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quote two passages, which seem to have escaped his attention. Boullenois, tom. I., tit. I, c. 2,
2, obs. 4, after discussing certain cases in a passage which the reader will find set out in Burge, I., pp. 105, 106, and deciding against the legitimacy of “un enfant Anglois, né en Angleterre d'un concubinage, et dont les père et mère Anglois seroient venus demeurer en France, et y auroient été mariés sans s'y être fait naturaliser,” proceeds, “Si depuis la naissance de cet enfant, né en Angleterre de père et mère Anglois, les père et mère s'étoient fait naturaliser en France, eux et leur enfant, et qu'ils eussent depuis contracté mariage, faudroit-il dès lors regarder cet enfant comme légitimé par le mariage subsequent ? J'estimerois l'affirmative. Ma raison est que dès que les père et mère et leur enfant ont été naturalisés, ils sont rendus participants de tous les droits ordinaires, et le droit commun de la nation.
Ce que j'estimerois encore dans le cas où le mariage auroit été contracté en Angleterre, si les père et mère se font naturaliser avec leur enfant en France." Merlin, Questions de Droit, s. Légitimation, § II., commenting on this last sentence, says : "Mais qu'entendait-il par là? Il avait parfaitement raison, s'il voulait dire qu'une fois les père et mère Anglais, naturalisés en France avec leur enfant, en quelque lieu qu'ils le célébrassent, fût-ce même en Angleterre, conférerait à leur enfant les avantages de la légitimation, et c'est ce que j'établirai dans un instant. Mais s'il voulait dire que les lettres de naturalisation, obtenues en France par les père et mère après la célébration de leur mariage en Angleterre, emportaient rétro-activement la légitimation de leur enfant, même naturalisé avec eux, il était complètement dans l'erreur."
There was, therefore, from the point of view of these distinguished writers, no absolute bar to the legitimation of a child born in England of English parents. Of course,
in In re Wright's Trust, the short facts of which I shall state presently, it would have been extremely proper to enquire whether the French law of that date required the change of nationality referred to by Boullenois and Merlin, as an indispensable condition, and whether, because it did not take place, the child whose rights were in question would have been held illegitimate in France. This question answered, the duty of the English Court would have been, I submit, to take the answer as deciding the status of the child for all purposes.*
Of the modern foreign textwriters Savigny and Bar are of opinion that the domicil of the husband at the time of the marriage should determine the question of the effect of the marriage in legitimating antenati. See Savigny, Conflict of Laws (Guthrie), p. 250, quoted in Westlake, $ 192, Bar, Private International Law (2nd edition, Gillespie, p. 434). These opinions appear to be shared by Scotch text-writers of eminence; see Erskine, Principles, 18th edition, by Rankine, p. 607, Bell, Principles, 9th edition, by Guthrie, $$ 1627, 1628, and see Bell's Dictionary and Digest, 7th edition, by Watson, s. v. Legitimation. The language of the French Civil Code, Arts. 331-333, is too general to justify any inference as to the views of the draftsmen upon our point, but it appears from Goodman v. Goodman, 3 Giff. 643 (1862, Stuart, V.-C.), that under the Code as administered in Holland in 1821, a child
* What the French law applicable to such a case is I do not presume to say. I observe that in a recent article, “ Du rôle international du domicile,” in the Journal du Droit International Privé, 1897, at p. 19, M. A. Chausse, Professo of Law at Montpellier, seems to be of opinion that in no case can an Englishman, even when admitted to domicil under Art. 13 of the Code legitimate an antenatus by his marriage, because, under a system “qui fait dépendre le statut personnel de la nationalité, cet étranger privilégié ne pourra réclamer le bénefice d'institutions inconnues on proscrites dans sa patrie.” Whether the French Courts uniformly take this view now-a-days I do not know. It does not seem to square with the decision in Lloyd v. Lloyd abstracted from Dalloz in 13 Beav. 401, n.
whose case resembled that of the child in In re Wright's Trust would be regarded as legitimate; see also the judgment of Cotton, L.J., in In re Goodman's Trusts, 17 Ch. D., at p. 291. This case is important, because the facts clearly shew that the exact point must have been apprehended by the foreign advocates whose opinion was taken. I am afraid that no definite argument can be drawn from the interesting case, to which I shall have to refer later, of In ve Grove, 40 Ch. D. 217, as to the law of Geneva on the point, as it does not appear on what grounds, or on what view of domicil or nationality, or on what finding of fact, if any, the decree of legitimation, mentioned as granted by the Council of Geneva, was based.
