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Colonial Cases

Lagesse v. Allard, 1873

[succession]

Lagesse v. Allard

Judicial Committee of the Privy Council
29 January 1873
Source: The Times, 30 January, 1873

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, Jan. 29.
(Present - Sir J. Colville, Sir R. Peacock, Sir M. Smith, and Sir R. Collier.)
LAGESSE v. ALLARD AND ANOTHER. - JUDGMENT.
  This was an appeal from the Supreme Court of Mauritius, and was argued on a former occasion.
   Mr. Mackeson, Q.C., Mr. Westlake, and Mr. S. Bryce were for the appellant, Azema, otherwise Emma Lagesse; the Solicitor-General and Mr. E. Cutler for the respondents, Lucie Allard and Alphonse Lagesse.
  The action in which the appeal arose was commenced in April, 1870, by the respondent, Lucie Allard, as plaintiff against Azema, otherwise Emma Bouchezey, widow, a guardian of Cecile Lagesse and Marie Lagesse, infants, and Alphonse Lagesse, the testamentary executor of Leonce Lagesse, deceased.  The object of the action was to recover a legacy of $10,000 (2,000 l.)  bequeathed to the respondent, Lucie Allard, by the will of Leonce Lagesse, and $60 costs. The respondent, Lucie Allard, is the wife of Timothee Allard, and in the absence of her husband from the island, was authorized to apply for the legacy. The will was in a mystic or secret form, being deposited with a notary without any disclosure of its contents. The testator died on the 16th of April, 1870, without revoking or modifying his will, having in August. 1867, intermarried with the appellant, Azema Bouchez, and by the Civil Code his children were thereby made legitimate. The question arose under the French law of succession, and the respondent alleged that as the children of the testator were illegitimate at the time of making his will they could not by any means receive by will or otherwise more than one moiety of his property, the testator having at the time legitimate brothers and sisters, nephews and nieces. The Court below directed the appellant. Emma Lagesse, to elect on behalf of the children whether she took one-half or two-thirds of the property, and hence the appeal by her.
  Sir James Colville now delivered the judgment of their Lordships, and after reviewing the case and applying the law, said they would humbly advise Her Majesty to affirm the decision of the Court below, and dismiss the appeal with costs.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School