Wakilii

Heyer v Gill (C.A. 30-1933.)

East African Court of Appeal · [1937] EACA 54 · 1937 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Supreme Court of Kenya judgment on preliminary issue of domicil
Decision
Judgment of the Supreme Court of Kenya reversed; finding that deceased was domiciled in South Africa set aside

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that there was insufficient evidence to prove that the deceased had abandoned his domicil of origin in Germany and acquired a domicil of choice in South Africa. The onus of proving abandonment of domicil of origin rested on the executor, who failed to discharge it. Mere service in British Forces during the Boer War, without evidence of circumstances requiring permanent residence, was insufficient to establish a change of domicil. Appeal allowed.

Outcome

Judgment of the Supreme Court of Kenya reversed; finding that deceased was domiciled in South Africa set aside

Facts

Charles Alfred Heyer was born in Germany in 1880 and emigrated to the United States with his parents around 1882. Between 1899 and 1902 he went to South Africa and served with the British Forces (Cape Medical Staff Corps) during the Boer War. He married Clara Heyer, a Polish national with a dressmaking business in South Africa, at Capetown on 12th August 1902 without an ante-nuptial contract. After his discharge in August 1902, the couple went into business together in Capetown until December 1904, when he left for Germany. He arrived in Nairobi in 1905. The parties later separated by deed in 1927. Charles Heyer died on 1st October 1931 in Kenya. His executor sued the widow claiming the marriage was in community of property under South African law, which required proof that the deceased was domiciled in South Africa at the time of marriage.

Issues

  1. Whether the deceased Charles Alfred Heyer was domiciled in South Africa at the time of his marriage to the appellant on 12th August 1902.
  2. Whether the parties were married in community of property under South African law.

Orders

  • Appeal allowed.
  • Judgment of the lower Court reversed.
  • Costs awarded to the appellant in this Court and the Court below.

Rules and key headnotes

Domicil — Domicil of Origin — Abandonment — Burden of Proof
The onus of proving abandonment of a domicil of origin and acquisition of a domicil of choice rests on the party asserting the change of domicil, and such abandonment must be proved beyond any reasonable doubt.
Domicil — Acquisition of Domicil of Choice — Military Service — Insufficient Evidence
A foreigner joining British Forces for a particular military campaign, as distinct from entering regular military service, does not thereby acquire a domicil in the territory where he serves unless there is evidence of circumstances requiring permanent residence or residence for an indefinite time.
Domicil — Animus Manendi — Evidence Required
To establish acquisition of a domicil of choice, there must be positive evidence of both factum (residence) and animus manendi (intention to reside permanently or indefinitely). The mere fact of entering military service, without evidence of circumstances showing an intention of permanent residence, is insufficient.
Domicil — Subsequent Admissions — Evidential Weight
Subsequent statements or admissions by parties as to marriage in community of property constitute evidence of belief as to legal rights but do not necessarily prove the domicil of the deceased at the time of marriage, and are of little or no importance as evidence of animus manendi at the time of marriage.

Cases cited (6)

  • President of the United States of America v Drummond (55 E.R. 442)
  • Moorhouse v Lord (1863) 32 L.J. Ch. 295
  • Winans v Attorney General [1904] A.C. 287
  • Re Mitchell ex parte Cunninghame (1884) 13 Q.B.D. 423
  • Urquhart v Butterfield (1887) 36 Ch. Div. 55
  • Abraham v Attorney General (102 L.J. P.D. and A. 115)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Heyer v Gill (C.A. 30-1933.) [1937] EACA 54 (1 January 1937)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.