A ROMANTIC LAWSUIT

New Zealand Times, Volume XXVII, Issue 5735, 2 November 1905, Page 7

A ROMANTIC LAWSUIT

THE LATE MARQUIS TALIACARNE. APPEAL COURT DECISION. Tho decision of tho Appeal. Court was given yesterday morning in the case of Alary Ann Sells v. Arthur Edgar Gravenor Rhodes and Walter Einpson. This was a special case removed into the Court of Appeal by consent of the parties to tho action, for tho purpose of obtaining tho opinion of tho Court, on tho questions of law arising out of tho statement of lact-s as agreed to between tho parties. Tho main question was qs to whether tho domicile of the deceased, Arthur James Bertie (Alarquis Taliacarne) was in Italy or in tho colony of Now Zealand.

Briefly the story, which, has attracted much attention, was that the testator was tlio late Marquis Arturo Giacomo Bcrtio Taliacarno. His father was the Marquis Andrea Taliacarnc, who was a native of Genoa, an Italian subject, and at one time Ambassador of the then King of Sardinia to various countries. Ho married an Englishwoman, and when ho was Ambassador for Sardinia at The Hague, in 1859, tho testator was born of the marriage in London. Tho testator lived with his father and mother in different countries, until ho was sent to Harrow, and subsequently to Oxford University for Jus education ; and afterwards ho was entered by his fattier at Genoa on tho llogistcr of the Military Levy. On the death of his father, tho testator became possessed of an ancestral property at Genoa, and in other parts of Italy. Up to Ifctif, when the testator left Oxford, ho had always been known as “the Marquis Arthur James Bertio Taliacarnc.” In that year ho left for New Zealand, taking a considerable sum of money with him, which lie proceeded to invest in freehold land and in mortgages in this colony. When ho first arrived in Non' Zealand ho opened a bank account in tho name of “A. J. Bertie Taliacarno,” but in July, iaß2, ho altered tho name in his account to “A. G. Bertie.” Ho did not personally receive from his property in Italy any of tho income, but it was received on his account in that country by a person appointed under power of attorney to receive and invest all income from the property. Tho income so received amounted to some 1,000,000 francs, and after the testator’s death it was discovered that this person, who had become bankrupt, bad 10-st or appropriated tho whole of that sum. In 1890 the testator married tho plaintiff, who was a British subject. He was married under the name of “Arthur James Bertie,” but in filling in tho marriage certificate ho gave his late father’s and mother’s names as “Taliacarnc,” and also gave their'titles. After testator’s death, the plaintiff went to Italy with her infant daughter, Alary Vincenza, in accordance with tho wish of the testator, and she Ims since then remarried, her husband being Charles Do Grave Sells, a civil engineer, at present residing at Cornigliano, in the Italian province of Liguria.

Tho present plaintiff, Mary Ann Sells, in May last commenced an action, praying that the grant of probate to the will of her late husband might be recalled and revoked,. and the questions submitted for tho opinion of the Court of Appeal wore—What, on the facte, was the domicile of tho testator at the time of tho making of his. will and of his , death ? If tho Court was of opinion that tho testator’s domicile was in New Zealand, then judgment in this action should be entered for tho defendants. If the Court held that tho domicile of the testator was in Italy, it had been agreed between the parties that tho action should proceed for tho purpose of ascertaining tho law of Italy and its application to the will and codicils of the testator.

The Court, in giviug judgment, said that tho will of testator disclosed a clear intention to abandon tho Italian domicile. It set out his residence as “Rangitata South, in the province of Canterbury, New Zealand,” that “I am desirous of always remaining as I how am a British subject,” and that ho desired that his estate at his death “may he administered according to tho law of Great Britain and Ireland, and not according to tho law of Italy, although a part of my estate may bo situate within the ■ kingdom of Italy.” In the Court’s opinion tho fact that a man did all ho could to shake off his nationality and to sever his connection with his country was strong evidence of his intention to abandon his domicile in it. It was difficult to imagine any clearer expression of an intention to abandon a domicile than was indicated by the testator, and the Court held that at the time of his death testator had so abandoned his Italian domicile for a New Zealand one. „ „ . " . Hr George Harper, of Chnstohurch, appeared for plaintiff, and Mr Von Haast for defendants.