De Nichols v. Curlier

HOUSE OF LORDS

[1900] 1 A.C. 21

CELESTINE DE NICOLS, APPELLANT; AND CURLIER AND OTHERS, RESPONDENTS

DATE: Dec. 15, 1899

COUNSEL: E. J. Elgood and F. J. Maugham for the executors.
Graham Murray (Lord Advocate) in reply.

SOLICITORS: For appellants: Hicks, Arnold & Mozley.
For respondents: Tyrrell Lewis, Lewis & Broadbent.

JUDGES: EARL OF HALSBURY L.C., LORD MACNAGHTEN, LORD MORRIS, LORD SHAND, LORD BRAMPTON.

HEADNOTE: Domicil - International Law - Marriage - Matrimonial Domicil - Movable Goods - French Law - Community of Goods.

A Frenchman and Frenchwoman married in France without any contract, so that according to French law their rights inter se as to property were subject to the law of community of goods. They came to England and were permanently domiciled there. The husband became a naturalized British subject, amassed a large fortune and died in England, leaving his wife surviving and having made an English will by which he disposed of all his property:-

Held, that as to movable goods the rights of the wife under the French marriage law as to community of goods were not affected by change of domicil, and that the widow was entitled to the share of her husband’s personal estate to which she would have been entitled if they had remained domiciled in France.

The decision of the Court of Appeal, [1898] 2 Ch. 60, reversed and the decision of Kekewich J., [1898] 1 Ch. 403, restored.

Lashley v. Hog, (1804) 4 Paton, 581, [2 E.R. 1278,] distinguished.

THE appellant married De Nicols in France in 1854. Both were French and they married without any “contrat de mariage” or instrument in writing, so that by French law their rights as to property were governed by the rules of “communautĖ(c) de biens.” In 1863 they came to England with about 400l., and became permanently domiciled in London. In 1865 the husband became a naturalized British subject, and having amassed a large fortune at the CafĖ(c) Royal, Regent Street, died in 1897, having by an English will left his property to his executors upon certain trusts for the benefit of his wife and after her death of his daughter and her children, who were respondents.

The appellant having taken out an originating summons the question for decision was whether the change of domicil altered the legal position of the appellant and her husband in reference to property. It having been agreed to confine the [*22] argument for the present to the personal property, Kekewich J. made an order declaring that without prejudice to any question raised by the rest of the summons the change of domicil did not affect the respective rights of the spouses under the French or matrimonial domicil in and to the movable property acquired by them or either of them during their joint lives after such change. (1)

This decision was reversed by the Court of Appeal (Lindley M.R., Rigby and Collins L.JJ.). (2) The widow appealed.

June 23, 27; July 3, 10. Graham Murray (Lord Advocate)and Westgate Q.C. (Renshaw Q.C. and Ingle Joyce with them) for the appellant. Upon principle and reason the appeal presents little or no difficulty. It is admitted that if there had been an express ante-nuptial contract for community of goods the change of domicil would have made no change in the rights of property. Then why in the absence of an express contract should a contract be implied to change the rights? By French law the change of domicil did not dissolve the community or impair the wife’s vested right. No such effect of a change of domicil was contemplated by the husband or the wife. It would not be just that a change of domicil which lies in the husband’s sole power should deprive the wife of her rights. A change of domicil can at the most affect only the right of succession to the husband’s property: it cannot touch the wife’s right of property. In the present case no question of succession arises. Neglect of this distinction leads to confusion and error; as it did in Lashley v. Hog. (3) There the point was one of succession; it has no bearing on the present point. Lord Eldon’s language and reasoning are at times inaccurate and confused; but so far as concerns the present point they are merely dicta. For the decision of this appeal the view taken by the French Courts of the French law is enough. [See Sirey’s summary, cited in Lord Macnaghten’s judgment.]

Dicey Q.C. and Whinney for the respondents other than the

[*23] executors and trustees. It is true that if there had been an express contract before marriage for community of goods the respondents would have been in the wrong; but the absence of that contract makes all the difference. There is no room or reason for an implied contract that community shall prevail after a change of domicil. According to the principles of English law and of private international law as administered in the English courts the wife’s rights in the unsettled movable property acquired during the coverture by the husband change with the change of domicil: Lashley v. Hog (1) is an authority for this; and the preponderating view of English and other authorities and text-writers is to the same effect. This is clearly the law as to immovables. Why should it not prevail as to movables? There is no reason why change of domicil should not alter rights of property as it undoubtedly does rights of succession.

E. J. Elgood and F. J. Maugham for the executors.

Graham Murray (Lord Advocate) in reply.

[The arguments and authorities (English, Scottish, American and Continental) upon private international law are clearly and fully set forth in the report below. (2) They need not be repeated here. The judgments in this House do not turn upon them or discuss them.]

The House took time for consideration.

Dec. 15. EARL OF HALSBURY L.C. My Lords, it is not necessary to state with great minuteness how the question in the present appeal arises. It is enough to say that two French subjects were married according to the laws of France on May 30, 1854. No marriage contract or instrument in writing was executed by either of the parties. The parties lived together, and in the year 1863 they came to England, and in the year 1865 the husband obtained the status of a naturalized British subject.

The whole dispute turns on the question whether the changed domicil and naturalization of the husband affected the wife's

[*24] rights so as to give the husband the power to dispose of all the movable property by will instead of being restricted to the power of disposing of only one-half of it, as he undoubtedly would have been so restricted by the French law if the French law is decisive of the question.

