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Colonial Cases

Abd-Ul-Messih v. Farra, 1888

[succession, application of English law - domicile]

Abd-Ul-Messih v. Farra

Judicial Committee of the Privy Council
17 March 1888
Source: The Times, 19 May 1888 [13 App. Cas. 431]


LAW REPORT, March 17.




This was an important appeal from a judgment of Her Majesty's Supreme Consular Court of Constantinople (consisting of Mr. J. H. Fawcett, the Judge, and Mr. C. J. Tarring, the assistant Judge of that tribunal) pronounced on May 28, 1886, in an action in which the appellant was plaintiff, and the respondents were defendants.

Mr. Lumley Smith, Q.C., Mr. Jeune, Q.C., Mr. H. J. Hood, Mr. Frank Stafford, and Mr. H. W. Challis appeared for the appellant; Sir Horace Davey, Q.C., Mr. Seward Brice, Q.C., and Mr. A. Mattei were for the respondents.

The arguments were heard some weeks since by their Lordships (Sir James Hannen then sitting with them), and at their close judgment was reserved.

LORD WATSON now delivered their Lordships' judgment.  He said, - The appellant, in October, 1885, instituted the present suit before Her Majesty's Supreme Consular Court of Constantinople for probate of the will of her husband, Antoun Youssef Abd-ul-Messih, who died at Cairo in February, 1885, leaving a large personal estate.  Her application was opposed on its merits by the respondents, two of the next of kin of the deceased, who also pleaded that the Court had no jurisdiction.

The Judge of that Court, by a decree of February 24, 1886, sustained his own jurisdiction in respect of the deceased having acquired the status of a protected British subject, and in that finding both parties had acquiesced.  Issues were then adjusted, the first being, "Is English law to be followed in distributing the assets?" and the second, "If the Court is of opinion that English law is not applicable, is Turkish or what other law?" The Court decided that the testator died domiciled in the Ottoman Empire - his domicile or origin - and a member of the Chaldean Catholic community, and decreed that the law of Turkey governing the succession to a member of the Chaldean Catholic community domiciled in Turkey be follower in considering the power of testacy of the deceased and in distributing his effects.

It was therefore res judicata that the Consular Court had jurisdiction to entertain the suit and to administer the estate of the deceased in accordance with the Order in Council of December 12, 1873, which enacted that Her Majesty's civil jurisdiction in the Ottoman dominions should be exercised under the provisions of that order, and prescribed that the civil jurisdiction thereby established should, as far as circumstance admitted, be exercised on the principles of and in conformity with the common law, the doctrines of equity, the statute law, and other law for the time being in force in and for England.  It was further enacted that the Consular Court of Constantinople should be a Court of Probate, and should have for the Ottoman dominions, with respect to the property of deceased resident subjects or protected persons, all such jurisdiction as belonged to the Court of Probate in England.  A "subject" was defined as being subject of Her Majesty by birth or naturalization, and a "protected person" as a person enjoying Her Majesty's protection. Those were the only classes of persons whose estates on their decease were made subject to the probate jurisdiction of the Consular Court.

Their Lordships were of opinion that it was the duty of the Consular Court to follow in the present case the same principle which would have been followed by an English Court of Probate.  It was a settled rule of English law that civil status, with its attendant rights and disabilities, depended not upon nationality, but upon domicile alone, and consequently that the law of the testator's domicile must govern in all questions arising as to his testacy or intestacy, or as to the rights of persons who claimed his succession ab intestato.  Accordingly the tribunal in which the estate of a deceased was to be administered, if it be not in itself in the forum of the domicile, must defer on all those points to the law of domicile and accept that law as its only guide.

The testator in the present case, the late Antoun Youssef Abd-ul-Messih, was born at Bagdad of Ottoman parents resident there; he went in early life to India, where he remained for a considerable period, and then transferred his abode to Jeddah, in the dominions of the Porte.  In 1858 he left Jeddah for Cairo, where he continued to reside until his death, and he did not appear to have entertained any intention of changing his residence.  During the whole period of his stay in Cairo he was de facto under the protection of the British Government.  In 1876 he was married to the appellant, the ceremony being performed in the manner prescribed by 12 and 13 Vict., cap. 68, which was enacted for the purpose of affording facilities for the marriages of Her Majesty's subjects resident abroad.  On the 9th of June, 1882, he executed in English form the will now sought to be admitted to probate, by which he constituted the appellant his residuary legatee and representative.  Those were the whole facts in evidence which had any material bearing upon the  question of domicile; and, apart from the fact of his having enjoyed British protection in Cairo, they established beyond doubt that the testator at the time of his death had his domicile in the dominions of the Porte. If he did gain domicile in India (of which there was no satisfactory proof), he ceased to retain it when he left that country for Jeddah without the intention of returning.  His domicile of origin then revived and continued to adhere to him until the acquisition of a new domicile.

