[1956] 1 IR 344
In re Sillar. Hurley v. Wimbush
In the Matter of the Trusts of the Will of GEORGE C. SILLAR, Deceased.
HENRY DEREK HURLEYand Another, Plaintiffs
v.
ANTHONY PATRICK WIMBUSH and WINIFRED BAVINGTON, Defendants.
[1954. No. 1496. 54.]
11,12, 17 May 1955 24 Oct. 1955
Domicil - Domicil of choice - Sufficiency of evidence to establish
change of domicil - Will - Intention of testator - Whether will to be
construed according to Irish or English law - Child Whether child
adopted in accordance with English law takes under gift to "child or
children" of deceased nephews or nieces.
G. C. S. was born in Shanghai in the year 1856 of English parents. He
went to England in 1860 where he was educated and continued to reside
until 1905, when he came to Ireland to assist in the management of a
business during the last illness of his brother-in-law. After the
death of his brother-in-law in the year 1905 he continued to manage
the business and to reside in Ireland. The business was sold in 1941,
and thereafter the deceased continued to reside in Ireland until his
death in 1953. He resided in a rented house at Dalkey, Co. Dublin. He
was a member of the Dublin Chamber of Commerce and of a social club in
Dun Laoghaire. He was also a member of the Institute of Electrical
Engineers in London, King's College School Club, and a golf club in
Surrey. In the year 1942 G. C. S. declared himself to be "a domiciled
Englishman" and further declared that he had never abandoned his
English domicil, it being his intention to return to England when
cir***stances permitted. In his will dated the 14th March, 1949, G. C.
S. described himself as a British subject, domiciled in England and
resident in Ireland. He took out an Irish pass****t in 1931 and renewed
it in 1941. He had a British pass****t which was valid from 1946 to
1951. By his will he left his residuary estate to certain named
nephews and nieces in equal shares, and provided that the share of any
such nephew or niece who pre-deceased him should go to the child or
children of such nephew or niece living at the death of the testator.
One of the nephews died in 1953 without issue, but in the year 1946
had adopted a child in accordance with English law.
Held by Budd J. 1, G.C.S. was domiciled in Ireland at the date of the
making of his will and at the date of his death.
2, The testator not having indicated an intention that his will should
be construed according to English law it should be construed in
accordance with Irish law.
3, Applying the general rule that the words, "child or children,"
appliesprima facie to a legitimate child or children the words, "child
or children,"as used in the will did not apply to an adopted child.
Summary Summons.
This was a summons brought for the purpose of determining whether
George Cameron Sillar, deceased, was at the date of the execution of
his will, the 14th March, 1949, and at the date of his death, the 2nd
March, 1953, domiciled in Ireland or in England; whether his will
should be construed in accordance with Irish law or English law; and
whether a child adopted by a nephew who had pre-deceased the testator
was entitled to the share of her deceased foster-father in the estate
of George C. Sillar under the terms of the will of George C. Sillar.
The facts have been summarised in the headnote and appear fully in the
judgment of Budd J., post.
The deceased [*345] by his said will, after stating that he was "at
present residing at St. Fintan's, Sorrento Road, Dalkey" and that he
was "a British subject and domiciled in England,"and after making
certain specific pecuniary bequests, directed that his executors
should allow his servants to select "such of my household goods
furniture and effects (but excluding jewelry and silver) to the value
of one hundred pounds as they may wish to have" and bequeathed the
residue of his property to certain named nephews and nieces in equal
shares "provided always that if any of my said nephews and nieces die
in my lifetime leaving a child or children living at my death then and
in every such case the last-mentioned child or children shall take
(and if more than one equally between them) the share which his, her
or their parents would have taken in my residuary estate if such
parent had survived me." The executors of the said will were all
members of a firm of solicitors practising in Dublin. In codicils to
the said will dated respectively the 4th January, 1950, and the 22nd
August, 1952, the testator repeated the words, "at present residing at
St. Fintan's, Sorrento Road," and by the latter codicil he substituted
as an executor another solicitor, practising in Dublin, in place of
one of the persons originally appointed as an executor of his will who
had died during the lifetime of the testator.
H. Vaughan Wilson, Senior Counsel (with him H. R. McWilliam ) for the
plaintiffs, the executors of the said will.
F. C. Matheson, Senior Counsel (with him W. I. Hamill )for the
defendant, Anthony P. Wimbush:=97
Three questions require to be considered in the first instance, that
is to say, 1, what was the testator's domicil (a) at the date when he
made his will, and (b) at the date of his death? 2, Whatever the
answer to that question, did the testator indicate that he wished his
will to be construed in accordance with English law? 3, Is the
word,"child," when used in the will of the deceased in relation to the
children of pre-deceased nephews and nieces, to be construed as
embracing adopted children of such persons?
It is submitted that on the facts of the case and applying the well
established principles of law applicable to the acquisition of a
domicil of choice, it would be incorrect to say that the deceased
acquired an Irish domicil at any time. The onus of proof is on the
person who is alleging a change of domicil. In the present case the
residence of the deceased in Ireland, though lengthy, was never of a
permanent character, and the deceased clearly defined the [*346]
nature of his residence in his statement to the Revenue authorities in
1942. There is no evidence of any change of attitude or intention
after that date. On the contrary, the words used in his will in
relation to his domicil confirm the position up to that date, and
thereafter there is no evidence of any change of this position. Change
of domicil is a matter of intention coupled with a change of residence
in furtherance of that intention. Two elements are required,"animus"
and "factum." There may be some evidence in sup****t of "factum" in
this case, but, on the other hand, there is no evidence that the
deceased had any desire or intention to become domiciled in Ireland.
The evidence shows that such was never his intention. The declarations
of the deceased, the insecurity of his tenure of the house in which he
lived, and other facts, coupled with the facts of his age, condition
of health, the peculiar cir***stances which arose by reason of the
commencement of the second world war and the bombing and devastation
of London and other English cities, all go to show that his continued
residence in Ireland was not in reality voluntary and in accordance
with his wishes. In 1941 an Irish pass****t was issued to him by the
Governor-General in the name of the King of Great Britain, and in the
cir***stances outlined the do***ent looses its value as a proof of
change of domicil by the deceased. [They referred to Udney v.Udney
(1); Bell v. Kennedy (2); Winans v. Attorney-General (3); Ramsay v.
