Worksheet 4A - Cases & Readings

Double Renvoi
Re Annesley [1926] Ch 692

In re ANNESLEY.

DAVIDSON v ANNESLEY.

[1925. A. 513.]

[CHANCERY DIVISION]

[1926] Ch 692

HEARING-DATES: 17, 18, 19, 23, 24, March 21 May 1926

21 May 1926

CATCHWORDS:
Conflict of Laws - English Domicil of Origin - French Domicil of Choice - Nationality - Municipal
Law - French Doctrine - Renvoi.

HEADNOTE:
The question whether a person is or is not domiciled in a foreign country is to be determined
in accordance with the requirements of English law as to domicil, irrespective of the question
whether the person in question has or has not acquired a domicil in the foreign country in the
eyes of the law of that country.

In re Johnson [1903] 1 Ch. 821 not followed.

Held, that an Englishwoman, who had never taken the steps prescribed by art. 13 of the
French Civil Code, had nevertheless on the evidence acquired a French domicil of choice, and
that the Court would apply the law of France in administering her estate.

Held, on the evidence as to the French law, that the French courts in administering the
movable property of the deceased would apply French municipal law, and that accordingly the
testamentary disposing power of the deceased was governed by that law.

INTRODUCTION:
ADJOURNED SUMMONS.

The facts are taken from the judgment:-

On January 16, 1924, Mrs. Sybil Annesley died at the Chateau de Quillebaudy at Orthez in
France, in which country she had lived ever since the year 1866. n(1)

She was married in the year 1860 to an army officer, Mr. James O'Donel Annesley, whose
domicil was English. Until 1866 they lived together at Bath, but in that year

n(1) It appears to have been undisputed that her domicil of origin was English.
they went to reside at Pau, which continued to be their habitual place of residence until the
husband died in July, 1884. From that date it was open to Mrs. Annesley to adopt a domicil of
choice. After her husband's death she continued to reside at Pau, where her mother also
lived; but they occupied separate establishments. There is no indication that at this time she
either owned or took a lease of any residence at Pau; but it was her normal and habitual
place of residence.

In 1897 she bought the Chateau de Quillebaudy, some forty kilometres distant from Pau,
where she had a small farm; and there she resided continuously until her death there in
1924. She was then over eighty years of age. Her visits to England were few, the only ones
which are clearly established in the evidence, apart from a visit when one of her daughters
was married in 1892, are some four in number for short periods, in 1903, 1907, 1911 and
1913. That she did not return after that date may well have been due to the war and to
advancing years.

There is no doubt that the chateau was her home. In her correspondence she alludes to it as
such. It was her only home. She never since 1866 had any place of residence in England.
According to the evidence of her daughter, Mrs. Davidson, her mother frequently expressed
to her dislike of England and the English people, and stated that she never wished to live
anywhere but in France, and that she desired to reside in France until she died. At her death
a paper was found in which she declared that she wished to be buried in France or in
Germany, the latter being the country in which her husband (who in fact died there) was
buried.

Mrs. Annesley never took the steps prescribed by art. 13 of the French Civil Code n(1) with a
view to obtaining a formal French domicil according to French law, but a printed form

n(1) L' tranger qui aura t autoris par d cret ... fixer son domicile en France y jouira de tous
les droits civils [and it is held that the French law of succession becomes applicable to his
estate. By the next paragraph, the licence must be renewed every five years if the party does
not become naturalized.] - F. P.

of application for this purpose was found among her papers. It was not filled up. So far as
concerns fixing a date for its coming into her possession, all we know is that it was
accompanied by a letter from a M. Maisonnier written some time during the war. Neither
document is forthcoming.

She owned immovable property in France only.

She owned movable property both in England and in France. Most of her money was trust
money, which was credited to her in England, where she had two banking accounts. On these
she used to draw cheques and pay them into her banking account at Pau.

On November 20, 1919, she executed a holograph will in the French language. By it, after
stating that her two daughters had their share exceeding two-thirds of her property assured
by her marriage settlement, Mrs. Davidson's marriage settlement, and her English will, she
disposed of the property which she possessed in France. She disposed of Quillebaudy and a
pecuniary legacy in favour of a friend. Other immovable property she gave to two servants.
She gave specific legacies of French investments to three other servants. The residue of her
movable property she gave to the Rev. Ren Troyte, coupled with a request to pay the duties
on the previous gifts and to make donations to certain local charities. It does not appear what
were the contents of the English will referred to. It may be a reference to the will next
mentioned, for it would appear from the correspondence that she had (at some date earlier
than November 25, 1919) instructed Mr. Mellersh, her lawyer in England, to draw her will.

On December 13, 1919, she executed in France a will in English form. It revokes all former
testamentary dispositions and purports to dispose of all her real and personal estate. The five
servants named in the French will all take benefits under the English will. Pecuniary legacies
are given to certain friends. By cl. 4 the real estate and residuary personal estate are given
on trust for sale; out of the proceeds a sum is to be set aside and invested to produce a small
annuity, a further sum of 4300l. is to be set aside and invested

as a trust legacy. By cl. 5 the ultimate residue is given to her daughter, Miss Annesley,
absolutely. Clause 8 runs as follows: "I declare that although I have lived in France for many
years and own the house and grounds which I now occupy it has not been and is not my
intention to abandon my domicil of origin namely England and I have not made any
application under article 13 of the French Civil Code or otherwise for a decree to fix my
domicil in France nor have I done anything to become a naturalised subject of France and I
intend to remain a British subject."

On July 4, 1921, Mrs. Annesley executed in France a codicil in English form, by which she
stated, in cl. 4: "I confirm my said will in all respects as altered by this codicil, and in
particular I confirm cl. 8 of my said will as though such clause were set out in this codicil."
The summons asked whether the domicil of the testatrix at the time of her death was French
or English: (a) for purposes of English law; (b) for purposes of French law.

It was admitted that if the domicil was French for purposes of French law the testatrix could
only dispose of one-third of her personal property, because she left two children surviving
her. The testatrix by her will purported to dispose of the whole of her personal property.

COUNSEL:
Bennett K.C. and J. M. Lightwood for the plaintiff, the administratrix with the will annexed.
The principles of private international law recognized in this country are part of the law of
England. Domicil must be determined by the English Court according to those legal principles
applicable to domicil which are recognized here and are part of its law: In re Martin. n(1)
Succession to the movables of the testatrix is governed by the law of her domicil at the date
of her death: Enohin v. Wylie n(2) ; Doglioni v. Crispin. n(3) A de facto domicil is sufficient,
and it is not necessary for the testatrix to have fulfilled the conditions which French law
requires in order to obtain full civil rights: Collier v. Rivaz n(4) ;

n(1) [1900] P. 211, 227.

n(2) (1862) 10 H. L. C. 1, 13.

n(3) (1866) L. R. 1 H. L. 301, 314.

n(4) (1841) 2 Curt. 855.

Bremer v. Freeman n(1) ; Laneuville v. Anderson n(2) ; Hamilton v. Dallas. n(3)

The decision of Farwell J. in In re Johnson n(4) that domicil requires animus and factum, that
is residence; and that you cannot have legal residence in a country which does not treat
residence as a ground for applying its law, must be taken to be overruled by Casdagli v.
Casdagli n(5) , where the House of Lords held that a man who had gone to reside in Egypt
with the intention of making a new and permanent home there, got rid of his English domicil
of origin, and acquired an Egyptian domicil, although, owing to his being a British subject, he
had not attracted to himself the municipal law of Egypt. In that case Lord Atkinson said that
there was no test which must be satisfied for the acquisition of a domicil of choice in Egypt,
other than, or in addition to, those which must be satisfied to acquire a similar domicil in a
European country - namely, voluntary residence there, together with a deliberate intention to
make that residence a permanent home for an unlimited period. In In re Bowes n(6) the
question whether English or French law applied was not argued, and the correctness of the
decision in In re Johnson n(4) was not considered.
The Court will infer that the domicil of the testatrix was French if she has voluntarily fixed her
sole or chief residence in France with the intention of continuing to reside there for an
unlimited period: Udny v. Udny n(7) ; Bell v. Kennedy. n(8) The testatrix had her fixed
residence in France from 1884 to 1924, and but for the declaration in her will, and the codicil
to it, that she had not intended to abandon her English domicil, it could not be denied that
her domicil was French. But if the acts of the testatrix show an intention to live and die in
France her domicil is not affected by the declaration: In re Steer. n(9) Where a foreigner has
not

n(1) (1857) 10 Moo. P. C. 306.

n(2) (1860) 2 Sw. & Tr. 24.

n(3) (1875) 1 Ch. D. 257.

n(4) [1903] 1 Ch. 821.

n(5) [1919] A. C. 145, 172, 194.

n(6) (1906) 22 Times L. R. 711.

n(7) (1869) L. R. 1 H. L. Sc. 441, 458.

n(8) (1868) L. R. 1 H. L. Sc. 307, 319.

n(9) (1858) 3 H. & N. 594, 599.

fulfilled the formalities required by art. 13 of the Civil Code succession to personalty, under
French law, is governed by the national law of the deceased. But if, as in this case, the
national law refers the succession to the law of the domicil of the deceased at the time of the
death n(1) , and the domicil is French, then French municipal law will apply: see the decisions
of the Cour de Cassation in the Forgo case n(2) and in the Souli case n(3) ; Westlake's
Private International Law, 7th ed., p. 34. It is admitted that if French municipal law applies
the testatrix, as she left two children surviving her, could only dispose by her will of one-third
of her English personal property and her French movable property.

G. B. Hurst K.C. and Parton for the residuary legatee. The domicil of the testatrix at the time
of her death was French. In Anderson v. Laneuville n(4) the testator had not obtained an act
of Government entitling him to fix his domicil in France, had made his will in English form and
declared his intention to return to England, but the Court would not allow the declaration to
weigh against a continued residence in France, and held testator's domicil to be French. So
too the declaration of a Frenchman of his intention to return to France when he had made his
fortune was not allowed

n(1) In the case of a nationality covering several jurisdictions in which different municipal
laws are administered, this rule is not easy to apply: see the observations of Farwell J. (the
value of which is the same whether the decision itself be supportable or not) in In re Johnson
[1903] 1 Ch. 832-835. Where the propositus was a British subject, we still have to find in
what part of the Empire he was domiciled: a question of fact about which there can
apparently be no presumption. - F. P.

n(2) Clnuet, Journal du droit international priv (1883), 64.

n(3) Clunet (1910), 888 [where see M. Perroud's learned note regretting the extreme brevity
of the reasons, and giving his own conclusion to the same effect in these words: "Si l'on
admettait que les deux l gislations de conflit se r f rassent aux dispositions de droit
international du pays tranger, on aboutissait ... un cercle vicieux, les deux syst mes
internationaux, fran ais et am ricain" - the de cujus was a citizen of Louisiana settled in
France - se renvoyant ind finiment la d termination de la loi interne applicable. Il fallait donc
bien admettre, comme l'a fait en 1905 la Cour de Paris, que les syst mes de conflit visent
exclusivement, lorsqu' ils concluent ... l'application de la loi trang re, la loi intern trang re"].

n(4) (1854) 9 Moo. P. C. 325, 335.

to weigh against his acts, which showed an intention to acquire an English domicil: Doucet v.
Geoghegan. n(1) Here the acts of the testatrix show her intention to establish her permanent
home in France.

If you assume that no renvoi theory is applicable the same result would be reached by
applying the law of the domicil, that is to say, the municipal law of the country as applied to
its own subjects, so that the French view of international law would not arise. This is the view
taken by John Bate in his Doctrine of Renvoi, p. 115. He does not accept the renvoi theory,
but he arrives at the same result by saying an English Court by the law of domicil means the
municipal law of the domicil. Domicil of choice is an inference drawn by the law from the fact
of a man voluntarily fixing his chief residence in a particular place with an intention or
continuing to reside there for an unlimited time. According to English law the inference is that
the man has thereby attracted to himself the municipal law of the territory in which he has
voluntarily settled, so that it becomes the measure of his personal capacity per Lord Watson
in Abd-Ul-Messih v. Farra. n(2) Lord Watson therefore does not import into municipal law the
theory of international law which sets renvoi in motion. If a person is de facto domiciled in
France the law of the domicil is applied, because he attracts to himself the municipal law, but
not the theory of the conflict of laws. It is submitted that by the law of domicil English Courts
mean the internal municipal law of the country which is applicable to a national of that
country. That was the solution adopted by the Surrogates' Court of New York in Re
Tallmadge. n(3)

Preston K.C. and Kenneth Wood for the pecuniary legatees under the will. The testatrix never
lost her domicil of origin, and therefore her movables are distributable according to English
law. She could only acquire a French domicil by complying with the formalities of French law
contained in

n(1) (1878) 9 Ch. D. 441, 455.

n(2) (1888) 13 App. Cas. 431, 439.

n(3) New York Law Journal, Oct. 17, 1919; 36 Law Quarterly Review, 91.

art. 13 of the Code Napol on, and that she never did. Residence alone will not get rid of the
domicil of origin, and the onus of proving that a domicil has been chosen in substitution for
the domicil of origin lies upon those who assert it. Unless a fixed and settled purpose to
acquire a new domicil be proved the domicil of origin continues: Winans v. Attorney-General.
n(1) There is no doubt here about the residence in France, but the animus manendi is
rebutted by the declarations in the will and codicil of the testatrix, and by her not complying
with the formalities of French law as to domicil. To establish a domicil of choice this Court
must be satisfied that it has been adopted animo et facto. It is essential there should be
animus and factum. But French law, unless a decree has been obtained by the propositus
under art. 13 of the Code, declines to recognize that the domicil is French. No change is
effectual unless the factum is proved, and the factum cannot exist in a country which refuses
to recognize it: In re Johnson n(2) ; In re Bowes. n(3) Domicil in its legal meaning is
something more than the fact of physical residence coupled with animus manendi. It
connotes also a legal relation to the laws of the country of residence by which questions
relating to the personal status of the individual are determined: Casdagli v. Casdagli. n(4)
Assuming that according to English law the testatrix had only acquired a de facto French
domicil then French law would distribute her property according to the law of her nationality.
The decisions of the Cour de Cassation are not binding on the lower Courts, and although it
was decided in the Forgo case n(5) and in the Souli case n(6) that renvoi has a place in
French law, yet there are other decisions to the contrary effect: see 120 L. T. J. 237;
Westlake's Private International Law, 7th ed., p. 34. The effect of the decision in In re
Johnson n(7) is to deal a death blow to the theory of renvoi in respect to succession to
movables so far as England is concerned.

n(1) [1904] A. C. 287, 290, 291.

n(2) [1903] 1 Ch. 821, 828.

n(3) 22 Times L. R. 711.

n(4) [1918] P. 89, 101.

n(5) Clunet (1883), 64.

n(6) Clunet (1910), 888.

n(7) [1903] 1 Ch. 821.

Roope Reeve K.C. and C. L. Fawell for persons entitled to a trust legacy. The testatrix
retained her domicil of origin. She could not obtain a de facto domicil in France, because
French law does not recognize a de facto domicil as entailing any legal consequences: In re
Johnson n(1) ; In re Bowes n(2) ; Hamilton v. Dallas. n(3) In this case a French Court would
apply the national law of the deceased. French Courts examine the evidence before them to
ascertain what the foreign law is, and in each case there is a decision on the question of fact
before the Court. These decisions do not establish that the theory of renvoi is part of the law
of France, but that the Cour de Cassation takes the view that under some foreign law the
case would be decided by French law.

Therefore here the question is what in a French Court would be the French view of the English
law, and as to that an English Court would assume that the French Court would decide rightly
what was the English law. I submit that because of the decision in In re Johnson n(1) the
expert witness would say that English internal law is applicable. In re Bowes n(2) is a direct
authority to that effect. Those cases show that English law ignores the theory of renvoi, and
in such a case as this applies English law. The origin of the rule that the law of the domicil
governs the succession to movables is based on convenience and international courtesy. The
rule is satisfied as soon as it is found that the law of the domicil rejects the propositus, and
then both on grounds of convenience and courtesy an English Court will apply English law.

Swords for plaintiff's children, entitled to a trust legacy.

Cur. adv. vult.

May 21.

PANEL: RUSSELL J

JUDGMENTBY-1: RUSSELL J

JUDGMENT-1:
RUSSELL J: stated the facts and continued: The first question to be decided is whether the
domicil of the testatrix was English or French. But for the fact that Mrs. Annesley took no
steps to obtain a formal French domicil

n(1) [1903] 1 Ch. 821.

n(2) 22 Times L. R. 711.

n(3) 1 Ch. D. 257, 260.

according to French law, and both in her will and in a codicil to it declared that it was not her
intention to abandon her domicil of origin - namely, England, there could not I conceive be
any room for doubt as to the position according to English law. She died having acquired a
French domicil of choice. To use the language of Lord Westbury in Udny v. Udny n(1) Mrs.
Annesley fixed voluntarily her sole residence in France, with an intention of continuing to
reside there for an unlimited time. The domicil flows from the combination of fact and
intention, the fact of residence and the intention of remaining for an unlimited time. The
intention required is not an intention specifically directed to a change of domicil, but an
intention of residing in a country for an unlimited time. The above recited facts in my opinion
clearly establish both the necessary fact and the necessary intention.

Those who seek to establish an English domicil naturally place much reliance on the
declarations in her will and codicil. They contend that we have here two statements made at
different times by the lady herself, that she had never intended and did not intend to
abandon her English domicil, and that in the face of these statements it is impossible for the
Court to hold that a French domicil of choice had in fact or in law arisen. The contention is a
tempting one to accede to in view of the fact that the finding of an English domicil would
solve sundry other knotty points of difficulty which lurk in the background. But I feel unable
to accede to it.

It must I think be conceded that domicil cannot depend upon mere declaration, though the
fact of the declaration having been made must be one of the elements to be weighed in
arriving at a conclusion on the question of domicil. But if a particular domicil clearly emerges
from a consideration of the other relevant facts, a declaration of intention to retain some
other domicil will not suffice to destroy the result of those facts. If (as I think she had) Mrs.
Annesley had by the factum of long residence and by her animus manendi

n(1) L. R. 1 H. L. Sc. 441, 458.

acquired before the date of her codicil a French domicil of choice, her statement that she
never intended to abandon her English domicil will not prevent the acquisition of a French
domicil of choice, unless weighing the statement with the other relevant facts the Court
comes to the conclusion that the animus manendi had not been established.

In this view it is important to consider the circumstances in which the declaration was made.
I gather from the documents that when Mr. Mellersh wrote his letter of November 25, 1919,
enclosing a draft will, the draft will did not, in all probability, contain any such declaration. In
the will as executed it follows the revocation clause, a clause which usually appears at the
commencement or at the very end of a will. In his letter occurs the following passage: "I have
drawn the will on the assumption that though you have resided in France for many years and
own your house there, you have not lost your English domicil. In other words have you
obtained a decree in France permitting you to establish your domicil in France? This is not
generally done except as a preliminary step towards naturalisation." That passage would
appear to tell Mrs. Annesley that she would not have lost her English domicil if she had not
obtained a decree in France. The question he asks her is confined to the point whether she
had obtained such a decree. He does not ask the material question - do you intend continuing
to live in France or do you intend to return to England and establish your home there?
The answer of Mrs. Annesley appears to me addressed solely to the question put to her: "I
have made no declaration of any kind as to a French domicil. I retain my English domicil." In
other words she is stating that the step, which Mr. Mellersh had said was necessary to cause
the loss of the English domicil, had not been taken by her, and that accordingly she retained
her English domicil. What her answer would have been to the material question, had it been
put to her, the other facts of the case leave no room for doubt. There was not the remotest
intention in her mind of removing her home from France, where she had lived

continuously for over fifty years, to England, a country which she disliked and whose people
she disliked.

The repetition of her declaration in the codicil of 1921 carries the matter no further. The extra
years of her age only render an intention to uproot and transplant herself all the more
unlikely.

It may be, as was suggested, that the insertion of the declarations was due to a desire to
avoid litigation such as occurred on the occasion of her mother's death. If so she has been
sadly disappointed. In any event the question of her domicil must be determined not by her
statement alone, but by a consideration of all the relevant facts. Upon such consideration I
have come to the conclusion and decide that according to English law she died domiciled in
France.

It was however contended that assuming that all the relevant facts do establish a French
domicil, yet in the particular case it was according to English law impossible for Mrs. Annesley
to have acquired a French domicil - because not having taken the steps prescribed by art. 13
of the Civil Code she was not and could not be a domiciled Frenchwoman in the eyes of the
law of France. In other words the proposition is that no one can, according to English law,
acquire a domicil of choice in a foreign country unless that person has also acquired a domicil
there according to the law of the foreign country. The contention is founded upon one branch
of the judgment of Farwell J. in the well known case In re Johnson. n(1)

Such a contention appears to me inconsistent with many decisions in the Courts of this
country. In In re Martin n(2) Lindley M.R. clearly lays it down that domicil is to be determined
by English law. His judgment is no doubt a dissenting judgment, but the effect of his views
upon this particular point is not weakened or affected by that fact. "The domicil ... must be
determined by the English Court ... according to those legal principles applicable to domicil
which are recognised in this country and are part of its law." If it were otherwise the question
whether an

n(1) [1903] 1 Ch. 821.

n(2) [1900] P. 211, 227.

individual were domiciled in France (or in any other country which requires the fulfilment of
certain legal requirements before a person can be considered by the Court of that country as
domiciled in that country) would be solved quite easily in every case by ascertaining whether
those legal requirements had or had not been fulfilled. Yet there have been numerous cases
(some of which appear in the books) in which the question has always been considered and
answered by an elaborate consideration of the various facts and circumstances in each case.

