Maltass v. Maltass, (1844) 1 Rob. Ecc. 67

(1844) 1 Rob. Ecc. 67

MALTASS against MALTASS, Prerogative Court, July 17th, 1844.—The law of domicil considered as regulating testacy and intestacy iii the case of a British subject long resident as a merchant at Smyrna, and dying there, having regard to the treaties between Great Britain and the Ottoman Empire

[S C. 3 Notes of Cases, 257; 8 Jur 860. See 3 Curteis, 231; 63 E R 712 (with note).]

Second article. That the father of the deceased was au Englishman by birth, but had settled at [*68] Smyrna, as a British merchant, many years before his death. That up to the time of his death he continued to be one of the partners in a mercantile house established at Smyrna, trading under the firm of Lee and Co. That the deceased in this cause ii as born at Smyrna in the year 1764; that when about six years old he was sent to England to be educated, but returned to Smyrna when at the age of fourteen. That the deceased once again visited England in the year 1824, and remained there about two years. That after serving his clerkship in the house of Lee and Co. he set up for himself in business, as a British merchant, at Smyrna, arid established a house of trade under the name of .J. & W. Maltass, and in which house he was one of the partners at the time of his death.

Seventh article. That it is not competent, by the law of the Ottoman Empire, for a Turkish subject to make any disposition of his property by will, but the same, on his death, is divisible between his relations in certain fixed proportions; but that by certain articles of peace between England and the [*69] Ottoman Empire, made and concluded at the Dardanelles in the year 1809, the property of any Englishman or other person subject to that nation, navigating under its flag, who should happen to die within the Turkish dominions, shall be given up to the person to whom the deceased may have left them by will, or to the British consul.

Addams and R Phillimore in support of the will. As a general rule, persons resident; at an English factory established in a foreign country continue to be [**969] domiciled British subjects; fortiori, will it be so where the religion, habits, and manners of a foreign country are at variance with those of the persons resident at the factory. This is the express doctrine of Lord Stowell in the cases of the ships Indian Chief (3 Rob. 28), and Angelique (ib. Appendix B, p. 7).

The Queen's advocate and Jenner contrà. Prima facie a party is the subject of a country in which he is born and resides during his life. The facts of Mr. Maltase having been sent to this country for the purposes of education, and the transient visit in 1824, cannot divest him of his national character. Then he must be brought within some exception to the ordinary rule and law of domicil. It has not been shewn that there is a British factory at Smyrna, or, if so, that Mr. Maltase was a member of the factory. Moore v. Budd (4 Hagg. Ecc. 346).

My attention must be first directed to what I consider the admitted facts of the case. The deceased was born at Smyrna, of English parents, who must, I think, be presumed to have been born British sub-[*71]-jects The deceased is admitted to have passed his boyhood in England for the purpose of his education; he went back to Smyrna where his father was engaged in trade. The deceased for many years was occupied in commercial pursuits, and was a member of a firm established at Smyrna, but which was dissolved a considerable period before his death Whether the deceased, up to the period of his death, or even during the latter years of his life, was engaged in trade, I find no evidence, save that ho described himself as a British merchant in his will; I have looked to the estimates of his property during the latter period of his life, t find some dark indicia that he was engaged in commercial concerns, but nothing to lead to a legal conclusion that he was engaged in trade at the time of his death. He married at Smyrna, was constantly resident there, and died there, leaving a widow and several children.

I have to determine, upon these facts, what is the law to govern the succession to his personalty—the law in this respect being the same whether be bas died testate or intestate The first question I propose to consider is, whether, laying aside the question of domicil, the deceased was or was not a British subject Now, assuming him to have been born of parents who were British subjects, the deceased, although born abroad, would be a British subject, and would owe allegiance to the Crown of Great Britain, and this whatever might be the domicil of his parents or of himself, the only excepted cases that I know of are those of the peculiar instances of the children of persons whose domicil was in the United States prior to the acknowledgment of the[*72] independence of America. Such are the cases of Doe v. Aclam (2 B. & Cress. 779), and Doe v. Mulcaster (5 B. & Cress. 771).

The next question is, where was the deceased domiciled l for I take it not to be denied that the law of domicil must in some shape govern the succession. But this inquiry will become unnecessary if it should turn out that, with respect to this individual succession, the law of Great Britain and of Turkey is the same; for when we speak of the law of domicil, as applied to the law of succession, we mean, not the general law, but the law which the country of domicil applies to the particular case wider consideration. Such law may be totally different as applied to a natural born subject of the country, as exemplified in the case of Collier v. River (2 Curt. 85). There the testator died domiciled in Belgium; but, by the Belgian law, the succession in that ease was not to be governed by the law of Belgium, applicable to natural born [**970] subjects, but by the law of that country, applicable to an English but n subject dying domiciled in Belgium.

