Hoskins v Matthews
| Jurisdiction | England & Wales |
| Judgment Date | 16 January 1856 |
| Date | 16 January 1856 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 294
BEFORE THE LORDS JUSTICES.
S. C. 25 L. J. Ch. 689; 2 Jur. (N. S.), 196; 4 W. R. 216. See Haldane v. Eckford, 1869, L. R. 8 Eq. 641.
294 HOSKINS V. MATTHEWS 8 DB 0. M. * 0.13.: [13] hoskins v. matthews. Before the Lords Justices. Now. 19, 21, 22, 1855 ; Jan. 16, 1856. [S. C. 25 L. J. Ch. 689 ; 2 Jur. (N. S.), 196 ; 4 W. R. 216. See Haldtme v. . Eckfanl, 1869, L. E. 8 Eq. 641.] Although permanent residence abroad without intent to return may not operate as a change of domicile, if believed to be necessary for health's sake, the circumstance, that such residence was occasioned by mere preference of climate, or by the opinion that the air or the habits of the country may be better suited to the health than those of the country which has been quitted, will not be sufficient to prevent such permanent residence from so operating. This was an appeal motion against an order of the Vice-Chancellor Wood, declining to vary the chief clerk's certificate, but was substantially against so much of the certificate only as related to the domicile of the late Mr. Matthews, the testator in the cause, the Appellant contending that Mr. Matthews was in and throughout the year 1838, and thenceforth to his death, domiciled in England; the Respondent contending that in or after the year 1839 he became domiciled in Tuscany, and was domiciled in Tuscany in the year 1843, or some earlier time, continually until his death, which happened in the year 1850. The facts and the arguments appear sufficiently from the judgments. Mr. Willcock and Mr. Cairns, in support of the appeal. Mr. Headlam, Mr. Selwyn, Mr. W. A. Collins, Mr. Charles Hall, Mr. Cottrell and Mr. Cole, for the several Respondents. Mr, Willcock, in reply. [14] The following authorities were referred to :-De Bmneval v. De Bunneval (1 Curt. 856); Bempde v. Johnstone (3 Yes. 198); Lcmeuville v. Anderson (17 Jur. Rep. 511); Samerville v. Somerville (5 Ves. 750); Maltass v. Maltass (1 Rob. Eccl. Rep. 67); Munn v. Munro (7 Cl. & Fin. 842); DaUuwsie v. M'Dmiall (Ibid. 817); Johnsione v. Beattie (10 Ibid. 42, 139); La Virginia (5 Rob. Adm. Rep. 99); Munroe v. Douglas (5 Madd. 379); Craigie v. Lewin (3 Curt. 435); fHtieker v. Hume (13 Beav. 366); Forbes v. Forbes (Kay, 341); Stanley v. Bernex (3 Hagg. Eccl. Rep. 373); Phillimore on Domicil (page 12); Story's Conflict of Laws (chap. 3, s. 44); Bruce v. Bruce (2 Bos. & Pul. 229, n.); The Harmmy (2 Rob. Adm. Rep. 322); Collier v. Bimz (2 Curt. 855); Bwton v. Fisher (1 Milward, Rep. (Prerog. Court of Dublin), 183). Judgment reserved. Jan. 16, 1856. the lord justice turner. This is an appeal from the decision of Vice-Chaucellor Wood upon the question of the domicile of James Robert Matthews at the time of his death, the Vice-Chancellor having been of opinion that he was then domiciled in Tuscany, and the Appellant contending for an English domicile. The question, as it seems to me, must depend upon whether there was a change of Mr. Matthews's domicile in or after the year 1838, for he was born in England of [15] English parents, and his domicile of origin therefore was undoubtedly English ; and although the domicile of origin may have been lost, and a new domicile acquired in Sweden, Spain or Portugal, and perhaps successively in each of those countries at different periods antecedent to the year 1832, there is, I think, enough to shew that the new domicile thus acquired was again lost, and the domicile of origin revived in and previous to the year 1838. The facts of this part of the case are shortly these:-Mr. Matthews was born in the year 1778. In early life he entered the Swedish military service, and he attained the rank of Captain in that service. In 1810 he married in England an English lady. In 1816 he was appointed His Britannic Majesty's Consul in Andalusia, and went to reside at Cadiz. He continued to hold this office and to reside at Cadiz until the year 1822, when he was appointed to be British Consul-General in Portugal. He then removed to Lisbon, and held this latter office and resided at Lisbon until the year 1832, when the functions of the Consulate in Portugal were suspended, and he returned to England. His office of Consul-General in Portugal was abolished in the DE 0. M. * 0.1. HOSKINS V. MATTHEWS 295 year 1833, and he then obtained a pension of 500 a year from the British Government, to continue until he should be re-employed in the service of the Crown. He was never so re-employed, but continued to receive his pension till the time of his death. After his return from Lisbon in the year 1832, he resided in England until the year 1838, with the exception, it would appear, of parts of the years 1836 and 1837, when he seems to have been travelling on the Continent. There was here, therefore, a residence in England by Mr. Matthews during a period of about six years, interrupted only by a tour on the Continent, which from the correspondence seems to have originated either in some matters connected with the educa-[16]-tion of his children, or in the state of his health. He had not, indeed, during this period any house which could be called his own, in the sense of being his absolute property ; but I collect from the evidence that, until nearly the time when he went abroad, he resided almost wholly at Bath, and that after he returned from the Continent he resided principally in London ; and it is clear that in the years 1836, 1837 and 1838, he had it in contemplation to purchase an estate in England. I think, therefore, that he must be taken to have made up his mind at this time that England should be his home, and to have so far carried that intention into effect as to have revived his domicile of origin, which, it is to be observed, at all times reverts with greater facility than a domicile which has been acquired. We have to consider, then, whether Mr. Matthews afterwards abandoned his English domicile and acquired a new domicile in Tuscany, and for this purpose we must examine his movements, his acts, his motives, his family, his fortune and his health, for all these considerations enter into or may enter into the question of his domicile. All these considerations are so intimately connected together that no just conclusion can, I think, be drawn without weighing their combined effect. The Appellant's argument, indeed, rested upon the effect to be attributed to Mr. Matthews'a state of health, as influencing his motives and his acts. We must deal with the subject, therefore, as a whole, and not with reference to its separate parts. Before the year 1838, and as early, it would seem, as the year 1836, Mr. Matthews had been attacked by disease, probably of the spine, which it appears he had injured. In the month of January 1838 his wife died at Worthing, and her death was immediately followed by [17] a fresh attack of his disease. Shortly after this attack he seems to have left Worthing, and after spending some months in Bath and London, to have determined on going abroad, under the impression (as Mr. Turner, who was his solicitor and most intimate friend, has stated in his affidavit) that travelling, the baths in Germany, or a warmer climate might restore him to health. He left England in June or July 1838, travelled in Germany till...
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