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![handle is hein.slavery/ssactsengr0906 and id is 1 raw text is: DALHOU81E (COUNTESS OF) V. M'DOUALL [1840] Vi Cim.&m & rMiLY.
trustees upon trust ; and what he might have intended to do, and, I think, veryprobably
did intend to do, was to say, That interest which Sir Charles Douglas would have
taken under the will, I intend to give equally between him and Mr. Charles Philip
Yorke: that would be the object which the testator must be presumed to have had,
if the construction which my noble and learned friends put upon this clause, in
order to carry out the supposed intention, is to prevail. Certainly the words
employed do not, in my opinion, indicate any such intention. If one were to
take the trouble of seeing how he would have expressed that intention which is now
contended for, and what, would be the way of carrying it into effect, meaning to
ievoke what he had given to any individual, and then intended for that individual
and another, he would naturally have revoked that disposition, and have given
all the rest and residue of his property, which rest and residue had been given
to trustees, the ultimate trust being in favour of Sir Charles Douglas, to the trustees,
for the benefit of those he then meant to favour. Under these circumstances I
certainly have not been able to see that the expressions used are so flexible and so
capable of being adapted to the intention supposed to be entertained by the testator,
as to justify the construction which my noble and learned friends have thought
themselves at liberty to adopt; but which, if adopted, would very likely carry his
intentions into effect.
(It was ordered, that the decree be reversed; and it was declared, that the Appel-
lant was entitled to an [817] equal share of the testator's residuary personal estate
with the Respondent, on the decease of Mrs. Yorke, under and by virtue of the
second codicil of the testator. And it was further ordered, that, with this declaration,
the cause be remitted to the Court below.)
The Right Hon. CHRISTIAN BROWN, COUNTESS OF DALHOUSIE, and the Right
Hon. JAMES ANDREW, EARL of DALHOUSIE, her Son,-Applants;
JAMES M'DOUALL, Esq. of Logan *a .Respondent [March 2, 3. 5, 9, 10,
12; August 10, 1840].
[Mews' Dig. vii. 664; viii. 231, 235, 239, 248; S.C. 1 Robin. 475. Approved of in
Udny v. Udny, 1869, L R. 1 Sc. and Div. 456; Lauderdale Peerage Case, 1885.
10 A.C. 758. See next case.]
A Scotch marriage can legitimate the previously born children of the married
persons, so as to enable them to succeed as heirs to real estate in Scotland.
The child of a Scotchman, though born in England, becomes legitimate for all
civil purposes in Scotland, by the subsequent marriage of the parents in
England, if the domicile of the father was and continued throughout to be
Scotch. Neither the place of the marriage nor the place of the birth of the
child will, under such circumstances, affect the status of the child.
In matters to be determined by the domicile of the parties, it is a principle of
law that the domicile of origin must prevail until the party has not only
acquired another but has manifested and carried into execution an intention
of abandoning his former domicile and acquiring another as his sole domicile.
In order to acquire a domicile there must be actual residence in the place chosen,
which must be the principal and permanent residence of the party.
By marriage the domicile of the husband becomes that of the wife.
In 1796 a Scotch gentleman of fortune came with his regiment into England,
bringing with him a young Scotchwoman then in [818] a state of pregnancy.
Her child was born in England, and he gave the usual bond to indemnify the
This and the following case of Munro v. Munro [7 Cl. and F. 842] were argued
about the same time. Judgment was pronounced in both on the same day, and the
noble and learned Lords who spoke in moving the judgment united the two cases
in their observations. The arguments in each case are given separately; but as
each noble and learned Lord made but one speech relating to both cases, the judg-
ment in both will be printed entire at the end of the second case. See post. p. 894.
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