INTERESTING WILL CASE.

Otago Daily Times, Issue 20190, 30 August 1927, Page 5

INTERESTING WILL CASE.

A QUESTION OF DOMICILE. PROVISION FOR TESTATOR’S DAUGHTER. (Special to Daily Times.) WELLINGTON, August 29. A decision of importance bearing on the question of domicile was given by the Chief Justice (Sir Charles Skerrett) in the Supremo Court to-day, in a reserved judgment in the case in which a daughter made application under the Family Protection Act for a share in the estate of her father. The case concerned the will of the late Edward William Roper, of Christchurch and England. An application for a share in his estate was made by Clara Maude Preston, his sole surviving daughter. At the hearing it was stated that the deceased was married in 1860, and came to New Zealand with his wife, settling in Lyttelton. His wife returned to England in 1907. The deceased later returned to England, where he died. Sarah Jane Seymour (England) was appointed executrix as regards the property he had in the British Isles, and the Public Trustee of New Zealand was appointed executor of all other property. The Public Trustee was directed by the will to pay an annuity of £BOO a year to Sarah Jane Seymour, and after her death an annuity of a similar amount to her son. After the son’s death the Public Trustee was directed to hold the trust funds upon trust for the governors of the Canterbury College . for the foundation and maintenance of scholarships in science, to b© designated the Roper scholarships. On July 31, 1926, the net value of the estate was £28,518.* By a codicil the testator increased Sarah Jane Seymour’s allowance to an amount equal to nine-tenths of the income of the trust fund, £1135. In the course of his judgment his Honor said: “It is important to observe that in his will the testator describes _ himself as ‘of Christchurch in the Dominion of New Zealand, but now residing at 99 Piccadilly in the County of London, England.’ The first question discussed before me as affecting the jurisdiction of the court was whether the testator at the time of' his death possessed a New Zealand domicile. The testator carried on various businesses for many years in Lyttelton and Christchurch, both before and. after his wife left for England. He was born in London, so his domicile of origin was England. He remained in New Zealand till 1906 or 1907. “ It is clear,” said his Honor, “that the testator’s domicile of origin was England, and there is no dispute as to the principles upon which the question whether he abandoned his domicile of origin and acquired one of choice in New Zealand is to be determined. In re Marrett Chalmers v. Wingfield Collins, L.J., says: ‘ The law as I understand it is that the domicile of origin clings to a man unless he has acquired a domicile of choice by residence in another place with an intention of making it his permanent place of residence. If a man loses his domicile of choice .then without anything more his domicile of origin revives; but, in my opinion, in order to lose the domicile of choice once acquired it is not only necessary that a man should be dissatisfied •with his domicile of choice and form an intention to leave it; but he must have left it with the intention of leaving it permanently. Unless he has done that, unless he has left it both animo et facto the domicile of choice remains. It may be lost animo et facto, and if lost then the domicile of origin, there being, no other domicile, revives and attaches again.’ “ Applying these principles,” said his Honor, “ I am of opinion that the testator clearly acquired a domicile in New Zealand, and never abandoned his domicile in New Zealand. In his will and in the codicil which was executed only four dkys before death'he describes himself as ‘ of Christchurch, but then residing iq London.’ He appoints a New Zealand trustee, and he devises the bulk of the capital of his estate after the dqath of Mrs Seymour and her son for cducafronal purposes in the city of Christchurch. To my mind the evidence is convincing that the testator deliberately acquired a ‘ domicile of choice ’ in New Zealand, and never intended or attempted to alter his domicile from there or to acquire a new domicile elsewhere.” His Honor said that upon the whole he thought the plaintiff should have an annuity of £350, payable as from the death of the testator, upon the condition that she repaid all voluntary contributions made by Mrs Seymour to her after the death of her father.