Special Maltese Events in History
Marquis Riccardo Cassar Desain Appellant; v. The Noble Pietro dei
Baroni Testaferrata
Privy Council
PC
Lord Blanesburgh, MR. Justice Duff, and Sir Adrian Knox.
1925 Jan.
20.
[and
Cross-Appeal.]
On Appeal
from the Court of Appeal of
The appellant claimed from the respondent, who was in
possession, a Maltese primogenitura founded by a deed
executed in 1775. The deed provided that the primogenitura
should descend, in the order of a regular primogenitura,
to male descendants in the male line. It excluded illegitimate children, even
if legitimated by subsequent marriage, but the exclusion of legitimated
children was subject to certain exceptions. The appellant's title was entirely
through males, but one of the ancestors through whom he claimed had been
legitimated. The respondent asserted that his own title, which was through a
female, was superior to that of the appellant; he contended also that the
appellant's claim was barred as against his own possession by the better title
of a third person. That person had been entitled to the estate since 1892. He
was, however, in possession of another estate which could not be held with that
now in dispute, and he had made no claim, although there had been opportunities
for him to do so:-
Held,
(1.) that the vocation of males in the male line
showed that the intention of the founder was to call only males descended
through males; and that accordingly the provision that the descent was to be in
the order of a regular primogenitura related merely
to the preference as to line, degree, and age, between persons so descended.
D'Amico v. Trigona(1888) 13
App. Cas. 806 followed. (2.) That although, according
to Maltese law, an exclusion of legitimated persons from descent is to be
strictly construed, the preponderance of authority showed that it extends to
those claiming through a legitimated person; but that the appellant came within
the exceptions expressly provided by the deed.
(3.) That the appellant's claim was not barred by the
title of the third person. The primogenitura did not
vest ipso jure; and having regard to the long period during which the third
person had abstained from accepting the responsibilities of the primogenitura, he had no interest in it.
Judgment of the Court of Appeal reversed upon the
point last mentioned.
CONSOLIDATED CROSS-APPEALS (No. 150
of 1923) from a judgment of the Court of Appeal,
The litigation related to the descent of a Maltese primogenitura founded by a notarial deed dated
The facts of the case, including the material terms
of the deed of foundation, appear from the judgment of the Judicial Committee.
The case was heard in the First Hall by Micallef J.,
who held that the plaintiff's claim failed.
The Court of Appeal (Rafalo,
Agius, and Camilieri JJ.)
disagreed with the view of the trial judge that the defendant's title was
superior to that of the plaintiff, but held that the plaintiff's claim was
premature owing to the existence of a stranger to the suit who had a better
title than the plaintiff; the Court accordingly absolved the defendant from the
instance.
The plaintiff appealed, claiming that his title being
made out as against the respondent he should not be debarred from obtaining the
primogenitura by reason of the rights of a stranger
to the suit. The defendant also appealed, claiming that the plaintiff's claim
should have been dismissed in toto, on the grounds
that he was excluded by the terms of the deed, and that his title was thereunder inferior to that of the defendant.
1924. Aug. 4, 5, 7. W. A. Greene
K.C. and Colombosfor the appellant.
It is open to the founder of a primogenitura to
establish a line of descent differing from that of a regular primogenitura: Strickland v. Marchese Felicissimo
Apap. [FN1] The vocations of males in lineam masculinam excluded not only females but also those
claiming through a female: D'Amico v. Trigona [FN2]; Rota Recentiores,
dec. 575, pt. 19, vol. 2, n. 13; Peregrinus,
De Fideicommissis, art. 26, nn. 1, 2; Fusarius, De Fideicommissis, sub. quaest.
346, n. 32; Bichio, dec.
493; Sardinian Decisions, Dec. 18, 1746, see Pratica Legale, pt. 2, vol. 5, fol. 441; Joannis
Torre, Variarum Juris Quaestionum, tom. 1, tit. 2, qu. 40, p. 419. Here 'in lineam masculinam' cannot mean merely a line beginning with a
male, because the words are used in relation only to the descendants of sons.
