HL Deb 22 April 1861 vol 162 cc860-80

said, my Lords, the subject which I have undertaken to bring before you is so important, and at the same time so embarrassed with difficulties, that I must throw myself upon your indulgence if I am unable to explain it either as clearly or as briefly as I could wish. I will point out first the evils which appear to me to arise from the existing law, and then the remedies which the Bill to which I am requesting your Lordships' assent proposes to apply to them.

The Bill is confined entirely to personal estate. Your Lordships are aware that in England, and I believe in most countries which have adopted and maintained the feudal laws, a great distinction has always been made between what we term real and personal estate, and what on the Continent is generally described as moveable and immoveable property—a distinction not only with respect to inheritance, but also with respect to transmission whether by conveyance, inter vivos, or by testamentary disposition. As long ago as the reign of Charles II. an Act was passed requiring certain forms to be observed in the execution of wills of real estate. This Act is usually called the Statute of Frauds, and has often been said to have occasioned more frauds than it has prevented. With regard to personal estate no forms were required till the year 1837; it was sufficient that a testator had declared in writing in what manner he desired his personal property to be disposed of at his death. In 1837 this distinction was abolished. It was said to be absurd that an instrument insufficient to pass an acre of freehold land should be sufficient to pass a thousand or ten thousand acres of leasehold adjoining it—that however the existing law might have been suited to times when the personal estate of a man of the highest rank was usually of small amount, and consisted of things which were really mobilia —things which could be carried about with him—it was little suited to the present times when a testator's personal estate often exceeds his real in value, and includes not only leaseholds, hut money in the public funds, canal, and railway shares, and other things of a like description, which, although by English law treated as mobilia have in truth a local character, and are connected with and inseparable from the county to which they belong. It was provided, therefore, by the Act of 1837, that the same formalities should he required in order to give effect to wills, whether of real or personal property, and that in both the signature of the testator and its attestation by two witnesses should be required. There can, I think, be no doubt that the intention of the Legislature in passing this Act was to establish a system of uniformity—to provide that the same will as to all property subject to English jurisdiction, whether real or personal, should be good or bad; that the absurdity of its being good as to part and bad as to part should be abolished. Unfortunately, by the rules adopted by English courts of justice this object has been entirely defeated. The mischief of defeating many wills for defect of form has been incurred, but the advantage of uniformity has not been secured. A will may still be good as to one species of property and bad as to another. With respect to real estate in England, a will, if it complies with the necessary forms, and the testator does not formally revoke it, remains good, wherever he may die, and whatever may be his domicile at the time of his death. But as to personal estate it is otherwise. The validity of a will of personal estate depends on the question whether it is valid according to the forms required by the law of the country where the person who made it was domiciled at the time of his death. No matter where it was made—no matter that it was perfectly good when it was made—no matter that the testator never had the smallest intention to revoke or to alter it—still if the law holds him to have acquired at his death a foreign domicile, his will is good for nothing, unless it conforms to the laws of that foreign country. Now the inconveniences of this are enormous. The evil proposed to be remedied by the Act of 1837 is at once introduced. The will is good as to real estate in England—bad as to personal estate; freeholds pass to the devisee; leaseholds go to the next of kin. In this state of the law no man living abroad knows how to make his will. If he makes it in the English form it is probably bad as to his personal estate—if he makes it in the foreign form it is bad as to his realty. No prudence can enable an Englishman to guard against the chance of his will being set aside, as it affects his personal property if he dies abroad. If he is leaving the country, uncertain whether he may ever return, or may settle abroad, he probably desires to settle his affairs before be goes; he send3 for his solicitor, and makes by will such a disposition of his property as he wishes to take effect at his death; he leaves his will in England to guard against accidents, secure that whatever happens to him the provision which he has made for his family will take effect at his death. He is unhappily quite mistaken in this expectation. If he be held by Courts of justice to have acquired before his death a foreign domicile, whatever the meaning of that mystic term may be, he is also held as to his personal estate to have revoked his will. What is the effect of this rule? A man who goes abroad often cannot tell where he may be settled at the time of his death, and cannot know, therefore, according to what law his will is to be made. He leaves his own country, perhaps for the benefit of his own health or that of some member of his family. He finds it necessary to try different climates; he may move from France to Naples, from Naples to Madeira, or Malta. All these countries may have different testamentary laws. Is he to make a new will at each change of residence? When it is remembered how many Englishmen in the present day live and die abroad, your Lordships will easily see how often the evils arising from this rule are likely to occur. But it is not in cases of foreign domicile only, nor even principally, that the mischief occurs. The same question arises continually with the same inconvenience between a Scotch and English domicile. Scotland has maintained, I think wisely, the law which was till lately that of England with respect to wills of personalty. It exacts, I believe, no particular forms—certainly a holograph will—one wholly written and signed by the testator—is sufficient in Scotland, as in all reason it ought to be everywhere. Now, our countrymen on the other side of the Tweed, with all their patriotic attachment to Scotland, are not indisposed to seek their fortunes elsewhere—in England it may be, or in the British dominions in India, where, for testamentary purposes, the English law prevails. A Scotchman makes his will according to the law of Scotland; if he dies in India, or in England, or anywhere out of Scotland, a question probably arises whether he has not acquired an English or a foreign domicile; and if that question is decided in the affirmative—if his domicile at his death be English, certainly—and if in any other country, probably—his will is good for nothing.

