The Representation of Thompson, Amy (Née Remon), Whorrall (Née Remon) and Remon

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: Tomes, Deputy Bailiff:
• Judgment Date: 15 May 1989
• Date: 15 May 1989

ROYAL COURT

Tomes, Deputy Bailiff:

M.H. Clapham for the principal heiress;

P.R. Le Cras for the co-heirs.

Cases cited:

(1) Att. Gen. v. Ernest Augustus of Hanover (Prince), [1957] A.C. 436; [1957] 1 All E.R. 49.

(2) Bradshaw v. McCluskey, 1976 J.J. 336, considered.

(3) Buckingham v. St. Helier (Constable), 1966 J.J. 679.

(4) Coutanche v. Laisney, 1977 J.J. 19.

(5) Harden v. Harden (1918), 12 C.R. 136, unreported.

(6) Jersey Maincrop Potato Mktg. Bd. v. de Gruchy, 1971 J.J. 1819.

(7) Macready v. Amy, 1950 J.J. 11.

(8) New Guar. Trust Fin. Ltd. v. Birbeck, 1977 J.J. 71; further proceedings, sub nom. Birbeck, In re, 1979 J.J. 111; further proceedings, 1980 J.J. 117; further proceedings, 1980 J.J. 183; on appeal, sub nom. Birbeck v. Midland Bank Ltd., 1981 J.J. 121, applied.

(9) Overseas Ins. Brokers Ltd., Re, 1963 J.J. 325; further proceedings, 1966 J.J. 547.

(10) R. v. City of London Court (Judge), [1892] 1 Q.B. 273; (1892), 66 L.T. 135; 8 T.L.R. 191; 61 L.J.Q.B. 337; 7 Asp. M.L.C. 140; 36 Sol. Jo. 138.

(11) St. Helier (Constable) v. Baal, 1965 J.J. 503.

Legislation construed:

Loi (1851) sur le Partage des Successions, art. 3: The relevant terms of this article are set out at page 189, lines 1-5.

Loi (1891) sur le Partage d'Héritages, art. 4: The relevant terms of this article are set out at page 201, lines 1-5.

art. 7: The relevant terms of this article are set out at page 201, lines 8-14.

art. 15: The relevant terms of this article are set out at page 201, lines 16-23.

Texts cited:

Le Geyt, Manuscrits sur la Constitution, les Lois & les Usages de Jersey, vol. 1, at 181-182, 489; vol. 2, at 501-502 (1846).

Le Gros, Droit Coutumier de Jersey, at 94 (1943).

Maxwell on Interpretation of Statutes, 12th ed., at 187-188 (1969).

Poingdestre, Remarques et animadversions sur la Coutume Réformée de Normandie . . . pratiquable dans les iles de Jersey et Guernsey, at 205-206 (Ms., c. 1680).

Report of the Commissioners appointed to inquire into the Civil, Municipal and Ecclesiastical Laws of Jersey, together with Minutes of Evidence (Command Papers, First Series, No. 2761), Pt. II, at xii-xiii (1861).

Terrien, Du Droict Civil, at 201, 203 (1578 ed.).

Succession—intestacy—collateral succession—if half-brothers or half-sisters, Loi (1891) sur le Partage d'Héritages, art. 15, deprives principal heir of droit d'aînesse and all heirs obliged to sell acquêts and divide net proceeds in ratio of one share to half-blood and two shares to full blood

The representors sought the directions of the court as to the devolution of acquêts in a collateral intestate succession.

The intestate died leaving, inter alia, acquêts which comprised one tête de partie with land measuring 1 vergée, 10 perches, 6 ft. The principal heiress, or aînée, to the intestate's estate was of the half-blood only, whereas the co-heirs were of the full-blood. It was unclear whether, in such circumstances, the principal heiress's droit d'aînesse would be wholly preserved. If it would be, all the acquêts would devolve upon her in accordance with the Loi (1891) sur le Partage d'Héritages, art. 7, which allowed the principal heiress to take the first tête de partie and up to five vergées of land and excluded the co-heirs' right to raise a clameur de partage. If, however, this were not the case and the droit d'aînesse was excluded whenever half-brothers or half-sisters were present, the acquêts would be sold and the net proceeds divided in the proportion of one share to the principal heiress, being of the half-blood, and double shares to the co-heirs, being of the full-blood, in accordance with the Loi (1891) sur le Partage d'Héritages, art. 15. The representors therefore brought the present representation so that the matter could be determined by the court.

