53 G. 3, c. 141.

1838.--Walford v. Marchant.

The tenth section of that statute provides that the act shall not extend to any security upon freehold lands of equal or greater value than the annuity, over and above any other annuity, or the interest of any mortgage of which the grantee had notice at the time, whereof the grantee *was seised in fee simple or fee tail in possession, or the fee whereof [*557] in posession the grantor was enabled to charge at the time of the grant.

I cannot concur in the master's opinion, that the result of the action (reported in 2 B. & Adol. 315,) establishes the validity of the annuity; for the question there raised and decided, was merely whether a judgment was to be considered as a charge upon the estate, within the meaning of the act, so as to reduce the income of the land below the amount of the annuity, and consequently to render a memorial necessary. But it certainly proves that the point now insisted upon against the annuity was not then thought to be available.

From the statement in the master's report, which is not in question, the income of the estate, available for the payment of the annuity, exceeds the amount of the annuity; that is, the mother, who was entitled to the whole income for her life, and her three sons, entitled to three-sixths, after her death, possess together half the property found to be worth 1007. a year and upwards, the annuity charged upon the half being 481.

It was contended, however, that these parties had not together such an estate as the act requires, for that they were not seised in fee simple or fee tail, and were not entitled to charge the fee in possession at the time of the grant. The devise was in trust for the mother for life, and after her decease for all and every her children as tenants in common in fee; but it was said that there is a proviso that, if any of the testator's sons or daughters should die without leaving issue, the trustees should hold the premises devised in trust for him, or her, so dying without issue, in trust for his or her surviving brothers *and sisters, as tenants in common; and thence it [*558] was argued, that the estate charged might fail by the death of all the six children before the mother. In order to support this objection, it must be held that the event contemplated in the proviso is a dying without children living at the death of the parent; but that would be contrary to the established construction of the words used. I am therefore of opinion that the grant is within the exception of the statute, and did not require any memorial.

Had it been necessary to decide upon the legal validity of the memorial, there must have been a reference back to the master, because the report does not state any of the circumstances relied upon as objections to the memorial as facts, but only as the grounds on which it had been contended before him, that the memorial was invalid.

The result is, that the master, in my opinion, came to the right conclusion, and that the exception must be overruled.

1838. Bernal v. Bernal.

[*559] *Between JACOB BERNAL and ESTHER, his Wife, and Others, Plaintiffs; and JOSEPH BERNAL, JOSEPH DE CASTO, LEAH BERNAL, and Others, Defendants. And between the said JOSEPH BERNAL and Others, Plaintiffs; and the said JACOB BERNAL and Others, Defendants.(a)

1838; February 21, 28.

"Male children," in a Dutch will, held to mean "male descendants" and "male descendants', held to mean, according to the English law, [and semble according to the Dutch law, also,] de. scendants claiming through males only.

The petition of Jacob Bernal and Abraham Bernal, "male descendants of Benjamin Bernal, the favored nephew of the testator Joseph Bernal," stated,

(a) The reporters are indebted to the kindness of Mr. Sidebottom for the following note of the general proceedings in these causes :—

BERNAL . BERNAL.

"The circumstances of this case are exceedingly singular. In the year 1729 an order was made as to the application of the fund, and which was acted upon down to the period when the petitione [Jacob Bernal] made his first application, in 1834; and a vast number of orders were made from time to time, admitting objects of the charity, upon the footing of the original order. In the year 1834, however, it was found that the descendants of the testator's nephew, Benjamin Bernal, were so numerous, that it would be necessary that some new rule of distribution should be resorted to in order to limit the number of objects. The petitioner, who was one of the parties in the receipt of the income of the fund, as one of the objects of the charity, presented a petition to the Master of the Rolls, for directions as to the administration of the charity; and upon that petition coming on to be heard, the other parties, the then partakers of the charity, for the reason before mentioned (viz. the necessity of limiting the number of participants,) and not with any idea that any attempt would be made to alter the course of administration of the charity, except in order to limit its objects, consented to a reference to the master to approve of a new scheme. When the parties got into the master's office, the petitioner brought in a state of facts, in which he insisted that the male descendants of the testator's nephew were alone entitled to share, on account of the Jewish law (as it was alleged) excluding females from inheriting. The master, upon this claim being submitted, made a report, submitting the question to the court; and the petitioner having presented a petition upon the report to Sir J. Leach, then Master of the Rolls, he referred it back to the master to pro. ceed to approve of a scheme having regard to the course that had been continually pursued. From this order the petitioner appealed to the Chancellor, and the matter came on to be heard before Lord Lyndhurst, in the year 1835, when, although no judgment was then given, his Lordship expressed an opinion, that the question was not to be decided according to the Jewish law, but that the court had never definitely determined the question as to who were the proper objects: and it occurring to his lordship to put a question as to the domicil of the testator, the matter stood over for the purpose of making an inquiry relative thereto,

