Hurley v Wimbush, Re Sillar

JurisdictionIreland
Judgment Date24 October 1956
Date24 October 1956
Docket Number[1954. No. 1496. 54.]
CourtHigh Court
[1954. No. 1496. 54.]
In re Sillar. Hurley v. Wimbush
In the Matter of the Trusts of the Will of GEORGE C. SILLAR, Deceased. HENRY DEREK HURLEYand Another
Plaintiffs
and
ANTHONY PATRICK WIMBUSH and WINIFRED BAVINGTON
Defendants.

Domicil - Domicil of choice - Sufficiency of evidence to establish change of domicil - Will - Intention of testator - Whether will to be construed according to Irish or English law - Child Whether child adopted in accordance with English law takes under gift to "child or children" of deceased nephews or nieces.

Summary Summons.

This was a summons brought for the purpose of determining whether George Cameron Sillar, deceased, was at the date of the execution of his will, the 14th March, 1949, and at the date of his death, the 2nd March, 1953, domiciled in Ireland or in England; whether his will should be construed in accordance with Irish law or English law; and whether a child adopted by a nephew who had pre-deceased the testator was entitled to the share of her deceased foster-father in the estate of George C. Sillar under the terms of the will of George C. Sillar.

The facts have been summarised in the headnote and appear fully in the judgment of Budd J., post. The deceased by his said will, after stating that he was "at present residing at St. Fintan's, Sorrento Road, Dalkey" and that he was "a British subject and domiciled in England,"and after making certain specific pecuniary bequests, directed that his executors should allow his servants to select "such of my household goods furniture and effects (but excluding jewelry and silver) to the value of one hundred pounds as they may wish to have" and bequeathed the residue of his property to certain named nephews and nieces in equal shares "provided always that if any of my said nephews and nieces die in my lifetime leaving a child or children living at my death then and in every such case the last-mentioned child or children shall take (and if more than one equally between them) the share which his, her or their parents would have taken in my residuary estate if such parent had survived me." The executors of the said will were all members of a firm of solicitors practising in Dublin. In codicils to the said will dated respectively the 4th January, 1950, and the 22nd August, 1952, the testator repeated the words, "at present residing at St. Fintan's, Sorrento Road," and by the latter codicil he substituted as an executor another solicitor, practising in Dublin, in place of one of the persons originally appointed as an executor of his will who had died during the lifetime of the testator.

G. C. S. was born in Shanghai in the year 1856 of English parents. He went to England in 1860 where he was educated and continued to reside until 1905, when he came to Ireland to assist in the management of a business during the last illness of his brother-in-law. After the death of his brother-in-law in the year 1905 he continued to manage the business and to reside in Ireland. The business was sold in 1941, and thereafter the deceased continued to reside in Ireland until his death in 1953. He resided in a rented house at Dalkey, Co. Dublin. He was a member of the Dublin Chamber of Commerce and of a social club in Dun Laoghaire. He was also a member of the Institute of Electrical Engineers in London, King's College School Club, and a golf club in Surrey. In the year 1942 G. C. S. declared himself to be "a domiciled Englishman" and further declared that he had never abandoned his English domicil, it being his intention to return to England when circumstances permitted. In his will dated the 14th March, 1949, G. C. S. described himself as a British subject, domiciled in England and resident in Ireland. He took out an Irish passport in 1931 and renewed it in 1941. He had a British passport which was valid from 1946 to 1951. By his will he left his residuary estate to certain named nephews and nieces in equal shares, and provided that the share of any such nephew or niece who pre-deceased him should go to the child or children of such nephew or niece living at the death of the testator. One of the nephews died in 1953 without issue, but in the year 1946 had adopted a child in accordance with English law.

Held by Budd J. 1, G.C.S. was domiciled in Ireland at the date of the making of his will and at the date of his death.

2, The testator not having indicated an intention that his will should be construed according to English law it should be construed in accordance with Irish law.

3, Applying the general rule that the words, "child or children," appliesprima facie to a legitimate child or children the words, "child or children,"as used in the will did not apply to an adopted child.