It was argued for the appellant that her husband's selection of a permanent abode in Cairo, under British protection, attracted to him an English, or, as it was termed, an Anglo-Egyptian, domicile.  That result would doubtless have followed if Cairo had been a British possession governed by English law; but Cairo was in no sense British soil; it was the possession of a foreign Government, and subject to the sovereignty of the Porte.  Certain privileges had been conceded by treaty to residents in Egypt, whether subjects of the Queen or foreigners, whose names were duly inscribed in the register kept for that purpose at the British Consulate.  They were amenable only to the jurisdiction of our Consular Courts in matters civil and criminal; and they enjoyed immunity from territorial rule and taxation. They constituted a privileged society, living under English law in Egyptian soil and independent of Egyptian Courts and tax-gatherers.

The appellant maintainer that a community of that description ought, for all purposes of domicile, to be regarded as an extra-territorial colony of the Crown, and that permanent membership ought to carry with it the same civil consequences as permanent residence in England or in one of our colonial possessions where English law prevailed.  The idea of a domicile, independent of locality and arising simply from membership of a privileged society, was not reconcilable with any of the numerous definitions ort "domicile" to be found in the books.  In most - if not all - of these (from the Roman Code to Story's Conflict) "domicile" was defined as a locality, as a place where a man had his principal establishment and true home.  Probably Lord Westbury was more accurate when he stated ("Bell v. Kennedy," 1, Scotch Divorce Appeals, 320) that domicile was not mere residence, "it was the relation which the law creates between an individual and a particular locality or country."  Lord Westbury, in another case ("Udny v. Udny," 12, Scotch Div. 458), said, "Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for some considerable time."

According to English law, the conclusion or inference was that the man had thereby attracted to himself the municipal law of the territory in which he had voluntarily settled, so that it became the measure of his personal capacity, one which his majority or minority, his succession and testacy or intestacy must depend.  But the law which thus regulated his personal status must be that of the governing power in whose dominions he resided; and residence in a foreign country, without subjection to its municipal laws and customs, was therefore ineffectual to create a new domicile.

No authority was cited which gave the least support to the appellant's contention, except perhaps a single passage in Mr. Westlake's treatise, in which he mentioned Anglo-Indian or Anglo-Turkish domicile as affording apt illustrations of the principle that "in the East every person was a member of that civil society existing in the county in which he was domiciled which his race, political nationality, or religion determined."  If by "Anglo-Turkish" the same kind of domicile was meant as that which the appellant sought to establish, it had no analogy whatever to an "Anglo-Indian" domicile.  The latter was altogether independent of political status.  It arose from residence in India and had always been held to carry with it the territorial law of that country, whether under the Empire of the Queen or under the previous rule of the East India Company, which the Courts of England treated, in questions of domicile, as an independent Government.

By the law established in India, members of certain castes and creeds were in many important respects governed by their own peculiar rules and customs, so that an Indian domicile or succession might involve the application of Hindoo or Mahomedan law; but those rules and customs were an integral part of the municipal law administered by the territorial tribunals.  The legal condition of foreigners resident in Turkey, who were exempted by treaty from the jurisdiction of its local Courts, was very well described by Ferand Giraud, one of the authorities referred to by the appellant's counsel.  They formed, according to the view of that learner writer, an anomalous ex-territorial colony of persons of different nationalities, having unity in relation to the Turkish Government, but altogether devoir of such unity when examined by itself; the consequence being that its members continued to preserve their nationality and their civil and political rights just as if they had never ceased to have their residence and domicile in their own country.  But it was needless to pursue that topic further.

