Davis v Adair

• Jurisdiction: Ireland
• Judgment Date: 14 February 1895
• Date: 14 February 1895
• Docket Number: (1893. No. 67.)
• Court: Court of Appeal (Ireland)

Davis

and

Adair (1).

Appeal.

(1893. No. 67.)

CASES

DETERMINED BY

THE CHANCERY AND PROBATE DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE COURT OF BANKRUPTCY IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1895.

Domicil — Change of domicil of origin — Permanence of residence — Declaration of intention.

The domicil of origin will be presumed to continue until a new one is acquired. To effect a change for such a purpose there must not only be a change of residence but an intention to abandon the former domicil and acquire another. Long continued residence is strong evidence of intent to change the domicil, but alone and unaccompanied by the intent, will not effect the change. The question is, in all cases, a question of fact to be determined by the particular circumstances of each case.

Under the will of her husband E. C. D., the plaintiff was entitled to the income of the residue of his property for her life so long as she continued unmarried. The plaintiff was born in London of English parents in 1835, and went with her parents to America, when she was three years old. In 1858 she married E. C. D. who was born in Dublin of British parents, and who had gone to America in his infancy. At the date of the marriage he was a wine and spirit merchant in New York in partnership with his father. In 1858 the partnership was dissolved, and the father in 1859 returned to Dublin, where he took a lease of some property and built some houses. E. C. D. returned to Dublin in 1864 with his wife, and lived there till his death in 1871. The

plaintiff continued to reside in Dublin with her mother-in-law until the death of the latter in 1881, and for a year afterwards. The plaintiff then travelled for about five years, and had not any fixed abode. In 1887 she went to reside in the house of M. in New York, who had married her sister and was a widower, and she resided there for four years until the last of his daughters was married in 1891.

M. was born in London in 1827 of English parents. In 1852 he went to New York as agent for his father's business, that of a merchant in London; he visited England every year. In 1858 he married a sister of the plaintiff. He purchased a house and some land in Staten Island near New York, and he afterwards added to it by further purchases; he also bought a fishing in Canada, where he went every year. He refused to become a naturalized citizen of the United States, and he frequently expressed the intention of returning to England as soon as he had made his fortune. His wife died in London in 1884. In 1888 he retired from business, and sold most of his property in America; and on the 24th June, 1891, he married the plaintiff in New York, where a marriage with a deceased wife's sister is lawful. In 1892 he bought a property in the county of Surrey:—

Held, (affirming the decision of Porter M.R.), that the plaintiff and M, were both on the 24th June, 1891, domiciled Americans, and that the marriage was a valid marriage.

By his will, dated the 1st December, 1868, Edward Campbell Davis, bequeathed all the residue of his personal estate to S. N. Lane, and G. Sykes (whom he appointed trustees and executors), upon trust for conversion, and the testator directed that the trustees should stand possessed of one moiety of the residue upon trust for his wife, Emily Davis, or her assigns, “so long as she should live his widow and unmarried,” and “after her decease or future marriage” upon the trusts thereinafter declared; and as to the other moiety for his cousin Charles Joseph Howard, for life; and subject as aforesaid, as to all his residuary personal estate, in trust for the children of the said C. J. Howard as he should appoint; and in default of appointment, amongst such children equally; but in case there should be no person who should become entitled to his residuary personal estate under the aforesaid trusts (an event which happened), the testator bequeathed the same to the Governors of the King's Hospital, Oxmantown. The testator further directed that in case the said Charles Joseph Howard should predecease the testator's wife without leaving issue who should be entitled to his residuary estate under the trusts aforesaid (an event which happened), the moiety of the income of the residuary personalty given to C. J. Howard should be paid to the testator's wife, “while she continued his widow and unmarried and no longer.”

The testator died on the 1st January, 1871; C. J. Howard died on the 19th September, 1870, a bachelor; S. N. Lane died on the 1st February, 1878; and G. Sykes, being desirous of being discharged from the trusts of the will, by indenture dated the 8th April, 1884, S. F. Adair and R. O. Armstrong were appointed trustees of the will in his stead.