Cur. adv. vult.

Budd J. :—

By his will dated the 14th March, 1949, the late George

Cameron Sillar after making several other bequests left his residuary estate to his nephews and nieces the surviving children of his sister, Helen Margaret Wimbush, naming them individually, in equal shares. He also provided that if any of his said nephews and nieces should die in his lifetime leaving a child or children living at the death of the testator such child or children should take the share his or her parent would have taken in the residuary estate, if such parent had survived him. He made two codicils to his will, dated respectively the 4th January, 1950, and 22nd August, 1952, whereby he made certain variations to his will, which are not relevant to the matters I have to consider, but otherwise confirmed the provisions of his will. He died on the 2nd March, 1953, and his will and codicils were duly admitted to probate,

One of the testator's nephews, Rupert Montgomery Wimbush, predeceased the testator on the 31st January, 1953. He died without issue but he and his second wife, Catherine Ena Wimbush, had on the 11th day of November, 1946, adopted the defendant, Anthony Patrick Wimbush, in accordance with the provisions of the English Adoption of Children Act, 1926.

The object of these proceedings is to have it determined whether or not Anthony Patrick Wimbush is entitled to the share of the testator's residuary estate bequeathed to Rupert Montgomery Wimbush and, if not, does the said share in the testator's residuary estate devolve as upon the intestacy of the testator. A number of subsidiary questions are involved but counsel suggested that it would be convenient and save expense if I were first to deal with three specific questions. These are, first, what was the testator's domicil at the date of his will and at the date of his death? It is agreed that there is no relevant fact which would justify any different conclusion being come to between these two dates. Secondly, assuming the testator to have been domiciled in Ireland, has he nevertheless indicated in his will that he intended English law to apply to the construction of his will? Thirdly, as to whether upon the true construction of the testator's will, his reference to the "child" of a deceases nephew should be construed as referring to an "adopted" child, that is, the defendant, Anthony Patrick Wimbush. Counsel, who represent between them all interested parties, agree that for the purposes of determining the last matter I may proceed on the basis that English and Irish law are similar.

"Domicil," said Lord Cranworth in Whicker v. Hume(1),

"meant permanent home, and if that was not understood by itself, no illustration would help to make it intelligible."While many factors have to be considered in most cases relating to domicil, I cannot help feeling that at times, in the welter of argument and citation of case law, that simple elementary proposition is in danger of being forgotten. The testator's domicil of origin persists until it is shown to have been abandoned and that another domicil has been acquired. In the words of Black J., with whom Sullivan C.J. and Murnaghan J. agreed, in In re Joyce; Corbet v. Fagan(1), "now, whatever difference of view may be possible on any other aspect of the law of domicil, one principle at least is beyond doubt, namely, that the domicil of origin persists until it is proved to have been intentionally and voluntarily abandoned and supplanted by another." A domicil of choice is acquired by residence (factum) coupled with an intention to reside permanently or indefinitely (animus manendi). Per Lord Westbury inUdney v. Udney(2):—"Domicil of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntary his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time." He adds later:—"It is true that residence originally temporary, or intended for a limited period, may afterwards become general and unlimited, and in such a case so soon as the change of purpose, or animus manendi, can be inferred the fact of domicil is established."

One of the most difficult questions that arises for decision in domicil cases is that as to whether the intention to reside permanently has been proved to exist or not. Long residence is of great importance but it may be explained away, as, for example, in a simple case of a person staying abroad for business reasons for a long period but always with the intention of ultimately returning "home" to the country of his domicil of origin. As was pointed out in Bowie v.Liverpool Royal Infirmary(3) the "quality" or "the colour and characteristics" of the residence must be considered. Black J. in In re Joyce; Corbet v. Fagan(1) analysed three cases in which long residence was held insufficient.Bowie's Case(3) was one of them and I shall refer to it later.Winans v. Attorney-General(4) was, for reasons which I feel few would quarrel with, described by the learned judge as a border-line case. There was a marked difference of judicial opinion in that case and I do not find any particular analogy of facts which would assist me. The last,

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