Moffett v Moffett

CourtCourt of Appeal (Ireland)
Judgment Date18 November 1920
Docket Number(1911. No. 537.)
Date18 November 1920


(1911. No. 537.)
Moffett v. Moffett

Domicil of origin - Abandonment - Acquired domicil - Onus of proof - Evidence.

Memorandum from the Chief Clerk adjourned into Court.

The following statement of facts is taken from the judgment of Powell J.:—

In the year 1859 William Moffett, senior, became an officer in the British Army, and about that time went with his regiment to be quartered at Grahamstown. In 1861, while at Grahamstown, he was discharged from the army. In 1864 an illegitimate son was born to him—William Armstrong Moffett—of whom the mother was one Elizabeth Anne Hastings Cleary. In 1867 William Moffett, senior, married Elizabeth Anne Hastings Cleary, and thus, according to the law of the country in which he then resided, his son William Armstrong Moffett became legitimate. In 1868 he went to Hopetown, and stayed there until 1878, during which time he was in the employment of a land surveyor. In 1878 he went to Newings Trading Station. He married his second wife on the 21st October, 1879, by whom he had several children. In 1881 he joined a volunteer force for

the defence of Gatsburgh, then besieged by natives, and received a commission as Lieutenant. In August, 1884, he was at Cala, where he acted as a messenger to the Court of the Resident Magistrate. Thereafter he opened a store at Clutha, in what is now known as the Elliott District, where he died on the 16th July, 1893.

Thomas Benjamin Moffett, a son of William Moffett, senior, by his second marriage, in an affidavit said that his father always regarded himself as of Irish domicil, and intended if he came into Irish property to return there. He says he had several conversations with him on this subject.

Elizabeth M. Moffett, who was the second wife of William Moffett, senior, made an affidavit in which she said that prior to and during her marriage to William Moffett, senior, he always claimed that he was returning to Ireland to his home, and that she was to go with him; that he sought and obtained the consent and approval of his relatives in Ireland for his marriage to her, and she says that his object in doing this was to smooth over previous troubles into which he had got himself with them, so that they should be welcomed when they arrived home; that her husband could not save or make sufficient money for the expenses of the journey, and she attributes this to the fact that he was trained as a soldier, and was incompetent in trading or commercial concerns; that during the whole of the period of her married life from 1879 to 1893, when he died, her husband always spoke to her of his return to Ireland, and that he also spoke to Thomas Benjamin Moffett, the eldest son of his marriage with her, on the subject of his domicil, which he always claimed was Ireland; that he acquired no immovable property in South Africa or other interest of a permanent nature, and that at no time did he live in Natal, but always resided in the Cape Province, formerly called the Cape of Good Hope.

Peter Morris made an affidavit, in which he stated that he came to Cala, Cape Province, South Africa, in the month of May, 1892, where he has since resided, and that he then became acquainted with the late William Moffett, senior; that in the year 1893, in his hotel in Cala, he heard William Moffett, senior, request one Purcell, a doctor of medicine, to examine him, as he did not feel well; that Dr. Purcell asked William Moffett, senior, to state the symptoms of which he complained, whereupon William Moffett, senior, said that the doctor should make that out for himself; that Dr. Purcell then remarked that the symptoms should be told to him, as he was not a "vet," and that William Moffett, senior, then said, "My Irish doctors will soon find out what is wrong with me." Deponent says that he understood from this, and other general circumstances, that William Moffett, senior, meant that he had decided soon to return to Ireland.

William Henry Hammond, in his affidavit, said that he had resided in Cala since 1885, and was well acquainted with William Moffett, senior, whom he knew from the year 1886 and onwards. That in the years 1886 and 1887 William Moffett, senior, also resided in Cala, and he says, "I gathered from conversations with him, and from his conduct generally, that he desired to return to his people in Ireland."

The persons interested in the question raised by the memorandum were the defendant, Thomas Benjamin Moffett, and his brothers, the children of the second marriage of William Moffett, and the defendant, William Eddleston Moffett, the eldest son of William Armstrong Moffett, the son of William Moffett, born prior to his marriage with his first wife, Elizabeth Anne Cleary. The legitimacy of William Armstrong Moffett depended upon whether the domicil of his father was South African or Irish. An affidavit of William R. Bisschop, LL.D., barrister, was filed, who deposed that by the Common Law prevailing in Cape Colony in 1864 and 1867 legitimacy of children born out of wedlock took place by the subsequent marriage of the persons who procreated them.

W. M., whose domicil of origin was Irish, and who was an officer in the British Army in the year 1859, was sent with his regiment to Grahamstown, Cape Colony, South Africa. In 1861, while at Grahamstown, he was discharged from the army. In 1864 a son was born to him, the mother of whom he married in 1867, and, if he were domiciled in Cape Colony, he would thereby have legitimated his said son. In 1879, his first wife having died, he married secondly, and in 1887 made a joint will with his second wife in form in use in Cape Colony. He continued to reside from 1859 till his death in 1893 in South Africa. Evidence was given that W. M. had spoken of his desire to return to Ireland, and of doing so when his financial position had improved.

Held, by Powell J. on the facts, that W. M. had abandoned his Irish domicil, and was in 1864 domiciled in South Africa.

The decision of Powell J. affirmed by the Court of Appeal (1).

Powell J. :—

The question which I have to decide is whether William Moffett, senior, who had an Irish domicil, lost that domicil and acquired a domicil in South Africa. [The learned Judge referred to the facts as above, and continued:—] Mr. Wilson contended that William Moffett, senior, never lost his Irish domicil. He cited the case of Winans v. Attorney-General(1) as an authority for the proposition that the onus of proving that a domicil has been chosen in substitution for a domicil of origin lies upon those who assert that the domicil of origin has been lost. The domicil of origin continues, unless a fixed and settled intention of abandoning the first domicil and acquiring another as the sole domicil is clearly shown.

Mr. Winans was born in the United States in 1823. In 1859 he came to London, and lived there in various places until his death in 1897. By his will he bequeathed an annuity to a relative, and the question in the appeal was whether he was at his death domiciled in England. If he was, legacy duty was payable; otherwise not. The Attorney-General having filed an information against the appellants, who were the executors, to recover the duty, Kennedy and Phillimore JJ. held that the testator was at his decease domiciled in England, and that the duty was payable. This decision was affirmed by the Court of Appeal (Collins M.R. and Stirling and Mathews L.JJ.). The arguments turned entirely on the true inference of fact to be drawn from the evidence, which is fully stated in Lord Macnaghten's judgment. The case was heard in the House of Lords by the Earl of Halsbury and Lords Macnaghten and Lindley. Lord Halsbury, referring to this question of domicil, said that so far as it was a question of law it was simple enough to state, but that when the law has been

stated a difficult and complex question of fact arose which is almost always very hard to solve. He referred very briefly to the facts, and said that he was not able very confidently to answer the question as to the determination of Mr. Winans either way. Like all questions of fact, it depended upon a variety of smaller facts. It is impossible, he says, to treat this or that evidence as conclusive, and different minds will attribute different degrees of importance to the same facts; and he said that the conclusion he had come to was that he could not say that he had come to a satisfactory conclusion either way; but then, he says, the law relieves him from the embarrassment which would otherwise condemn him to the solution of an insoluble problem, because it directed him in such a state of matters to consider upon whom is the burden of proof. He said that undoubtedly the burden of proof was upon the Crown, and that as he could not bring himself to a conclusion...

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