Azema Bouche, otherwise Emma Lagesse, - Appellant; Lucie Allard and Alphonse Lagesse, - Respondents
| Jurisdiction | UK Non-devolved |
| Judgment Date | 20 December 1872 |
| Date | 20 December 1872 |
| Court | Privy Council |
English Reports Citation: 17 E.R. 564
ON APPEAL FROM THE SUPREME COURT OF MAURITIUS.
Mews' Dig. tit. Colony, II. Particular Colonies, 4. British North America.-Will-Construction-Children. S.C. L.R. 4 P.C. 553; and, sub. nom. Lagesse v. Allard, 42 L.J. P.C. 37; 21 W.R. 369.
IX MOORE N.S., 399 LAGESSE V. LAUESSE [1872] [399] ON APPEAL FROM THE SUPREME COURT OF MAURITIUS. AZEMA BOUCHE, otherwise EMMA LAGESSE,-Appellant; LUCIE ALLARD and ALPHONSE LAGESSE,-Respondents * [Dec. 20, 1872]. Construction of bequests in a Will, made in the mystique or secret form, in accordance with the Code Civil, the law prevailing in the Mauritius. The Testator, at the time of making the Will, was living in cohabitation with a woman, by whom he had had two children, and whom he therein recognized and provided for as follows:-" J'ai reconnu pour mes enfants naturds, &c.; et je donne et legue a ces enfants la moitie de tons les biens generalement quelconques que je laisserai au jour de man deces; " and disposed of the whole of his " quotite disponible ". in favour of other Legatees. The Testator afterwards married the Mother of his children, who thereby, by the Code Civil, Art. 331, became legitimized; but neither before nor after his marriage revoked, altered, or republished his Will or left any other heirs entitled to the succession. On a suit by one of the Legatees for the recovery of a legacy bequeathed to her by the Will, against the Mother of his children acting as testamentary Executrix of the Testator, who, among other pleas, contended that, even if the bequest was valid it ought to be reduced, inasmuch as that and the other legacies given by the Will exceeded the disposable proportion (quotite disponible) of the Testator's succession, the children being by the Will entitled to one-half of such succession in preference to all other legacies given by the Will:-Held, by the Judicial Committee (affirming the judgment of the Supreme Court), that upon the true construction of the Will, the legacy given to the children was a gift of a moiety of the whole succession, and not a moiety of the quotite disponible only; and that as the children were by law entitled to a legal reserve of two-thirds of the estate of their late Father, if they elected to claim such reserve, which would reduce the Plaintiff's legacy, the Mother, as their Guardian, must make election between the one-half bequeathed by the Will and the two-thirds, the legal reserve. The action out of which this appeal arose was brought in the Supreme Court of Mauritius by the Respondent, Lucie Allard, against the Appellant, Azema, otherwise Emma Lagesse, Widow, as Guardian of Cecile Lagesse and Marie Lagesse, [400] infants, and Alphonse Lagesse, testamentary Executor of Leonce Lagesse, deceased. The object of the action was to recover a legacy of $10,000 bequeathed to the Respondent, Lucie Allard, by the Will of Leonce Lagesse. The Respondent was the Sister of the Testator, and the Wife of Timothee Allard, and was, in the absence of her Husband from the Island, authorized by a Judge's Order to accept purely and simply the legacy of $10,000, and to ask for the delivery thereof from the heirs before a competent Court. The Will, upon the construction of which the questions in this appeal arose, was dated the 29th of December, 1866, and was made in the mystique form, being deposited with a Notary without any disclosure of its contents, and, so far as is important to the questions raised in the appeal, was as follows: - " 1. J'ai reconnu pour mes enfans naturels, Cecile et Marie, filles de Madlle. Azema Bouche, [401] aussi appelee Emma Bouche, je declare reconnoitre par le present aussi pour mon enfant naturel, Venfant dont la dite Demoiselle Bouche est actuellement enciente; et je donne et legue a ces trois enfants (Cecile, Marie, et celui dont Madlle. Bouche est enciente) la moitie de tous les biens generalement quelconques que je laisserai au jour de mon deces. " 2. Je donne et legue a Madlle. Emma Bouche sous-nommee une somme de vingt mille piastres, plus mon immeuble, avec tout ce qui en depend, situe au Port Louis a I'angle des Rues Madame et des Creoles acquis par moi de Mr. Arthur Edwards; * Present: Sir James William Colvile, Sir Barnes Peacock, Sir Montague Edward Smith, and Sir Robert Porrett Collier. 