The parties, as I have said, were married according to French law, and the first thing to do is to see how the matter would be dealt with in respect of such a marriage by the French law. There is no real conflict between the learned persons who have given evidence on this question. One of them indeed, besides giving evidence as to what the French law is, upon which he is an authority entitled to respect, has also gone on to express an opinion upon how that law should be treated in this country, upon which subject he is no authority at all; and indeed such a question is not the subject of evidence at all, but pure matter of English law for English Courts to decide.

The law of France as applicable to the matter now in debate is deposed to by M. Paul Lax, a Licentiate of Law in the University of France, an advocate who has practised in the Court of Appeal in Paris, and his evidence upon the subject is not really questioned by the gentlemen on the other side. M. Lax says: “2. According to the law of France and in particular arts. 1393 and 1401 of the Code Civil parties having intermarried without entering into a formal pre-nuptial contract are governed so far as their present and after-acquired property is concerned by the legal system of community of goods as defined by arts. 1401 to 1496 in Title V. of the same Code, which title is headed 'Du Contrat de mariage et des droits respectifs des Ė(c)poux.' 3. The husband and wife having so intermarried without entering into a pre-nuptial contract in writing are placed by the sole fact of the marriage and stand exactly in the same position in all respects as if previously to their marriage they had in due form executed a written contract and thereby adopted as special and expressed covenants all and every one of the provisions contained in arts. 1401 to 1496 above referred to. 4. Subject to the exceptions specified in the next following paragraph the community of goods includes (1.) all personal property belonging to the husband and wife at [*25] the date of the marriage or having devolved upon either of them during coverture; (2.) all interest or income of whatever nature and source accrued or received during coverture; (3.) all real estate acquired during coverture (art. 1401 Code Civil). 5. Real estate possessed by either spouse at the time of the marriage or that may during coverture devolve upon him or her by way of inheritance gift inter vivos or will exclusive of real property acquired during coverture by any other means whatever does not become common property but remains the separate property of the spouse so possessing the same or upon whom the same has so devolved and any real estate is deemed to be common property unless it is clearly proved that either husband or wife possessed the same previous to the marriage or become entitled to it during coverture by way of inheritance, gift inter vivos, or will as aforesaid (arts. 1402 and 1404 Code Civil). 6. The administration of the common property belongs to the husband alone who may sell deal with and mortgage the same without the wife’s concurrence (art. 1421 Code Civil). The common property real as well as personal stands or is invested in the name of the husband alone. 7. In the case of a legal community of goods any trade or business carried on either by the husband alone or by the husband and wife jointly is necessarily carried on for the account and benefit or at the risk of the community of goods. The whole assets of the said community, also the husband’s separate real estate if any and the husband himself personally in infinitum are liable for the debts of such trade or business the wife not being liable for the same except to the extent of her share in the common property. The name of the husband alone appears in the firm or style of any trade or business carried on as aforesaid. 8. In case any real estate which remains the separate property of either spouse has been disposed of and the purchase consideration has not been reinvested in the name of the one to whom such real estate belonged but has been merged in the common property the spouse whose separate property the real estate so disposed of was is on the winding-up of the community of goods preferentially entitled to receive out of the common property the amount of the purchase consideration referred to (art. 1470 Code Civil). [*26]

9. The community of goods when once constituted between husband and wife and whether created by an instrument in writing or by the operation of arts. 1393 and 1400 of the Code Civil cannot cease or be determined by mutual consent or by any cause or event whatever except the following that is to say: (1.) Decease; (2.) Divorce; (3.) Judicial Separation; (4.) Separation of estates decreed by a competent court of justice.”

If this is the law by which the matter is to be governed, it cannot be denied that the appellant here must succeed, and it is a little difficult to understand upon what principle contracts and obligations already existing inter se should be affected by an act of one of the contracting parties over which the other party to the contract has no control whatever. And indeed, it is not denied that if, instead of the law creating these obligations upon the mere performance of the marriage, the parties had themselves by written instrument recited in terms the very contract the law makes for them, in that case the change of domicil could not have affected such written contract. I am wholly unable to understand why the mere putting into writing the very same contract which the law created between them without any writing at all should bar the husband from altering the contract relations between himself and his wife; when if the law creates that contract relation, then the husband is not barred from getting rid of the obligation which upon his marriage the law affixed to the transaction.

A written contract is after all only the evidence of what the parties have agreed to, and it would seem to be of no superior force as evidencing the agreement of the parties than a known consequence of entering into the married status. I not only do not understand, but I should decline to assent to any such view, unless I am compelled by authoritative decision or statute to adopt a view which to my mind is so entirely unreasonable. And it does not appear to me that any Court before whom this question has come would disagree with me as to its being unreasonable.

The Master of the Rolls himself says: “It is not altogether satisfactory to hold that a change of domicil cannot affect [*27] an express contract embodying the law of the matrimonial domicil, but that a change of domicil does affect the application of that law if not embodied in an express contract.”

My Lords, I should think that, in order to be binding on your Lordships, a previous decision must be in principle, and, as applicable to the same circumstances, identical; and it appears to me that the case by which the Master of the Rolls thought himself bound ( Lashley v. Hog (1)) is quite distinguishable both in principle and in circumstances.