Now if your Lordships will for a moment consider the effect of setting aside an honest will—the misery to individuals, in many cases the utter ruin of whole families, which result from it—you will hardly, I think, maintain a rule of law which produces such consequences, unless there be some imperative necessity for it. But whether genuine wills are defeated or not by the result of the inquiry, the inquiry itself is an enormous evil. It is quite useless for any purpose of justice, and the uncertainty and expense which attend it are enormous. When once the testamentary power is admitted, all that can be really material to know is whether the instrument propounded as containing the last wishes of the testator is a genuine instrument, and whether the testator has ever revoked it. If it is genuine the forms are in themselves worthless. How can the genuineness of the instrument in the least degree depend upon the place where the testator happens to die domiciled? Why is an intention to be presumed to revoke a will by a death abroad, when the testator may have contemplated dying abroad, and when, perhaps, his will was made for the very purpose of providing for that contingency? But observe what the inquiries are which in such a case the rule requires:—First, you are to inquire where, in point of fact, the testator was domiciled at his death. Secondly, what is the testamentary law of such country—both questions in many cases of extreme doubt and difficulty. I do not know whether your Lordships are aware of what constitutes domicile by the law of England. I sincerely hope you are, for if you are not, I am sure it is quite out of my power to inform you. I have argued a good many such questions at the bar; I have joined in the decision of several at the Judicial Committee; but as to any definition of the meaning of the expression what is sufficient, or what is not sufficient to establish a change of domicile for the purpose of succession, I am quite at a loss to say. It is constituted as the law expresses it animo et facto. You must inquire not only into all that a man has ever said, written, or done, but into all that he intended to do; where he was born; who were his parents; where he was brought up; when he quitted his own country, and with what view, and for what purpose; how long he remained abroad; where was the bulk of his property; how often he changed his residence; where he resided at his death; where he contemplated being buried;—and a thousand other circumstances; and, then, setting the indicia of an intention to abandon his domicile of origin against the indicia of an intention to retain it, the Court is to strike the balance, and decide whether the original domicile has been changed, and in what country a new one has been acquired. So difficult is this question that the best lawyers are unable to say where is their domicile, or by what law the testamentary disposition of their personal estate is to be regulated. We have all heard my noble and learned Friend on the Woolsack declare his doubt whether he is domiciled in England or in Scotland; indeed, I think he added, or in Ireland. But, my Lords, if my noble Friend at the head of the law is unable to decide such a question in his own case, in what position are unlearned men placed who are expected, in making their wills, not only to know their actual domicile, but to foresee where they they may happen to be domiciled at the time of their death. My Lords, the ignorance to which I plead guilty on the subject of domicile is shared by the highest living authority in such matters. In a case of Maltass v. Maltass, decided by Dr. Lushington, that great Judge thus expresses him self— Even at this day, although so many powerful minds have been applied to the subject, there is no universally agreed definition of the word domicile—no agreed enumeration of the incidents which constitute domicile. This is expressed in the following remarkable language of Histius, 'Verum in iis definiendis mirum est quam sudent doctores.' Indeed, I think there are no less than fourteen or fifteen different definitions of this word. The gradations from residence to domicile consist both of circumstances and intention. Nice distinctions have and must prevail, such as cannot be defined beforehand. Such being the nature of an inquiry into the question of domicile, your Lordships may imagine that the expenses of conducting it must often be enormous. In a case of Lord v. Colvin, now pending in the Court of Chancery, it has been necessary to ascertain the domicile at the time of his death of a Scotchman who went to India, and there acquired a large property. I have been assured by one off the counsel in the cause that the costs of the inquiry, including those of all the parties, who are very numerous, have been not less than £30,000.

