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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Avesterman (Westerman's executor) v. Schwab and Others [1905] ScotLR 43_161 (21 November 1905) URL: http://www.bailii.org/scot/cases/ScotCS/1905/43SLR0161.html Cite as: [1905] SLR 43_161, [1905] ScotLR 43_161 |
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Page: 161↓
[Sheriff Court at Aberdeen.
Held that a will dealing with moveable estate, which was duly executed by a lady domiciled in England, was not revoked by her subsequent marriage in England to a domiciled Scotsman.
The Wills Act 1837, section 18, provides —“And be it further enacted that every will made by a man or woman shall be revoked by his or her marriage.…” Section 35 provides—“And be it further enacted that this Act shall not extend to Scotland.”
This was an action of multiplepoinding, raised in the Sheriff Court at Aberdeen, at the instance of Thomas Collette Westerman, executor-dative of the late Mrs Sarah Ann Scott or Westerman, wife of the deceased Edward Westerman, soap manufacturer, 104 Leslie Terrace, Aberdeen.
Mrs Westerman died at Aberdeen on 25th March 1904. Her husband, who had survived her, died on 27th April 1904 without having expede confirmation of her estate. The pursuer, who was a son of the late Mr Westerman by a prior marriage, thereafter gave up an inventory of her estate, and was duly confirmed executor——dative. After paying preferable claims the free residue of her estate amounted to £272, 2s.—one-half of which was paid to the husband's representatives as jus relicti, and the remaining half (£138, 11s.) formed the fund in medio in this action. To this fund claim was made (1) by Frederick Schwab and others, the executor and legatees under a will dated 4th June 1897, made by Mrs Westerman prior to her marriage to Westerman, and while she was a spinster and
Page: 162↓
a domiciled Englishwoman; and (2) by George Worth and others, Mrs Wester man's next-of-kin. The claimants Schwab and others pleaded—(2) “Mrs Sarah Ann Scott or Westerman becoming by her marriage a Scotswoman, her will was not revoked by her marriage, but remained valid and effectual.”
The claimants Worth and others pleaded —“(1) The will founded on having been executed before the marriage of the said Sarah Ann Scott or Westerman, who continued domiciled in England down to the date of her marriage, was, by her marriage, revoked.”
On 28th December 1904 the Sheriff-Substitute ( Robertson) found that the will executed by Mrs Westerman on 4th June 1897 remained valid notwithstanding her subsequent marriage, and accordingly ranked and preferred the claimants Schwab and others in terms of their claim.
The claimants Worth and others appealed to the Sheriff ( Crawford), who on 11th February 1905 recalled his Substitute's interlocutor, found that the will executed by Mrs Westerman was revoked by her subsequent marriage, and that the claimants Worth and others were entitled to the whole fund in medio.
The claimants Schwab and others appealed, and argued—The Sheriff-Substitute was right. The law of the husband's domicile at the time of the marriage governed the legal results of the marriage—Dicey, Conflict of Laws, 684, 694. And whether a will made by a lady prior to marriage would be revoked by her subsequent marriage, depended on the domicile of the husband at the date of the marriage— Loustalan v. Loustalan, [1900] P 211, at p. 236. The husband's domicile here was Scotch, and by the law of Scotland marriage did not revoke a prior will. Further, when there was no marriage-contract the law of England implied an agreement that the law of the husband's domicile would govern the property relations of the marriage—Jarman on Wills, 112; Theobald on Wills, 41. Such implied agreement was to be given effect to— De Nicols v. Curlier, [1900] AC 21. Alternatively, as Mrs Westerman died domiciled in Scotland, her succession was regulated by the law of Scotland, and half of the residue had already been paid as jus relicti to her husband's represesentatives. The validity of the will, therefore, was not affected by the Wills Act (1 Vict. c. 26), as that statute did not apply to persons not domiciled in England— Bremer v. Freeman, 1857, 10 Moore's P.C. Rep. 806; In re Reid's Estate, 1866, L.R., 1 P. & D. 74; Westlake's Private International Law, 4th ed. 71, 112, 114; Wills Act, sec. 35.
Argued for respondents (claimants Worth and Others)—The decision of the Sheriff was right. At the date of the will there was an implied condition that the will was only to last till marriage. The rule of English law that marriage revoked a will was based “on a tacit condition annexed to the will itself when made, that it should not take effect if there should be a total change in the situation of the testator's family” — per Tindal, C.-J., in Marston v. Roe, 1838, 8 A. & E. 14, at p. 58; Israell v. Rodon, 1839, 2 Moore's P.C. Rep. 51. The will was therefore revoked. The case of Loustalan ( cit. sup.), which impliedly overruled Bremer (cit. sup.), was decided on the ground that there was an implied assignation to the husband which was inconsistent with the will made by the lady. That was independent of the Wills Act. That case, moreover, was a decision as to effect of marriage on the proprietary rights of the spouses, and not as to the effect of marriage, apart from the Wills Act, on a will previously executed. In the case of De Nicols (cit. sup.) the question was between contractual and testamentary rights, and the Code Civil was read in as equivalent to a marriage-contract. Section 18of the Wills Act( cit. sup. [should similarly be read in here.