By Maltese law children legitimated by subsequent marriage are ordinarily equal
in all respects to those lawfully born; they can be excluded only by clear
language: Peregrinus, art. 24, No. 8; Tiraquello, fol. 96, No. 569 xxxiii.;
Merlino, De Legitima, lib. 1, qu. 7, n. 1; Fusarius,
qu. 409, n. 22; Cinotomo,
De Successione, lib. 3, tit.
1, p. 220; Urceolus, Consultationes Forenses, tom.
1, pars 2, c. 57. There is no exclusion in terms of those claiming through a
legitimated person. In any case the plaintiff comes within the exceptions
expressed by the deed. The existence of a third party who has a better title
but has not claimed is no bar to the appellant's rights in the action. A person
entitled under the deed does not take ipso juris, but only upon claiming. [On
this point reference was made to the authorities set out in the judgment.]
Further, the fact that the third person holds an incompatible primogenitura excludes him: Torre,
Variarum Juris Quaestionum,
tom. 1, tit. 1, qu. 4; ibid. tom. 2, tit. 6, qu.
6. The Court of Appeal erred in treating the claim as one to the
dominium, whereas it was one to the usufructuary enjoyment under the fideicommissum. Actio rei vindicatoria is not applicable to the enforcement of a fideicommissum, which is a personal claim: Sohm, Institutes, 2nd ed., pp. 346, 537, 538.
FN1 (1882) 8 App. Cas. 106.
FN2 13 App. Cas. 806.
Sir John Simon K.C. and Hon. Geoffrey
Lawrence for the respondent. The deed provides that the descent is to be in
the order of a regular primogenitura, that is to say
with preference to line, degree, sex, and age, in the order stated; if the deed
as a whole can be construed to accord with that it should be so construed:
Strickland v. Marchese Felicissimo Apap. [FN3] The
male line referred to in the deed is the line founded by male children of the
sons of Donn' Anna Maria. Even if females are
themselves excluded, males who would succeed under a regular primogenitura are not excluded by reason of being descended
through a female. The deed, as a whole, does not indicate that the descent was
to be purely agnatic. [Reference was made to: De Luca, De Linea Legale, art. 16; Bonfinio, De Fideicommissis, bk. 3, dec. 127;
Sayer v. Bradly. [FN4]] The defendant being in
possession, the plaintiff cannot succeed in the primogenitura
having regard to the superior title of Lorenzo. There is nothing to prevent him
from abandoning the incompatible primogenitura which
he holds at present. The authorities do not establish that the interest of the
holder of a primogenitura is less than dominium.
FN3 8 App. Cas.
106.
FN4 (1856) 5 H. L. C. 873.
W. A. Greene K.C. replied.
1925. Jan. 20. The judgment of their Lordships was
delivered by LORD BLANESBURGH.
This is an appeal and cross-appeal from a judgment
and order of the Court of Appeal for the Island of Malta and its Dependencies
dated January 29, 1923, which, while in the result affirming a judgment of the
First Hall of the Civil Court of Malta dated December 16, 1918, did
incidentally reject all but one of the grounds of substance on which that
judgment had been based. Each Court actually absolved the defendant - the
present respondent - from the instance. But, in the First Hall, the absolvitur proceeded on a decision in the defendant's
favour of all the main issues canvassed in the suit: in the Court of Appeal on
the decision in his favour of one of these issues only. This appeal by the
plaintiff is confined to so much of the order of the Court of Appeal as was
adverse to himself. Objection to the rest of that
order is taken by the defendant in his cross-appeal by which he seeks to have
the judgment of the First Hall on every point restored. Thus it happens that
all the questions raised in a suit commenced so long ago as August 10, 1911,
are now either on the appeal or the cross-appeal brought to His Majesty in
Council for final decision.