Liverpool Royal Infirmary (4); In re Joyce; Corbet v. Fagan (5).] The
use of the words,"at present residing at St. Fintan's, Sorrento Road,
Dalkey,"in the introductory part of his will clearly indicates the
intention and frame of mind of the testator as to his residence in
Ireland. The weight of the evidence is in favour of a retention of his
British domicil.
It is submitted that even if the deceased were domiciled in Ireland at
the relevant dates he has clearly indicated his intention that his
will should be construed in accordance with English law. Whatever his
domicil was in law at the relevant dates he clearly thought that he
was still domiciled in England, and if he considered himself as
domiciled in England he must be taken to have made his will with
reference to English law. [They cited Dicey's Conflict of Laws (6th
ed.) p. 831, rule 133, and In re Price. Tomlin v. Latter (6)]. That
being the case, the words,"child or children," when used in relation
to the gift over
(1) L. R. 1 H. L. (Sc.) 441. at pp. 448 and 458
(2) L. R. 1 H. L. (Sc.) 307
(3) [1904] A. C. 287.
(4) [1930] A. C. 588.
(5) [1946] I. R. 277.
(6) [1900] 1 Ch. 442.
[*347] embrace an adopted child. In addition, on the facts it is clear
that the deceased intended the adopted child to take. On the evidence
the deceased knew that his nephew, Anthony Wimbush, had no issue of
his marriages. Anthony Wimbush married for the second time in 1933,
the child was adopted in 1946, and the deceased made his will in 1949.
It would be reasonable to infer that the deceased was fully aware of
the position. [They also cited Hill v. Crook (1); In re Fletcher,
Deceased, Barclay's Bank Ltd. v. Ewing (2); In re Gilpin, Hutchinson
v. Gilpin (3).]
A. D. Pringle, Senior Counsel (with him M. H. G. Ellis, Senior
Counsel ) for the defendant. Winifred Bavington:=97
It is submitted that on the facts it is clear that the deceased had
acquired an Irish domicil at the relevant dates. They referred to In
re Joyce; Corbet v. Fagan (4); Ramsay or Bowie v. Liverpool Royal
Infirmary (5); In re Annesley, Davidson v. Annesley (6). The
statements as to domicil made both at the date of the will and,
earlier, after his wife's death, were it is submitted declaration of
nationality rather than of domicil. That he was confusing the true
meaning of domicil with nationality becomes clear when all the facts
are considered and when it is borne in mind that he appointed Irish
solicitors as his executors, and on reading the gifts to his servants
as set out in his will: In re Cunnington, Healing v. Webb (7); In re
Fergusson's Will (8). There is no evidence from which the Court could
properly infer an intention or desire that this will should be
construed in accordance with English law. A gift to children is
ordinarily construed as a gift to legitimate issue unless the will
clearly indicates that some other class is to be included: Hill v.
Crook (1); there is nothing to indicate any such intention in this
case. In fact, the evidence indicates that it is probable that the
testator did not know of the adoption of this child. There is
certainly no proof that he ever knew of its adoption; accordingly
there is no evidence to sup****t the claim that he intended the words
used by him to be construed in anything other than their usual sense.
F. C. Matheson, Senior Counsell , in reply.
Cur. adv. vult.
Budd J. :=97
24 Oct.
By his will dated the 14th March, 1949, the late George
(1) L. R. 6 H. L. 265.
(2) [1949] 1 Ch. 473.
(3) [1954] 1 Ch. 1.
(4) [1946] I. R. 277.
(5) [1930] A. C. 588.
(6) [1926] 1 Ch. 692.
(7) [1924] 1 Ch. 68
(8) [1902] 1 Ch. 483.
[*348] Cameron Sillar after making several other bequests left his
residuary estate to his nephews and nieces the surviving children of
his sister, Helen Margaret Wimbush, naming them individually, in equal
shares. He also provided that if any of his said nephews and nieces
should die in his lifetime leaving a child or children living at the
death of the testator such child or children should take the share his
or her parent would have taken in the residuary estate, if such parent
had survived him. He made two codicils to his will, dated respectively
the 4th January, 1950, and 22nd August, 1952, whereby he made certain
variations to his will, which are not relevant to the matters I have
to consider, but otherwise confirmed the provisions of his will. He
died on the 2nd March, 1953, and his will and codicils were duly
admitted to probate,
One of the testator's nephews, Rupert Montgomery Wimbush, predeceased
the testator on the 31st January, 1953. He died without issue but he
and his second wife, Catherine Ena Wimbush, had on the 11th day of
November, 1946, adopted the defendant, Anthony Patrick Wimbush, in
accordance with the provisions of the English Adoption of Children
Act, 1926.
The object of these proceedings is to have it determined whether or
not Anthony Patrick Wimbush is entitled to the share of the testator's
residuary estate bequeathed to Rupert Montgomery Wimbush and, if not,
does the said share in the testator's residuary estate devolve as upon
the intestacy of the testator. A number of subsidiary questions are
involved but counsel suggested that it would be convenient and save
expense if I were first to deal with three specific questions. These
are, first, what was the testator's domicil at the date of his will
and at the date of his death? It is agreed that there is no relevant
fact which would justify any different conclusion being come to
between these two dates. Secondly, assuming the testator to have been
domiciled in Ireland, has he nevertheless indicated in his will that
he intended English law to apply to the construction of his will?
Thirdly, as to whether upon the true construction of the testator's
will, his reference to the "child" of a deceases nephew should be
construed as referring to an "adopted" child, that is, the defendant,
Anthony Patrick Wimbush. Counsel, who represent between them all
interested parties, agree that for the purposes of determining the
last matter I may proceed on the basis that English and Irish law are
similar.
"Domicil," said Lord Cranworth in Whicker v. Hume (1),
(1) 28 L. J. (Ch.) 396, at p. 400.