In Hamilton v. Dallas n(1) Lord Howden was held to have died domiciled in France - but he
had acquired no legal domicil there according to French law. In Bremer v. Freeman n(2) an
Englishwoman was held domiciled in France - she had not complied with the provisions of art.
13 of the Code. In Collier v. Rivaz n(3) an Irishman was held domiciled in Belgium (where the
Code Napol on applies), notwithstanding that he had not complied with art. 13: see too
Anderson v. Laneuville. n(4)
The view that no domicil in a foreign country can be acquired in the eyes of the English law
unless such domicil has also been acquired in the eyes of the law of the foreign country
appears to be based on two cases only - namely, the decision of Farwell J. in In re Johnson
n(5) and a case, reported only in the Times Law Reports, of In re Bowes. n(6)

In re Johnson n(5) was the further consideration of an action in which various inquiries had
been ordered upon which the Master had made his certificate, which was binding upon the
parties. The question to be determined in the action was who was entitled to the undisposed
of personal estate of a testatrix whose will contained no residuary bequest. The certificate
found that at the date of her will and death she was domiciled in Baden, and that according to
the law of Baden the legal succession to that part of her property which was undisposed of by
her will was governed by the

n(1) 1 Ch. D. 257.

n(2) 10 Moo. P. C. 306.

n(3) 2 Curt. 855.

n(4) (1854) 9 Moo. P. C. 325.

n(5) [1903] 1 Ch. 821.

n(6) 22 Times L. R. 711.

law of the country of which she was a subject at the time of her death. She was born in
Malta, a British subject. She had never been legally naturalized in Baden. There was no
suggestion that she had ever ceased to be a British subject. The question submitted to the
Court was whether the persons entitled to the undisposed of personal estate were to be found
according to Maltese law or English law. Mr. Justice Farwell, to put it shortly, held that since
the testatrix was not domiciled in Baden in the eyes of the law of Baden, the Baden domicil
was for this purpose no domicil at all, and that therefore the testatrix having failed to acquire
an effectual domicil of choice, her Maltese domicil of origin remained. He held, therefore, that
the persons entitled must be ascertained according to the law of the domicil of the testatrix -
namely, the law of Malta. Having disposed of the case on this ground, he proceeds to arrive
at the same result by a different route.

There can, I think, be no doubt that the first ground of the decision involves the view that a
domicil in a foreign country not recognized by the law of that country is, in the eye of the
English law, no domicil at all.

This aspect of In re Johnson n(1) has been subjected to criticism at the hands of Scrutton L.J.
in a judgment dissenting from the decision of the Court of Appeal in Casdagli v. Casdagli.
n(2) The decision of the Court of Appeal was reversed in the House of Lords n(3) , who
approved entirely of the judgment and reasoning of Scrutton L.J.

If In re Johnson n(1) stands alone as a decision, and if I am free - and I think I am - to follow
my own view, I would prefer to follow what I have always considered the true view - namely,
that the question whether a person is or is not domiciled in a foreign country is to be
determined in accordance with the requirements of English law as to domicil, irrespective of
the question whether the person in question has or has not acquired a domicil in the foreign
country in the eyes of the law of that country.

n(1) [1903] 1 Ch. 821.

n(2) [1918] P. 89, 109.

n(3) [1919] A. C. 145, 194.

It is said, however, that In re Johnson n(1) does not stand alone, but that Swinfen Eady J.
came to the same conclusion and adopted the same view in In re Bowes. n(2) I have had the
advantage of reading the shorthand notes of the entire proceedings in that case, and I have
no hesitation in saying that the case should never have been reported. The point was neither
discussed nor argued; nothing was cited of In re Johnson n(1) except the headnote. The
question arose in connection with succession duty. If English law applied certain succession
duty was payable. If French law applied it was not payable. The parties before the Court
whose interest it was to argue that the duty was not payable stated that in order to obtain a
speedy administration of the estate they preferred that succession duty should be paid and
the estate administered according to English law; and the judge, without in any way applying
his mind to the question whether In re Johnson n(1) was correctly decided or not, simply
followed In re Johnson n(1) , as all parties desired that he should. The case is of no value as
a decision, and should, I repeat, never have been reported.

In the result I prefer to adopt the view stated by Lindley M.R. in In re Martin n(3) , and I hold
that the question whether Mrs. Annesley died domiciled in France must be answered by
ascertaining whether she had abandoned her English domicil and had acquired a French
domicil of choice in accordance with the requirements of English law - namely, by the factum
of residence coupled with the animus manendi, and that regardless of the question whether
she had or had not complied with the formalities required by French law to be carried out by
her before she could rank in its eyes as a domiciled Frenchwoman.

I accordingly decide that the domicil of the testatrix at the time of her death was French.
French law accordingly applies, but the question remains: what French law? According to
French municipal law, the law applicable in the case of a foreigner not legally domiciled in
France is

n(1) [1903] 1 Ch. 821.

n(2) 22 Times L. R. 711.

n(3) [1900] P. 211, 227.

the law of that person's nationality, in this case British. But the law of that nationality refers
the question back to French law, the law of the domicil; and the question arises, will the
French law accept this reference back, or renvoi, and apply French municipal law?

Upon this question arises acute conflict of expert opinion. Two experts took the view that the
renvoi would not be accepted, but that a French Court would distribute the movables of the
testatrix in accordance with English municipal law. One expert equally strongly took the view
that a French Court would accept the renvoi and distribute in accordance with French
municipal law. I must come to a conclusion as best I can upon this question of fact upon the
evidence after considering and weighing the reasons given by each side in support of their
respective views. It is a case rather of views expressed by the experts as to what the French
law ought to be, than what it is. Although there is in France no system of case law such as we
understand it here - the decisions of higher Courts not being binding upon inferior tribunals
n(1) - yet I think I must pay some attention to the fact that this question of renvoi has at
different times come for consideration before the Cour de Cassation, the highest Court in
France, and each time with the same result - namely, the acceptance of the renvoi and the
application of the French municipal law. It is true that the Cour de Cassation is quite free to
take the opposite view on a future occasion, but it has never done so. I refer to the cases
which were discussed and expounded before me - namely, the Forgo case n(2) in 1882, and
the Souli case n(3) in 1910. In the former case, a decision of the Cour de Cassation, the
renvoi was accepted, and French municipal law was applied to the disposition of the estate of
a Bavarian national domiciled de facto in France (but not domiciled there according to French
law), because according to Bavarian law the law of the domicil or usual residence was
applicable. The Forgo

n(1) [Nevertheless controverted points may be finally settled by a uniform current of

doctrine, "jurisprudence constante." - F. P.]

n(2) Clunet (1883), 64.

n(3) Clunet (1910), 888.

case gave rise to grave differences of opinion among French jurists and was followed by many
conflicting decisions in lower Courts, some favouring the "Th orie du Renvoi" n(1) , others
against it. The matter again came under the consideration of the branch of the Cour de
Cassation entitled Chambre de Requ tes, one of whose functions is to decide whether or not
an appeal to the Cour de Cassation should be allowed to proceed. That was the Souli case, in
which the Court below had held that French municipal law governed the succession to the
movable property of an American subject who had died in France with a de facto domicil in
that country. The Chamber declined to allow an appeal to the Cour de Cassation to proceed.
This decision, coming as it did after the grave differences of opinion which resulted from the
Forgo case, strikes me as of great importance. As is pointed out in a note to the report in
Clunet n(2) it shows that the Supreme Court persists with energy in its former view,
notwithstanding the views of text writers to the contrary.

In these circumstances, and after careful consideration of the evidence of the experts called
before me, I have come to the conclusion that I ought to accept the view that according to
French law the French Courts, in administering the movable property of a deceased foreigner
who, according to the law of his country, is domiciled in France, and whose property must,
according to that law, be applied in accordance with the law of the country in which he was
domiciled, will apply French municipal law, and that even though the deceased had not
complied with art. 13 of the Code.

The result is that as regards her English personal estate and her French movable property the
testatrix in this case had power only to dispose of one-third thereof by her will.

Speaking for myself, I should like to reach the same conclusion by a much more direct route
along which no question of renvoi need be encountered at all. When the

n(1) [English writers (e.g., Dicey, Appendix, Note 1) appear to use the term "doctrine of the
renvoi" in a sense exactly contrary to this, meaning the view which the Court of Cassation
rejected. - F. P.]

n(2) Clunet (1910), 888, 892.

law of England requires that the personal estate of a British subject who dies domiciled,
according to the requirements of English law, in a foreign country shall be administered in
accordance with the law of that country, why should this not mean in accordance with the law
which that country would apply, not to the propositus, but to its own nationals legally
domiciled there? In other words, when we say that French law applies to the administration of
the personal estate of an Englishman who dies domiciled in France, we mean that French
municipal law which France applies in the case of Frenchmen. This appears to me a simple
and rational solution which avoids altogether that endless oscillation which otherwise would
result from the law of the country of nationality invoking the law of the country of domicil,
 while the law of the country of domicil in turn invokes the law of the country of nationality,
and I am glad to find that this simple solution has in fact been adopted by the Surrogates'
Court of New York. n(1)

Certain other subsidiary questions arise. In consequence of the restrictions on the power of
the testatrix to dispose of her property, the legacies bequeathed by the English will cannot be
paid in full. The will, in my opinion, is so worded that the pecuniary legacies given by cl. 2 of
the will must be paid in full before any of the sums mentioned in cl. 4 of the will are set apart
or paid. These last mentioned sums must if necessary abate rateably.

SOLICITORS:
Solicitors: Reid Sharman & Co.; Ellis & Ellis; Routh, Stacey & Castle, for Colbourne, Bush &
Bartlett, Brighton.

n(1) Re Tallmadge, New York Law Journal, Oct. 17, 1919, quaere whether reported
elsewhere: see 36 Law Quarterly Review, 91. The New York decision referred to is officially
reported in the "Miscellaneous Reports" (of cases in the State Courts inferior to the Appellate
Division of the Supreme Court of N. Y.) Sub. nom. Matter of Chandler, 109 Misc. (N. Y.) 696.

J. B. B. M.

(c)2001 The Incorporated Council of Law Reporting for England & Wales

Re Ross [1930] 1 Ch 377

In re ROSS.

ROSS v WATERFIELD.

[1928. R. 1040.]

[CHANCERY DIVISION]

[1930] 1 Ch 377

HEARING-DATES: 19, 22, 23, 24, 25, July 14 November 1929

14 November 1929

CATCHWORDS:
Conflict of Laws - Renvoi - English and Italian Testamentary Dispositions by Widow - British Domicil of Origin
- Italian Domicil at Death - Claim of Son to Legitima Portio - Italian Municipal Law - Movable and Immovable
Property - Lex situs - "The Law of the Domicil."

HEADNOTE:
The law of the domicil, which governs the succession to movable property belonging to British nationals dying
domiciled in a foreign country:-

Held, on the English authorities to mean the whole law of the country of domicil, including the rules of private
international law administered by its tribunals. The English Courts are therefore solely concerned to inquire what
the Courts of that country would decide in the particular case.

An Englishwoman whose domicil of origin was English but who at the date of her death was a widow, domiciled
in Italy, by her testamentary dispositions excluded her son (and only child) from any participation in her movable
and immovable property situate in Italy and in her movable property situate elsewhere than in Italy:-

Held, that the question whether the son was entitled to a moiety of her estate as his legitima portio must be
decided in accordance with the view that the Italian Courts would take of the English law. On the evidence
adduced that view appeared to be that the testamentary dispositions of the testatrix were valid, and made proper
provision for the dispositions of her property in Italy, and that the son's claim to any part of her estate as his
legitima portio would not under any circumstances be recognized, as it would have been if the testatrix had been
an Italian national.

As regards the immovable property of the testatrix situate in Italy:-

Held, that as the lex situs must be held to govern the succession to immovables, the law of the country where the
immovables are situate must determine the right of succession, and the evidence showed that the Italian Courts
would decide the question of the succession in the same manner as the English Courts would determine it, if the
immovable property belonged to an Englishman and was situate in England.

INTRODUCTION:
ACTION.

By his statement of claim the plaintiff claimed a declaration (inter alia) that by virtue of the domicil of his mother
at the date of her death (the domicil being Italian), he, as her only child, was entitled, notwithstanding her
testamentary dispositions (under which he derived no benefit), to one moiety

of her movable and immovable property situate in Italy, and to one moiety of her movable property situate
elsewhere than in Italy; and also that so far as might be necessary that the personal estate of the testatrix (other
than assets locally situate in Italy) might be administered by the Court with all necessary accounts and inquiries.

The following statement of facts is substantially taken from the judgment of Luxmoore J.:-

The plaintiff, Alexander Gordon Ross, was the only child of Henry James Ross and Janet Anne Ross his wife,
and was born in the year 1862. His father, Henry James Ross, was born on March 9, 1820, in the island of Malta.
There was some suggestion on the part of the defendant that Henry James Ross was illegitimate, but on the
evidence adduced in the action, the learned judge said that in his opinion it would be quite impossible to come to
this conclusion, and he was satisfied that on the evidence before him, he was bound to hold - as in fact he did -
that Henry James Ross was the legitimate son of his parents, that he was born in Malta, and consequently that he
was of British nationality, his domicil of origin being Maltese. Henry James Ross resided with his parents in
Malta until the year 1837. In that year he became an officer in the British consular service, and in 1839 having
left that service, entered a cotton business at Alexandria in Egypt and went to reside there. In the year 1860 he
came to England on a visit, and while in England married at Ventnor, in the Isle of Wight, Janet Anne Duff
Gordon, a daughter of Sir Alexander Cornwall Duff Gordon, Baronet, and Dame Lucy Duff Gordon, his wife. It
was admitted for the purposes of the action, that Sir Alexander and Lady Duff Gordon were British subjects, and
that their domicil of origin was English, and consequently that the domicil of origin of their daughter Janet Anne
was also English. Janet Anne Duff Gordon was at the date of her marriage to Henry James Ross an infant. The
usual proceedings to enable her to make a binding settlement on her marriage were instituted under the Infants'
Settlement Act, 1856, and a settlement was in fact executed under an

order made in those proceedings. The learned judge said that there was no need to refer to this settlement or its
contents so far as the main question in the action was concerned.

At the date of the marriage it was admitted for the purposes of the action that Henry James Ross was domiciled
in Egypt and had his residence in Alexandria. After the marriage was solemnized, Janet Anne Ross accompanied
her husband Henry James Ross to Egypt, and lived with him in Alexandria. In 1862 the plaintiff was born. He
was the only child of the marriage of his parents. In 1866 Henry James Ross and Janet Anne Ross left Alexandria
and set up their home in Turin. In 1868 they moved again, and this time went to Florence, where they lived
together until the death of Henry James Ross. In 1888 Henry James Ross purchased a mansion and estate near
Settignano, Florence, known as Poggio Gherardo, and he and his wife lived there from the date of the purchase
down to the year 1902, when Henry James Ross died. There could be no doubt that the domicil of Henry James
Ross and his wife at that date was Italian. Henry James Ross, by his will, left all his property, including the
mansion and estate near Florence, to his wife Janet Anne Ross. In due course she entered into possession of the
property, and it was a fact that during her lifetime, no claim of any kind was made by the plaintiff to any interest
in any part of that property.

After the death of Henry James Ross in 1902, Janet Anne Ross continued to reside at Poggio Gherardo until her
death at Fiesole on August 23, 1927, being at the date of her death eighty-five years of age. Her testamentary
dispositions were contained in four documents, a will in the English language with two codicils in the same
language, and a will in the Italian language. The English will, which was dated July 6, 1910, was (inter alia) in
the following terms: "I, Janet Anne Ross of Poggio Gherardo ... hereby declare this to be my last will ... which I
make for the purpose of disposing of all my property which at the time of my death shall be actually in England
and of all other my property wheresoever, except any property real or personal locally

situate in Italy which may belong to me at my death, it being my intention to dispose of such my property in Italy
by a separate testamentary disposition already made or hereafter to be made by me." The testatrix then appointed
her niece Caroline Lucy Isabel Waterfield, the wife of Aubrey Waterfield, to be sole executrix of her will, and
there was a provision, for the event (which did not happen) of the niece predeceasing the testatrix. Then followed
certain bequests to servants, and there was a residuary devise and bequest in the following terms: "I devise and
bequeath all the residue of my property (except property whether real or personal which shall be locally situate in
Italy as aforesaid), to my niece Caroline Lucy Isabel Waterfield if living at my death for her own absolute use
and benefit. But if she shall predecease me, then I devise and bequeath the same to my son Alexander Gordon
Ross."

On July 22, 1921, the testatrix executed a first codicil to her will, and by it she gave certain legacies to her
servants and others, and in all other respects confirmed her will. On May 1, 1924, she executed a second codicil
to her will making thereby an alteration in the award of the legacy bequeathed to one of her servants, but
otherwise leaving her will unaltered, except so far as provided by her first codicil. On May 23, 1924, Janet Anne
Ross made a will in the Italian language. The agreed translation was in these terms: "I, the undersigned Janet
Anne Ross, born Duff Gordon, residing in the afore-named locality" - that is Poggio Gherardo, near Settignano,
Florence - "do by this my last will and testament appoint as heir to the whole of the property which I may possess
in Italy at my death, movable as well as immovable, and in particular the villa and estate of Poggio Gherardo, ...
to my grand-nephew Aymand Victor Arthur Waterfield, (a defendant in the action), and if he should predecease
me, I appoint in his place his brother O. H. G. Waterfield. However I leave the usufruct of the said property, for
the term of her natural life, to my niece Carolina Lucy Isabella Waterfield, the mother of my said heirs, and I also
leave to her any jewellery, shawls, lace and wearing apparel. I

appoint the advocate Alfredo Venturi as my testamentary executor." There were further directions for the
payment of debts and certain legacies to servants.

The English will with its two codicils was duly proved by the defendant, Caroline Lucy Isabel Waterfield, on
May 16, 1928. No question was raised as to the validity of the English will and the two codicils or any of them;
nor was any question raised as to the validity of the Italian will, it being admitted that for the purposes of the
action, this will conformed with the requirements of Italian law and was executed by Janet Anne Ross in the
manner required by that law.

The testatrix left considerable property both in England and in Italy, the bulk of her property in Italy being the
villa and estate known as Poggio Gherardo. As will have been noticed, neither by her English testamentary
dispositions nor by her Italian will, did the testatrix, Janet Anne Ross, in the events which had happened, leave
anything to her son, the plaintiff, for the defendant, Mrs. Waterfield, and her two sons both survived the testatrix.
The plaintiff thereupon issued a writ dated May 17, 1928, and by his statement of claim (inter alia) sought the
declaration set out above.

Alternatively the plaintiff alleged that if - contrary to his contention - Italian municipal law was not applicable,
then Maltese law applied by virtue of the birth of his father, Henry James Ross having taken place in Malta, and
by the marriage of his mother to his father in the year 1860. He therefore claimed that under the Maltese
Ordinance No. VII. of 1868, arts. 313 and 314, he was entitled to one-third of the movable and immovable
property of the testatrix situate in Italy, and to one-third of her movable property situate elsewhere than in Italy.

The defendants denied that Italian law applied and also refused to admit that Maltese law was applicable or that,
if either did apply, the plaintiff was entitled to one moiety or to one-third of the estate of the testatrix; and they
contended in the alternative, that if Italian law or Maltese law was applicable (which they denied), the plaintiff
would have to bring into hotchpot, the property to which he was

entitled under his mother's marriage settlement and certain payments made by the testatrix for the maintenance of
the wife of the plaintiff.

COUNSEL:
Sir Gerald Hurst K.C. and J. N. Gray for the plaintiff. There can be no question that the testatrix Janet Anne Ross
was at the date of her death domiciled in Italy. As her only child, the plaintiff is entitled to her movable and
immovable property, as stated in the statement of claim. The law of the domicil governs the succession to
movable property wherever situate, and therefore the testamentary dispositions of the testatrix so far as it affects
her movable property is governed by Italian law. As regards the immovable property situate in Italy, that is in the
same position as the movable property in Italy. It is submitted that the Court must apply the same law as the
Italian Courts would apply to their own nationals, that is the municipal law of Italy. This question raises what is
known as the doctrine of renvoi, which is not generally accepted by the Italian Courts.

The testatrix by establishing a domicil in Italy attracted to herself the law of Italy as regards her powers of
testation; that is to say, the municipal law of Italy which would apply to Italian nationals: Udny v. Udny n(1) ;
Bremer v. Freeman n(2) ; Hamilton v. Dallas. n(3) The alternative view that the "law of Italy" means its whole
law, including its rules of private international law whereby an Italian Court would refer the powers of the
testatrix to the law of her nationality, would have the effect of (a) stultifying the English principle of looking to
the law of the domicil, and (b) of forcing an illogically narrower construction on the phrase "law of the
nationality" than on the phrase "law of the domicil," for if the latter includes its rules as to the conflict of laws,
why should not the former?

There is, however, no justification for introducing this type of renvoi into English law: In re Johnson n(4) , a
decision

n(1) (1869) L. R. 1 H. L. Sc. 441, 452, 457, 458.

n(2) (1857) 10 Moo. P. C. 306.

n(3) (1875) 1 Ch. D. 257.

n(4) [1903] 1 Ch. 821.

which it is submitted ought not to be followed. There the case for a Baden domicil was not argued, and the
decision is not in accordance with the other authorities: see Pawley Bate on the Doctrine of Renvoi, 1904, p.
117n.

Renvoi is unnecessary if the true view is that English law means by "the law of the country of domicil," its
internal law, that is, that law as it would apply to its own nationals: Abd-ul-Messih v. Farra n(1) , which on this
point has not been criticized in Casdagli v. Casdagli. n(2) The contention which we advance was argued in In re
Annesley n(3) , and viewed with favour by Russell J. He calls it the "simple and rational solution."

Except for the passages in Dicey's Conflict of Laws, 4th ed., pp. 812, 816, 817, 820, 821 et seq., there is a strong
bias of juristic opinion in favour of the plaintiff's contention: see Law Quarterly Review, vol. xxxvi., 1920, p. 91;
and see generally Pawley Bate on the Doctrine of Renvoi, 1904, pp. 115 to 117; Law Quarterly Review, vol. xlii.,
1926, p. 435. The American case of In re Tallmadge n(4) is in point and was rightly decided on English
principles: see also Baty's Polarized Law, 1914, pp. 115 et seq. on Renvoi.

The propositus attaches to himself the municipal law of the place where he lives, and it becomes his local law of
succession. The distinction between municipal law and international law should be borne in mind: The Zamora.
n(5)

There are no clear decisions for the guidance of the Court whether the doctrine of renvoi has been accepted; it is
an open question. The English Courts look to the law of domicil, the Italian Courts that of nationality; and there
is no clear authority of the English Courts stultifying the primary principle of applying the internal law of
England.