But when you have determined the domicile, if it is found to be in a foreign country, you have another question not loss difficult behind. You have to ascertain what is the law of that foreign country, and what judgment it pronounces on the instrument offered as a will. This law is a fact to be ascertained by the examination of witnesses, by the opinions of advocates and other experts—gentlemen not to be consulted without the payment of heavy fees, with the additional expense, perhaps, of bringing them over to this country. When they are examined their opinions may differ. An English Judge, ignorant it may be of their language—almost necessarily ignorant of the precise force and meaning of their legal phraseology—has to decide between them, and possibly thinks it fit to examine for himself decisions and decrees of foreign Courts, which it is hardly possible that he should very clearly understand. In addition to all this, it is not unlikely that the law of domicile itself is understood in the foreign country in a sense different from that which prevails in England. Is it possible that justice should be done under such a system, or that all the money expended in these inquiries should lead to any satisfactory result? A very memorable and very melancholy instance to the contrary occurred a few years ago in a case of Bremer v. Freeman, which excited much attention both in this country and abroad. A lady of the name of Calcraft, the daughter of an Indian officer, having an English domicile, went abroad. She went to France; afterwards to Italy, where she married or formed a connection with a gentleman of the name of Allegri, which name she adopted. She afterwards returned to France, and took lodgings in Paris. The bulk of her property, both real and personal, was in England; and in 1842 she gave instructions for her will to a solicitor in England, who prepared it of course in the English form, and in that form it was executed by Madame Allegri in Paris. It seems probable that if she had died soon after making her will, it would have been held that she had not lost her English domicile, and that her will was good; but she lived until 1853, remaining in Paris till she died. By her will, amongst other dispositions, she had bequeathed personal estate to the amount of, I believe, above £10,000 to a young gentleman of the name of Freeman. On her death her will was propounded for probate in the Ecclesiastical Court; but it was disputed by the next of kin as regarded personal estate, on the ground that the testatrix at the time of her death was domiciled in France; that the validity of the will must be governed by the French law, and that the will was not executed in the form which the French law required. To this it was answered that in fact the testatrix never had, even according to English notions, abandoned her domicile of origin, and acquired a domicile in France; but that at all events she had not acquired a domicile in Franco according to French law, nor the right of disposing of her property by will according to that law; for that the authorization of the French Government was necessary for that purpose, and that such authorization had never been obtained, and that the will in its English form would by the French tribunals be held to be good. On these various issues the parties went to proof. Evidence was given on one side to show that the lady had settled in France and altogether abandoned her country, and evidence to show the contrary was given on the other; and witnesses were examined to prove the law of Fiance. The Judge of the Prerogative Court admitted the will as good, but his judgment was reversed on appeal to the Judicial Committee, and the will as to personalty was held to be invalid. The evidence given by the French lawyers shows in what insuperable difficulties the decision of questions of this sort is involved. On the part of Mr. Freeman, five gentlemen practising in the French courts were examined: on the part of Mr. Bremer, three. Five lawyers held that Madame Allegri never acquired a French domicile according to the law of France. Three thought that she had acquired such domicile, but admitted the point to be doubtful. Three held that by the law of France a will to be good must be executed according to the law of the place where it was made; in other words, according to the lex loci. Three held that it might be executed either according to the lex loci, or the domicile of origin of the testatrix. All held that if made according to the lex loci it would be good, and not one adopted the English rule that its validity would depend on the domicile of the testatrix at her death. In this confusion and conflict of testimony the Judges seem to have thought themselves justified in examining for themselves the French law; and a most able and elaborate judgment was given, setting aside the will on the ground that the testatrix at her death had according to the rules of English law acquired a French domicile, and that by the rules of the same law her will must, therefore, be governed by the forms required to be observed in France. The result was that a genuine will, containing beyond all doubt the intentions of the testatrix at her death was defeated. Mr. Freeman lost his legacy—his costs amounted to £2,700; the costs on the other side to £2,876; the whole litigation being utterly beside the only question really important to justice, namely, whether the instrument propounded for Probate contained a true account of what the testatrix intended to be done with her property at her death. Now, I desire not to be understood as intimating any opinion on the decision in Bremer v. Freeman. It carries with it all the weight that can belong to the authority of the very ablest Judges. The judgment was pronounced by my noble and learned Friend opposite (Lord Wensleydale) whose name will go down to the latest posterity in the law, not more by a very memorable determination of your Lordships of which he was the subject, than by many admirable judgments of which he has been the author. It was concurred in by Dr. Lushington, of whom I have already spoken; by Sir William Maule, since dead; and by one still living, who is the impersonation of every moral and intellectual quality which goes to constitute a perfect Judge, though physical infirmities have for some time deprived the country of his services—I mean Sir John Patteson. I do not complain of the decision as contrary to English law; but what I do complain of is that such should be the law. I maintain that it is inconsistent with reason and justice, and that as long as it continues it is likely to produce the same mischief as it produced in Bremer v. Freeman.