These questions depend for the most part upon the
true construction of a formal notarial deed executed on
It will be convenient at the outset to set forth
textually those clauses of the deed upon which the discussion has mainly
turned. They will thus stand for reference as this judgment proceeds. An
English translation, accepted by both parties as accurate, has been used
throughout the proceedings. Their Lordships will quote from that translation.
'3. .... all holders of the 'primogenitura'
shall at all times bear in all public and private acts, and in their signature,
the surname Viani in addition to their own and unite
always to their own insignia the insignia of the Viani
family.
'5. As stock of this 'primogenitura'
(the founders) have nominated Donna Francesca Viani
legitimate and natural first-born daughter of the said Baron and of the late
Baroness Maria Teresa Bonnici Falzon,
appointing her first holder of the property, and after her they call all her
descendants in the order of a regular primogeniture in the manner here-under
mentioned, to wit, her first-born son and his male descendants in the male line
(per lineam masculinam) up
to the twentieth and thirtieth degree and in perpetuity; after these, they call
the second-born son together with his male descendants in the male line also in
perpetuity; and after these the third, fourth, fifth and sixth-born son
together with his male descendants in the male line, always in the order of a
regular perpetual primogeniture. '6. In default of the male line of the male
children (figli maschi) of
the said Donna Francesca, the female children (figlie
femmine) of her male children (figli
maschi) and all their descendants shall succeed in
the same order of primogeniture, with preference always of males to females,
and of the first-born to the second and ulterior born son, and in every respect
as has been established above for the first limitation (vocazione)
of the male children (figli maschi),
provided, however, that the succession shall restart from the first line of the
first-born son, first called, preferably to the females nearer in degree to the
person last called, and so on successively and gradually.
'7. In case of failure both of the male and female
lines of the said male children (figli maschi) the said Baron and his sisters direct that the
female children (figlie femmine)
of the said Donna Francesca Viani and all their
descendants shall succeed in the very same order laid down above for the
limitation of females descended from male children (figli
maschi), which order is to be held as repeated here
word for word.
'8. And should the said Donna Francesca Viani have no children, male or female, then the said Baron
and his sisters have substituted and called Donn'
Anna Maria Viani Bonnici,
wife of Mario Testaferrata, Marchese di San Vincenzo Ferreri, with all those substitutions, limitations, pacts,
laws, rules and conditions which have been ordered and established for the
limitation of the said Donna Francesca Viani, and not
otherwise.'
Clauses 9 and 10 make provision for the ingress of
the primogenitura into the family of de Ollivier Viani, in default of all
the lines specified in clauses 5 to 8.
'13. From the said primogenitura
the said founders exclude all those who perhaps were not born of a true and
lawful marriage contracted according to the rites of Holy Church, even if they
be legitimated by subsequent marriage or by privilege, be it also of Sovereign
Princes or of the Supreme Pontiff, provided, however, that the descendants of
the said Donna Francesca and Donn' Anna Maria Viani even if legitimated per subsequens
matrimonium or per rescriptum
principis to the exclusion of the said Donna Rosa and
Donna Vincenza de Ollivier Viani and their descendants, may and shall enjoy the
present primogenitura, not however to the exclusion
of their brothers born of a true and lawful marriage.
'14. Likewise if it should happen that there be one
only male of the primogenial line and such male be
legitimated per subsequens matrimonium,
then he may and shall enjoy without question the present primogenitura
to the exclusion of any female born of a true and lawful marriage.
'18. Although the intention and will of the founders
is that the present 'primogenitura' is to go to the
first-born, nevertheless, if the latter's conduct is unbefitting his rank as
knight, or what is more, as a good Christian, or if he contracts unequal
marriage or against his parents' will, or if from the second-born more decorum
to the family is hoped, in such cases the said Baron Viani
and his sisters, wishing that the persons called by them be virtuous and moral,
grant unto the said Donna Francesca and Donn' Anna
Maria Viani and successively unto all the holders of
the 'primogenitura,' the power to prefer the
second-born son, and if the latter is also undeserving they give power to
prefer the third-born, and so on successively; but the founders request that
this right of preference be not exercised without good cause and mature
consideration, or with passion or mere predilection for the sons and daughters
under age. The descendants, however, of the person debarred shall not be
considered excluded when, on the extinction of the line of the person
preferred, there be room for a new substitution.'