With regard to the alternative claim of the plaintiff, if we are wrong on the question of the application of Italian
law, then we rely on the law of Malta. The Maltese Ordinance

n(1) (1888) 13 App. Cas. 431.

n(2) [1919] A. C. 145.

n(3) [1926] Ch. 692, 708, 709.

n(4) (1919) 181 New York Supplement (215 New York State Reporter), 336; 36 Law Quarterly Review, 91; 43
Law Quarterly Review. 22.

n(5) [1916] 2 A. C. 77, 91.

No. VII. of 1868, arts. 313 and 314, enables the plaintiff to claim one-third of the testatrix's movable and
immovable property situate in Italy, and one-third of her movable property situate elsewhere.

Assuming that the internal law of the domicil does not govern the testamentary powers of the testatrix, the Court
has to apply that of "nationality." A wife has now no "nationality" and no domicil apart from her husband: see the
Naturalization Act, 1870. n(1) Formerly she could have a different domicil from her husband: A.-G. for Alberta v.
Cook. n(2) If a husband becomes denaturalized, a wife would also lose her nationality. Here the husband's
nationality was British, but it is that of a Briton whose birthplace and domicil of origin was Malta. Therefore the
law of the nationality was Maltese and the widow became Maltese on her marriage, and her nationality never
afterwards changed.

Further, if Italian municipal law applies on the evidence as to the hotchpot provisions in the settlement made on
the marriage of the testatrix, this settlement is clearly outside the definition of gifts which a son is required to
bring into hotchpot.

On the question of hotchpot, the law of Malta and Italy is the same; this latter law is applicable to Maltese law.

Lionel Cohen K.C. and Wilfrid Hunt for the defendants. The plaintiff's claim, it is submitted, cannot be
successful. On the question of his right to a moiety of the testatrix's movable and immovable property situate in
Italy and her movable property situate elsewhere than in Italy, the argument put forward on his behalf is, it is
submitted, not enough to outweigh the clear principle which can be found running through all the decided cases
on this particular point. The plaintiff has based his claim primarily on the remarks of Russell J. in In re Annesley.
n(3) It is submitted that it is impossible to treat this dictum of the learned judge as correct. It is not in accord with
the decision in In re Johnson n(4) , and

n(1) 33 Vict. c. 14, s. 10, sub-s. 1.

n(2) [1926] A. C. 444, 460, 465.

n(3) [1926] Ch. 692, 708, 709.

n(4) [1903] 1 Ch. 821.

is in direct conflict with the previous current of authority, based as it is on one clear principle which runs through
all the cases. The argument against the legality of the plaintiff's claim can be seen in the opinion put forward by
eminent jurists: see Dicey's Conflict of Laws, 4th ed., p. 811, Note 1. All the cases are consistent with the view of
the author therein expressed.
Here it is submitted that what an English Court has to do is - in the case of a testatrix admittedly domiciled in
Italy - to decide the case in the same way as an Italian Court if dealing with the same case would decide it. The
note in Halsbury on the Laws of England, vol. vi., para. 335, pp. 222, 223, n. (r), is relied on; there the question
of how the doctrine of renvoi is dealt with is considered, and in our contention the views therein considered are
correct. The evidence here is conclusive that Italian law would apply English law to the case of the plaintiff, and
therefore he is not entitled to his legitima portio under Italian law: see further Bentwich on Domicil and
Succession, 1911, p. 135; and Westlake on Private International Law, 7th ed., pp. 29, 35. The textbooks are
uniform and support the view that you have to look at the whole law, that is the law of the domicil: see also
Dicey on the Law of Domicil, 1879, pp. 85, 296.

The cases seem to adopt the principle put forward by the defendants: see the early cases, De Bonneval v. De
Bonneval n(1) ; Collier v. Rivaz n(2) , and the earlier cases set out in Westlake on Private International Law, 7th
ed., p. 121, ssss 83, 84, which are consistent with our contention: see also Bremer v. Freeman n(3) , referred to in
Bentwich on Domicil and Succession, 1911, p. 167; also In re Trufort n(4) ; and Casdagli v. Casdagli n(5) , for
the dissenting judgment of Scrutton L.J. on the law of domicil, and the same case in the Court of Appeal. n(5)
The dictum of Russell J. in In re Annesley n(6) cannot be supported, and is not substantiated

n(1) (1838) 1 Curt. 856.

n(2) (1841) 2 Curt. 855, 861.

n(3) 10 Moo. P. C. 306, 312, 359, 373.

n(4) (1887) 36 Ch. D. 600, 602, 609, 612, 618.

n(5) [1918] P. 89, 106, 116, 117, 119; [1919] A. C. 145, 169, 175, 191, 202.

n(6) [1926] Ch. 692, 708, 709.

by any of the previously decided cases. In re Johnson n(1) is relied on: see the remarks of Farwell J. The domicil
of origin of the testatrix is English, she was a British subject, and on this point English law applies: see also In re
Johnson. n(1) She only changed her domicil on marriage: see on this point Dicey's Conflict of Laws, 4th ed., pp.
126, 127; and Foote on Private International Law, 5th ed., pp. 87, 88.

The question has also been raised whether English or some other system of law enforceable in the British Empire
can be applied. The plaintiff has argued that Maltese law might be applied, because that law was the law in force
in the place where the husband of the testatrix had his domicil of origin. During the marriage neither the testatrix
nor her husband had been domiciled in Malta, and although during her husband's lifetime the testatrix could not
have obtained a domicil different from that of her husband, she was free to do so after his death. Had she, for
instance, removed her home to Germany with the intention of making it her permanent home, there would be no
question but that she would have obtained a German domicil and died domiciled in Germany. In these
circumstances if it was necessary to fix her domicil artificially, for instance a domicil of origin, it is that and not
her late husband's which counts, and it is of course admitted that her domicil of origin was English: see Dicey's
Conflict of Laws, 4th ed., pp. 125, 126, 127.

Sir Gerald Hurst K.C. in reply. The plaintiff is entitled to succeed. The American case of In re Tallmadge n(2) is
relied on: and see Baty's Polarized Law, 1914, p. 116. Our contention would avoid the renvoi. It is submitted the
Court ought not to adopt the narrow construction: see Pawley Bate on the Doctrine of Renvoi, 1904, pp. 110,
114, for his criticism on Collier v. Rivaz. n(3) There is really no clear line of authority, but see Anstruther v.
Chalmer n(4) as to the view the Court then took of domicil.

n(1) [1903] 1 Ch. 821, 828, 831, 832.

n(2) 181 New York Supplement (215 New York State Reporter), 336.
n(3) 2 Curt. 855.

n(4) (1825) 2 Sim. 1.

As regards the defendant's contention on the question of the Maltese domicil, it is submitted that to look at the
domicil of origin is wrong. As to a wife's domicil being that of her husband, see Lord Merrivale in A.-G. of
Alberta v. Cook. n(1)

Cur. adv. vult.

Nov. 14.

PANEL: LUXMOORE J

JUDGMENTBY-1: LUXMOORE J

JUDGMENT-1:
LUXMOORE J: The plaintiff in this action seeks a declaration that he is entitled, notwithstanding the
testamentary dispositions made by his mother, Mrs. Janet Anne Ross, to one moiety of her movable and
immovable property situate in Italy, and to one moiety of her movable property situate elsewhere than in Italy.
There is an alternative claim to one-third of the same property. These claims are made in the following
circumstances. [His Lordship read the facts as substantially set out above.]

The plaintiff's claim is that notwithstanding the testamentary dispositions of his mother, Janet Anne Ross, he
became entitled on her death as her only child to one moiety of her immovable property situate in Italy, and to
one moiety of her movable property, whether situate in Italy or elsewhere, on the ground that this moiety
constitutes his legitima portio under the Italian law. No distinction was in fact drawn in the argument between the
movable and immovable property in Italy. It may well be that in the result each class of property devolves in the
same way, yet logically I think the two classes should be dealt with separately, and this I propose to do. There can
be no room for doubt on the evidence as to the domicil of Janet Anne Ross at the date of her death, and I have no
difficulty in holding that her domicil was Italian. Indeed I do not think that there was any dispute between the
parties on this head.

I will deal first with the movable property. Both the plaintiff's and defendants' counsel agree that by English law,
the succession to movable property wherever situate is governed by the law of the domicil, in this case the law of
Italy. In Italy, as in most of the European countries, the law refuses to recognize domicil as governing succession
and

n(1) [1926] A. C. 444, 460.

other personal rights, and accepts the law of the nationality as the governing law. The material sections of the
Italian Code are arts. 6, 8 and 9 of the Preliminary Title. These articles so far as material to the present case
provide as follows: (I am reading from the agreed translation) "Article 6. The status and capacity of persons and
the family relations are regulated by the law of the nation to which they belong."

Art. 8: "Succession, either under an intestacy or under a will, whether as regards the order of succession or the
measure of the rights of succession, or the intrinsic validity of the testamentary disposition, is regulated by the
national law of the person whose estate is in question, and this whatever may be the nature of the property or the
country in which it is situate." Art. 9, para. 2, says: "The substance and effect" - I am reading it shortly, so far as
it is material to this case - "of ... testamentary dispositions are deemed to be governed by the national law of
the ... testator." As I have already stated, the parties are agreed that "the law of the domicil," governs the
succession to the movable property. The dispute which arises between them and which I have to determine, is
what is meant by "the law of the domicil." Does the phrase, so far as the English law is concerned, mean only
that part of the domiciliary law which is applicable to nationals of the country of domicil (sometimes called "the
municipal law," or "the internal law"); or does it mean the whole law of the country of domicil, including the
rules of private international law, administered by its tribunals? If the former contention is correct, then the
English Court, in deciding a case like the present, is not concerned to inquire what the Courts of the country of
domicil would in fact decide in the particular case, but what the Courts of the domicil would decide if the
propositus, instead of being domiciled in the foreign country, was also a national of that country. Whereas if the
latter view is the correct one, the English Court is solely concerned to inquire what the Courts of the country of
domicil would in fact decide in the particular case. In my opinion the latter is the correct view, as laid down by
the English decisions, and there is no decision that has been quoted to

me in argument or that I have been able to discover which supports the former view, though there is a dictum in
the most recent case dealing with the question, which expresses approval of that view. I refer to the dictum of
Russell J. in In re Annesley. n(1) I will deal with this case and the dictum in it, later.

The argument against the view that the law of the country of domicil, means the whole of the law of that country,
including its rules of private international law, is based on a claim that if this be the meaning of the expression
"the law of the domicil," then logically the meaning of the expression "the law of the nationality" must also mean
the whole of that law, including its rules of private international law; and it is said that if this be the true rule, the
English Court, in effect, has to say - I am putting the argument in the concrete form applicable to the case before
me - the Italian law provides that the law of the nationality (the English law) is to be the governing law on the
basis that the domicil of origin is English; but as the English law considers the law of the domicil to be the
governing law, there is a further reference back from it to the Italian law as the domiciliary law, the logical result
being an endless oscillation backwards and forwards from one law to the other, the English Court sending the
case back according to the English doctrine of domicil to the Italian Court, and the Italian Court sending it back
again to the English Court according to the Italian doctrine of nationality, and so on ad infinitum; the result being
the establishment of what has been called by some of the text writers a "circulus inextricabilis." The circle can
only be cut if and when one or other of the opposing systems of law - to use once more a phrase adopted by the
text writers - "accepts the renvoi."

Is this argument well founded? Indeed, does it arise at all? It does not in fact arise if the true view of the English
Court is that, by the phrase "the law of the country of domicil" is meant that law which the Courts of the country
of domicil apply to the decision of the case to which the rule refers.

n(1) [1926] Ch. 692, 708, 709.

If this is the correct view, the English Courts in deciding the case "accept the renvoi." Let me illustrate what I
mean by a reference to the question before me. It is admitted on both sides that the English Court must adhere to
the rule that, Janet Anne Ross having died domiciled in Italy, the distribution of her movable property must be
governed by the law of Italy. On the proposition with which I am dealing, this means the law which the Italian
Courts would hold to be applicable to the case of Janet Anne Ross, she being a British subject with an English
domicil of origin. If because of her nationality the Italian Courts hold that her movable property ought to be
distributed in accordance with English internal law as applicable to English nationals domiciled in England - then
the English Courts will distribute this property in exactly the same way as if Janet Anne Ross was in fact at her
death domiciled in England. If, on the other hand, the Italian Courts should hold that her movable property
should be distributed in accordance with the internal law of Italy applicable to Italian nationals, then the English
Courts will distribute Janet Anne Ross's movable property in accordance with Italian internal law. In other words,
the English Court will endeavour to ascertain what the Italian Courts would in fact decide with regard to that part
of Janet Anne Ross's movable property as might come under the actual control of the Italian Courts.

My attention has been called in the course of the argument of this case to a number of authorities, and I have also
considered a number of other decisions. In my view the general trend of the authorities establishes that the
English Courts have generally, if not invariably, meant by "the law of the country of domicil," the whole law of
that country as administered by the Courts of that country, and with the exception of the dictum already referred
to, there is no case to the contrary.

The earliest case in the books is Collier v. Rivaz. n(1) One Ryan, a British subject, died domiciled in Belgium.
He left certain testamentary papers executed in accordance with the

n(1) 2 Curt. 855, 858.

formalities required by English law but not in accordance with those required by Belgian local law. It was proved
by the necessary expert evidence that the Belgian Courts if called on to decide the question of validity would
uphold the testamentary documents on the ground that they were valid according to the testator's national law,
and Sir Herbert Jenner in his judgment said this: "The question however remains to be determined, whether these
codicils which are opposed are executed in such a form as would entitle them to the sanction of the Court which
has to pronounce on the validity of testamentary dispositions in Belgium, in the circumstances under which they
have been executed. Because it does not follow, that Mr. Ryan, being a domiciled subject of Belgium, he is
therefore necessarily subject to all the forms which the law of Belgium requires from its own native born
subjects. I apprehend there can be no doubt that every nation has a right to say under what circumstances it will
permit a disposition, or contracts of whatever nature they may be, to be entered into by persons who are not
native born, but who have become subjects from continued residence; that is, foreigners who come to reside
under certain circumstances without obtaining from certain authorities those full rights which are necessary to
constitute an actual Belgian subject. Every nation has a right to say how far the general law shall apply to its own
born subjects, and the subject of another country; and the Court sitting here to determine it, must consider itself
sitting in Belgium under the particular circumstances of the case."

The whole basis of his decision is that the Court sitting in this country to determine the question must consider
itself sitting in Belgium, that is, the Court is only concerned to see what view the Belgian Court would take of the
English law; and it was never suggested that it was the duty of the English Court to consider what its own view
of the English law ought to be. The result in Collier v. Rivaz n(1) could not have been arrived at if the English
Court had refused to take into account the rules of private international law applied by and recognized in the
Belgian Courts, and had merely applied

n(1) 2 Curt. 855, 858.

the ordinary local law of Belgium applicable to Belgian nationals.

In Maltass v. Maltass n(1) the question arose as to the validity of a will made by a British subject resident in
Turkey. The will was in the form required by English internal law. The question of what was the testator's
domicil at his death was debated, but the Court did not think it necessary to decide the question, and Dr.
Lushington, sitting for Sir Herbert Jenner, said: "But this inquiry (that is the inquiry as to domicil) will become
unnecessary if it should turn out that, with respect to this individual succession, the law of Great Britain and of
Turkey is the same; for when we speak of the law of domicil as applied to the law of succession, we mean, not
the general law, but the law which the country of domicil applies to the particular case under consideration. Such
law may be totally different as applied to a natural born subject of the country, as exemplified in the case of
Collier v. Rivaz. n(2) There the testator died domiciled in Belgium; but, by the Belgian law, the succession in
that case was not to be governed by the law of Belgium, applicable to natural born subjects, but by the law of that
country, applicable to an English born subject dying domiciled in Belgium."

I refer to this case for the dictum I have just read, for the actual decision turned on the applicability of certain
treaties existing between the United Kingdom and Turkey, and there is no decision relating to any question of
renvoi.

In Frere v. Frere n(3) Sir Herbert Jenner Fust in the Prerogative Court of Canterbury declined to declare void the
will of the Right Honourable J. Hookham Frere, who at the date of his will and death was domiciled in Malta, the
will having been made in England in English form, and not in accordance with the requirements of the local
Maltese law. The basis of the decision was that on the evidence before the Court there was nothing to show that
the Maltese Courts would deem a will made outside Malta by a person domiciled in Malta to be void if it
complied with the formal requirements of the lex actus.

n(1) (1844) 1 Robertson, 67, 72.

n(2) 2 Curt. 855, 858.

n(3) (1847) 5 Notes of Cases, 593.

In Bremer v. Freeman n(1) a British subject died domiciled de facto in France. She had made a will in France in
English form; the will dealt with movables the bulk of which were situate in England. The testatrix had not
obtained from the French Government an authorization to acquire a French domicil. Sir John Dodson admitted
the will to probate on the ground that, though the testatrix had her domicil de facto in France, yet that it was
necessary in order to establish a domicil in France, so as to affect her succession and the mode of making her
will, that her domicil should be by authorization of the French Government. The judge, Sir John Dodson,
expressly said he was following Collier v. Rivaz. n(2) The decision was reversed in the Privy Council. The
judgment was delivered by Lord Wensleydale, and he said in the course of his judgment that there were two
questions before the Court. The first related to domicil, and the second was: Has it been established that by the
municipal law of the domicil at the time of death, the will propounded was valid? On the first question it was
held that the testatrix was domiciled de facto in France, although there had been no authorization by the French
Government, and consequently, the second question was whether in the case of a person domiciled de facto in
France, the use of the English form was sanctioned by the municipal law of France. The keystone of the
judgment of Lord Wensleydale is that the testatrix having died domiciled de facto in France, the validity of her
will is to be determined by French law. The judgment deals with two alternative interpretations of art. 13 of the
Code Napol on, on which the first question arose. The first interpretation dealt with was that the French law
refuses civil rights, including the right of testamentary disposition, to one who is domiciled but has not an
authorization. On this interpretation Lord Wensleydale said two cases must be considered: (a) Suppose the
refusal applies to goods wherever situate. In this case the testatrix loses, by the French law of her domicil, power
to make a will altogether, and the will propounded is invalid; and (b) Suppose

n(1) 10 Moo. P. C. 306, 359, 373.

n(2) 2 Curt. 855.

this refusal applies only to goods situate in France. Still, the will to have any effect, must be in the form and with
the solemnities of the domicil according to the general rule, otherwise it cannot be admitted to proof. The second
interpretation dealt with was: Does art. 13 of the Code Napol on mean that French law insists that no domicil for
any purpose whatever can be obtained without authorization? Lord Wensleydale came to the following
conclusion, after considering French cases and the opinions of French writers. I quote from his judgment where
he says this: "On the whole, then, on a review of all this evidence of the law of France, their Lordships are
clearly of opinion, that it is not established, that for the purpose of having a domicile which would regulate the
succession, any authorization of the Emperor was necessary; that a legal domicile for this purpose was clearly
proved, and that consequently, if the testatrix had a power to make a will at all, the will in this form was invalid."
The decision involves the acceptance of the fact that the French law had rules of succession for a foreigner who
was domiciled in France without authorization, and dealt with the case as it concluded the French Courts would
have decided the matter. I have referred to this case at length, because it is claimed by Sir Gerald Hurst on behalf
of the plaintiff that it supports his argument that the English Court ought to decide the question as to what is
meant by the law of the country of domicil as limited to the local law of that country applicable to its own
nationals resident there. In my view, for the reasons stated in my consideration of it, the case of Bremer v.
Freeman n(1) , that case does not support Sir Gerald Hurst's argument, but is, in fact, opposed to it, for the basis
of the decision is the finding of the Court as to the law which the French Courts would have held to be
applicable.

The case of Hamilton v. Dallas n(2) was also relied on by Sir Gerald Hurst. In my view, its effect is, for all
practical purposes, the same as the decision in Bremer v. Freeman. n(1) The question was as to the succession
upon an intestacy of

n(1) 10 Moo. P. C. 306.

n(2) 1 Ch. D. 257.

an Englishman domiciled in France de facto and without the official authorization required by the Code. Bacon
V.-C. held that the deceased was in the circumstances of that case capable by French law of acquiring a domicil
for civil purposes in France, and that his succession was governed by the French law. In this case, as well as in
the case of Bremer v. Freeman n(1) , no question of renvoi arose. The Court acted on the rule that the whole law
of the foreign country was to be considered when a question of succession was referred to that law, and
pronounced judgment on the footing of the conclusion to which the Court held the French law would, in fact,
have arrived. In In the Goods of Luigi Bianchi (deceased) n(2) the question again related to succession. The
testator was born at Genoa, which then formed part of the Kingdom of Sardinia. He went to Brazil early in life,
and after having acquired a fortune, he decided to leave Brazil and return permanently to Genoa. He died on his
way home without having made any testamentary disposition of his property. Some of his children resided in
Brazil and others in Genoa. Among other property he possessed movable property in England. In 1859 the
Probate Court in England made a grant of administration to the representative of a person who had been
appointed by the Brazilian Court as the guardian. Discussions arose between the Brazilian and Sardinian
Governments with regard to the testator's domicil at the date of his death, and in the result, the Brazilian
Government withdrew all claims to administration and guardianship. In 1862 an application was made to the
Court of Probate in this country to rescind the former grant in favour of the representative of the Brazilian
guardian, and to make a new grant in favour of the Sardinian consul at Bahia. Sir Charles Cresswell refused to
pay any regard to the arrangement between the two Governments, and ultimately rescinded the grant on the
ground that as the testator had finally abandoned his acquired domicil in Brazil, the domicil of origin revived,
and the Court therefore had to deal with the case according

n(1) 10 Moo. P. C. 306.

n(2) (1862) 3 Sw. & Tr. 16.

to the Sardinian law. In In the Goods of Lacroix n(1) Sir John Hannen granted probate to the will of an
Englishman presumably domiciled in France. The will was made in France in English form, and not in a form
allowed by the internal French law as applicable to French nationals. The grant was made ex parte, and on
evidence by affidavit that by French law the will of a British subject made in France would be valid if it was in
the form required by the law of England to give validity to wills executed by Englishmen in England. The basis
of this decision is the interpretation by the Court of the provision in Lord Kingsdown's Act n(2) , that a will is
valid in England if "made according to the forms required by the law of the place where the same was made," as
referring to "the law which the Courts of the locus actus would deem applicable in the given case."