Their Lordships were satisfier that there was neither principle nor authority for holding that there was such a thing as domicile arising from society and not from connexion with a locality.  "In re Tootal's Trusts" (23, Chancery Division, 532) was an authority directly in point, and their Lordships entirely concurred in the reasoning by which Mr. Justice Chitty supported his decision in that case.  It was next argued that the order not only permitted subjects and protected persons who at the time of their decease were resident in the Ottoman dominions, to test according to English law, but prescribed that they should make their wills in English form and no other, but if that were the true construction of the order it might lead to singular consequences.  All that was required in order to give complete probate jurisdiction to the Consular Court was that the testator should have been resident in the Ottoman dominions at the time of his decease; it was not requisite that he should have had his only or principal residence there.  If a Scotchman went to reside in Egypt for the purpose of his business, leaving his family at home, and happened to die there, his testament, sufficiently executed according to the law of Scotland, might still be invalidated by the Statue of Wills; and he, having acquired the testamentary capacity of as domiciled Englishman, could gratuitously defeat the legal rights of his widow and children, according to the laws of his and their domicile.  The same or similar results would follow in the case of British subjects coming to Turkey from any part of Her Majesty's dominions where the law of testate succession differed from that of England.  The professed object of the order of 1873 was, throughout, to confer jurisdiction upon the Consular Courts as thereby regulated, and to lay down rules for their procedure; and it was hardly conceivable that enactments framed for those purposes only, and not affecting to deal with substantive law, should have been intended to introduce such great and important alterations of the personal status and civil rights of Her Majesty's subjects.

The enactments, which not only conferred jurisdiction but specified the law to be administered by those Courts, gave no indication that any such changes were contemplated. According to section 6 they were to administer the law for the time being in force "in and for England." An expression which simply denoted the law for the time being administered in England; and they were to have the same jurisdiction in probate as belonged to the English Court of Probate.  If the present suit had been  brought in the Court of Probate here, there could be no doubt that the law applicable would have been that of the testator's domicile; but it was suggested for the appellant that the words "in and for England" must be read as if they had been "in England and for Englishmen."  That construction would not avail her, because the testate succession of an Englishman was regulated by his domicile, which might be in France or elsewhere abroad.

The next alternative presented by the appellant's counsel was that the husband had de facto, or at all events according to Ottoman law, lost his Turkish nationality, and become a subject of the Queen.  That change in his political status was said to be attended with one or other of these consequences - viz, either that his civil status became that of a domiciled Englishman; or, assuming his domicile to have been in Bagdad, that a Turkish tribunal would, in administering his estate, defer to the law of England, as the law of his nationality. It was clear that the deceased was not, in the sense of English law, a subject of Her Majesty.  Neither did he possess that status, within the meaning of thr Order in Council which expressly enacted that it must be attained either by birth or naturalization.  But the appellant relied on its having been determined, for the purpose of the litigation, that the testator had "acquired" the status of a protected British subject."   The phrase "protected British subject" did not occur in the order, and had no technical significance, and it must therefore be taken to express that which the learned Judge unquestionably meant to affirm - namely, that the deceased had de facto enjoyed the same measure of Protection which was accorded by treaty to British subject in the dominions of the Porte. 

It was argued, however, that it was the law of Turkey, and not of England, which must determine for the purposes of the case, whether the deceased ought to be regarded simply as a protected alien, or as a British subject, who had cast off his allegiance to the Porte.  On that point evidence was cited on both sides, but their Lordships did not consider it necessary to decide between the conflicting opinions, because a decision in her favour would not assist the appellant's case. If it be assumed that in consequence of his having placed himself under foreign protection, the Porte resigned the deceased, both civilly and politically, to the law of the protecting power, that would merely give him the same rights as if his nationality had been English, and the territorial law of his domicile would still be applicable to his capacity to make a will and to the distribution of his estate.  There was no evidence whatever tending to show that the Courts of Turkey, in administering the estate of a person in the position of the deceased, would be guided, not by their own municipal law, but by the rules followed by English Courts, in the case of domiciled Englishmen. But it was submitted that the appellant ought now to be allowed to give proof for the purpose of establishing that proposition.  The record contained no allegation, not even a suggestion, that there was any special law in Turkey with respect to the succession of a protected person; and the appellant had already had ample opportunity of bringing forward such evidence as she thought fit, bearing upon the issues settled for the trial of the cause.    In these circumstances their Lordships did not think she was entitled to any further allowance of proof. 

The appellant has lastly endeavoured to maintain that the deceased's residence in Cairo had at least the effect of giving him an Egyptian as distinguished from a Turkish domicile.  That argument was not addressed to the Court below; but there appeared to be two sufficient answers to it.  The one was that the appellant had not shown that a domicile in Egypt, so far as regarded its civil consequences, differed in any respect from a domicile in other parts of the Ottoman dominions; and the other, that residence in a foreign State, as a privileged member of an ex-territorial community, though it might be effectual to destroy a residential domicile acquired elsewhere, was ineffectual to create a new domicile of choice.

Their Lordships were accordingly of opinion that no cause had been shown for disturbing the judgment of the Consular Court, and they would humbly advise Her Majesty to that effect./  The appellant must bear the costs of that appeal.  The costs of all parties in the Court below ought to come out of the estate.

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