Mary Seymour Munro, - Appellant; George Munro, and Charles Munro his Son, - Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 10 August 1840 |
| Date | 10 August 1840 |
| Court | House of Lords |
English Reports Citation: 7 E.R. 1288
House of Lords
Mews' Dig. vii. 664; viii. 231; S.C. 1 Robin. 492. See cases cited under last preceding case, and also Harvey v. Farnie, 1880, 5 P.D. 161; In re Patience, 1885, 29 Ch.D. 983; In re Grove, 1888, 40 Ch.D. 224, and Westlake Priv. Int. Law, 3rd ed. 90.
[842] MARY SEYMOUR M.IWRO,-Appellant; GEORGE MUNRO, and CHARLES MUNRO his Son,-Respondents f [March 17, 19, 23, 24, 26, 30; August 10, 1840]. [Mews' Dig. vii. 664; viii. 231; S.C. 1 Robin. 492. See cases cited under last preceding case, and also Harvey v. Farnie, 1880, 5 P.O. 161; In re Patience, 1885, 29 Ch.D. 983; In re Grove, 1888, 40 Ch.D. 224, and Westlake Priv. Int. Lair, 3rd ed. 90.] A Scotch gentleman of rank and fortune left Scotland in 1794, and came on a visit to London. In the course of that year he became acquainted with an English lady. In 1795 he took lodgings for her in London, where, in 1796, a child, the fruit of their intercourse, was born. He then took a house on lease and furnished it, and continued to reside in that house with her till 1801, unmarried. In September of that year he married her in an English church. In 1802 he returned to Scotland, taking with him his-wife and child, and settled himself in his patrimonial mansion. During the whole period of his * The case immediately following was argued about the same time; and as it involved the same points of law (though the facts in the two case* varied from each other), both were considered and adjudicated upon together. The judgment in both will be found at the conclusion of the arguments in the next case. t See the head notes to Dalhousie v. M'DouaU, ante, p. 817. 1288 MUNRO V. MUNRO [1840] VII CLARK & FINNELLY. residence in London he had been accustomed to write letters to Scotland, declaring from time to time his immediate intention ten return, and desiring things to be done which could only be necessary on that account.-Held, that he had not lost his Scotch domicile, and therefore that his marriage was in all respects a Scotch marriage, and his child capable of succeeding as his lawful heir to entailed estates. This was an action of declarator of legitimacy, brought by the Appellant for the purpose of establishing that she was the lawful daughter of Sir Hugh Munro, of Fowlis, bart., and as such the heiress of entail entitled to succeed to the estates of Fowlis. Sir Hugh held those estates under an entail to him and the heirs male, and failing heirs male, then to the heirs female of his body. The Respondents, in the event of failure of heirs of the body of Sir Hugh, would succeed to the estates. Sir Hugh Munro succeeded on the death of his father, in 1781, to the estates at Fowlis, and to the; dignity of a baronet, but was then under age: he attained his full age in 1784. He took an active share in the management [843] of his own estates, and was frequently an attendant at the sittings of the town council of Fortress, to' which he was admitted a member soon, after becoming of age. In 1785, 1787, and 1788, he visited the Continent, but always returned to Scotland, where he resided, not at the family mansion, Fowlis Castle, but at Ardullie, a house belonging to his mother. He resided with her till 1794, when, in consequence of some differences with her, he left Scotland professedly on a short visit to London. In November of that year he became acquainted with a Miss Mary Law in London, and an attachment arose between them. In October 1795, her pregnancy being declared, he took apartments for her in Balsover-street, Oxford-street, where, on the 14th of May 1796, the Appellant was born. He afterwards took a house on lease in Gloucester - place, Portman - square, where he and Miss Law resided together till 1801. In September of that year he married her at the parish church of St. Mary-le-bonne, according to the form of the ritual of the church of England. He continued to reside in, London for some months after his marriage, but then broke up his establishment in Gloucester-place and went to Scotland, and there introduced his, wife and daughter to his friends and connexions. In August 1803, Lady Munro and two female attendants, were drowned while bathing on the shore near Fowlis Castle. As some rumours had been raised of the legal incapacity of Miss Munro- to- succeed as heiress to' the entailed estates, the suit for declarator was brought to determine that question. The conclusion of the summons was, that " it should be found and declared that the pursuer, the said Miss Mary Seymour Munro, as lawful daughter, and at present only lawful child, of the said Sir Hugh Munro', is entitled, [844] failing her'said father and heirs male of his body, to succeed to' the estate of Fowlis and others, in. virtue of the clause of destination and other clauses in the entail aforesaid; and that she has a vested interest therein, and jus crediti over the same, as heir female procreate of the body of Sir Hugh Munro." The Lord Ordinary (Coireho'use) reported the casei to' the Lords of the First Division of the Court of Session, by whom the other Judges were consulted. In this, as in the preceding case, the Lord President thought that the domicile of the father had nothing to do with fixing the status! of the child; but he was also of opinion, that if it had, then the domicile