[*349] "meant permanent home, and if that was not understood by
itself, no illustration would help to make it intelligible."While many
factors have to be considered in most cases relating to domicil, I
cannot help feeling that at times, in the welter of argument and
citation of case law, that simple elementary proposition is in danger
of being forgotten. The testator's domicil of origin persists until it
is shown to have been abandoned and that another domicil has been
acquired. In the words of Black J., with whom Sullivan C.J. and
Murnaghan J. agreed, in In re Joyce; Corbet v. Fagan (1), "now,
whatever difference of view may be possible on any other aspect of the
law of domicil, one principle at least is beyond doubt, namely, that
the domicil of origin persists until it is proved to have been
intentionally and voluntarily abandoned and supplanted by another." A
domicil of choice is acquired by residence (factum) coupled with an
intention to reside permanently or indefinitely (animus manendi). Per
Lord Westbury in Udney v. Udney (2):=97"Domicil of choice is a
conclusion or inference which the law derives from the fact of a man
fixing voluntary his sole or chief residence in a particular place,
with an intention of continuing to reside there for an unlimited
time." He adds later:=97"It is true that residence originally tem****ary,
or intended for a limited period, may afterwards become general and
unlimited, and in such a case so soon as the change of purpose, or
animus manendi, can be inferred the fact of domicil is established."
One of the most difficult questions that arises for decision in
domicil cases is that as to whether the intention to reside
permanently has been proved to exist or not. Long residence is of
great im****tance but it may be explained away, as, for example, in a
simple case of a person staying abroad for business reasons for a long
period but always with the intention of ultimately returning "home" to
the country of his domicil of origin. As was pointed out in Bowie
v.Liverpool Royal Infirmary (3) the "quality" or "the colour and
characteristics" of the residence must be considered. Black J. in In
re Joyce; Corbet v. Fagan (1) analysed three cases in which long
residence was held insufficient. Bowie's Case (3) was one of them and
I shall refer to it later. Winans v. Attorney-General (4) was, for
reasons which I feel few would quarrel with, described by the learned
judge as a border-line case. There was a marked difference of judicial
opinion in that case and I do not find any particular analogy of facts
which would assist me. The last,
(1) [1946] I. R. 277.
(2) L. R. 1 H. L. (Sc.) 441, at p. 458.
(3) [1930] A. C. 588.
(4) [1904] A. C. 287.
[*350] In re Patience, Patience v. Main (1), was decided on the basis
that Colonel Patience's continued change of residence showed such a
fluctuating state of mind that he could no be found to have formed
that settled intention of mind requisite to show a change of domicil,
an element absent from this case.
=46rom a consideration of the case law it is clear that it is a question
of fact to determine from a consideration of all the known
cir***stances in each case whether the proper inference is that the
person in question has shown unmistakably by his conduct, viewed
against the background of the surrounding cir***stances, that he had
formed at some time the settled purpose of residing indefinitely in
the alleged domicil of choice. Put in more homely language, that he
had determined to make his permanent home in such place. That
involves, needless to say, an intention to abandon his former domicil.
Where he has made a declaration touching on the matter it must be
weighed with the rest of the evidence. Such a declaration may be a
determining factor, but will not be permitted to prevail against
established facts indicating more properly a contrary conclusion. A
number of affidavits have been filed to aid me in determining the
issue, and, from them the following facts touching on the history of
George Cameron Sillar and the quality of his residence in this country
emerge.
The deceased was born in Shanghai on the 17th April, 1856, of English
parents. He went to England with his parents in 1860. He was educated
in England and qualified there as an electrical engineer. He resided
in England up to the year 1905. In that year, however, the testator
came over to Ireland to assist in the management of the business of
William Carter and Son, malsters, during the last illness of his
brother-in-law, Joseph M. Carter. Joseph M. Carter died in November,
1905, but the testator remained on in Ireland to look after the said
business at the request of his mother-in-law. He resided in County
Dublin and continued to manage the business until the year 1941. when
it was sold. After that the testator continued to reside in County
Dublin until the date of his death in 1953.
George Cameron Sillar dis not purchase a residence in this country but
in the year 1912 became tenant of the premises known as St. Fintan's,
Dalkey, for a term of five years from March 1912. The agreement
provided that if the tenancy continued after the expiration of the
term of five years it could be determined by three months' notice by
either the landlord or tenant. The testator
(1) 29 Ch. D. 976.
[*351] remained in possession of the house under the terms of the
agreement to the date of his death. After 1905 he had no residence in
England. An Irish pass****t was issued to Mr. Sillar in 1931. It was
renewed up to 1941. A British pass****t was issued to him on the 13th
November, 1946, valid to 1951.
Mr. Sillar was possessed of substantial means, the gross value of his
estate being about =A354,000 of which =A329,691 was situate in Ireland,
=A321,856 in England, and =A32,449 in Scotland. His debts were trivial in
comparison. He had at the date of his death a current account with the
Midland Bank, Ltd. in London in credit to the extent of =A3193 0s. 9d.
and a current account with the Bank of Ireland in Dublin in credit to
the extent of =A34,077 5s. 2d. He had a further account with the Royal
Bank of Ireland, Dalkey Branch, with a balance to credit of =A380 6s.
7d. He was at the date of his death a member of the Institute of
Electrical Engineers, London, King's College School Club, and the
Surbiton Golf Club in Surrey; while over here he was a member of the
Dublin Chamber of Commerce and the Royal Irish Yacht Club.
In the year 1942 the testator lost his wife and had occasion to make a
statement as to domicil to the Revenue authorities on the 28th April,
1942, in connection with her estate. He referred to his wife's
marriage to him, "a domiciled Englishman," in 1896 and his reasons for
coming to Ireland. He says that it was his intention to remain in
Ireland "only so long as might be necessary," and he adds:=97"Although I
have lived in Ireland since the year 1905 I never purchased a
residence in this country, any house in which I have lived being only
rented and I have not abandoned my English domicil. It has always been
my intention, when cir***stances permit, to return to live in
England."
In his will, dated the 14th March, 1949, the deceased described
himself in the opening words "as at present residing at St. Fintan's,
Sorrento Road, Dalkey, County Dublin, Electrical Engineer, M.I.E.E. a
British subject and domiciled in England." The codicils made in 1950
and 1952 confirm his will save as to certain alterations with regard
to legacies and executors. He was aged 96 at the date of his death,
making him 92 at the date of his will and 86 when he made the
statement to the Revenue authorities in 1942. There is also a bequest
in the will that is relied upon as throwing light on the testator's
frame of mind, that is the bequest to his servants additional to
certain pecuniary legacies. He directs his executors to allow each of
them to select such of his household goods, [*352] furniture and
effects to the value of =A3100 as they may wish to have and he bequeaths
to them such furniture or effects so selected. He named three Irish
solicitors as his executors.
