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The Jersey Law Review -
February 2002
SHORTER
ARTICLES AND NOTES
HAS
TERRY LOST ITS LEGS?
Richard
Falle
Entitlement to income arising during the
administration of the moveable estate of a deceased person ought to be beyond
debate. In a larger jurisdiction than Jersey the issue would have been
decided long ago. It was however, not until 1963, that the question was
considered by the Royal Court in Re Terry, née Priston.[1] The judgment settled an important
point, the determination of which in practice has a very material effect on the
administration of testate estates.
In that case, the testatrix had named the Midland Bank
Executor and Trustee Company (Channel Islands ) Ltd. to be executor of her
will. A charging clause in the usual terms made provision for the
company's remuneration. There were various specific legacies and finally,
a gift of the residue to certain charities. The executor applied to the
Royal Court in due course for directions as to the proper destination of the
dividends arising during the administration on shares which had been
specifically bequeathed. The question was argued as between the specific
and the residuary legatees.
The Royal Court in Terry held that the
right of an executor by ancient custom to take the année de jouissance
(the income for a year and a day) derived from the status which he enjoyed as
legal procurator of the principal heir. The heir's saisine or possession was
given to him by virtue of a legal fiction embodied in the maxim "le
mort saisit le vif sans ministère de Justice". Possession
entitled the principal heir to the fruits until, in due course, his co-heirs
called for a partage.
The "clameur de
partage" implied a right or propriété in the co-heirs. The partage
declared and defined a co-heir's propriété in a particular part or
proportion of an estate. It did not transfer or
create rights which had not existed before.[2]
In a testate succession, the specific legatee, like the co-heir, also had a
right of property in his gift dating from the death. In both cases, their
enjoyment of that property was subject to the principal heir's prior right to
possession. The legatee accordingly could not call for the fruits of
possession (if any) until the time appointed by custom. If, as in Terry,
the executor in right of the heir was expressly provided with remuneration in
lieu of the année de jouissance, he was clearly not also entitled to
the income. It followed that the heir, (or, as in Terry, the
residuary legatee) must be preferred to the specific legatee. The Royal Court
accordingly found that, in contrast to the position under English law, the
specific legatees were not entitled to the dividends arising on their gifts
from the date of death.
The position of the heir by
custom was at the heart of all issues of succession. Legitimate
inheritance was based on the principle of conservation de bien entre les
mains de la famille. The principal heir's strength sprang from the saisine
or possession which, as noted above, automatically and immediately passed to
him on the death of the deceased. In such a climate, where a provision in
a will became subject to challenge, the position of the heir would always be
preferred to that of the legatee. There might have been a formal defect
in the will, or perhaps the testator's wishes had been to prefer one member of
the family against another or to benefit a stranger. The will, almost by
definition, represented an attack on custom. It was, in a phrase often
used by practitioners "a fraud on the heir" and in each case,
therefore, vulnerable to attack at his instance.
Whatever the relative
strengths of the heir and the legatee by custom, the executor was not to be
equated with the legatee. The executor was not the competitor of the heir
but rather his agent. This is the model described by Terrien, our
principal commentator on the Ancienne Coûtume, -
"Faut fuppleer icy ce qui eft omis à dire
de l'office & pouuoir des executeurs. C'eft qu'ils sont saifis dedans l'an & iour du trefpas du teftateur, de biens meubles demourez
par son decez, iufques à la valeur & accompliffement du teftament, &
preferez aux heritiers en la poffefsion defdits biens meubles: comme le portent
aucunes Coustumes de ce Royaume. Et peuuent dedans ledit an prendre &
intenter procez pour raifon de ladite execution, & eftre connuenus comme
executeurs, des chofes contenues au teftament. Et aussi peuuent & doyuent
faire deliurance des lais aux legataires, quand ils ont accepté la charge de
l'execution. Acceptans laquelle & eux entremettans aufaict d'icelle fans
benefice d'inuentoire, font obligez aux dettes, lais teftamentaires, &
funerailles du defunct. Et font appelez detteurs d'auanture par noftre
Couftume, cy apres au titre De dettes & de detteurs. Et sont tenus à rendre
conte de leur execution aux héritieres & en payer le reliqua. Or s'il n'y a
executeurs es leus par le teftament, l'execution en appartient à
l'heritier."[3]
According to Terrien, the executor in a testate
succession stands in the shoes of the heir. Indeed, he is "preferez
aux héritiers en la possession desdits biens meubles ...". In our
legal fiction it is the dead man (le mort, not la mort) who
gives saisine or possession to the living - "le mort saisit
le vif". The maxim does not however, positively identify le
vif. Terrien resolves the question; in a testate succession,
possession passes to the executor if he elects to take the office and only in
default to the heir. The appointment is effected by the will, not by ministère
de Justice. Substituted for the heir, the executor's saisine
carries with it the entitlement to the fruits of possession. Here, accordingly,
is the année de jouissance of the executor, the reward given by the
testator to the executor for assuming, in place of the heir, liability for the
debts and obligations of the succession and otherwise the burden of its
administration.