To omit other questions, the cardinal distinction between the French and the Scottish law is not, I think, without an important bearing upon the very question in debate, and I think it may be stated shortly thus: If the wife by the marriage in Scotland acquired no proprietary rights whatever, but only what is called a hope of a certain distribution upon the husband’s death, it is intelligible that that right of distribution, or by whatever name it is called, should be dependent upon the husband’s domicil, as following the ordinary rule that the law of a person’s domicil regulates the succession of his movable property. But if by the marriage the wife acquires as part of that contract relation a real proprietary right, it would be quite unintelligible that the husband’s act should dispose of what was not his; and herein, I think, is to be found the key to Lord Eldon’s judgment. He says (2): “The true point seems to be this, whether there is anything irrational in saying that as the husband, during the whole of his life, has the absolute disposition over the property, that as to him, whom the policy of the law has given the direction of the family as to the place of its residence, that he who has therefore this species of command over his own actions, and over the actions and property which is his own, and which is to remain his own, or to become that of his family according to his will - why should it be thought an unreasonable thing, that, where there is no express contract, the implied contract shall be taken to be that the wife is to look to the law of the country where the husband dies for the right she is to enjoy in case the husband thinks proper to die intestate.”

[*28] It will be observed that the whole point of what Lord Eldon argues is that the whole of the property, apart from express contract, is absolutely and entirely the husband's, and that as by law he can dispose of it as he will, it is not unreasonable that he should be at liberty to do something which by its legal effect will change what I think are inaccurately described as the rights of the wife, but are accurately described as what would have been the rights of the wife if no change had taken place, because in substance she has until the husband’s death no rights at all.

Doubtless it is true that, according to the authorities on Scottish law, the right of the wife is no right at all in its strict sense. When speaking of the jus mariti it is described as a legal assignation to the husband, and, in commenting on this authority, the late Mr. Fraser, while at the Scottish Bar, in his book on the Law of Husband and Wife, 2nd ed. vol. i. p. 677, says: “At a very early period of our law, the distinction between the two rights was recognised. The right of administration was regarded as being nothing more than its name imports - a right of administering the property of the spouses; while the jus mariti was something separate and superior, its purpose being to transfer the property from one spouse to the other. The distinction is settled and taken in a number of cases ranging from an early period to the present time, and has not been so clearly marked in some institutional works, solely from the desire of the writers to reconcile it with the notion of an absolute veritable communio” .... “The distinction is thus stated in argument in the Session Papers of Gowan v. Pursell : The jus mariti over the movables is a right during the existence of the marriage of absolute property. The husband may sell, or squander, or wastefully destroy the movables that fall under communion.” How different the position of the wife is under the French law is sufficiently indicated, in contrast to the above extract, by s. 1443 of Code Civil, which enacts that: “1443. A separation of property can only be judicially sued for by the wifewhose dowry is in danger, and when the disorder of the husband’s affairs is such that there is reason to fear that his [*29] property will not be sufficient to satisfy the wife’s rights and claims. Any voluntary separation is void.” And if the propositions are put shortly - that the wife acquires no proprietary rights by marriage under the Scotch law at all, but under the French law acquires a real proprietary right, the distinction between the two systems is evident enough. The communio bonorum in Scotland is a mere fiction. In France it is a reality, and in England, as the Master of the Rolls says, the parties to the litigation now being discussed, Mr. and Mrs. Hog, were both English, married in England, where her unsettled property, existing and after acquired, became the property of Mr. Hog by the mere fact of the marriage, and gave Mrs. Hog no proprietary right whatever to the movable property in question.

Once it is admitted that the marriage gives a proprietary right (and therein is the importance of the distinction Lord Eldon took between what was inaccurately argued in that case as a proprietary right conferred by the fact of marriage and a real proprietary right conferred by specific contract), the anomaly pointed out by the Master of the Rolls and sought to be explained becomes at once intelligible. It is only material as illustrating what was the prevailing train of thought in the minds of Lord Eldon and Lord Rosslyn. Both of them speak of the words “implied contract,” by which I presume they mean implied from the relation of husband and wife, and not unnaturally they deduce the conclusion that if it is implied from that relation only the husband’s change of domicil may bring with it the consequential change from such relation.

Here, however, as I have endeavoured to point out, the French marriage confers not only an implied but an actual binding partnership proprietary relation fixed by the law upon the persons of the spouses, the binding nature of which, it appears to me, no act of either of the parties contracting marriage can affect or qualify.

I can only account for the absolutely inaccurate use of the Scottish term jus relictĖ_ as arising from a reference to a dispute that appears to have existed in the Scottish authors as [*30] to whether those rights flowed from the communion, whereas, to quote again from Mr. Fraser’s book, p. 671, where he says: “It has been found in accordance with the opinions of the French commentators, of Dirleton, and other lawyers of our own country, that the jus relictĖ_ and legitim are in all respects the same, that they are mere casual contingent rights during the subsistence of the marriage, existing then only in hope, and coming into proper rights merely at its dissolution,that they are not rights of division of a fund already held in common, but rights of debt against the husband’s executors, constituting the widow and the children creditors, whose right comes into being by the husband’s death, and secondary creditors too, for all other debts must be paid before theirs.”

It is, therefore, as I understand, that when once Lord Eldon came to the conclusion that the husband and wife had become Scottish domiciled spouses, the property not affected by a previous complete and irrevocable right would properly be distributed according to Scottish law.

It follows, therefore, if I am right, that that case is not binding on your Lordships, and that we are at liberty to decide the question now in dispute in accordance with reason and common sense.