There is evidence of an im****tant character contained in the affidavit
of Lillah M. Roper, a niece of the late wife of the deceased. She
states that she visited him frequently, and not only were they on
affectionate terms, but that he confided in her about most of his
affairs. She stayed with her uncle, she says, in September, 1949,
which would be about six months after the date of his will, and again
in February, 1953, just before he died. During her visits she says
that she often discussed with him his plans for the future.
According to her affidavit he intended to visit Mrs. Roper in England
in 1947 or 1948 but his health at that time prevented him. It is to be
noted that it was a "visit"that he intended, which pre-supposes
residence elsewhere. Furthermore, although he was prevented from going
by not being well enough at the time, he must have regarded himself as
having been able to undertake the journey, despite his age, when he
formed the intention. He was, indeed, according to this niece of his
wife, a very active person and perfectly capable of going to England
up to about three months before his death, that is, up to the
beginning of 1953. She says also, however, that Mr. Sillar told her in
a letter that he could not manage without his two maids who nursed him
and that he did not feel that he would travel any more and was better
in his own home. The house he lived in was apparently somewhat
dilapidated in his later years and in 1949 he remarked on this to the
deponent, adding, however, "It will last me for my time and can be
done up after I am gone and there is no point in spending anything on
it; after all, I am over 80 years of age."He never hinted, says Mrs.
Roper, either in letter or conversation, of any intention to go to
live in England. In so far as his predilections are concerned he told
Mrs. Roper how much he liked living in Dalkey and how much he enjoyed
the Yacht Club.
I have then the affidavit of Mr. Malcolm Frazer, who was a close
personal friend and knew him well for the last thirty years of his
life. He is a person well qualified to speak of the testator's
predilections and frame of mind. Mr. Frazer regarded the testator as
absolutely rooted in Dalkey. To him he never mentioned going to reside
elsewhere and Mr. Frazer believes that the last thing he would have
thought of was leaving Ireland or Dalkey. He spent a good deal of time
in his club and was popular with the
[*353] members. It is to be inferred that he enjoyed the society of
its members from the time he spent there. His recreation in later life
was billiards and he took an active interest in the game at his club.
Finally=97and this is im****tant=97 he was according to Mr. Frazer "almost
100% perfect in health for his age," and, since he possessed an
amazingly good memory, his mental faculties seem to have been
unimpaired by age. Although he suffered from arthritis in the hip
towards the end of his life he was able to get about, and I have
already referred to Mrs. Roper's evidence as to his physical capacity.
The testator's domicil of origin was very clearly in England. It is
clear also that the testator originally came to Ireland for a
tem****ary and specific purpose, and remained on for a particular
reason, namely, to manage the malting business at his mother-in-law's
request. That the tem****ary purpose extended for a very long time does
not cause it to cease to be tem****ary for the purposes with which I am
concerned and there seems no adequate reason for not accepting the
assertion contained in his statement to the Revenue in 1942 that he
had not abandoned his English domicil at that stage and that it had
always been his intention up to then to return to England when
cir***stances should permit. The business which he had been asked to
stay in Ireland to manage had only been sold the year before. Since
England was then involved in the bitter struggle of a devastating war
the fact that the testator did not make good his stated intentions
during the war years is explained away in an obvious fa****on and his
failure to move does not detract from the face value of his statement.
If George Cameron Sillar had died in 1942 or, indeed, during the
remaining war years, I should, on the facts as they stood then, have
been constrained to hold that he had never abandoned his domicil of
origin.
What, then, has really to be determined is whether anything occurred
after 1945 which would satisfy me that the change of intention was
made. In 1946 he took out a British pass****t. He had previously held
an Irish pass****t. Mr. Matheson says that the taking out of an English
pass****t indicates a state of mind, a mind still connected with
Britain, and he says that the act is inconsistent with an intention to
adopt Ireland as a permanent home. To my mind, however, a pass****t is
more connected with nationality and allegiance than domicil. There is
no reason in law why the testator, or any of his fellow-countrymen who
become domiciled in Ireland, should not retain their British
nationality.
[*354] Reliance was placed on the fact that the deceased had retained
some links with England, such as his continued member****p of his
school and golf clubs, and that he also had a bank account there.
While this is relevant matter it is to be remembered that a person of
the testator's antecedents, even if beyond doubt domiciled here, would
be expected rather than otherwise to retain links of this type. Facts
which are im****tant in the case of persons going to the other end of
the earth may have little weight in the case of a person merely
crossing the sixty miles of the Irish Sea in an age when travel
facilities make a visit from one island to the other a matter of a few
hours. These factors are further offset by the evidence as to the
deceased's member****p of the Chamber of Commerce in Dublin and of a
club here, to which he was much attached, and by the fact that he had
two bank accounts here. The matter of the pass****t and links with
England, viewed in this light, are but like straws in the wind.
It is stressed that he did not purchase a residence, a thing that
might be expected of a man of his means intending to settle
permanently here. In some cases evidence with regard to the purchase
or failure to purchase a habitat may well turn the scales. Here,
however, the non-purchase of a residence is explained by the original
nature and purpose of the testator's move to Ireland and it is quite
understandable that, while still carrying out that purpose, he would
see no reason to make any change with regard to the tenure of his
house. Since the arrangement originally made had held good for well
over twenty years, no surprise is occasioned by his failure to make
any move to alter things after 1941, when the position had altered by
reason of the sale of the business. By 1942 his tenancy would probably
have been protected under the Landlord and Tenant Act, 1931. In any
event, there is no suggestion that there was any question of the
landlord seeking to recover possession of the house. As Mr. Ellis
says, many people prefer renting a house to purchase. What is perhaps
more to the point is that the house appears in a real sense to have
been his home.
