On Appeal From The Supreme Consular Court Of Constantinople.

 

COUNSEL: Lumley Smith, Q.C., and Jeune (Hood, Safford, and Challis, with them), for the appellant.

Sir Horace Davey, Q.C., and Seward Brice, Q.C. (A. Mattei, with them), for the respondents

 

SOLICITORS: For appellant: T. Russel Kent.

For respondents: Bolton, Robbins, Busk, & Co.

 

JUDGES: Lord Watson, Lord Hobhouse, Sir Barnes Peacock, and Sir James Hannen.

 

DATES: 1887 Dec. 19, 20, 21, 22.

1888 March 17.

 

 

Law of Personal Status – Power of Testacy – Distribution – Turkish Domicil – British protected Subject – Chaldean Catholics.

 

The testator, a member of the Chaldean Catholic community, having a Turkish domicil of origin, fixed his permanent residence in Cairo, where he acquired the status of a protected British subject:–

 

Held, that he died domiciled in the dominions of the Porte, and that the Consular Court at Constantinople, being bound by sects. 5 and 6 of the Order in Council of 1873 to follow the same principles which would have been observed by an English Court of Probate, was right in holding that the law of Turkey governing the succession to a member of the Chaldean Catholic community domiciled in Turkey be followed in considering the power of testacy of the deceased and in distributing his effects.

 

There is no such thing as domicil arising from society and not from connection with a locality; consequently, as Cairo was not a British possession governed by English law, the testator’s permanent abode therein under British protection did not attract to him an English or Anglo-Egyptian domicil.

 

In re Tootal’s Trusts (23 Ch. D. 532) approved.

 

APPEAL from an order of the Supreme Consular Court (May 28, 1886), by which it was ordered that the law of Turkey governing the succession to a member of the Chaldean Catholic community domiciled in the Ottoman dominions, should be followed in distributing the effects of Antoun Youssef Abd-ul-Messih, deceased.

 

The facts are stated in the judgment of their Lordships. The order was made on a petition presented by the appellant as executor and residuary legatee under her husband’s will on the 27th of October, 1885, for probate thereof. [*432]

 

The respondents (nephew and sister to the deceased) obtained an order from the Court giving them leave to plead, among others, a plea to the jurisdiction of the Court on the ground that the deceased being an Ottoman subject, born at Bagdad, within the Ottoman dominions, and having died at Cairo, also within the Ottoman dominions, the Court had no jurisdiction over the deceased, nor any jurisdiction over his estate at Cairo.

 

The Court on the 24th of February, 1886, decreed –

 

That the deceased having acquired the status of a protected British subject, this Court has jurisdiction over the succession of the above-named deceased;

 

and further decreed –

 

That the question as to what law the Court will follow in distributing the effects of the above-named deceased may be raised by future argument.

 

This judgment was not appealed from and was final.

 

On the 28th of May, 1886, the Court ordered as above.

 

