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The Law Reports (Chancery Division)

[1926] Ch 692
[CHANCERY DIVISION]
In re ANNESLEY.
DAVIDSON v. ANNESLEY.
[1925. A. 513.]
1926 March 17, 18, 19, 23, 24;
May 21.
RUSSELL J.
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.

ADJOURNED SUMMONS.

The facts are taken from the judgment:—

On January 16, 1924, Mrs. Sybil Annesley died at the Château de Quillebaudy at Orthez in France, in
which country she had lived ever since the year 1866.[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 693they 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[2] with a view to
obtaining a formal French domicil according to French law, but a printed form 694of 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. René
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 695as 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.[3] Succession to the movables of the testatrix
is governed by the law of her domicil at the date of her death: Enohin v. Wylie[4]; Doglioni v.
Crispin.[5] 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[6];

696
Bremer v. Freeman[7]; Laneuville v. Anderson[8]; Hamilton v. Dallas.[9]

The decision of Farwell J. in In re Johnson[10] 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[11], 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[12] the
question whether English or French law applied was not argued, and the correctness of the decision in
In re Johnson[10] 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[13]; Bell v. Kennedy.[14] 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.[15]
Where a foreigner has not 697fulfilled 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[16], and the domicil is French, then French municipal law will apply: see the decisions of the
Cour de Cassation in the Forgo case[17] and in the Soulié case[18]; 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[19] 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 698to weigh against his
acts, which showed an intention to acquire an English domicil: Doucet v. Geoghegan.[20] 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.[21] 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.[22]

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 699art. 13 of
the Code Napoléon, 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.[23] 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[24]; In
re Bowes.[25] 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.[26] 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[27] and in the Soulié case[28] 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[29] is to deal a death blow to the theory of renvoi in
respect to succession to movables so far as England is concerned.

700
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[30]; In re Bowes[31];
Hamilton v. Dallas.[32] 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[30] the expert witness would say
that English internal law is applicable. In re Bowes[31] 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 701according 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[33] 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 702acquired 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 703continuously 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.[34]

Such a contention appears to me inconsistent with many decisions in the Courts of this country. In In
re Martin[35] 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 704individual 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[36] 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[37] an Englishwoman
was held domiciled in France — she had not complied with the provisions of art. 13 of the Code. In
Collier v. Rivaz[38] an Irishman was held domiciled in Belgium (where the Code Napoléon applies),
notwithstanding that he had not complied with art. 13: see too Anderson v. Laneuville.[39]

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[40] and a case, reported only in the
Times Law Reports, of In re Bowes.[41]

In re Johnson[40] 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 705law 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[42] 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.[43] The decision
of the Court of Appeal was reversed in the House of Lords[44], who approved entirely of the judgment
and reasoning of Scrutton L.J.

If In re Johnson[42] 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.

706
It is said, however, that In re Johnson[45] does not stand alone, but that Swinfen Eady J. came to the
same conclusion and adopted the same view in In re Bowes.[46] 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[45] 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[45] was correctly decided or not, simply followed In re
Johnson[45], 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[47], 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 707the 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[48] — 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[49] in 1882, and the Soulié case[50] 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 708case gave rise to grave differences of opinion among French jurists and
was followed by many conflicting decisions in lower Courts, some favouring the “Théorie du
Renvoi”[51], others against it. The matter again came under the consideration of the branch of the Cour
de Cassation entitled Chambre de Requêtes, 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 Soulié 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[52] 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 709law 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.[53]
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.

J. B. B. M.
[1]
It appears to have been undisputed that her domicil of origin was English.

[2]
L'étranger qui aura été autorisé par décret à 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.

[3]
[1900] P. 211, 227.

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

[5]
(1866) L. R. 1 H. L. 301, 314.

[6]
(1841) 2 Curt. 855.

[7]
(1857) 10 Moo. P. C. 306.

[8]
(1860) 2 Sw. & Tr. 24.
[9]
(1875) 1 Ch. D. 257.

[10]
[1903] 1 Ch. 821.

[11]
[1919] A. C. 145, 172, 194.

[12]
(1906) 22 Times L. R. 711.

[13]
(1869) L. R. 1 H. L. Sc. 441, 458.

[14]
(1868) L. R. 1 H. L. Sc. 307, 319.

[15]
(1858) 3 H. & N. 594, 599.

[16]
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.

[17]
Clnuet, Journal du droit international privé (1883), 64.

[18]
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
législations de conflit se référassent aux dispositions de droit international du pays étranger, on
aboutissait à un cercle vicieux, les deux systèmes internationaux, français et américain” — the de cujus
was a citizen of Louisiana settled in France — se renvoyant indéfiniment la détermination de la loi
interne applicable. Il fallait donc bien admettre, comme l'a fait en 1905 la Cour de Paris, que les
systèmes de conflit visent exclusivement, lorsqu' ils concluent à l'application de la loi étrangère, la loi
interné étrangère”].

[19]
(1854) 9 Moo. P. C. 325, 335.

[20]
(1878) 9 Ch. D. 441, 455.

[21]
(1888) 13 App. Cas. 431, 439.

[22]
New York Law Journal, Oct. 17, 1919; 36 Law Quarterly Review, 91.

[23]
[1904] A. C. 287, 290, 291.

[24]
[1903] 1 Ch. 821, 828.

[25]
22 Times L. R. 711 .

[26]
[1918] P. 89, 101.

[27]
Clunet (1883), 64.

[28]
Clunet (1910), 888.
[29]
[1903] 1 Ch. 821.

[30]
[1903] 1 Ch. 821.

[31]
22 Times L. R. 711 .

[32]
1 Ch. D. 257 , 260.

[33]
L. R. 1 H. L. Sc. 441 , 458.

[34]
[1903] 1 Ch. 821.

[35]
[1900] P. 211, 227.

[36]
1 Ch. D. 257 .

[37]
10 Moo. P. C. 306 .

[38]
2 Curt. 855 .

[39]
(1854) 9 Moo. P. C. 325.

[40]
[1903] 1 Ch. 821.

[41]
22 Times L. R. 711 .

[42]
[1903] 1 Ch. 821.

[43]
[1918] P. 89, 109.

[44]
[1919] A. C. 145, 194.

[45]
[1903] 1 Ch. 821.

[46]
22 Times L. R. 711 .

[47]
[1900] P. 211, 227.

[48]
[Nevertheless controverted points may be finally settled by a uniform current of doctrine,
“jurisprudence constante.” — F. P.]

[49]
Clunet (1883), 64.

[50]
Clunet (1910), 888.

[51]
[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.]

[52]
Clunet (1910), 888, 892.

[53]
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.