At advising—
The argument for intestacy turns entirely upon the fact that by the 18th section of the Wills Act 1837 it is enacted that every will made by a man or woman shall be revoked by his or her marriage. It is admitted by the parties that the Wills Act does not apply to Scotland, but it is contended on the one side that, being an Englishwoman, the moment she married her will was cut down, whereas, on the other side, it is maintained that the moment she married she became a Scotswoman, and that therefore the Wills Act had no effect, and the will was not cut down. The Sheriff-Substitute and the Sheriff have taken different views upon the matter. The point is a novel one, as to which I do not think that, in this country at any rate, there is any authority. The Sheriff-Substitute held that the will was good. His view is very well expressed. He says—“It is the law of the testatrix's domicile at the time of her death that determines the validity of the will. The testatrix died a Scotswoman, and by the law of Scotland, a will valid when made according to the law of the testator's then domicile remains in force, notwithstanding a subsequent marriage, unless, of course, revoked. No doubt, if the testatrix here had married an Englishman, the will would have been, ipso facto, revoked as if it had never been, and could not have been
Page: 163↓
In these circumstances it cannot but be said that the question is one of nicety. If I may venture a criticism upon the learned Sheriff's judgment, it would be this, that I do not think the case can be well disposed of upon what I may call metaphysical considerations as to the precise moment of time at which these things happened.
I think the way to dispose of the case is to begin at the beginning of the elementary principles that govern such matters. The first question undoubtedly is this—what is the domicile of the alleged testatrix at the time when she died? There is no doubt about that; everybody agrees that she died Scottish. Therefore you have first the undoubted proposition that it is the law of Scotland that will regulate the distribution of the effects which she left behind her; and indeed it is conceded not only in argument at the bar, but it is conceded de facto by what has happened, because, of course, it is under the law of Scotland that one-half of her moveable estate has been given to her surviving husband in name of jus relicti, which is a purely Scottish right. But further, the law of Scotland goes on to say that the half which is not affected by the jus relicti, the half which is the dead's part, shall be carried by a will if she left one; and accordingly it is the law of Scotland which will first of all decide whether she did leave a will or whether she did not. A certain document is produced which upon the face of it bears to be a will; and here the law of Scotland, although completely keeping to itself the right of pronouncing whether anything is a will or is not, will often have to have recourse to other systems of law in order to know whether a particular document is or is not a will. Take the case that the will in question was a will, which undoubtedly was badly executed according to the law of Scotland, but of which it was alleged that it was quite properly executed according to the law of the country where the person was domiciled at the time that he executed it. The law of Scotland will always go to that system of law and will inquire—“Is this will well executed according to the forms of that other country, or is it not?” If the answer is in the affirmative, then it will give effect to it according to the law of that country. We had a very excellent argument upon both sides of the bar, but I cannot go the whole length that Mr Brown wished us to go in the second portion of his speech, when he urged that the moment we say that this lady was a domiciled Scotswoman then the question ended. The question does not end, because once you have to go to another system to find out whether this is a will or not, you have got, of course, to take the history of the document. I am assuming you are answered at once that according to English law the will was well executed; but then it would be pointed out, that although it is well executed, it was put out of existence by something else happening, and we are bound to look into that. Now, what is that something? That something is the fact of the marriage, and accordingly it seems to me that we are bound to consider as the next question what was the state of the law which arose upon the marriage. By what law is that to be determined?
It seems to me that the real principle is that when you come to consider the effect of the marriage upon the patrimonial rights of the persons who were married, you must, apart of course from questions of special contract, always consider that according to the law of the domicile of the married persons, and the law of the domicile of married persons is the law of the domicile of the husband.
