Stanley v Bernes
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1830 |
| Date | 01 January 1830 |
| Court | Ecclesiastical Court |
English Reports Citation: 162 E.R. 1190
HIGH COURT OF DELEGATES
Referred to, Moore v. Curt. 356; Croker v. Marquis of Hertford, 1844, 4 Moore, P. C. 339; Anderson v Lanesville, 1854, 9 Moore, P. C. 325; Bremer v. Freeman, 1857, 10 Moore, P. C. 358; Whicker v. Hume, 1858, 7 H. L. Cas. 165; Blaxam v. Favre, 1883, 8 P. D. 104: affirmed 9 P D. 130.
[373] stanley v. bernes. High Court of Delegates, Hilary Term, 1830.-A natural born British subject may acquire a foreign domicil; nor will tie animus reverlendi, and claim to be considered, and treatment as a British subject, preserve his original domicil, and, if domiciled abroad, he must conform in his testamentary acts to the formalities required by the lex domieilu.-The will and first two codicils of a British born subject, resident and naturalized in the Portuguese dominions (the will disposing of effects partly in Portugal and partly in England), executed and purporting to be executed according to the laws of Portugal, but inferring that he considered himself an Englishman, admitted to probate; but two later codicils, fully proved as to capacity and intention, disposing solely of money in the British funds, attested by three witnesses, but not executed, nor purporting to be executed, according to the law of Portugal, refused probate by the Delegates, reversing a sentence of the Prerogative [Referred to, Mooie v. Sudd, 1832, 4 Hagg. Ecc. 352. Applied, De Bonmval v. De Bomieval, 1838, 1 Curt 356; Coimtess ofZichy Feriaris v Maiquis of Hertford, 1843, 3 Curt. 487 : affirmed nomine Craker v. Marquis of Hertford, 1844, 4 Moore, P. C. 33&; Anderson v Laneumlle, 1854, 9 Moore, P. C. 325; Bremer v. Freeman, 1857, 10 Moore, P. C. 358 ; Whicker v. Hume, 1858, 7 H. L. Cas. 165; Bloxam v. Favre, 1885, 8 P. D. 104 : affirmed 9 P D. 130.] On appeal from the Prerogative Court of Canterbury. The deceased, John Stanley, died at Madeira on the 15th of November, 1826, being upwards of eighty years old; Helena Stanley, his widow, since dead, and John Stanley, the party in this cause, his only child, were the only persons entitled, in distribution, if he had died intestate The deceased also left a natural son, Joze Maria Bernes (the other party in the cause), who was married and had five children, and was with his children largely benefited under the testamentary papers propounded. The material parts of the testamentary papers were as follows .- " In the name of God, Amen. 1, John Stanley, born in Ireland, &c. do determine, as my last will and testament, aa follows:-Having been brought up in the religion of the Established Church of England, I intend to die in that religion, and request that my burial may be in the English burying gronnd Having a natural son named Joze Mara Bernes, now one of my family, he living in the same house with me, whose mother, of Pernes in Portugal, died when he was but two years old, and was reared by fioza Maria Joaquina, [374} also now of my family, who, having a niece, I caused her, being reared and educated from a tender age, and that my said natural son should marry her, she having a deal of merit, which in fact he did, and they have now five children. I hereby do acknowledge the said Bernes to be my son, and that his said children are my grand-children, and that they shall be always considered as such, as also any farther children they the aforesaid may have, for inheriting the property of mine, I bequeath them, or may hereafter bequeath them, or as my grandchildren they may come entitled to. That in this consequence I bequeath to my eldest grandson, Joze Joaquim Bernes, 10001. sterling money of Great Britain for himself and his heirs, and to the other four my grand-children 24001. sterling money of Great Britain, being 6001. for each, for themselves and their heirs, with condition, that should they or any of them die minors or unmarried, such part or parts to devolve to the succeeding, my grand-children of said Joze Maria Bernes, and in failure to them living, should the eldest son, Joze Joaquim Bernes, die a minor, and unmarried, the legacy for him is to devolve to the other children aforesaid, and in failure of all the children, then these legacies are to devolve to the father and his heirs. That being under immense obligations to the aunt of said children, say, their mother, Joaquina, for rearing and promoting the education of my said natural son, she also aiding the rearing of my son John Stanley, junior, and being also indebted (ft) The Judges who sat upon this commission were : Mr Justice Gaselee, Mr. Justice Littledale, Mr. Baron Vaughan, Dr. Phillimore, Dr. Gosthng. 