Corling v Thornton
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1823 |
| Date | 01 January 1823 |
| Court | Prerogative Court |
English Reports Citation: 162 E.R. 198
PREROGATIVE CCOURT.
[6] curling v. thornton. (!n the goods of the late colonel thornton.) Prerogative Court, Michaelmas Term, 4th Session, 1823 -An allegation, responsive to a condidit-suggesting the will of a British-born subject to be invalid by the law of France, where he died, and of which country he was alleged to have died a tfdomiciled inhabitant;" and that the effect of that invalidity was to defeat its claim to probate in the courts of this country -rejected.-The succession to the personal estate of a British subject dying domiciled in any part of the British Empire, intestate, is to be regulated by the law of that part of the British Empire which was his domicil at the time of his death.-But quaere, whether a British subject can so far " exuere patriam," as to render his property here Kable to distribution according to any foreign law, even in case of his intestacy '{-Though admitting this to be, it would by no means follow that his will, to be valid here, must conform to that foreign law, either upon principle or upon authority.-The rule that where property is to be distributed under a certain law, in a case of intestacy, it must be so distributed in the absence of a will valid by that law, only applies to cases in which, there being no conflict of domicils, the law by which the case must be governed, whether ultimately to be deemed a case of testacy, or one of intestacy, admits of no question. Thomas Thornton, Esq., the party deceased in this cause, died at Paris in the month of March, 1823. Probate of his will being opposed on behalf of his widow and relict, it was propounded by his executor in a common condidit. The present question arose, ob the admission of an allegation, tendered by the widow, responsive to that plea. This allegation pleaded, in substance, 1. That the said Thomas Thornton went from England to France about the end of the year 1815, and fora considerable tame resided in that kingdom-that having determined to settle there, he arranged all his affairs in this country, "so far as was accessary or practicable," and towards the end of the year 1816 finally withdrew therefrom, as a permanent place of abode, and fixed his place of residence at Paris- that, in pursuance of such determination, and in order to acquire civil rights as a domiciled inhabitant of that kingdom, he applied for, and obtained, a " Royal Ordin ance," bearing date 30th January, 1818, permitting him to " establish his domicil in France," and securing to him " the enjoyment of all civil rights so long as he should continue to reside in France "-that, from the time when the said deceased obtained the said Royal Ordinance, he continued constantly to reside in France, until his death in March, 1823; save that once only, happening in Sep-[7]-tember or October, 1818, he visited this country on matters of business; and, having remained here only so long as such business required his presence, immediately returned to France-that nearly the whole of his moveable effects were removed to France, and that, in July, 1817, he purchased a considerable landed estate in that kingdom, and assumed the title of Marquis de Ponte, and continued to occupy that estate till his death, though he had entered into an agreement for the sale thereof a year or two preceding his death-that the said deceased had wholly abandoned all intention of returning to England; and that his sole establishment was in France during the last six years of his life, where he died " a domiciled inhabitant of that country," and that, by reason of the premises, " the personal estate of the said deceased ought to be disposed of according to the laws, customs, and usages prevailing in the kingdom of France, with respect to the personal estate of persons dying domiciled therein." 2. The second article merely pleaded the exhibit No. 1, annexed to the allegation, to be a true copy of the " Royal Ordinance " mentioned in the preceding article. 3. That by the laws, usages, and customs of France, an alien, who shall have established his domicil in France by virtue of a " Royal Ordinance," is entitled to all the civil rights and privileges of a natural-born French subject, during his residence 2ADD.B CURLING V. THORNTON 199 in France-that by the said laws, &c. the personal property of an alien, dying in France so domiciled, is " regulated, disposed of, and distributed" as if the same belonged to a natural-born French subject dying [8] in France; and that the said deceased having died in France, so domiciled therein, his personal estate "is regulated, disposed of, and distributed" in the same manner, and according to the same rules, as if the same had belonged to a Frenchman. 4. That by the said laws, usages, and customs of France, a French or alien so domiciled in France as aforesaid, and dying therein, cannot by will deprive hia lawful widow and child of the whole of his personal property, nor bequeath, to his adulterous offspring and its mother, " an hereditary portion," but, that a will of that tenor i^ by such laws, &c., null aod void, to all intents and purposes whatsoever. 5. That Thomas Thornton, the deceased, left behind him Elizabeth Thornton, widow, his lawful relict, and William Thomas Thornton, his natural and lawful son, a minor-thafc by the will pleaded and propounded in this cause on behalf of the executor the deceased's lawful widow and child are " alraoat wholly " excluded from any stare of the property left by the deceased; and that the same is bequeathed, by the said will, to an illegitimate daughter of the said deceased, and to her mother- consequently, that by the laws of France, the said will is null and void, and that the property in question devolves, by succession, upon the widow and lawful child, the same as if the said deceased had died intestate. 6. That in June last (1823), the said Elizabeth Thornton, widow of the said deceased, applied to the civil tribunal of First Resort for the Department of the Seine, at Paris, for letters of administration of the goods of the deceased in the kingdom of France, as dying intestate by the laws of France, and was [9] opposed in that applica tion by the executor named in his said pretended will (the parties, respectively, in this cause)-that in August, 1823, the president Judge of the said Court, after hearing advocates and solicitors on both sides, adjudged the possession of the personal estate and effecta of the said deceased to his said widow, and constituted her administratrix thereof, provisionally, or pending suit-but that "all questions as to the legality, operation, or effect of the said will, still remain undecided in the said suit, though judgment therein is shortly expected to be pronounced." (a) 7. 8* The 7th article only pleaded the exhibit No. 2 to be an official copy of the proceedings aforesaid in the French court, on the grant of administration, provisionally, or pending auit, ta the widow, and the 8th was the usual concluding...
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