I am confirmed in this view, because I think it is directly in accordance with the views that were taken by the Master of the Rolls, now Lord Lindley, in a case which does not seem to have been cited before either of the learned Sheriffs— Loustalan v. Loustalan, L.R. [1900] P 211. The judgment itself does not touch this case, and there was so much difference of opinion among the learned Judges who disposed of the case upon the precise import of the facts, that one has to look at the case with considerable care in order to extract from it what was really laid down in it. The question was, whether a will made by an unmarried Frenchwoman was or was not revoked by her subsequent marriage. The lady in question was undoubtedly French in origin. She came over to England and entered domestic service with an English family. While she was in England she made this will. It was not executed according to the law of England; it was executed according to the law of France. About four years after that she left domestic service and established a laundry business in London. In the same year she married a French refugee, who was flying from France at that time in order to escape from a prosecution for some offence which he had committed. Indeed, he had been sentenced in absence to ten years' imprisonment. The parties lived together for some time in England, and then, the ten years having run out, the husband seemed to have thought it safe to go back to France again, which he then id. He and his wife parted company, she
Page: 164↓
There are certain observations of both Lord Justice Rigby and Lord Justice Vaughan Williams to the effect that this 18th section of the Wills Act is part of the matrimonial, and not of the testamentary, law, with which I find it difficult to agree. I am not sure that I quite understand what they mean by that, because I cannot see that you can divide the law into chapters, and say that such a thing belongs to one portion of the law and not to another. Of course in many cases it may be convenient to do so for the purposes of discussion or reference, but I do not see how the effect of a thing can depend upon that division into chapters. What I take from the case of Lonstalan, accordingly, is not the decision, but rather certain observations of Lord Lindley, which I think are absolutely in point in the view of the law which I am suggesting, although as a matter of fact they did not receive application in that case owing to the view of the facts that Lord Lindley took.
Now, Lord Lindley begins, just as I have ventured to begin, by saying you must first of all begin at the death of the alleged testatrix, and find what the domicile then was. He held that her domicile at her death was French; but he goes on to say— “The validity of a will of moveables made by a person domiciled in a foreign country, at the time of such person's death not only may, but must, depend on the view its courts take of the validity of the will when made.” Here it is agreed that the will was valid when made. But then he goes on to say, not only that it depends on the validity of the will when made, but on its subsequent revocation if that question arises. “These questions,” he says, “may or may not turn on the domicile of the testator as understood in this country;” and then he goes on to state the facts, and says—“By whatever court this question is to be decided, the English law of marriage, which in such a case involves, and indeed turns on, English views of domicile, must be considered. If this view be ignored the effect of the marriage will be inadequately, and indeed erroneously, ascertained. If the domicile of the testatrix is to be treated as English, when she became a married woman her will was revoked by her marriage, for such is the law of England whatever the intentions of the parties may be; but if her domicile was French, her will would not be revoked by English law, and still less by French law. Both laws are alike in regarding her domicile as that of her husband as soon as she married him. The effect of her marriage must therefore depend on the English view of his domicile.” That is exactly what I have suggested to your Lordships. Further on, in a later portion of his judgment, his view is made perfectly clear, if your Lordships keep in mind what I have said upon the facts of the case, because at page 233 the learned Lord says this—“The domicile of the testatrix being French when she made her will and when she died, it became necessary to ascertain the effect of her will on her moveable property according to French law. The husband being, in my opinion, domiciled in France when she married, it became necessary to ascertain the effect of such marriage by French law upon her will, and if in order to ascertain this it became necessary for the French experts to be told what the English law was, they should have been told that it depended on the view which an English Court would take of the domicile, in the English sense, of the husband, and if I am right in my view of his domicile, the experts should have been told that by English law the marriage in this case did not revoke the wife's will.”
Your Lordships will notice that I have emphasised the fact that he always speaks of the husband and his domicile. He excludes altogether the consideration of what was the domicile of the wife. He says it is quite enough if you settle, one way or another, what was the domicile of her husband
Page: 165↓
Accordingly, I think that, carefully looked into, it will be found that I certainly have the great authority of Lord Lindley for the proposition that I am putting, that when you come to consider what the effect of the marriage is upon the will, which you have already started with as being properly executed, you must consider that in the light of the law of the domicile of the married persons at the date of the marriage, and the law of the domicile of the married persons is the law of the domicile of the husband. Here the domicile of the husband at the date of the marriage was Scottish; and therefore you have to consider the effect of the marriage upon the will in the light of the Scottish law and not of the English. That being so, there is no question whatsoever that by the Scottish law the will of this spinster, being valid before her marriage, was not revoked, and accordingly I think the will stands.
That disposes of the case; but I ought to mention a very ingenious argument Mr Watson pressed upon us, which was this, that the effect of the English Wills Act was really, so to speak, to read a clause into every English person's will to the effect that his will shall be revoked on marriage. He cited authorities in which certain expressions were used that are consistent with that view. I am not in any way controverting the authority of these cases, because they do not touch the point at all. It would be quite a convenient way of speaking to say that every will has got that read into it; but if you are to press that form of expression to more than a convenient way of speaking, then I do not agree. I do not think we need go further on this point than to cite the case of Loustalan, where the Court held the will was revoked. The lady in that case married a person whom the Court held to be a domiciled Englishman. Of course it does not matter whether the facts were rightly or wrongly decided. The husband in that case was a domiciled Englishman according to the majority of the Court, and that revoked the will. That could only be by the operation of the Act at the time of the marriage, because it is evidently absurd to suppose that that French spinster's will had ingrafted into it a condition that revoked it upon marriage, because everybody agrees that, at the time she made the will, the will was a French document and not an English document. Accordingly, I think that shows that what Mr Watson says is no more than a convenient form of expression, and did not really go to the root of the matter. On the whole matter, I am of opinion that we should recal the judgment of Sheriff, and revert to the judgment of the Sheriff-Substitute.
