Re Martin. Loustalan v Loustalan
| Jurisdiction | England & Wales |
| Date | 1900 |
| Court | Court of Appeal |
Private International Law - Will in French Form - Movable Property in England - Domicil - French Subjects - English Marriage - Husband and Wife - Change of Domicil - Intention - Revocation of Ante-nuptial Will - Matrimonial Law - Testamentary Law -
An unmarried Frenchwoman resident in England executed a holograph will in French and valid according to French law. Subsequently she set up a business in England and married there, according to English law, but without any settlement, a French refugee who had come over to escape a sentence of imprisonment passed on him by the French Court. After the marriage the business was continued by the husband and wife jointly, the husband taking in his own name leases of the business premises. About two years after the expiration of the period of prescription under the French law, the husband sold his interest in the business to his wife, assigned the leases to her, and returned to France and took up his permanent abode there. The wife remained in England and continued carrying on the business until her death:—
Held, by Rigby and Vaughan Williams L.JJ. (Lindley M.R. dissenting) that the domicil of the husband, and consequently of the wife, at the time of the marriage was English, and, therefore, that the question of validity of the ante-nuptial will was governed by English and not by French law, so that the will was revoked by the marriage.
Per Lindley M.R.: Sect. 18 of the Wills Act, 1837, does not apply to the wills of foreigners domiciled abroad.
Per Vaughan Williams L.J.: The rule of English law which makes a woman's will null and void on her marriage is part of the matrimonial law, and not of the testamentary law.
Change of domicil by evidence of intention, as affecting the status of husband and wife, discussed.
BY this action Marie Loustalan claimed probate of the will of her sister, Catherine Euphrasie Martin, otherwise Guillard, a married woman, deceased, as contained in a notarial copy, the will being executed according to French law, and expressed in the French language.
In 1870 the testatrix, who was a Frenchwoman, being then in England unmarried and in the domestic service of an English family, made the will in question. It was a holograph will, was dated January 16, 1870, and was in one of the forms recognised as valid by the law of France, but was not attested as required by English law. Thereby the testatrix, after stating that she was residing in England, and bequeathing some small charitable legacies, bequeathed the rest of her property to her sister, the plaintiff. The will was transmitted to her sister in France, who deposited it with a notary, in accordance with French law and custom. At the date of the will the testatrix was possessed of little or no property beyond small savings from her wages; but she was, at that time, entitled to the greater part of a sum of 3000 francs, due to her from her brother, Jean Loustalan, out of the proceeds of her share of their father's estate. Whatever was due to the testatrix was subsequently remitted to her in England, where she remained until her death.
In or prior to 1874 she left domestic service, came to London, where she established a laundry business in the Edgware road, and in that year married a French refugee, Louis Guillard, but known in London by the name of “Martin,” who was then about fifty-one years old. It appeared that Guillard, who had been practising in France as a professor of French, had fled to Belgium to escape prosecution for an offence alleged to have been committed by him in connection with his professorship. In his absence he was convicted and sentenced by the French Court to ten years' imprisonment, and in 1868 or 1869, subsequently to the date of his conviction, he came over from Belgium to England.
The marriage was celebrated in London by a French Roman Catholic priest in a Roman Catholic church in the presence of a registrar. No marriage contract or settlement was entered into, but the husband and wife signed a declaration that they were both “domiciliés à Londres.” After the marriage the husband, who had previously, since coming to England, been earning his living as a teacher of French, and had in so doing saved a little money, joined his wife in carrying on and extending the laundry business, both of them contributing towards the capital and dividing the profits in equal shares. In 1881, 1884, and 1888 leases of ground and houses in connection with the laundry business were granted to the husband; but in 1890, the period of prescription of twenty years under French criminal lawF1 having run out, he separated from his wife and returned to France, where he remained and was still living. At that time he was about sixty-seven years of age, and he stated as his reason for leaving England that he was suffering from bad health. Before leaving England he assigned the leases of the laundry to his wife, and made over to her the whole of his interest in the business and premises for a sum then paid by her to him, and she signed, at his request, a document purporting to renounce all claims she might have, as his wife, upon him or his estate at any time. The husband, however, declined to sign a renunciation in respect of any rights he might have in the laundry business or other property of his wife in case she should die before him.
In October, 1890, after his return to France, the husband executed a formal document in connection with a certain mortgage, and in that document he described himself as “Commerçant, demeurant à Londres.” He had no employment or business in France, but he bought property there, and, later on, after travelling about France, he, in 1892, took up his residence with his sister, who had a house at or near the place of his domicil of origin — Vigneux, near Pau, in the arrondissement of St. Nazaire, where he was still living. His family, it appeared, had been peasants living on a farm at Vigneux.
In January, 1895, the testatrix, who had continued to carry on the laundry in London, died in a fire which occurred at the business premises, where she was residing.
Her next of kin were her sister, the plaintiff, and her brother, Jean Loustalan, and, as it was believed she had died intestate, the brother took out letters of administration in England to her estate, the husband renouncing.
Subsequently the sister propounded the will of 1870, claiming a grant of administration with the will annexed, and asking that the letters of administration granted to the brother should be revoked.
Proceedings were also taken by the plaintiff, the sister, in the French Courts, first at Pau, the district in which Sendets, the deceased's place of origin, was situated; and, afterwards, at St. Nazaire, the Court having jurisdiction over Vigneux, Guillard's domicil of origin and his alleged present domicil. Those proceedings were ex parte, and resulted in a decree being made on October 23, 1896, substantially to the effect that the sister was entitled to take possession of the property of the deceased, the Court treating the will as valid.
The brother, the defendant in the present action, opposed the will on various grounds, and asked the Court to pronounce against it and to confirm the grant of letters of administration which he had obtained. In regard to the proceedings and decrees in the French Courts, which the plaintiff set up in bar, the defendant pleaded that they were not binding upon him, inasmuch as he had no notice of them, at any rate until afterwards.
The probate action now came on for trial. The questions were: (1.) What was the domicil of the testatrix at the date of her death: (2.) Whether the marriage was celebrated according to English matrimonial law, or according to the French matrimonial régime; and (3.) Whether the will was revoked by the marriage.
G. I. F. C.
Costelloe, for the plaintiff.
Inderwick, Q.C., and Durley Grazebrook, for the defendant.
THE PRESIDENT, in giving judgment on the first point, found, as a fact, that, the domicil of the testatrix being that of her husband, the domicil of the husband of the testatrix at the date of her death was in France. In arriving at this conclusion, his Lordship said that they started with an undoubted domicil of origin in France, and the question was whether that was changed. In the first place, why did Guillard leave France? He left because he could not help it. Next, it was not very important that he fled first to Belgium, but from his coming to England shortly afterwards one could not draw any inference of intention to abandon his domicil of origin, though, when in England, he did several things which possessed considerable weight: he married here; and he did not register his marriage in France as he would probably have done if he had intended to return to France. But he did more: he took leases of ground and houses in 1881, 1884, and 1888. He took them in connection with the business of a laundry. At the time of his marriage, both he and his wife were described as “both domiciled in London,” but mere description was not strong evidence of domicil, especially in view of the fact that he dared not return to France. It was, in the next place, material to see at what time he returned to France. If he had gone back as soon as ever the period of prescription expired, that would be strong presumptive evidence that he did not intend to stay in England longer than he could help. It was, however, tolerably clear that he did not go back to France as soon as he could; and, further, when he did go back, he gave, as his reason for doing so, the bad health he was suffering from here. When he went back to France, no doubt he stayed there, but there was not...
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