"The matter was afterwards brought before Lord Cottenham, when Lord Commissioner, who concurred in opinion with Lord Lyndhurst, that, notwithstanding the practice of considerably more than a century, there was no binding decision of the court; and he therefore referred it to the master to inquire what was the proper domicil of the testator; and, upon the sugges ́ion by the ap pellant's counsel that the testator was domiciled in Holland, and that it might probably be the case that the peculiar laws of the Jews were recognized in that country, and by consent of the respondents, it was further referred to the master, in case he should find that the testator was domi. ciled in Holland, to inquire what was the law of that country, having regard to the circumstance of the testator being a Jew. On the matter being discussed before the master, he (the master) re

1838. Bernal v. Bernal.

THAT Joseph Bernal, otherwise Gasper Francis Bernal, the testator in the cause, made his will at Amsterdam, dated, at the commencement, the 4th of October, 1693, and at the end of the 2d of December, 1695, and [*560] that in such will were contained the following clauses, viz., "I order

quired to see the probate of the will. It then appeared that the will had been proved in Holland, and that probate was granted in this country upon a translated copy only. Upon inspection of that copy, it appeared to differ considerably from the statement of the will, as set out in all the previous proceedings. And, in particular, in the first clause, in which provision was made for the descendants of the testator's nephews and nieces, the descendants of the nephews were mentioned by the name of "male children." The master being of opinion, upon the production of the probate (and with no further evidence,) that the testator's domicil was in Holland, the opinion of a Dutch counsel was taken upon the construction of the will, who, upon the ground of the term "male children" being used in the above clause, although not elsewhere repeated, was of opinion that the other passages of the will, bearing upon the subject, must be controlled in their construction by the expression in question; and, therefore, although male and female descendants of the testator's nieces might be allowed to take benefits as objects of the charity, yet that the male descendants only of the nephews were entitled. This opinion he founded merely upon general reasoning, and not upon the ground of any particular law bearing upon the subject. But the advocate stated that there was no difference in the law of Holland between Jews and others. Upon this the master made his report in favor of the Dutch domicil, and stated the law of Holland to be as the advocate had stated it.

"On the matter coming on again before the court for further directions, Lord Cottenham, then Chancellor, was of opinion that the master should have received further evidence; and it was referred to the master to review his report for that purpose. Accordingly, further evidence was produced before the master, the effect of which was to show from the books of the Jewish congrega. tion in London and Amsterdam, that the testator had become a member of the Jewish synagogue at Amsterdam, and had greatly diminished his contributions to the synagogue in London; and upon these and other grounds, the master again made his report in favor of the Dutch domicil.

"During these proceedings, an apparently very ancient copy of the will, in the original Spanish, with a translation annexed, differing from the translation in the probate, was produced, having been always in the custody of the solicitors whose house had had the management of the cause for at least half a century. By this translation the word translated "male children" in the copy admitted to probate, was translated “children;" and the original in the Spanish copy was the word "hijos," a word meaning children in general, and so translated in other parts of the probate copy. Inquiry also was made as to the original will, which, according to the custom of Amsterdam, had been left in the possession of the notary concerned in its proof; but it was found, that a very few years ago the house containing all the original notarial acts of that notary, and including, therefore, the original will, had been burnt.

"Under these circumstances, it was contended, on the part of the appellant, by Mr. Wakefield and Mr. Cooper, 1st, that the copy in the possession of the solicitors could not be received in evidence, and that the court was bound to consider the copy admitted to probate as the only authentic copy; 2dly, that the testator was domiciled in Holland, because it appeared from the will that the testator carried on business in Holland, and that his trustees and executors were residents in that country; and that the legacies were given in Dutch coin; and also that the testator died in Holland, and his will was proved in that country, and that it was clear, from the circumstances of the testator becoming a member of the Dutch synagogue, and diminishing his payments to the London synagogue, that he had become domiciled in Holland; and, thirdly, that such being the case, the opinion of the Dutch advocate was conclusive.

"On the other hand, it was contended by Sir W. Horne and Mr. Sidebottom, on the part of the respondents, first, that, under the circumstances, the Spanish and English copies in the possession of the solicitors ought to be considered as evidence of the contents of the will; secondly, that the testator was domiciled in England, because it clearly appeared from his will that he resided and carried on business in London, and had a house there, and that he resided in London with his wife

1838. Bernal v. Bernal.

that the effects which I have in the India and African Company of [*561] London and their profits shall be *applied to the performance of this my will; and what shall remain, be it little or much, it shall be put into stock into the chamber of Zealand, whose dividends and those of Lon[*562] don, with the interest of 12007. in that of the African at London shall be applied to keep the capital entire; except that it should happen to appear to my executors that any of the relations hereinafter named should

be reduced to want; in which case all the dividends or interest shall [*553] be applied to those in necessity, which are Jacob Levi Glanez,

