Laneuville and Madame Bovy, the executor having renounced. On the 4th of February 1859, Ferdinand Laneuville and Madame Bovy appeared as representing Madame Laneuville, the original plaintiff. In March an order was made, by consent of all parties, that the affidavits filed and the evidence taken in earlier stages of the cause should be read as evidence in the suit, saving all just exceptions.

On the 19th of March 1859, Guichard filed a declaration, alleging that William Anderson, a British subject, who died on the 23rd of December 1849, at Paris, a domiciled Frenchman, made his last will and codicil thereto, both bearing date the 26th of January 1848, and by the codicil appointed Guichard sole executor; that the same were duly executed according to the law of France, and were, by that law, valid and effectual; that they have been respectively duly proved in France, and, by the competent tribunal, pronounced to be valid and effectual.

The defendant Anderson pleaded that the documents mentioned in the declaration were only a partial or limited will, confined to certain property situate in France, out of the jurisdiction of this Court. He then pleaded the will of June 1843, and that the defendant was heir-atlaw and sole next-of-kin of the deceased. And further, that by and according to the law of France, the appointment of Guichard as executor by the alleged codicil was not an absolute and unlimited appointment, and that the same had expired before the commencement of the proceedings in this court, and that Guichard was not, at such time, entitled to have probate of the alleged documents, or either of them, or administration of the personal estate of the deceased, and then averred the decision of the Court of First Instance, and that it was affirmed, on appeal, by the Imperial Court of Paris.

Ferdinand Laneuville and Madame Bovy pleaded the death of the testator, the will and codicil made on the 26th of January 1848; that Guichard, in 1856, by the law of France, and by orders and decrees of competent tribunals in France ceased to be, and is not now entitled to probate of the will and codicil; that the universal legatee, Madame Laneuville, died in January

1856, and that the defendants Ferdinand Laneuville and Madame Bovy are her personal representatives both in England and in France.

Eli Titon Laneuville, the third child of Madame Laneuville, appeared in July 1859, and pleaded the will made in France, and prayed that probate should be granted to Guichard.

To the pleas of Anderson Guichard replied, that the will made on the 26th of January 1848 was not a limited will, disposing only of property in France, but disposing of all the testator's - property, wherever situate, and that it had been so held by the Court of First Instance; secondly, that if the will of the testator of the 24th of June 1843 was originally valid, it was revoked as to all property, wherever situate, by the will of the 26th of January 1848, and that it had been so decided by a formal decree of a competent Court in France; thirdly, that his appointment as executor had not, by the law of France, expired; that at the commencement of this suit he was entitled to probate, and that the French Court had not decided that he was not entitled to probate in England; fourthly, that it was not competent to a French Court to limit the powers or regulate the duties of an executor in England, and that if the French Courts have assumed to pronounce that Guichard's functions as executor have expired in England, such decisions are not by the law of England, or by the law of nations, binding on the Court of Probate.

To the plea of Ferdinand Laneuville and Madame Bovy he replied, admitting the will of the 26th of January 1848, but denying that his title as executor had expired; secondly, that, although administration with the will of Madame Laneuville annexed had been granted to Ferdinand Laneuville and Madame Bovy, that will was void by the law of France. No evidence was given to support this allegation, and it need not be further noticed. Anderson rejoined, taking issue on the allegations of the replication, and averring that the allegations of the decisions of the French Courts were irrelevant to the merits of the case. In this form the record was set down; but at the hearing Anderson obtained leave to amend his second plea,

by averring that at the date of the will of June 1843 the testator was domiciled in France, and that the will executed in England, with the forms required by the law of England, was valid by the law of France. Guichard traversed these averments.

The hearing of the cause occupied the 13th, 14th, 16th and 17th of July 1860.

Bovill, T. W. Greene and Dr. Spinks, for Guichard.

Eddis, for Eli Laneuville.

Dr. Deane and G. Lushington, for Ferdinand Laneuville and Madame Bovy.

Sir H. Cairns, Dr. Twiss and B. Hardy, for Anderson.

At the hearing, M. Malampert, Avocat of the Cour Impériale of Paris, was examined on behalf of Guichard; and M. Le Chevalier de Rosaz, formerly practising as an Avocat in France, and M. Jules Favre, an Avocat of the Cour Impériale of Paris, were examined on the part of Anderson. The effect of their evidence as to the French law is stated in the judgment. The decrees of the French Courts mentioned in the pleadings were also put in evidence.