Another great evil of the existing rule is this. It defeats honest wills for non-compliance with English forms, when the testator has no means of complying with them, because he cannot ascertain what they are. Take an ordinary case. An Englishman travelling abroad is taken ill; he sends for the doctor, and as a consequence, perhaps, has very soon to send for a lawyer to make his will. The lawyer knows what forms are required by his own country, and he observes them; but be knows nothing of the forms required by English law. For this defect, the English Courts refuse to acknowledge the will. A remarkable instance of this occurred in a codicil made by the late Marquess of Hertford. During one of his visits abroad, while he was at Milan, he made a codicil bequeathing a large amount of stock in some of the American funds to Mr. Croker. The codicil was perfectly good according to the Austrian law prevailing at Milan. If it had not been for the Act of 1837 it would have been perfectly good in England; but though the codicil was made out of England, it was held that the English statute applied, and that as the Marquess at his death was domiciled in England, the English forms must be observed. The codicil was found to be invalid, and Mr. Croker lost his legacy.

To remedy these various inconveniences I propose to enact that as regards the formalities of its execution it shall be sufficient, if a will of personal estate complies with what is required either by the laws of the country where it is made or with those of the domicile of origin of the testator; and that no will good when it is made shall be revoked or altered merely by a subsequent change of domicile of the person who made it. It is said that to introduce such provisions would be to interfere with the principles of international law. Now, I have as much respect for international law as most people, and have as little disposition to infringe any of its rules—especially at a time when in its higher and nobler object of regulating the intercourse between nations it must, I fear, be considered as extinguished or at best as in abeyance. But I am sure that your Lordships—those at least who will take the trouble of investigating the subject—will be satisfied that the effect of what I propose is not to alter the law of nations, but to restore it in England as it once existed there, and as it still exists in every other civilized country in Europe. England, no doubt, has departed from it, and the United States of America have followed her example; but till a comparatively recent period the rule which I propose to reestablish was the law of England, and it only ceased to be so in consequence of a decision in a case of Stanley v. Bernes which occurred, I think, about the year 1830. In that case an Irishman beyond all question domiciled in Portugal under an authorization giving him all civil rights, made a will in the Portuguese form disposing of his property in Portugal; and another, or a codicil, in the English form disposing of his property in England and Ireland. The English will was disputed on the ground of the Portuguese domicile, but it was admitted to probate by Sir John Nicholl, a very able Judge, after careful consideration and in a well-reasoned judgment, in which he observed that up to that time no such objection had ever been made, that many such wills had been established, and that a British subject had not the power exuere patriam or to give up the right of disposing of English property by such a will as the forms of English law required. This decision was unhappily reversed by the then court of appeal in such matters—the Court of Delegates—the very worst tribunal, probably, that the wit of man ever devised for the purpose of administering justice. It consisted of two or three common law Judges, who at that time were not much accustomed to the study of the civil or canon law, and of a certain number of advocates in Doctors' Commons not engaged in the cause. Now, as the ablest advocates were pretty sure to be engaged in the cause the Delegates were usually, of course, of less reputation; and by a tribunal thus constituted the judgments of such men as Sir John Nicholl or Lord Stowell were to be reversed. What were the reasons of the Court of Appeal in Stanley v. Bernes I do not know; there is no record to be found of them, and I am told that it was not the habit of the Court of Delegates to assign any reasons for their decisions. I remember, soon after that case was decided, talking of it with one whose early death was one of the greatest losses that the law of this country ever sustained—Sir William Follett—and he agreed with me in lamenting the determination though he was one of the counsel on the winning side. But whatever it decided it could not decide against the principle that a will of personal estate, which is good as to form according to the law of the country where it is made cannot anywhere be rejected for want of form—that the rule of lex loci regit actum extends to testamentary as well as to other instruments. The law of England admits it in other cases—Why does it re- pudiate its application to wills? It is observed in contracts—in the most important of all contracts the contract of marriage—why is it to be thus capriciously rejected in one particular instance? The ground of the rule exists as much in regard to wills as to anything else—namely, that a man may easily obtain advice as to the law of a country where he happens to be, hut cannot probably obtain advice as to the law of another country. The case of Stanley v. Bernes could not decide anything against this rule, for the facts of the case did not involve any such question. The rule is of universal application; it is adopted by every country in Europe except England. On this point all the advocates who were examined in Bremer v. Freeman agreed, though differing in everything else; yet so strongly is the opposite opinion rooted here that in the judgment of the Judicial Committee it is considered as detracting from the value of the opinion of the French lawyers in other matters, that they should entertain notions so inconsistent with the law as laid down in Stanley v. Bernes. That this is the law of France can admit of no doubt; it is expressly provided for by the Code Civil. Article 999 of the 1st Book expressly declares that a Frenchman who shall happen to be abroad may make his testamentary dispositions either by holograph writing signed by him, or according to the forms in use in the country in which the instrument shall be made. In the time of the Duchess of Kingston, whose case is referred to in Bremer v. Freeman, the law of France on the subject was unsettled. There could be no doubt of her domicile, that it was French. She had been convicted in England of bigamy in 1776; immediately afterwards she went to France, and in 1777 obtained letters of authorization to acquire property and dispose of it by will. In 1786 she made a will in the English form, disposing of real and personal estate both in France and England. She died in France and Mons. Target the French Attorney General gave an opinion which has acquired much celebrity, in which he pronounced in favour of the will, both as to French and English property, on the ground that the subject of any country, when abroad, may make a will according to the forms required by the law of that country, which will be good everywhere. It never seems to have occurred to him that the domicile at the death was material. The question whether the lex loci regit actum applied to wills, he considered as at that time unsettled in the law of France. It is now settled in the manner which I have already stated.

