[COURTS OF PROBATE AND DIVORCE]

LYNCH v. THE PROVISIONAL GOVERNMENT OF PARAGUAY.

Interest Suit - Foreign Domicile - Right to grant of Probate or Administration - Succession to Property - Law of Foreign Domicile at time of Death.

The succession to property in England of a deceased foreigner is regulated by the law of his place of domicile as it existed at the time of his death.

A domiciled Paraguayan died in Paraguay, leaving personal property in England. After his death, but before a grant was made in England, a decree of the Government of Paraguay declared that all the property of the deceased, wherever situate, was the property of the nation of Paraguay. The Court held that, although by the law of Paraguay as existing at the time when a grant of probate of the deceased's will was applied for, the will might be invalid, the right to the grant, and the succession to the property must be governed by the law of Paraguay as it existed at the time of the death; and, therefore, that the Government of Paraguay had no locus standi to contest the validity of the will.

THE plaintiff claimed probate (as universal legatee) of the will of Francisco Solano Lopez, who died at Paraguay on the 1st of March, 1870. A caveat having been entered by the defendants, they were called upon to propound their interest, and they accordingly filed the following declaration:-

"1. That Francisco Solano Lopez, the deceased in this cause, was a native of Paraguay, and at the time of his death, which took place in Paraguay, on or about the 1st. day of March, 1870, was domiciled there.

2. That by the law of nations, and by the law of England, the succession to the personal estate and effects of the said deceased, wheresoever situate, and also the right to administer to the said estate, is to be governed by the law of Paraguay.

3. That by a decree of the Government of Paraguay, dated the 4th day of May, 1870, all the property of said deceased, wheresoever situate, is declared to be the property of the nation of Paraguay, and that such decree is valid and now binding and operative by the law of Paraguay.

4. That by the now existing law of Paraguay, no will or testamentary paper whatsoever of the said Francisco Solano Lopez is entitled to probate, or has any validity whatsoever in England or elsewhere.

5. That by the now existing law of Paraguay, the said Government of Paraguay, or their officer, or attorney, is entitled to

become the sole personal representative in England of the said deceased, and to take the grant of letters of administration in England of his personal estate and effects situate in England.

6. That Richard Lees, the defendant, is by a power of attorney, duly executed by the President of the Republic of Paraguay on behalf of the said republic, dated the 22nd day of December, 1870, duly authorized to oppose the grant of probate of any testamentary document of the said deceased, and the grant of any letters of administration of the estate of the said deceased, to any other person, and to apply for letters of administration of all the personal estate and effects of the said deceased situate in England, to be granted to him under such power of attorney, and that he is by reason of the premises the only person entitled to be constituted the personal representative of the said deceased in England."

To this declaration the plaintiff demurred, and the demurrer came on for argument on the 4th of May, 1871.

Sir J. D. Coleridge, S.G. (Sir T. Twiss, Q.A., and Pritchard,with him), for the demurrer. The ground on which the declaration is bad is, that it does not deny that the testator was domiciled in Paraguay, and that at the time of his death the will was valid by the law of Paraguay. If the plaintiff had applied to this court for probate immediately after the death, there can be no doubt the court would have been bound to grant it. The subsequent decree confiscating the property of the testator cannot affect the rights of his executrix. Even if such a decree would be held by a Paraguayan court to be retrospective and to invalidate the will - and it is doubtful whether it would be so held - there can be no doubt that the decree can have no such operation beyond the limits of the republic. An English court can take no notice of the confiscation by a foreign government of property situated in England.

[LORD PENZANCE. The Paraguayan courts can have no larger authority over Lopez dead than over Lopez alive. If he had 5000l. in the English funds, and, being alive, were to claim it, your proposition is, that he would be entitled to it, notwithstanding any decree of confiscation in Paraguay.]

The effect of a criminal sentence does not extend beyond the territory of the country where it is pronounced. A decree of confiscation cannot affect property situated in a foreign country: Story's Conflict of Laws, c. xvi. s. 623.

Dr. Spinks, Q.C. (Dr. Tristram and A. Brown with him), for the declaration. The question is, whether the defendants have a locus standi to oppose the grant of probate. It may be that the Court of Chancery will hold, that even if the will be valid, the executrix has no right to retain the property, but holds it as the trustee of the Paraguayan Government. Our argument is, that by the now existing law of Paraguay no will made by Lopez is entitled to probate either in England or in Paraguay. Suppose that, after the death of a domiciled Englishman, an Act of Parliament were passed declaring that his property belonged to the State, and he had no power of disposing of it by will. In such a case the Queen's Proctor, on behalf of the Crown, would be entitled to a grant of administration in England, and, clothed with the authority of this Court, he would be entitled to a similar grant from the court of any foreign country in which the deceased had property. The foreign court would not inquire into the justice of the English Act of Parliament, but would follow the grant of the English court: Laneuville v. Anderson and Guichard (1); Secretary of State for India v. Kamachee Boye Sahaba (2); United States of America v. McRae. (3) There is no reported case exactly in point, but we rely on the general principle that by the committee of nations this Court will follow the law which governs the courts of the country in which the deceased was domiciled at the time of his death.