I therefore move your Lordships that the order appealed from be reversed, and that in respect of costs, as I understand this is only one question in the summons which comprehends other questions also in debate, the costs of this appeal should be costs in the summons.

LORD MACNAGHTEN. My Lords, in 1854 Mr. De Nicols, the testator, and the appellant, who is now his widow, intermarried in Paris. They were both French by birth and both domiciled at the time in France. They married without a contract of marriage, and consequently under the law of France they became subject to the system of community of goods.

In 1863 Mr. and Mrs. De Nicols left Paris and came to London. They acquired an English domicil, and in 1865 Mr. De Nicols obtained a certificate of naturalization in this country. From that time forward their residence in England [*31] was continuous. Mr. De Nicols became a restaurant proprietor in London. He was successful in business, and amassed a large fortune consisting of both movable and immovable property.

Mr. De Nicols died in February, 1897, having made a will in the English form and language.

The question for your Lordships’ consideration is whether Mr. and Mrs. De Nicols continued subject to the system of community of goods after they became domiciled in England. On the one hand it is contended that the change of domicil from French to English destroyed the community altogether, and, therefore, that the testator’s will operated upon the whole of the property vested in him which, but for that change, would have been common. On the other hand it is said that the community continued notwithstanding the change of domicil, and that Mr. De Nicols remained bound by the article of the Code Civil, which provides that a testamentary donation by the husband cannot exceed his share of the community.

If the case were not embarrassed by the judgment of this House in Lashley v. Hog (1), which was discussed so fully at the bar, it would not, I think, present much difficulty.

Putting aside Lashley v. Hog (1) for the moment, the only question would seem to be what was the effect according to French law of the marriage of Mr. and Mrs. De Nicols without a marriage contract? Upon that point there cannot, I think, be any room for doubt. It is proved by the evidence of M. Lax, the expert in French law called on behalf of the appellant, that, according to the law of France, a husband and wife intermarrying without having entered into an ante-nuptial contract in writing are placed and stand by the sole fact of the marriage precisely in the same position in all respects as if previously to their marriage they had in due form executed a written contract, and thereby adopted as special and express covenants all and every one of the provisions contained in arts. 1401 to 1496 in Title V. of the Code Civil, headed “Of Marriage Contracts and the respective rights of spouses.”

In support of this conclusion, M. Lax refers to the relevant

[*32] articles of the Code and to a decision of the highest authority pronounced by the Cour de Cassation in January, 1854. The case as reported by Sirey presents the argument so clearly and so concisely that I may be pardoned for referring to it more in detail. The summary in Sirey’s Reports is as follows:- “(Tables GĖ(c)nĖ(c)rales [Contrat de Mariage] paragraphe 8.)” “The conjugal association as to property once formed at the time of the marriage by the operation of the law of the domicil or nationality of the husband cannot be altered later on either by a change of nationality or by the acquisition of a new personal domicil subsequently to the marriage.” The case was this: An Englishman and an Englishwoman, a Mr. and Mrs. Boyer, were married in England without any settlement. Afterwards they went to France and jointly acquired immovable property there. The husband became a French citizen. The wife died first. On her death duty was demanded and paid on one-half of the property as having devolved upon her children as her next of kin. An action was brought for the return of the duty. The tribunal of Lille ordered repayment, holding that “the matrimonial compact in respect of property is as immutable as the marriage itself, of which it is an accessory.” The revenue authorities appealed. The Cour de Cassation affirmed the decision. They founded their judgment upon their view of English law, which seems right enough, and upon the following considerations - that “the rule of the marriage of the spouses Boyer has followed them to France when they went there to settle and there acquired property,” and that “the said rule has the same force as if a formal contract had been entered into between the said spouses for the regulation of their fortune.”

Although this reasoning may not seem quite in accordance with the opinion which Lord Eldon expressed in Lashley v. Hog (1) as to the effect of an English marriage without a settlement, it indicates, I think, the view which, according to French law, would be taken of the compact as to property constituted by a French marriage under the Code Civil without an ante-nuptial agreement.

[*33] The expert who was called on behalf of the executors does not attempt to contravene this conclusion of law. He endeavours to minimise its effect by treating it as a self-evident proposition - as in fact being nothing more than what the Code declares. He adds, however, that in his opinion the effect of a change of domicil or nationality upon the community system was never considered by the framers of the Code. That may be so. But if there is a valid compact between spouses as to their property, whether it be constituted by the law of the land or by convention between the parties, it is difficult to see how that compact can be nullified or blotted out merely by a change of domicil. Why should the obligations of the marriage law, under which the parties contracted matrimony, equivalent according to the law of the country where the marriage was celebrated to an express contract, lose their force and effect when the parties become domiciled in another country? As M. Lax points out, change of domicil and naturalization in a foreign country are not among the events specified in the Code as having the effect of dissolving or determining the community. Let us suppose a case the converse of the present one. Suppose an Englishman and an Englishwoman, having married in England without a settlement, go to France and become domiciled there. Suppose that at the time of the acquisition of the French domicil the husband has 10,000l. of his own. Why should his ownership of that sum be impaired or qualified because he settles in France? There is nothing to be found in French law, nothing in the Code Civil, to effect this alteration in his rights. Community of goods in France is constituted by a marriage in France according to French law, not by married people coming to France and settling there. And the community must commence from the day of the marriage. It cannot commence from any other time. It appears to me, therefore, that the proposition for which the executors contend cannot be supported on principle. That, I think, was the view of the Court of Appeal. But they considered that the judgment of Lord Eldon in Lashley v. Hog (1) compelled them to decide in favour of the executors. Mr. and Mrs. Roger Hog, an

