Scottish Court of Session Decisions

Thomas Bennet Clark, C.A., judicial factor on the estate of the late W. T. Crumpton, pursuer and real raiser, brought an action of multiplepoinding and exoneration against John Arthur Douglas Finch-Noyes and Mrs Gwladys Dorothy Mabel Finch-Noyes or Moore, defenders and claimants, and others.

The defenders and claimants, who were the children of Mrs Jessie Cadien or Crumpton, mother of the late William Thomas Crumpton by her second husband, Major Augustus Finch-Noyes, and therefore half-brother and half-sister uterine of the late William Thomas Crumpton, lodged a claim in which they averred that the domicile of origin of the late William Thomas Crumpton was in Barbadoes, and that that was his domicile at the date of his death; that by the law of Barbadoes they as his next-of-kin were entitled to succeed to his whole moveable estate, which was the fund in medio, and on that footing claimed the whole of his moveable estate; and alternatively, if his succession fell to be regulated by the law of Scotland, they claimed one-half of his estate.

Mrs Isabel Christy or Mahon, with consent, and Wilhelmina Christy, daughters and surviving children of a sister of the grandfather of the late William Thomas Crumpton on the one hand, and Charlotte Augusta Crone, daughter and only surviving child of another sister of the grandfather of the late William Thomas Crumpton on the other hand, claimants, lodged claims, and after averring that the late William Thomas Crumpton died domiciled in Scotland, on that footing claimed respectively two-thirds and one-third of the fund in medio, or alternatively one-sixth each of the fund in medio. Those claimants pleaded respectively—“The deceased William Thomas Crumpton having died intestate, domiciled in Scotland, the claimants are entitled to be ranked and preferred in terms of their claim.”

The facts of the case appear from the following narrative, which is taken from the opinion of Lord Mackenzie “The late William Thomas Crumpton's domicile of origin was in Barbadoes, where he was born on 30th August 1859, and where his father and grandfather were merchants. His mother, whose maiden name was Cadien, was born in Dumfriesshire on a small property called Riddingwood, which had been bought by her father, a merchant in Jamaica. William Thomas Crumpton was in Scotland with his mother in 1864. He returned to Barbadoes with her. His father died in Barbadoes in July 1870, and Mrs Crumpton then returned to Scotland with her son. In 1873 or 1874 Mrs Crumpton went to Barbadoes for the purpose of winding up her husband's estate. She had abandoned it as her permanent residence when she left in 1870. Between 1870 and 1876 she lived in Scotland (except for the time she was in Barbadoes). Riddingwood was her home during these years, and William Thomas Crumpton was at Dr Bryce's School in Charlotte Square, Edinburgh. His holidays he spent partly at Riddingwood and partly with an aunt, Miss Turnbull, who lived at Moffat. There is some evidence of his having been at school in Moffat, but this is not clearly made out. On 28th March 1876 Mrs Crumpton married Major Finch-Noyes. She died in Malta in 1881. After her re-marriage Mrs Finch-Noyes does not seem to have had her son living with her. William Thomas Crumpton inherited under the will of his grandfather, who died in 1870, a sum of £10,000, the interest upon which, amounting to £300 or £400, constituted his means of subsistence. He went out to Barbadoes in April 1877 and seems to have remained there till 1878.

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In January 1879 he resided in London, where he married. He lived in London and in Surrey with his wife until September 1879, when he brought her to Moffat. They then rented a furnished house called Corsleyburn. The marriage proved an unhappy one. William Thomas Crumpton's wife left him in September 1879. He continued to live on at Moffat. He resided for a week or so at Corsleyburn and then went to lodge with a hairdresser and tobacconist. William Thomas Crumpton remained there until 1st April 1882, when he was certified insane and was removed to the Crichton Asylum, Dumfries. He died there, without having recovered, on 22nd February 1916.”

On 2nd August 1917, after a proof, the Lord Ordinary ( Hunter) pronounced the following interlocutor:—“Finds that the domicile of the deceased William Thomas Crumpton was, at the time of his death on 22nd February 1916, in Scotland, and accordingly, in terms of said finding, ranks and prefers (1) the claimants Mrs Isabel Christy or Mahon and Wilhelmina Christy each to one-sixth of the whole fund in medio, in terms of the alternative claim …; (2) the claimant Charlotte Augusta Crone to one-sixth of the whole fund in medio, in terms of the alternative branch of her claim …; and (3) the claimants John Arthur Douglas Finch-Noyes and Gwladys Dorothy Mabel Finch-Noyes or Moore to one-half of the whole fund in medio equally between them, in terms of the alternative branch of their claim, … and decerns. …”