The arguments of counsel were, in substance, as follows:

Argument on behalf of Guichard. · There are two questions:-First, as between Anderson and all the other parties, Whether the will of 1848 is a valid will? Secondly, as between F. Laneuville and Madame Bovy on the one side, and Guichard and E. T. Laneuville on the other, Whether, if it be a valid will, Guichard is entitled to probate? As to the first question :—since the judgment of the Privy Council, it must be taken that Mr. Anderson, when he made the will of 1848, was domiciled in France; and the will, being made in conformity with the French law, is entitled to probate if it extends to property in England. That it does extend to such property was decided by the judgment of the French Court of the 8th of December 1857, in the suit to which the representatives of Madame Laneuville and Anderson were parties.

Even if the dispositive part of the will were confined to property in France, the appointment in the codicil of an executor would entitle him to probate. But the words

of the will, in effect, pass "property both real and personal wherever situate." The construction of it must be according to the French law-Story's Conflict of Laws, s. 479, a, b, c, and Westlake on Private International Law, s. 329. In France, the appointment of a person "légataire universelle" passes all the property of the testator real and personal, and wherever situate. The term "légataire universelle" is borrowed from the Roman Law. By Art. 1003. of the Code Civil, an universal legacy is defined to be a disposition of the universalité des biens, "biens" including realty as well as personalty-see also Story's Conflict of Laws, ss. 507-512.

It will be contended that the words " et notamment," &c., restrain the former words, and confine the gift to the property specified; but the judgment of the French Court is opposed to such a construction. It has been throughout assumed that the will applies to realty as well as personalty, and if so, the words "notamment," &c., cannot limit the operation of the general term "légataire universelle." The next question is, whether Guichard has a right to probate as executor? By the English law, where an executor is appointed he derives his title from the will, and the Ordinary has no discretion, but must grant probate to him, even though the dispositive part of the will may not extend to property in this country. The Court would be bound to grant probate to Guichard, as he is appointed executor without limit-Thornton v. Collins (2), Godolphin's Orphan's Legacy, Part II. c. 1, p. 75, and 1 Williams on Executors, 5th edit. pp. 204, 205. It is contended on the other side that Guichard's title as executor has expired; and in support of this proposition they mainly rely on the judgment of the French Courts, especially that of the Cour de Cassation of the 19th of April 1859. That judgment has no such effect, for no State has power to regulate the management and distribution of effects not within its own territory. In France, an executor has at the end of a year from the death of the testator to render an account, the policy of the French law being to bring the administration by

(2) 8 Sim. 310.

the executor to a close at the end of a year as between him and the persons beneficially interested in the estate - Code Civil, Art. 1031, so that at the end of the year the bénéficiaires may require an account, and decline to allow the executor to interfere further, and his functions would be at an end. In England we have no such thing as discharging the executor from further interfering with the estate. There is another distinction also between an executor under the French and English law. In France the executor may be appointed with seisin or without seisin. The former is simply clothed with the duty of seeing that everything is duly executed; the latter has also the seisin or possession of the estateCode Civil, Art. 1026. Here Guichard was an executor without seisin; the property was left entirely to Madame Laneuville, and she, by the decree of 1850, was put in possession of the whole property. Even an executor with seisin cannot retain possession of the estate for more than a year-Art. 1026. If seisin is given by the will to the executors, he can only retain it for a year and a day; and if it is not so given he cannot require it-Art. 1026. But the rule of French law which precludes an executor from intermeddling with the estate after a year has elapsed, can have no application to personal property out of France. The judgment of a French Court can have no extra-territorial effect upon property in another country. There is no rule of international law by which the Courts of one country can interfere with the administration of personal property situate in another country; but the management of such property belongs to the country where it is situate-Story's Conflict of Laws, ss. 512, 513, 514, 524; Westlake's Private International Law, p. 311. In this country rights could only be enforced against the estate by proceedings against the executor. A decision that Guichard is not entitled to probate will overturn the practice of this Court. The grant of probate to an executor named in a French will has always been a general grant, whereas if his right to the executorship continues only for one year the grant to him should be limited.

Argument on behalf of Ferdinand Laneu

ville and Madame Bovy. Madame Laneuville's representatives are entitled to administration with the will annexed. Anderson having died domiciled in France, the French Courts had jurisdiction to decide which was his last will, and who should have the carriage of it, and their decision is binding on this CourtBremer v. Freeman (3); Story's Conflict of Laws, 479 g.; 1 Jarman on Wills, 3; Enohin v. Wylie (4); De Bonneval v. De Bonneval (5). The French Courts have decided that the will of 1848 revoked that of 1843, and was the last will of the deceased, and that Madame Laneuville, as légataire universelle, was entitled to the whole of the property of the deceased wherever situate, and that Guichard, by the law of France, has no right to the executorship.