[*34] Englishman by domicil and an Englishwoman, intermarried in England without a settlement. Mr. Hog made a fortune in England, settled in Scotland and became domiciled there. After this change of domicil the wife died in the lifetime of the husband. Some years later the husband died a domiciled Scotsman. There was a good deal of litigation as to the administration of Mr. Hog’s estate, and there were appeals to this House. In one of these appeals, among other things, this House determined that Mrs. Lashley, who was one of the children of the marriage, had “a claim in right of her mother the wife of the said Mr. Roger Hog, who at the time of her death had his domicil in Scotland, to a share of the movable estate of her father at the time of her mother’s death.”

No doubt if the law had not been altered by the Act 18 Vict. c. 23, s. 6, that decision would be binding upon this House in a similar case. But when you are asked to apply the decision to a case where the circumstances are different, it seems to me that the proper course is to ascertain, if you can, the principle of the decision, and then to see if that principle is applicable to the circumstances of the case under consideration. This is the case of a French marriage with a settlement prescribed and constituted by the law of the land and followed by naturalization in a foreign country. Lashley v. Hog (1)was the case of an English marriage without a settlement and a change of residence to another part of the United Kingdom.

Now, what was the principle on which Lord Eldon proceeded? After a long discussion Lord Eldon comes to the point by asking this question: “Why should it be thought an unreasonable thing that where there is no express contract the implied contract should be taken to be that the wife is to look to the law of the country where the husband dies for the right she is to enjoy, in case the husband thinks proper to die intestate?” Then his Lordship goes on to say (2): “This has been the principle, which it seems to me has been adopted, as far as we can collect what has been the principle adopted, in cases in those parts of the island with which we are best acquainted, and not being aware that there

[*35] has been any decision which will countervail this; thinking that it squares infinitely better with those principles upon which your Lordships have already decided in this case, it does appear to me attending to the different sentiments to be found in the text-writers upon the subject that it is more consonant to our own laws, and more consonant to the general principle, to say that the implied contract is that the rights of the wife shall shift with the change of residence of the wife, that change of residence being accomplished by the will of the husband whom by the marriage contract in this instance she is bound to obey.”

I may observe in passing that in that passage Lord Eldon was referring to the difference of practice in the administration of intestates’ effects then prevailing in the different provinces of York and Canterbury, and also to a previous decision in the case of Lashley v. Hog (1) on the question of legitim. It is not, I think, very easy to see how the principle which Lord Eldon selects as the ground of his decision could in the case of an English marriage and the subsequent acquisition of a Scotch domicil be legitimately extended so as to deprive the husband of his own property, and transfer it in his lifetime to the next of kin of his wife. It seems to me that the result can only be reached by one or other of two alternatives. Either it must be held that the implied contract on the part of the husband is that in case of a change of domicil the wife shall enjoy all the rights of a woman married in the country where the new domicil is established, and that he will surrender in her favour so much of his rights as may be inconsistent therewith; or else it must be assumed that marriage in Scotland is not required to create communion of goods, but that communion of goods is incidental to the status of married persons in Scotland; or, as Lord Eldon puts it, “the law of Scotland 'recognises’ communion of goods 'in the married state.'”

Now, if that assumption be necessary in order to support Lord Eldon’s conclusion in Lashley v. Hog (1), it is obvious that there is so wide a divergence between the law of Scotland, or

[*36] what is assumed to be the law of Scotland, and the law of France as to make the decision inapplicable to the present case. If, on the other hand, Lord Eldon’s conclusion is a legitimate extension or development of the principle on which his argument is founded, it seems to me that there is no room for the application of the principle in the circumstances of the present case. The principle, as Lord Eldon explains, is founded on the notion that upon an English marriage without an express settlement there is an implied contract that the expectations of the wife are to depend upon the domicil of the husband. Lord Eldon admits, and it was conceded at the bar, that, if there had been a written contract dealing with the whole property of the spouses present and future, the principle of Lashley v. Hog (1) could not apply. Now the effect of what took place on the occasion of the French marriage, so far as it amounted to a compact in respect of property, must, I think, be determined by French law; and it has been proved by the evidence in this case that what did take place was to all intents and purposes, according to the law of France, equivalent to a written contract.

It appears to me, therefore, that the case is not governed by the decision in Lashley v. Hog (1), and I think the appeal ought to be allowed.

LORD MORRIS. My Lords, I agree in the judgment proposed by the Lord Chancellor, and in the reasons assigned for it.

LORD SHAND. My Lords, it is clear from the judgment of the Court of Appeal delivered by the learned Master of the Rolls that their Lordships’ opinion apart from the effect of the case of Lashley v. Hog (1) was favourable to the appellant on the ground that when her marriage took place in France, in the absence of any written contract, the provisions of the Code Civil of 1804, and particularly the provisions immediately succeeding s. 1400, established the system of community between the spouses, under which the right to one-half of the joint

[*37] estate of the spouses as defined in these sections became vested in the appellant, and was not lost by the change of domicil.

