20 Dunl 307
| Jurisdiction | England & Wales |
| Judgment Date | 18 December 1857 |
| Date | 18 December 1857 |
| Docket Number | No. 63 |
| Court | Unspecified Court |
Ld. Benholme. C.
Foreign—Domicile—Proof—Presumption.—
MRS JANE DONALDSON or Maxwell, residing in the Stewartry of Kircudbright, brought this action against Samuel M'Clure in the Sheriff-court of Dumfries, concluding for L.20,000, as the half of the goods in communion in April 1851, the date of the dissolution of the marriage between him and his deceased wife, Mrs Ann Donaldson or M'Clure, whose nearest of kin the pursuer claimed to be.
The defence was that the defender had acquired a domicile in England, and that his rights at the dissolution of his marriage fell to be regulated by the law of England, by which law the nearest of kin was not entitled to the claim now made; and farther, ‘even if the defender's domicile were in Scotland at the date of the dissolution of the marriage, still, as England was the domicile of the marriage, the rights of the wife must be regulated by the law of England.’
On 28th September 1852, the Sheriff-substitute (Trotter), upon this last plea assoilzied the defender.
On appeal, the Sheriff-depute (Napier) pronounced the following interlocutor:—‘Recalls the interlocutor appealed against; repels the defence that the rights of the defender fall to be regulated by English law, and that under the species facti, any claims competent to his deceased wife's next of kin, according to the law of Scotland, are excluded.’
The defender advocated; and on 26th February 1853, the Lord Ordinary (Rutherfurd) pronounced the following interlocutor:—‘Advocates the cause; and before answer, and of consent, allows parties proof, by commission, of all facts and circumstances tending to instruct the domicile of the defender at the date of the death of his wife Ann Donaldson, in April 1851,—the pursuers leading in said proof; and to both parties, conjunct probation: Grants diligence,’ &c.
The purport of the proof was stated as follows by the Lord President:—‘I think it appears from the evidence and the admissions on the record that Mr M'Clure was born in Scotland, of Scotch parents, about 1793,—that about 1813 he went to England in pursuit of employment, and he seems to have arrived at Wigan. The precise period of his arrival there I do not see stated; but it does not appear that he had settled down anywhere else before arriving there. He engaged in business in Wigan. The next event of importance noted is, that in 1837, in Wigan, he was married to Miss Ann Donaldson, who was a native of England. Her father was a Scotchman, but he had been a long time—about sixty years—settled in Wigan, and it does not appear that he ever returned to Scotland. Her mother was an Englishwoman. Mr M'Clure appears to have been prosperous in business. In 1841 he gave up business entirely, but notwithstanding that he still remained in Wigan. In 1842 he purchased certain property in Scotland, called Kerfield, a property of no great extent, situated in the immediate neighbourhood of Dumfries, and on which there was a house. Although he made that purchase in 1842, Mr M'Clure still remained resident in Wigan. In 1847 an event of some importance occurred,—the death of Mr Donaldson, the father of Mrs M'Clure. He died in the beginning of 1847. Mr M'Clure, however, did not then leave Wigan. He still remained there. In the course of that year, 1847, and towards its close, he made a farther purchase of land in the vicinity of Dumfries, adjoining the previous purchase, or very near it, called Alderman Hill. Nothwithstanding that purchase in 1847 he still remained at Wigan. At that time Mr M'Clure was a person who had acquired for himself a considerable position in Wigan. He was a member of the town-council, a magistrate of the town, and possessed of real estate in Wigan. He occupied a house in a street called Wallgate, represented to us as having been an excellent house, one of the best houses in Wigan. It appears to have been worth a considerable sum of money. That house was taken possession of by a railway company, which deprived Mr M'Clure of his residence in Wigan. Although deprived of that residence in Wigan, it appears from the evidence that he did not then abandon his intention of living in Wigan, because he appears to have offered for a house belonging to the trust-estate of a Mr Wood, for which a price of L.2200 was asked, and for which he offered L.1800—therefore a house of some pretension. He also appears about that time to have made successive offers for villas in the neighbourhood,—first, for one called the