Sir J. D. Coleridge, S.G., in reply, cited In the Goods of H.R.H. the Duchess d'Orléans (4); Story's Conflict of Laws, c. xi. s. 473; ch. xii. s. 481.

June 20. LORD PENZANCE, having stated the declaration, said: To this declaration the plaintiff has demurred, and the ground of demurrer relied upon is, that the decree upon which the defendants'

(1) 2 Sw. & Tr. 24; 30 L. J. (P. M. & A.) 25.

(2) 13 Moo. P. C. 22.

(3) Law Rep. 3 Ch. 79; S. C. Law Rep. 8 Eq. 69.

(4) 1 Sw. & Tr. 253; 28 L. J. (P. M. & A.) 129.

claim is based is not alleged to have been in force at the date of the testator's death. Some other points were taken in argument raising a discussion of considerable interest; but, on reflection, I am satisfied that the date of the decree relied upon by the defendants is fatal to their claim in this suit. The general proposition that the succession to personal property in England of a person dying domiciled abroad is governed exclusively by the law of the actual domicile of the deceased was not denied; but it was affirmed by the plaintiff that this proposition had relation only to the law of the domicile as it existed at the time of the death of the individual in question, and that no changes made in that law after the date of the death can by the law of this country be recognized as affecting the distribution of personal property in England. This contention appears to me well founded. A general statement of the rule of law on this head is to be found in s. 481 of Story's Conflict of Laws. He says: "The universal doctrine now recognized by the common law, although formerly much contested, is, that the succession to personal property is governed exclusively by the law of the actual domicile of the intestate at the time of his death." The words "at the time of his death" are here carefully inserted as part of the principal proposition, and a long list of authorities is cited in support of that proposition, in none of which is any passage to be found indicating that those words are not a necessary part of it. But it was ingeniously argued that the decree in question has by the law of Paraguay a retrospective operation, and that, though the decree was, in fact, made since the death, it has by the law of Paraguay become part of that law at the time of the death. In illustration of this view it was suggested, that if the question were to arise in a court of Paraguay such court would be bound by the decree, and therefore bound to declare the provisions of the decree to be effective at and from the time of the death. This may be so; but the question is, whether the English courts are bound in like manner; or, more properly speaking, the question is, in what sense does the English law adopt the law of the domicile? Does it adopt the law of the domicile as it stands at the time of the death, or does it undertake to adopt and give effect to all retrospective changes that the legislative authority of the foreign country may make in that law?

No authority has been cited for this latter proposition, and in principle it appears both inconvenient and unjust. Inconvenient, for letters of administration or probate might be granted in this country whew this Court might afterwards be called upon, in conformity with the change of law in the foreign country, to revoke. Unjust, for those entitled to the succession might, before any change, have acted directly or indirectly upon the existing state of things, and find their interests seriously compromised by the altered law. As, therefore, I can find no warrant in authority or principle for a more extended proposition, I must hold myself limited to the adoption and application of this proposition, that the law of the place of domicile as it existed at the time of the death ought to regulate the succession to the deceased in this case. Under that law the present defendants have no locus standi to oppose any will the testator may have made, and no concern withy his estate. The demurrer must therefore prevail.

I will only further observe, that if the decree upon which the defendants rely is one entitled to be recognized and enforced in this country in regard to the personal property of the deceased, the defendants' claim under it will be equally good, whether there is a will or not. It does not devolve upon this Court to adjudicate upon the property of the deceased, but only to ascertain whether he has made a good will; and, if not, to grant administration of his effects. The defendants would, in any event, therefore, have to establish their claim under the decree in the proper courts of this country before they can obtain the right to appropriate the property of which the deceased died possessed in England.

If it should there be held that this decree in Paraguay, penal in its character, and made after the death of the person to be affected by it, is one which the English courts will not enforce upon his personal property in this country, this Court will have done well in not permitting those who have no interest in the estate to provoke a litigation upon the validity of any will the deceased may have made. If a contrary conclusion should be arrived at, and the personal property of which the deceased died possessed shall be determined to have passed to the defendants by virtue of the decree upon which this decision arises, no will, however made, can operate upon it, and the proceedings in this

court can neither prevent nor retard the defendants in the acquisition of their rights.

The Court accordingly pronounced for the demurrer, with costs.

Attorneys for plaintiff: G. S. & H. Brandon.

Attorneys for defendants: Chappell & Son.