, M.R., 232, per Rigby, L. J., at p. 234, and Vaughan Williams, L. J., at p. 237. If Mackinnon was domiciled in Queensland at the date of his wife's death she also was domiciled there. Even on the assumption that a married woman could acquire a domicile independent of her husband's during marriage, there was no evidence that Mrs Mackinnon ever in fact acquired such a domicile. The action of divorce begun by her was not conclusive evidence. She might have dropped it, and it was not prompted by moral repugnance to her husband, but by a desire to exclude him from her succession. Mrs Mackinnon simply lived on in exactly the same way from the time when Mackinnon went to Australia. She did no overt act indicating that she was acquiring an independent domicile. Further, the only conditions alleged in the present case under which Mrs Mackinnon could acquire a domicile of her own were that she had been deserted by her husband, or that the husband had been guilty of adultery. As regards adultery, she first knew of it in 1910, and only thereafter on that ground, assuming it to have been good, could she have acquired a domicile for herself. As regards desertion, the effect of the evidence was that Mrs Mackinnon acquiesced in her separation from her husband. She made no attempt to get him to provide a home for her, and until she knew of the bigamous marriage she could not have placed him in desertion without indicating a desire to resume cohabitation. Consequently Mackinnon was not in desertion until his bigamous marriage at least. But a married woman could not acquire a domicile independent of her husband's unless the spouses were separated by judicial decree of separation or of divorce. On that point there was no decision, but there were dicta either way. The obiter dicta in Warrender v. Warrender, 1835, 2 Sh. & M'L. 154, of Lord Brougham at p. 195, and Lord Lyndhurst at p. 233, were to the effect that where the spouses had executed a voluntary deed of separation the wife obtained no power to acquire an independent domicile. In Dolphin v. Robbins, 1859, 3 Macq. 563, it was held that a deed of voluntary separation did not give the wife power to acquire an independent domicile. The dicta of Lord Cranworth were difficult to read as a consistent whole; he considered that the rule that a married woman was incapable apart from divorce of acquiring an independent domicile was not absolute (at p. 576), that where there had been a judicial decree she could acquire an independent domicile, but only in that case (at p. 578), and that the mere fact that the husband had committed an offence which would have entitled the wife to resist an action of adherence, provided that the wife had not actually judicially obtained the right to live separate, was not enough (p. 578). Even that opinion, which was not adverse to the pursuers, was not concurred in by Lord Kingsdown at p. 581, nor by Lord Campbell, L.C. But Lord Cranworth at p. 579 further considered that where there was no judicial decree of separation a wife might acquire an independent domicile if her husband had abjured the realm, deserted her, and established himself permanently in a foreign country, or had committed a crime and been transported. The Lord Ordinary had misunderstood that passage, for as the mere acquisition by the husband of a permanent home in a foreign country admittedly did not give the wife power to acquire an independent domicile, Lord Cranworth contemplated only two exceptional cases—(1) where these requisites concurred, ( a) abjuration of the realm, ( b) desertion of the wife, and ( c) acquisition of a permanent home in a foreign country, and (2) where those requisites concurred, ( a) conviction for felony, and ( b) sentence of transportation. So read that dictum had no application, for it referred to a state of affairs long obsolete. On the nature of abjuration of the realm Stroud's Judicial Dictionary, vol. i, sub voce “Abjuration,” and Newson v. Bowyer, 1729, 3 P. Wms. 38, were referred to. Further, in any event in both cases figured by Lord Cranworth a judicial determination that the wife was not bound to adhere was implied. A sentence of banishment appeared to have the same effect—Fraser, H. & W., p. 868. Le Sueur v. Le Sueur, 1877, 1 P.D. 139, was not in point, for it merely raised the question of jurisdiction in an action of divorce, and Sir Robert Phillimore's opinion at p. 142 was obiter, and went further than Lord Cranworth in Dolphin's case. In in re Mackenzie, [1911] 1 Ch 578, Swinfen Eady, J., at pp. 592–4, merely followed Lord Cranworth. It was doubtful if a judicial separation gave power to acquire an independent domicile—Dicey, Conflict of Laws (2nd ed.), p. 132; Westlake, Private International Law (5th ed.), p. 352; Fraser, H. & W., ii, 867, 907, and 1255. Gillespie, Bar (2nd ed.), pp. 117–118, appeared to refer to the German practice.

