Succession duty. and legacy duty distin Leaseholds for years, and legacies charged on or payable out of Chap. XX. moneys to arise from the sale or mortgage of land, are not now subject to legacy duty, but are subject to succession duty.1 The object of the Acts imposing probate duty, now "estate Probate duty duty," is to tax the property to which title is given or perfected by the letters of administration or by the probate, and to levy that tax prior to administration; while the object of the imposition of legacy duty is to tax the property actually taken by the successors of the deceased and to levy that tax at the time when the enjoyment accrues.2 guished. Domicile. "Domicile" is popularly used in the meaning of the place where Domicile. a man lives or where he has his home. The various meanings in which the word is used in law, whether for ascertaining rights of succession, rights of belligerents, the forum of jurisdiction, or trading privileges, are closely connected with the idea of home. When the word is used with reference to questions of succession, "the domicile of a person is the place where he has his true fixed permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning (animus revertendi)." When used in this meaning, domicile must be distinguished from "residence," for a man may have several residences, though he can have but one domicile, and, as an infant has the domicile of his parents, it is possible for a person to be domiciled in a place in which he has never resided or even been.1 "Domicile," as applied to cases of succession, may mean (1) domicile of origin, or (2) domicile by operation of law, or (3) domicile of choice. 1. The domicile of origin of a legitimate child is the domicile 1. Domicile of origin. of his father; of an illegitimate child (and probably of a posthumous child) is the domicile of his mother at the time of his birth. If a child is born while his parents are temporarily absent from home, the place of his birth is not his domicile of origin.6 116 & 17 Vict. c. 51, s. 19; 51 & 52 Vict. c. 8, s. 21 (2). 2 Blackwood v. The Queen, 8 App. Cas. 90. 3 Story, Conflict of Laws, § 41. See Re Craignish, [1892] 3 Ch. 180. Walcot v. Botfield, Kay, 534. 5 Udny v. Udny, L. R. 1 H. L. Sc. 441. See Re Craiguish, [1892] 3 Ch. 180. 6 Story, Conflict of Laws, § 46. Chap. XX. 2. Domicile by operation of law. Wife. Infant child. 3. Domicile of choice. 2 2. By marriage it becomes the duty of the wife to live with her husband, and therefore she acquires his domicile, not only as a matter of law, but, if she lives with him, as a matter of fact her domicile changes with his, and she is unable during the coverture to acquire a domicile different from his, even if she is living apart from him under the provisions of a separation deed. On the other hand, if her husband has ceased to have the right to control her actions owing to her having been divorced a vinculo matrimonii, she can acquire a domicile different from his; but it is doubtful whether a divorce a mensâ et thoro, or a judicial separation under 20 & 21 Vict. c. 85,6 enables her to acquire a domicile different from his. In like manner, the father of a legitimate infant child has the right to control its actions, and therefore the domicile of such a child changes with that of its father. After the death of the father, the domicile of an infant child generally, but not necessarily, changes with that of the mother if the child is living with her, until she re-marries ; the mother has the power to change the domicile of the child by changing her own, but may refrain from exercising that power. The question is hardly settled whether a guardian has the power of changing the domicile of his ward.9 3. A person sui juris may change his domicile whenever and as often as he likes, but in order to change his domicile he must not only intend to do so, but he must actually do so. In other words a new domicile, called domicile of choice, is acquired by the combination of residence and the intention to permanently reside in a given country, but not otherwise. There may be some doubt whether it is not also necessary that the person should have the intention of incorporating himself with the population of the 1 Dalhousie v. M'Douall, 7 Cl. & F. 2 Turner v. Thompson, 13 P. D. 37 ; 3 Warrender v. Warrender, 2 Cl. & 5 Williams v. Dormer, 2 Rob. 505. 6 Dolphin v. Robins, 7 H. L. C. 390. 7 Sharpe v. Crispin, L. R. 1 P. & D. 611; Re Craignish, [1892] 3 Ch. 180. 8 Potinger v. Wightman, 3 Mer. 67; 17 R. R. 20; Johnstone v. Beattie, 10 Cl. & F. 138; 59 R R. 23; R: Beaumont, [1893] 3 Ch. 490. 