Even if the construction of the will of 1848 were to be according to the rules of English law, the enumeration of the particular property by the words "et notamment, &c.," would not limit the preceding general bequest-1 Jarman on Wills, c. 23, p. 700. The meaning and effect of both the expressions, "légataire universelle" and "exécuteur testamentaire," must be governed by the French law-In the goods of the Countess of Da Cunha (6), In the goods of Dormoy (7), In the goods of Rogerson (8).

Argument on behalf of Anderson.· First, the testator, when he made the will of 1843, was domiciled in France-Anderson v. Laneuville (9); and that will, having been made in England, in conformity with the law of England, is, by the French law, valid-Code Civil, Art. 999, Crookenden v. Fuller (10). Secondly, by the will of 1843 particular legacies were given to Anderson, which were not revoked by the will of 1848, assuming that the gift in the latter will to Madame Laneuville was a "legs universel" in the strict sense of the term. By the French law, there are three kinds of legacies: first, "legs universel"; (3) 10 Moore, P.C. 324. (4) 1 Swab. & Tr. 122. (5) 1 Curt. 857. (6) 1 Hagg. 237. (7) 3 Ibid. 767. (8) 2 Curt. 656.

(9) 9 Moo. P.C. 284, 285.

(10) 29 Law J. Rep. (N.s.) Prob. M. & A. 1.

secondly, "legs à titre universel"; thirdly, "legs à titre particulier" (11). All these, by the French law, may co-exist. A universal legacy in a later will is not incompatible with, and therefore does not of necessity revoke particular legacies in a prior will. Authorities for this proposition are Dalloz, Jurisprudence Générale, vol. for 1831, p. 186, The Nismes case, Feb. 1809 (12), The Paris case of Nov. 8, 1830 (13), The Grenoble case, June 1827 (14), a case decided Feb. 25, 1836, reported in Dalloz, vol. for 1836, p. 46.

In construing the will of 1843 the result will be the same, whether the rules of interpretation of the French or English law be followed; though, as this will is in the English language, it is submitted that the latter should govern the construction. According to both, the will of 1843 contains particular legacies. After a bequest of 2,000l. to another nephew, also named William Anderson, who died in the lifetime of the testator, it continues:

"And as to, for and concerning my estates of Ballyvouden, Knockroe," &c., "containing, by estimation, 783 acres, be the same more or less, severally situate in the barony of Connaught, in the county of Limerick, and all other my estates of freehold, copyhold, and for years, messuages, lands, tenements, hereditaments, and all real estates whatsoever and wheresoever situate, &c., and also all my monies and securities for money, and capital or stock in the public funds, and all my personal estate, goods, chattels, credits and effects (subject, nevertheless, to, and they are hereby expressly charged with and made liable to the payment of the said legacy of 2,000l., and my just debts, funeral

(11) Code Civil, Art. 1002.—"Les dispositions testamentaires sont ou universelles, ou à titre universel, ou à titre particulier."

Art. 1003.-"Le legs universel est la disposition testamentaire par laquelle le testateur donne à une ou plusieurs personnes l'universalité des biens qu'il laissera à son décès."

Art. 1010." Le legs à titre universel est celui par lequel le testateur lègue une quote-part des biens dont la loi lui permet de disposer, telle qu'une moitié, un tiers, ou tous ses immeubles, ou tout son mobilier, ou une quotité fixe de tous ses immeubles, ou de tout son mobilier. Tout autre legs ne forme qu'une disposition à titre particulier." (12) Sirey, vol. 28, p. 188.

(13) Dalloz, vol. for 1833, p. 214.
(14) Sirey, vol. 28, p. 188.

