The Sun.
London, England, 1857-05-12 00:00:00

BREMER v. FREEMAN AND BREMER.

This case has recently been argued at great
leugth before the Judicial Committee of the Privy
Council. As the point at issue is of considerable
interest to the public, we will endeavour here to
give the substance and meaning of a judgment
which in its reported form may be somewhat unin-
viting to the general reader. It was a question of
whether or not probate should be granted to a will
made by an English lady in France, the bulk of her
property being in England. She was the daughter
of a General Ca'craft, an officer in the East India
Company's service, and was born in India in the
year 1795. By origin, then, she had an Anglo-
Indian domicil. She returned with her father and
sister to England in the year 1805, and in England
she remained with her father for 20 years ; all this
time her domicil was undoubtedly English. In
1825 or 1827 she left her father, and with her go-
verness travelled about the continent, residing for
a considerable period in Italy. In 1834 General
Calcraft died, and the sister ,pf the testatrix
joined her. They either remained in Italy or tra-
velled about together until 1838, when the two
sisters settled in Paris. For two years they occu-
pied furnished lodgings, and then hired apartments
in the Boulevard des Capucines. Here the sister
died in 1840, and here, too, the testatrix died in
1853, without ever having quitted Paris at all
since the year 1838. She made a will in the Eng-
lish form.. The questions for decision were three
in number. First, had she acquired a French do-
micil ? If she had, was a will made according to
the English form sanctioned by the municipal law
of France ? Ou the answer to this question would
depend the answer to the third, which was the
one actually at issue before the Judicial Com-
mittee—Was her will such an one as ought to be
admitted to probate in this country ?
There seems to have been little or no hesitation
in determining that the testatrix had actually ac-
quired a French domicil. She had resided for fifteen
years in Paris without any special business to detain
her there. The animus redeundi, indeed, appears
to have been as much negatived by her express de-
clarations as by her acts ; for she had frequently
stated that it was her firm resolution never to return
to England, and that when she died it was her wish
to be buried by the side of her sister in the ceme-
tery of Pere la Chaise. This point of the French
domicil being established, the far more difficult one
arose as to the validity, according to the municipal
law of France, of a will made in English form. The
settled opinion of English lawyers, as stated last
week by Lord Wensleydale, is " that the form and
solemnities of the testament must be est verned by
the law of the domicil of the deceased." It might,
however, be the case that the law of France would
be permissive on this point, and admit the validity
of the will made by a foreigner domiciled in France,
even if made according to the solemnities of that
foreigner's domicil or origin. The French lawyers
seem to be divided in opinion on this matter.
Some say that the will must be in the form of the
place where it is made ; others that it may be
either in the form required by the domicil of origin
or the domicil at the time of death. At this point
the French lawyers draw a fresh distinction, upon
which the decision of the English judges appears to
have depended in good measure. They say that a
foreigner may, indeed, acquire a "simple French
domicil," but, unless that domicil be sanctioned by I
the authorisation of the Emperor, he will not enjoy
civil rights. This distinction is based upon the
13th article of the Code Napoleon, which runs
thus :—"The foreigner who shall have been ad-
mitted by authorisation of the Emperor to establish
his domicil in France shall enjoy there all the civil
rights so long as he shall continue to reside there."
From the affirmative in this proposition the nega-
tive is inferred—viz., that without authorisation of
the Emperor the foreigner domiciled in France shall
not enjoy civil rights. But what are the eivil
rights spoken of ? Is the right of testacy among
the number ? If so, does the right of testacy
from which he is shut out apply to his personal
goods which may be situate out of France as well
as to those which lie within the jurisdiction of the
Empire ? What are the rights of his relatives if he
die in this necessary condition of intestacy? The
argument would go the full lengththat if a foreigner
domiciled in Erance, but without Imperial autho-
risation, cannot make a will at all, the will of the
testatrix in the present case was invalid according
to the maxim of the English lawyers, " locus regit
actum." This last result would equally follow from
the position that it is not necessary to have an au-
thorisation from the Emperor in order to have a
domicil which would regulate the succession, and
such an one as would confer the power of testacy.
In England we require that a will should be made
with the solemnities and forms of the domicil at the
time of death, and therefore the will of an English
subject domiciled in France, but made according to
the English form, would be invalid. The prior
judgment of the Judge of the English Prerogative
Court, in favour of admitting the will to probate,
was therefore reversed. " The maxim," said Lord
Wensleydale. "that mobilia sequuntur personam
has so ionggprevailed that it may be trotted now
as part of the jets gentiam. It follows from this
maxim that the post-mortuary distribution of the
effects of a deceaFed person must be made according