On the 24th June, 1891, Mrs. Emily Davis married her brother-in-law, James M'Andrew, at Middletown, in the State of New York, they being as they alleged both British subjects, and since then Adair and Armstrong refused to pay the income of the residuary personal estate to Mrs. M'Andrew. The action was brought by Emily Davis against them and the Governors of the King's Hospital for a declaration that she was entitled to it. The Governors of King's Hospital, by their defence, pleaded that the marriage was a valid marriage, and they denied that M'Andrew and Mrs. Davis were British subjects.

The plaintiff, whose maiden name was Emily Cuthbertson, was born of English parents in London, in 1835. When she was three years old, her parents and their family went to reside in New York, where her father acquired a residence on Staten Island; he had a business in New York, brought up and educated his children there, and lived and died there. In 1858 she married Edward Campbell Davis. He was born in 1835. in Swift's Hospital, in Dublin, where his uncle was a resident physician. John J. Davis, his father, had gone to America shortly before E. C. Davis was born, and his wife and child went out to him in 1835. John J. Davis, who had obtained an order of naturalization as an American citizen dated the 5th April, 1844, carried on the business of a wine and spirit merchant in New York, at first by himself and afterwards in partnership with his son, Edward Campbell Davis. On the 29th June, 1858, he dissolved partnership, and in 1859 he returned to Dublin. He took a lease of some property in Rathmines, in the county of Dublin, where he built a number of houses, and he died on the 7th February, 1864.

On the 30th June, 1858, Edward Campbell Davis formed a new partnership to carry on the business, and he continued to carry it on till he returned to Ireland with his wife in 1864. On the 15th June, 1864, he filed a cause petition in the Court of Chancery in Ireland to administer the assets of his father, whom he described as domiciled in Dublin; legacy duty was paid on his assets. E. C. Davis died at Rathmines, a suburb of Dublin, in 1871, and after his death, his widow (the plaintiff) lived at Rathmines with her mother-in-law, Mrs. Anne Davis, till the death of the latter on the 22nd April, 1881. After that date the plaintiff lived in Dublin for a year, when she sold off all the chattel property, and then she travelled about for some time, paying visits to her mother and sister. In 1884 she was at Geneva with a sister, and in May, 1884, she was with her sister, Mrs. M'Andrew, in London, who died there. In 1885 she paid a visit to James M'Andrew in New York, who had been married to her sister, and who was then a widower. From 1887 till 1891 she resided with James M'Andrew, and kept house for him. He had three daughters, one of whom died, another married a resident in New York, and the third married a resident in London early in 1891. After that the plaintiff left New York and came to Dublin, where she entered into negotiations with the Governors of the King's Hospital, for the purpose of selling to them the life estate devised to her by the will of her husband, but after some correspondence this endeavour failed. She then returned to New York, in June, 1891, when James M'Andrew, who had been in Canada, came down to New York, and on the 24th June a marriage was celebrated between them according to the form of the Protestant Episcopal Church.

James M'Andrew was born in Camberwell, London, in 1827. In 1852 he went to America and settled in New York as an agent for his father's business, a London firm. In 1858 he married Julia Cuthbertson, a sister of the plaintiff's. Between 1852 and 1858 he frequently crossed to England and spent a month or two, on a visit, and also after his marriage he followed the same practice, and visited England every year. His wife died in 1884, in London. He purchased a house and some fee-simple lands on Staten Island about six miles from New York, and he added to these by buying up adjoining land. He rented a factory in New Jersey, where he carried on the manufacture of emery; he also traded largely in liquorice paste. He bought a shooting and fishing in Canada, where he went for recreation every year: he had expended between £15,000 and £20,000 in the purchase of fee-simple property in the States. He finally retired from business in 1888, and sold his business premises except the emery factory. His daughters were born and educated at his residence in Staten Island, some of them were married there, and one died and was buried in New York. He had refused to become a naturalized citizen of the United States, although pressed to do so at the time of the Civil War; and he had obtained in 1876 a private Act of the Senate of the State of New York to enable him to hold freehold property in America, a proceeding which was necessary only in the case of a foreigner. Since his second marriage he had bought a property in England for £20,000 and had brought over his property and stored it till his new house was ready. James M'Andrew in his evidence stated that his intention always was to return to England, and evidence was given...