Until the death of the Baron Dr. Giuseppe Testaferrata Viani, the third holder of the primogenitura, there was no room for doubt as to the proper
devolution of the primogenial property. The Donna
Francesca had died without issue, and the property devolved upon the Marquis
Giuseppe, the eldest born of the Donn' Anna's three
sons, that lady's line entering into the primogenitura
under cl. 8 of the deed. The Marquis was succeeded by
his only son Gilberto, as the second holder, and Gilberto by his only son, the
Baron Dr. Giuseppe, who died without issue in April, 1892. It is not in dispute
that thereupon the direct male line of the Marquis Giuseppe, the eldest born
son of the Donn' Anna became extinct; and, if the
first limitation established by the third clause of the deed is a purely male
agnatic descent from which all males descending from females and females
themselves are excluded, as is the contention of the appellant, then, on the
death of the Baron Dr. Giuseppe, the primogenitura
ought to have made its ingress in the male line of Lorenzo (second born son of
the Donn' Anna) or, failing that line, in the male
line of Filippo - her third son - the line which the
present plaintiff claims to represent.
In fact, however, the primogenial
property was retained first, by the Noble Rosario, a nephew ex sorore, of the Baron Dr. Giuseppe, and second son of his
deceased sister Angela. The Noble Rosario appears to have held possession
certainly until 1903. Thereafter, in circumstances which are not disclosed in
the papers before the Board and which have not been clearly explained to their
Lordships, possession was taken by or given to the Noble Salvatore dei Baroni Testaferrata Moroni Viani, the elder brother
of the Noble Rosario, and the father of the present respondent. Possession was
retained by the Noble Salvatore until his death in September, 1911, about a
month after the institution of these proceedings, and since his death it has
been retained by his son, the respondent.
In 1910 an attempt to disturb that possession was
made by the Noble Nicola Testaferrata de Noto, grandson of the Marquis
Giuseppe, and son of the Marquis's daughter, Vincenza.
He brought a suit against the Noble Salvatore to recover the primogenial property. In that suit however the Court of
Appeal in a judgment dated June 27, 1910, after expressing views as to the true
effect of the deed of foundation which the learned judges of that Court have
repeated and indorsed in their judgment now under consideration, held that, in
a question between the Noble Nicola and the Noble Salvatore, the latter was
entitled to enjoy the property under an earlier vocation, and that, on that
ground alone, the Noble Nicola had no claim to interfere with his possession.
Such, in his own view, at least, was not the present
appellant's position, and he, on
The respondent's place in the order of descent has
already been described. The appellant's position in relation to him can only be
appreciated on reference to the facts concerning the male line of Lorenzo, the
second son of the Donn' Anna, and concerning also the
male line of Filippo, her third son, of which line,
as their Lordships have already said, the appellant claims to be the present
representative.
Lorenzo, the second born son of the Donn' Anna, had an only son, Mario Filippo,
and he by his marriage with Donna Vincenza Testaferrata had four sons, of whom the three eldest died without
issue. The fourth son, the Noble Lorenzo Antonio dei
Marchesi Testaferrata, is still living,
descended, as thus appears from his grandfather Lorenzo, through an unbroken
series of males. The Noble Lorenzo Antonio, however, has since 1874 held a primogenitura, distinguished in these proceedings as the 'Testaferrata primogenitura,' one condition of
which is that the holder of the Viani primogeniture
must never succeed to it and that the two primogenitures shall not meet in the
same person. There have been at least three appropriate occasions since 1874,
on which the Noble Lorenzo Antonio could have elected to abandon the Testaferrata primogenitura and claim the Viani primogenitura, and the
judgment of the Court of Appeal in the present case shows, as did its judgment
in 1910 in the case already referred to, that in the opinion of that Court
there would be no answer to his claim if he made it. He has, however, never
made the claim, presumably for very good reasons, which in view of the facts
just stated are easy to conjecture. But he still lives, a not remote kinsman of
both parties to the present proceedings. And in the view of the Court of Appeal
- not of course shared by the respondent - the existence of the Noble Lorenzo
Antonio is the one existing effective obstacle to the appellant's immediate success
in this suit. Of that, however, hereafter.
