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[CHANCERY DIVISION][1926] Ch 692HEARING-DATES: 17, 18, 19, 23, 24, March 21 May 1926, 21 May 1926
Conflict of Laws - English Domicil of Origin - French Domicil of Choice - Nationality - Municipal Law - French Doctrine Renvoi.
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.
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
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.
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
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.
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
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
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: 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.