Opinion.—“The pursuer and real raiser of this action of multiplepoinding and exoneration is Mr Bennet Clark, judicial factor on the estate of the late William Thomas Crumpton, who was an inmate of the Crichton Royal Institution for the Insane, Dumfries, since 2nd April 1882, and who died there intestate and without issue or widow on 22nd February 1916. The fund in medio is the estate left by Mr Crumpton, and the claimants upon the fund are, on the one hand, his heirs according to Scots law, and on the other hand his heirs according to the law of Barbadoes. The question which I have to determine upon the evidence led before me is whether Mr Crumpton died domiciled in Scotland or in Barbadoes.

William Thomas Crumpton was born in Barbadoes in 1859. His father Thomas Crumpton was a merchant in that island, and died there in 1870. His grandfather, Mr Crumpton senior, who is said to have been born in Britain, had lived in Barbadoes as a planter. He died in London in 1870.

William Thomas Crumpton's mother was a Miss Jessie Cadien, who was born in 1841 at Riddingwood, in Dumfriesshire, a small property bought by her father, who had been a merchant in Jamaica, but who appears to have been settled in Scotland several years before his death. I do not think it doubtful that Miss Cadien's domicile of origin was Scotch. She was married in Scotland in 1858, and after spending her honeymoon in this country she went with her husband to Barbadoes.

The evidence as to the early life of William Thomas Crumpton is very meagre. Several witnesses speak of his having been with his mother at Riddingwood when he was a boy of four or five in 1863 or 1864. The length of this visit is uncertain. It is also uncertain whether after returning with his mother to Barbadoes he paid another visit to Scotland before his father's death. On the evidence I think it improbable that he did so, and I assume that he did not.

On her husband's death in 1870 Mrs Crumpton came to Scotland bringing her son William Thomas Crumpton with her. She seems to have made Riddingwood in great measure the home of herself and her son. For several years he was educated at Dr Bryce's school in Charlotte Square, Edinburgh. During this period Mrs Crumpton resided for some time in furnished apartments in Edinburgh.

In coming to Scotland I think that Mrs Crumpton abandoned any intention of returning to reside in Barbadoes as her permanent place of residence. No doubt in 1873 or 1874 she paid a visit to Barbadoes, but she seems to have done this with the object of winding up her affairs and with the intention, as explained by Mrs Galsworthy, of coming back again to Scotland. On this occasion she did not take her son with her to Barbadoes, but left him in Scotland. After Mr Thomas Crumpton's death I think that his widow reacquired her Scotch domicile of origin. In 1876 she seems to have married a Major Finch-Noyes. After her second marriage she saw little of her son. She died in Malta in the year 1881.

According to Mr Alston, William Thomas Crumptom informed him that he had been at school in Moffat. Mr Coupland, in whose house he subsequently lived, and Mr Young, who certainly knew him as a boy, speak to this as within their own knowledge. All these witnesses were thoroughly reliable, and there is hearsay evidence of others to the same effect. It may have been the case, but I do not think that I can hold it proved. He had a grandaunt, a Miss Turnbull, with whom he was very friendly, and the evidence as to his being at school in Moffat may be explained by the circumstance that when he was of school age he paid lengthened visits to this lady, who resided in Moffat.

In 1877–8 William Thomas Crumpton paid a visit to Barbadoes. This appears from a letter written to Mr Tait by an aunt of William Thomas Crumpton, who was then resident there, but who afterwards came to Scotland and lived near Dumfries until her death. It appears to me quite clear that William Thomas Crumpton did not like Barbadoes, and that he had no intention of ever settling there. In 1878 he returned to Scotland, but the place of his residence there is not accurately fixed.

In 1879 William Thomas Crumpton married in London. After residing for some months with his wife in Surrey, he came to Moffat, where he and his wife rented a furnished house. The marriage from the outset was an unfortunate one, but it is not necessary to examine the causes of this. In March 1880 he and his wife separated and

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never lived together again. Mr Tait, a witness in the case, who had just started business as a solicitor in Moffat, prepared a contract of separation between him and his wife, and also acted for him in endeavouring to get information upon which an action of divorce might be based. No such action, however, was ever raised. There was no child of the marriage. Mrs W. T. Crumpton died on 20th November 1892.

After separation from his wife Mr William Thomas Crumpton continued to live in Moffat, lodging at the house of a Mr Coupland in Well Road, where he remained until he was removed to the asylum on 2nd April 1882.