The difficulty which weighed with their Lordships arose entirely from the judgment of this House in the case of Lashley v. Hog. (1) With much deference to their Lordships, I agree in what I understand is the unanimous opinion of your Lordships in this House, that the present case is clearly distinguishable from the case with which Lord Eldon was there dealing, and, having had an opportunity of seeing the judgments of my noble and learned friends the Lord Chancellor and Lord Macnaghten, I shall content myself with stating shortly wherein I think the distinction consists.

It cannot be disputed that if at the time of the marriage the appellant and her late husband had executed a marriage contract by which the appellant had stipulated for precisely the same advantages as the Code, in default of any contract, expressly gave her, a change of domicil of the spouses thereafter would not have defeated the appellant’s contract right to the estate which she now claims. Lord Eldon indeed in his judgment in the case of Lashley v. Hog (1) appears to have made this quite clear. It seems to be beyond question that in entering into the onerous contract of marriage the appellant would have acquired an indefeasible right to the advantages for which she there stipulated, notwithstanding a subsequent change in the domicil of the spouses, unless indeed she had thereby agreed that in the event of such a change her rights should be varied. In my opinion, though a written contract was not entered into, the parties in respect of the special provisions of the Code were, on the completion of their marriage, substantially and for all legal purposes in the same position as if they had made their contract in writing. It must be presumed that they knew the provisions which the Code contained, and it seems difficult to suggest any possible reason which could induce them to make a contract in writing merely expressly to repeat or adopt the detailed provisions of the Code, when the Code itself had provided that in default of any written contract these provisions should take effect. The

[*38] only ground which it appears to me could be suggested is that according to the argument of the respondents such a question as the present could not in that case have been raised; but in my opinion, as the Code which is virtually statute law enacted expressly all that a written contract required to provide, this argument of the respondents fails. On this subject I refer to the evidence of the legal expert, M. Paul Lax, in art. 3 of his affidavit, which so strongly accords with the view I have now stated. His evidence is to the effect that the parties having intermarried without a written contract were placed by the sole fact of the marriage “in the same position in all respects” as if previously to their marriage they had in due form executed a written contract and thereby adopted as special and expressed covenants all and every one of the provisions contained in arts. 1401 to 1496 of the Code, and I do not find in the evidence of M. Astoul, examined for the respondents, any substantial disagreement with this view.

The case being thus clearly distinguishable from that of Lashley v. Hog (1), I have only to add that I agree with the views now stated by the Lord Chancellor as to the grounds of the judgment in that case.

LORD BRAMPTON. My Lords, in the year 1854 the plaintiff Mrs. De Nicols and her now deceased husband, both being natives of France, domiciled there from their birth and of full age, were duly married according to the law of that country at the mayor’s office in Paris under the system of community of goods contained in the Code Civil.

They remained so domiciled until the year 1863, when they came to reside in, and changed their domicil to, England; and in this country they remained until the husband’s death in 1897, the plaintiff, his widow, still continuing her residence here.

By means of such little capital as they were possessed of when they arrived in London, and their own united personal intelligence and industry, they accumulated in England a large fortune, consisting of both movable and immovable property.

[*39] To-day we are only concerned to deal with that which was movable.

At the time of his death the husband was in ostensible possession of the whole of the joint property: having in March, 1895, made his will purporting to dispose of every part of it as if it were all his own absolutely. The plaintiff alleges that he was not justified in doing so, claiming that as his surviving spouse she became on his death entitled, under art. 1474 of the system of community, to one-half share of his then available assets. The law of France relating to marriage contracts, and the rights of spouses, is contained in Title V. of the Code Civil, passed and promulgated in February 1804, chapters 1, 2, and 3, comprising arts. 1387 to 1494 inclusive.

From the general provisions contained in chapter 1, I gather that one great object of the Legislature was to ensure, as far as possible, that, contemporaneously with every celebration of marriage in France, some definite and binding regulation or settlement of the property of the spouses respectively shall be brought into operative existence, leaving it however absolutely and without restriction open to the spouses mutually to determine and agree what shall be the character, substance and provisions of such regulation, provided only that it shall not be contrary to morality, and shall not derogate from certain marital and other rights in no way affecting this present case.

Another object was to provide as much facility as possible for ready, easy and inexpensive obedience to this requirement by those who are disposed to accept such aid. With a view to these ends, in chapters 2 and 3, the Code sets out in minute detail for the consideration and for the adoption, if they please, of those contemplating marriage, two systems - one called the system of community, for the regulation of all their movables both present and future during the whole period of their coverture, the other, the “dotal system,” to which I need not further refer.

In the event of the intending spouses not being willing that their properties shall be regulated by the system of community, art. 1387 provides that they may make a special agreement for themselves as they may deem proper; such special agreement, [*40] as a “matrimonial agreement,” is by art. 1394 required to be reduced into writing and executed before a notary prior to the celebration of the marriage. The reason for this requirement is very obvious. The system, which was framed with a view to embody such a regulation or settlement as would be acceptable and best adapted to the requirements of the great majority of French intending spouses, had already been carefully prepared and set forth in detail in the Code, so that it can easily be understood and readily and inexpensively adopted; but no draftsman, however skilful and ingenious, could possibly devise and frame by anticipation a form of settlement to meet the variety of views and caprices of those who preferred to make their own settlement; such could only be prepared when the wishes and intentions of the parties were made known to those whose duty it might be to prepare the instrument in each particular case.

A moment’s consideration will suffice to shew how absolute and unlimited is the freedom in choice of a settlement to spouses who desire to exercise it, and how erroneous it is to suppose that any particular regulation of their property is forced upon them against their will.