Lumley Smith, Q.C., and Jeune (Hood, Safford, and Challis, with them), for the appellant, contended that the order of the 28th of May, 1886, should be discharged; and that the suit should be remitted to the Court below with a declaration that the law to be followed in determining both the deceased’s power of testacy at the date of the will, and also the validity of the will, was the statute and other law for the time being in force in and for England. First, it was contended that the effect of the Foreign Jurisdiction Acts and the Order of Her Majesty in Council of the 12th of December, 1873, was to provide that the above was the positive law applicable to the deceased, and to govern the succession to his estate. Evidence was read to shew that the deceased had always been recognised as a British subject. The previous judgment, not appealed from, of the 24th of February, 1886, had decided that the testator had acquired the status of a protected British subject, and that the Consular Court had jurisdiction over his succession. No distinction can be drawn between British subjects and the protected persons who by treaty form, as it were, a privileged society enjoying immunity from territorial rule and taxation, and amenable only to the British Consular Courts in [*433] matters civil and criminal. The order, therefore, of the 24th of February, 1886, decided by implication that the law to be followed in deciding the deceased’s testamentary capacity and in administering his estate is the statute law for the time being in force in and for England. The respondents not having appealed were estopped from contending to the contrary; the principle contended for by the appellant is res judicata in his favour. By that law the testator acquired under treaties, capitulations, Acts of Parliament and Orders in Council, and the laws in force in the Ottoman dominions, including Egypt, the right of making in Turkey a will in the same manner as British subjects or other persons under Her Majesty’s jurisdiction in that country. Reference was made to Hertslet’s Treaties, vol. ii., p. 375 (a treaty of the 5th of January, 1809, arts. 9, 10). For distinction between temporary and permanent protégés, see Règlement of August, 1863, regarding foreign consulates, 15 Hertslet, 1064; the Foreign Jurisdiction Act (6 & 7 Vict. c. 94); Colonial Law Validity Act, 1865 (28 & 29 Vict. c. 63); Foreign Jurisdiction Act, 1878 (41 & 42 Vict. c. 67); and the Order in Council of 1873, sects. 5, 6, 91. And according to the municipal law of Turkey a Turkish judge would distribute the effects of the deceased, who had denationalised himself according to the law of the country of his adoption. Reference was made to the law on Ottoman Nationality (6 Chawal, 1285 – 19 January, 1869), and a circular of the 26th of March, 1869, addressed by the Ottoman Government to the governors-general of the villayets of the empire, and to Codes Egyptiens, pp. 5, 10, 26, and 37; also to Maltass v. Maltass (1); Collier v. Rivaz (2); In the Goods of La Croix (3). Besides being a British protected subject under treaty the testator had acquired under special principles of law an English domicil. He was affiliated to the community of persons under English jurisdiction at Cairo, who formed as it were an ex-territorial colony of the Crown. In Eastern, and especially Mahomedan, countries where the circumstances are very dissimilar from what they are in foreign Western or Christian states, subjection to the jurisdiction of the Consular Courts is equivalent to residence in the

 

(1) 1 Rob. Ecc. Cas. 67.

 

(2) 2 Curteis, 855.

 

(3) 2 P. D. 94. [*434]

 

country to which those Courts belong, so as to establish domicil in that country. Reference was made to Whicker v. Hume (1); Udny v. Udny (2); The Indian Chief (3); Westlake’s Private International Law, pp. 262, 266; Wheaton’s International Law (Boyd), 2nd ed., p. 395; Freke v. Lord Carbery (4); In re Tootal’s Trusts (5); Féraud Girand, Jurisdiction française, vol. ii., pp. 58, 78, 80, legal condition of foreigners in Turkey; Williams on Executors, p. 373. See also Order in Council, 1873, sects. 206, 222, and 229, which shew that the laws of England have been carried into Constantinople and are applicable to all beneath the jurisdiction of the British Consular Courts.

 

Sir Horace Davey, Q.C., and Seward Brice, Q.C. (A. Mattei, with them), for the respondents, contended that the judgment appealed from was correct. The evidence shewed that the testator was born of Ottoman parents in Bagdad, in the Ottoman empire, and therefore had a domicil of origin in Bagdad. Though he went to India there is no evidence of any intention to abandon his domicil of origin or to acquire a new domicil in India. If he had acquired a new domicil, then on his finally leaving India his domicil of origin revived. He died at Cairo with an Ottoman domicil, unless it can be shewn that he had acquired a different one. The Order in Council of 1873 did not give him a new domicil. Her Majesty in Council had no power, even under the Foreign Jurisdiction Act of 1843, to legislate with regard to the personal status of her subjects, whether by birth, by naturalization, or by protection. A protected person (see interpretation clause, sect. 4) is placed in sharp contrast to a subject in the full sense of the term. Registration of any individual as a protected person has no other effect on the personal status of such person than to subject him to and give him the benefit of the jurisdiction of Her Majesty’s Consular Courts. Sect. 6 shews what law is to be applied to protected persons, viz., English law, and by that law personal status and testamentary capacity are to be governed by the law of the domicil of origin, unless a new domicil has been acquired (see

 

(1) 7 H. L. C. 160.

 

(2) Law Rep. 1 H. L., Sc., 441.

 

(3) 3 Rob. Adm. 26.

 

(4) Law Rep. 16 Eq. 466.