The question therefore is, what effect, according to those principles of what is called international law, which form partof the law of Scotland, is to be ascribed to the rule of the law of England that marriage revokes a will. The rule upon which that depends appears to me to be well settled; and it is this, that the effect of marriage on the civil rights of the married persons, and in particular on their rights in moveable property, depends upon the law of the domicile of the husband. Without referring to the text writers upon this subject, I think it is enough for the purposes of this case to cite the highest authority in law—the decisions of the House of Lords in cases
Page: 166↓
It is true that the main question involved in that case was one of status, but that makes no difference for the present purpose. It only created a difficulty which does not arise in the present case, by reason of the conflict between the English law of bastardy and the Scottish law of legitimation per subsequens matrimonium. The oint decided was that the marriage of a domiciled Englishwoman in England to a domiciled Scotsman was, as regards all its civil consequences, a Scottish marriage. The question must have been decided obviously exactly in the same way if it had concerned only a question of property and not a question of status; and, indeed, the question of status was considered only as a step towards the decision of a question of property, because the real point in dispute was whether the child whose legitimation was in question was or was not entitled to succeed to the estate of Fowlis. Lord Brougham says—“I apprehend that the decision to be given upon this case is not a judgment absolutely and generally finding that the party is legitimate, but it is a judgment finding according to the conclusions of the libel, which proceeds upon the statement of facts, that she ought to be found and declared, as lawful daughter, entitled to succeed under the entail as next heir.” The application of that doctrine to the question now in dispute seems to me to be perfectly clear. Without considering the question which seems to have been discussed in England, as to whether the rule of the Wills Act is part of the testamentary law or part of the matrimonial law, I think this at least is certain, that if the revocation of the will is the direct consequence of the marriage, then if it is an English marriage its effect in law will be to revoke this will, and if it is a Scottish marriage it will not. I apprehend there can be no reasonable doubt, and I think it was not disputed in argument, that if the law be as I hold it to be, that the civil consequences of a marriage are fixed by the law of the husband's domicile, then the whole moveable property of the wife, although she was a domiciled Englishwoman until the marriage, must be regulated by the law of the husband's domicile which she then adopts. If this marriage had taken place before the passing of the Conjugal Rights Act and the Married Women's Property Act, there could be no room for doubt that the whole moveable property of the wife, in the absence of contract, would have been carried to the husband by the assignation implied in marriage. And there seems to me to be just as little doubt, that if the law of England now were that the marriage vested the whole of the wife's property in the husband, the wife in this case would, notwithstanding, have been entitled to the benefit of the Scottish Married Women's Property Act. I refer to the language of that Act for the purpose of observing that it assumes the law of Scotland to be, as in my opinion it is, that the civil rights of the spouses must be determined by the domicile of the husband— “Where a marriage is contracted after the passing of this Act, and the husband was at the time of the marriage domiciled in Scotland, the whole moveable or personal estate of the wife shall be vested in the wife as her separate estate, and shall not be subject to the jus mariti of the husband.” By the law of Scotland, therefore, the personal estate of this testatrix became vested in her on her marriage as her own separate estate, to the exclusion of any right in her husband, and the same law which determines her right to the property, must determine her capacity to dispose of it by testament. That the law of England should be called in to revoke a will already made, as one civil consequence of the marriage, and then make way for the law of Scotland to regulate all the other civil consequences of the same marriage, seems to me to be contrary to all legal principle and sound reason. I think, with your Lord-ship, we may be confirmed in this view, not, indeed, of the rule of law as settled by the decision of the House of Lords, which needs no confirmation, but of its application to the particular question before us, by the opinion of Lord Lindley in the case of Loustalan v. Loustalan. It seems to me that our decision might be expressed in the exact words which are used by Lord Lindley, substituting only the name Scotland for the name France, for his Lordship says this—“If the domicile of the testatrix is to be treated as English when she became a married woman her will was revoked by
Page: 167↓
The Court recalled the Sheriff's interlocutor, found in terms of the interlocutor of the Sheriff-Substitute, affirmed the said interlocutor, and decerned.
Counsel for the Appellants— A. R. Brown. Agents— Horne & Lyell, W.S.
Counsel for the Respondents— Hon. W. Watson. Agents— Dalgleish & Dobbie, W.S.
