August 19.
Tue admittedly undefined state of American law in its application to local needs was proof presumptive that on the establishment of a permanent tribunal of the United States in China there would arise many points calling for elucidation at the hands of legal experts. The records of Judge Wilfley's Court during the few months of its existence have provided a number of subjects requiring carefully reason judgement. But the case of the will of the late Dr. Young J. Allen, in which we reproduced Judge Wilfley's ruling on Saturday, may be said to touch high water mark of importance, not only in its bearing upon the state of American citizens in Shanghai but as regards the future convenience of the whole com-As was remarked in conn with the Police Commission's Report we ure faced with one of those questions which presented no difficulty while Shanghai was a young and in one sense unstable community. But developments of recent years and especially the changed circumstances in whic many persons now reside in China scall "for decided modification of the rulings and practice to which alone we can now appeal. Dr. Allen had left his native State of Georgia at the age of twenty-four te come to China. Here he abode Yor forty-seven. years; here the frequently declared that he intended to remain; here he died in fay last. Could he, therefore, be said legally to be domiciled in China for the purposes of probate Or must his will run the risk of being upset by the superior law of the State of Georgia where he had een born, but which he had practically renounced In approaching this question it was first of all necessary to arrive tat some clear idea as to the legal meaning of the word domicile; in the second, to examine how far that idea might be modified by principles of extraterritoriality. Upon the first point American law if less explicit than British is more adaptable. By a recent tendency of American Courts to substitute forthe animus manendi, or intention to remain, which is an essential part ofall definitions of domicile, the absence of animus revertendi, or intention to return, it has become possible to judge questions of domicile, as touching American citizens, upon their merits. we come, however, to the second point, The H.-c. Herald and S. C. & C. Gazette. the meaning of extraterritoriality and the extent to which its principles ma; affect the law of domicile we ind that whereas the Courts of tne United States have made no pronouncement on the point—presumably for want of any sufficiently important test ease—in the eyes of British law there is no such thing as an Anglo-Chinese domicile. The law of Great Britain and of America are near enough allied to demand the closest examination of this point before the question of Dr. Allen's will could be finally judi is based upon ruling e Chitty in 1862, who drew a sharp distinction between residence in a territory as being an essential part of the meaning of domicile, and residence ina community not possessing the supreme territorial power. Although the decision thus laid down in the leading case of "Tootal's Trusts " was upheld in a subsequent case by the Lords of Appeal its practicability has since been strongly called in question by experts of the highest authority. Logie has an inherently fatal knack of divorcing itself from life. On the ground of convenience and com-non sense, the majority will be inclined to agree with Judge Wilfley in giving Dr. Allen's will the benefit of the doubt.
'The plain fact is that since Mr. Justice Chitty's ruling in 1862 the whole conditions of foreign residence in C have changed. Forty years ago, and even less, British' subjects. came to. China—as they went to India in the oft days of the East India Company—to make their fortunes and with the fixed intention of returning home as soon as that golden dream was fulfilled. To-day cases are not unknown of men who, having retired business to. end their days in Europe, have drifted back again, drawn by the undefined—but irresistible charm of the Far East, to end them in China instead. The common practice of many families, now dwelling here, to make China their permanent hamels likely to become commoner as time yoes on and without some modification of the existing state of the law we might come to be presented with the anomaly of men domiciled in the birthplace of their grandfathers though they themselves and their fathers hud been born in China. If. stich a case arose before the Courts it is probable that fact would be held to upset theory, as in cases of disputed property in which right of user is held to have superior claims over right of paper title only.
But in the mean time it will be interesting to see whether 417
Judge Wilfley's present decision will react in any practical way upon the British view of domicile as being possible within the law of extraterritoriality. It is difficult to see what reason practical or sentimental should deny the right of a British subject to be domiciled in China for questions of personal and civil jurisdiction. As touching the case of American citizens it seems hardly likely that Judge Wilfley's ruling will be upset either in the present or in future parallel cases, To do so would he, as he himself points out, to open the door to disputes involving the laws of fort: should deter advocates of "law for law's from interference. The more pro-liable result is that the ruling in the case of Dr. en's Will will he clinched by an enactment of the United States Government, That at least appears to be the logical development of establishing permanent tribunal in China in which the the judge sits, not only to decide the cases that arise from ay to day, but in some sort as an expert to' guide the action of legislators at Home.
Text read from the printed page and cleaned; old type leaves the occasional error.