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There was no analogy between the present case and cases such as Jack v. Jack 1862, 24 D. 467; Ogden v. Ogden, [1908] P 46; Ringer v. Churchill, 1840, 2 D. 307; and Redding v. Redding, 1888, 15 R. 1102, 25 S.L.R. 459, where the husband after having committed a matrimonial offence changed his domicile, and the wife was allowed to sue him in the courts of the country in which he was domiciled at the date of the offence. The question there was one of forum. In America the attempt to admit exceptions to the rule that at least a judicial separation was required to give the wife the right to acquire an independent domicile had led to a mass of conflicting decisions. Upon principle that attempt could not be supported, for it involved taking the wife out of the class who were by law alieni juris, and for one purpose placing her in the class of those sui juris. Thus her husband would remain liable for her debts, whilst she could alter her domicile to exclude him from right of succession in her estate. If Mrs Mackinnon was domiciled in Queensland succession duty was exigible only in respect of her heritable property in Scotland. On that the Lord Ordinary was right, but in any event there was no record upon which the defender's argument could be founded. The averment by Hanson, Death Duties (6th ed.), pp. 607–8, was not justified by the decision referred to, viz., Wallace v. Attorney-General, 1865, L.R., 1 Ch. App. 1. The legatees under Mrs Mackinnon's will became entitled to their legacies in virtue of the law of Queensland, not of Scotland. The Wills Act 1861 (24 and 25 Vict. cap. 121), Wharton, Conflict of Laws (3rd ed.), p. 105, and Parish Council of Rutherglen v. Parish Council of Glasgow, 1902, 4 F. (H.L.) 19, 39 S.L.R. 621, were referred to.

Argued for the defender (respondent)—Mackinnon never acquired domicile in Queensland. The onus probandi upon that topic was on the pursuers, and the evidence was indecisive. Mackinnon did not leave Scotland of his own accord, but was shipped off to get rid of his evil habits. He never had a settled occupation in Queensland, and the bigamous marriage was a most flimsy tie, but it at least prevented him from returning to Scotland. Martin's case was not in point, and was very special in its circumstances. Mere residence in Queensland was all that was proved. In such circumstances Winans v. Attorney-General, [1904] AC 287, per Lord Halsbury, L.C., at p. 289, applied. But even if Mackinnon had acquired a domicile in Queensland, Mrs Mackinnon had before her death acquired an independent domicile in Scotland. She in point of fact had acquired a permanent home there. The only question was as to her legal power to acquire a domicile of her own. She was deserted by Mackinnon long before her death, and most certainly from the date of the bigamous marriage. A wife deserted by her husband could obtain a domicile independent of his— Dolphin v. Robbins, per Lord Cranworth; Le Sueur's case; Ringer v. Churchill ( cit.), per Lord Medwyn at p. 323. There were also American cases in the defender's favour. The wife's inability to acquire a domicile of her own depended upon her obligation to adhere to her husband. If she was under no such obligation there was no reason to deny her the right to acquire a domicile of her own, i.e., to chose her own permanent home. Desertion by the husband made the wife capax as regards suing and contracting debts. It was a very small step to hold that it also rendered her able to choose her domicile. If not, the husband though in breach of his marital obligations might vary his wife's domicile to his own advantage. The fact that the wife could sue in the courts of the husband's domicile at the date when he committed a matrimonial offence though he thereafter changed his domicile was also in favour of the defender's contention. In any event succession duty must be paid by the legatees, as even if Mrs Mackinnon was domiciled in Australia they took by virtue of the law of this country—Hanson, Death Duties; Wallace's case.

At advising—