In In re Trufort n(3) the question arose with regard to the succession to the property of a Swiss national who had
died domiciled in France. The plaintiff instituted proceedings in the Swiss Court, claiming that he was the
legitimate son of the propositus and to be entitled, notwithstanding his testamentary dispositions, to the bulk of
his estate. The Swiss Courts decided in the plaintiff's favour. Proceedings were commenced in England for the
enforcement of the Swiss judgment and for a declaration that the estate of the propositus ought to be
administered according to the law of France. Stirling J. declared that he was bound by the decisions of the Swiss
Courts. After quoting from such well known cases as Enohin v. Wylie n(4) ; Ewing v. Orr-Ewing n(5) ; and
Doglioni v. Crispin n(6) , Stirling J. said this: "The rule to be extracted from these cases appears to be this, that
although the parties claiming to be entitled to the estate of a deceased person may not be bound to resort to the
tribunals of the country in which the deceased was domiciled, and although the Courts of this country may be
called upon to administer the estate of a deceased person domiciled abroad, and in such

n(1) (1877) 2 P. D. 94, 96.

n(2) Wills Act, 1861 (24 & 25 Vict. c. 114).

n(3) 36 Ch. D. 600, 611, 612.

n(4) (1862) 10 H. L. C. 1, 13.

n(5) (1885) 10 App. Cas. 453, 502.

n(6) (1866) L. R. 1 H. L. 301, 314.

case may be bound to ascertain as best they can who according to the law of the domicil, are entitled to that
estate, yet where the title has been adjudicated upon by the Courts of the domicil, such adjudication is binding
upon, and must be followed by the Courts of this country. It is contended that this rule applies to the present case.
It is, indeed, admitted that the domicil of the testator was French, but according to the law of France (as stated by
the defendant's own witnesses) the right to his succession depends on his nationality. That nationality it is said
was Swiss, and by virtue of the treaty between France and Switzerland in 1869 the right of succession falls to be
determined by the tribunals of Zurich, who have decided in favour of the plaintiff. It is obvious that this
argument cannot prevail unless the testator's nationality was Swiss, and this is a point which at the trial was made
the subject of considerable argument and which demands close examination." The learned judge drew certain
conclusions from the evidence, and held that the plaintiff's father (the testator) was at the time of his death a
Swiss, and not a British subject, and continued: "The testator's nationality then being Swiss at the time of his
death, it follows that the Zurich tribunals are those which according to the law of the testator's domicil have
jurisdiction to decide on the right of succession to his estate, and in fact they have at the instance of the defendant
been recognised as such by the Court of St. Julien. This being so, I have an advantage similar to that which the
Court had in Doglioni v. Crispin n(1) , that the claim of the party litigating in this Court has been actually raised
and decided in the Courts which according to the law of the testator's domicil were the proper and competent
tribunals to decide on their rights. Those tribunals have decided that the plaintiff is entitled to nine-tenths of the
testator's personal estate, of which the funds which form the subject-matter of the present action are part, and in
accordance with the principle laid down in Doglioni v. Crispin n(1) , I consider that I am bound by their
decision."

n(1) L. R. 1 H. L. 301, 314.

In Abd-ul-Messih v. Farra n(1) the question to be determined was with regard to the succession to the movable
property of a testator, a member of the Chaldean Catholic community, having a Turkish domicil of origin, but
who had at the date of his death acquired a permanent residence in Cairo and the status of a protected British
subject. It was held in the Privy Council that the testator died domiciled in the dominions of the Porte, and that a
Consular Court at Constantinople, being bound by a particular Order in Council to follow the same principles
which would have been observed by an English Court of Probate, was right in holding that the law of Turkey
governing the succession to a member of the Chaldean Catholic community, domiciled in Turkey, be followed in
considering the power of testacy of the deceased, and in distributing his effects. So far as the actual decision is
concerned no question of renvoi arose, but Lord Watson, who delivered the judgment of the Privy Council,
indicated how the case would have been dealt with if it had been a case of renvoi. The relevant passage is where
Lord Watson says this: "The next alternative presented by the appellant's counsel was this, that her husband had
de facto, or at all events according to Ottoman law, lost his Turkish nationality, and had become a subject of the
Queen. That change in his political status was said to be attended with one or other of these consequences, viz.,
either that his civil status became that of a domiciled Englishman; or, assuming his domicil to have been in
Bagdad, that a Turkish tribunal would, in administering his estate, defer to the law of England, as the law of his
nationality." Then later he goes on to say: "If it be assumed that, in consequence of his having placed himself
under foreign protection, the Porte resigned the deceased, both civilly and politically, to the law of the protecting
power, that would merely give him the same rights as if his nationality had been English, and the territorial law
of his domicil would still be applicable to his capacity to make a will, and to the distribution of his estate." I refer
to this case because it was relied on by Sir Gerald Hurst as supporting

n(1) 13 App. Cas. 431, 443, 444.

his argument. In my view this reliance is not well founded. The dictum is purely neutral, because the phrase, "the
territorial law of his domicil," is, I think, used in an ambiguous sense, and not in the narrower sense of the law of
the country of domicil applicable to the nationals of such country.

In re Johnson n(1) is the first case in which the word renvoiappears to have been used. The facts are shortly as
follows: In 1894 a British subject (one Mary Elizabeth Johnson), whose domicil of origin was Maltese, died
intestate and domiciled in Baden. She was not naturalized there, and the evidence in the case established that by
the law of Baden, the succession to her property was governed by the law of her nationality. She left movable
property in England and Baden. Farwell J. directed the movables in England to be distributed according to
Maltese law. The decision was based on two alternative grounds: First, that it is impossible according to English
law for a person to acquire a domicil of choice in a foreign country unless that person has also acquired a domicil
there according to the law of the foreign country; therefore, in the particular case, as the law of Baden refused to
recognize domicil as having any legal effect on the status of Mary Elizabeth Johnson, the succession to her
movable property must be determined according to the law of her domicil of origin, that is, Maltese law. This
view of the English law as to domicil is not consistent with other decisions, and Russell J. refused to follow it in
In re Annesley. n(2) The second ground of the decision is based on the assumption that Mary Elizabeth Johnson
was at her death domiciled in Baden, and that the law of Baden governed the succession to her movable property.
It was found by the certificate which was binding on the parties in the case, that, according to the law of Baden,
the legal succession to that part of her property which she had not disposed of by her will, was governed by the
law of the country of which she was a subject at the time of her death. In the course of his judgment the learned
judge says this: "It is not for me to say how the Baden Courts would interpret their rule of

n(1) [1903] 1 Ch. 821, 830, 832.

n(2) [1926] Ch. 692.

distributing according to nationality." I think that means that the interpretation of the Baden law is a matter for
the Baden Court; and he goes on to say: "It was urged in argument that the finding in the certificate is that,
according to the law of Baden, movables are to be distributed according to the nationality of the propositus. I
have already given my reasons for holding that the Baden Courts would have really refused jurisdiction; but,
even if this were not so, I should arrive at the same conclusion in a different way. When it is said that the Baden
Courts regard the nationality of the propositus, I apprehend that this means that they distribute according to the
law of the nation to which the propositus belongs, or, in other words, of which he is a subject." On this second
ground the decision is in accordance with the view expressed in Collier v. Rivaz n(1) , and the other cases I have
already referred to, that is, that the law of the country of domicil is the law as it would be decided by the Courts
of that country in reference to the facts of the particular case to be considered.

The latest reported case dealing with the question is In re Annesley n(2) , to which I have already referred. There,
Russell J., after fully discussing the decision in In re Johnson n(3) , refused to follow it, so far as the question of
domicil was concerned, and held that the deceased in the case before him had acquired a domicil de facto in
France by long continued residence, coupled with the intention of indefinite residence, and overruled objections
based on a clause in the deceased's will which declared she had never intended to abandon her English domicil,
and had never applied under art. 13 of the Civil Code or otherwise to fix her domicil in France, or for
naturalization. In addition to this, the learned judge, after examining the evidence as to French law, concluded
that the proper view was that the French law would accept renvoi from the English law, and apply the local law
of France to the deceased's testamentary dispositions, and following this he decided that the

n(1) 2 Curt. 855.

n(2) [1926] Ch. 692, 708.

n(3) [1903] 1 Ch. 821.

deceased only had power to dispose, by these testamentary dispositions, of one-third of her English personal
property, and her French movable property. I should state that the will, and a codicil to it, were both made in
English form, and were valid under the Wills Act, 1861. So far the actual decision as to the law applicable is in
accord with the other authorities to which I have referred, for the learned judge held in fact that the law
applicable was the law as it would have been determined by the French Courts. In other words the learned judge
placed himself in the position of the French Court in considering and determining the question. In the course of
his judgment he said this: "In these circumstances, and after careful consideration of the evidence of the experts
called before me, I have come to the conclusion that I ought to accept the view that according to French law the
French Courts, in administering the movable property of a deceased foreigner who, according to the law of his
country, is domiciled in France, and whose property must, according to that law, be applied in accordance with
the law of the country in which he was domiciled, will apply French municipal law, and that even though the
deceased had not complied with art. 13 of the Code." He, however, expressed his personal opinion that the
doctrine of the renvoi should be entirely avoided. Further he said this: "Speaking for myself, I should like to
reach the same conclusion by a much more direct route along which no question of renvoi need be encountered at
all. When the law of England requires that the personal estate of a British subject who dies domiciled, according
to the requirements of English law, in a foreign country, shall be administered in accordance with the law of that
country, why should this not mean in accordance with the law which that country would apply, not to the
propositus, but to its own nationals legally domiciled there? In other words, when we say that French law applies
to the administration of the personal estate of an Englishman who dies domiciled in France, we mean that French
municipal law which France applies in the case of Frenchmen. This appears to me a simple and rational solution
which avoids altogether that

endless oscillation which otherwise would result from the law of the country of nationality invoking the law of
the country of domicil, while the law of the country of domicil in turn invokes the law of the country of
nationality, and I am glad to find that this simple solution has in fact been adopted by the Surrogates' Court of
New York" - and he refers to the case of In re Tallmadge. n(1) With all respect to the learned judge, I do not think
his expression of opinion - no matter how convenient such a course might be (and as to that I express no personal
view) - is in fact in accord with the cases to which I have referred, while his actual decision, so far as the renvoi
doctrine is concerned, in fact accords with them.

In this connection I would like to refer to the dictum of Scrutton L.J. in Casdagli v. Casdagli n(2) , where he says:
"Practical and theoretical difficulties arise from the fact that, while England decides questions of status in the
event of conflict of laws by the law of the domicil, many foreign countries now determine those questions by the
law of the nationality of the person in question. Hence it has been argued that if the country of allegiance looks to
or sends back the decision to the law of the domicil, and the country of domicil looks to or sends back (renvoyer)
the decision to the law of nationality, there is an inextricable circle in 'the doctrine of the renvoi' and no result is
reached. I do not see that this difficulty is insoluble. If the country of nationality applies the law which the
country of domicil would apply to such a case if arising in its Courts, it may well apply its own law to the
subject-matter of dispute, being that which the country of domicil would apply, but not that part of it which
would remit the matter to the law of domicil, which part would have spent its operation in the first remittance.
The knot may be cut in another way, not so logical, if the country of domicil says, 'We are ready to apply the law
of nationality, but if the country of nationality chooses

n(1) New York Law Journal, Oct. 17, 1919; 181 New York Supplement (215 New York State Reporter), 336.

n(2) [1918] P. 89, 111.

to remit the matter to us we will apply the same law as we should apply to our own subjects.'" This dictum, in
effect, approves of the decision of such matters in accordance with the law as interpreted and administered by the
Courts of the country of domicil.

I have I think now dealt with all the relevant cases. In addition to them my attention has been called to a number
of articles by international jurists. There is an acute conflict between the various authors on the question, and so
far as the English writers are concerned, they seem to be fairly equally divided. I should also add that in the
course of the argument my attention was called to the report of the American case referred to by Russell J. in his
judgment in In re Annesley n(1) - namely, the case of In re Tallmadge. In re Chadwick's Will. n(2) The decision
is that of the Surrogates Court, New York County. The judge of that Court goes through most of the authorities to
which I have referred, and comes to a conclusion opposite to that at which I have arrived. For the reasons I have
endeavoured to express in this judgment, I think his decision is not in accord with the English authorities.

In my opinion the present case must be decided in accordance with the law of Italy, as that law would be
expounded in the Italian Courts. If the Italian Court had in fact dealt with the matter there would be no necessity
to inquire into the law, and it would be my duty simply to follow the decision. Since there is no decision by the
Italian Court, I am bound to ascertain how the Italian Court would decide the case from the evidence of those
competent to instruct me. I am glad to say that the Italian lawyers who have been called on both sides are
unanimous in this conclusion, that if the case fell to be decided in the Italian Courts, it would be held that the
testamentary dispositions of Mrs. Janet Anne Ross were valid, and provide for the total disposition of her
property in Italy; and that in no circumstances would the Italian Court recognize any right on the part of the
plaintiff to any part of her property as legitima portio, as it would have done

n(1) [1926] Ch. 692, 709.

n(2) 181 New York Supplement (215 New York State Reporter), 336.

had Mrs. Janet Anne Ross been an Italian national. Dr. Giuseppe Pallicia, who gave evidence on behalf of the
plaintiff, said that if the present case fell to be decided in Italy, there is no doubt but that the Italian Court would
apply the English law applicable to Mrs. Janet Anne Ross as a British subject, without any reference to the fact
that she was domiciled in Italy; and the most he would say in favour of the plaintiff's claim was that, if the Court
in England should hold that he was entitled, notwithstanding his mother's testamentary dispositions, to the
legitima portio,he would have been entitled to if she were in fact an Italian national the Italian Courts would
recognize that decision and enforce it, unless it was against public policy. His answer to the question whether
such a decision would be against public policy was a little ambiguous, but I think he really expressed the view
that the sounder opinion is that the answer would be in the affirmative. On the other hand, both Dr. Adrian Dingli
and Dr. Ferdinando Bosi are unanimous in the view that the Italian Courts would determine the case on the
footing that the English law applicable is that part of the law which would be applicable to an English national
domiciled in England; and that if the English Court decided the case in any other manner, the Italian Court would
refuse to follow such a decision and dispose of the case as if it came before the Italian Court untrammelled by
any English decisions. I accept their evidence on the Italian law.

This disposes of the case so far as the movables in Italy are concerned. The position as to the immovable
property in Italy seems to me to stand on a different basis. It is true that the law of Italy provides, by arts. 8 and 9
of the Code (which I have already read), that the succession to movable and immovable property is governed by
the law of the nationality of the deceased owner, yet the English law has never suggested that the law of the
domicil has anything to do with the succession to immovables. On the contrary it has always recognized that the
lex situs governs the succession to immovables, and the lex situs must necessarily be the law of the country
where the property is situate, as it would be

expounded by the Courts of that country; and domicil cannot under any circumstances have any bearing on the
case. But to some extent the theory of the renvoi may apply, for the law of England refers the question of
succession to immovables to the lex situs (in this case the law of Italy), and the lex situs (the Italian law) refers
the case to the law of the nationality, and this might mean the law of the nationality including the rule relating to
the lex situs, and once again the circulus inextricabis would be constituted. But in my view the lex situs must, for
the reasons I have already stated with regard to the meaning to be placed on the phrase, "law of the domicil," be
construed in the way the Courts of the country where the immovables are situate would themselves determine.
On this basis the expert evidence is clear that the Italian Courts would decide the succession to the immovable
property in the same manner as the English Court would determine it if the immovable property in question
belonged to an Englishman and was situate in England.

I have in effect now disposed of the whole action, but since the case may go elsewhere, it is necessary for me to
deal with certain other points raised. So far as the alternative claim is concerned, that is, to the one-third of the
movable and immovable property in Italy and of the movable property situate elsewhere than in Italy, it is argued
that if Italian local law is not applicable to the succession, then the law of Malta is the appropriate law, because
Henry James Ross was of British nationality by reason of his birth in Malta, itself a part of the British Empire,
and he was for the same reason subject to Maltese law. It is further argued that on her marriage to Henry James
Ross, Mrs. Janet Anne Ross, although already a British subject, with an English domicil of origin, and so subject
to English law, changed her position and became subject to Maltese law, because by her marriage she acquired
the nationality and domicil of her husband. This argument is, I think, quite untenable. Both Henry James Ross
and Janet Anne Ross were British nationals. The English law recognizes a domicil of choice and the right to
abandon such domicil. If in fact a domicil of choice is

abandoned, the domicil of origin revives. This applies equally to a man or a woman, and so, although on her
marriage Mrs. Janet Anne Ross acquired her husband's domicil and changed it from time to time as and when he
changed his, yet on his death she acquired her own domicil, and if she, being a widow, had abandoned her
domicil of choice in Italy, there can be no doubt that her own English domicil of origin would have revived: see
Dicey's Conflict of Laws, 4th ed., pp. 126, 127. Consequently, if the law of her nationality is to be applied, such
law must be such part of the British law as is applicable to her domicil of origin - namely, England.

A further question was argued on the assumption that the local law of Italy as applicable to an Italian national
governed the case - namely, that the plaintiff could only claim his legitima portio subject to his bringing into
hotchpot the benefits which came to him from his mother under the settlement made on her marriage, and also
some small sums paid by Mrs. Janet Anne Ross to the Marylebone Board of Guardians for the support and
maintenance of the plaintiff's wife while she was in this country. There was some divergence between the experts
as to Italian law on this point, but I am satisfied by the evidence that the better view is that the benefits under the
marriage settlement would have to be brought into hotchpot under Italian law, and I so hold. The position with
regard to the payments made for the maintenance of the plaintiff's wife stand on a different footing, and I do not
think these are within the hotchpot provisions of the Italian law. The same questions as to hotchpot are raised in
the event of the Maltese law being applicable. On the evidence before me, the Maltese law and Italian law appear
to be identical on these points, and my decision as to the Italian law will therefore apply if, contrary to my
judgment, it should be held that the Maltese law is applicable.

In the result the plaintiff has failed to substantiate either of his claims in this action, and I therefore dismiss it
with costs.

SOLICITORS:
Solicitors: Holloway, Blount & Duke; Stephenson, Harwood & Tatham.

A. R. T.

Amin Rasheed Shipping Corporation v Kuwait Insurance Co [1984] AC 50

The question was whether the English court should have authorized service ex jurisin an action
brought by a Liberian shipowner against a Kuwaiti insurance company. The specific issue was
whether the proper law of the contract was Kuwaiti or English. In upholding the decision of the
Court of Appeal holding that the proper law was Kuwaiti, the Law Lords were sharply critical of
certain observations of the lower court which treated the innate superiority of English courts
as a factor to be taken into account. Those criticisms are summarized in the headnote:

PerLord Diplock, Lord Roskill, Lord Brandon of Oakbrook and Lord Brightman. ...

(ii) it would be wholly wrong for the English courts to embark upon the task of making a
comparison of the relative efficiency of the civil law and common law procedures for the
determination of disputed facts.

In Amin Rasheed Shipping Corporation v Kuwait Insurance Co [1984] AC 50 at

61 Lord Diplock pointed out that the "or" in this pithy definition of the "proper
law" of the contract was disjunctive. In speaking of a policy which contained
no express provision choosing English law as the proper law of the contract,
Lord Diplock at 62 went on to say

"...nevertheless its provisions taken as a whole, in my opinion, by necessary

implication point ineluctably to the conclusion that the intention of the parties
was that their mutual rights and obligations under it should be determined in
accordance with the English law of marine insurance."

in Amin Rasheed Shipping Corporation v Kuwait Insurance Co [1984] AC 50

at page 67 has very recently indorsed the view that it is quite inappropriate for
English judges to undertake any such supposed comparison or to allow the
exercise of their discretion to stay an English action to be influenced by it.

The principle that a contract has no validity except by reference to a system of law was
confirmed by Lord Diplock in the House of Lords decision in Amin Rasheed Shipping
Corporation -v- Kuwait Insurance Company (1983) 3 WLR 241 at 249

A contract cannot have a proper law which is determined only retrospectively by

reference to some uncertain event or selection process after the contract has already come
into force and obligations under it have fallen to be performed. As was said in the case of
Amin Rasheed Shipping Corporation v. Kuwait Insurance Co. [1983] AC 50, contracts
are incapable of existing in a legal vacuum.

Re OKeefe [1940] Ch124

In re O'KEEFE (DECEASED).

POINGDESTRE v SHERMAN.

[1939. O. 540.]

[CHANCERY DIVISION]

[1940] Ch 124

HEARING-DATES: 30, November 1, 5, 6 December 1939

6 December 1939

CATCHWORDS:
Conflict of laws - Intestate succession to personal estate - Italian domicil of choice of intestate - Law of the
nationality - Italian code - Domicil of origin of intestate - Part of British Empire - Domicil of origin in Eire
- Law applicable - Distribution of intestate's personalty.

HEADNOTE:
M. A. O'K. died intestate and a spinster in Naples, Italy, in 1937, having lived there continuously for forty-
seven years. Her father was born in County Clare, Ireland (now part of the Irish Free State [Eire]), in 1835.
During practically the whole of her life the intestate (who was born in India) lived at various places in
England, France and Spain before settling down in Italy. She visited Ireland only once in her lifetime, when
on a short visit with her father. Certain questions arose at her death as to the administration of her estate
which consisted entirely of personalty.

At the hearing the Court held that she had acquired a domicil of choice in Italy at the time of her death, but
that she had never acquired Italian nationality. Italian law was silent on the question of the law of the
nationality where more than one system of such law was applicable.

Expert Italian legal opinion, however, which was not disputed, was to the effect that Italian law would hold
that the succession would be regulated by the law of the country to which the deceased belonged at her
death.

The question therefore arose (the Court having held that her nationality was British) whether the personal
estate of the intestate was distributable under the law of England, the law of Eire (the Irish Free State) or
the law of British India:-
Held, that though the intestate could not, by reason of the law of Eire, namely, art. 3 of the First Schedule to
the Constitution of the Irish Free State Act, 1922, be said to be, in the circumstances, a citizen of Eire at her
death, yet on all the facts of the case and having regard to the expert Italian legal opinion as to the law of
succession applicable, the only part of the British Empire to which she could be said to have belonged was
the part from which she had originated, namely, Ireland (Eire). The law applicable therefore for the
distribution of her estate was the law of Eire applicable to a person dying intestate domiciled in Eire.

