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Abbruch des Renvoi und "foreign court theory": Erbfolge nach einer in Italien domizilierten Engländerin aus der Sicht englischer Gerichte Chancery Division, Urt. v. 14. 11. 1929 In re Ross Fundstellen: [1930]
1 Ch. 377 The plaintiff, Alexander Gordon Ross, sought a declaration that he was 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 was an alternative claim to one-third of the same property. The plaintiff was the only child of Henry James Ross and Janet Anne Ross, his wife. He was born in the year 1862. His father, Henry James Ross, was born on March 9, 1820, in the island of Malta, the legitimate son of his parents, and consequently 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 1860 he came to England on a visit, and while in England married, at Ventnor, in the Isle of Wight, Janet Anne Duff Gordon. It was admitted for the purposes of this action that her parents were British subjects, and that their domicil of origin was English, and, consequently, that her domicil of origin 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. At the date of the marriage, it was admitted for the purposes of this action, Henry James Ross was domiciled in Egypt and had his residence in Alexandria. After the marriage was solemnised, Janet Anne Ross accompanied her husband 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 again moved, and this time went to Florence, where they lived together until the death of Henry James Ross in 1902. In 1888 Henry James Ross purchased a mansion and estate in Florence known as Poggio Gherardi, and he and his wife lived there from the date of the purchase down to 1902.The domicil of Henry James Ross and his wife at this date was Italian. Henry James Ross, by his will, left all his property, including the mansion and estate in Florence, to his wife Janet Anne Ross. In due course she entered into possession of the property, and during her lifetime no claim of any kind was made by the plaintiff to any interest in any part of that property. JanetAnne Ross resided at Poggio Gherardi until her death on Aug. 23, 1927, at the age of eighty-five. 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, began in the following terms: "I, Janet Anne Ross ... 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. . ." She appointed her niece, Caroline Lucy Isabel Waterfield [a defendant], to be sole executrix of her will. There followed bequests to servants, and a residuary devise and bequest in these 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, Janet Anne Ross executed the first codicil to her will. By it she gave certain legacies to her servants, and others, and in all other respects she confirmed her will. On May 1, 1924, she executed a further 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 May23, 1924, she 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 aforenamed locality [Poggio Gherardi] do by this my last will and testament appoint as heir to the whole of the property which I may possess in Ita1y at my death movables as well as immovables and in particular the villa and estate of Poggio Gherardi together with all the appurtenances and outbuildings forming part thereof my grand-nephew Aymand Victor Arthur Waterfield [defendant to the present proceedings] and if he should predecease me I appoint in his place his brother Ottiwell Henry Gordon Waterfield. Moreover I leave the usufruct of the said property for the term of her natural life to my niece, Caroline Lucy Isabel Waterfield, the mother of my said heirs, and I also leave to her my jewellery, lace and wearing apparel."
The English will with its two codicils was duly proved by Caroline Lucy Isabel Waterfield on May 16, 1928, and 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 this action it conformed with the requirements of Italian law and was executed by Janet Anne Ross in such manner as was required by such law. The testatrix left considerable property both in England and in Italy, the bulk of her property in Italy being the mansion and estate Poggio Gherardi. Neither by her English testamentary dispositions, nor by her Italian will, did she leave anything to her son, the plaintiff, for the defendant, Mrs.Waterfield, and her two sons both survived the testatrix. Her domicil at the date of her death was Italian.
The plaintiff claimed that, notwithstanding the testamentary dispositions of his mother, Janet Anne Ross, he became entitled on her death as her only child to one-half of her immovable property situate in Italy, and to one-half of her movable property, whether situate in Italy or elsewhere, on the ground that such one-half constituted his legitima portio under Italian law.