 

(5) 23 Ch. D. 532. [*435]

 

sects. 46 and 91). English law means the law which the English Courts would have applied to the testator in his proved circumstances, and that is the law of his domicil, the same law which would have been applied had he lived in England domiciled in Turkey. The order does not introduce and apply to the testator English law as applicable to persons domiciled in England.

 

Reference was made to Lord Selborne’s judgment in Ewing v. Orr Ewing (1); Whicker v. Hume (2); De Mora v. Concha (3); Thornton v. Curling (4). It is not English law that every person of whatever domicil should have his movables distributed by the English Statute of Distributions. Then with regard to the point, that subjection to consular jurisdiction is equivalent to residence in the territory for the purposes of establishing domicil, no authority has been cited for it, and it leaves out of sight the principle that domicil is not an affair merely of residence, but of the legal inference properly derivable from residence. Domicil is a relation created by law between a man and a particular country. You cannot impute to a man a residence which is contrary to the fact, in order to draw a legal inference therefrom: see Bell v. Kennedy (5), and particularly the judgment of Mr. Justice Chitty in In re Tootal’s Trusts (6). Reference was also made to Jopp v. Wood (7); Bruce v. Bruce (8); and to a well-known passage in Lord Cranworth’s judgment in Enohin v. Wylie (9); Udny v. Udny (10). No doubt a man does not readily acquire domicil in a country where the religion, habits, &c., are such that an intention is not readily imputed to a man of intending to adopt them. But the Turkish domicil in this case was a domicil of origin, and therefore any argument of incongruity arising from the testator being a Chaldean Christian does not arise. The position, therefore, of the testator was this, that whether he is treated as a subject of the Queen or as a subject of the Ottoman Porte under protection he gains the benefit of the jurisdiction of the Consular Courts. But his personal status is not affected, that remains just what it

 

(1) 10 App. Cas. 453, 502.

 

(2) 7 H. L. C. 160.

 

(3) 29 Ch. D. 268, 303; S. C. 11 App. Cas. 541.

 

(4) 8 Sim. 310.

 

(5) Law Rep. 1 H. L., Sc., 307.

 

(6) 23 Ch. D. 532.

 

(7) 34 Beav. 88.

 

(8) 2 B. & P. 229, note.

 

(9) 10 H. L. C. 19.

 

(10) Law Rep. 1 H. L., Sc. 441. [*436]

 

was before he was registered as a protected person. The other side contend that that registration is equivalent to naturalization, and also that recourse should be had to what the Turkish law says on the subject. It was contended for the respondents that nationality was not to be derived from Turkish law but from the Order in Council, and that in any event the evidence which had been given of Turkish law had so hopelessly mixed up nationality and protection, and had so failed to distinguish as to domicil, that no light could be derived from it. The law applicable to the testator was the Ottoman law, and his enjoyment of British protection had never purported to alter it; nor would it be altered, even if the testator had become under the treaties and Ottoman law a British subject in the full sense of the term.

 

Lumley Smith, Q.C., replied.

 

[1888 March 17.] The judgment of their Lordships was delivered by

LORD WATSON:–

 

The appellant, in October, 1885, instituted the present suit, before Her Majesty’s Supreme Consular Court at 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 the Consular Court, by a decree of the 24th of February, 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 have 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?” Evidence, both oral and documentary, bearing upon these issues was adduced; and thereafter, on the 28th of May, 1886, the learned judge pronounced the order now appealed from, whereby he found that the testator “died domiciled in the Ottoman Empire, his domicil of origin, and a member of the Chaldean Catholic community;” and in respect of these findings, decreed [*437]

 

“that the law of Turkey governing the succession to a member of the Chaldean Catholic community domiciled in Turkey be followed in considering the power of testacy of the said deceased and in distributing the deceased’s effects.”

