PREROGATIVE COURT OF CANTERBURY. MALTASS against MALTASS. 1842. Dec. 13th. Turkey, no country can This was a business of proving in solemn form of By the law of law, an attested copy of the last will and testament subject of that of John Maltass, late of Smyrna, promoted by the make a will. executors named therein, acting by their attorney, tween Great against the widow of the deceased. By treaty be Britain and the subject domi may make a domiciled at himself had years, and then The Allegation given in the cause pleaded, that pire, an English the father of the deceased was born in this country, ciled in Turkey that about eighty years since, he sailed for the city will. J. M. was of Smyrna in the Ottoman empire. That shortly the son of an after his arrival at that place, he entered a house who had died of business trading under the firm of Lee and Co., Smyrna. J. M. and became a partner in that house, and continued never been in England, extherein, and to reside at Smyrna until his death. cept for the That during his residence at Smyrna, he married space of six and had issue several children, and, among others, the deceased in this cause. That the deceased, at the age of six years, was sent to this country for the purpose of being educated, and remained here until the age of fourteen, when he returned Smyrna, became a clerk in the house of Lee Co., and afterwards entered into business on own account as a British merchant. That he established a firm of J. and W. Maltass, and ever afterwards resided at Smyrna until his death, which took place in the year 1842. That the de to only for the purpose of education; he died at Smyrna, having made a will in the form of an English will, but not attested accord. executed and and his ing to the 1st Vict. c. 26. Probate of such paper re fused. 1842. Dec. 13th. MALTASS against MALTASS. ceased was, at the time of his death, possessed of the sum of 40,000l. in the English funds. The second Article pleaded the will of the deceased, dated the 22nd of October, 1841, and subscribed by the testator, but not in the presence of any witness. The third pleaded the authenticity of the copy of the said will, which had been brought into the registry, and that the original will remained at Smyrna. The fourth pleaded, that by the laws in force throughout the Ottoman empire, it is declared, that it is not competent for a Turkish subject to make any disposition of his property by will, but that the same shall be divided among his relations according to a fixed standard. That by articles of peace between Great Britain and the Ottoman empire, finally confirmed by the treaty of peace concluded at the Dardanelles (a) it is (26 sect.) agreed, "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, on 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 be, to whom the deceased may have left them by his will. And should he have died intestate, then the property shall be delivered up to the English Consul, or his representative, who may be there present; and in case there be no consul (a) 1809. or consular representative, they shall be sequestered 1842. by the judge, in order to his delivering up the Dec. 13th. whole thereof whenever any ship shall be sent by the ambassador to receive the same." The admission of this Allegation was opposed by Phillimore and Jenner. The Queen's Advocate and R. Phillimore, in support of the Allegation, argued that the deceased was, by birth and education, the subject of this country, although, for the purposes of trade, domiciled in another country. That the present Will Act did not apply to the will of an English subject made under the circumstances of this case. Stanley v. Bernes (a), was referred to. JUDGMENT. SIR HERBERT JENNER FUST. The will now propounded, is entirely in the handwriting of the party, it is signed by him, but it is not witnessed; it is dated after the operation of the act of the 1st Vict. c. 26; if the will were the will of a domiciled Englishman, it is clearly invalid. The question is, whether under the circumstances of this case, such a will can be established? The deceased was the son of a person born in this country; about the year 1762, his father sailed for Smyrna, and there entered into a house of business, and he continued to reside and carry on business there until his death. He had several children born in that city, and amongst them, the deceased in this cause, who, when he had attained (a) 3 Hagg. 373. MALTASS against MALTASS. 1842. Dec. 13th. MALTASS against MALTASS. the age of six years, was sent to this country for his education; he remained in this country about six years, and then returned to Smyrna, where he established a house of business, and continued to reside there until his death in 1842. The fourth article of the Allegation pleads, "That by the laws of the Turkish or Ottoman empire, it is not competent to a Turkish subject to make any will of his property, but that the same is by law to be divided among his relations according to a fixed standard; that by a treaty between Great Britain and Turkey, it was agreed in the following terms: That in case any Englishman shall happen to die there, his effects should be delivered up to such person to whom the deceased should have left them, or in case he should die intestate, to the English consul, or otherwise to some person appointed by the English ambassador."" Now when I read this Article, it at once struck me, that if the deceased was domiciled in Turkey, he could make no will at all; if he was a British subject, he must make a will according to the testamentary law of England. I have been told in argument, that he was neither a Turkish nor a British subject in reference to the law, either of Turkey or of England, but that it is a case where a party by the jus gentium, may make such a will. If the deceased is an Englishman, he may, although domiciled in Turkey, make an English will under this treaty, and if so, must not this will be considered as the will of an English subject, and then is it not invalid? If he is a Turkish subject, I have it pleaded, indeed recognised by the treaty, that no Turkish subject can make a will. I may, perhaps, here mention, that if I am asked to grant administration to the deceased, I must have it ascertained who is, by the law of Turkey, entitled to the administration. I reject the Allegation for probate of this paper. 1842. Dec. 13th. MALTASS against MALTASS. CONSISTORY COURT OF LONDON. GRAVES against GRAVES. This was a suit commenced by Lord Graves against Louise Lady Graves, his wife, for a separation by reason of her adultery; a libel on the part 1842. Dec. 15th. In a cause of separation by reason of adul tery, it is not of Lord Graves had been admitted. Graves, pleading. competent for a husband in an initiatory libel, to plead antenuptial incontinence of the proponent, was many wife; marriage is a condonation of such First Article:-That the party formerly Louise Malline, spinster, years ago in the service of Sophia Lady Graves (wife of the said Lord Graves) since deceased, and whilst in such service she was seduced by the Lord Graves, and with whom she, at his urgent and repeated solicitations, for some time lived and co said error: but such fact may be pleaded in re ply to a defen by the wife of neglect or con sive charge nivance. On the part of the wife, her seduction by the husband, cannot be pleaded, it involves an issue which this Court cannot try but she may plead the fact of her cohabitation, when single, with the husband, in order to shew a want of proper vigilance on his part over her subsequent moral conduct. It is competent to a wife to plead, that the husband introduced her to an improper acquaintance; more especially when the husband is counter-charged with having committed adultery with that party. Minute specification in pleading acts of adultery, depends on the opportunities afforded for the commission of the offence; if they have been frequent (e. g. during a period of four months) it is not necessary to allege particular dates and times. Secus, if such opportunities have been of rare occurrence. |