I cannot, of course, expect your Lordships to listen to citations from the jurists to prove the proposition that the general rule acknowledged in Europe is that a testator abroad has the option of making his will, either according to the forms which prevail in the place where it is made, or according to the forms of his domicile of origin; according either to the lex loci or the lex patriae. But I will refer your Lordships to treatises of learned men in which the authorities are collected and discussed, and in which the authors of those treatises have come to the conclusion which I have represented to be the law. Mr. Burge, whose Commentaries are the text-book of English lawyers, and whose work was published about thirty years ago, after citing a profusion of authorities observes— In the jurisprudence of Spain, Holland, France, and the greater number of the States of Europe, if the testament be made with the forms prescribed by the law of the place where it was executed, it will be valid, and will effectually disdispose of property situated in another country, where the law prescribes different forms. The learned author here speaks of property generally, without distinction, both moveable and immoveable. Again, in commenting on the Duchess of Kingston's case, and the opinion of M. Target, to which I have already referred your Lordships, he says— This opinion proceeds on a principle which is admitted by jurists, that although a will made with the solemnities of the lex loci actus may be valid, yet if it was made with the solemnities of the lex loci rei sitce in respect of immovables and the locus domicilii in respect of moveable property, it would also be valid. This observation, it is clear from what I have already stated of the circumstances of the Duchess of Kingston case, applies to domicile of origin, and not to domicile at the death. Dr. Phillimore, who has published his valuable work on international law much more recently, and has examined, I believe, the works of all the eminent writers on the subject up to the present, time, including some distinguished foreign jurists still living, thus sums up the result of his inquiries— As to the form of the instrument—the jurisprudence of the Continent wisely, justly, and philosophically, allows an option to the testator to adopt either the form required by the lex loci actus or the form required by the lex domicilii. The adoption of either form is as the jurists say, facultative, not imperative, though the general maxim is locus regit actum. England, and the North American 'United Status unwisely, arbitrarily, and unphilosophically compel the testator to adopt the form prescribed by the lex domicilii." But, my Lords, I can refer your Lordships to a yet stronger authority, that of all the Judges in Scotland as to what the law of that country is, and as to what they consider to be the general rule of international law. A case has just been decided in the Court of Session of Purvis' Trustees v. Purvis' Executors, on the effect of a will made in Sumatra by a Scotchman upon Scotch personal estate, the will being valid according to the law of Sumatra; and the Judges have been unanimous in favour of the will on the principle of locus regit actum. The question was considered so important that the division of the Court of Session before which the question was brought for decision, consulted the other Judges. The consulted Judges gave a most able and valuable opinion in what they say— We hold it to be the settled Jaw of Scotland that the Scotch statutes in question are not imperative as to writings of this nature executed in a foreign country, but that such writings are receivable here as valid or authentic expressions of testamentary will, if executed according to the formalities which would make them valid as wills or testaments in the country of execution. Upon examining the Scotch authorities, they observe that they think it unnecessary to support by any reasons what they hold to be the established law; yet they add— That there seem to he the strongest grounds for having originally adopted, and for now adhering to that rule, instead of holding that wills are only good if executed according to the law of the party's immediate or ultimate domicile, without reference to the place of execution. After stating these reasons, with some of which I have already troubled your Lordships, they proceed to another point on which it is the object of this Bill to introduce an alteration in the law— Supposing," they say, "a testator domiciled in a foreign country at the time when he makes his will makes it according to the forms there required, it seems unreasonable to say that his change of domicile to a country where a different form of authentication is required by local statutes, is eo ipso, to operate, as a revocation of that which will was validly made at the time when it was made. Change of domicile may change the rights of third parties and the powers of the testator; but it cannot alter the fact that he has expressed his intentions as to his succession, and has preserved that writing without alteration or visible revocation. After discussing this subject they proceed: We do not think it necessary to advert to the civil law, or to notice the works of international jurists on this subject. We shall merely say, that although some difference of opinion exists amongst them, the preponderance of authority appears to us to be very clearly on the side of that opinion which we have already expressed. We agree with those Continental jurists who lay it down that a testator making his will in a foreign country has his option to follow either the formalities prevailing in the place of his domicile, or those of the place of execution. My Lords, the extracts which I have read are from the opinion signed by the Lord President and eight other Judges. Lord Kinloch gave a separate opinion, which, upon the matter now in question was, perhaps, still more precise and pointed than those which I have already laid before you. After declaring that by the law of Scotland the locus regit actum is just as applicable to wills as to other deeds; that it is a principle so deeply embedded in the law as to preclude it from being disturbed, and at the same time so accordant with reason and sound policy that he has no inclination to disturb it, he proceeds— To hold the deeds to be authentic instruments docs not in the least determine the effect to be given to them, which is matter for consideration after they have been received and read. Neither does it preclude the Court from holding, in any after case which may raise the point, that a will or other deed executed abroad, according to the solemnities of Scottish law, is valid, although not executed with the formalities of the place of execution. There is no inconsistency in recognizing a deed well executed according to the lex loci, and at the same time not rejecting a deed executed according to the lex fori." The opinion of the consulted Judges has, I understand, been adopted without any dissentient voice by the Court, and a decision has been pronounced in conformity with it. I should observe that the Judges in this case, in entire agreement with the general law of Europe, discard altogether the question of domicile at the death, with all its frightful consequences of expense and injustice. The law of Scotland upon this subject I desire to make the law of England. As to making the law of this and of foreign countries, on the subject of wills of personal estate, in all respects correspond, it is absolutely impossible by any contrivance to do so while the distinctions established in the English law between real and personal property remain as they are. No country except England and Ireland, I believe, treats lands and houses held for long terms of years at a pepper corn rent, or mortgages and other property connected with land and having a local character as subject to the rule that mobilia sequuntur personam. To apply the rule to property which really is immovable is to depart altogether from the principle on which the rule is founded, and to hold that the power of disposition over them ought on that ground to be governed by the law of the place where a testator happens to have his domicile at his death, is going further than I imagine any one will contend to be reasonable.

