Forbes v Forbes
| Jurisdiction | England & Wales |
| Judgment Date | 03 March 1854 |
| Date | 03 March 1854 |
| Court | High Court of Chancery |
English Reports Citation: 52 E.R. 216
ROLLS COURT.
S. C. 23 L. J. Ch. 422.
- [552] forbes v. forbes. March 3, 1854. [S. C. 23 L. J. Ch. 422.] A bequest of 2000 to testator's executors, in trust to build a bridge in Scotland over the river Don, " the situation to be chosen by them," was allowed by them to remain unapplied, and to accumulate for thirty years. The Court of Chancery refused to give directions to establish the charity in Scotland, but directed the money to be paid into Court, and that application should be made to the Court of Session in Scotland with regard to the administration of the trust, with liberty afterwards to apply to this Court. The accumulations held to go along with the original bequest. Semble, the power of selection given to the original executors ceased upon their death. John Forbes (formerly of Newe, in the parish of Strathdon, in the county of Aberdeen, Scotland), by a codicil, dated in 1821, revoked the gift of the residue of his personal estate to his grandnieces, and bequeathed (infer alia) as follows:-" I leave 2000 to my executors, in trust for the purpose of building a bridge over the river Don, in Strathdon, the situation to be chosen by them." The testator died in June 1821, and his executors paid his debts, &c., and retained in their hands the sum of 2000 on account of the legacy, for the purpose of 1BEAV. EDI. FORBES V. FORBES 217 building the bridge, bub they never carried the trust into execution, nor did they select a situation for the bridge. They simply retained the 2000 in their hands, and kept a separate account in relation thereto, in the books of the house of Sir Charles Forbes & Co.; the principal, together with interest thereon, now amounted to the aum of 7992, 11s. 7d. The executors were all dead, and doubts having arisen as to whether the interest and accumulations of the 2000, as well as the principal, were applicable to the purposes of the trust, or whether the principal alone was applicable, and also as to the persons, if any, who were now entitled to the right of selecting the situation for the bridge, some of the executors of Sir Charles Forbes, [553] the surviving executor of the testator, filed a billagainst their co-executor Sir Charles Forbes, and against the parties interested in the testator's residuary estate, and against two resident inhabitants and parishioners of Strathdon, praying a declaration of rights as between the parties interested in the residue, and claiming the interest and accumulations as part of the residuary estate. The parishioners of Strathdon claimed the whole, insisting that if it should be more than sufficient for building one bridge over the Don, the surplus ought to be applied either in building another bridge, or to objects of a kindred nature, for the benefit of the inhabitants of the parish. Sir Charles Forbes, the son, and one of the executors of Sir Charles Forbes, the surviving executor of the testator, was made a Defendant in the suit. He had an interest in the selection of the site, as his estates were situate in the parish of Newe, and he alleged that the object of the testator in making the bequest was, to open a communication with and easy access to his estates. Mr. Roupell and Mr. A. J. Lewis, for the Plaintiffs. On the one side it is contended that all the accumulations, as well as the original legacy, are to be applied in building the bridge ; and, by the other side, that at furthest the original legacy only is so applicable to that purpose. It appears that, in this parish of Strathdon, more than one bridge are required, so that the whole fund, including the accumulations, would not be more than sufficient for providing bridge accommodation for the parish. The second question is, who are the persons entitled to select the site of the bridge. The original executors being dead, the privilege is now gone. As this Court does not direct a scheme for the establishment of a foreign charity, it will leave that question, and everything con-[554]-nected with the administration of the charity, to the Court of Session in Scotland, whose province it is to give directions in the matter; Attorney-General v. Lepine (2 Swanst. 181; 1 Wils. C. C. 465 ; 19 Ves. 309); Provost and Bailiff of Edinburgh \. Aubery (Ambl. 236); Mitfonl v. Reynolds (1 Phill. 