On 5th June 1884 the pursuer Mr Bennet Clark was appointed by the Court of Session curator bonis to Mr William Thomas Crumpton, and he continued to administer his estate down to his death. On 3rd April 1916 Mr Bennet Clark was appointed judicial factor on the deceased's estate.

During his long residence in the Crichton Institution Mr William Thomas Crumpton had frequent lucid intervals. At these times his interest centred in Moffat and in the doings of Moffat people. The question whether he had lost his domicile of origin and acquired a Scotch domicile must, however, be determined by what had occurred prior to the date of his confinement.

William Thomas Crumpton unfortunately for himself never learned or practised any trade or profession. He was possessed of a considerable amount of private means and spent his money freely. Before he reached the age of majority he had got into debt, and his debts were discharged by advances made by his aunt, Miss Crumpton, the executrix on his grandfather's estate, in which he had a substantial interest. He appears to have taken a pleasure in doing from time to time eccentric acts which somewhat scandalised the older inhabitants of Moffat. At more or less frequent intervals be drank to excess. In his drinking bouts he made the acquaintance of companions who had a bad influence upon him. At times he realised this himself and desired to get rid of such associates. This I gathered from the evidence of Mr Young, a gentleman now aged 74, who had been in business as a grocer in Moffat for many years, who knew Mr Crumpton as a boy, and also his aunt Miss Turnbull. In his opinion it was Mr Crumpton's intention to set up a house at Moffat. He says—‘We had many interviews with regard to the matter; when he was in his sober senses he used to come into my shop and consult me and I used to advise him. He wanted to get rid of the crowd that were about him and to get a quiet place away from them where he could settle down. I had many conversations with him about that. He indicated to me that he would like to settle down in Moffat or the neighbourhood if he could get a quiet place outside the town where he would not be disturbed.’ The evidence given by this witness made a very favourable impression upon me. Its value was not affected by the circumstance that he may have been a little confused, particularly in cross-examination, about the exact dates when some of his conversations with Mr Crumpton occurred.

Although an idler Mr Crumpton had received a good education and took some interest in books and politics. He seems to have had several quite suitable companions, among whom were Mr Hullett and Mr Churchill, two of the masters at a school in Moffat. The latter gentleman is now dead, but the former was examined as a witness. He says that he knew Mr Crumpton intimately from about Christmas 1880, and he looked upon him as a Moffat man, all his interests being centred in and around Moffat. There appears to be no doubt that the deceased took a keen interest in the local cricket club at Moffat, playing regularly, and keeping up his interest in the doings of the club even after he went to the asylum. Mr Hamilton, an S.S.C. in Edinburgh, although some years younger than William Thomas Crumpton, knew him fairly well between 1879 and 1882. He often went walks with him, and they played together in the same cricket team. According to this witness's recollection ‘He expressed a fondness for Moffat; frequently I walked home from the cricket field with him, and he very often spoke to me about the friendships he had formed in Moffat and that he had enjoyed his stay in Moffat, and I understood from him at that time that he had made Moffat his home. I never heard him express any intention of going to Barbadoes or to any other place to settle.’ According to other witnesses he subscribed to local charities. Mr Alston, now a farmer, who was a policeman at Moffat in 1880 and 1881, speaks to Crumpton's interest in politics.

Mrs Frederick Cadien, who in 1879 was married to a brother of William Thomas Crumpton's mother, speaks to his having told her that he would stay in Moffat. Another of his aunts, Mrs Barbara Cadien, speaks to William Thomas Crumpton's visits as a boy to Riddingwood. She also learned from one of her sisters-in-law, now dead, about his separation from his wife and his continued residence in Moffat, but her evidence hardly throws any light upon the question as to his intention to remain in Moffat.

After his separation from his wife Mr William Thomas Crumpton prepared and sent through Mr Tait a power of attorney to his aunt Miss Crumpton in Barbadoes enabling her to realise his property in that island. It is proved that he had an aversion to Barbadoes, and I do not think that he had the remotest intention of ever returning there.

One witness, who was a cutter in a firm of clothiers in Dumfries for some time before 1880, speaks to cutting and fitting on a Yeomanry suit for Crumpton, for which payment was made by his mother, but there is no further evidence that he ever joined any local volunteer regiment. It is, however, proved that he spoke of himself as a Scotsman, and I have no doubt that he so regarded himself and was so regarded by his friends.