Filippo, the third born son of the Donn'
Anna, married on
With regard to the appellant's status it has
throughout been contended by the respondent, as a preliminary objection of
fact, that there is no sufficient evidence that the appellant's
great-grandfather Lorenzo was in fact Filippo's son,
and the learned judge of the First Hall took that view. His judgment on this
matter, however, did not commend itself to the learned judges of the Court of
Appeal, and little was urged in support of it before the Board. Their Lordships
have carefully considered all the evidence upon the subject, and they concur
unhesitatingly in the view of that evidence taken by the Court of Appeal. It is
in their judgment established beyond the range of judicial doubt that Lorenzo
was the son of Filippo and Vincenza
Fallanca, and that he was duly legitimated and
acquired the full status of legitimacy by the marriage of his parents on
To that claim the respondent, beyond the objection to
the appellant's status with which their Lordships have just dealt, puts forward
three separate answers:-
First. - He asserts in himself a right prior to that
of the appellant to hold the 'primogenitura.'
Secondly. - He contends that the appellant as a person descended
from an ancestor whose legitimacy was due only to the marriage of his parents
subsequent to his birth is not within the vocation at all and can assert no
claim under the deed of foundation.
Thirdly. - He urges that if, contrary to his second contention, the
appellant is within the vocation, his claim, as against a person, like himself,
in actual possession of the primogenial property, is
barred by the right thereto of the Noble Lorenzo Antonio which, on the
appellant's view of the deed of foundation, is necessarily prior to his own.
Each of these answers was accepted by the learned
judge of the First Hall, as well founded and sufficient to defeat the
appellant's claim. In the Court of Appeal, the third answer only was
entertained favourably. The others were rejected. They will now be dealt with
in their order.
Their Lordships, as a result of the argument before
them, are left in some doubt as to the ground on which the first contention of
the respondent is now rested. In the First Instance, the contention they think
must have been - it was accepted by the learned judge - that by the limitation
of the primogenial property successively to the
first, second and subsequently born sons of - in the event - the Donn' Anna
'and his male descendants in the male line up to the
20th and 30th degree and in perpetuity .... always in
the order of a regular perpetual primogeniture,'
the founders meant only successive lines of substance
from which the female is not excluded, although she is postponed to the male.
Marked as is the contrast in language, and presumably in content, between the
apparently restricted words 'male descendants in the male line' in this vocation
and the corresponding words 'all their descendants' in the second and third
vocations set forth in clauses 6 and 7 of the deed there is, in the learned
judge's view, identity of devolution within each vocation. The words, 'per lineam masculinam' in the first,
merely mean a line beginning with a male as contrasted with what in cl. 7 is described as the linea feminina of cl. 6 - a line beginning with a female. The first, like the
other vocations, is governed by the words 'always in the order of a regular primogeniture,'
by which is meant a primogeniture in which although males rank before females
they do not exclude them, and even their priority is qualified by the rule that
preference must always be given, first to the line, secondly to the degree
within the line, and thirdly only to sex in case of equality of degree.
Now as to this, it is first of all a little difficult
to see how in cl. 5 the words 'per lineam masculinam,' part of the
expression 'her first born son and his male descendants in the male line,' can
only mean a line beginning with a male when the first born son, a male, has
already been named as the first person in the line. On that view the words are
merely tautologous or redundant. But, further, a line beginning with a male is
not in Maltese law the natural or ordinary meaning of the words 'linea
masculina.' The phrase, says Lord Selborne, in
D'Amico v. Trigona [FN5], properly means 'a line commencing with a male and
continued through males,' and he continues:
FN5 13 App. Cas. 806.