185). Mr. R. Palmer, for Sir Charles Forbes. The Court ought itself to direct a scheme, or at all events to refer the matter to Chambers, to inquire who are the.proper persons to receive the money, for in each of the cases cited on the part of the Plaintiffs, there was a permanent body to whom the fund could be handed over, leaving it to be dealt with by the foreign Courts. The words, " my executors in trust," cannot mean any persons who might accidentally become his personal representatives, but the particular persons named and who were to select the site. The case of Attorney-General v. Sturge (urireported, Rolls, 20th Feb. 1854), therefore, applies here, and there must be a reference to Chambers to inquire as to the persons to whom the fund ought to be paid, and how it ought to be applied, having regard to the laws of Scotland. In The Attorney-General v. Sturge, a like reference and inquiry was directed having regard to the law of Genoa. Mr. Burdon and Mr. A. Smith, for the parties interested in the testator's residuary estate, contended that the original bequest only was applicable to the charitable purpose of building the bridge, and that the accumulations belonged to the residuary estate ; the testator having fixed that particular sum as necessary for the purpose whenever the bridge might be built. Mr. Lloyd and Mr. Hallett, for the parishioners of Strathdon, argued that the accumulations were accre-[555]-tions to the original bequest and must go with it, and be applied in building the bridge, and that any surplus remaining after satisfying the original purpose of the bequest ought to be applied to objects of a public nature and beneficial to the parish. the master of the rolls [Sir John Romilly] thought there was something 218 GORBELL V. DAVISON 18 BEAV. 8M. more precise in this case than in that of Attorney-General v. Sturge, and that the better course would be, to have the money paid into Court, then to make an application to the Court of Session in Scotland to decide as to the disposition of the fund and the regulation of the charity, and afterwards to apply to this Court. He considered that the case of Attorney-General v. Lepine had decided that the Court of Session had authority to administer the charity. He had little doubt that the accumulations went with the original bequest, and formed part of the fund applicable to the building of the bridge. He remarked that the sum necessary for such a purpose did not appear, and that there was no evidence respecting it. He observed that the power of selection seemed to have been personal, and if so, then, as all the original executors were dead, it would now be gone.
English Reports Citation: 69 E.R. 145
HIGH COURT OF CHANCERY
S. C. 2 Eq. 178; 23 L. J. Ch. 724; 18 Jur. 642; 2 W. R. 253. See Hodgson v. De Beauchesne, 1858, 12 Moo. P. C. 316; 14 E. R. 932; Haldane v. Eckford, 1869, L. R. 8 Eq. 642; Aitchison v. Dickson, 1870, L. R. 10 Eq. 595; Douglas v. Douglas, 1871, L. R. 12 Eq. 647; In re Toolat's Trusts, 1883, 23 Ch. D. 537; Ex parte Cunningham, 1884, 13 Q. B. D. 423.
Domicil. Service in the Indian Army. Choice between two Residences.
[341] fokbes v. forbes. Jan. 16, 17, 18, 23, 24, Feb. 9, 1854. [S. C. 2 Eq. E. 178; 23 L. J. Ch. 724; 18 Jur. 642; 2 W. E. 253. See Hodgson v. De Beauchesne, 1858, 12 Moo. P. C. 316; 14 E. E. 932; Haldane v. Eckford, 1869, L. E. 8 Eq. 642; Aitchison v. Dickson, 1870, L. E. 10 Eq. 595; Douglas v. Douglas, 1871, L. E. 12 Eq. 647; In re Toolat's Trusts, 1883, 23 Ch. D. 537; Ex parte Cunningham, 1884, 13 Q. B. D. 423.] Domicil. Service in the Indian Army. Choice between two Residences. A man cannot have two domicils, at least with reference to the succession to his personal estate. Legitimate children acquire by birth the domicil of their father. An infant cannot change his domicil by his own act. A new domicil cannot be acquired except by intention and act; but, being in itinere to the intended domicil, is a sufficient act for this purpose. But the strongest intention of abandoning a domicil, and actual abandonment of residence, will not deprive a man of that domicil, unless he has acquired another. An engagement to serve, and actual service in the Indian Army, under a commission from the East India Company, when the duties of such an appointment necessarily require residence in India for an indefinite period, confers upon the officer an Anglo-Indian domicil; for the law, in such a case, presumes an intention consistent with his duty, and holds his residence to be animo et facto in India. And this, even if he have property in the country which was his domicil of origin. An Anglo-Indian is not, for all purposes, an English domicil. A domiciled Scotchman, having ancestral property but no house in his native country, by accepting a commission, and serving in the Indian Army, abandoned his domicil of origin, and acquired an Anglo-Indian domicil. He afterwards attained the rank of general in the Indian Army, and was made colonel of a regiment, and then left India with the intention of not returning thither, but came to Great Britain, where he lived part of the year in a house which he had built on his estate in Scotland, and part in a hired house in London, under circumstances which, if he had been a single man, would have given him again a Scotch domicil; but his wife and establishment of servants resided constantly at the house in London. Held, that this fact counterbalanced the effect of the other circumstances, and proved that his intention was permanently to reside in England; and that, therefore, he must be considered to have abandoned his...
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