So far as the evidence led by the claimant,

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who maintains that William Thomas Crumpton was not domiciled in Scotland, is concerned, I need refer, and that briefly, to only three witnesses—Dr Grange, who certified him as a fit subject for an asylum in 1882; Mr Knight, who is an ex-provost of Moffat; and Mr Tait, who, as I have already said, made his acquaintance at the time of his separation from his wife, and acted for him in connection with that matter and also in the sending out of a power of attorney to his aunt. The evidence of the first two of these witnesses does not come to more than that they did not regard him as permanently resident in Moffat, and considered him of too fickle a disposition to have any real intention with reference to a permanent residence. The question, however, is not whether he might not subsequently have changed his intention as to residence, but whether he did not at the time immediately prior to his confinement have an intention to permanently reside at Moffat. I cannot regard anything said by these gentlemen as seriously affecting the inference as to William Thomas Crumpton's intention to continue to reside at or near Moffat which I draw from the great bulk of the evidence. In 1884 Mr Tait, in a letter to the agents acting for the pursuer, stated that Mr William Thomas Crumpton had never lost his domicile of origin in Barbadoes. At that time questions had arisen with Mr Crumpton's wife, and it might have been in the interests of those representing him to plead that he had not a Scots domicile. From the answers given by him in cross-examination I think that Mr Tait at the time when he expressed this opinion was not familiar with the facts bearing upon the question of his client's domicile.

In the view which I take of the facts of this case it is not necessary that I should refer to the cases cited to me that bear upon the question of domicile. I accept as sound the proposition that a man's domicile of origin is not easily superseded, and that to establish a domicile of choice it is necessary to prove not merely that a man's residence has been in a particular place, but that he has evinced a clear intention to make that place his permanent residence or home. In my opinion, the claimants who maintain that William Thomas Crumpton's domicile was Scots have established both these points as regards his residence at Moffat subsequent to his reaching majority and prior to his confinement in the Crichton Asylum. I shall therefore pronounce a finding to this effect.”

The defenders and claimants (Finch-Noyes) reclaimed, and argued—(1) William Thomas Crumpton never had a domicile in Scotland derived from his mother. If Mrs Crumpton had reacquired her Scottish domicile prior to her second marriage, her son's domicile would only follow that change of her domicile if he was in fact living with her as his guardian—Dicey, Conflict of Laws, 2nd ed., pp. 127 and 128. During that period William Thomas Crumpton was not living with her; he was at school in Edinburgh and merely spent some of his holidays with his mother at Riddingwood. But even if William Thomas Crumpton's domicile did follow his mother's domicile, he lived with his mother in England after her second marriage, and accordingly must have lost any derivative Scottish domicile that he had acquired. Further, such a derivative domicile was assimilated to a domicile of choice. (2) The Lord Ordinary was wrong. He had approximated domicile too closely to residence, had ignored the difficulty of putting off the domicile of origin, and had minimised the onus which rested on the claimants to prove that thedomicile of origin had been excluded by the acquisition of another domicile. Historically, so long as law was personal there was no room for the idea of domicile, but when law became territorial it became necessary to have a territorial system of law to regulate the status of individuals—Westlake, Private International Law, p. 11, et seq.; Bentwich, Domicile and Succession, p. 34. Domicile was therefore essentially dependent on the relation of an individual to a territorial system of law. It had never been defined with success, but there were various indicia of its nature. It was a creation of the law attached to an individual at birth, or ascribed to him later because he had by his acts attracted to himself the law of the country in which he resided— Abd-ul-Messih v. Farra, 1888, 13 A.C. 431, per Lord Watson at p. 439, approving of Chitty, J., in in re Tootal's Trusts, 1883, 23 Ch D 532. Domicile of origin differed fundamentally from domicile of choice; it was an artificial creation of the law of a most adhesive nature, and remained the domicile of the individual unless excluded by the active acquisition of a domicile of choice (mere abandonment of the domicile did not exclude it)— Udny v. Udny, 1869, 7 Macph. (H.L.) 89, per Lord Chancellor Hatherley at p. 95, Lord Chelmsford at p. 97, and Lord Westbury at p. 99; Dicey, Conflict of Laws, 2nd ed., p. 119, Rule 8. It was absolute in character and did not depend upon actual associations with the place of domicile, and there was no difference between the mode of excluding a domicile of origin in a place with which the individual had many associations and a domicile of origin in a place where there were no or few actual associations. Absence of real associations might weigh in a question of intention to abandon a domicile of origin, but they were of no weight on the question of acquisition of another domicile— Vincent v. Earl of Buchan, 1889, 16 R. 637, per Lord Adam at pp. 645 and 647, and Lord President Inglis at p. 648, 26 S.L.R. 481. To acquire a domicile of choice so as to exclude the domicile of origin, there must be animus et factum, and the onus of proof was always upon the party who founded on the acquisition of a domicile of choice, and that onus was a heavy one. Here the domicile of origin was in Barbadoes, and it was for the respondents to prove the acquisition of a domicile elsewhere. There was the factum of residence in Scotland, but the animus necessary to establish the acquisition of a domicile of choice in Scotland had not been proved. That animus involved a fixed determination to make Scotland the permanent home, and so to put on the legal