INTRODUCTION:
ORIGINATING SUMMONS.

Mary Alice O'Keefe (hereinafter called "the intestate") died a spinster and intestate on December 30, 1937,
at Naples

in Italy, where she had resided continuously for forty-seven years, having gone there in the year 1890. On
February 6, 1939, letters of administration were granted in respect of her estate (she only possessed
personal estate) to the plaintiff, Eva Julia Poingdestre (a sister of the whole blood), out of the principal
probate registry. The intestate also left her surviving another sister of the whole blood, the first-named
defendant, Jane Margaret M. Sherman, and a brother and sister of the half-blood, namely, the second and
third defendants, Francis Joseph O'Keefe and Agnes Mary O'Keefe. Both her parents predeceased her.

The material facts (which were not in dispute) were as follows: The intestate's father, James William
O'Keefe, was born at Ennis in County Clare, Southern Ireland (now part of the Irish Free State), in 1835. In
or before the year 1857, he went to India, and about 1858 he married a lady of Irish parentage in Calcutta.
The intestate was born of that marriage in Calcutta about the year 1860, and the plaintiff was born of the
same marriage in Calcutta about the year 1863.

About the year 1867 the intestate and the plaintiff were brought by their parents to Boulogne, in France,
and lived there with an aunt, while the parents went to England and spent the father's leave there. Later in
the same year the parents called for the intestate and the plaintiff at Boulogne, and they all returned to
India. About the year 1873 the parents brought the intestate and the plaintiff to Lyons in France and placed
them in a convent there for their education. In the same year the parents returned from England (where they
had gone for the father's leave) to India with the first defendant, Jane Margaret Mona Sherman (who had
been born in India), and a son, Terence O'Keefe (who had been born in England while the parents were on
this English visit). They were the third and fourth children of the marriage above referred to. On the return
of their parents to India, both the intestate and the plaintiff were left at the convent. The mother of the
intestate, and also of the plaintiff and the first defendant, died in Calcutta about the year 1877, and about

the year 1878 the father came to Lyons and took the intestate and the plaintiff for a short tour in Ireland and
then placed them at a convent at Roehampton, near London, to complete their education.

In October, 1878, the father married his second wife in London and took her back to India. There were
three children of this second marriage, namely, the second and third defendants, Francis Joseph O'Keefe
and Agnes Mary O'Keefe, and another daughter, Ella O'Keefe. Terence O'Keefe, who was the fourth child
of the first marriage, and Ella O'Keefe, the third child of the second marriage, both predeceased the
intestate without leaving issue. About the year 1880 the intestate left the convent in Roehampton and joined
the father and stepmother in India. About the year 1884 the father brought the intestate with the rest of his
family to England and after spending the winter with them in the Isle of Wight he took a house at Ramsgate
in Kent. About this time the father went to Ireland for about three weeks, and, later, leaving his wife and
family in England at Ramsgate, returned to India and died in Calcutta in February, 1885. After that the
intestate lived for a short time in Spain and Tangier, and in the year 1890 for a short time in the Channel
Islands. In that year she went to Naples and lived there until her death forty-seven years later in the year
1937.

The first two questions raised by the summons were (1.) whether the domicil of the intestate at the date of
her death was in Italy or if not what was her domicil at the date of her death; (2.) whether if the intestate
was domiciled in Italy at her death any personal estate as to which she died intestate was to be distributed
among the persons entitled thereto - (a) under the law of England, (b) under the law of Eire, or (c) under the
law of British India.

COUNSEL:
L. M. Jopling for the plaintiff. The law applicable in respect of the intestate's personal estate is the law of
England; the law of the Irish Free State cannot, it is submitted, apply: see art. 3 of the First Schedule to the
Irish Free State Constitution Act, 1922 [Sess. 2, c. 1], which defines citizenship

of the Irish Free State. It is admitted that her domicil of choice must have been Italian: see Cheshire on
Private International Law, 2nd ed. (1938), at p. 161. He also referred to In re Johnson n(1) , and Atkin J.'s
remarks in Gavin Gibson & Co. v. Gibson n(2) , on In re Johnson n(1) ; and In re Askew. n(3)

Hon. Denys B. Buckley for the first defendant, Jane M. M. Sherman. Here the question of the domicil of
origin is not applicable; it is really a question as to what part of the British Empire the intestate belonged at
the date of her death. In all the circumstances the law of England should be applied. Her father had
certainly never acquired an Indian domicil. The law also of Eire (the Irish Free State) is excluded, see the
English statute, the Irish Free State Constitution Act, 1922 (Session 2), (13 Geo. 5, c. 1), First Schedule, art.
3. There (in Ireland) a different system of citizenship has been adopted. By the law of Eire the intestate
could not have been in the circumstances a citizen of Eire at her death. The law of England is therefore the
only one left; she was an English national and the Court must therefore apply English law. He referred to In
re Ross n(4) and In re Askew. n(3) The question for the Court is which system of municipal law ought here
to be applied to this particular propositus. And see Cheshire on Private International Law, 2nd ed., p. 162. If
the Court decides that the law of England is applicable, that ends the matter. In re Johnson n(5) is relied on
here for the application of English law. The intestate having been a British national, the Court should, it is
submitted, apply English law.

Wilfrid Hunt for the second and third defendants, Francis J. O'Keefe and Agnes M. O'Keefe, the intestate's
brother and sister of the half-blood. The law to be applied here is British law - the law of some part of the
British Empire, not necessarily English law: see Cheshire on Private International Law, 2nd ed., p. 161. In
re Ross n(1) as a decision, it is submitted, covers this case. The question of the domicil of

n(1) [1903] 1 Ch. 821.

n(2) [1913] 3 K. B. 379, 388.

n(3) [1930] 2 Ch. 259, 268.

n(4) [1930] 1 Ch. 377, 405.

n(5) [1903] 1 Ch. 821, 832.

origin must be considered; this species of domicil must always be there ready to spring up when another
subsequently acquired domicil comes to an end; it is only in abeyance; on principle the domicil of origin
must be taken as the starting point, it never leaves a subject from his birth to his death; compare In re Ross
n(1) and In re Askew n(2) , and see Dicey's Conflict of Laws, 5th ed., at p. 872. On principle, as no law of
the nationality applies, the Court must, it is submitted, say what law is applicable, it need not always be
English law. There is a test: both Maugham J. and Luxmoore J. decided that in the cases above referred to.
It is to be found in the domicil of origin: see Dicey's Conflict of Laws, at p. 97; the fact in this particular
case now before the Court that the domicil of origin is in the Irish Free State makes no difference: see
Dicey at p. 51. It is admitted that the intestate was not a citizen of Eire at the time of her death, but that is
immaterial. Her domicil of origin governs the case.

PANEL: CROSSMAN J
JUDGMENTBY-1: CROSSMAN J

JUDGMENT-1:
CROSSMAN J: This case relates to the estate of Mary Alice O'Keefe, who died a spinster and intestate at
Naples in Italy in the year 1937. The facts are not in dispute.

[His Lordship stated the facts:] The intestate never acquired Italian nationality, but on the evidence which I
have shortly detailed I hold that the intestate was domiciled in Italy at the time of her death. That answers
the first question raised by the summons. I do not think that there has been any serious dispute as to that. I
think that both sides really accept the view that she had acquired a domicil of choice in Italy at the time of
her death. I think that it is also quite clear that her domicil of origin was in Southern Ireland, which is now
part of the Irish Free State.

The second question raised by the originating summons is whether the personal estate (I understand the
intestate had personal estate only), as to which she died intestate is distributable - (a) under the law of
England, (b) under the law of Eire, or (c) under the law of British India. Prima facie the law

n(1) [1930] 1 Ch. 377, 405.

n(2) [1930] 2 Ch. 259.

applicable is the law of the intestate's domicil at the time of her death, that is to say, Italy. But by the law of
Italy, as to which I have evidence from the affidavit of one of the Italian expert witnesses, and as to which I
think there is no real dispute, it appears that by art. 8 of the Preliminary Dispositions of the Italian Civil
Code of 1865 n(1) , intestate successions are regulated by the national law of the deceased. I hold that the
intestate's nationality was British, and the question arises which of the systems of municipal law which are
applicable to British subjects is the law applicable to the succession to the intestate's estate. Italian lawyers
cannot say what is the meaning of the law of the nationality where there is more than one system of law of
the nationality; but I have evidence, which I think is not disputed, from experts in Italian law that the Italian
law would hold that the succession is regulated by the law of the country to which the intestate belonged,
and belonged I think at the time of her death. Mr. Jopling and Mr. Denys Buckley, who appeared for the
plaintiff and the first defendant who are sisters of the whole blood of the intestate, contend that the law
applicable is the law of England. Mr. Wilfrid Hunt, who appears for the second and third defendants who
are a brother and sister respectively of the half-blood, contends that the law applicable is the law of Eire. Ex
hypothesi the intestate was not domiciled at her death in any part of the British Empire, but I find on the
evidence, as I have already said, that her domicil of origin was that part of Ireland which is now Eire. Mr.
Jopling and Mr. Buckley say that the law of Eire cannot be the law to be applied because by the law of Eire
the intestate could not in the circumstances have been a citizen of Eire at her death, that is by reason of the
Irish Free State Constitution Act of 1922, which by art. 3

n(1) Italian Civil Code, 1865. Preliminary Dispositions. Art. 8: "Succession, however, either under an
intestacy or under a will, whether as regards the order of succession or the measure of the rights of
succession or the intrinsic validity of the (testamentary) depositions is governed by the national law of the
person whose estate is in question, and this whatever may be the nature of the property or the country in
which it is situate."

of the First Schedule, states what the meaning of Irish citizenship is, and Mr. Hunt admits that the intestate
was not a citizen of Eire at her death. But looking at the whole of the facts and considering the evidence of
the Italian lawyers which I have before me, as to which I think there is no real doubt, I have come to the
conclusion that the only part of the British Empire to which the intestate can be said to have belonged in the
circumstances is the part from which she originated; and finding, as I have found, that her domicil of origin
was Southern Ireland, I hold that the law now applicable to the distribution of her estate is the law of Eire
applicable to a person dying intestate domiciled in Eire. I think that this conclusion is in accordance with
the view expressed by Luxmoore J. (as he then was) in the case of In re Ross n(1) and the view expressed
by Maugham J. (as he then was) in the case of In re Askew. n(2) I am interested in finding that the
conclusion at which I have arrived seems to me to be that arrived at in two text books, namely, Cheshire on
Private International Law, 2nd ed., at pp. 161 and 162, and Dicey's Conflict of Laws, 5th ed., at pp. 872 and
873.

The result of this conclusion is that the second question must be answered by saying that the estate of the
intestate is to be distributed among the persons entitled thereto under the law of Eire; that is to say, under
the law applicable to a person domiciled in the Irish Free State.

SOLICITORS:
Solicitors: Sanderson, Lee & Co.; Bennett, Ferris & Bennett; Kingsford, Dorman & Co., for Thorn Drury &
Leach-Lewis, Ramsgate.

n(1) [1930] 1 Ch. 377, 406.

n(2) [1930] 2 Ch. 259, 269.

A. R. LL.-T.

R v Brentwood Superintendent Registrar of Marriages, ex parte Arias [1968] 2 QB

956

In R v Brentwood Superintendent Registrar of Marriages, ex parte Arias [1968] 2 QB

956, Schwebel v Ungar was not mentioned by the Divisional Court, nor was the problem
of the incidental question. The Registrar had refused to issue a certificate to allow an
Italian national (G) to marry in this country. G had throughout been domiciled in
Switzerland and was divorced from his wife by a Swiss court. He was not free to marry
there, because Swiss law judged capacity to marry by the law of the state of a person's
nationality and Italian law did not recognise the divorce. English law would have
recognised the divorce as obtained in the country of the spouses' domicile. The Divisional
Court held that G was not free to marry, applying the rule that capacity to marry is
governed by the law of the person's antenuptial domicile. The precise result has since
been changed by legislation, but that does not affect the general principle.

Collier v Rivaz (1841) 2 Curt 855

The earliest case in the books is Collier v. Rivaz (1841) 2 Curt. 855. One Ryan, a British subject,
died domiciled in Belgium. He left certain testamentary papers executed in accordance with the
formalities required by English law, but not in accordance with those required by Belgian local
law. It was proved by the necessary expert evidence that the Belgian courts if called on to decide
the question of validity would uphold the testamentary documents, on the ground that they were
valid according to the testator's national law, and Sir HERBERT JENNER in his judgment said
this (2 Curt. at p. 858):

"The question, however, remains to be determined whether these codicils which are
opposed are executed in such a form as would entitle them to the sanction of the court
which has to pronounce on the validity of testamentary dispositions in Belgium, in the
 circumstances under which they have been executed. Because it does not follow that, Mr.
Ryan being a domiciled subject of Belgium, he is therefore necessarily subject to all the
forms which the law of Belgium requires from its own native-born subjects. I apprehend
there can be no doubt that every nation has a right to say under what circumstances it will
permit a disposition, or contracts of whatever nature they may be, to be entered into by
persons who are not native born, but who have become subjects from continued
residence; that is, foreigners who come to reside under certain circumstances without
obtaining from certain authorities those full rights which are necessary to constitute an
actual Belgian subject. Every nation has a right to say how far the general law shall apply
to its own born subjects and the subject of another country; and the court, sitting here to
determine it, must consider itself sitting in Belgium under the particular circumstances of
the case."

The whole basis of his decision is that the court sitting in this country to determine the question
must consider itself sitting in Belgium, that is, the court is only concerned to see what view the
Belgian court would take of the English law; and it was never suggested that it was the duty of the
English court to consider what its own view of the English law ought to be. The result in Collier v.
Rivaz could not have been arrived at if the English court had refused to take into account the
rules of private international law applied by and recognised in the Belgian courts, and had merely
applied the ordinary local law of Belgium applicable to Belgian nationals.

Re Asklew [1930] 2 Ch 259

In re ASKEW.

MARJORIBANKS v ASKEW.

[1929. A. 2106.]

[CHANCERY DIVISION]

[1930] 2 Ch 259

HEARING-DATES: 8, 30 May 1930

30 May 1930

CATCHWORDS:
Conflict of Laws - Legitimation Abroad of Child of British Subject with foreign Domicil - Rights
in English Law acquired by virtue of Parent's foreign Domicil - Lex domicilii - Recognition in
English Courts - Renvoi recognized in English Courts only when treated by foreign Law as Part
of Lex domicilii - Legitimacy Act, 1926 (16 & 17 Geo. 5, c. 60), s. 1, sub-s. 2; s. 8.

HEADNOTE:
By an English settlement made upon the marriage of a husband domiciled in England with his
first wife a fund called the husband's trust fund was settled upon trust during the husband's
life to apply the income for the benefit of him and the first wife and the issue of the marriage
as therein mentioned, and after the death of the husband and the first wife upon trusts for
the issue of the marriage. The settlement provided that should the husband marry again he
might by deed or will revoke the provisions contained in the settlement concerning a part of
the husband's trust fund, and might appoint the same upon trusts for the benefit of any wife
who might survive him and of any child of that marriage. There were two children of the first
marriage. The husband separated from the first wife, and acquired a German domicil before
1911, in which year the proper Court in Germany having jurisdiction in the matter dissolved
the marriage. In April, 1912, the husband married a second wife in Berlin. On January 30,
1911, a daughter had been born in Switzerland to the second wife, and she was
acknowledged to be the husband's daughter. The divorce was made final in July, 1911. By a
deed poll dated June 13, 1913, the husband purported to revoke the trusts relating to a part
of the husband's trust fund under the settlement, and to appoint the income upon trust after
his death to be paid to the second wife, and after her death upon trusts for the children of the
second marriage. He died in 1929; and the trustees of the settlement took out a summons
asking for the opinion of the Court whether the power of appointment over the trust fund had
been validly and effectively exercised by the deed of 1913:-

Held, (i.) that, in matters coming before English Courts and depending on foreign domicil, the
lex domicilii, in the widest sense, must prima facie apply:

(ii.) that, upon the evidence, the daughter had acquired the status of legitimacy in Germany,
and that, since the lex domicilii must prima facie prevail, she must be treated in an English
Court as a legitimate child of the husband, with the result that the power of appointment
must be held to have been validly exercised.

Casdagli v. Casdagli [1919] A. C. 145 and In re Ross [1930] 1 Ch. 377 followed.

In re Johnson [1903] 1 Ch. 821 dissented from.

Udny v. Udny (1869) L. R. 1 H. L. Sc. 441 and In re Annesley [1926] Ch. 692 considered.

Observations on the difficulties caused by the conflict of the Anglo-American doctrine that
personal law is determined by the domicil of the de cujus with the modern Continental
doctrine that it is determined by national allegiance.

INTRODUCTION:
SUMMONS.

The following statement of facts is taken substantially from his Lordship's considered
judgment:-

The question to be decided upon this summons is whether, upon the true construction of a
settlement of June 30, 1893, and in the events which have happened, the power of
appointment over part of "the husband's trust fund" thereby constituted conferred upon John
Bertram Askew (now deceased) was validly and effectively exercised by a deed poll dated
June 13, 1913. This question depends upon the view that should be taken as to the marriage
in Germany of the defendant Anna Askew with the said John Bertram Askew as effecting the
legitimation of the defendant Margarete Askew, an infant, who was born previously to the
marriage and before the date of a divorce according to German law.

By the settlement of June 30, 1893, the fund which I may shortly describe as "the husband's
trust fund" was settled upon the occasion of the marriage of John Bertram Askew with
Frederica Louisa Dallas upon trust during the life of John Bertram Askew to apply the income
for the benefit of him and Frederica Louisa his wife and the issue of their marriage as therein
mentioned and after the death of the husband and the wife upon trusts for the issue of the
marriage. By clause 16 of the settlement, it was in effect provided that, if John Bertram
Askew should marry again, he might by deed or will revoke the trusts, powers and provisions
thereinbefore contained concerning any part of the husband's trust fund not exceeding one-
half thereof, and might appoint the part to which such revocation should extend after his
death to be held upon such trusts and subject to such powers and provisions for the benefit
of any wife who might survive him or any child or other issue of such subsequent marriage

as he might think proper, but so that any wife who should survive him should not take more
than a life interest, and provided that an only child or any two or more children and any issue
of a child or children collectively of the husband by a subsequent marriage should not under
an exercise of the power become entitled to a larger share of the husband's trust fund than
such only child or such children collectively would have taken in case the husband's trust fund
had been equally divided between all the children of the husband by every marriage who
being sons or a son should attain the age of twenty-one years or being daughters or a
daughter should attain that age or marry.

There were issue of the marriage between John Bertram Askew and Frederica Louisa Askew
two children who are defendants to the present application. For some years before 1912 John
Bertram Askew and his then wife had been separated, he living in Germany and she living
with the two children of the marriage in Switzerland. John Bertram Askew admittedly
acquired a de facto German domicil prior to 1911.

In 1911 John Bertram Askew instituted proceedings in the proper Court in Germany having
jurisdiction in the matter for a divorce from Frederica Louisa his wife; and in the month of
June, 1911, such Court duly made its decree dissolving the marriage with the said Frederica
Louisa Askew; and such decree in due course became absolute.

On April 20, 1912, after the first marriage had been absolutely dissolved, John Bertram
Askew married the defendant Anna Askew in Berlin. The defendant Margarete Askew was,
however, born in Switzerland on January 30, 1911, to the defendant Anna Askew, who had
been living with John Bertram Askew since December, 1909, and she was acknowledged to
be the daughter of John Bertram Askew. By deed poll dated June 13, 1913, John Bertram
Askew purported to revoke the trusts relating to a part of the husband's trust fund under the
said settlement, and to appoint the income of all the part of the husband's trust fund to which
the revocation should extend from and after

his death upon trust to pay the income to Anna Askew for life if she should survive him and
from and after the death of the survivor of him and the said Anna Askew upon trust (in the
events which have happened) for the defendant Margarete Askew absolutely, on her attaining
twenty-one or marriage.

John Bertram Askew died at Moscow on February 5, 1929, his first wife having previously
died - namely, on October 1, 1918: and this summons was taken out by Sir George John
Marjoribanks and Mr. David Hugh Watson Askew, the trustees for the time being of the
settlement of 1893, for the determination of the question whether, upon the true construction
of the settlement and in the events which had happened, the power of appointment over part
of the husband's trust fund conferred upon John Bertram Askew was validly and effectively
exercised in favour of the defendants Anna Askew and Margarete Askew or either of them by
the deed poll of June 13, 1913.

COUNSEL:
C. V. Rawlence for the trustees.

H. S. G. Buckmaster for children of the first marriage. It is not disputed that the second wife
is a "second wife" within the meaning of the trusts of the settlement. Part of the evidence as
to the status of Margarete Askew is based on the supposition that English law refers the
question back to the law of the domicil. The English Court will decide the matter upon the
basis of German law - namely, that the position of the child is decided by English law: In re
Ross. n(1) The principle is that the English Court takes the same view as the foreign Court
would take in a particular case. The foreign Court inquires what the English law is. In re Ross
n(1) does not support the argument that the Court must consider itself as sitting as a
German Court in deciding the child's status. Municipal law would be applied by the country in
which the person was a national: Casdagli v. Casdagli. n(2) The status depends on the
Court's view as to the extent to which English law must be applied in deciding

n(1) [1930] 1 Ch. 377.

n(2) [1918] P. 89, 110; [1919] A. C. 145.

status. English municipal law applies, and the child is therefore illegitimate and cannot take.

R. F. Roxburgh for the second wife and the daughter. The authority to be followed is In re
Grove. n(1) What has to be determined is whether Germany is a country allowing legitimation
by subsequent marriage in the circumstances of the case. If that is so, it may mean that it
allows it in the case of its own nationals, or that it allows it having regard to the fact that the
father is a British subject with a German domicil.

Cur. adv. vult.

May 30.

