Page:Encyclopædia Britannica, Ninth Edition, v. 7.djvu/370

352 DOMICILE choice is the creation of the party. When a domicile of choice is acquired, the domicile of origin is in abeyance, but is not absolutely extinguished or obliterated. When a domicile of choice is abandoned, the domicile of origin revives, a special intention to revert to it not being necessary. A natural-born Englishman may domicile himself in Holland, but if he breaks up his establishment there and quits Holland, declaring that he will never return, it is absurd to suppose that his Dutch domicile clings to him until he has set up his tabernacle elsewhere." Per Lord Westbury. These extracts, it will be seen, state even more strongly than the corresponding rule adopted by Story the position that the original domicile differs from an acquired domicile, in being suspended rather than destroyed by the acquisition of a new domicile. One of the law lords in Uduy v. Udny even finds fault with Story s use of the phrase " to reacquire a native domicile." The native domicile is not reacquired but restored ipso facto by the abandonment of the acquired domicile. The intention necessary to effect a change of domicile may be illustrated by the following cases. In the case of Douglas v. Douglas (12 Equity, 617), R , son of a domiciled Scotchman, entered the Home Office, London, in 1792, re mained till 1802, thereafter having married an English lady, lived in England in hired houses, and finally settled in Scot land and died there. It was held that he had not lost his domicile of origin. The testator in the case, the son of R , was born in London in 1803 during a visit of his parents to London, lived from the age of thirteen with his parents in Scotland, paying occasional visits to England till his mother s death in 1857, after which he let his family estate in Scotland, and lived chiefly in England in hired houses. It was held that his domicile was Scotch. The intention required to create a new domicile is an intention to settle in a new country as a permanent home, and this is sufficient without any intention to change civil status. In another case (Brunei v. Brunei, 12 Equity, 298), where a French subject had established himself in business in England, and resided there continuously for thirty years, making only occasional visits to France, but had refused to take out letters of naturalization on the ground that he might return to France, and would not give up his status as a French citizen, it was held, notwithstanding, that he had lost his domicile of origin, and had acquired an English domicile. The effect of domicile on the rights and duties of parties is even more difficult to state. Continental jurists draw a distinction between personal and real laws, the former being supposed to fix the legal character of the person and accompany him wherever he may be, the latter dealing with things only. In matters covered by the former, there fore, the domicile prevails ; while things are governed by the law of the place in which they are. If the distinction were maintainable it would still be of little use in fixing the extent of the operations of the law of domicile, because one large class of real laws, that dealing with movables, is universally admitted to be governed by domicile ; while a large but undefined class of personal laws would certainly not be acted on by foreign states, e.g., where the law of domicile fixes with incapacity persons professing a religion contrary to that established by the state. There is no uniformity of practice or opinion on this point in modern jurisprudence. Story considers the following to be the best established principles in England and America on the point of personal capacity or status : 1. The capacity, state, and condition of persons according to the law of their domicile, will generally be regarded as to acts done, rights acquired, and contracts made in the place of their domicile touching property situate therein. If valid or invalid there, they will be valid or invalid everywhere. 2. As to acts done, &c., in other countries touching the property therein, the law of sucb countries, as to capacity, &c., and not the law of domicile, will generally prevail. Thus in questions of minority or majority , com - petency to marry, incapacities incident to coverture, guardianship emancipation, and other personal qualities and disabilities," the lex loci contractus aut actus, and not the lexdomidlii ought to prevail, e.g., if a person over 21 but under 25 years of age has his domicile in a country which fixes majority at 25, he may make generally a valid contract, even of marriage, in a country which fixes majority at 21. 3. Personal disqualifications not arising from the law o f nature, especially such as are penal, as disqualifications for heresy, popish recusancy, &c., are not enforced in any other country. The refusal of non-slaveholding States to recognise the status of slaverj is an example. 1 4. Questions of legitimacy are generally to be decided by the law of the place where the marriage was celebrated. When issue bom before marriage may by the law of the country of their birth be legitimated by the subsequent marriage of the parents, such legitimacy would be recognized ill other countries. (But see BASTARD and MARRIAGE). The operation of the law of domicile is most free from doubt in questions touching personal or movable property. Real property is governed by the for loci; but personal property has in law no locality. On this point English law is now substantially in harmony with Continental jurisprudence. The principle that personal property is subject to the law of the owner s domicile is fully recognized in the distribution of the estate of a person deceased, whether with or without a will. The capacity of a person to make a will, the validity of the will, and its effect, are to be determined by the law of his actual domicile in the case of movable property. In the case of real property, on the other hand, these questions must be decided by the law of the country in which it is situated. It was doubted by Story whether a will valid according to testator s domicile at the time of its execution would be affected by a sub sequent change of domicile. A recent case (Lynch v. Government of Paraguay) decided that personal property in England is governed by the law of testator s domicile at the time of his death. In this case the testator, a domiciled Paraguayan, died leaving personal property in England ; and between his death and the application for probate a decree of the Government of Paraguay declared that all the property of the deceased, wherever situated, was the property of the state of Paraguay. The court, nevertheless, held that the property in England must be governed by the law of Paraguay as at the time of the death (2 Probate and Matrimonial Cases, 268). So in cases of intestate succes sion, the law of the actual domicile of the intestate at the time of his death governs his personal property everywhere. The persons entitled, the proportions in which they are to take, &c., must be settled by the law of the domicile, how ever different that may be from the law of the country in which the goods are. The following statutes relating to the effect of domicile on wills were passed in 1861 : 24 and 25 Viet. c. 114. Wills made out of the United Kingdom by British subjects (whatever may be the domicile of such person at the time of making the same or at the time of death) shall, as regards personal estate be held to be well executed, if the same be made according to (1), the forms required by the law of the place where the same were made, or (2), the place where such person was domiciled when the same were made, or (3), by the laws in force in that part of her Majesty s dominion where he had his domicile of origin. Willsmade by any British subject (whatevermay be his domicile) shall, as regards personal estate, be well executed if they are according to the forms then required in that part of the United Kingdom in which they are made. No will or other testa mentary disposition shall be held to be revoked or become valid, nor shall the construction thereof be altered by reason of any subsequent change of domicile. 24 and 25 Viet. c. 121 recites that by the operation of the law of domicile the expectation and belief of British subjects dying abroad with regard to the distribution of their property are often defeated, and enacts that when a convention has been made between 1 When the foreign law which would otherwise operate as lex domidlii is repugnant to the moral principles of the country in which it is sought to be enforced, the lex domidlii would not be allowed to

prevail.