 

It is therefore res judicata that the Consular Court has jurisdiction to entertain the present suit, and to administer the estate of the deceased, in accordance with the provisions of Her Majesty’s Order in Council, dated the 12th of December, 1873. Sect. 5 of the Order enacts that Her Majesty’s civil jurisdiction in the Ottoman dominions shall be exercised under and according to the provisions of the Order, “and not otherwise;” and sect. 6 prescribes that (subject to the other provisions of the Order) the civil jurisdiction thereby established shall, as far as circumstances admit, “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.” By sect. 91 it is enacted that the Supreme Consular Court at Constantinople shall be a Court of Probate, and shall, as far as circumstances admit, have “for and within the Ottoman dominions, with respect to the property of deceased resident subjects or protected persons, all such jurisdiction as for the time being belongs to Her Majesty’s Court of Probate in England.” According to the interpretation clause (sect. 4) the word “subject” means a subject of Her Majesty by birth or by naturalization; and the expression “a protected person” means a person enjoying Her Majesty’s protection. These are the only classes of persons whose estates, on their decease, are made subject to the probate jurisdiction of the Consular Court.

 

Having regard to the enactments of sections 5 and 6 of the Order, their Lordships are of opinion that it was the duty of the Consular Court to follow, in the present case, the same principles which would have been observed by an English Court of Probate. It is a settled rule of English law that civil status, with its attendant rights and disabilities, depends, not upon nationality, but upon domicil alone; and, consequently, that the law of the testator’s domicil must govern in all questions arising as to his testacy or intestacy, or as to the rights of persons who claim his succession ab intestato. That doctrine was clearly explained [*438] by Lord Cranworth in Enohin v. Wylie (1). Accordingly, the tribunal in which the estate of a deceased is to be administered, if it be not itself the forum of the domicil, must defer on all these points to the law of the domicil, and accept that law as its only guide.

 

The late Antoun Youssef Abd-ul-Messih, who was born at Bagdad of Ottoman parents resident there, 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 the year 1858 he left Jeddah for Cairo, where he continued to reside until the time of his death, and he does 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 & 13 Vict. c. 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. These are the whole facts in evidence which have any material bearing upon the question of domicil; and (apart from the fact of his having enjoyed British protection in Cairo) they establish, beyond doubt, that the testator, at the time of his death, had his domicil in the dominions of the Porte. If he did gain a domicil in India (of which there is no satisfactory proof), he ceased to retain it when he left that country for Jeddah without the intention of returning. His domicil of origin then revived and continued to adhere to him until the acquisition of a new domicil.

 

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 domicil. That result would, doubtless, have followed if Cairo had been a British possession governed by English law; but Cairo is in no sense British soil; it is the possession of a foreign Government, and subject to the sovereignty of the Porte.

 

(1) 10 H. L. C. 19. [*439]

 

Certain privileges have been conceded by treaty to residents in Egypt, whether subjects of the Queen or foreigners, whose names are duly inscribed in the register kept for that purpose at the British Consulate. They are amenable only to the jurisdiction of our Consular Courts in matters civil and criminal; and they enjoy immunity from territorial rule and taxation. They constitute a privileged society, living under English law, on Egyptian soil, and independent of Egyptian Courts and tax-gatherers. The appellant maintained that a community of that description ought, for all purposes of domicil, to be regarded as an exterritorial 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 the colonial possessions of Great Britain, where English law prevails.

 

The idea of a domicil, independent of locality, and arising simply from membership of a privileged society, is not reconcileable with any of the numerous definitions of domicil to be found in the books. In most, if not all of these, from the Roman Code (10, 39, 7) to Story’s Conflict (§ 41), domicil is defined as a locality – as the place where a man has his principal establishment and true home. Probably Lord Westbury was more precisely accurate, when he stated, in Bell v. Kennedy (1), that domicil is not mere residence, “it is the relation which the law creates between an individual and a particular locality or country.” The same learned Lord, in Udny v. Udny (2), speaking of the acquisition of a residential domicil, said: “Domicil 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 an unlimited time.” According to English law, the conclusion or inference is, that the man has thereby attracted to himself the municipal law of the territory in which he has voluntarily settled, so that it becomes the measure of his personal capacity, upon which his majority or minority, his succession, and testacy or intestacy must depend. But the law which thus regulates his personal status must be that of the governing power in whose dominions he resides; and residence in a foreign country, without

 

(1) Law Rep. 1 H. L., Sc., 320.