PANEL: MAUGHAM J

JUDGMENTBY-1: MAUGHAM J

JUDGMENT-1:
MAUGHAM J: [having stated the facts as set out above:] There is no doubt that, if German
local law were applicable, the subsequent marriage of the parents of the defendant Margarete
Askew would effect her legitimation, and that although she was born before the divorce,
which was not made absolute until July 27, 1911. The trustees are naturally desirous of the
protection of the Court in relation to the question whether the power of appointment in
question was validly exercised by the deed poll, and for this purpose it is necessary to
determine whether the defendant Margarete Askew, though born out of wedlock during the
continuance of a previous marriage, is, having regard to her father's domicil, legitimate. It is
admitted that the Legitimacy Act, 1926, would not have had that effect, having regard to the
fact that John Bertram Askew was married to his first wife when the defendant Margarete
Askew was born.

The question of legitimation of a child by the subsequent marriage of its parents in a foreign
country (apart from the provisions of the Legitimacy Act, 1926, s. 1, sub-s. 2, and s. 8)
appears at first sight to be well settled. n(2) Dicey (Rule 137,

n(1) (1888) 40 Ch. D. 216, 230.

n(2) Sect. 1, sub-s. 2: "Nothing in this Act shall operate to legitimate a person whose father
or mother was married to a third person when the illegitimate person was born."

Sect. 8: "Where the parents of an illegitimate person marry or have married one another,
whether before or after the commencement of this Act, and the father of the illegitimate
person was or is, at the time of the marriage, domiciled in a country, other than England or
Wales, by the law of which the illegitimate person became legitimated by virtue of such

Case I., in his Conflict of Laws) states the result of the decisions thus: "If both the law of the
father's domicil at the time of the birth of the child and the law of the father's domicil at the
time of the subsequent marriage allow of legitimatio per subsequens matrimonium, the child
becomes or may become legitimate on the marriage of the parents." The authorities cited are
Udny v. Udny n(1) ; In re Wright's Trusts n(2) ; In re Grove n(3) , and they bear out the
proposition. Now, John Bertram Askew was admittedly domiciled in Germany both at the date
of the birth and at the time of the subsequent marriage. But what is the meaning of the
phrase "the law of the father's domicil"? Does it refer to the municipal law or local law of
Germany, or does it refer to the whole of the laws applicable in Germany, including the views
entertained in Germany as to the rules of private international law? There is no doubt that
Dicey means the latter (see his Interpretation of Terms, Definition II.); but in my opinion it is
very doubtful whether the Courts who have dealt with the matter did not mean the former.
The so-called doctrine of renvoi, which has been so much discussed by jurists of recent years,
had not been formulated in earlier days; and those who look at the statement of the foreign
law in the earlier cases (see, for example, In re Wright's Trusts n(4) and In re Grove n(5) )
will find that the foreign law as stated was the local or municipal law, and that no evidence
was adduced as to the rules of private international law applied in the foreign country. It
would seem that rules of private international law, not being founded on custom or statute,
but being based upon considerations of justice and what is called "comity," ought to be the
same in all countries, though it is now well known (contrary to the belief

subsequent marriage, that person, if living, shall in England and Wales be recognised as
having been so legitimated from the commencement of this Act or from the date of the
marriage, whichever last happens, notwithstanding that his father was not at the time of the
birth of such person domiciled in a country in which legitimation by subsequent marriage was
permitted by law."

n(1) L. R. 1 H. L. Sc. 441.

n(2) (1856) 2 K. & J. 595.

n(3) 40 Ch. D. 216.

n(4) 2 K. & J. 595, 603-606.

n(5) 40 Ch. D. 216, 220.

entertained by Lord Westbury: see Udny v. Udny n(1) that they are not. I am convinced that
sixty or seventy years ago it never would have occurred to lawyers who were proving, say,
the law of Italy (or France) in relation to the succession to an Englishwoman dying domiciled
in Italy (or France) to depose (first) that the Italian (or the French) law gave a son a legitima
portio; (secondly) that foreigners domiciled in Italy (or France) were deemed to retain their
personal law; (thirdly) that he was informed that according to English law an English testator
had a free power of disposition; and (finally) that, accordingly, by an application of Italian (or
French) rules of private international law, the son had not (or had) a right to a legitima
portio. It is on evidence of this kind that English Courts have now to decide cases relating to
the succession to movables belonging to British subjects who die domiciled abroad, and other
cognate matters. It may be added that there is generally an acute conflict of expert opinion
as to the foreign law, which has to be proved afresh in each case. Foreign jurists and foreign
Courts take from time to time varying views on the subject of renvoi. The result is not always
satisfactory. It may, then, be useful to consider the question from the point of view of
principle before dealing with the four modern authorities which must I think guide me in the
matter.

I will take the case of John Doe, a British subject, who goes to a foreign country, the
Commonwealth of Utopia, and there acquires a permanent home without any intention of
returning to his native land. He does not care to become a naturalized Utopian, and he does
not trouble to fulfil the legal formalities which Utopia requires before legally admitting him to
a Utopian domicil. Now the State of Utopia is one which (I assume) has adopted what is
called the principle of nationality for foreigners, including those who have permanently settled
in the realm, and it accordingly applies their national law in all questions relating to their
status, capacity,

n(1) L. R. 1 H. L. Sc. 441, 457. [The substitution of nationality for domicil by modern
Continental doctrine and legislation as the criterion of personal law was at that time a
novelty. - F. P.]

and the succession to their surplus assets and the like. The first question that arises is
whether in these circumstances John Doe in an English Court can be said to have acquired a
Utopian domicil. Clearly this depends upon the true meaning to be attached to the word
"domicil." Until the decision of the House of Lords to be referred to later, this was at least
doubtful; but it is now I think finally settled that in an English Court John Doe must be taken
to have been domiciled in Utopia, because domicil is a pure question of fact and does not in
any true sense connote a legal relation. In English Courts, English law must be applied; and
by that law all these matters must be decided, at any rate prima facie, by the lex domicilii,
that is, in the case under consideration, by the law of Utopia, and not the less that the Courts
of Utopia attach no importance in such a case to the lex domicilii. Now the second question
arises - when the English Courts refer the matter to the law of Utopia as the lex domicilii, do
they mean the whole of that law, or do they mean the local or municipal law which in Utopia
would apply to Utopian subjects? In order fully to appreciate this matter, it is necessary to
answer the question, how comes it that an English Court applies to John Doe the system of
law of Utopia to which he does not owe allegiance? The answer must be that, in the view of
an English Court, John Doe, by acquiring a permanent home in Utopia, has attracted to
himself the system of personal law which Utopia would apply to him, and it may be added
that this would be in accordance with his presumed intention. Moreover, questions of private
international law, in the absence of statute, depend largely on the historical views and the
opinions of jurists which have been adopted in our Courts; and it is the fact that, for some
hundreds of years before the nineteenth century, Continental and British jurists alike were
practically united in the view that there existed in the world a number of civil societies based
on domicil in the sense that the status and capacity of the members of those societies were
governed by the lex domicilii, whatever their nationalities might be. In France, Italy, Germany
and elsewhere a different principle - namely,

that of nationality, has gradually been introduced and now prevails; but in the British Empire,
including as it does within its area so many distinct systems of law, the old doctrine is
retained, and domicil is still the criterion in our Courts of the personal law. If the law of
Utopia had taken the same view as the English Courts and applied to John Doe the Utopian
local law, there would of course be no difficulty whatever. But since the jurists of Utopia have
adopted the principle of nationality as governing the question of his personal law, the result is
that, when the English Court makes an inquiry as to the Utopian law, the first answer may be
that Utopia prima facie applies to John Doe the laws of England. It is, I think, a
misunderstanding of the problem to suggest that this leads to a deadlock. Like others before
me, I have spoken of the lex domicilii as applying to John Doe; but it should not be forgotten
that the English Court is not applying Utopian law as such, and the phrase is really a short
way of referring to rights acquired under the lex domicilii. The inquiry which the Court makes
is, of course, as to Utopian law as a fact, and one to be proved in evidence like any other.
The inquiry might accurately be expanded thus: What rights have been acquired in Utopia by
the parties to the English suit by reason of the de facto domicil of John Doe in Utopia? For the
English Court will enforce these rights, though, I repeat, it does not, properly speaking,
enforce Utopian laws. It is evident that, so stated, the question involves this. Have the parties
acquired rights in Utopia by reason of the personal law of John Doe being English local law or
Utopian local law? There is this alternative and no other. It is apparent that there is no room
here for a deadlock, and that the circulus inextricabilis is no better than a (perhaps amusing)
quibble.

The English judges and the foreign judges do not bow to each other like the officers at
Fontenoy. The English Court has to decide a matter within its jurisdiction according to English
law in the wide sense, and if the matter depends on foreign domicil it is only necessary to
prove certain facts as to rights under the foreign law. It is therefore, I think,

clear that, when we inquire whether John Doe has acquired rights in Utopia by Utopian law,
we must mean by the whole of the laws of Utopia including any views of private international
law which may be deemed to give him rights (or subject him to restrictions), though an
Englishman settled in that land. A final question may sometimes remain - namely, whether
the lex domicilii is one which the English Courts can recognize. If it is (as it nearly always is),
we have only to ascertain what the lex domicilii in the wider sense is. I will add that I am not
aware of any satisfactory definition of the term renvoi; but it will be noted that, if I am right,
an English Court can never have anything to do with it, except so far as foreign experts may
expound the doctrine as being part of the lex domicilii.

I will now deal with the four authorities to which I have referred. The first is the much
discussed case of In re Johnson. n(1) Farwell J. had there to consider the proper distribution
of the movables of Miss Johnson, a British subject domiciled at her birth in Malta, but at the
date of her death (which took place in 1894) domiciled de facto in the Grand Duchy of Baden,
where she had not been naturalized. By the certificate of the Master it was found that
according to the law of Baden the legal succession to the property of the deceased of which
she had not disposed by will was governed solely by the law of the country of which the
testatrix was a subject at the time of her death.

Now it is clear that Lord Westbury in Bell v. Kennedy n(2) and in Udny v. Udny n(3) had
thought that what he termed civil status was determined by the single criterion of domicil,
that international law depended on rules common to the jurisprudence of all civilized nations,
that, accordingly, in all such countries, an acquired domicil would be recognized as attracting
to the individual the municipal law. In the case of Abd-ul-Messih v. Farra n(4) Lord Watson
(approving a decision of Chitty J. in In re Tootal's Trusts n(5) ) had

n(1) [1903] 1 Ch. 821.

n(2) (1868) L. R. 1 H. L. Sc. 307, 320.

n(3) L. R. 1 H. L. Sc. 441.

n(4) (1888) 13 App. Cas. 431, 439.

n(5) (1883) 23 Ch. D. 532.

followed the same line. He said, after referring to Udny v. Udny n(1) : "According to English
law, the conclusion or inference is that the man has thereby attracted to himself the
municipal law of the territory in which he has voluntarily settled, so that it becomes the
measure of his personal capacity, upon which his majority or minority, his succession, and
testacy or intestacy must depend." Now, Farwell J. had to apply these views to a case where
the foreign law said that the propositus had retained his national law. Having come to the
conclusion that the Courts of Baden paid no heed to domicil, he not unnaturally decided,
following the dicta I have referred to, that there could be no domicil of choice, since "a
domicil of choice ineffectual to create any rights and liabilities governing the distribution of
movables in the country supposed to have been chosen was for that purpose no domicil at
all," and that the propositus was left with his domicil of origin unaffected. He added that the
Baden Courts would in effect have disavowed him and disclaimed jurisdiction. There was a
second ground for his decision - namely, that, even if the Baden Courts would not really have
refused jurisdiction, he was of the opinion that when those Courts said that they looked to the
nationality of the propositus, that must result in distribution according to the law of
nationality, i.e., according to the law of England n(2) as applicable to the particular
propositus and therefore according to her domicil of origin, which was Malta. Accordingly the
decision was that the movables must be distributed according to the law of Malta, not
according to the municipal law of England.

It is, I think, evident that Sir George-Farwell's judgment was mainly based on the dicta and
the views of Lord Westbury and Lord Watson, which, since the decision I am now going to
mention, can no longer be treated as correct.

n(1) L. R. 1 H. L. Sc. 441.

n(2) [A compendious name for the legal result of allegiance to His Britannic Majesty: there is
no suggestion in the present case of any presumption that a British subject's personal law is
that of England rather than any other part of the Empire. Such a suggestion has been made
elsewhere, but, it is submitted, without foundation. - F. P.]

In the important case of Casdagli v. Casdagli n(1) the question arose whether a petition for
dissolution of marriage can be entertained by an English Court if presented in a case where
the marriage and the domicil de facts was Egyptian. The husband, who was the respondent,
and a British subject, objected to the jurisdiction, while the wife set up the contention that
the husband, being a British protected subject and entitled to privileges and immunities by
reason of the extra-territorial jurisdiction exercised by His Majesty in that country, could not
in law acquire an Egyptian domicil. In the Court of Appeal n(2) this view prevailed, Scrutton
L.J. dissenting. In the House of Lords the decision of the Court of Appeal was overruled, and
Lords Finlay, Haldane, Dunedin and Phillimore expressed approval of the judgment of
Scrutton L.J. The House of Lords overruled the opinion of Chitty J. in In re Tootal's Trusts
n(3) , and some of the dicta of Lord Watson in Abd-ul-Messih v. Farra n(4) , including a
dictum that "residence in a foreign state, as a privileged member of an extra-territorial
community, although it may be effectual to destroy a residential domicil acquired elsewhere,
is ineffectual to create a new domicil of choice." In effect the House of Lords declined to
accept the view that domicil was a relation created by law between an individual and a
country involving that the individual had attracted to himself the municipal law of that
country. The conclusion was come to that the husband had in fact acquired a legal Egyptian
domicil, and not the less that he was entitled to the privileges conceded by the Capitulations,
which were regarded in the House as privileges made effectual by Egyptian law and not by
English law. The judgment of Scrutton L.J. having been accepted in the House of Lords, I
return to that judgment, and I accept his view that in such a case as the present there are
two questions to be determined, the first question being: Is there a domicil or permanent
home, which depends on the fact of residence and an intention to

n(1) [1919] A. C. 145.

n(2) [1918] P. 89, 110, 111.

n(3) 23 Ch. D. 532.

n(4) 13 App. Cas. 431, 445.

continue to reside; and the second question being: Is there a lex domicilii which the English
Courts will recognize? He goes on to say this: "The law administered may vary with the
nationality of the resident; a German Court may administer different law for a Belgian and a
Russian in the matter of status. The law of the domicil would appear to be the law which the
sovereign of the domicil would administer in the case of the domiciled person. If so, can it
make any difference whether the sovereign of the domicil administers the law directly, or
allows another sovereign by grant to exercise part of his sovereignty by administering such
law as he pleases in Courts which the sovereign of the domicil allows to exist in his territory?
The law appears to be still the law of the domicil, allowed to be administered in the country of
the domicil by the sovereign power of that country, whose consent is necessary for its
administration. Practical and theoretical difficulties arise from the fact that, while England
decides questions of status in the event of conflict of laws by the law of the domicil, many
foreign countries now determine those questions by the law of the nationality of the person in
question. Hence it has been argued that if the country of allegiance looks to or sends back
(renvoyer) the decision to the law of nationality, there is an inextricable circle in 'the doctrine
of the renvoi,' and no result is reached. I do not see that this difficulty is insoluble. If the
country of nationality applies the law which the country of domicil would apply to such a case
if arising in its Courts, it may well apply its own law as to the subject-matter of dispute, being
that which the country of domicil would apply, but not that part of it which would remit the
matter to the law of domicil, which part would have spent its operation in the first remittance.
The knot may be cut in another way, not so logical, if the country of domicil says, 'We are
ready to apply the law of nationality, but if the country of nationality chooses to remit the
matter to us we will apply the same law as we should apply to our own subjects.' This is the
German solution of the difficulty." n(1)

n(1) See footnote In re Johnson [1903] 1 Ch. at p. 831.

This decision seems to me to clear up more than one point of considerable difficulty. In the
first place it follows, I think, that Lord Westbury's dictum in Bell v. Kennedy n(1) that domicil
is "the relation which the law creates between an individual and a particular locality or
country" is no longer to be relied on. Nor is it true to say that "residence in a foreign country
without subjection to its municipal laws and customs is ... ineffectual to create a new
domicil." It is reasonably clear that domicil does not depend upon the question of the
attraction of the local or municipal law, and that the fact that the local Courts decide a
question arising as regards a foreigner in their land solely by the law of his nationality is no
reason for treating those Courts as disclaiming jurisdiction. Accordingly I think the case of In
re Johnson n(2) and the reasons given for that decision by Farwell J. are no longer of
authority.

I will now deal with the case of In re Annesley. n(3) In that case Russell J. had to determine,
first, whether the domicil of the testatrix was English or French, she having died in France
without having acquired a formal French domicil according to French law, and secondly,
whether French municipal law applied to her so that she had power only to dispose of one-
third of her movable property. It was clear that the testatrix had acquired a permanent home
in France, and that she had no intention of returning to this country. The learned judge,
basing his view on the decision in Casdagli v. Casdagli n(4) to which I have referred, declined
to follow In re Johnson n(2) in so far as that case decided that a domicil in a foreign country
not recognized by the law of that country is in the eye of the English law no domicil at all;
and he followed his own view that the question of domicil was to be determined in accordance
with the requirements of English law as to domicil, and accordingly that the domicil of the
testatrix at the time of her death was French. He then had to determine whether French
(municipal) law ought to be applied, or whether the national law of the testatrix -

n(1) L. R. 1 H. L. Sc. 307, 320.

n(2) [1903] 1 Ch. 821.

n(3) [1926] Ch. 692.

n(4) [1919] A. C. 145.

namely, English (municipal) law ought to be applied. The French experts differed strongly on
what is called the doctrine of renvoi, two experts taking the view that a French Court would
distribute the movables of the testatrix in accordance with English municipal law, and one
expert equally strongly taking the view that a French Court would accept the renvoiand
distribute in accordance with French municipal law. The learned judge came to the conclusion
that he must accept the latter view, having regard to two decisions of the Court of Cassation
in France. The result was that he held that the testatrix had power only to dispose of one-
third of her movable property by her will.

In the case of In re Annesley n(1) , however, the learned judge suggested an alternative
ground for his decision that French municipal law was to apply. He expressed himself in the
following terms: "Speaking for myself, I should like to reach the same conclusion by a much
more direct route along which no question of renvoi need be encountered at all.
When the law of England requires that the personal estate of a British subject who dies
domiciled, according to the requirements of English law, in a foreign country shall be
administered in accordance with the law of that country, why should this not mean in
accordance with the law which that country would apply, not to the propositus, but to its own
nationals legally domiciled there? In other words, when we say that French law applies to the
administration of the personal estate of an Englishman who dies domiciled in France, we
mean that French municipal law which France applies in the case of Frenchmen. This appears
to me a simple and rational solution which avoids altogether that endless oscillation which
otherwise would result from the law of the country of nationality invoking the law of the
country of domicil, while the law of the country of domicil in turn invokes the law of the
country of nationality, and I am glad to find that this simple solution has in fact been adopted
by the Surrogates' Court of New York." It may be observed that this simple and rational
solution is one that does not

n(1) [1926] Ch. 692, 708.

lead necessarily to the same result as that at which Russell J. arrived on his view of the
French law, including the rules of private international law, as a fact applicable to the case.
What may be called the short route resulted in the application of the municipal law as the law
of the domicil in the case of In re Annesley n(1) , but that route would have resulted in a
decision contrary to that which Luxmoore J. pronounced in the case I am about to mention,
and he found it necessary therefore to reject that part of the judgment of Russell J.

The last case I have to refer to is that of In re Ross. n(2) The testatrix, an Englishwoman
whose domicil of origin was English, had acquired a domicil in Italy, and by her testamentary
dispositions excluded her son and only child from any share in her movable and immovable
property situate in Italy, and in her movable property situate elsewhere than in Italy. There
was again some conflict of evidence as regards the foreign law, but the learned judge
accepted the views of two Italian experts who deposed that the Italian Courts would
determine the case on the footing that "the English law applicable was that part of the law
which would be applicable to an English national domiciled in England." n(3) It was clear that
the Italian Courts looked to the doctrine of nationality, and apparently applied the local law of
the nationality. The learned judge went through nearly all the reported cases on the question
whether the English rule which refers such a matter to the lex domicilii refers only to that part
of the domiciliary law which is applicable to nationals of the country of domicil, that is, to the
local or municipal law, or whether the phrase refers to the whole law of the country of
domicil, including the rules of private international law. Without wholly agreeing with his
explanation of all the cases, I think there can be no doubt that he was right in coming to the
conclusion that the latter view is correct; and like Russell J. he declined to follow the case of
In re Johnson. n(4) As I have already pointed out, he also declined to accept the alternative
ground

n(1) [1926] Ch. 692.

n(2) [1930] 1 Ch. 377.

n(3) [1930] 1 Ch. 377, 404.

n(4) [1903] 1 Ch. 821.

on which Russell J. was disposed to decide the case of In re Annesley. n(1) It will be seen
that I fully agree with the substance of this decision; but I would be inclined to express some
passages in the judgment in a somewhat different form, for, as I have said, I think the
foreign law is a matter of fact in our Courts. If the proposition that, where a British national
dies domiciled in a foreign country, his movables here must be distributed according to our
view of what the Courts of that country would decide in the particular case, means that
generally speaking we must ascertain the foreign municipal law and also the rules of private
international law applied by the foreign country, and then decide the case, I respectfully
agree; but if the proposition is to be taken literally, I think there should be a qualification. I
do not think an English Court administering the estate of a British national in this country is
bound to follow the decisions of all foreign Courts, however erroneous or unreasonable. I am
not convinced that an English Court is bound to accept all the views of a foreign Court on the
rules of private international law, where they plainly conflict with our notions of comity. And
further there may be legislation in the foreign country directed specifically against persons
who are foreigners in that country which an English Court would not be disposed to enforce.
Suppose, for example, a law passed in a country that every foreigner who died there without
having been naturalized must be held to die intestate, or must have the whole of his
movables wherever situate forfeited to the State, or is only empowered to bequeath his
property to subjects of that State, other legacies being void, would our Courts be bound to
enforce such a law? It is one thing to hold that the law of England requires that the movables
of a British subject who dies domiciled in a foreign country shall be administered in
accordance with the law which that country would apply to its own nationals, and another to
hold that our law in all cases requires his movables to be administered as the law of that
country requires in the case of foreigners. In my opinion the safer view is that an English

(1) [1926] Ch. 692.

