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![handle is hein.slavery/ssactsengr0364 and id is 1 raw text is: Lushington, referring to the necessary documents, and stating that justifying
security would be given, moved for administration, with the will annexed, to Captain
Owen, as the attorney of the Orphan Board, acting on behalf of the next of kin.
Per Curiam. It would be quite irregular to grant this administration to a nominee
of an official board at the Cape of Good Hope. The property is to be here
administered ; and there are several next of kin. Why does [767] not Mr. Stilwell,
who is a creditor, apply for administration, on citing the next of kin ? Why does not
the attorney of the next of kin, or the legatee, take administration? There are all
these regular ways, and yet the Court is asked to do what seems very irregular.
Motion rejected.
On the third session of Hilary Term, the next of kin having been cited by service
on the Exchange, notice was sent to the legatee, and oil a proxy of consent from
Captain Owen the Court granted administration to Mr. Stilwell.
IN THE GOODS OF ANNE DORMOY. Prerogative Court, Hilary Term, 1st Session,
1832.-A domiciled Frenchman having of his will appointed all executor but no
residuary legatee, and administration cum test. ann. (granted, after citing the
executor, to the son's attorney in 1828) being brought in, the Court, doubting
whether it ought not to require the ambassador's certificate, ultimately on
justifying security and on the French consul-general's certificate (confirmed by
an affidavit) that by the French law the next of kin was entitled to the residue,
granted the administration to the son without citing the nude executor, he
having never applied for the grant, though the deceased died upwards of thirteen
years before.
The deceased, a widow, died in November, 1818, in the West Indies: she left four
children, and of her will appointed Cremony, her son-in-law, sole executor; but except
as to bequeathing to several of her slaves their freedom, she made no disposition of
the property. Cremony, having assigned over all his interest in Mrs. Dormoy's estate
to the eldest son, declined to interfere further in her affairs : and after being cited by
a decree of this Court, administration in 1828 was granted with the will to the son's
attorney. The attorney became a bankrupt, and brought in the administration,
which was now prayed to be granted anev to the son : but it was objected in the
registry that, the residue being undisposed of, Cremony, as nude executor, was entitled
to the [768] grant. To meet this objection the son made an affidavit that the
French part of the islanld of St. Martian in which the deceased was domiciled was, and
is, subject to the laws of France : that by the 913th article of the code no person
leaving three or more children at his death can dispose by will or deed of more than
a fourth part of his effects : and by the 1025th and 1026th articles a testator may
name testamentairy executors, and may give them the possession of his moveables, hut
that such possession cannot continue beyond a year and a day from his decease ; and
if he has not given them such possession, they cannot claim it. That the deceased's
will was executed according to the French law; and by that law Cremony ceased to
be executor at the expiration of the year and day, and could no longer interfere with
the estate.(a)
Lushington moved for the administration.
Per Curiam. If the law of England prevailed in this case there might be a doubt
whether Cremony would not be entitled, as nude executor,(b) to the administration:
but as the law of France governs the succession, the residue is undisposed of, and the
son, as one of the next of kin, is entitled. My difficulty is whether I have sufficient
evidence of the French law. The absence of any application [769] for the grant on
behalf of Cremony during the long interval of time that has elapsed since the death of
the party is confirmatory of the correctness of the son's affidavit and of the certificate.
But is the certificate of the French consul-general sufficient proof of the law : should
not the ambassador himself have certified? That might have been considered as
(a) The French consul in London certified that the French part of the island of
St. Martin (W. I.) was effectively governed by the French laws; and that the affidavit
set forth the law with perfect accuracy, and in entire accordance with the articles of
the code therein recited.
(b) See, however, 1 W. IV. c. 40, cited in notis, sup. 205.
1338
IN RE DORM OY
3 HAGG. ECC. 767.](ViewImageLocal?handle=hein.slavery/ssactsengr0364&div=1&collection=&method=preview&ext=.png&size=3)