 

(2) Law Rep. 1 H. L., Sc. 458. [*440]

 

subjection to its municipal laws and customs, is therefore ineffectual to create a new domicil.

 

No authority was cited which gives the least support to the appellant’s contention, except perhaps a single passage in Mr. Westlake’s Treatise (2nd ed., p. 262), in which the learned author mentions “Anglo-Indian, or Anglo-Turkish domicil” as affording apt illustrations of the principle that “in the East every person is a member of that civil society existing in the country in which he is domiciled which his race, political nationality, or religion determine.” If by “Anglo-Turkish” the same kind of domicil is meant as that which the appellant seeks to establish, it has no analogy whatever to an “Anglo-Indian” domicil. The latter is altogether independent of political status; it arises from residence in India, and has 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 domicil) as an independent government. By the law established in India, the members of certain castes and creeds are, in many important respects, governed by their own peculiar rules and customs, so that an Indian domicil of succession may involve the application of Hindu or Mahomedan law; but these rules and customs are an integral part of the municipal law administered by the territorial tribunals. The legal condition of foreigners resident in Turkey, who are exempted by treaty from the jurisdiction of its local Courts, is very well described by Feraud Girand (Jurisdiction franaise, vol. ii. p. 58), one of the authorities referred to by the appellant’s counsel. They form, according to the view of that learned writer, an anomalous ex-territorial colony of persons of different nationalities, having unity in relation to the Turkish Government, but altogether devoid of such unity when examined by itself; the consequence being that its members continue to preserve their nationality, and their civil and political rights, just as if they had never ceased to have their residence and domicil in their own country. But it is needless to pursue this topic farther. Their Lordships are satisfied that there is neither principle nor authority for holding that there is such a thing as [*441] domicil arising from society, and not from connection with a locality. In re Tootal’s Trusts (1) is an authority directly in point; and their Lordships entirely concur in the reasoning by which Mr. Justice Chitty supported his decision in that case.

 

It was next argued that the order not only permits subjects and protected persons, who at the time of their decease are resident in the Ottoman dominions, to test according to English law, but prescribes that they shall make their wills in English form, and in no other. It was represented to be the effect of the order that, in the case of such persons, English law is the sole criterion by which their capacity to make a will, and its validity when made, must be determined. If that were the true construction of the order it might lead to very singular consequences. All that is required, in order to give complete probate jurisdiction to the Consular Court, is that the testator shall have been resident in the Ottoman dominions at the time of his decease; it is not requisite that he should have had his only or his principal residence there. If a Scotchman went to reside in Egypt for the purposes of his business, leaving his family at home, and happened to die there, his testament, sufficiently executed according to the law of Scotland, might be invalided by the Statute of Wills; and he, having acquired the testamentary capacity of a domiciled Englishman, could gratuitously defeat the legal rights of his widow and children, according to the law of his and their domicil. 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 differs from that of England.

 

The professed object of the order of the 12th of December, 1873, is, throughout, to confer jurisdiction upon the Consular Courts as thereby regulated, and to lay down rules for their procedure; and it is hardly conceivable that enactments framed for these 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 confer jurisdiction but specify the law to be administered by these Courts, give no

 

(1) 23 Ch. D. 532. [*442]

 

indication that any such changes were contemplated. According to sect. 6, they are to administer the law for the time being in force “in and for England,” an expression which simply denotes the law for the time being administered in the Courts of England; and, according to sect. 91, they are to have the same jurisdiction in probate as belongs to the English Court of Probate. If this suit had been brought in the Court of Probate here, there can be no doubt that the law applicable would have been that of the testator’s domicil; 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 is regulated by his domicil, which may be in France or elsewhere abroad. In order to support the argument, it would be necessary to make the gloss run thus, “in England and for Englishmen domiciled there.” The suggestion has hardly the merit of plausibility, seeing that it involves the necessity of adding to the otherwise plain language of the enactment words which have the effect of giving it a totally different meaning.