Court in deciding a question arising here as to the administration of the movables of an

Englishman who has died abroad, or as to the status of such a person, is deciding a question
of English law in the wide sense, which may no doubt include or involve in a particular case
the consideration of foreign views on private international law, but allows us a certain power
of discrimination in the application of them. As Scrutton L.J. remarked in Casdagli v. Casdagli
n(1) the lex domicilii must be one which our Courts will recognize.

I will now return to the present case which, if I am right in the views above expressed, will
present little difficulty. There is fortunately no contest as to the German law, for the affidavit
of Dr. Hellmut Rost, a Doctor of Laws of the University of Erlangen, was accepted by all
parties as being correct, another affidavit being withdrawn. Dr. Rost deposed as follows:-

"The child Margarete Askew is according to German law legitimated by the subsequent
marriage of John Bertram Askew and Anna Wengels. I have come to this conclusion on the
following grounds:-

"The German Civil Code and the introductory Act does not contain any specific rule as to the
effect of a subsequent marriage of the parents of an illegitimate child where the father of the
child is not a German national, but only provides that where the father is a German national
the question is to be decided by German law" (art. 1719 of the Civil Code, combined with art.
22 of the Introductory Act). "A general principle of the German law is, however, that the law
of the country of which the father at the time of the marriage is a national governs the
question of legitimation per subsequens matrimonium."

"I am informed and believe that John Bertram Askew was an Englishman. Therefore English
law would be applied by the German Court in deciding the question. (I am informed that the
English law refers the question back to the law of the domicil, in the present case German
law.) The German Court would in these circumstances first have to decide whether to apply
the municipal law of England only,

n(1) [1918] P. 89, 110.

or also the principles of international private law as interpreted by the English Courts. The
rule followed by the German Court is that both the municipal law and the rules of
international law, as interpreted by the English Court, are to be applied. The German Court
therefore accepts the renvoi. There is no general statutory rule of German law as to which
municipal law in the case of renvoi as in the present case is to be ultimately applied. The
question has however been decided by numerous decisions of the Reichsgericht, the Court of
the highest instance in Germany (confer Reports, vol. 62, p. 404; vol. 64, p. 393; vol. 78, p.
28, and others). These decisions are to the effect that in a case where the German law
provides that the law of the nationality is to govern a question and the law of nationality
refers to the law of domicil and the domicil is German, the German Court is to apply German
municipal law.

"I am therefore of opinion that the German Court would hold that according to German law
Margarete Askew was legitimated by the marriage of her parents notwithstanding the fact
that her father at the time of her birth was still married to a woman other than her mother
and that by reason of the legitimation the child Margarete Askew has become issue of the
marriage between John Bertram Askew and Anna Askew n e Wengels."

I take this deposition as proving as a fact that the defendant Margarete Askew acquired in
Germany the status of legitimacy. For the reasons given above I hold that in an English Court
the lex domicilii in the wide sense must prima facie apply, and, this being a law which the
English Courts will recognize, the conclusion is that the defendant Margarete is a legitimate
child of John Bertram Askew in our Courts and that the power of appointment was effectively
exercised in her favour.

I think it proper to add that in my opinion it is unsatisfactory to find that, upon the evidence
adduced in the two cases of In re Annesley n(1) and In re Ross n(2) , the Courts were bound
to hold that, although both in France and in

n(1) [1926] Ch. 692.

n(2) [1930] 1 Ch. 377.

Italy the national law of the de cujus is held to prevail, yet, owing to a divergence on the
theoretical question of renvoi, the property and capacity of an Englishman domiciled in Italy
is held to be a matter of (local) English law, whilst the property and capacity of an
Englishman domiciled in France is held to be a matter of local (French) law. Nor is there any
certainty that a contrary result will not be reached upon the evidence adduced in the next two
cases which arise as to persons dying in France and Italy respectively. Those who have any
acquaintance with the extensive literature that has appeared on the Continent on the subject
of renvoi and the great diversity of view that exists would not be surprised to find that the
legal decisions in France and Italy, where legal decisions are not binding as authorities to be
followed, had changed in their effect. An Englishman domiciled de facto in France can have no
certainty that his personal law is the municipal law of France, nor can he be sure if he crosses
the frontier and becomes domiciled de facto in Italy that the municipal law of England will
become his personal law. It may be added that views which seem strange to an English
lawyer are entertained on these matters in some Eastern countries and also in some of the
States in South America; and in those countries the result of acquiring a domicil must be very
doubtful. I cannot refrain from expressing the opinion that it is desirable that the position of
British subjects who acquire domiciles in countries which do not agree with our views as to
the effect of a foreign domicil should be made clear by a very short statute. There is much to
be said for the "simple and rational solution" suggested by Russell J. in In re Annesley n(1) ;
but whether the municipal law of the foreign country or the municipal law of England is to be
held applicable in British Courts in these cases, it is clearly desirable that the matter should
be certain and should not be held ultimately to depend on the doubtful and conflicting
evidence of foreign experts.
SOLICITORS:
Solicitors: Williams & James; Buckeridge & Braune.

n(1) [1926] Ch. 692.

K. R. A. H.

(c)2001 The Incorporated Council of Law Reporting for England & Wales

Re Duke of Wellington [1947] Ch 506

In re DUKE OF WELLINGTON.

GLENTANAR v WELLINGTON

[CHANCERY DIVISION]

[1947] Ch 506

HEARING-DATES: 15, 16, 17, 18, 23, 24, 25, April 7 May 1947

7 May 1947

CATCHWORDS:
International Law - Will - English and Spanish wills - Movable and immovable property in Spain - Devolution -
Renvoi.

HEADNOTE:
The first Duke of Wellington was, in 1812, created a Spanish grandee with the title of Duke of Ciudad Rodrigo,
and certain Spanish estates were, in 1813, adjudicated to the Duke of Ciudad Rodrigo for himself his heirs and
successors. On the death of each of the first five dukes the Spanish estates passed to his successor in the
dukedom under his testamentary dispositions. The sixth duke, however, was killed in action in 1943, being at
his death a bachelor, and on his death the dukedom of Wellington vested in his uncle and the dukedom of
Ciudad Rodrigo vested in his (the sixth duke's) sister. By a Spanish will the sixth duke devised and bequeathed
his Spanish estates to "the person who being of the issue of the late Most Noble Arthur Duke of Wellington and
Ciudad Rodrigo my great great grandfather will on my decease become Duke of Wellington and Ciudad
Rodrigo for his absolute benefit." He also subsequently made an English will, disposing of the remainder of his
property and specifically excepting therefrom the property disposed of under the Spanish will. A summons was
taken out to determine how the Spanish property devolved on the death of the testator:-

Held (1.), that, following the general rule, the question of succession to the movable property of the testator
comprised in the Spanish will, must be determined by English law; (2.) that Article 10 of the Spanish Civil Code
showed the insistence of the Spanish law of succession on the principle of the unity and universality of the
succession, and it was for that reason that in case of succession the lex patri' was substituted for the lex domicilii
and the lex situs, and that, having regard to the evidence, it would be against the spirit and intendment of the
Spanish Civil Code to hold that, in a case such as this, the Spanish law would accept the renvoi which the
English law made to it as the lex situs; and that according to Spanish law the question of the devolution of the
immovable property in Spain must be resolved by reference to English law; (3) that, looking at the Spanish will,
no one person existed, who fulfilled both qualifications, and, therefore, the gift failed, but that the present Duke
of Wellington was entitled under the English will to the Spanish property, movable and immovable, comprised
in, but ineffectually disposed of, by the Spanish will; and (4.) that the interposition of the administration trusts
before the absolute gift to the present duke did not make the English will ineffectual to pass the Spanish
property.

INTRODUCTION:
ADJOURNED SUMMONS.

The following statement of facts is taken from the judgment.

In January, 1812, following the storming of the fortress of of Ciudad Rodrigo, the first Duke of Wellington, then
Viscount Wellington, was created a grandee of Spain of the first class for himself and his successors, free of
nobility duties and fees, with the title of Duke of Ciudad Rodrigo, the deed of February 5, 1812, carrying into
effect the Royal Decree of January 30, 1812, providing that the grandeeship of Spain and the dukedom of
Ciudad Rodrigo should be enjoyed by him and his issue, successors male and female, each in his time in
perpetuity. By a deed of July 22, 1813, it was provided that "there be adjudicated to the Duke of Ciudad Rodrigo
for himself his heirs and successors the Royal Site and possession known in the plain of Granada as the Soto de
Roma including therein the lands called the Chauchinas which are found situated within the same boundaries of
the Soto in order that they may hold and enjoy it in conformity with and subject to the Constitution and the
laws."

The first Duke of Wellington was created Duke of Wellington in the peerage of the United Kingdom in the year
1814. He died in the year 1852 and was succeeded both in the British and the Spanish dukedoms by his son,
Arthur Richard, second Duke of Wellington. The second duke died in the year 1884 and was succeeded in both
dukedoms by his nephew Henry, third Duke of Wellington. The third duke died in the year 1900 and was
succeeded in both dukedoms by his brother, Arthur Charles, fourth Duke of Wellington. The fourth duke died in
the year 1934 and was succeeded in both dukedoms by his son, Arthur Charles, fifth Duke of Wellington. The
fifth duke died in the year 1941 and was succeeded in both dukedoms by his son, the sixth Duke of Wellington,
whose testamentary dispositions are in question, and whom I will refer to as the testator. On the deaths of each
of the first five Dukes of Wellington the Spanish estates passed to his successor in the dukedoms under his
testamentary dispositions, as each of them gave these estates to his successor either by name or by a gift to the
person who should, upon his death, become Duke of Wellington and Ciudad Rodrigo. Until the death of the
testator, the sixth Duke of Wellington, this form of gift caused no difficulty as there could never have been any
suggestion that the Spanish dukedom passed to a person other than the person who succeeded to the dukedom of
Wellington.

The sixth duke made a will, dated May 6, 1942 (to which for convenience, I will refer as "the Spanish will"), in
the following terms: "I, the Most Noble Henry Valerian George Duke of Wellington and Duke of Ciudad
Rodrigo a Grandee of the First Class in Spain hereby revoke all my wills and codicils so far as the same relate to
the Place and Royal Possession known in the Vega de Granada as the 'Sota de Roma' inclusive of the lands
called respectively the 'Dehes-a-baja of Illora' and 'Las Chauchinas' assigned to my late great-great-grandfather
by the Decree published by the General and Extraordinary Cortes on the 22nd day of July, 1813, and all arrears
of rent due at my death in respect thereof and all chattels of every kind on the said estate at my death and I give
devise and bequeath all the said estate called the 'Soto de Roma' inclusive of the lands called respectively the
'Dehes-a-baja of Illora' and 'Las Chauchinas' with the rights members and appurtenances thereunto belonging
and all arrears of rent due at my decease in respect thereof and all chattels of every kind which shall be on the
said estate at my death belonging to me unto the person who being of the issue of the late Most Noble Arthur
Duke of Wellington and Ciudad Rodrigo my great-great-grandfather will on my decease become Duke of
Wellington and Ciudad Rodrigo for his absolute benefit And I appoint Lord George Wellesley and Thomas Lord
Glentanar Executors of this my Will and Testament so far as the same relates to my real and personal property in
Spain."

The testator made a further will dated December 6, 1942 (to which for convenience I will refer as "the English
will"). This will began as follows: "I, The Most Noble Henry Valerian Sixth Duke of Wellington hereby revoke
all testamentary dispositions heretofore made by me except my will dated the Sixth day of May One thousand
nine hundred and forty-two relating to certain property in Spain (hereinafter called 'my Spanish will') and
declare this to be my last will save as regards the property which is disposed of by my Spanish will which
property so disposed of is not intended to be disposed of or dealt with by this my will which I make this sixth
day of December One thousand nine hundred and forty-two." He then appointed his uncles Lord Glentanar and
Lord George Wellesley, the plaintiffs in this summons, to be the executors and trustees of the English will and,
after making certain other

bequests, bequeathed to them, amongst certain other items: "Thirdly all if any moneys and other personal or
movable property in Spain belonging to me at my death which does not pass under my Spanish will."

By cl. 5 of the English will the testator provided as follows: "I devise and bequeath all my property real as well
as personal not hereby or by any codicil hereto otherwise specifically disposed of and of which I can dispose in
any manner I think proper either as beneficially entitled thereto or under any general power to my trustees upon
the administration trusts contained in Form 8 of the Statutory Will Forms 1925 and that Form is incorporated
herein."

By cl. 6 he provided as follows: "My trustees shall stand possessed of the investments and property hereinbefore
by reference directed to be made or authorized to be retained including any part of my residuary estate for the
time being unconverted and the investments and property for the time being representing the same and the
income thereof upon trust for the person who upon my death shall become Duke of Wellington absolutely if he
shall be of the age of twenty-one years but if he is under the age of twenty-one years then upon trust for such
person as within the period of twenty-one years from my death first is Duke of Wellington and of the age of
twenty-one years absolutely but if no person is Duke of Wellington and of the age of twenty-one years within
the said period then upon trust for the person who immediately prior to the expiration of the said period is Duke
of Wellington absolutely."

The testator was killed in action on September 16, 1943, being at his death a bachelor and domiciled in England
and leaving him surviving his mother, the defendant, Lilian Maud, Duchess of Wellington, and an only sister,
the defendant, Lady Ann Maud Rhys. He never had any brothers. The testator's two wills were proved by the
plaintiffs on October 13, 1944. The testator was, at his death, entitled to the estates in Spain referred to in the
Spanish will and also to the proceeds of sale of parts of such estates, bank balances, cash in hand and arrears of
rent in respect of such estates and to certain chattels thereon. On his death the testator was succeeded in the
dukedom of Wellington by his uncle Gerald, as seventh duke. The expert evidence established and on this point
there was no dispute, that on the testator's death, the dukedom of Ciudad Rodrigo vested in his sister.

A summons was taken out by the trustees of the wills to

determine the destination of the movable and immovable property in Spain, comprised in the Spanish will.

COUNSEL:
Rawlence for the plaintiffs.

Jennings K.C. and Jopling for the present Duke of Wellington. The Spanish estate passes to the present duke
under the Spanish will. If that will failed to pass it, it passes to him under cl. 5 of the English will, as property
not otherwise disposed of - that is to say, effectively disposed of. It falls into residue, as, otherwise, the devise
would be incapable of taking effect: [see Theobald on Wills, 9th ed., p. 197; Green v. Dunn n(1) ; De Trafford v.
Tempest n(2) ; In re Mason n(3) ; Blight v. Hartnoll n(4) ; In re Powell n(5) .] The court will, if possible, avoid
holding a gift void for uncertainty: [see Theobald on Wills, 9th ed., p. 233]. There has been a mis-description,
and it is clear that the person designated is the English Duke of Wellington.

With regard to the question of renvoi, the English law applies to the whole of the testator's property. [Casdagli v.
Casdagli n(6) ; In re Annesley n(7) ; In re Ross n(8) .] The question is whether the Spanish law accepts the
renvoi. When the Spanish Civil Code is considered, the question arises whether its intention is that the internal
law of Spain, or the whole of the law of Spain, including its rules of private international law is to be applied -
see art. 10 n(9) . [In re Askew n(10) ; Jaber

n(1) (1855) 20 Beav. 6.

n(2) (1856) 21 Beav. 564.

n(3) [1901] 1 Ch. 619.

n(4) (1881) 23 Ch. D. 218.

n(5) (1900) 83 L. T. 24.

n(6) [1918] P. 89; [1919] A. C. 145.

n(7) [1926] 1 Ch. 692.

n(8) [1930] 1 Ch. 377.

n(9) Spanish Civil Code, art. 9: "Laws relating to family rights and duties or to the status, condition or legal
capacity of persons, bind Spaniards though resident in a foreign country."

Article 10: "Movables are governed by the law of the country of their owner; immovables by the law of the
country where they are situate. However, intestate succession as well as testamentary successions shall be
governed as regards the order of succession inheritance rights and intrinsic validity of the dispositions by the
national law of the person whose succession it is, whatever be the nature of the property and the country in
which it is situate."

Article 659: "The estate comprises all the rights property and liabilities of a person which are not extinguished
by his death."

Article 661: "The heirs succeed to the whole of the rights and obligations of the deceased by the mere fact of his
death."

n(10) [1930] 2 Ch. 259.

Elias Kotia v. Katr Bint Jiryes Nahas n(1) ; Studd v. Cook n(2) .] The Spanish law resembles the English law
very closely and takes the view that the law intended by the testator to govern his wills is prima facie the law of
domicile. The suggestion that a trust would not be recognized by Spanish law would not affect the present case,
as this is purely an administrative trust, the person entitled to the residue being absolutely entitled, subject to
administrative formalities - see Form 8 of the Statutory Will Forms, 1925 (Wolstenholme and Cherry's
Conveyancing Statutes, 12th ed., vol. 1, p. 788). The present duke is entitled to be registered as the owner of the
Spanish property and, if Spanish law required some document before he was registered, he could call on the
trustees to provide him with it. Both wills must be construed according to English law, and the English rules of
construction as to movables and immovables must be applied. The present duke is entitled to the whole of the
Spanish property passing under the Spanish will.

When the Spanish Code is examined, it is found that the law is the same as the English law with regard to land,
except in the case of land owned by persons who are not nationals of Spain. This land is allowed by the law of
Spain to devolve in accordance with the law of their country. The exception is dealt with in Bartlett v. Bartlett
n(3) . [Concha v. Murietta n(4) was also referred to.] If the court does not take the view that the present duke is
entitled to the whole of the property passing under the Spanish will and holds that Spanish internal law prevails,
he is, in any case, entitled to half of the Spanish estate.

Winterbotham for the testator's sister. This defendant takes under the Spanish will and under no other will. The
Spanish will should be construed so as to give her some of the Spanish property, even if it does not give her the
whole of it. The point as to falsa demonstratio, introduced by counsel for the present duke, has no application to
a will of this kind, because the testator is not attempting, by his language, to describe an existing person, but is
leaving the question to be determined at his death, by means of a description rather than a definition of the
persons who are to take. It is not a case of a testator having in his mind an individual and misdescribing him.
The court has to construe the will as it stands and decide what is the meaning of this phrase Does it mean

n(1) [1941] A. C. 403.

n(2) (1883) 8 App. Cas. 577.

n(3) [1925] A. C. 377.

n(4) (1889) 40 Ch. D. 543.

one individual, who becomes, at the death of the testator, Duke of Wellington and Ciudad Rodrigo? If so, the
gift fails, because no one answers that description. Or, can it be read as "those persons who become Duke of
Wellington and Duke of Ciudad Rodrigo?" If that is possible, the words operate to give the property to the two
persons, who acquired those titles - namely, the present duke and the testator's sister - jointly. This submission is
not made on the ground that this construction is in accordance with the deliberate intention of the testator, but is
based on the effect which the court is bound to give to the words. The proper interpretation of the phrase is to
read the word "person" as "persons."

Gray K.C. and Wilfrid M. Hunt for a legal personal representative of the testator's mother, who was interested in
the event of an intestacy. The gift was not meant for more than one person, unless anything to the contrary can
be spelt out of the words. The only way to deal with the Spanish estate is to deal with it under two separate
wills. The testator was clearly contemplating that one person would hold both estates and he did not
contemplate what happened. With regard to the Spanish will, he was thinking of his Spanish title and his
Spanish estate. Under the Spanish will it is impossible for for anyone to take the property, who is not both Duke
of Wellington and Duke of Ciudad Rodrigo. Therefore, there must be an intestacy under that will. As to the
English will, it does not profess to dispose of any part of the Spanish estate [see Blight v. Hartnoll n(1) ]. In
referring to property "disposed of by my Spanish will," the testator indicates that he does not, in the English
will, intend to deal with the Spanish estate. The testator's mother takes the Spanish immovable property as on an
intestacy. The English will is ineffectual to pass the Spanish immovable property, because Spanish law does not
recognize trusts. It would be misleading to suggest that, under English law, the present duke has an absolute
title, which could be registered in Spain. [Earl Nelson v. Lord Bridport n(2) was referred to.]

Cur. adv. vult.

May 7.

PANEL: WYNN-PARRY J

JUDGMENTBY-1: WYNN-PARRY J.,

JUDGMENT-1:
WYNN-PARRY J.,: after stating the facts as set out above, continued: In these circumstances doubts have arisen
as to the destination of the movable and immovable

n(1) 23 Ch. D. 218, 222.

n(2) (1846) 8 Beav. 547

property in Spain comprised in the Spanish will, and accordingly this summons has been issued by which it is
asked, first, whether on the true construction of the Spanish will and the English will and, in the events which
have happened, the present duke and the testator's sister, or either, and if so, which of them, is entitled to (a) the
movable property, and (b) the immovable property comprised in the Spanish will or whether the testator died
intestate as to the whole or any part of such property; and, secondly, if there is to any extent an intestacy, who is
entitled under such intestacy. As the property with which I am concerned consists of foreign movable and
immovable property situate abroad, the first point which arises for consideration is the choice of law to be
applied in the determination of the questions of succession to which I have referred.

As regards the movable property in Spain, no difficulty arises. The testator died domiciled in England and it is
the clear rule of English law, for which at this date no authority need be cited, that the distribution of the
distributable residue of the movables of a deceased is in general governed by the law of his domicile at the time
of his death. As there are present in this case no circumstances to take it out of that general rule, it follows that
the questions of succession to the movable property of the testator comprised in the Spanish will must be
determined by English law.

I turn now to the question by what law are those questions of succession to be determined so far as the
immovable property of the deceased is concerned. This point presents more difficulty. The first step, it is true, is
easy. According to English law, the devolution of the immovable property situated in Spain comprised in the
Spanish will is to be governed by Spanish law as the lex situs.