Assuming, therefore, that the deceased died domiciled at Smyrna, the first point is, what is the law of Turkey as to British subjects dying domiciled there? This depends on the construction to be put on the treaties between Great Britain and the Porte. The leading object of these was to protect British subjects trading to Smyrna, and with this view to modify the law of Turkey so as to ensure them justice, So far as could he attained It is, I think, perfectly clear from the treaty, independent of all historical facts, that a residence in Smyrna by a British merchant was contemplated, and, if the [*73] contracting parties have provided for the case of residence, it seems necessarily to follow that they must have intended to provide for the case of domicil, if domicil in Turkey could he acquired by the same means as in other countries. Judge Story says “That place is properly the domicil of a person in which his habitation is fixed without any present intention of removing therefrom.” If this be applicable to a domicil in Turkey, such a case must have occurred in the course of trade; and, therefore, I conceive it musts in legal contemplation, have been included when the parts of the treaty applicable to British subjects trading in Turkey came to be considered. I the more incline to this opinion because, however short might have been the residence of British merchants in Turkey in the earliest times, the fact of their permanent residence for many years is undoubted, and some of the treaties bear date long after such permanent residence existed. It never could, I think, he supposed that the treaties did not intend to protect British merchants, either composing a house of trade, or carrying on business singly, who for years together resided in Smyrna, having no other habitation, and without any intention of quitting Smyrna, or, in other word domiciled according to Judge Story's definition.

If it be contended that, at the time of concluding the treaties, neither party thought of British subjects domiciled in Smyrna, that may perhaps be true, as little indeed was known or thought of domicil, in the legal sense of the term, in those early times; but it the words of the treaty are sufficient to cover the case, and if the object of the treaties was to apply to alt British merchants, then the application [*74] to a state of circumstances not particularly contemplated, but within the general scope of the treaties, would not limit their construction It would not be a casus omissus, but simply the use of general terms to attain a particular object, the particular circumstances which should call the compact into action not being foreseen, but the general forms intended to govern all cases falling within the principle, whether seen or not seen. It appears to me that the passages in the treaties which I shall presently cite are so wide in their terms as to comprise all British merchants resident iii Smyrna, and that the only exception (which proves the universality) is the ease of a British subject becoming a Mussulman.

I think, before I close this branch of my subject, that there are arguments of no small weight leading to this construction of the treaties. Even at this day, although so many powerful minds have been applied to the question, there is no universally agreed definition of the word domicil—no agreed enumeration of the ingredients which constitute domicil This is expressed in the following remarkable language by Hertius. “Verum in ils definiendis mirum est quam sudant Doctores” (1 Hert. Oper, s. 4, n. 3, p. 120, edit 1716). Indeed, 1 [*75] think there are no less than fourteen or fifteen different definitions of this word. The gradation from residence to domicil consists both of circumstances and intention, nice distinctions have and must prevail, such as cannot be defined beforehand. Hence, if the treaties did not apply to domicil, as residence would often become fused into domicil, British merchants, and, in case of their deaths, their families, would find themselves suddenly, and contrary to their intention, and to the presumption of intention, subject to a code of laws wholly contrary to their religions persuasions, their feelings, customs, and contemplation in making arrangements for the welfare of themselves and families, and, he it observed, the law of Turkey could cone into operation (if residence became domicil), not only on property after death, but during the life; and an individual might be living in [**971] Turkey out of the protection of any treaty. I know not what would be (if the case were capable of arising) the law of Turkey applicable to British merchants so domiciled, but certainly entire subjection to Turkish laws would be a grievous evil to British merchants of Christian belief, education, and habits.

With regard their to the parts of the treaties applicable to the question we are now discussing, to wit, whether the treaties extend to a permanent residence, and not merely to a temporary visit. The treaties commence at an early period, but they [*76] are all included in the treaty of the Dardanelles (1809). Now, in the construction of treaties of this description, we cannot expect to find the same nicety of strict definition as in modern documents, such as deeds, or Acts of Parliament, it has never been the habit of those engaged in diplomacy to use legal accuracy, but rather to adopt more liberal terms. I think, in construing these treaties, we ought to look at all the historical circumstances attending them, in order to ascertain what was the true intention of the contracting parties, and to give the widest scope to the language of the treaties in order to embrace within it all the objects intended to he included.