3 HACW. BCC. 3?5. STANLEY V. BERNES 1191 for her very great care of my health, to which end she left her country, and came hither with me to take care of me in my old age, serving also as company, these are servioea deserving the most grateful returns: and considering that the [375] house I gave her in Lisbon for her services there does not produce sufficient for her support, I bequeath her 10001. sterling money of Great Britain, understood, the interest arising only during her life-time, and that she continues unmarried, for in such case oJ msp-riage, or she dying, this capital and interest is to devolve to the children of said J. M. BerneS) divided between them, and in failure to him and his heirs. Some transactions with my said natural son, I hereby declare are settled, and that he owes me nothing, and do hereby prohibit and forbid my son Stanley, jun., from investigating any thing relative to said transactions, nor what may concern Joaquma, neither to inquire for any money of any description there may be in the house, which cannot be much, having disposed and invested the same already in bills I sent to England. That-know- ray son J. Stanley, jun., the only child I have surviving of my children in matrimony, I say that know he has very good principles, and will not oppose anything determined by me in my present last will and testament, so as to affect his own character and my memory; moreover, he must have a handsome property of his own, as is learned from existing circumstances regarding him, which have become acquainted with, so as the legacies I bequeath, or may bequeath hereafter, he can well afford However, as I wish to provide and protect my poor family here from ties of blood and gratitude, should it unfortunately happen from being led astray, and instigated by connexions inimical to my family, he has formed, or may form, in such case, as a fine, I bequeath to my said natural son, for nse and benefit of his children, and to be considered their property^ and this to be considered an additional legacy for them. The legacy afore-[376]-said, as a fine, is 30001. sterling money. That from the veracity my son J. Stanley, jun., possesses, he will not deny that a writing I signed in hfe favour ia Lisbon many years ago, making over to him a large part of my property, was purely, and only fictitious, as a kind of a temporary provisional measure, by reason of the French at the time menacing to invade Portugal, conceiving, as being born in Portugal, tbat it may be more respected under his my said sou's name ; moreover, I acquired after a great deal more property now under my name, and solely mine, and this, independant of the large share of even more than half my property, I gave him, by putting it under his name when I intended retiring from Lisbon, which part or half of my property put into his hands is to be understood and considered, and also was his mother's share of the same, according to the laws of Portugal, though no writing was made between she and me to that effect. She laboured for many yeara, and does yet, under a disorder of mental derangement, causing her going to Ireland, where she still remains, and a yearly income established for her support, which my said son was to provide, by my retiring out of a part I gave of my property. 1 had a partnership with my said son several years ago, wherein, for the advantage or poofits arising to him, he has been fully and amply compensated. The income for bis said mother httle exceeded the interest, say, a tenth part of the interest of the property belonging to me, which I gave him as aforesaid, as the state she was and ia in rendered more useless, wherefore all that property becomes his. I repeat again, that am not afraid of the want of candour, veracity, and honour of my [377] said son J. Stanley, jun., as he possesses a great deal; it is only his connexions I fear, that he may be instigated by such, so as to forget the duty and respect due to my memory, and offend hia own character, in which case only the aforesaid fine is established, of 30001. sterling money of Great Britain, and to be applied for a legacy of that sum, I hereby bequeath to my natural son, for use and benefit of his children, as an indemnification for the great vexation such an unjustifiable proceeding may occasion " [He then gives certain powers to his executors as to 20561. lls. Id. Navy 5 per cents., bought for him, and in his name, by Messrs. Campbell, of London : and also 12001. sterling, invested for him, and in his name, by Messrs. Whitmore, of London.] " I hereby provide and determine, that should I outlive my son J. Stanley, jun., I give to Joaquraa, 10001. sterling, independant, and so much more than the legacy I have already bequeathed her, and to be for herself and her heirs. To my natural son, for use and benefit oi his children, three-fourths of my said property, and to devolve, in failure of them, to himself and his heirs. To my brother, William, for himself during his life only, and to devolve to the legitimate children he may have in matrimony, the remaining one-fourth part of my aaid property; but in case of failure, or by hia 1192 STANLEY V. BERNE8 3 HAGG. ECC 378 death, to devolve to my natural son, for use and benefit of his children, and in case of failure of them to himself and his heirs. The residue of my...
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