The second step also appears to me to present no difficulty. For when it is asked whether by the phrase "Spanish
law" is meant only the internal law of Spain or the whole of the law of Spain, including therein the body of rules
of private international law recognized and administered by its courts, the answer is, in my judgment, at any rate
so far as this court is concerned, conclusively provided by the following passage from the judgment of the Privy
Council in Jaber Elias Kotia v. Katr Bint Jiryes Nahas n(1) : "In the English courts phrases which refer to the
national law of a propositus are prima facie

n(1) [1941] A. C. 403, 413.

to be construed, not as referring to the law which the courts of that country would apply in the case of its own
national domiciled in its own country with regard (where the situation of the property is relevant) to property in
its own country, but to the law which the courts of that country would apply to the particular case of the
propositus, having regard to what in their view is his domicile (if they consider that to be relevant) and having
regard to the situation of the property in question (if they consider that to be relevant)."

The judgment in question was that of a very strong Board, and although it may be urged that so far as the case
before the Board was concerned the observation was obiter dictum, it was put forward as a statement of the law
of England on this point, and it is supported by an impressive body of judicial authority, of which reference may
be made to Collier v. Rivaz n(1) , Casdagli v. Casdagli n(2) , In re Ross n(3) , and In re Askew n(4) .

It is at this point that the real difficulty on this part of the matter arises. What is the law which would be applied
by the Spanish court, if on the facts which I have stated, the questions as to the devolution of the Spanish
property which I have to decide, were being decided by that court? As will emerge later in this judgment, the
question comes down to this: does Spanish law recognize and apply the doctrine of renvoi? It is not a difficult
question to state, but it is not easy to answer.

It is clear from the expert evidence that in Spain the only court, whose decisions are binding in other cases, is
the Supreme Court. The decisions of lower courts may be cited in other courts, but do not bind such courts. In
these circumstances, I must address myself to the question, what is the law on the matter in question which
would be expounded by the Supreme Court of Spain if it were before that court?

I have had the assistance of the evidence of three Spanish lawyers, Mr. Valls, who is a practising member of
both the Spanish and English Bars and Legal Adviser to the Spanish Embassy and the Spanish Consulate-
General in London; the Illustrisimo Senor Don Juan de Callejon, a practising member of both the Spanish and
English Bars and Mr. Valls' predecessor as Legal Adviser to the Spanish Embassy in London and Dr. Colas,
again a member of both the Spanish and English Bars, but who does not now practise in the Spanish courts,

n(1) (1841) 2 Curt. 855.

n(2) [1918] P. 89, 111, [1919] A. C. 145.

n(3) [1930] 1 Ch. 377.

n(4) [1930] 2 Ch. 259.

though he did so for many years; he is also a Doctor of Law in the University of Madrid. Affidavit evidence was
given by Mr. Valls on behalf of the plaintiffs, by Senor Callejon on behalf of the present duke and by Dr. Colas
on behalf of the last defendant, the Dowager Duchess of Wellington. Mr. Valls and Dr. Colas were cross-
examined before me on their affidavits. Senor Callejon unfortunately died before the hearing, but no objection
was taken to his affidavit being read and relied on on behalf of the present duke.

As regards Mr. Valls and Dr. Colas they were most satisfactory as witnesses; each made plain his conclusions;
each made plain the reasons for his conclusions, the difficulty arises from the circumstances, first, that, as they
both agreed, there is no express provision in the Spanish Civil Code, nor any express decision of the Supreme
Court, on the question of the applicability of the doctrine of renvoi in Spanish law, and, secondly, that on this
matter they arrived at diametrically opposed conclusions. The task of an English judge, who is faced with the
duty of finding as a fact what is the relevant foreign law, in a case involving the application of foreign law, as it
would be expounded in the foreign court, for that purpose notionally sitting in that court, is frequently a hard
one; but it would be difficult to imagine a harder task than that which faces me, namely, of expounding for the
first time either in this country or in Spain the relevant law of Spain as it would be expounded by the Supreme
Court of Spain, which up to the present time has made no pronouncement on the subject, and having to base that
exposition on evidence which satisfies me that on this subject there exists a profound cleavage of legal opinion
in Spain, and two conflicting decisions of courts of inferior jurisdiction.

[His Lordship then read arts. 9, 10 and 661 of the Spanish Civil Code and continued:]

The phrase "national law" in art. 10 is not defined in that article or elsewhere in the Civil Code. It appears to me,
as a matter of construction of the language of the article, that it would be possible to interpret the phrase, either
as meaning the internal law of the nationality, or as meaning the whole of the law of the nationality including its
rules of private international law. It is to be observed that the phrase occurs in the second paragraph of the
article in a provision which constitutes an exception to the general rule contained in the first paragraph, and
which appears to have as its object the establishment of the

rule that as regards succession all forms of property shall be governed by the same set of rules. This provides a
context on the face of the article leaning in favour of the view that by "national law" is meant the internal law of
the nationality. It is not, however, decisive of the matter.

It appears to me to be established by the evidence that in its development Spanish law was much influenced by
the continental doctrine of the Statutes - in Spanish the "doctrina de los Estatutos" - under which a foreigner was
accompanied by his civil status and capacity and the laws of his country had to be applied to him when those
laws were not opposed to the principles of public order and the interests of the nation in which his claims were
formulated. This rule was recognized by the Supreme Court of Spain in two decisions of January 13 and May
12, 1885, and by a subsequent decision of May 26, 1887 - that is before the Civil Code was promulgated in
1889. I am further satisfied that the only law recognized by that doctrine was the internal law of the lex patri'.

It is also established by the evidence that under Spanish law the estate of a deceased person is one and universal
wherever the assets are situate and whatever be their nature. This view was advanced by Mr. Valls, who further
stated that it is precisely in order to preserve this principle that art. 10 of the Civil Code expressly excludes the
lex domicilii and the lex situs from all questions of succession and establishes the lex patri'. Mr. Valls in support
of his view referred to the works of certain eminent Spanish lawyers.

The first reference was to Senor Castan, who is the President of the Supreme Court of Spain. In his work on
"Spanish Civil Law - Common and Regional," 1936, vol. 1, pp. 70-71, he writes as follows: "Rights of
Succession - By virtue of the rule laid down by the second paragraph of art. 10 intestate and testamentary
successions shall as regards the order of succession and nature of succession rights and intrinsic validity of the
dispositions be governed by the law of origin of the person whose succession is in question whatever be the
nature of the property and the country in which it is situate. The personal law of the deceased applies therefore
to all questions appertaining to the material rights in the succession or (as is the same) to the fundamental rules
thereof even if the forms and formalities of the acts referring to the same are governed as we shall see by the
law of the place where such acts take place. The withdrawal of successions from the

real statute is a novelty of the Civil Code taken from the Italian Civil Code and is based on the necessity of
maintaining the unity of the succession and of preventing the estate from being divided into so many different
portions as there may be territories in which the assets may be situate." Secondly, he refers to Professor Trias de
Bes, a Professor of International Law at Barcelona University, who, in his work "Private International Law -
Positive System of Spanish Law," 2nd ed., 1939, at p. 31, deals with the same point thus: "Succession -
Paragraph 2 of the said art. 10 contains, commencing with the word 'However' which implies an exception to the
statutory distinction - the literal transcription of art. 8 of the Italian Civil Code ... This principle is beyond
reproach because the whole matter of succession in its widest sense is governed wholly in Spain by the national
law of the deceased adopting the principle of the unity and universality of the succession." Lastly, he refers to
Alcubilla, who in his work "The Dictionary of the Spanish Administration," 6th ed., vol. 3, p. 676, summarizes
the question thus: "The solutions and opinions of authors who write on international law in regard to the statute
to be applied in questions of succession can be condensed into these three: (1.) To apply either the law of the last
domicile or the national law of the testator; (2.) To follow the rule of the lex rei sit' both for movables and
immovables, and (3.) or mixed that is to say to govern immovables by the real statute and the movables either
by the law of domicile or by the law of the nation of the testator. The Spanish Code taking its inspiration from
the principle of unity of succession and the principle of the statutes accepts the solution of the Italian Code thus
avoiding the difficulty and absurdity of dividing the unity of the succession and the possibility that within a
universality of succession there should arise a plurality of estates where there is only one deceased involved
because possibly the territories in which the assets are situate may be several."

As I understood his evidence, Dr. Colas did not challenge the view that under Spanish law the estate of a
deceased person is one and universal or, putting it another way, the principle of the unity and universality of the
succession applies to such an estate: but he did challenge the conclusion which Mr. Valls and the writers to
whom I have referred seek to draw as to the effect, having regard to that principle, of art. 10 of the Civil

Code. Dr. Colas maintained that - I quote his words - "Mr. Valls here falls into the error of confusing the Roman
doctrine of hereditas from which these articles clearly derive the doctrine of the continuity of the legal
personality of the deceased in his heirs (that is, the fact of the succession of the estate as a universal whole) with
the quite distinct question of the procedural manner or by which that estate may pass. In other words, the estate
may pass as a universal whole to several persons, who may be heirs according to several systems of laws
without destroying the integrity of the estate in the sense in which it is defined in art. 659 because all the rights
property and liabilities legally subsisting on the death of the person still survive collectively in his heirs." The
reasoning of Mr. Valls and the writers to whom he referred appeals to my mind.

In my view, the object of the second paragraph of art. 10 of the Spanish Civil Code is to preserve the principle
of the unity and universality of the succession, and it is for that reason that in case of succession the lex patri' is
substituted for the lex domicilii and the lex situs. Again, I say that that does not conclude the matter, but, if I am
correct in my reasoning so far, I have ascertained a circumstance which may well assist in answering the
question which I have to answer. Indeed, if the matter rested there, I would say that it would be contrary to the
spirit and intendment of the Spanish Civil Code to hold that in questions of succession Spanish law should
recognize and apply the doctrine of renvoi.

I must, however, refer to the only two Spanish cases on this subject. The first is a case decided on June 30, 1900,
by the Juzgado de Hospital, Barcelona - that is what would correspond in this country to a court of first instance.
For the report of this case I have to rely on a translation from Clunet, Journal du Droit International Priv , vol.
XXVIII., 1901, pp. 905 and 911. "D.T.A., a Scotchman domiciled in Barcelona, died there, possessor of an
important industrial concern; his estate consisted of the said business, real estate in Barcelona, securities and
movables. The distribution of the estate between his legatees gave rise to the question as to what law should be
applied in the matter. Article 10 of the Civil Code prescribes the applicability of the law of the nationality of the
cujus; that is, in the case in question, Scottish law. But Scottish law in this instance refers to Spanish law as
applicable in Barcelona, with reference to movables of the

deceased under the law of domicile, and with reference to immovables in accordance with the lex rei sit'." At p.
911 the judge's decision is transcribed in the following words: "Juge de l'Hospital, Barcelona, 3rd August, 1900.
According to the ruling of art. 10 of the Civil Code, as to which the succession on intestacy and on testacy, the
order of succession, with reference to the rights of the successors, and the validity of the dispositions, are
governed by the law of nationality of the deceased person, whatever the nature of the property is and of the
country in which it might be situated. The law of Scotland should be applicable in view of the fact that the
deceased D.T.A. was a Scottish subject. Scottish law does not however accept the jurisdiction which Spanish
law gives to it, according to art. 10 of the Civil Code, and refers again to the latter, by reason of the deceased
having left the movable and immovable property at Barcelona where territorial law should rule the succession.
Considering that there is not any ruling in Spain which can settle this conflict, one ought therefore, according to
art. 10 of the Civil Code, to refer to established custom or to the general principles of law, and in this case,
following the opinion of the different jurists and according to the advice of Professor D. Juan de Dios Trias,
Professor of International Law of the University, there is not the slightest doubt that the succession of D.T.A.
ought to be governed by the law of Catalunia, as the property left by him was situated in Barcelona."

I cannot consider the reasoning in the last paragraph of this report as at all satisfactory. In the first place, I find
in art. 10 no direction to refer to established custom or the general principles of law, whatever the latter phrase
may mean; in the second place, no custom or general principles of law are referred to; in the third place, the
evidence before me showed that the weight of juristic opinion at the present time is not in favour of applying the
doctrine of renvoi, and I am quite unable to assume that in 1900 juristic opinion was unanimous or anything like
unanimous in favour of its application; and in the fourth place it is clear that the court was really influenced by
the particular opinion referred to, namely, that of Professor Trias de Bes, Professor of International Law at the
University of Barcelona. The decision is not one which binds any other Spanish court, and a fortiori not the
Supreme Court. I am free, in my endeavour to expound the law, as I consider it would be expounded by the
Supreme Court of Spain, to decline to follow that decision and,

finding it unsatisfactory for the reasons which I have given, I do not propose to follow it.

The other decision to which I must refer is that of the Court of Appeal of Granada of February 7, 1925,
affirming the judgment of a lower court. In that case (I read from the affidavit of Mr. Valls) the facts were as
follows: "A.L. had died leaving immovable property in Spain. The plaintiff's case was that the devolution of the
estate should be governed by Spanish law because A.L. was a Spaniard but if he were English (his nationality
was in dispute) Spanish law should likewise apply to all questions appertaining to his said immovables on the
application of the doctrine of renvoi. The defendant relied on the English nationality of the deceased and
submitted that renvoi was not applicable. The court found as a fact that the deceased was an English national
and ruled that the doctrine of renvoi was not relevant because in the words of the judgment 'the theory of
renvoi ... has been recognized and accepted exceedingly rarely, as in reality it has acquired no status in law
which nations recognize or incorporate in their respective legislations and in the present case such is the clarity
and precision of para. 2 of art. 10 of the Civil Code that there is no need to search apart from it and seek a
solution other than that given by the said article itself'."

This judgment was reviewed by the Supreme Court of Spain on February 10, 1926, when it was held that the
nationality of the deceased was Spanish and not English. Considerable discussion took place before me on the
question whether or not the Supreme Court had expressly or by implication expressed its disapproval of the
conclusion of the Court of Appeal of Granada that Spanish law rejects the doctrine of renvoi. I do not intend to
go into this matter in detail. My conclusion is that it did not do so. I arrive at this after very carefully
considering the translation of the relevant parts of the judgment. On the other hand, sitting as the Supreme Court
of Spain, I have now to consider the judgment of the Court of Appeal of Granada, and, with all respect, on the
extract from the report which is before me, I find it as unsatisfactory as that of the Court of Barcelona. I cannot
accept that in the year 1925 "the theory of renvoi has been accepted exceedingly rarely." To take but two
examples, it is clear that by that year it had been embodied in the statutory law of Germany and had been
recognized by the courts of France. It is true that the

doctrine has been assailed in no uncertain terms by the jurists of all nations and epithets of varying intensity
have been used in the attack, but the statement that it has been recognized and accepted exceedingly rarely, as in
reality it has acquired no status in law which nations recognize or incorporate in their respective legislations, is
a statement made in the teeth of the facts as they existed in the year 1925. Therefore, on the basis of the extract
of the judgment in that case, with which I have been furnished, I am of opinion that it provides me with no
trustworthy guide to the solution of the problem before me.

In this state of the evidence I am thrown back on the wording of art. 10 of the Civil Code, containing in its
language the pointer to which I have referred, the insistence of the Spanish law of succession on the principle of
the unity and universality of the succession: the extent to which before the introduction of the Civil Code in
1889 Spanish private international law had been influenced by the doctrina de los estatutos with its insistence on
the internal law of the lex patri': the circumstance that, to put it no higher, there exists a strong cleavage of
opinion among Spanish jurists of whose views the Spanish judges will take cognizance for the purpose of
making up their minds on a question such as this in regard to which no binding authority exists: and that, of
those who were cited before me, the majority consider that Spanish law would not apply the doctrine of renvoi,
and include in their number the President of the Supreme Court. Basing myself on this material, I come to the
conclusion that it would be against the spirit and intendment of the Spanish Civil Code to hold that, in a case
such as this, Spanish law would accept the renvoi which the English law makes to it as the lex situs. I therefore
hold that, according to Spanish law, the questions raised by this summons as to the devolution of the immovable
property in Spain of the testator must be resolved by reference to English law.

I turn, therefore, to the Spanish will. The vital provision is the devise and bequest of the Spanish immovables
and movables "unto the person who being of the issue of the late Most Noble Arthur Duke of Wellington and
Ciudad Rodrigo my great-great-grandfather will on my decease become Duke of Wellington and Ciudad
Rodrigo for his absolute benefit." I treat this as a devise and bequest in favour of the person who becomes
"Duke of Wellington and Duke of Ciudad Rodrigo," a reading in favour of the present duke. But read even so,
this appears to me to be a devise and bequest to the

person, if there be one, who shall fulfil both requirements. In other words, it is a gift subject to a double
qualification. In my view, there is no room for the application of the maxim falsa demonstratio non nocet. No
one person exists who fulfils both qualifications, and therefore the gift fails.

The question then arises whether the Spanish movable and immovable property is disposed of by the English
will or is undisposed of.

The English will is described by the testator as "my last will save as regards the property which is disposed of
by my Spanish will which property so disposed of is not intended to be disposed of or dealt with by this my
will." Apart from this provision, the effect of which I shall have to consider, the will contains language apt and
sufficient to dispose of both the Spanish movables and the Spanish immovables. By cl. 3 the testator bequeaths
to his trustees: "Thirdly all if any moneys and other personal or movable property in Spain belonging to me at
my death which does not pass under my Spanish will"; and by cl. 5 he devises and bequeaths: "all my property
real as well as personal not hereby or by any codicil hereto otherwise specifically disposed of," in each case for
the same person, in the events which have happened the present duke.

The question therefore is what is the effect of the words at the beginning of the English will which I have
quoted, read in the light of the rest of the will and in the light of the circumstance that, as I have held, the
Spanish will is ineffective to dispose of the Spanish movable and immovable property comprised therein.

It is clear on the authorities that, had the relevant provisions of the Spanish will been incorporated in the English
will, the Spanish property would have passed as regards the movable property under cl. 3 and as regards the
immovable property under cl. 5 of the English will and would not have been undisposed of. Green v. Dunn
n(1) ; De Trafford v. Tempest n(2) ; Blight v. Hartnoll n(3) , and In re Mason n(4) . To such a state of
circumstances the reasoning of Jessel M.R. in Blight v. Hartnoll n(3) would have applied. There would have
been a true residue and the Spanish property, ineffectively disposed of by the words "to the person ... who will
on my decease become Duke of Wellington and Ciudad Rodligo," would

n(1) 20 Beav. 6.

n(2) 21 Beav. 564.

n(3) 23 Ch. D. 218, 222.

n(4) [1901] 1 Ch. 619.

pass under cll. 3 and 5 of the English will. Does it make any difference that the opening words of the English
will state that the Spanish property is not intended to be dealt with by that will? Is the effect of that provision
that there is not a true residuary gift in the English will? I think not. The provision in question states on its face
the reason why the testator does not intend to dispose of or deal with the Spanish property by the English will,
namely, because in his words it "is disposed of by my Spanish will." Those words to my mind carry with them
the implication that the Spanish property is excluded from the English will solely because the testator had
designed to dispose of it by his Spanish will, and therefore that the words "disposed of by my Spanish will"
mean "effectively disposed of by my Spanish will." I do not find in any other part of the English will any
language which would indicate a contrary intention. In my judgment, therefore, the Spanish property movable
and immovable, which is comprised in, but ineffectually disposed of, by the Spanish will, passes to the present
duke under the English will, the movable property under cl. 3 and the immovable property under cll. 5 and 6.
I must now consider the submission, on behalf of the defendant the Dowager Duchess of Wellington, that the
English will is ineffectual to pass the immovable property in Spain because by that will it is subjected to certain
trusts: that Spanish law does not recognize trusts; that consequently the present duke could not make a title to
the Spanish immovable property under the English will; and that, therefore, the Dowager Duchess takes the
whole of the Spanish immovables as on an intestacy.

It appears from the expert evidence that, so far as immovable property in Spain is concerned, there is a system
of compulsory registration, and that in order to perfect title to immovable property or to any interest therein,
such as a usufruct, it is necessary to obtain registration. The experts agree that Spanish law does not recognize
the doctrine of trusts as understood in English law, and that it is not possible in Spanish law to obtain
registration of a trust. They are also agreed, however that the mere presence in a document of title, including a
will, of the word "trust" would not, of itself, be fatal to registration, and that, assuming English law to be
applicable in the case in question, the registrar and, if necessary, the Spanish court would seek competent
English opinion as to the effect of the document in question. Further, they agree that if the English opinion were
that the effect, for instance, of a devise to A. in trust for

B. was to confer on B. an immediate beneficial interest, the document would confer a good title on B.,
notwithstanding the presence of the word "trust." It further appears that the powers of what corresponds to the
executor in Spanish law last only for one year from the death of the deceased; that at the end of that period he
becomes functus officio, but that in such a case, where the administration of the estate is not complete, the
Spanish court would appoint an administrator.

In this case the testator by cl. 5 of the English will devised and bequeathed his residuary estate "to my trustees
upon the administration trusts contained in Form 8 of the Statutory Will Forms, 1925." By cl. 6 of the English
will the testator provided as follows. [His Lordship read cl. 6 and continued:]

In the events which have happened, namely, the circumstance that the present duke was of the age of twenty-one
years at the death of the testator, the effect of cll. 5 and 6 of the English will is that the plaintiffs, as trustees,
hold the Spanish immovable property for the testator absolutely, subject to such of the Administration Trusts
contained in Form 8 of the Statutory Will Forms, 1925, as, in the circumstances, including the fact that the
present duke was of the age of twenty-one years at the death of the testator, are applicable. That is that the
trustees hold the Spanish immovable property for the limited purpose of due administration, and subject thereto
for the present duke absolutely.

In my judgment, on the true view of the expert evidence, the interposition of the administration trusts before the
absolute gift to the present duke does not make the English will ineffectual to pass the Spanish property and the
land registrar in Spain, or, if necessary, the Spanish courts, on reference to them, on being informed of the above
circumstances and that administration was complete, would be bound to register or to order registration of the
present duke as the absolute owner of the Spanish immovable property.

For these reasons, in my judgment, the present duke is entitled to the Spanish movable and immovable property
comprised in but ineffectually disposed of by the Spanish will.

SOLICITORS:
Solicitors: Farrer & Co.; Theodore Goddard & Co.; E. F. Turner & Sons.

J. L. D.

Readings

Anderson p 16

Cheshire and North p 51-66

Collier p 20 29 or Jaffey p 539 -554

W. Anderson, Double Renvoi and the Circulus Inextricabilis in Kodilinye and Menon,
Commonwealth Caribbean Legal Studies 1992, 313