I am aware, my Lords, that the Bill which I have the honour to recommend to your Lordships goes but a little way; if it should pass many inconveniences will still remain, particularly as regards intestacy, to which this Bill does not extend—but some anomalies will be corrected, and, what is much better, serious practical evils will be removed. A domiciled Englishman or Irishman will be enabled to do what a domiciled Scotchman may do already; he will be enabled, if he is obliged to make his will abroad, to make it either in the forms which prevail in the place where it is made or in those of his own country. A Scotchman will be able, having made his will, to go to England; and an Englishman, in the same predicament, will he able to go abroad, without the apprehension that, if he should never return, all his intentions with respect to his property at the time of his death may be disappointed. At all events, whether he be Englishman, Irishman, or Scotchman, he will be spared the risk that in useless inquiries into his domicile at his death, and into the law of the country of that domicile, one-half of his property will be wasted in order to accomplish, or, as is just as likely to happen, to defeat his wishes as to the other half. I venture, therefore, respectfully to request your Lordships' assent to this measure, of which it is the object, and I believe will be the effect, to assimilate on a very important point the laws of England and of Scotland; to place both in harmony with the general international law of Europe, and to prevent forms which are said to be the handmaids of Justice from being used as impediments and obstructions in her path, The noble and learned Lord concluded by presenting a Bill

Moved, That the Bill be now read 2a.