The fact of physical residence, and for the long period of well over
forty years, is not in dispute, though explainable in the way I have
indicated up to the termination of the war. While I feel that the
period after the war is the crucial period, the whole period up to
1949 can legitimately be looked to, to the extent, at any rate, of
considering what predilections the deceased might be shown or assumed
to have formed. During that long period he had plenty [*355] of time
to form predilections of one sort or another. He liked living in
Dalkey, he was deeply rooted there. He was much attached to his club
where he was popular and spent a good deal of time. He had formed
definite "ties."He had none of significance elsewhere. He had ample
means to go to England in a comfortable and leisurely fa****on. From
the time the business was sold and the war over there was no restraint
on his going. He had only himself to please, yet there is not a
whisper of any such intention having been envisaged to those to whom
it is morally certain he would have communicated it. There are, then,
some indications of his state of mind, which, although perhaps slight
in themselves, assume real im****tance when viewed in the light of the
surrounding cir***stances with which I have been dealing. Referring to
the state of the house, he said:=97"It will last me for my time." Under
the terms of his will his executors were to allow his servants to
choose ****tion of his household furniture and effects as a legacy.
Since that referred to his furniture in his house at Dalkey and the
servants in question being his employees over here, that bequest would
seem to indicate that he expected to end his days in that household.
Finally, he appoints three Irish executors, which seems to indicate
that he expected his estate to be administered here rather than in
England and that is, I think, a further indication of his intention to
end his days here.
Of considerable im****tance, however, if they can be taken at their
face value, are the deceased's pronouncements in his will of the 14th
March, 1949, confirmed in a general fa****on by the two codicils of
1950 and 1952. The words,"at present residing," suggest a tem****ary
residence. His description of himself as a British subject and
domiciled in England is evidence of im****tance and indeed of great
weight. It is, however, by no means conclusive. Where a person is in
fact physically resident in a place and the proper inference from all
the known cir***stances is that he had formed the intention of
remaining indefinitely in that place, he cannot alter the fact that he
has acquired a domicil of choice by stating something to the contrary.
In In re Annesley, Davidson v. Annesley (1) I find words used in the
will of the testator, Mrs. Sybil Annesley, whose domicil was in
question, at least as strong as those used by the late George Cameron
Sillar in his will. She stated that although she had lived in France
for many years and owned the house she lived in there, "it has not
been and is not my intention to abandon my domicil of origin namely
(1) [1926] 1 Ch. 692.
[*356] England . . . and I intend to remain a British
subject."Notwithstanding that, the lady was held to have been
domiciled in France. Russell J., at p. 701, says:=97"It must I think be
conceded that domicil cannot depend upon mere declaration, though the
fact of the declaration having been made must be one of the elements
to be weighed in arriving at a conclusion on the question of domicil.
But if a particular domicil clearly emerges from a consideration of
the other relevant facts, a declaration of intention to retain some
other domicil will not suffice to destroy the result of these facts."
This is a statement of the law as I conceive it to be and it provides
the proper basis, in my view, on which to consider the weight to be
attached to the statement in the deceased's will. In approaching a
consideration of these declarations I must remember the background and
try to understand as fully as I can the outlook of George Cameron
Sillar. He lived in England all his adult life until he was nearly 50
years of age. It is, I feel, significant that in his will he couples
his statement as to domicil with the assertion that he is a British
subject. Mrs. Roper says of him that he was very insistent that he was
not Irish. Laymen do not appreciate as clearly as lawyers the
distinction between domicil and nationality. People feel strongly on
the political issue of nationality but are little interested in the
rather complex and arid subject of domicil. Mr. Sillar had no place of
residence in England. He had not even visited England for many years
before he made his will. He had a settled home here. Just why he
should say he was domiciled in England it is difficult to say, but
having regard to all the surrounding cir***stances I feel that the
clue is to be found in the fact that he desired to stress his
nationality as is indicated by his description of himself in his will
as a British subject and his insistence on the fact that he was not
Irish.
Were George Cameron Sillar at the date of his will a younger person
the cir***stances and facts I have mentioned would, notwithstanding
these pronouncements, seem to indicate the voluntary formation of an
intention on his part, some time between the termination of the war
and the date of his will, to remain to the end of his days in Ireland.
His age, however, poses a serious and difficult question as to whether
or not his continued residence here may not have been due to inertia
or that disinclination to move increasing with increasing years,
referred to by Lord Macnaghten in Winans v. Attorney-General (1).
What I have to be satisfied of is that any such decision as he may
(1) [1904] A. C. 287.
[*357] outwardly appear to have come to was voluntary and not merely
one forced upon him by cir***stances of age and health. Indeed, if he
merely remained here because his physical and mental condition were
such that he was incapable of making the necessary physical effort to
move, or, if he had become really indifferent then it could scarcely
be said that he had even made a decision to remain at all. The onus is
on those alleging the formation of an animus manendi and Mr. Matheson
relies very properly on the case of Bowie or Ramsey v. Liverpool
Royal Infirmary (1), a decision of the House of Lords and naturally of
great weight, which is referred to frequently in the Supreme Court's
decision in In re Joyce; Corbet v. Fagan (2). As a certain degree of
similarity exists between that case and this, the decision requires
very careful consideration.
George Bowie was born in Glasgow in 1845. He was the second youngest
of a family of nine. He was employed as a traveller in Scotland but
ceased to work in 1882. He had resided in his father's house up till
then and remained in Glasgow living with members of his family until
between 1890 and 1892. He went to reside with a brother and sister and
his mother in Liverpool. His reasons for going there were apparently
because of his attachment to his mother and sister and probably also
because his sole means of sup****t was an allowance from a brother. He
resided there in lodgings. His mother died in 1904 and two more
sisters came after her death to reside in Liverpool. While George
remained in lodgings, the family all resided at 4 Winfield Place. Two
of the sisters and his brother having died, the surviving sister,
Isabella, and George lived together in Winfield Place until her death
in 1920 and George Bowie remained there until his death in 1927. He
described himself as a Glasgow man in his will but refused to return
to Scotland with Isabella when she wished to live there in 1915. He
arranged for his burial in Liverpool and was re****ted to have said he
never wished to set foot in Glasgow again. The facts are to be found
stated in the judgment of Lord Buckmaster.