and testamentary expenses), I give, devise and bequeath the same, and every part and parcel thereof, respectively to my nephew, William Anderson, his heirs, &c., to and for his and their own use," &c. Those terms clearly constitute specific legacies to W. Anderson-Clarke v. Buller (15), Shuttleworth v. Greaves (16), Weld v. Acton (17), Freeman v. Freeman (18). Thirdly, the will of 1848 does not constitute a "legs universel," but a "legs à titre universel.” In construing it extrinsic evidence as to all surrounding circumstances is admissibleWigram on Extrinsic Evidence in Aid of the Interpretation of Wills, Proposition 5. p. 51. Here the extrinsic evidence tends to shew that the testator could not have intended to leave all away from his relatives. He had a large estate in Ireland, considerable personal property in England, and in his will of 1843 shewed a desire to keep his estates in his family. He also kept up a correspondence with his nephew long after he had changed his domicil, and was on good terms with him and other relatives. As to the construction of the will of 1848, there are no words to shew the testator intended to dispose of all his property, and must have known that such a will would not pass realty in the United Kingdom. The will is clearly that of a person not well acquainted with the idiom of the French language, and the more reasonable construction would be to read it as giving Madame Laneuville only the property in France, placing the words after "universelle" down to "moi" in a parenthesis, making the words " en France" to follow "légataire universelle." Fourthly, the judgments of the French Courts, especially that of December 1857, are not binding on this Court. A plaintiff relying on a foreign. judgment must shew that it is unimpeachable. He cannot rely on the res judicata so strongly as when it is set up in bar of a suit -Wheaton on International Law, 6th edit. p. 205. Now, a foreign judgment is not binding, first, if it offends against the principles of international law; secondly, if, professing to proceed on principles of English law, it proceeds erroneously;

(15) 1 Mer. 304.

(16) 4 Myl. & Cr. 35.

(17) 2 Eq. Cas. Abr. 777. (18) 5 De Gex, M. & G. 704.

thirdly, if error be apparent on the face of the judgment; fourthly, if the judgment be contrary to common sense or reason; fifthly, if the Court had no jurisdiction; sixthly, if the objects of the suit in which the foreign judgment is set up differs from the object of that in which the judgment was pronounced-2 Smith's Leading Cases, 633, 639; Reimers v. Druce (19), Castrique v. Imrie (20), Simpson v. Fogo (21). The judgment of the French Court is open to all these objections. It violates the comity of nations, for by that the Court which has got seisin of a litigation is the Court which should finish it, and no other Court has a right to intermeddle. The Laneuvilles had commenced in this country to litigate the question Who was entitled to probate, and then whilst the question was sub judice, they having elected the tribunal of this country in the midst of the litigation commence proceedings in France. Anderson protested, and the proceedings were taken by default. This was in violation of the local French law as well as the law of nations-1 Felix on International Right, p. 342, Dalloz, vol. for 1837, p. 100. The decree of the 8th of December 1857 shews that there was a lis alibi pendens, and, therefore, on principles of French law, the French Court had no jurisdiction. The Court, professing to draw a conclusion of English law, does so erroneously, as the judgment states that the litigation in the English courts was at an end, whereas only the question of domicil was determined. There is apparent error, as the decree states the effect of the will of 1843, when that will was not seen by the Court. It was contrary to common sense, as it pronounced the meaning of the will, not upon its words, but upon the presumed intention of the testator. The Court had no jurisdiction according to French law. Lastly, the object of the two suits was not the same, that of the French suit being to obtain the property in France, that of the present suit being to obtain the property in England. Cur. adv. vult.

SIR C. CRESSWELL now delivered judgment.-[After stating the facts and plead

(19) 23 Beav. 145.

(20) 29 Law J. Rep. (N.s.) C.P. 321. (21) 8 Weekly Reporter, 407.

ings as above set out, and that the case was very fully and ably argued for all parties, his Lordship continued:]-The following appear to be the material points raised for the consideration of the Court :-First, whether the testator was domiciled in France at the date of the will, 1843, so as to render that a valid will, and entitled to probate if not revoked. Secondly, whether that will was revoked by the will dated the 26th of January 1848. Thirdly, whether this Court is bound by the decree of the French Court on that point. Fourthly, whether Guichard is entitled to probate of the will of 1848; and in this question is included the effect to be given to the decrees of the French Courts, declaring that his title as executor had expired.

The first substantial question in the case is, whether I have one or two wills to deal with, and that depends upon whether the testator had become domiciled in France before the will of 1843 was made. If he had, the evidence proves that the will was valid by the law of France. If he had not, it became inoperative as to personal property upon the subsequent change of domicil. This point was not much discussed at the bar. The evidence taken in the original suit furnishes arguments on both sides. But it seems to me that the reasoning of Sir John Dodson, which was approved and adopted by the Judicial Committee, is applicable to this question, and shews that the domicil had then been changed. I must, therefore treat each will as good when made, and as continuing so, unless the first was revoked in whole or in part by the second-which is the next question to be considered. On this point it was contended for the Laneuvilles and Guichard that the second will, in terms, disposed of all his property in a manner at variance with his former will, which it therefore revoked by implication, though not expressly; and, further, that on this point the Court ought to adopt the decision of the French tribunal, to which it properly belonged to decide what was the last will of a domiciled Frenchman. On the other hand, it was contended that the second will read by itself was confined to property in France; that the words "légataire universelle" were to be read in connexion with "en France le tout sans rien