said, a Bill somewhat similar in character to the pre- sent had been introduced in their Lordships' House on a former occasion, and did not receive their Lordships' sanction. His noble and learned Friend had now introduced a measure embodying the same principle. He entertained so high a respect for the noble and learned Lord by whom this his Bill had been introduced that he was almost induced to hesitate before offering an opinion with regard to it; but he entertained the very strongest objection to the principle on which it was founded. That was not the time for entering into a consideration of the details of the measure, but he would venture to trouble their Lordships with a few observations on the principle itself. No point in the law of nations is more firmly established than that the succession to real estate is governed by the law of the country where the property is situated—it must descend to those who are heirs by the law of that country. It can be taken from them only by a will with the formalities required by that law; but with respect to personalty the maxim of mobilia sequunter personam must prevail. The cause of this distinction has been so satisfactorily explained with so much clearness and good sense by Mr. Justice Story that he would venture to trouble their Lordships with a short extract from his most valuable work on the conflict of laws. He says— The probability is that this doctrine had not its origin in any factitious annexation of personal property to the person of the owner, or their incapacity to have a fixed situs, but in an enlarged policy, growing out of their transitory nature and the general convenance of nations. If the lex loci rei site were generally to prevail in regard to moveables it would be utterly impossible for the owner in many cases to know in what manner to dispose of them during his life, or to distribute them at his death, not only from the uncertainty of their situations in their transit to and from different places, but from the impracticability of knowing with minute accuracy the law as to transfers in the different countries in which they might happen to be. There would be serious evils pervading the whole community, and equally affecting the subjects and interests of all civilized nations. A sense of general utility, therefore, must have first suggested the doctrine, and as soon as it was promulgated it could not fail to recommend itself to all nations by its simplicity, its convenience, and its enlarged policy. But be the origin of its policy what it may it has so general a sanction amongst all civilized nations that it may now be treated as a part of the jus genium." It had accordingly been, as he believed, universally held among such nations that the succession to personalty is to be go- verned by the law of the domicile of the owner at the time of his death, and it seemed to follow inevitably as a corollary from that proposition, that if there is a will which alters the established rule of succession, that will must be executed with the formalities which the law of the domicile requires. This question was decided more than thirty years ago by the then Court of Delegates, in the case of "Stanley v. Bernes." His noble and learned Friend (Lord Kingsdown) had spoken slightingly of that Court, but he (Lord Wensleydale) knew that particular case was most fully and carefully considered by himself and his colleague, and not decided until after much deliberation; and he had the satisfaction to know it had been since approved of and been considered as firmly established, at least in Great Britain and America, and sanctioned by the great authority of Mr. Justice Story. Indeed it would not be doubted if the rule of international law is, as it unquestionably is, that the succession should be governed by the law of the domicile at the time of the death of the testator, to attempt to change this established law of nations by a statute of this country alone would be useless, and productive of inconvenience. It could only apply to personal property within the territories of this realm, not to that in any other country, at the time of the death of the owner. That country would recognize the law of nations only, and if the will of the owner was not in the form required by the law of the country of the domicile would not permit it to be taken by the legatee. Questions would arise as to property, ships for instance, in this country at the time of the testator's death, but afterwards removed into another, which would not recognize the English law. The proposed change, therefore, might be productive of great inconvenience, and was at the same time entirely unnecessary, as it was in the power of every one to make his will in a form which would be perfectly secure whatever his domicile might be by making the instrument conformable to the laws of both domiciles, if there happened to be a question whether his domicile is in one or the other. For instance, in the case of a doubt by the testator whether he was domiciled in England or France it would be perfectly easy to make an holograph will, which is good without witnesses in the latter country, and execute it in the presence of two witnesses, who should subscribe it in the presence of the testator, which would make it valid by the law of the former. It would not be necessary to make duplicate wills. Why make an useless, perhaps inconvenient attempt to alter the law of nations—which would be without effect, unless all civilized nations concurred in it—when the remedy is so easy without any change whatever? There are some consequences arising from a change of domicile, which no enactment as to the form and ceremonies of a will could not cure. For example, the law of some civilized countries prevent a man from bequeathing the whole of his property, as for instance, that of France prohibits a man from taking a certain share of his estate from his children; that of Geneva obliges him to leave some part to his heirs, when he has no children. These consequences no enactment as to form of a will can prevent. He perfectly agreed that nice questions would often arise as to domicile, and it was impossible to avoid them. It was difficult to make a scientific definition of that term complete in all its parts, but a practical one was easy; and, as of late times, it had been always held that the domicile of origin continues until it has been abandoned "animo et facto," and a new sole domicile acquired, much fewer questions of nicety and difficulty will occur. The noble Lord then remarked on the case of Bremer v. Freeman; commented upon by the noble Lord opposite. He said it had been most carefully considered in conjunction with one of the highest authorities in this country on international law, his friend, Doctor Lushington, and with Sir John Patteson, and the late Sir William Maule, eminent lawyers. The law of France was decided upon the evidence as a matter of fact, and on that evidence he believed the decision was perfectly correct, and could not be questioned. Whether the evidence was all that might have been given was quite another question. It was conflicting, and probably much more might have been made. He certainly was impressed with the notion that the able French lawyers who gave their written testimony had notions very different from ours as to the authority of the deliberate judgment of Courts, which they seemed to consider of no value except to those who had the good fortune to obtain them. They treated them as almost worthless compared with the opinions of practising lawyers; and they did not appear to have made the law of nations as generally understood as their peculiar study so much as many other foreign jurists. He thought the proposed Bill was quite unnecessary, and that it might he productive of much inconvenience.