There is no doubt that George Bowie resided in England for a
considerable period but the quality of his residence was in question.
For a true understanding of the decision it is necessary to appreciate
the type of person whose intentions and frame of mind the House of
Lords had to consider and evaluate, and to bear in mind the particular
cir***stances of his case which must all have been present to their
Lord****ps' minds. Careful regard must be had
(1) [1930] A. C. 588.
(2) [1946] I. R. 277.
[*358] to the reasons given for the decision. Lord Buckmaster pointed
out that Bowie had no real attachment to Liverpool other than the
presence of his brothers and sisters and he had little doubt that he
would have moved back to Glasgow had his family returned there. His
ties were due to inaction and Lord Buckmaster ascribes his continued
residence in Liverpool after his brother's death as being more
probably attributable to his lack of initiative and the disinclination
of a man of 69 years of age to change his mode of life. Viscount
Dunedin, after stating that the animus to change one's domicil may be
inferred from the factum of residence after taking into account the
colour and characteristics of the residence, finds the animus
unproved, and, by implication, he finds the residence colourless. Lord
Thankerton comments that Bowie appears to have had few, if any, ties,
either in Scotland or England, and, after referring to certain
remaining links which he retained with Glasgow, states his view that
it is probable that after 1912 his disinclination to move to Glasgow
was owing to the inertness of age and his indifferent health. Lord
Macmillan preferred to rest his judgment on the failure of the
appellant to discharge the burden of proof in***bent on her, but he
had previously stated that he doubted if there was ever a case in
which the Court had been asked to infer the acquisition of a domicil
on such slender evidence.
There are certain striking features of the case of George Bowie which
seem to me im****tant to observe. He ceased to work in 1882 and did
nothing of an active kind for the last 45 years of his life. He had
apparently no particular interests in life save his family, and no
ties of any sort save, again, those of his family. He was, therefore,
a somewhat unusual individual and apparently peculiarly inert. It
would seem unlikely that a decision on the peculiar facts of his case
should fit any other. Lord Buckmaster appears to have been impressed
by this peculiarity of his character because he ascribes his continued
residence in Liverpool after his sister's death to lack of initiative.
As evidence of intention upon the question of domicil that adduced was
found by Lord Buckmaster to be fragmentary and insufficient, by Lord
Thankerton to be vague and indecisive, while Viscount Dunedin and Lord
Macmillan found the onus of proving intention undischarged.
A comparison of the nature and quality of Bowie's residence in
Liverpool and that of the testator's here results in striking
dissimilarities becoming apparent. Since it has some bearing on the
matter I feel that I should state, to begin with, that George Cameron
Sillar seems to have been
[*359] in character and mental and physical make-up a very different
person to George Bowie. In contrast to Bowie he was working at his
business until he was 85 years of age. Save for the disability of
arthritis and one known period of illness he enjoyed excellent health.
In further distinction to the facts of the Bowie Case (1) the
testator had very definite ties here in the shape of his liking for
living in Dalkey and his attachment to his club. There is also in
contrast to the lack of such evidence in the Bowie Case (1) certain
evidence from which an indication of his intention to remain here may
reasonably be deduced, such as the bequests to his servants here and
his statement about the condition of his house sufficing for his day.
It would, however, be inadequate to depart from a consideration of
the Bowie Case (1) without referring to certain observations therein
contained on the subject of the inertness of old age. Lord Macnaghten
had stated in Winansv. Attorney-General (2), that an intention to
change a domicil of origin "is not to be inferred from an attitude of
indifference or a disinclination to move increasing with increasing
years, least of all from the absence of any manifestation of intention
one way or the other." Lord Bucks-master and Lord Thankerton laid
stress on the view that Bowie's continued residence in Liverpool was
probably attributable to a disinclination to move at his age. I
venture to think that the peculiar character and unusual history of
Bowie must have been much in the minds of both learned Law Lords.
While it is generally accepted that a disinclination to move increases
with increasing years, and, observing further that the testator here
was far older at the crucial time than George Bowie, my view is that
his failure to move from Dalkey and to return to his domicil of origin
is not satisfactorily explained in the case of George Cameron Sillar
by saying that he was overcome by inertia when I have positive
evidence of his physical activity and mental clarity as exemplified in
an amazing memory; to which may be added his known predilections for
being where he was and his attachment to Dalkey. Although he was of
great age I am satisfied that he was perfectly capable of undergoing
the physical effort of the move. It is relevant to point out, too,
that he sas not in a place remote from his domicil of origin and
modern trans****t facilities enable a move of house to be carried out
with comparative ease by a person of means. There is no general rule
to be applied, old age has very varying effects on individuals and I
have found myself driven to the conclusion that
(1) [1930] A. C. 588.
(2) [1904] A. C. 287, at p. 291.
[*360] George Cameron Sillar was not in his latter years suffering
from any such degree of mental inertia as would operate to prevent him
from deciding where he would like to reside or prevent him making up
his mind not to move or, indeed, disincline him to bother about the
matter at all.
Distingui****ng Bowie's Case (1) as I do by reason of the distinctions
I have dealt with, the matter of Mr. Sillar's health remains. It is
argued by Mr. Matheson that I should construe the statements in his
letter, referred to in Mrs. Roper's affidavit, as meaning that he was
coerced by the cir***stances of his health to remain where he was
during all his latter years, and that a decision to remain here in the
cir***stances was not voluntary. The statement in the testator's
letter taken by itself is susceptible of the suggested meaning; but I
must not read it apart from the context. Immediately prior to her
reference to the letter Mrs. Roper says that he found he was not well
enough to visit her "at the time" and at the end of her affidavit she
says very positively that he was a very active person and perfectly
capable of going to live in England up to three months before his
death. Coupled with what Mr. Frazer says in his affidavit and the
other known facts, I feel that the inference I should draw from her
affidavit is that the view he expressed in the letter was one
applicable to the particular time when he was ill and arose from his
then condition.
The evidence indicates that George Cameron Sillar, though of great age
and handicapped by arthritis, was quite mentally competent and alert
enough to make a decision as to where he would live in the future. He
was sufficiently active physically to carry that decision into effect.
