The Duchess Di Sora, - Appellant; A. L. Phillipps and Others, Executors, etc, - Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 28 July 1863 |
| Date | 28 July 1863 |
| Court | House of Lords |
English Reports Citation: 11 E.R. 1168
House of Lords
Mews' Dig. iv. 232; vi. 612; viii. 281, 321. S.C. 2 N.R. 553; 33 L.J. Ch. 129. On point as to construction of foreign contracts adopted in U.S. of America v. McRae, 1867, L.R. 3 Ch. 86; Pickering v. Stephenson, 1872, L.R. 14 Eq. 339.
Foreign Contract - Construction - Foreign Law - Interest - Decree Varied - Costs.
The Duchess DI SORA,-Appellant; A. L. PHILLIPPS and Others, Executors, etc,---Respondents [April 24, 27 ; May 31; June 8, 11, 15 ; July 28, 1863]. [Mews' Dig. iv. 232; vi. 612; viii. 281, 321. S.C. 2 N.R. 553 ; 33 L.J. Ch. 129. On point as to construction of foreign contracts adopted in U.S. of America v. McBae, 1867, L.R. 3 Ch. 86; Pickerings. Stephenson, 1872, L.R. 14 Eq. 339.] Foreign Contract-Construction-Foreign Law-Interest-Decree Varied-Costs. When a contract is made in a foreign country, and in a foreign language, an English Court, having to construe it, must first obtain a translation of the instrument; secondly, an explanation of the terms of art (if any); thirdly, evidence of the foreign law applicable to it; and fourthly, evidence of any peculiar rules of construction which may exist in that law; and must then itself interpret the instrument on ordinary principles of construction. A., the younger of two sisters (the only children of their father), was about to be married. By a pre-nuptial contract executed abroad, where the marriage was to be celebrated, and the parties to it were domiciled, the father agreed to give A. a dowry of 40,000; of which, 20,000 were to be paid within six months after the marriage; the remaining 20,000, divided into two sums of 10,000 each, were made payable, one sum on a given event, the other on the father's death, with power reserved to him to. pay the last-mentioned sum during his life. In the contract he declared his intention to give to A. an equal portion with her sister of what he should leave as residue, and used words which appeared to make it doubtful whether this portion was to be ascertained before or after payment of debts and legacies. By his will he gave legacies to an amount which, with the debts, entirely exhausted what would otherwise have been residue. The final sum of 10,000 was not paid in his life-time. After his death A. filed a bill against his representatives to obtain payment of this sum, and also payment of the share of the residue, calculated on its gross amount before payment of debts and legacies. The Court below held that on the proper construction of the contract this latter claim was unfounded; [625] and, as to this claim, dismissed the Bill with costs, but ordered payment of the 10,000, with interest to be calculated from the period of six months after the father's death: Held, that the Order dismissing the Bill with costs was right, for that the claim was founded on a misinterpretation of the contract made by the Plaintiff, and was not the consequence of any act of the testator, such as ought to make the costs come out of the estate. But the decree was varied so far as related to the interest on the 10,000, which was ordered to be calculated from the date of the father's death. John Talfcot, 17th Earl of Shrewsbury, had two daughters, Mary and Gwendaline, and no other issue. In. the year 1835, the Lady Gwendaline married Prince Borghese, at Rome, on which occasion a " preliminary contract" (afterwards confirmed by a settlement) was executed. The Earl was to give a dowry of 40,000, of which 20,000 were to be paid in six months after the marriage had taken place, with interest in the meantime at 5 per cent.; 10,000 were to become payable on the death of the then Countess Dowager, and the remaining 10,000 were to be paid at the death of the Earl, with liberty reserved to him to pay the same during 1168 DI SORA V. PHILLIPPS [1863] X H.L.C., 626 his life, should he so think fit. The third article declared that " there shall not be any interest payable, except from the periods at which the aforesaid instalments " (the two sums of 10,000 each) " shall become payable," up to the time at which " they shall be really paid." The fifth article was in these words, " Oltre la suddita dote cost costuita, sua Eccellenza il Signor Conte di Shrewsbury assegna, sino da ora, a titolo parimente di, dote, alia Signora sposa una porzione, uguale agli altri eredi in -concorso, nella di lui eredita libera, depwata da debiti e legati, di mi potesse essere gravata al momenta dell' avvocazione." [626] The marriage took place. The only child of it which survived infancy was the Plaintiff, now Duchess of Sora. The Princess Borghese died in October 1840. The Dowager Countess of Shrewsbury died in 1847, whereupon the first of the sums of 10,000 became payable. The Earl did not pay it, but paid interest on it from that time. The Earl made a will, by which he directed his debts, etc. to be paid, and he devised the residue of his estate to two persons in trust, for purposes stated in his will, and which, with his debts, exhausted the residue. He died in November 1852, and thereon the second sum of 10,000 became payable. In 1854, the Plain tiff filed her bill (which was afterwards amended) against the representatives of the Earl, and all other necessary parties, praying that payment of the two sums of 10,000 might be ordered, and also that her rights in respect of the real and personal estate of the late Earl might be ascertained and declared, regard being had to the 5th article of the preliminary contract, etc., and for general relief. In 1858, the Plaintiff filed a supplemental bill, setting forth the preliminary contract, and with respect to the 5th article, praying " that it might be declared, in, the events which had happened, that the Earl assigned, or conveyed and assured, or agreed to assign, convey, and assure to Gwendaline, Princess Borghese, a moiety of the real estate of which he should die seised, and a moiety of his personal estate to which he should be entitled at the time of his death, freed and discharged from all debts due by him, and from all legacies and charges made in his will, or at all events to a moiety of his personal estate, freed and discharged as aforesaid." Answers were put in, and many Italian witnesses were examined on both sides, as to the legal meaning and effect of this fifth article. There was a [627] difference of opinion among them; when the causes came on to be heard, these opinions were all submitted to Vice-Chancellor Wood, and the question was whether the word " de- puiat'i." ought to be applied to " porzione," or to " eredita." Vice-Chancellor Wood discussed this question in a very elaborate judgment, and decided that the word depurata was to be applied to eredita, and dismissed the bill so far as it claimed a moiety of the residue free and discharged from debts and legacies. The decree ordered the payment of the two sums of 10,000 each, and declared that the latter of these sums bore interest, " such interest to be calculated from the 9th 'day of May 1853, being six calendar months after the death of Earl John." Costs were given to the Plaintiff in respect of the payment of these two sums with interest, but, on the claim for the payment of the portion freed from debts and legacies, as to which the bill was dismissed, the Plaintiff was ordered to pay costs. This was an appeal against that decree, and the only questions material for a report were those relating to the manner in which an English judge was entitled and bound to form his opinion: on a case in which the contract itself was a foreign contract to be interpreted according to the foreign law; * the award of costs; and the direction as to the payment of interest. * On this point the joint appendix of the parties stated his Honor thus to have expressed himself in the following terms: " In the first instance some observations were made, I think rather more by the Defendants' counsel than the Plaintiff's, upon the extent to which I ought to pay any attention to the parol testimony in this case. Of course, that some parol testimony must be admitted in a case where the instrument is in. a foreign language, and...
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