Amendment moved, to leave out "now" and insert "this Day Six Months."


said, that the subject was by no means free from difficulty; but guarding himself from being in any way pledged to support the Bill, he must deprecate opposition to it in that stage as discourteous to his noble and learned Friend, who had brought forward the measure with a very able and elaborate speech, and the House should reflect that no one was more competent to deal with the subject than his noble and learned Friend, to whom the country was already greatly indebted for the attention he had devoted to that and kindred subjects. Great evils had been shown to arise from the present system, and the remedy which his noble and learned Friend recommended, was certainly worthy of their Lordships' careful consideration. He would be delighted to see a rule laid down by which the vexed question of Lord Campbell's domicile could be settled. When Lord Chief Justice, he was held to have a domicile in England, on account of the duties he had to perform in virtue of that office; but when he became Lord Chancellor no one could tell whether his domicile lay north or south of the Tweed. When he retired from his official labours he hoped he might be able to establish his domicile without dispute, so as to leave no doubt as to the law by which his will should be decided. He felt bound to say that he was not sanguine as to the result of the measure now submitted to their Lordships.


said, that though he could not approve of the measure, he entirely agreed that it would not be well to refuse it a second reading. It could not be disguised that the great object to be accomplished by the measure was to allow gentlemen to pass their lives and spend their money on the Continent, and still to have all the benefit of the English law without being subject to its authority. An Englishman domiciled in France could not dispose of his property as he thought proper, as he could by the English law, because the French law had undertook the disposition of one-half for him; but if a man chose to abandon his native domicile and assume a French do- micile, he must abide by it with all its disadvantages. He did not see why an Englishman who chose to go and reside at Paris should be released from the obligation of making his will in conformity with the Wills Act. His hon. and learned Friend Sir FitzRoy Kelly introduced a Bill on this subject in the other House in 1858; it passed that House and came up to their Lordships, but, though that Bill did not go one-half so far as this, their Lordships refused to assent to it. He did not see why a man should be able to evade the English law by going over to France; and he thought that the utmost extent to which they ought to go was to allow a man the power to dispose of his property by a will made abroad attended by the same formalities as if the will had been made in England. The Bill affected to decide the question of domicile generally, but English legislation could only decide it municipally. If all countries agreed to an international assimilation of the law of domicile, it would be most desirable, but we could not legislate generally. The object of the law of 1846 was not only to produce uniformity with regard to all testamentary dispositions of property, but, likewise, to guard against an incautious disposal of personal property by throwing round all property that kind of solemnity which had hitherto been applied to real property only. In conclusion the noble Lord said he approved of the object of the Bill, and if the noble Lord who had charge of it would consent to refer it to a Select Committee, he would be happy to render him all the assistance in his power in improving it as far as possible.


said, that the subject abounded in difficulties. The principle of the law was, that a man who took up his domicile in a country was to be supposed to have adopted the laws and regulations of that country in which he was domiciled; and, whatever the Legislature might enact, the principle of law which he had just cited must obtain if a man died intestate. He doubted whether they would not find infinite difficulty in legislating that the property of a British subject was to pass, not by a will framed by the law of the country in which he was domiciled, but according to the law of this country. He feared lest in stopping one hole they might make several others. There was, however, a practical evil to be remedied, and their Lordships must do the best he could to correct it. He should offer no opposition to the second reading.


said, the object of the Bill was to remove defects in our legal system, and he did not think that inability to accomplish all was a reason for not attempting to accomplish any.

Amendment (by leave of the House) withdrawn.

Original Motion agreed to; and Bill read 2a accordingly; and committed to a Committee of the Whole House on Tuesday, the 30th instant.