Should I then properly infer from the evidence as a whole that he had
come to a decision to make a permanent home here sometime between the
war years and the date of his will, bearing in mind always where the
onus lies and his declarations? While evidence of a negative nature is
not enough I start with the fact that there is not a scintilla of
evidence of his ever having even talked of moving after the war. He
had no close ties with England. On the more positive side there is his
liking for Dalkey, his attachment to his club and the formation of
very real ties here. That he had formed predilections in favour of
living here seems beyond doubt. Above all, I feel that is clear=97that
he had a settled "home" here. When there is added to this his
statement with regard to the house and the indications of his
intentions as contained in his will I come
(1) [1904] A. C. 287.
[*361] to the conclusion that some time prior to the making of his
will the testator had formed the settled intention to remain here for
the rest of his life and to make his permanent home here. There is
nothing to distinguish the state of affairs at the time of his will
from those at the time of his death. Accordingly, I find that at the
date of his will and the date of his death George Cameron Sillar was
domiciled in this country.
A will is prima facie to be construed in accordance with the law of
the testator's domicil. Since the testator died domiciled here his
will should prima facie be construed according to Irish law. But this
is a rule of construction which may be departed from where it can be
shown that the testator wrote with reference to the laws of some other
country. Stirling J., in In re Price, Tomlin v. Latter (1),having
stated that in general a will is to be construed in accordance with
the law of domicil of the testator, proceeds (at p. 452) to quote with
approval from Dicey's Conflict of Laws (at p. 695):=97"But this is a
mere canon of interpretation, which should not be adhered to when
there is any reason, from the nature of the will, or otherwise, to
suppose that the testator wrote it with reference to the law of some
other country." It is a question of the testator's intentions and the
Court is bound to give effect to the testator's intentions: Bradford
v. Young (2).
Apart from the statement of law the decision in In re Price (1) does
not aid by reason of a distingui****ng feature. The will there under
review of a domiciled French subject contained an expression that the
will "shall thus be considered in England the same as in France." The
will was valid in French law and was held capable of operating as an
execution of a power of appointment by will over personal estate
settled under an English will. Stirling J. took the view that the
words I have quoted from the will amounted to a declaration by the
testatrix that she meant the will to operate as her last will in
England as well as in France and that it was indicated on the face of
the will that she wrote it with reference to the law of England as
well as the law of France. I do not find anything similar in the will
before me.
Certain facts and declarations of the testator are, however, relied on
as indicating an intention on the part of the testator that his will
should be construed according to the law of England. A large part of
the testator's estate consisted of English assets. He was by
nationality an Englishman. There are many English legatees. The will
is in a form
(1) [1900] 1 Ch. 442.
(2) 29 Ch. D. 617.
[*362] suitable in both countries, and, finally, he states himself to
be a British subject domiciled in England.
Somewhat similar cir***stances came before Eve J. for consideration
in In re Cunnington, Healing v. Webb (1).The testator, an Englishman,
died domiciled in France. He described himself in his will as a
British subject. The will was in English form and contained
benefactions mainly to English people. The property comprised in the
residue was in England. Eve J. could not, however, find anything in
the will or cir***stances to exclude the ordinary rule. In Anstruther
v. Chalmer (2) the testatrix died domiciled in England. She was a
Scottish woman and made a will in Scottish form in Scotland. It
contained many expressions peculiar to Scottish law. Notwithstanding
these latter facts it was held that the will must be construed
according to the law of domicil. These two cases show that some very
strong combination of cir***stances is required to exclude the rule in
the absence of a direct declaration of intention. The only feature
that can be relied on in the testator's will as indicating that the
testator intended English law to apply that did not appear in that of
James Cunnington is that he described himself as domiciled in England.
That statement as I have already remarked is coupled with a
description of himself as a British subject, which smacks rather of
nationality. However, it is a distingui****ng feature and should not be
lightly disregarded. On the other hand it will be recollected that
Mrs. Annesley, already referred to, said in so many words that her
domicil was English. None the less, Russell J. took the view that her
will must be construed in accordance with French law. The statement
must be weighed in the light of other known cir***stances and
indications contained in the will. The background is that the deceased
had lived here for approximately half his life in a settled home and
there are indications in the will, as I have found, that he intended
to end his days here. His will was apparently drawn by Irish
solicitors and he appointed Irish solicitors as his executors. It is,
perhaps, a small point but I notice that in both codicils the testator
directs his will to be construed in a certain fa****on which at least
shows that the matter of construction was not absent from his mind,
and it would have been simple for him to add a direction that his will
should be construed according to English law, but he did not do so
despite the fact that he apparently wished to stress his nationality.
I am unable in the cir***stances to persuade myself that the statement
that he was domiciled
(1) [1924] 1 Ch. 68.
(2) 2 Sim. 1.
[*363] in England indicates an intention that he wished his will to be
construed according to the law of England; the remaining facts relied
on do not convince me of this either. Accordingly, in my view, this
will should be construed according to Irish law.
The last matter which counsel have asked me to decide is whether the
bequest in the testator's will to a child of a deceased nephew should
properly be construed as a reference to the adopted child of a
deceased nephew, so as to enable the defendant, Anthony Patrick
Wimbush, to benefit.
The word, "children," used in a will prima facie means legitimate
children. The House of Lords in Hill v. Crook (1)decided that a gift
to illegitimate children, even as a class, would be perfectly valid
provided that the testator indicated clearly that he intended to
benefit such children. That the same principles apply to adopted
children was established in In re Fletcher, Deceased, Barclay's Bank
Ltd.v. Ewing (2). The bequest I have to deal with is a gift of the
residuary estate to the nephews and nieces of the testator
specifically mentioned in equal shares with a proviso that if any of
the said nephews or nieces die in the testator's lifetime leaving a
child or children living at the date of his, the testator's, death,
such child or children shall take the share of the deceased parent.
Such a gift is to be considered as if there was a gift to each nephew
or niece mentioned of a fractional share of the residue with the child
or children of such nephew or niece substituted by the proviso for
such nephew or niece as might pre-decease the testator.