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rights and status of a Scotsman— Steel v. Steel, 1888, 15 R. 896, per Lord President Inglis at p. 908, 25 S.L.R. 675; Bell v. Kennedy, 1863, 1 Macph. 1127, per Lord Cowan at p. 1138, 1868, 6 Macph. (H.L.) 69, per Lord Cairns, L.C., at pp. 71, 74, and 75, per Lord Cranworth at p. 76, per Lord Chelmsford at p. 77, 5 S.L.R. 566; Fraser, H. and W., p. 1265; Lord Advocate v. Brown's Trustees, 1907 S.C. 333, 44 S.L.R. 275; Marchioness of Huntly v. Gaskell, 1905, 8 F. (H.L.) 4, per Lord Halsbury at p. 5, 43 S.L.R. 112; Arnott v. Groom, 1846, 9 D. 142, per Lord Fullerton at p. 148; Aikman v. Aikman, 1861, 3 Macq. 854, per Lord Cranworth at p. 863 and Lord Wensleydale at p. 877. Where the mind was indefinite, unstable, or vacillating, the necessary intention could not be held to have been established— in re Patience, 1885, 29 Ch D 976, per Chitty, J., at p. 980; Fairbairn v. Neville, 1897, 25 R. 192, per Lord President Robertson at p. 206, 35 S.L.R. 178. In the present case William Thomas Crumpton's state of mind was certainly most indefinite and unstable, and further it must be kept in view that towards the end of his life he was undoubtedly insane. In the absence of clear proof of the acquisition of a domicile of choice, the domicile of origin still remained in force— Winans v. Attorney General, [1904] AC 287, per Lord Halsbury, L.C., 289.

Argued for the claimants (Mrs Mahon and others)—(1) William Thomas Crumpton had acquired a domicile in Scotland through his mother. After his father's death his mother abandoned the domicile she had during marriage, and reacquired her domicile of origin in Scotland. The domicile of her son changed with that change of her domicile when he came to Scotland with her in 1870, i.e., when he was still in minority. When the father had died his infant child's domicile changed with any change of the mother's domicile if it was residing with her— Pottinger v. Wightman, 1817, 3 Mer 67; Johnstone v. Beattie, 1843, 10 Cl. & Fin. 42, per L.C. Lyndhurst at p. 66 and Lord Campbell at p. 138; Savigny, Private International Law (Guthrie's Translation), p. 100, note 2; Arnott v. Groome, 1846, 9 D. 142, per Lord Fullerton at p. 147; Story, Conflict of Laws (8th ed.), section 506; Burge, Colonial and Foreign Law, i, 39. Such a derivative domicile was really of the nature of a domicile of origin, and as a result the onus was on the reclaimers to show that it had been displaced—Westlake, Private International Law, sections 248 and 261; in re Craignish, [1892] 3 Ch 180. (2) Alternatively William Thomas Crumpton had acquired a domicile in Scotland in his own right. He had the factum of residence admittedly. The only question was as to his animus. The evidence was sufficient to establish the necessary animus. He certainly had no wish to return to Barbadoes. If he had any home, Moffat was his home. He preferred to remain in Scotland rather than to go with his wife to England. There was no compeating domicile of choice. His boyhood had been spent in Scotland, and his only connection with Barbadoes was the artificial legal results arising from the fact of his birth there. The real ties he had formed were all with Scotland. Bell's case ( cit.) was contrasted with the present case on the facts. The necessary animus was sufficiently proved when, as here, it could be said with reasonable certainty that the de cujus had made his permanent home in a particular place. It was unnecessary to prove an expressed or implied intention to put off the legal rights of one system of law and to put on those of another— Corbidge v. Somerville, 1914, 51 S.L.R. 406, per Lord President Strathclyde at p. 410; Winans v. Attorney-General ( cit.), per Lord Macnaghten at p. 291; Udny v. Udny ( cit.), per Lord Westbury at p. 101; Bell v. Kennedy ( cit.), per Lord Cranworth at p. 76; Macphail v. Macphail's Trustees, 1906, 14 S.L.T. 388; in re Steir, 1858, 3 H. & N. 594, 28 L. J., Ex. 22; Westlake, Private International Law, p. 340.

At advising—