The formulation of the custom
considered by the Royal Court in Terry is that contained in article
430 of the Coûtume Reformée ("Des Testaments"). All
parties to those proceedings agreed that this correctly stated the law of
Jersey -
"Les executeurs
testamentaires sont saisis durant l'an et jour du trépas du défunt des
biens-meubles demeurez après le déces pour l'accomplissement du testament,
jusqu'à la concurrence des legs et autres charges, en faisant au préalable
inventaire, appelez les héritiers, et, en leur absence, les plus prochains
parens; si mieux l'héritier ne veut saisir l'executeur testamentaire des legs
et charges
en argent ou en essence".
Of Article 430 of the Coûtume Reformée, Jean
Poingdestre says -
"cet Article est emprunté presque mot pour mot du livre 6
chapitre 7 de Terrien ....partant cet Article
..... est recevable en nos Isles".[4]
This same article (430) of the Coûtume Reformée
was considered by the Privy Council in the case of La Cloche v La Cloche[5] -
"..... as importing that the executors are
entitled to the possession of the whole of the moveable property of the
testator for a year and a day after the decease, and that their possession will
continue until they have received the amount of the moveable estate bequeathed
by the will, and have also fulfilled the duties of administration ...."
In 1562 Royal Commissioners
were sent to Jersey empowered to make new law. Among their ordinances was
a new procedure borrowed from the English practice for the probate of wills -
"Also the Dean of the said Isle shall be
bound to take and receive the probate of Wills and of Inventories by writing
and Indenture to keep a register thereof and therein to register a true copy of
the Testaments and Inventories acknowledged and approved before him to the end
that he may give and deliver a copy or duplicate to those whom it shall concern at all times and whensoever he shall be
requested so to do Acting in all points and having for his salary and for the
probate of the said Testaments in such manner and as it is at present
ordinarily used in the Realm of England (that is to say) etc."[6]
This new procedure, limited to testate succession,
put in question the seamless transmission of possession from the deceased to
the executor. It would no longer be sans ministère de Justice.
Clearly the person named in the will had a right to that office but could only
take possession following an application to the Dean.
It is not clear how or even whether the Dean
exercised his new jurisdiction pursuant to the 1562 ordinance. In 1591,
Commissioners Pyne and Napper made new ordinances apparently with the
concurrence of the Governor, Bailiff and Jurats. Among them was one
creating the office of Récordateur des Testaments.[7]
No law-making authority was given in the commission and the ordinances, many of
which were controversial, have not generally been followed. Philippe Le
Geyt considered this ordinance as being relevant only in the event of a
vacancy.
In 1619 James I promulgated his Canons and
Constitutions Ecclesiastical for the Island of Jersey . Canons 26 to 28
inclusive conferred upon the Dean sitting in the Ecclesiastical Court a general
jurisdiction to grant probate of wills and letters of administration (in
translation):-
"26. The Dean shall have the Entry and
Probate of wills which shall be approved under the Seal of his Office, and
Re-registered; He shall have also the Registering of the Inventories of Goods
Mobiliary belonging to Orphans, whereof he shall keep a faithful Register, that
he may give Copies of them whenever he shall be required. Moreover, he
shall give Letters of Administration of the Goods of Intestates, dying without
Heirs of their Body, to the next of Kindred.
27. They that have the Will in
their Custody, whether they be Heirs, Executors or others shall be obliged to
exhibit and bring the same to the Dean within one Month; in default whereof
they shall be convened into Court by Mandate, paying double Charges for the
Compulsory; and the said Dean shall have for the said Wills, Inventories, and
Letters of Administration, such Fees as are specified in the Table made for
that purpose.