Abraham and Jacob de Isaac Bernal, Isaac de Jacob Bernal, Benjamin Bernal, and also Rachel Louzado, Leah de Castro, and Esther Franco, if they or their children shall come to want, and in like manner the male children of the above named men, also included in this clause; Leah, Rachel, and Esther of Jacob Bernal my brother, and their children, whom God prosper, they may not come to want this. And it is also my will that when it shall happen that any female orphan of my generation be Jews, are to be married, [*564] there shall be given to them 1000 guilders dowry out of *the said interest by the votes of the executors of my will, and the grandsons and the great grandsons of the race of my father who is in glory, that shall be found living in Judaism; which my executors shall perform, and when any and mother, both of whom were buried in London; that his will spoke of his furniture, plate, and papers in his house in London, and that the will had been made at different times, and that the last date of it was in the year of his death: so that, to that very year, it appeared that he had maintained his English domicil and establishment; and that, as it was quite clear upon the face of the will that he had acquired an English domicil, and as it could not be proved that he had altered that domicil, and taken another, he must be considered as domiciled in England at the time of his death; Somerville v. Somerville, 5 Ves. 750; and, thirdly, that the Dutch opinion was only mat. ter of general reasoning, and could not be looked upon as a statement of Dutch law on the subject. "The LORD CHANCELLOR, however was of opinion that the probate copy must be conclusively considered as the document upon which the court was to act, and that the opinion of the Dutch counsel was to be considered as conclusive evidence of the law; but took time to consider the question of domicil; and afterwards, during the vacation, stated his opinion to coincide with that of the master on the subject of domicil." [The general law of a foreign state or coun. try may be proved by parol, where it does not appear that such law exists as statute or written law, and of which law an authenticated copy might be produced, In the Matter of Roberts Will, 8 Paige, 446. Brush v. Wilkins, 4 Johns. Ch. Rep. 520. In Hill v. Reardon, Jac. 84, Lord Eldon said "That the affidavit as to the French law was not sufficient; it was a subject on which there might easily be a mistake, and the affidavit ought to be made by a professional per. son." An additional affidavit was afterward produced, sworn by a person who had practiced as an advocate in France, with which his Lordship expressed himself to be satisfied.

"Although it may be difficult to give any general definition of a domicil which will apply to all cases, and Lord Alvanley thought Bynkershoek was wise in not hazarding a defi. nition of the term, I think it cannot be doubted that the actual residence of an individual, at a particular place with the animus manendi, or a fixed and settled determination to make that his permanent residence for the remainder of his life, constitutes that place his domicil; at least until there is some evidence that his intention to remain there has been abandoned. And the declarations of the party himself, where he can have no object or inducement to falsify the truth, or to deceive those to whom such declarations are made, are the best evidence of his intention to make his actual residence his permanent residence also." In the Matter of Catharine Roberts' Will, 8 Paige, 524.]

1838. Bernal v. Bernal.

die shall name others in their place. Item, I name for my executors of my testament and this my will, Jacob Levi Ganez and Abraham Bernal, my nephews; with power at the end of their days to name others in their place, to execute and administer of what shall be left of my estate and effects, in the manner that shall appear to them to be most for the security and benefit: for that my meaning is, that so much stock as may be shall be preserved, that their produce may answer and be applied to the necessities of those of the race of my father (whom God hath,) at the discretion of my executors, and those they shall name in their places; and I charge the one and the other to choose out of our heirs and near kindred persons capable; to the end that in this manner the money hereof may be preserved for the comfort and succor of our family, and that they may be provided for; and I hope other relations will augment this stock, to the end that they may have greater assistance in the adversity that may fall them (from which God deliver us,) the descendants or near kindred, who for sins may suffer these or the like misfortunes (from which God deliver them,) that they may succor the others. I say my will is, that Isaac de Jacob Bernal, and Benjamin Bernal my nephews, be also my executors, that they may receive of my goods and effects be it only by Jacob Levi Ganez, or who else shall have a power from him and the rest, for that they may may help him in fulfilling my will, and have voices in the things and succors that are to be given more than what is herein expressed in this my last will; and likewise my will is, that in those causes Leah de Castro and Esther Franco, my nieces, shall meet and have votes, by reason they have more knowledge of our relations in Spain, and of my inclina- [*565] tions and obligations. And I charge every body that they give to the children of Benjamin Bernal, and prefer them to others if they should want, or be to be married :"

That the testator died at Amsterdam in the year 1696, and that his will was shortly afterwards duly proved there by his executors:

That on or about the 29th of January, 1722, (all the testator's executors being then deceased,) the defendant Joseph Bernal, the eldest son of the before mentioned Benjamin Bernal, procured letters of administration, with a translation of the will annexed, to be granted to him by the prerogative court of Canterbury:

That by the decree made in these causes on the 9th of December, 1728, it was referred to the master to take an account of the testator's personal estate, and the produce thereof, from the several persons who had received the same; and that it was ordered that the parties should lay a scheme before the master for the distribution of the interest and income of the stock and funds therein mentioned:

That the master made his report, dated the 26th of January, 1729, in pursuance of the decree, and certified that, at that time, fourteen persons therein named, and no more, were in want, and proper objects of the charity, and