A domicile of choice is one chosen by the party himself. In order to enable a person to acquire a domicile of choice three things must exist at the same time, (a) the party must be personally present in the place which he chooses as a domicile, (b) he must choose such place as his domicile, and (c) he must be sui juris.

The question of domicile of choice was discussed at some length by the court in the case of In re Cap-devielle,5 the decision in which case was in part as follows:

"There are two questions in this case. First, was the testator Domingo Capdevielle domiciled in England? This is a question of fact to be determined upon affidavits which have been produced by the executor, and which I think we are bound to consider as substantially true; we have no reason to suppose they are otherwise. They state that the testator was born in France, and left that country prior to the year 1807 or 1808 to avoid the conscription. He first went to Spain; from thence to Gibraltar, and in 1830 came to England and commenced the business of a commission agent at Manchester, and continued it until the 6th January, 1859, when he died. He was twice in France during that period and purchased some real property there. I think it is the true and fair inference from the affidavits that during the whole time his mind and intention was to return to France and die there, although he never determined or fixed upon any period when his return should take place, and that he was living in Manchester with the intention of remaining there for an indefinite period; but during all the time he had the hope and expectation and intention of returning to France and there ending his life; and that he always deemed and considered himself to be a Frenchman and not an Englishman.

5 2 H. & C, 985.

"The question whether he was domiciled in England depends upon what is the true definition of domicile in regard to testamentary acts. In Story's Conflict of Laws, C. 3, Sec. 46, it is said that 'if a person has actually removed to another place with an intention of remaining there for an indefinite time, and as a place of fixed present domicile, it is to be deemed his place of domicile notwithstanding he may entertain a floating intention to return (to his native country) at some future period.' If this be the true definition of domicile the testator was domiciled in England, for he had removed to Manchester and lived there for twenty-nine years; his intention was to remain there for an indefinite time as his fixed permanent domicile; and although I believe he had always what may be called a floating intention to return to France at a future period, yet this, according to the above definition, would not prevent the English domicile. There are also two other definitions of domicile, one in the same work, C. 3, Sec. 43, viz.: 'that place is properly the domicile of a person in which his habitation is fixed, without any present intention of removing therefrom;' the other is in Dr. Phillimore's Book on Domicile, C. 2, Sec. 15, page 13, viz.: 'a residence at a particular place, accompanied with positive or presumptive proof of an intention to remain there for an unlimited time.' If these be correct the domicile of the testator was English. But on the other hand there is a definition of domicile by Lord Wensleydale, in Aikman vs. Aikman, 3 Macq., 877, which, if correct, seems to me to establish that the domicile of the testator was French. It is this: - 'Every man's domicile of origin must be presumed to continue until he has acquired another sole domicile by actual residence with the intention of abandoning his domicile of origin. This change must be animo et facto, and the burthen of proof unquestionably lies upon the party who asserts the change.' Now, if this be the correct definition of domicile the testator's domicile was French, for I think the undoubted inference from the affidavits is that he never had the intention of abandoning his French domicile; on the contrary he always desired to retain it; and it may be predicated with absolute certainty that the Attorney-General did not establish the contrary. But it was said that Lord Wensleydale was not to be understood as intending what his words seem to express; but it is to me clear from the case of Moorehouse vs. Lord, 10 H. L., 272, decided last year, that Lord Wensleydale was understood by the noble and learned lords who delivered judgment there in the sense which his words naturally-mean. The three lords who delivered judgment, Lord Cranworth, Lord Chelmsford, and Lord Kings-down, all go into the question of domicile. Lord Cranworth clearly intimates that the old view as to domicile was not correct, and that modern improved views existed. He says (10 H. L., 283), in order to acquire a new domicile, etc., a man must intend 'quatenus in illo exuere patriam.' It is not enough if you take a house in another place, and that it is tolerably certain that you had better remain there all the days of your life. That does not signify. You do not lose your domicile of origin merely because you go to some other place that suits you better, unless you mean to cease to be a Scotchman and become an Englishman, or a Frenchman, or a German. In that case if you give up everything you left behind you and establish yourself elsewhere, you may change your domicile. It is therefore clear to my mind that Lord Cranworth entertained the view as to domicile which the words of Lord Wensleydale naturally and in their ordinary meaning import. Lord Chelmsford is, if possible, still more clear. After stating that two definitions of domicile which had been mentioned were in his opinion liable to exception, he proceeds (Id., 285): 'The present intention of making a place a person's permanent home can exist only where he has no other idea than to continue there, without looking forward to any event, certain or uncertain, which might induce him to change his residence. If he has in his contemplation some event upon the happening of which his residence will cease, It is not correct to call this even a present intention of making it a permanent home. It is rather a present intention of making it a temporary home though for a period indefinite and contingent. And even if such residence should continue for years, the same intention to terminate it being continually present to the mind, there is no moment of time at which it can be predicated that there has been the deliberate choice of a permanent home. In a question of change of domicile the attention must not be too closely confined to the nature and character of the residence by which the new domicile is supposed to have been acquired. It may possibly be of such a description as to show an intention to abandon the former domicile; but that intention must be clearly and unequivocally proved.' He then clearly adopts Lord Wensleydale's definition as I understand it, and states it at length. Lord Kingsdown expressed his concurrence with the other judgments and added (Id., 291): 'Upon the question of domicile I would only wish to say that I apprehend that change of residence alone, however long and continued, does not affect a change of domicile as regulating the testamentary acts of the individual. It may be, and it is, a necessary ingredient; it may be, and it is, strong evidence of an intention to change the domicile, but unless, in addition to residence, there is intention to change the domicile in my opinion no change of domicile is made.' I adopt the definition of Lord Wensleydale. I think it is approved of by the three noble and learned lords whose opinions I have quoted; and as I think there is no evidence of intention of the testator to change his domicile, in my judgment the domicile of the testator was French."