'Many authorities on that point were quoted at the
bar; but it is sufficient to mention the definition of the Roman Rota, approved
and adopted by Cardinal Luca (De Linea Legali lib. 2,
art. 76 num. 5). ' Linea masculina inchoatur
a masculis et continuat in masculos; cum autem pervenerit ad feminas statim finitur,' to which the Cardinal adds: 'Linea masculina etenim est quae componitur simpliciter ex masculis
absque intermixtione feminarum.''
In other words, if the phrase is to have attributed
to it the limited meaning of a line commencing with a male - and no more - some
context is required. And here the context is all the other way.
Again, as to the references in the section to a
regular primogeniture, which formed the essential basis of the learned judge's
decision - and there are, it will be seen, two such references - these do,
their Lordships recognize, carry one step further in the case of this primogenitura the usual presumption in favour of a
primogeniture being regular which apart from these references altogether would
by Maltese law apply to it. It must, however, in this connection, also be
remembered that by the same law founders of a primogenitura
may, if they please, displace the regular order of succession, and an intention
to do so, if sufficiently manifested, will be acted upon, subject to this, that
a prescribed deviation will not be construed as interfering with the regular
order more than is necessary to give effect to the deviation. In the result,
the question really becomes one of the proper construction of the deed, to
ascertain which all parts of the instrument may rightly be taken into account:
see D'Amico v. Trigona [FN6]; Strickland v. Marchese Felicissimo
Apap. [FN7]
FN6 13 App. Cas.
814.
FN7 8 App. Cas. 106.
And as a matter of construction it seems to their
Lordships impossible to include as beneficiaries in this first vocation any
females at all, if only because those included in that vocation are confined to
'male descendants.' Moreover, if females are, as under a regular primogeniture,
to be called it would appear that on the death in 1892 of the Baron Dr.
Giuseppe without issue his sister, Orade, who
survived him was the person in the regular order to succeed instead of either
the Noble Salvatore or the Noble Rosario, sons of a deceased younger sister.
And it is noticeable that in seeking to establish under the deed the
respondent's claim to present possession no attempt has been made to extinguish
the prior claim of Orade either as at that or any
later date. Their Lordships, however, do not labour this point. They base their
conclusion here on broader grounds. It seems to them that it is only by a
complete disregard of unambiguous words which, with all respect to the learned
judge of the First Hall, is not permissible to a Court of construction,
that females can as beneficiaries be brought within the first vocation
of this primogeniture.
And probably, for that reason, a somewhat different
view of this vocation was, as it seemed to their Lordships, presented to the
Board by learned counsel for the respondent. That view appeared to be that
under this vocation males descended through females, although not females
themselves, were called. To take the present case, the Noble Rosario, and the
Noble Salvatore descended from Angela, excluded both Angela and Orade, and were called as 'male descendants in the male
line.'
The first observation to be made on this contention
is that such a devolution ceases in any sense to be
regular, and the respondent by adopting it discards at once the support derived
from the references to a regular primogeniture without which the view adopted
by the learned judge of the First Hall could hardly even be stated. The
devolution now contended for is as irregular as is an agnatic line of descent. If therefore it is to obtain it can only be on the ground that it
embodies as matter of construction the true meaning of the words 'his male
descendants in the male line.'