Larches, and then one called Addlington Hall, but without success. At that time Mrs M'Clure's health appears to have been bad, and one motive for obtaining a residence in the country was to give her the benefit of country air. Another may have been, that he was deprived of his house in Wigan, and did not get a house to suit him in town, and, therefore, desired to get one of the villas in the neighbourhood. But being deprived of his house in Wigan, and not getting any of the villas for which he offered, he took possession of another house in Wigan, which appears to have been his own property, in Standishgate Street. It appears to have been a comparatively small house. The value of it in rent was small, compared with the value of the house in Wallgate Street or Wood's house, judging by the prices which they fetched. Nor does it appear to have been in a choice situation. At same time, it had been built at no very distant period for a residence by his father-in-law—a man of some wealth—and who had continued to reside there till his death in 1847. It therefore appears to have been suitable for Mr Donaldson's residence, in the estimation of himself and his friends. To that house a portion of Mr M'Clure's furniture was removed. Some of it was sold. Having then only that small house in Wallgate, and being unable to obtain a villa in the neighbourhood, Mr M'Clure appears to have resolved to turn to account his residence at Kerfield, and the purchases he had made there; and, accordingly, having in May 1848 added another purchase, called St Michael's Lodge, he in June 1848 removed, with his wife, servants, and carriages, to Kerfield, now known as Laurel Mount. The purchases he had made of land there seem to have been three in number, and the prices paid amounted altogether to L.3600, not a large landed estate, but sufficient for a villa residence. In 1848 he set agoing building operations there, and erected a good dwelling-house, on which he spent about L.2500. He removed his servants, horses, and carriages to Laurel Mount, and furnished the house in a suitable manner. He also acquired seats in the Episcopal chapel at Dumfries, and made preparations for residing and spending a considerable portion of his time in Scotland.
‘Mrs M'Clure died at Laurel Mount, in April 1851,—that is, two years and ten months after Mr and Mrs M'Clure bad gone to take up their residence at that place. During these two years and ten months they repeatedly visited Wigan. The house in Standishgate remained all that while furnished. A house-keeper was in it, who says it was always kept ready for the reception of Mr M'Clure; and it appears that Mrs M'Clure also went there occasionally for a few weeks at a time. The evidence shews that they went once at the end of 1848, twice in 1849, and once, if not twice, in 1850; for there is some conflict in the evidence about the visits in 1850. When they made their visits to Wigan they did not break up their establishment at Laurel Mount. Mr M'Clure did not take with him all his servants—only two of them, and not his horses, except on one of the occasions. He seems on other occasions to have provided himself at Wigan with horses and carriages when there. He continued all this time to hold a public position in Wigan. He continued to be a town-councillor till 1850, and. a magistrate all the time till his wife's death, and he still holds that office. He also continued to hold real estate in Wigan, and in 1849, after his removal to Laurel Mount, he acquired additional real property in Wigan, which cost L.1500 or something more. He and Mrs M'Clure appear to have spent much more of their time in Laurel Mount than in Wigan subsequent to 1848. His visits, however, to Wigan were frequent, and hers once or twice a-year. This position of matters gave rise almost necessarily to the circumstance which has been alluded to of his having had an account for bank transactions convenient for each of the places. He had a bank-account at Dumfries, where the greater part of his family expenses were incurred, and where especially during the earlier period of his residence the building operations were to be provided for; and he also had a bank-account at Wigan. I have not examined the particulars of the Wigan account, but it has been stated, and is not disputed, that although the transactions were not so numerous, they were more important in magnitude than those in Dumfries. I can easily understand that his funds were principally drawn from Wigan, for they appear to have been invested there, and I do not suppose that Laurel Mount...
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