La Cloche and Another v La Cloche
| Jurisdiction | UK Non-devolved |
| Judgment Date | 24 January 1870 |
| Date | 24 January 1870 |
| Court | Privy Council |
English Reports Citation: 16 E.R. 770
ON APPEAL FROM THE ROYAL COURT OF THE ISLAND OF JERSEY.
Mews' Dig. tit. Colony, II. Particular Colonies, 13. Jersey and Guernsey, c. Laws. Coutume d'Orléans.-Power of Disposition. S.C. L.R. 3 P.C 125; 39 L.J. P.C. 25: 22 L.T. 765; 18 W.R. 646. See La Cloche v. La Cloche, 1872, 9 Moo. P.C. (N.S.), 87; L.K. 4 P.C. 325; and Falle v. Godfray, 1888, 14. App. Cas. 70.
[383] ON APPEAL FROM THE ROYAL COURT OF THE ISLAND OF JERSEY. THOMAS PHILIPPE LA CLOCHE and WILLIAM GAUDIN -Appellants: THOMAS LA CLOCHE,-Respondent * [Jan. 24, 1870]. By the law of Jersey, a Testator who dies leaving a Widow and lawful child or children cannot dispose by Will of more than one-third part of his personal estate. If the Will professes to dispose of more than one-third part of the rnoveables, it is liable to be reduced ad legitimu-m modiim. By the same law and custom, the Executors of a Testator are entitled to the possession of the whole of the rnoveables of a Testator for a year and a day after his decease, and their possession continues until they have received the amount of the moveable estate bequeathed by the Will, and have also fulfilled the duties of administration. But at the beginning of their office they are bound to make an inventory of the whole of the moveables, and to cite the heir for the purpose of seeing this done, unless the heir elect to pay or secure to the Executors the full amount of the bequests, debts, and expenses, in which case the heir becomes entitled to the possession [4 Moo. P.C. (N.S.) 400, 401]. Under the maxim " Je mo-rt saisit le vif," the children or heirs of a Testator are, from the moment of his death, the true Owners of that part of the moveable estate which by law belongs to them, but the law of Jersey makes the Executors les procureurs legaux of the heir, which procuration is irrevocable jusqu'd I'accomplissement du Testament, and in this character gives the Executors full right and title, cL'eux men/ex, to take possession of, recover, and receive, the whole of the moveables for the purposes of administration, subject to the right of the heir to interpose and demand possession from the Executors, by depositing with them the full amount of the debts and other charges of administration, and of the bequests made by the Will. So held by the Judicial Committee in a case, where a Testator domiciled in Jersey, but having move-able estate out of the Island, by his Will bequeathed all his personal property, with the exception of a few trifling legacies, to his Grandson, to the exclusion of his only Son and heir, who claimed to be entitled by the law and custom of the Island absolutely to two-thirds, and disputed the right of the Executors to recover or administer more than one-third of the Testator's estate [4 Moo P.C. (N.S.) 403]. This appeal raised a question, whether the Appellants, as the Executors of the Will of Thomas La [384] Cloche, a native of St. Helier, in the Island of Jersey, and domiciled there, were entitled to the legal seisin (saisine leyule) of the whole of the * Present: Lord Westbury, Sir James William Colvile, and Sir Joseph Napier, Bart, 770 LA CLOCHE V. LA CLOCHE [1870] VI MOORE N.S., 385 personal estate and effects of the Testator, or whether the Respondent, Thomas La Cloche, as the only Son, and by the law and custom of Jersey the sole heir of the Testator, was entitled to the legal seisin of the whole, pendents lite, or of two-thirds of such personal estate, to the exclusion of the Appellants, as Executors of the Will of the Testator. The question arose under the following circumstances: - Thomas La Cloche, by his Will in writing, bearing date the 2nd of October, 1862, after providing for payment of his debts and funeral expenses, and giving a few trifling legacies, gave and bequeathed all the rest of his personal property, of what nature or quality it might be, and in whatever place or Country the same might be invested or placed on the day of his decease, to his Grandson, Thomas Philippe La Cloche, one of the Appellants ; and he appointed the Appellants Executors of his Will. The Testator died in the Island of Jersey, on the 13th of October, 1864, without having in any way altered or revoked his Will, which was proved by the Appellants in the Ecclesiastical Court