The principal heiress submitted that (a) the well-established common law droit d'aînesse had been reinforced by the Code of 1771, which prevented partage amongst the co-heirs if there were only one tête de partie with less than 4 vergées, 30 perches of land; (b) it had been recognized unequivocally in art. 7 of the 1891 Law; (c) art. 15 had not clearly abolished the common law droit d'aînesse where there were half-brothers and half-sisters so as to override art. 7, which had re-established the droit d'aînesse; and the mere fact that art. 15 purported to apply even if there were only one tête de partie could not rebut the presumption against change in the common law; (d) the use of the words "une ou plusieurs maisons" in art. 15 was thus the result of muddled thinking; and (e) therefore, since there was only one tête de partie with 1 vergée, 10 perches and 6 ft. of land, she should take the whole, and there could be no partage between the co-heirs since nothing would remain to be divided between them.

The co-heirs submitted in reply that (a) the legislature had introduced in the Loi (1851) sur le Partage des Successions a clear and unambiguous change to the common law droit d'aînesse in the exceptional situation of there being brothers or sisters of the half-blood, insofar as it provided, in art. 3, for the conversion of acquêts into money and division thereof in the ratio of a single share to heirs of the half-blood, to a double share to those of the full blood; (b) art. 15 of the 1891 Law provided the mechanism whereby this division could be achieved insofar as it placed all the heirs ("tous les héritiers") under an obligation to sell all acquêts in a collateral intestate succession, and this rule applied irrespective of whether there were "une ou plusieurs maisons et terres à partager"; (c) moreover, since art. 15, which was specifically excluded from the application of arts. 4-14 of the 1891 Law, dealt with the exceptional situation of there being heirs of the half-blood, it could not be said to override art. 7, which dealt with the usual situation of there being heirs of the full blood, in which the droit d'aînesse was preserved; and (d) the principal heiress would not, therefore, take the tête de partie for herself since all the acquêts, including the tête de partie, should be sold and the proceeds divided in the ratio of one share to the principal heiress, being of the half-blood only, to a double share to each of the co-heirs.

Held, giving directions for the division of the estate:

The heirs were all under an obligation to sell the acquêts and to divide the net proceeds in the ratio of a single share to the principal heiress and double shares to each of the co-heirs since the droit d'aînesse did not have to be preserved in the exceptional circumstances in which there were brothers or sisters of the half-blood in a collateral intestate succession. The court reached this conclusion on the basis that—

(a) the Loi (1851) sur le Partage des Successions, art. 3, still provided the basis for the division of property where there were half-brothers or half-sisters in a collateral succession, the division-ratio being a single share to those of the half-blood to a double share to those of the full blood;

(b) the legislature had started afresh with the law relating to the droit d'aînesse in the Loi (1891) sur le Partage d'Héritages. Although arts. 4-14 of this Law preserved the principal heir's right to take the first tête de partie and up to 5 vergées of land, art. 15—which was specifically excluded from the application of arts. 4-14 by virtue of art. 4, and which applied only if there were brothers and sisters of the half-blood—took away the droit d'aînesse. It provided instead the machinery for achieving a division of the property as envisaged in art. 3 of the 1891 Law (which had not been repealed and could therefore be treated as part of the context of the 1891 Law): it subjected all the heirs ("tous les héritiers") to an obligation to sell all the property in the estate ("une ou plusieurs maisons et terres à partager") and to divide the net proceeds in the specified ratio. Thus it was clear that the intention of the legislature had not been to preserve the droit d'aînesse where there was only one tête de partie with less than 5 vergées, but to subject the whole to an obligatory sale by the heirs and then divide it in accordance with degrees of consanguinity;

(c) although the court would normally assume that art. 15 of the 1891 Law, being later in the enactment than art. 7, superseded art. 7, it would not do so here because it was clear that each article dealt with distinct situations; and

(d) the fact that art. 26 of the 1891 Law had repealed any previous law, act or custom which was contrary to the provisions of that same Law was sufficient to rebut the presumption that the legislature had not intended to change the common law: the court was not therefore bound to apply the previous common law rule nor the provision in the Code of 1771, both of which had preserved the droit d'aînesse regardless of the presence of brothers or sisters of the half-blood.

The acquêts should therefore be sold and the net proceeds divided in the ratio of one part to the principal heiress and a double part to each of the representors (page 201; line 38 - page 204, line 29).

TOMES, DEPUTY BAILIFF: Louisa Deborah Remon (the de cujus) died intestate on March 12th, 1968, seised of real property situate in Jersey having the nature of propres according to the law and custom of this Island and real property situate in Jersey having the nature of acquêts according to the law and custom of this Island. The acquêts consist of a single dwelling-house (comprising one tête de partie) known as "Ville au Veslet," outbuildings and land measuring 1 vergée, 10 perches, 6 ft., the whole forming one corpus fundi situate in the Parish of St. Lawrence, to which the de cujus had right by a contract passed before the court on November 16th, 1935, of purchase from Lydia Jane Amy Remon.

Joan Thompson is the principal heiress to the collateral succession of the estate of the...