The first begins by stating “that there had existed a good understanding and an amity between the King of England (Charles 2nd) and the Porte. And it was granted to him (Charles 2nd) that his subjects and their interpreters might safely and securely trade in these our dominions” The first article stipulates. “That the English nation and merchants, and all other merchants sailing under the English flag, with their ships and vessels, and merchandize of all descriptions shall and may pass safely by sea, and go and come into our dominions, without any, the least prejudice or molestation being given to their persons, property, or effects, by any person whatever.”

[*77] Let us look to another part of the treaty. The 15th article says: “AllEnglishmen arid subjects of England, who shall dwell or reside in our dominions, whether they be married or single, artisan or merchants, shall be exempt from alltribute.” These words “dwell or reside” clearly contemplate not a temporary but a permanent residence. I think also that the reference to “married persons” indicates the same intention, for the residence of persons in that state is generally looked at as of a more permanent and fixed character than that of mere ordinary traders.

Now I do not intend to go through the treaty in detail\: the 16th and 18th articles relate generally to the privileges granted to English subjects perfectly distinct from resident Turkish subjects. The 26th article provides. “That in case any Englishman or other person subject to that nation, or navigating under its flag, shall happen to die in our sacred dominions, our fiscal and other officers shall not upon pretence of its not being known to whom the property belongs, interpose any opposition or violence, by taking or seizing the effects that may be found at his death, but they shall be delivered up to such Englishman, whoever he may he, to whom the deceased may have left them by will.” This, then, in my opinion, it is perfectly clear, must refer to a will made according to the law of England, for I [*78] am not aware of any power of testacy by the law of Turkey The article goes on. “And if he shall have died intestate (this means intestate by the law of England) the property shall be delivered up to the English consul, or if there be no consul, in that case the property shall be sent over to England in the next ship.” Now this section alone goes the length of saying, not merely that the property of a person accidentally dying in the Turkish dominions shall be delivered up, but it contemplates the case of a person permanently resident there. The forty-sixth article contemplates the case of an Englishman permanently resident in Smyrna. “If any interpreter shall die, if he be an English-man, proceeding from England, all his effects shall be taken possession of by the ambassador or consul; but if he be & subject of our dominions, they shall be delivered [**972] up to his next heir ' The forty-ninth article speaks of “merchants of the aforesaid nation” The sixty-first article is to this effect: “If any Englishman shall turn Turk, and it shall be represented and proved that, besides his own goods, he has in his hands any property belonging to another person in England, such property shall be taken from him, and delivered up to the ambassador or consul, that they may convey the same to the owner thereof.”

As to the case of Moore v. Budd (4 Hagg. Ecc. 352), I consider that my opinion does not militate against that ease, or the construction of the treaty with Spain This Court was of opinion that the will there propounded was invalid by the law of Spain, and, though more doubtfully, by the law of England. It held that the deceased was domiciled in Spain, never mentioning the treaty. Indeed, not even in the argument was the treaty alluded to-no allegation on that point was given iii-no answers were taken; the King's advocate of the day declined to argue the point, and not a single word appears in that case upon the construction of the treaty In my opinion, then, the effect of the treaties is, that the law of Great Britain will operate on property left by a British merchant in the situation of the deceased, and I am not aware of any distinction even in the case of au individual having ceased to carry on trade.

However, I do not wish to conclude myself on [*80] this latter point. I think the facts of the case, in this respect, are meagre; but, in the absence of proof to the contrary, the conclusion I must draw is, that such is the law of England, as contra-distinguished from the law of Scotland, but I must take care that I do not confuse the case on this point. I consider the deceased was domiciled in England, and not in Scotland, or in a colony; for great difficulty would have arisen had the deceased been domiciled in Scotland, and a new question if he had been domiciled in British Guiana. I take the deceased to be domiciled in England. The will last made is anullity—it is not properly executed, the will of 1834 must, therefore, receive probate, that will was valid by the law at the time when it was executed, arid nothing that has since passed has had the effect of revoking it.

I wish to observe that I am desirous not to be supposed to have given an opinion upon any question not necessary to be decided in this case; my judgment, therefore, does hot affect the question of domicil, if the deceased was, in the legal sense, domiciled in Turkey; and if the law of domicil does prevail, the law of Turkey, in conformity with the treaty, says that in such case the succession to personal estate shall be governed by the British law, if he was not domiciled in Turkey, but in England, then the law of England prevails, proprio vigore

I give no opinion, therefore, whether a British subject can or cannot acquire a Turkish domicil, but this I must say—I think every presumption is against the intention of British Christian subjects voluntarily becoming domiciled in the dominions of [*81] the Porte. As to British subjects, originally Mussulmen, as in the East Indies, or becoming Mussulmen, the same reasoning does not apply to them as Lord Stowell has said does apply in cases of a total and entire difference of religion, customs, and habits.