of the Island of Jersey, on the 20th of October, 1864. Nearly the whole of the personal estate of the Testator, amounting to \ipwards of ,£38,000, was invested at the time of his decease in Foreign securities, the scrip and other evidences of title appertaining to which were in the hands of Messrs. Mallet Freres and Co., Bankers, in Paris, with, whom the Testator had, during his lifetime, deposited them. [385] By the law and custom of the Island of Jersey, a Testator having a Wife and no children, may bequeath one-half of his personal estate, but if he has no Wife, but a child or children living at the time of his decease, he has a power of disposition by Will over one-third only of his personal property, the other two-thirds being vested by operation of law in such child or children. The Respondent, Thomas La Cloche, was the only child of the Testator, and the Appellant, Thomas Philippe La Cloche, was the Son of the Respondent, Thomas La Cloche. The Respondent was consequently advised, that as the only Son, and, by the law and custom of Jersey, sole heir of the Testator, he was entitled absolutely to two-thirds of the personal property of the Testator his Father, and that the Testator's Will, so far as it purported to dispose of these two-thirds of his personal property, was void, and that upon an action being instituted for that purpose before the Royal Court of Jersey, the Court would reduce the Will of the Testator ad legitimum modum. Acting upon this advice, the Respondent, immediately after the Testator's decease, gave notice to Messrs. Mallet Freres and Co., with whom nearly the whole of the scrip and documents relating to the personal estate of the Testator were deposited, that, as the only Son, and by the law and custom of Jersey principal heir of the Testator, his Father, he claimed two-thirds of his personal estate and effects, and that he claimed to be entitled to the seisin of such two-thirds, to the exclusion of the Executors, the Appellants, inasmuch as the Will of the Testator was, by the law of Jersey, invalid as regarded the disposition [386] by the Testator of such two-thirds, and he likewise gave Messrs. Mallet Freres and Co. further notice, that he had commenced a suit in the Royal Court of the Island of Jersey, to have the Will of the Testator reduced ad legitimum modum, and that they were not to part, with any portion of the personal estate of the Testator in their hands, nor with any of the scrip or documents appertaining to the same, to the Executors named in the Will, or either of them. In the month of October, 1864, the Respondent, as such Son and sole heir of the Testator, commenced a suit in the Roval Court of the Island of Jersey against all the parties interested in the Testator's Will, for the purpose of reducing it ad legitimum modum. The Appellants denied his title, but, on the 20th of June, 1865, the inferior number of the Court declared his title as principal heir to be proved, and reduced the Will ad legitimum modum; and sent the parties before the Greffier to carry out the judgment. An account of the personal estate and effects of the Testator was accordingly made out before the Greffier of the Court, in accordance with the terms of the above judgment, and the same divided into three lots, whereof the Respondent chose the first and second lots, and the parties were again sent before the Royal Court by the Greffier for the purpose of having his return confirmed. The inferior number of the Court, by its judgment of the 30th of May, 1867, decided to postpone the _ further consideration of that case until a final judgment should be given in the action. 771 VI MOORE N.S., 387 LA CLOCHE V. LA CLOCHE [1870] In consequence of the notice given by the Respondent to Messrs. Mallet Freres and Co. not to part with any portion of the personal estate of the Testator in [387] their hands, or of the scrip or documents appertaining to the same, they refused to hand the scrip and other documents in their possession over to the Appellants, who applied for and claimed to...
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Spread Trustee Company Ltd v Hutcheson and Others
...large differences in matters not only of detail but of principle." 86 He concluded: "Thus, although as this Board has pointed out in La Cloche v La Cloche (1870) LR 3 PC 125, it is proper to look at related systems of law, and commentators on them, in order to elucidate the meaning of terms......