28. All Legacies Mobiliary made to the Church, Ministers,
Schools, or Poor, shall be of the Cognizance of
the Dean; But upon any Opposition made concerning the Validity of the Will the
Civil Court shall determine it betwixt the Parties."[8]
The Canons conclude with the words ".... mais
que le tout soit rapporté et limité au contenu desdits Canons et Constitutions
Ecclesiastiques. Comme aussi ne sera donné aucun empeschement par le
Magistrat Civil de ladite Isle audit Doyen et ses successeurs en
l'exécution paisible de ladite jurisdiction, au contenu d'iceux Canons, comme
n'estans préjudiciables aux Privilèges, Loix, et Coutumes de ladite Isle,
auxquelles n'est entendu déroger".[9]
Some sixty years after the Canons were
promulgated, Jean Poingdestre wrote his Caesarea or a Discourse for the
Island of Jersey. The work is in English and clearly aimed at the
English Court . Concerning these Canons Poingdestre had this to say in
relation to the reservation in favour of the "Loix et Coustumes"
-
"Which words are of such force, that whereas some things
have since been found therein inconsistent without
our Lawes, not taken notice of before, & which could not be put in practice
without breach of them, the sayd things remained unpractised to this day, as have
crept into those Canons unawares; as namely the Canon
concerning the granting Letters of Administration of Intestat's goods; which is
agreeable to the Lawes of England, but destructive of that Grand Maxime in the
Norman Lawe, LE MORT SAISIT LE VIF, by virtue whereof any successor,
wither in a direct or collateral line is ipso jure seized of the whole
estate of the party deceased, both Hereditary & Mobiliary to all intents
& may perform all acts of a Proprietor, without intervention of the
Magistrat: & soe that Canon comes null & superfluous.".[10]
Notwithstanding Poingdestre, the jurisdiction
conferred on the Ecclesiastical Court by the Canon to grant letters of
administration was thenceforth put into practice. As a firm Royalist
Poingdestre should perhaps have considered monarchial succession as a
precedent.
In 1953 a young princess on holiday in Africa suddenly became Queen Elizabeth
II on the death of her father. “Le Roi est mort, Vive la Reine!”
Already Queen regnant of the United Kingdom and of this Island, the Queen was
thereafter crowned and took the coronation oath inter alia to observe
the laws, customs and privileges of her kingdom. Coronation may not be a
requisite of performing royal functions;[11]
but royal succession is a classic instance of “Le mort saisit le vif …..”.
Like the sovereign, the heir in the 17th century did not require ministère
du Justice to determine his right of inheritance. Probate however,
confirmed his identity, clothed him with authority and bound him to his duty.
The concern of Poingdestre was that no external
authority, to wit, the Court, should have the power to intervene and interrupt
the customary rights of succession. Custom did however, in any event,
contemplate various situations where saisine could be interrupted,
deferred, repudiated or lost. For example, the right of the co-heir to
call for a partage presupposed deferred property. Another
example is the bénéfice d'inventaire, a procedure which gave the heir
a period during which to assess the value of the succession before electing
between taking as heir or repudiating the succession
altogether. Hence the maxim "nul n'est légataire qui ne veut".
During that interval given by the bénéfice d'inventaire, saisine
was in suspense. On repudiation the same rights would pass to the next
heir and so on.
Saisine might
also have been suspended or lost because of feudal relations between seigneur
and tenant. The tenant might lose possession to his feudal lord, for
example, on failure to perform services for so long as he remained in
default. In other cases saisine might be lost to the heir
altogether, e.g. by confiscation or escheat when saisine
would pass absolutely to the seigneur.
A helpful characterisation of the transmission of
right by inheritance is given by Flaust,[12]
a late commentator on the Norman custom. According to Flaust, the propriété
which gave the co-heir right to demand a partage was a saisine de
droit. It became a saisine de fait on the partage.
In this light, the creation of the Dean's probate jurisdiction in 1562 was
perhaps not such a fracture of legal theory as that novelty might first have
seemed. Following Flaust, the executor's saisine de droit
conferred by the testator on death, would, by grant of probate, become saisine
de fait.
The preamble to the Probate (Jersey) Law, 1949,
states that it was a law "to provide for the transfer of probate
jurisdiction from the Dean and the Ecclesiastical Court to the Royal Court
(Probate Division) ....".
Interestingly, the 1949 Law addressed the concerns
of Poingdestre. Under the heading "Saving of Rights of Principal
Heir", article 33 provided:-
"For the avoidance of doubt, it is hereby
declared that, save as otherwise expressly provided by this Law, nothing in
this Law shall be construed as derogating from the rule of law expressed in the
maxim "le mort saisit le vif sans ministère de Justice".
