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[CHANCERY DIVISION][1926] Ch 692HEARING-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) 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
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) [Nevertheless controverted points may be finally settled by a uniform current of doctrine, "jurisprudence constante." - F. P.]
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.