Luxmoore, J.: 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 recognise domicil as governing succession and 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. Article 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 dispositions, is regulated by the national law of the person whose estate is in question, and this whatever may he the nature of the property or the country in which it is situate. Article 9.The substance and effect of.. . testamentary dispositions are deemed to be governed by the national law of the ... testator." 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 such a case as the present is concerned to inquire, not 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 RUSSEL, J., in Re Annesley [1926] Ch. 692. 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 domicil," then, logically, the meaning of the expression "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 such is 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 is to be the governing law, that is, the English 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 textwriters "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. If this is the correct view, the English courts in such a case "accept the renvoi." Let me illustrate what I mean by a reference to the present case. It is admitted on both sides that the English court must adhere to the rule that, JanetAnne Ross having died domiciled in Italy, the distribution of her movable property must he 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 he applicable to the case of Janet Anne Ross. Janet Anne Ross 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, the English courts will distribute such 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 such 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 (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. In Maltass v. Maltass (1844) 1 Rob. Eccl. 67, 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 (1 Rob. Eccl. at p. 72): "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 he totally different as applied to a natural-born subject of the country, as exemplified in the case of Collier v. Rivaz. 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 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 turns 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 (1847) 5 Notes on Cases 593, the Prerogative Court of Canterbury declined to declare void the will of the Right Honourable J. Hookham. Frere, who at the date of his death was domiciled in Malta, such 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 the evidence before the court was that the Maltese courts would not deem a will made outside Malta to be void if it complied with the formal requirements of the locus actus. In Bremer v. Freeman (1857) 10 Moo. P C. C. 306, 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 authorisation 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 such as would affect her succession and the mode of making her will that her domicil should be by authorisation of the French government. The judge, Sir John Dodson, expressly said he was following Collier v. Rivaz. 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 authorisation 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 judgement 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 Napoleon, on which the first question arose. The two interpretations dealt with were: First, that the French law refuses civil rights, including the right of testamentary disposition, to one who is domiciled, but has not an authorisation. On this point 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 this refusal applies only to goods situate in France. Still, the will to have any effect, must be in the form and with the solemnisation of the domicil according to the general rule, otherwise it cannot he admitted to proof. The second interpretation dealt with was: Does art. 13 of the Code Napoleon mean that French law insists that no domicil for any purpose whatever can be obtained without authorisation? LORD WENSLEYDALE came to the following conclusion, after considering French cases and the opinions of French writers. He says this (10 Moo.P.C.C. at p. 373). "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 domicil which would regulate the succession, any authorisation of the Emperor was necessary; that a legal domicil 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 counsel 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, tot the reasons stated in my consideration of the case, this case does not support that argument, but is, in fact, opposed to it, tot 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. Hamilton v. Dallas (1875) 1 Ch.D. 257, was also relied on by the plaintiff. In my view, its effect is, for all practical purposes, the same as the decision in Bremer v. Freeman. The question was as to the succession upon an intestacy of an Englishman domiciled in France de facto and without the official authorisation 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 that case, as in Bremer v. Freeman, no question of renvoi arose. The court acted on the rule that the whole law of the foreign country, in the particular case France, 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 Bianchi (1862) 3 Sw. &Tr. 16, 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 gramt on the ground that as the testator had partially abandoned his acquired domicil in Brazil the domicil of origin revived, and the court, therefore, had to deal with the case according to the Sardinian law. In In the Goods of Lacroix (1877) 2 PD. 94, 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. 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 he 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 [Wills Act,1861, s. 1], 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 Re Trufort (1887) 36 Ch.D. 600, 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 started in England for the enforcement of the Swiss judgment and tot 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, Ewing v. Orr-Ewing, and Doglioni v. Crispin, STIRLING, J., said this (36 Ch.D. 611.): "The rule to be extracted from these cases appears to he 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 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. He then 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 u Crispin (1866) 1 H.L. 301, ehat 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 I consider that I am bound by their decision." In Abd-ul-Messih v. Farra (1888) 13 App. Cas. 431, 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 WATSOM, who delivered the judgement 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 (13 App. Cas. at p. 443): "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, namely, 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... 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 the plaintiff's counsel as supporting his argument. In my view, for the reason I have stated, I am of opinion that this reliance is not well founded. The dictum is purely neutral, because the phrase "the territorial law of his domicil" is, 1 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. Re Johnson [1903] 1 Ch. 821, is the first case in which the word "renvoi" appears 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 naturalised 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 recognise domicil as having any legal effect on the status of Mary Elizabeth Johnson, the succession to her movable property must he 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 Re Annesley. The second group 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. The learned judge says this ([1903] 1 Ch. at p. 830):"It is not for me to say how the Baden courts would interpret their rule of 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 later 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 the other cases I have already referred to, namely, 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 Re Annesley [1926] Ch.692, to which I have already referred. There RUSSEL, J., after fully discussing the decision in Re Johnson, 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 naturalisation. 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 deceased only had power to dispose by such 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 Enghsh 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. He said this ([1926] 1 Ch. at p. 708) : "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 properry 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 be entirely avoided. He said this: "Speaking for myself, I should hke 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 NewYork." He refers to Re Tallmadge, 181 N.Y Supp. 336 (1919).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 not 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. I would like to refer to the dictum of SCRUTTON, L .J., in Casdagli v. Casdagli, where he says ([1918] P. at pp. 89, 111): "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 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 to remit the matter to us we will apply the same law as we should apply to our own subjects."` This dictum, in effect, I think, 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, Re Tallmadge, referred to by RUSSEL, J., in his judgment in Re Annesley. The decision is that of the Surrogates Court of NewYork 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 such 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 such 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 he 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 recognise any right on the part of the plaintiff to any part of such property as legitima portio, as it would have done had Mrs. Janet Anne Ross been an Italian national. Dr. Guiseppe Pallicia, who gave evidence on behalf of the plaintiff, said that if the present case fell to he 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 decided in his favour, that is, held 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, then the Italian courts would recognise that decision and enforce it, unless it were against public policy, and though his answer to the question whether such a decision would be against public policy is a little ambiguous, 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. 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 paxt 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 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 recognised 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 in 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 inextricabilis" would be constituted. But in my view the lex situs must, tot the reasons I have already stated with regard to the meaning to be placed on the phrase "law of 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 such immovable property belonged to an Englishman and was situate in England. In the result, the plaintiff has failed to substantiate either of his claims in this action, and I therefore dismiss it with costs.
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