Despite this saving clause,
the rights of the principal heir were, in fact, significantly diminished by the
1949 Law. Article 14, for example, provided that "where it appears
to the Court to be necessary or convenient to appoint some person to be the
executor dative of the will or to be the administrator of the personal estate
of the deceased, or of any part of such personal estate, other than the person
who, if this law had not been passed, would have been entitled to a grant of
probate or administration, it shall not be obligatory upon the Court to make a
grant to the person who, if this law had not been passed would have been
entitled to the grant, but it shall be lawful for the Court, in its discretion,
to appoint such person as the Court thinks fit to be such executor dative or
such administrator ....".[13]
The unnamed "person" with now only a
qualified right to demand a grant was of course the principal heir. The
discretion conferred on the Court under article 14 was nothing if not a
manifestation of "ministère de Justice". Moreover,
article 23 in practice negated the possession of the heir by imposing a penalty
for intermeddling save in those very limited circumstances where justified for
the conservation of the estate -
"If any person takes possession of and in any
way administers any part of the personal estate and effects of a deceased
person without obtaining a grant...he shall be liable... to a fine..."
What then was the force and meaning of the reservation
in article 33?
This broadly was the law at the time of Terry
in 1963.
Change was to follow.
The
Trusts (Jersey) Law 1984 (as amended) stated the general guiding principle in
relation to a trustee's remuneration at article 17 in these terms:
"(4) Except -
(a) with the approval of the Court;
or
(b) as permitted by this law or
expressly provided
by the terms of the Trust;
a trustee shall not -
(i)
directly or indirectly profit from his trusteeship;"
This Law defines "personal
representative" as meaning "the executor or administrator for the
time being of a deceased person and, in the context of a Jersey trust, includes
the principal heir". It seems reasonable to construe these
provisions as contemplating all situations which might arise where a person in
a trustee relationship holds assets for another. There is however, in
article 55 of the Law, a saving provision -
"(4) Nothing
in this Law shall affect a personal representative where he is acting as such.
"
The effect of this was, it is submitted, to save
the rights of the executor to the année de jouissance and any right in
the principal heir arising from his saisine on an intestacy.
Radical changes to the customary law position were
brought about by the Wills and Successions (Jersey) Law, 1993. The
preamble describes it as a law inter alia -
"to abolish certain rules of customary law".
Article 12 expressly abolished the "année
de jouissance"; and, under the heading "Right of Principal Heir
to demand possession of moveable estate", article 14 provides -
"The right under
customary law of the principal heir to interpose and demand possession of the
moveable estate from the executor of a deceased person's will on depositing
with the executor the full amount of the bequests made under the will, together
with the debts and other charges of the administration, is hereby
abolished."
The Probate (Jersey) Law 1949 was replaced by the
Probate (Jersey) Law, 1998.
It is noteworthy that:-
(a) the
1998 Law abolished article 33 of the 1949 Law and thus made no saving provision
for the rights of the heir;
(b)
article 19, under the heading "Necessity for production of grant"
provides, subject to minor exceptions, that -
".... the production of a grant shall be
necessary to establish the right to recover or receive any part of the movable
estate situated in the Island of any deceased person."
(c)
article 23, forbidding intermeddling, repeats the earlier statute.
It is now clear that the executor can no longer
claim to be the legal procurator of the principal heir but simply the
particular person appointed in virtue of the will or by the Court. The
heir too has no right to possession of an estate except as a grantee and the Court
has a discretion to decide whether to make such a grant in his favour or in
favour of another more suitable person. What then is the saisine
of the heir? Certainly the principal heir, as originally determined by
customary law, has no prior claim to possession of the estate. The
estate, in accordance with the Wills and Successions (Jersey) Law, 1993
devolves upon all the heirs equally. The saisine of the heir and
the specific legatee, is now identical.
The executor is dependent for
his remuneration entirely on such provision as may be made by the testator by
way of legacy or, more commonly, by way of a charging clause for the
professional executor. If no such provision is made, he is not entitled
to remuneration.
Where does this leave the Court's decision in re
Terry?
The customary law principles which provided the
whole foundation for that judgment have, it is submitted, been swept
away. The property in a testate succession is in the persons named as
beneficiaries and neither the executor nor the heir now has any prior
claim to the income arising during the period of administration. It
should accordingly follow that a specific legatee is entitled to the income
arising on his legacy during the administration unless the will otherwise
provides.
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Richard Falle is an advocate of the Royal Court and
senior partner at Bois & Bois, Bond Street Chambers, 1 & 2 Bond Street, St. Helier, Jersey, JE4 5QR