Doucet v Geoghegan
| Jurisdiction | England & Wales |
| Year | 1877 |
| Date | 1877 |
| Court | Court of Appeal |
Domicil - Change of Original Domicil - Permanence of Residence - Declarations of Intention.
The testator in the suit was a Frenchman, but had lived twenty-seven years in England, during the greater part of which time he was a partner in an English house of business, paying occasional visits to France. He married successively, in English churches, two wives, who were Englishwomen and Protestants, though himself a Roman Catholic, and his children were brought up in England as Protestants. He made his will in the English form, and left his property in a manner inconsistent with French law. Upon an action to establish a French domicil, numerous witnesses deposed that he had made various parol declarations that he intended to return to France when he made his fortune. It was also proved that he always refused to be naturalized in England, and would not take a lease of more than three years of his house:—
Held (affirming the decision of Malins, V.C.), that the acts of the testator manifested an intention to acquire an English domicil; and that his declarations of intention to return to France when he had made his fortune were not sufficient to rebut the conclusion to be derived from the facts of his life, especially of his English marriages.
THIS action was brought by Adèle Doucet, the widow of the testator. Francois Eugène Doucet, against William Joseph Geoghegan, the executor of his will, and Michael John Geoghegan, the testamentary guardian. The testator was by birth a Frenchman, but lived and carried on business for many years before his death in England. His will was made in England, and was dated the 25th of November, 1872, and thereby he appointed William Joseph Geoghegan, and Frederick Allen executors and trustees; and after bequeathing certain pecuniary and specific legacies, he gave and bequeathed to his trustees all his capital invested in the business theretofore carried on by him, and all his share and interest in th same business, and all the rest of his property, upon trust for sale and conversion, and to stand possessed of the proceeds upon trust as to one moiety for his children as therein mentioned, and as to the other moiety upon trust to pay the annual produce thereof to the Plaintiff during her widowhood, and after her decease or remarriage, which should first happen, upon trust for his children in the same manner as thereinbefore directed with respect to the other moiety. And in the event of there being no child who should attain a vested interest, in trust for the Plaintiff for life, and after her death upon trust for his sister Clemence, the wife of Auguste Duclerc; and the will contained powers of advancement and maintenance for the benefit of the children during minority. And after expressing a desire that his children should be brought up in the Roman Catholic faith, he with that object nominated and appointed the above-named Defendant, Michael John Geoghegan, a Roman Catholic, guardian of his children during minority, and requested and empowered him to take upon himself all the necessary duties of the guardianship for the purpose aforesaid. The testator left the Plaintiff, his widow, and three children by her, him surviving; all of whom were infants. Frederick Allen renounced and disclaimed the executorship and trusteeship of the will, and the same was proved on the 8th day of January, 1875, by the Defendant W. J. Geoghegan alone.
The Plaintiff contended that F. E. Doucet was a domiciled Frenchman, and that the validity of the will, the administration of his estate, the rights of the Plaintiff and her children in that estate, and the right of the Plaintiff to the guardianship of her children, were respectively governed by the law of France; by which the Plaintiff, as the widow of a Frenchman, was entitled to one moiety of the real and personal estate of which he died possessed unfettered by any trust, and his children were in like manner entitled to the other moiety. By the same law the Plaintiff as such widow was entitled to the guardianship and education and bringing up of her children by her deceased husband, free from the control of the Defendants, or either of them, or of any third person. There were several other particulars in which the will was inconsistent with the law of France.
The Plaintiff claimed that it might be declared that the estate of F. E. Doucet ought to be administered according he the intention France; and that his will was null and void so far as it was in any particular in contravention to the law of France relating to the wills of Frenchmen.
The facts proved in the case, and which were common to both sides, were as follows:— The testator was by birth a Frenchman, and was born in 1820. He resided in France till he was twenty-seven years of age. His father was a shirt-maker in Paris, and he was brought up with a knowledge of that business. For seven years he was in the French army. In the year 1847 he came to England and became assistant in a hosier's shop. In 1851 he entered into partnership in the hosiery business with a Mr. Barlow, the partnership deed being drawn in the French language, and with the sanction of his father. On the 17th of September, 1852, he married his first wife, an English lady, who died on the 3rd of October, 1853. She was of the Protestant religion, and the marriage took place in an English church, according to the Protestant form, and the testator, who was brought up in the Catholic religion, always allowed her, without any interference on his part, to practise her own religion. On the 1st of September, 1853, just before the death of his first wife, he entered into partnership with the Defendant, W. J. Geoghegan, as hosiers, and the business was carried on in Regent Street, under the style of “Geoghegan & Doucet.” At the expiration of ten years, that is, in 1863, this partnership was renewed for ten years longer.
On the 5th of January, 1856, the testator married, in an English church, his second wife, the Plaintiff, who was also a Protestant, her father being French and her mother English. The testator did not on the occasion of this or of his former marriage conform to the formalities which are required by the French law for the legalization of marriages of Frenchmen in a foreign country. During the whole period of the marriage the Plaintiff continued in the Protestant religion, and was a regular attendant at the Established church.
There was no child of either marriage until 1861, when a son was born, and upon that occasion the Plaintiff, at the urgent request of the testator, and in order to please his father and mother, allowed the son to be baptized in the Catholic form, but from that time to the death of the testator the son was brought up as a Protestant, and regularly attended a Protestant church with his mother. There were two other children born subsequently, both being girls, who were baptized in the Protestant form, and were brought up in the Protestant religion. No objection was raised by the testator during his life to any of his children being educated as Protestants, and he himself only attended a Catholic church upon one occasion during the period of his residence in England.
In the year 1869 the house of Geoghegan & Doucet established a branch business in Paris, which lasted till the year 1874.
In the year 1870, the partnership between the testator and William Geoghegan having then three years to run, was renewed for another period of ten years. The testator's share of the profits amounted, during the latter years of the partnership, to about £1500 per annum. Of this sum he drew out about half for his personal expenses, and the remainder was allowed to remain as part of the capital of the business, so that the capital of the testator at the time of his death amounted to nearly £8000. When the testator first married the Plaintiff, they lived over the business premises in Regent Street, they afterwards removed into lodgings in Bentinck Street, where they resided between eleven and twelve years, and then the testator took a lease for three years of a house in Albion Road, St. John's Wood, in which he lived until his death, which took place on the 17th of June, 1874.
The evidence of the witnesses, who were examined in Court, in support of the Plaintiff's case, and in favour of a French domicil, was to the following effect:— The Plaintiff, Madame Doucet, deposed that the testator always and continuously expressed an intention of returning to live in France when he had made sufficient money to enable him to do so. He refused to purchase a house or to take a longer lease than three years, because it would interfere with his returning to France. He always desired to improve the branch business in Paris, which would enable him to live there, and to establish his son in that business. After being taken ill, he was still more anxious to return to France, because he thought his native air would improve his health. He said in confidence that he should not tell the Geoghegans that he intended returning to France. He went to Paris two or three times a year, and remained there two, three, and four weeks at a time. The Plaintiff usually went with him once every year. He was always fond of France, and used to point out to her the advantages of living there. He refused to be naturalized in England, and often spoke of the advantage he derived in being a Frenchman, as it exempted him from serving on juries. Before her marriage the testator promised her in the presence of her father and mother that all her children should be brought up in the Protestant religion, and it was in consideration of that promise that she married him. The eldest son was baptized by a Catholic priest to please the testator's father and mother, and at his urgent request, but from that time he never interfered...
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