9 Potinger v. Wightman, sup.; Douglas v. Douglas, 12 Eq. 625; Story, Conflict of Laws, § 505. country where he takes up his residence, so that the application of Chap. XX. its law to him is in accordance with his wishes.1 The domicile of choice continues until another domicile has been acquired.2 dors. The domicile of an ambassador or chargé d'affaires, and of Ambassathe members of his suite, or of any person in the civil or Public military service of the Crown, is not changed by his service servants. abroad.3 It also appears that an officer who is not employed, but is liable to be employed, cannot acquire a foreign domicile. On the other hand, a person entering into the public service of a state in which sailors. he is not domiciled, probably acquires a domicile there. A person Soldiers and domiciled in the King's dominions does not change his domicile by entering the navy or army." A person who is not sui juris cannot change his domicile of his Persons not own accord. In particular, an infant cannot do so.7 sui juris. For instance, Questions relating to domicile must be carefully distinguished from those relating to allegiance or naturalization. 66 tion, a British subject may be domiciled in America and naturalized in France. Allegiance" is a faith that the subject owes to the Allegiance. Crown, so that the phrases "to owe allegiance to the King" and "to be a British subject" mean the same thing. Natu- Naturalizaralization is where an alien becomes a British subject.9 A person born a British subject could not formerly throw off his allegiance, but the Naturalization Act, 1870, enables him to do so where, on his birth, he became a subject of a foreign state as well as a British subject; and under the same Act a British subject who, while resident in a foreign state and under no disability, becomes naturalized there, ceases to be a British 1 Moorhouse v. Lord, 10 H. L. C. 272; Re Martin, [1900] P. 211; Re Johnson, [1903] 1 Ch. 821 Westlake, Private International Law, p. 304. 2 Urquhart v. Butterfield, 37 Ch. D. 357; Udny v. Udny, L. R. 1 H. L. Sc. 441; Moorhouse v. Lord, sup. 3 Douglas v. Douglas, 12 Eq. 617; Att.-Gen v. Napier, 6 Ex. 217; Brown v. Smith, 15 Beav. 444; Att.-Gen. V. Pottinger, 6 H. & N. 733; Sharpe v. Crispin, L. R. 1 P. & D. 611. Hodgson v. Beauchesne, 12 Moo. P. C. 285. 5 Ommaney v. Bingham, cited in Somerville v. Somerville, 5 Ves. 757; 6 Brown v. Smith, 15 Beav. 444; 7 Urquhart v. Butterfield, 37 Ch. D. 357; Somerville v. Somerville, 5 Ves. 787; 5 R. R. 155. 8 Udny v. Udny, L. R. 1 H. L. Sc. 441 Haldane v. Eckford, 8 Eq. 631; Abd-ul-Messih v. Farra, 13 App. Cas. 431. Naturalization Act, 1870 (33 & 34 Chap. XX. subject, but has the right to remain a British subject on making the prescribed declaration. This provision does not empower a British subject to become naturalized in an enemy state at war with this country.2 Republication. The reader is referred to the author's work on Real Property for the methods of reviving a revoked will, a process which is often, though incorrectly, called "republication." 1 Ib. ss. 4, 6. See, as to British subjects post, p. 408. 2 Rex v. Lynch, [1903] 1 K. B. 444. 3 M. L. R. P. 402, 405. CHAPTER XXI. PERSONS UNDER DISABILITY. Married Women-Infants-Lunatics-Aliens. Married Women.1 Statutes. THE position of a married woman in respect of personal pro- Chap. XXI. perty is to be considered (1st), as it was defined by the common Common Law law; (2ndly), in respect of the rights given to her in equity by -Equitymeans of trusts of property to be held for her separate use; and (3rdly), in respect of the proprietary rights conferred by modern statutes, viz., The Married Women's Property Acts, 1870, 1882,3 and 1893.* (1.) At common law the marriage is an absolute and unqualified gift to the husband of all chattels personal of the wife in possession in her own right, whether belonging to her at the time of the marriage or acquired subsequently during the coverture, and whether he survives her or not. The property is divested out of the wife and vested in the husband only: he may dispose of it in his lifetime or by his will, and it passes to his executors or administrators as part of his personal estate. The effect of marriage on the wife's chattels personal in possession was a consequence of the doctrine that, for most purposes, "husband and wife are but one person in law."6 1 See, as to real estate, M. L. R. P. 121 et seq. It is not practicable within the limits of this work to give more than an outline of the proprietary rights of married women in personal property; for further information on the subject the reader is referred to the text books specially dealing with it, which must also be consulted as to the contractual obligations of married women, and other matters outside the scope of this treatise. As to the history of the law of England 5 with respect to married women's pro- 233 & 34 Vict. c. 93. 4 56 & 57 Viet. e. 63. 5 Co. Litt. 351b; Purdew v. Jackson, 1 Russ. 59, 65. 6 Litt. s. 291. See Kenny on Married Women, pp. 7 et seq.; Phillips v. Barnet, 1 Q. B. D. 440, per Lush, J. The common law-chattels in possession. |