 

The only part of the order which lends some colour to this branch of the appellant’s argument is sect. 229, which relates to proceedings in the case of probate or administration with the will annexed. It provides that the Court shall ascertain whether the will propounded was signed by the testator, or some other person in his presence or by his direction, and subscribed by two witnesses, “according to the enactments relative thereto,” and shall refuse probate if satisfied that it was not, in fact, executed in accordance with these enactments. The framers of sect. 229, which is, in terms, a rule of procedure, and nothing more, had obviously in view the English Statute of Wills, and they do not seem to have made provision for proceedings to prove a will executed in any other form, but that does not establish that a will executed in English form must necessarily be valid. There is no section of the order which enacts that the Court shall grant probate without reference to the capacity of the testator, and it does not follow from the terms of the 229th section that it was intended to override the general provisions of sect. 6, and to enact by implication that the capacity or incapacity of testators [*443] is not to be determined by the laws which ordinarily govern their personal status. The directions of the order with respect to procedure in cases of intestacy leave untouched the provisions of sect. 6, so that the property of subjects and protected persons dying intestate must be administered by the Consular Courts in accordance with the law of their domicil. It can hardly have been contemplated that a man’s personal status should be dependent upon the circumstance of his having made a will, and that subjects of the Queen, not being domiciled Englishmen, are to retain the status which they carried with them to Egypt if they die intestate, and must lose it if they leave a will which complies with the provisions of the English statute, as well as with the requirements of their domiciliary law. There can be no presumption that the provisions of the order with respect to procedure were intended to produce such anomalies; and, in the absence either of express enacting words, or of plain implication necessitating the inference, their Lordships cannot hold that the enactments of sect. 229 qualify the provisions of sect. 6, or in anywise affect the civil status of those residents in Egypt whose persons and estates are subject to the jurisdiction of Her Majesty’s Consular Courts.

 

The next alternative presented by the appellant’s counsel was this, that her husband had de facto, or at all events according to Ottoman law, lost his Turkish nationality, and had 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 domicil 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 is 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 the order, which expressly enacts that it must be attained either by birth or naturalization. But the appellant relied upon its having been determined, for the purposes of this litigation, in the final decree of the 24th of February, 1886, that he had “acquired the status of a protected British subject.” The phrase “protected British subject” does not occur [*444] in the order; it has no technical significance; and it must therefore be taken to express that which the learned judge unquestionably meant to affirm, viz., that the deceased had de factoenjoyed the same measure of protection which is accorded by treaty to British subjects in the dominions of the Porte.

 

It was argued, however, that it is the law of Turkey, and not the law of England, which must determine, for the purposes of this 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. Upon this point evidence was led on both sides. Four legal experts were examined for the appellant, who asserted that he had, and six for the respondents who asserted that he had not, become in the eye of Ottoman law, a subject as well as a protégé of Great Britain. All of these learned gentlemen were agreed that there is no Turkish text or judicial decision having any bearing upon the question; and they merely expressed their individual opinions as to the inference which an Ottoman tribunal ought to derive, and would probably derive, from the tenor of existing treaties, and the law on the subject of Ottoman nationality promulgated by the Porte on the 19th of January, 1869. Their Lordships do not consider it necessary to decide between these 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 domicil would still be applicable to his capacity to make a will, and to the distribution of his estate.

 

There is no evidence whatever tending to shew 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 lead proof for the purpose of establishing that proposition. The record contains no allegation, not even a suggestion, that there is any special law in Turkey [*445] with respect to the succession of a protected person; and the appellant has 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 do not think she is entitled to any further allowance of proof. There must still be some evidence taken, but it must be confined to the single point specified in the judgment appealed from.

 

The appellant 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 domicil. That argument was not addressed to the Court below; but there appear to be two sufficient answers to it. The one is, that the appellant has not shewn that a domicil in Egypt, so far as regards its civil consequences, differs in any respect from a domicil 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, although it may be effectual to destroy a residential domicil acquired elsewhere, is ineffectual to create a new domicil of choice.

 

Their Lordships are accordingly of opinion that no cause has been shewn for disturbing the judgment of the Consular Court; and they will humbly advise Her Majesty to that effect. The appellant must bear the costs of this appeal; but their Lordships will humbly advise Her Majesty that the costs of all parties in the Court below ought to come out of the estate.