What are the cir***stances in which an adopted or illegitimate child
may take where the gift is to the child of a named person, that is to
say, when may the prima facie meaning of legitimate child be departed
from? Lord Cairns in Hill v. Crook (1) states the two cl***** of cases
where theprima facie interpretation is departed from. "One class of
cases is where it is impossible from the cir***stances of the parties
that any legitimate children could take under the bequest." The second
class is "where there is upon the face of the will itself . . . an
expression of the intention of the testator to use the term
'children' . . . according to a meaning which will apply to, and which
will include, illegitimate children." I have been referred to a number
of cases in which the principles applicable have been considered and I
shall review them briefly.
In In re Eve, Edwards v. Burns (3) Swinfen Eady J., at p. 800, cited
Lord Cairns' judgment and applied the
(1) L. R. 6 H. L. 265.
(2) [1949] 1 Ch. 473.
(3) [1909] 1 Ch. 796.
[*364] first exception to the facts of the case on the basis that it
was impossible that any legitimate children should take. The gift in
that case was to the children of a widow who had no legitimate, but
two illegitimate, children. She was 68 years of age at the date of the
will and therefore clearly beyond child bearing. The facts were all
known to the testatrix. In In re Wohlgemuth, Public Trustee
v.Wohlgemuth (1) the facts were these: the testator had two
illegitimate children living at the date of his will and had no
legitimate children. He had married their mother after their birth,
but in the cir***stances of the case they had not become legitimated.
In his will the testator referred to his wife and appointed her to be
the guardian of his infant children and made provisions in favour of
"the children of myself and of my said wife." Jenkins J. held that
there was not on the face of the will an indication that in referring
to the children of his wife the testator meant illegitimate children.
I refer to that part of his decision as showing the strictness with
which the prima facie rule is applied. The case was actually decided
on the basis that it fell within the first exception mentioned by Lord
Cairns, namely, that it was impossible that any legitimate children
could take under the bequest. There was extrinsic medical evidence
that the testator was at the date of his will permanently incapable of
having any more children and that he was aware of this at that date.
It was an unusual case and certain observations of Jenkins J. are
material in the cir***stances of the present case. At p. 20, Jenkins
J. said:=97"No doubt the cases in which a man can be proved to be
incapable of begetting children must be few in number, and the onus of
proof must be heavy. In the majority of cases I should say it would be
a matter which was incapable of proof." In In re Fletcher, Deceased,
Barclay's Bank Ltd. v. Ewing (2) a testator bequeathed his residuary
estate on trust for his daughter but if she pre deceased him for her
children or child. The daughter could not have natural children but
had two adopted children, facts well known to the testator. The case
was held to fall within Lord Cairns' first exception. The evidence is
not referred to in any detail but it was accepted by Roxburgh J. that
the daughter was incapable of child bearing. At p. 482 he says:=97"It
was impossible from the cir***stances of the parties, which were fully
known to the testator, that any legitimate children could take under
the bequest." In re Gilpin, Hutchinson v. Gilpin (3) was another case
falling
(1) [1949] 1 Ch. 12.
(2) [1949] 1 Ch. 473.
(3) [1954] 1 Ch. 1
[*365] within Lord Cairns' first exception. The testator bequeathed
shares in his residuary estate to his son and four named daughters,
and settled the share of each on his or her issue as they should
appoint and in default of appointment for the children who attained 21
years of age. One of the daughters was unable to bear children, a fact
known to the testator, but she had adopted a child. Upjohn J. held
that in the cir***stances the testator must have intended to include
the adopted son in his disposition. The striking feature of all these
cases is that the first exception to the general rule appears to have
been operated in a literal and strict fa****on. In all the cases
referred to it was established that it was impossible for any
legitimate children to take and that that fact was known to the
testator or testatrix.
The will here is dated the 14th March, 1949. she gift I am concerned
with is to Rupert Montgomery Wimbush, or, if he should pre-decease the
testator, to his child or children surviving at the testator's death.
There is clearly nothing on the face of the will which would indicate
that the testator intended to use the terms, "child or
children,"according to a meaning which would include an adopted child
or children and therefore the reference to child or children must be
held to refer to a legitimate child or legitimate children only,
unless, as I understand the law as laid down in Hill v. Crook (1) it
is shown to me by proper evidence that it is impossible from the
cir***stances of the case that any legitimate children of Rupert
Montgomery Wimbush could take under the bequest and, I conceive
further, since the question is ultimately one of the intentions of the
testator, that that fact must be shown to be known to the testator at
the date of the making of his will.
The evidence chiefly relied on to ask me to come to the conclusion
that Rupert Montgomery Wimbush could not have legitimate and natural
children who could take under the bequest is that contained in the
affidavit of his widow, Catherine Eva Wimbush, but I should add that
there is also evidence that Rupert Montgomery Wimbush had been married
previously but had had no children by his prior marriage. The deponent
states that she had been medically examined and advised of the danger
of having a child, but that is irrelevant. The question is not as to
her childbearing capacity but as to whether at the date of the will it
could be said that it was impossible for her husband to have natural
children. The only suggestion to the contrary as regards his physical
capacity is that he was not a man of very robust health, but that
emphatically is not enough.
(1) L. R. 6 H. L. 265.
[*366] I am by no means satisfied on the evidence advanced that it was
ever impassible=97for that is the test=97that he should have had children
by the deponent after the date of the will and if I had to decide the
issue on that point I feel I should be bound to say that it had not
been proved that he could not have had issue by his then wife after
1949. However, it is clear that the deponent might save died before
Rupert Montgomery Wimbush and that he might have married again and had
legitimate children by another wife and in my view it has not
therefore been shown that it is impossible that any legitimate
children should take under the bequest. The general rule that the
words, "child or children," applies prima facie to a legitimate child
or children therefore must be applied and I must find that the
reference to the child of Rupert Montgomery Wimbush in the testator's
will does not apply to the adopted child, Anthony Patrick Wimbush. As
it has not been shown that it was impossible for Rupert Montgomery
Wimbush to have had legitimate children it follows that 'the testator
could not have been aware of something contrary to the fact.
Solicitors for the plaintiff: Hayes and Sons.
Solicitors for the defendant, Anthony Patrick Wimbush:Whitney, Moore
and Keller.
Solicitor for the defendant, Winifred Bavington: Thelma King.
W. F. R.
[1956] I.R. 344
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