It will be convenient to bear in mind the general features of this system; I have therefore thought it may be useful at once to set out a short epitome of the most important articles.

It is contained in chapter 2 of the Code, and in s. 2 is described as a “conjugal partnership,” an expression strongly savouring of contractual relations.

By art. 1401, the property to be administered under it, described as “community assets,” is composed (inter alia) of all the movable property of which the spouses are possessed at the time of the celebration of the marriage, together with all the movable property which comes to them during coverture. By art. 1409 the liabilities include the personal debts of the spouses owing at the time of the marriage, the debts incurred by the husband during the community, or by the wife with his assent, the household expenses of the spouses, and the maintenance and education of their children.

The husband is constituted the sole administrator of the [*41] assets, and considerable powers of disposition are conferred upon him; but he cannot by a testamentary donation exceed his share (art. 1421, art. 1422, art. 1424).

Art. 1441 provides for the dissolution of the community by the death of either of the spouses and in several other events immaterial to the consideration of the present question.

On the dissolution of the community by the death of one of the spouses, after all legitimate claims upon the assets have been satisfied, the surplus is to be divided by halves between the surviving spouse and those who represent the deceased (art. 1474).

Art. 1400 declares that this system is established by the simple declaration that the parties marry under it or in default of a contract, meaning, of course, such an agreement as is contemplated in arts. 1387 and 1393.

I pause here to emphasise the fact that this system operates upon no spouses unless by their mutual assent.

It was under this system, which had been for nearly half a century a very familiar and approved form of settlement, of the nature and provisions of which the parties as French subjects must be presumed to have had knowledge, they were married, and upon the faith and under the belief that its provisions would regulate the property of both so long as their married life continued, and that on the death of either it would be divided between the survivor and the representatives of the deceased, the wife placed in the possession of her husband as part of the capital of their “conjugal partnership” such little property as she could then call her own; and from that time until the death of her husband it was never suggested that with the change of domicil to England the rights of property the wife had acquired by her marriage in France vested in her husband as absolute owner, as if they had been married in England without any settlement at all.

The Married Women’s Property Acts do not, in my opinion, affect the present case.

The case of Lashley v. Hog (1) has all along been relied upon by the defendants as decisive in their favour. Kekewich J.

[*42] thought that authority inapplicable, and gave judgment against them. The Court of Appeal, however, adopted the defendants’ view, and reversed his judgment.

I have the misfortune to differ from the Court of Appeal, it appearing to me that the two cases are distinguishable in very material particulars, and that no part of Lord Eldon’s observations in delivering the judgment of the House of Lords can be said to determine this matter. In order to make these distinctions apparent, I propose briefly to recapitulate the material facts of that case.

Roger Hog was a native of Scotland, he came to England to better his fortune, and in 1737, being then domiciled there, married Rachael Missing, an English lady. No settlement affecting this case was made on their marriage, but with his wife Mr. Hog received 1000l., which, according to the law of England, became his sole absolute property, upon the principle that in England a wife can by the common law have no separate legal existence.

They remained resident in England until 1752, when they removed to Scotland, where undoubtedly they became domiciled before 1760, when their coverture was dissolved by the death of the wife. The husband survived until 1789, when he also died, still domiciled in Scotland, possessed of considerable personal property. After his death Mrs. Lashley, who was a daughter of the marriage, as representing the right of her deceased mother, made claim in the Scottish Courts upon her father’s estate to a share of the personal property which, as she alleged, her father held in community, according to the then law of Scotland, at the dissolution of the coverture. For Mrs. Lashley it was contended that the Scottish law of community of goods attached itself upon the property of Mr. Hog on his becoming domiciled in Scotland, notwithstanding the fact of his marriage to her mother in England without any settlement many years before. This absence of a settlement is a very important feature in that case, which, it is contended for the plaintiff, is absent from the one now before us.

The judgment of the House of Lords was in Mrs. Lashley’s favour. Lord Eldon in delivering it had to deal also with a [*43] variety of other questions, which necessitated a lengthy and complicated discussion; but so far as regarded the matter now before us it is, to my mind, clear, intelligible and convincing. He held, first, that the Scottish law of community attached itself upon all the personal property of which Mr. Hog was or thereafter might become possessed during his domicil in Scotland; and, secondly, that on the death of Mr. Hog the distribution of his personal estate, including the share of the predeceased wife, which up to that event had not been severed, must be regulated by the succession law of Scotland, where his death occurred. As regards the first of these rulings, it had been contended for those who opposed Mrs. Lashley’s claim (1), first, that in the absence of a written contract the rights of husband and wife must be regulated by the law of the country where they were domiciled at the time of the marriage; and, secondly, that there was on the marriage an implied contract between the spouses that they would be bound to all those conditions and consequences which the law of the country made to follow upon their consent to the marriage itself, and that no change of domicil could alter this matrimonial law or implied matrimonial contract.