was altogether English, and therefore the child was indelibly impressed by the law of England with illegitimacy. Six of the other Judges thought the child legitimated by the subsequent marriage, on the ground that the domicile of the father was Scotch ; six others thought the domicile was English, and therefore that the Appellant was illegitimate. In accordance with the opinion of the majority of the Judges, a decree was pronounced relieving the defenders (the Respondents) from the conclusions of the libel. This was the decree now appealed from. Mr. Pemberton, for the Appellant: -The arguments here will be confined as much as possible to those points in which this case differs from that of Dalhousie v. M'Douall, and to those which the discussion in that case has suggested. The first distinction between, the two cases is to be found in the conclusion, of the summons, which in, the present case does not seek for a, declarator as to the status of the Appellant, but, according to the terms of the entail, prays that she may be declared entitled, a& persona designated, [845] as immediate heir in succession after the death of Sir Hugh, to the estate of Fowlis. If by the Scotch law the Appellant is the heir of Sir Hugh H.L. vii. 1289 41aVII CLARK & FINNELLT. MUNRO V. MUNRO [1840] Munro, she is entitled to have the judgment of the Court below reversed, and the declarator directed to be in her favour. The question of the domicile of Sir Hugh Munro, at the time of the birth of the Appellant and at the time of his marriage, is most important. All the circumstances here show it to have been a Scotch domicile. Six of the Judges were of opinion that it was an English, six that it was a, Scotch domicile; but all twelve agreed, that if the domicile was English, Miss; MunrO' was not entitled; if it was Scotch, she was entitled to the declarator prayed for. The thirteenth Judge, the Lord President, was of opinion that domicile had nothing to- do1 with the matter, which must be decided by the place of the birth of the child, and that that being English, the status of illegitimacy had indelibly attached itself to her. This case therefore is unprejudiced by anything which, has occurred in the Court below; and if this House should be of opinion that the domicile was Scotch, the course will be to affirm the judgment of the twelve Judges who1 thought that that would of itself entitle the Appellant to the declarator which she sought to obtain. It may now be assumed, for the purposes of this argument, that the place of the marriage is immaterial. The foundation of this Appellant's title is the domicile of Sir Hugh Munro, her father. If that is Scotch she is entitled toi what she asks. The principle is laid down very clearly in the case of Somerville v. Somerville (5 Ves. 750), where it was held that the mere place of birth or death does not constitute the domicile, the [846] domicile of origin, which arises from birth and connexions, remaining until clearly abandoned and another taken. The Master of the Bolls there said (5 Ves. 787), " The third rule I shall extract is this, that the original domicile, or as it is called, the forum oriffinis,or domicile of origin,is to prevail until the party has not only acquired another, but has manifested and carried into execution an intention of abandoning his former domicile and taking another as his sole domicile." In England, the domicile of a family follo'ws that of the father; his domicile is that of his family. We propose here to show by the evidence that Sir Hugh was clearly by domicile of origin Scotch; that he retained that without interruption or doubt until 1794; that when he left Scotland in that year he did so with no intention of abandoning his Scotch domicile, but merely to pay a visit, as any other gentleman might do', to another country, and to return at the end of his visit; that though he remained in England from 1794 to 1802, he had never any intention of abandoning his Scotch domicile, but looked on himself and required others to- look upon him as a person who was temporarily absent from his home, but who, though constantly prevented from executing his intention, had the most settled intention of speedily returning to ii. On attaining his full age in 1784, the first thing he did was to make use of his newly-acquired power, in order to sever the only tie he had with England. He had succeeded to the estate of Woodlands in Dorsetshire; his father got that estate through Sir Hugh's grandmother. His father died indebted., The. Scotch estates were equally liable...
To continue reading
Request your trial
-
Re Joyce; Corbet v Fagan
... ... In the matter of the Estate of GEORGE JOYCE,Deceased; MARY CORBET ... Plaintiff ... , on the 29th April, 1873, being a younger son of Walter Joyce, the representative of a landed ... was expressed by Lord Cottenham in Munro v. Munro (1) as follows:—"The domicil of ... ...
-
Hoskins v Matthews
...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); ......
-
Moffett v Moffett
... ... In 1864 an illegitimate son was born to him—William Armstrong Moffett—of ... In King v. Foxwell (1) Sir George Jessel says: "What is domicil? I had had before ... ...
-
Walker v Lord Lorton
...Waterhouse v. StansfieldENR 9 Hare, 234. Yates v. ThompsonENR 3 Cl. & Fin 544. Duncan v. CampbellENR 12 Sim. 416. Murray v. MurrayENR 7 Cl. & Fin 842. Munro v. DouglasUNK 5 Mad. 379. Ross v. Ross 4 Wills. & Sh. 189. Warrender v. WarrenderENR 1 Cl. & Fin. 488. Tidd v. Lister 3 De G., M'N. & ......