In In ve Wright's Trust the facts were that a widower, domiciled in England, migrated to France under circumstances which did not involve a change of domicil, and there cohabited with a Frenchwoman, who bore him a daughter. Subsequently the man's domicil became French, and after this change, he married the mother of the child in the English form at the British Embassy, and (some years later) in French form, with recognition of the child. It is only fair to the Vice-Chancellor to say that he was not satisfied that at the time the parents were married there was that recognition of the child which is required by the French law. This circumstance does not seem, however, to be the main ground of his decision. The question was, whether the daughter could take with the children by the father's first marriage under a bequest to the father's.
children." It is extremely difficult, in the compass of a short article, to deal satisfactorily with this long judgment, the logical train of which is not convincing, and which contains much matter the relevance of which (I speak with respect) is not easy to see. With the Questions de Droit before him, the Vice-Chancellor misses the passage which was really significant; with Munro v. Munro before him, he
fails to notice the dicta of the Scotch judges and of Lord Brougham, and the references in the argument to Boullenois, which would have put him upon the track of relevant matter. As the result of his researches in French law, he comes to the conclusion, (which may be correct, for reasons already indicated by me, but not observed upon by the Vice-Chancellor), that the French Courts would have held the child in question illegitimate (p. 613).
The Vice-Chancellor, in allowing himself to attach so much importance to the fiction of a matrimonial contract before the conception of the antenatus, did not sufficiently appreciate the force of the extract from Pothier which he quotes (p. 604), or of the Scotch case of Kerr v. Martin, 1840, 2 D. 752, which had been cited to him. The fiction seems to be discarded by modern Scotch writers, and the law is stated to be based on views of expediency and morality. I also venture to think that the effect of Lloyd v. Lloyd, already referred to, is not correctly given by the Vice-Chancellor, that Doe v. Vardill, 7 Cl. & F. 895, does not throw any light on the question, and that Shedden v. Patrick, 1 Macq. 612, so far as it has any bearing on the point at all, is an authority which inclines against the rationale of the doctrine of legitimatio per subsequens matrimonium which found favour with the Vice-Chancellor. It is worth mentioning that the Vice-Chancellor, at the end of his judgment, adds some arguments which read like a forecast of his decision, seven years later, in Boyes v. Bedale, 1 H. & M.798, since thoroughly discredited by Skottowe v. Young, 11 Eq. 474, In re Goodman's Trusts, 17 Ch. D. 266, and In re Andros, 24 Ch. D. 637, and In re Grey's Trust, 1892, 3 Ch. 88.
In 1862, the case of Goodman v. Goodman (3 Giff. 643) was decided by Stuart, V.C., but neither it nor In re Goodman's Trusts (14 Ch. D. 619, 17 Ch. D. 266) can be regarded as a satisfactory authority for the proposition of law which In re Wright's Trust purports to decide, because the children were not represented. In 1869, the Scotch case of Udny v. Udny (L.R. 1 H.L. Sc. 441), was decided by the House of Lords, and Lord Hatherley (then Lord Chancellor) took occasion, at p. 448, to reiterate, obiter, the conclusion which he had arrived at, as Vice-Chancellor, in Re Wright's Trust. The other Lords, (Chelmsford, Westbury, and Colonsay), said nothing upon the point. In In re Goodman's Trusts, 1881, the C.A. (Cotton and James, L.J., Lush, L.J., diss.) reversed Jessel, M.R., deciding that the child born after the change in the father's domicil, but before his marriage, whose contention had prevailed with Stuart, V.C., was entitled to share under the Statute of Distributions with her sister born after the marriage in the distribution of the estate of a domiciled Englishwoman. The Court disapproved of a dictum of Wood, V.-C., in Boyes v. Bedale. In In re Andros, 24 Ch. D. 637 (1883), Kay, J., in deciding that a gift in an English will to the children of a person domiciled in Guernsey, was to be taken as made to his legitimate children as ascertained by the law of his domicil, and that an antenatus, legitimated by the subsequent marriage of his parents, could take, declined to follow Boyes v. Bedale. Our point did not arise, but in the course of his judgment Kay, J., took occasion to observe : "It must now be treated as settled that any person legitimate according to the law of the domicil of his father at his birth is legitimate everywhere within the range of International Law for the purpose of succeeding to personal property." This is qualified by In re Grove. Later the learned Judge, in language of some ambiguity, said: “The law, as I understand it, is that a bequest of personalty in an English will to the children of a foreigner means to his legitimate children, and that by International Law, as recognised in this country, those children are legitimate whose legitimacy is established by the law of the father's domicil.” In