Both these contentions were overruled for reasons stated at length in the judgment. (2) The complete absence of any settlement affecting the property was evidently the basis of the decision. The law of England made none; it merely gave to the husband all his wife’s property, placing upon him no restrictions. When, therefore, he thought fit to change his domicil to Scotland he took with him, as it were, all his movable property absolutely free and unfettered. The law of communio bonorum would clearly have attached to it if his marriage had been celebrated in that country; but that law became equally attached upon spouses who “in the married state” became there domiciled, at least for so long as that domicil continued, which, in the case of Mr. and Mrs. Hog, was continuously until they were both dead. (3) In the teeth of these circumstances it is difficult to suggest to oneself how

[*44] the judgment could have been other than it was. There is nothing in Lashley v. Hog (1) which seems to me to affect this case; but I have dealt with it at some length because it has been so much relied on against Mrs. De Nicols’ claim. Of course the grave distinction between that case and this is to be found in the fact that there the change of domicil was from a country in which neither the law nor the parties had made any settlement to one in which there was in some sort a settlement by the law in the shape of the community of goods. In this case the change was from a country where the most elaborate and binding settlement by the law of France and by contract, as contended, was made, on and by marriage, to a country (England) the law of which makes no settlement at all, but ignores the separate legal existence of the wife altogether. In every civilised country marriage is treated as a contract of grave importance. It is the voluntary union for life of the parties to it. It is created by the bare ceremony of marriage according to the form prescribed by the law of the country in which it is celebrated. It involves incidentally an agreement that the spouses will mutually respect and fulfil those marital rights and obligations which are imposed upon them by that law, as incidents inseparable from their matrimonial union. Among such incidents of a marriage under the law of France is the establishment, or bringing into active operation, of some regulation of their personal property. One mode of accomplishing this is the establishment, by one and the same ceremony which makes them man and wife, of the system of community which could not be attached upon their property without the mutual consent of the spouses - that is to say, by marrying under it: which must be testified either by a declaration of the spouses, or by their omission to make a special written agreement. But once established, the system becomes the regulation or settlement of their choice, and the expression of their mutual intention to be bound by its provisions, creating mutual legal rights and obligations binding upon each, throughout their married lives. In the present case, if credit is to be given to the fourth paragraph of Mrs. De Nicols’ affidavit,

[*45] their so marrying was the result of a previous provisional agreement between them that it should be so.

It is true this last-mentioned agreement could not, standing alone, be relied on as proof of the contract now sought to be incorporated in the marriage contract, for this simple reason - it was a mere executory agreement which had of itself no effect in establishing the system; that could only be effected by the actual celebration of the marriage. It was, nevertheless, valuable as evidence, if evidence were needed, that the spouses knew (apart from the ordinary presumption of knowledge of the law of their own country) what were the legal obligations towards each other they were about to contract respecting their property, and that they voluntarily undertook them with a knowledge that they would and a common intention that they should be binding upon them so long as they both lived.

No set form of words was necessary, nor was any writing required by the law of France; for I take it to be clear that the “matrimonial agreements” mentioned in art. 1394 have reference only to the special agreements mentioned in art. 1387 and described in art. 1393 as “derogating from” or “modifying” the system of community.

In these voluntary and mutual intentions and acts are to be found all the essential elements of a legal contract, rendered so complete and obligatory by the law of France that nothing could in that country annul or give it greater force.

It is conceded that had the provisions of the system been embodied in the very words of the Code in an instrument signed by the parties expressing their intention to marry under it, it would be unobjectionable and as valid in an English court as a special agreement of the parties made under art. 1387. This may at least be taken as an admission that there is nothing in the system itself repugnant to the law of England, and this reduces the objection to one merely of form. What, then, is the weight of this objection, if all required by the law of France has been observed? I have always been under the impression that the form required for a contract by the law of the place where it is made is both sufficient and [*46] requisite for its validity in England. In this case every form required by the Code Civil has been complied with, and I see nothing to prevent the operation of the rule that, where there is a marriage contract or settlement, the terms of such contract or settlement determine the rights of husband and wife in respect of all movables to which it applies. As a rule, the rights of spouses conferred by the law of one country change with every change of domicil, for the law of one country can have no intrinsic force, except within the territorial limits and jurisdiction of that country. But the comity of nations, with a view to the comfort and convenience of their respective subjects, has rightly conceded that there should be some exceptions to this strict rule of the territorial law. By one of such exceptions it is universally admitted that where, upon marriage, a marriage contract or settlement is made regulating the property of the spouses, such contract or settlement shall have effect given to its provisions wherever the spouses may afterwards be domiciled.

When Lashley v. Hog (1) was decided in July, 1804, the Code Civil had only been promulgated about five months: this may account for no mention having been made of it. What might have been held had the question then arisen in an English court, as to how far it should be allowed to operate under circumstances similar to those before us, I cannot of course say, for in itself it was an untried novelty. It seems strange that no such question has been raised and decided in an English court hitherto. In dealing with it to-day we have the benefit of nearly a century’s experience before us of the cheerful and ready submission to and approval of this system and enactment so admirably calculated to satisfy the requirements of French spouses by millions of the subjects of a great and powerful country. I am sanguine enough under such circumstances to entertain a hope that your Lordships will, in declaring the law of this land, think it right to accord to this system and enactment a place with contracts and settlements as exceptions to the rule of territorial law - even apart from the question of contract, which I have discussed - and carry

[*47] out the real wishes and advance the interests of the many subjects of France whose properties in their own country are, and in the future will be, regulated by it.

Thinking, as I do, that this case falls within the exceptions engrafted by the comity of nations upon the strict rule of the territorial law (Robertson, pp. 74-77), I am of opinion that the judgment of the Court of Appeal should be reversed and that of Kekewich J. restored, and that judgment should be entered for the plaintiff with costs.

Order appealed from reversed and order of Kekewich J. restored: costs here and below to be costs in the summons. (1)