Jackson v Gray

JurisdictionJersey
CourtRoyal Court
Judge(Le Masurier, Bailiff and Jurats Voisin and Bailhache):
Judgment Date30 January 1970
Date30 January 1970
ROYAL COURT
(Le Masurier, Bailiff and Jurats Voisin and Bailhache):

A. Clyde-Smith for the plaintiff;

L.V. Bailhache for the defendant.

Succession—wills—death within 40 days of will—by Loi (1851) sur les testaments d'immeubles, art. 10, death of testator from natural causes within 40 days nullifies will only to extent of gift of realty—nullity to be pleaded only by heir by Bille de Prévôt within year and day of registration of will

Succession—wills—registration in Royal Court—court bound under Loi (1851) sur les testaments d'immeubles, art. 14 to register testamentary document relating to realty in Island—application for registration should state date of death of testator

LE MASURIER, BAILIFF:

___________

I

The plaintiff, Mrs. Patricia Jackson, is the only child and sole heir of the late Leslie Sagar Jackson (to whom it is convenient to refer as "the testator") who died from natural causes on the 26th March, 1964. The defendant, now Mrs. Norah Alberta Gray, was the testator's widow.

On 5th March, 1964, the testator had made a will of his real estate in the Island by which he bequeathed it in its entirety to his then wife, the defendant. The will was registered at her instance, by Act of the Court dated 10th April, 1964.

In 1965 the plaintiff instituted proceedings against the defendant by means of an Order of Justice returned before the "Cour du Samedi" to have the testator's will set aside on the ground that he had died from natural causes within 40 days of the making of the will. The Court ruled that the proceedings were irregularly instituted and non-suited the plaintiff, a ruling which was upheld on appeal.

By this action the plaintiff claims to be the successor in title to the testator's real estate as his sole heir and brings this action to vindicate that title. The defendant, in answer, invokes the Act of the Court ordering the registration of the will as constituting her title. The plaintiff, in reply, relies upon Article 10 of the "Loi (1851) sur les testaments d'immeubles", which is to be found in the volume Tomes I-III of the Recueil des Lois at page 190, which we shall call "the Law of 1851" and which reads—

"Les legs d'immeubles faits dans les quarante jours qui ont precédé la mort du Testateur seront nuls, a moins que la mort n'arrive par cas fortuit."

This is an "action pétitoire". Of "pétitoire", Bescherelle, "Dictionnaire National", gives this definition—

"petere, demander; d'où petitor, celui qui demande. Demande en justice pour être maintenu ou rétabli dans la propriété d'un immeuble."

The action derives from the Clameur de Loi Apparaissant described in Chapter CXXIV (124) of the Ancien Coutumier (de Gruchy, Ancienne Coutume de Normandie, p. 325) and which was, originally, decided by battle—

"Nous dirons après de Loy Apparissant, de quoy la querelle doibt estre menée en ceste forme en contends fieffal. Je me plaing de N. qui me defforce une terre à Orbec, que mon pere, (ou mon oncle), à qui je suis le plus prochain hoir, teinst en paix puis le couronnement au Roy Richard . . . en quoy il n'a aulcun droict contre moy."

Whether there is a limit set in time to the institution of such an action is, perhaps, open to question but according to Le Gros, Traité du Droit Coutumier de l'Ile de Jersey, at 418 (1943), there is: "L'action pétitoire se prescrit par le laps de quarante ans" and support for his opinion is certainly not lacking.

The arguments addressed to us may be stated thus—

According to the plaintiff, the testator's will, by reason of his death from natural causes within forty days of its making, was in the terms of Article 10 of the Law of 1851 "nul", that is to say null and void, so that he must be deemed to have died intestate as to his real estate, and the Act of the Court ordering the registration of the will must be ignored because that which it purported to register did not exist.

According to the defendant, the will was no more than voidable at the suit of the heir provided the appropriate action in avoidance was taken within the time prescribed and in the absence of such action the will no longer became assailable on the ground that the testator had died from natural causes within forty days of his making the will.

To this the plaintiff replied that "nul" means null and cannot be interpreted as meaning voidable.

___________

II

Because the issue raised is of fundamental importance we are stating the reasons for our decision at length.

According to Blackstone's Commentaries on the Laws of England, 9th ed., vol. 2, at 195, quoting Coke—

"A title (to things real) is thus defined by Sir Edward Coke, titulus est justa causa possidendi id quod nostrum est; or, it is the means whereby the owner of lands hath the just possession of his property."

In our opinion title can be acquired only by original occupation, by conveyance, in which we include testamentary transfer, by succession upon an intestacy and by long possession. We know of no system of law which does not attach some importance to the conveyance and does not require it to be clothed in some solemn form. Thus in England the solemn form is sealed writing, the deed of grant.

Here it is otherwise. Terrien indicates our inheritance. In his introduction to Book VII "Qui est d'obligations et Contracts", page 221, he says—

"Après le traité de successiōs, se presente lieu de traicter des obligations et contracts: qui sont les moyens d'acquerir les biens à titre singulier: & par lesquels aucune chose nous est deuë, et avons droict de la poursuyvir en jugement. Et au premier lieu faut permettre le titre de l'office de Tabelliōs, qui sont Juges cartulaires etablis à recevoir lesdites obligations et contracts, et en bailler et delivrer les lettres en forme."

It was not always so for it would seem that, originally, in the Island a conveyance lay in livery, not "à Ouîe de Justice", so to speak, but "à Ouîe de Paroisse". According to Le Patourel, TheMedieval Administration of the Channel Islands, at 100 (1937)—

"All legal acts of importance took place in the parish church, 'publicly', 'in the hearing of the parish'. The vicomte, for instance, delivered seisin 'publicly' in the church; distraints were levied, quitclaims made, contracts entered into 'in the hearing of the parish'. The written document, when there was one, whether it was a private charter or a 'lettre sous sceau' seems secondary, and concerned only to record...

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    ...Hall (1873), L.R. 8 Ch. App. 430. Inland Rev. Commrs. v. Duke of Westminster, [1936] A.C. 1. Jackson (ne Jackson) v. Jackson (ne Hurst), 1970 J.J. 1285. James v. James (1869), 19 L.T. 809. Lawrence (G.) Ltd., Re, 1963 J.J. 341. Londonderry's Settlement, In re, [1964] Ch. 594. Penrose, In re......
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    ...the provisions of Article 10 apply to this case. It has been held, in the cases Re Briard, (1964 J.J. 417), and Jackson v. Jackson, (1970 J.J. 1285), that the effect of that Article, where a Will disposing of realty is made within 40 days before the death from natural causes of the testator......
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