564 LAGESSE V. LAGESSE [1872] IX MOOBE N.S., 402 et en outre tons mes meubles meublants et autres effets mobiliers qui se trouvent d ' Plaisance ' a ^exception de ma voiture et de mon cheval. " 3. Je donne et Ugue a Made. Allard, ma sceiw, une somme de dix mille piastres, avec la condition expresse que si elle venait d meurvr sans enfants, la dite somme reviendra pour une moitie a mes trois enfants naturels sus-nommes, et pour I'autre moitie a mes autres Mritiers." The child spoken of in the Will as in ventre so- mere died shortly after birth in the lifetime of the Testator. The Testator died on the 10th of April, 1870, without having revoked his Will, having previously, on the 10th of August, 1867, married the Appellant, Azema Bouche, and by the Code Civil, Art. 331, the two children termed in the Will " enfants naturels," were thereby made legitimate. According to the Civil Code, Art. 913, in the case of a Testator leaving two legitimate children, the quotite disponible, or amount which he can leave to other parties, is one third of his whole property; [402] and, according to the combined effect of Articles 757 and 908, the amount which he was empowered to leave to his illegitimate children where he had Brothers and Sisters or relations in an ascending line, but no legitimate issue, is one-half of his property, and they are, under the Civil Code, in any event entitled to one-third. The declaration in the action sought payment from the Appellant of the legacy of $10,000, with costs and interest. The Appellant put in three pleas, two of which she afterwards abandoned. The third plea alleged that, even admitting that the legacy be good and valid in law, the same ought to be reduced according to law, inasmuch as the above legacy and the other legacies which had been made to several parties by the late Leonce Lagesse by the Will referred to in the Plaintiff's declaration exceeded the disposable proportion of the latter's succession; and further, that as the minors Lagesse were themselves, under the Will, Legatees of one-half of the disposable proportion (quotite duponible) of their late Father's succession; such legacy, the Appellant contended, ought to be paid in preference to all the other legacies made by Leonce Lagesse. The Respondent filed a replication joining issue on the third plea, and, moreover, raised the point that, even if the children of the Appellant were entitled to a legacy, they had not any preference over the other Legatees. Judgment was given by Sir Charles Farquhar Shand, Chief Judge, and the acting second Puisne Judge, Gorrie, rejecting the third plea of the Appellant, and ordering the Appellant to elect within two [403] weeks between the one-half of the estate under the Will, and the reserve of two-thirds which the Appellant's children were entitled to claim as legitimated children; and directed the costs to come out of the estate. The appeal was from this judgment. Mr. Mackeson, Q.C., Mr. Westlake, and Mr. Seward Brice, for the Appellant.- The legal import and effect of the Will of the late Leonce Lagesse involve this question, what is the amount for which the two infant children, Cecile and Marie, of the Testator, on behalf of whom Emma Lagesse, their Mother, defends as Guardian, are entitled by virtue of such Will, under the Code Civil and succession according to French law, received and prevailing in Mauritius. It is, therefore, one of construction, and the application of the Code Civil to the circumstances disclosed. What, then, is the amount to which the two children Cecile and Marie are entitled by virtue of the Will and such rules of succession ? This question has become somewhat complicated by the marriage of Leonce Lagesse and the Appellant, which took place in 1867, a few months after the date of the Will. By this marriage the children, Cecile and Marie, having been previously recognized, became legitimated, Code Civil, Art. 331, and their rights of succession to their parents' property were very considerably altered. The rules laid down in the Code Civil on this point are, first, that natural children, that is, illegitimate and unrecognized, as such have no claim upon the property of their deceased parents, either Father or [404] Mother, who may by Will dispose of all their possessions, without in any way noticing the existence of merely natural children-" Les enfants naturels ne sont point heritiers; la loi ne lew accorde de droit swr les biens de leur pere ou mere decedes, que lorsqu'ils ont ite Ugalement reconnus ": Code Civil, Art. 766; Les Codes an'not^s 565 IX MOORE N.S., MB LAGESSB V. LAGESSE [1872] de Sirey, Tom. I., p. 318 [Ed. 1862]. Secondly, other children, whether natural children legally recognized, or legitimated children, have a claim upon the property of their parents at their death, and are looked upon as co-owners with their parents; so that, upon the death of the latter, they succeed to a certain portion of their parents' property, and of this right the parents are unable to deprive them. This portion is thus regulated in case of natural children legally recognized-" Si le pere ou la mere a laisse des descendans Ugitimes, ce droit est d'un tiers de la portion...
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