But these words have, by Maltese law, as their
Lordships are satisfied, another and a different meaning. No female, even as a
channel of descent, has part or lot in a devolution so defined. Indeed, a
female may possibly be excluded with equal completeness by the use of the
expression 'male descendants' alone. 'But this,' says Joannis
Torre, Variarum Juris Quaestionum (1705), tom. 1, p. 419, 'fortius
procedit in nostra hypothesi
quia in eodem periodo in
quo fit mentio descendentium
masculorum exprimitur per lineam masculinam.' And the
effect of the full phrase, as found here, is very clearly laid down in two of
the authorities referred to by the Court of Appeal: 'Si testator vocavit masculos per lineam masculinam descendentes, masculi ex femina non venirent, etc.' (Fusarius de Fidei. Substitutione Qu: 346, n. 32), and ' Masculi ex feminis in primogenituris et fideicommissis
non veniunt quoties
testator vocavit lineam masculinam vel masculum descendentem ex masculo, ratio est quia linea masculina non incipit a femina,
quae finis est lineae masculinae.' (Bichio, Decis. 493.) In their
Lordships' opinion, therefore, the view of this first vocation taken by the
Court of Appeal both in their judgment in 1910 in the suit already referred to
and again in the judgment now under consideration is well founded. The words
used are too clear to be doubtful. In this first vocation the founders mean to
call only males descended from males.
Nor have their Lordships any difficulty in
harmonizing this view with the references made in cl.
5 to a regular primogeniture. The following passage from the judgment of the
Court of Appeal expresses exactly their Lordships' opinion upon this aspect of
the matter:
'The said authorities bear out what has been said by
this Court in the quoted judgment of June 27, 1910, namely, that in the present
case the expression masculine line in conjunction with the word 'male' leaves
no doubt that the founders meant to call only males from males in the first
vocation, notwithstanding the expression 'regular primogeniture' which, in the
face of the clear will of the founders, must be taken in the sense given to it
in the judgment of 1910 to wit, 'that in the succession of the male lines one
must observe the rule of a regular primogeniture with preference to the line,
the degree and age, and not that males descended through females and much less
females themselves should be held as included in the disposition.''
There was, however, one objection urged against this
construction of the first vocation with which it is desirable to deal. This
construction would, it was said, in the result deprive of all benefit under the
deed any females and their descendants - the respondent himself may be taken as
an example - proceeding in the second and later generations from the sons of
the Donna Anna's sons. And this, although in cl. 5, as above quoted, 'all her descendants' are to be
called, and although it is in effect only on failure of these descendants that
the primogenitura is to enter into the family of de Ollivier Viani. Their
Lordships agree that this criticism if it were well founded would be serious.
But if the extended construction placed by the Court of Appeal in 1910 on the
words 'female children' in cl. 6 of the deed be
correct, as their Lordships think it is, this result would not happen. So much
cannot, however, be said of the construction for which the respondent contends.
Because unless, as for reasons above given is hardly possible, he can include
females as beneficiaries in the first vocation, it seems to follow on his view
that so soon as any females are there passed over in favour of male descendants
they never again find a place for themselves within the vocations. Yet they are
all of them 'descendants' of the Donna Anna.
There are other considerations leading to the
conclusion at which on this issue their Lordships have arrived. Some of them
are referred to by the Court of Appeal. But their Lordships do not deem it
necessary further to elaborate their judgment on this point. They would only
observe that their conclusion that an agnatic line of quality is in fact
prescribed by cl. 5 of the deed appears to them to be
in complete harmony with the scheme of the instrument taken as a whole. The
deed discloses throughout an anxious desire on the part of the founders to
prescribe an agnatic devolution of the property as closely as circumstances
would permit, one of which was that the male representatives of the Viani family in the generation succeeding their own were
all in the female line. In their Lordships' judgment the respondent has shown
in himself no title under the deed to the present enjoyment of the primogenial property or any part of it. A true
representative of the agnatic line of Filippo is in
the vocations in clear priority to him. Is, then, the appellant such a
representative? That question is involved in the second of the respondent's
contentions, which their Lordships now proceed to consider.
At this point the appellant is confronted with the
difficulty created by cl. 13 of the deed of
foundation which, subject to provisions which follow, excludes from the primogenitura:
'All those who perhaps were not born of a true and
lawful marriage contracted according to the rites of Holy Church, even if they
be legitimated by subsequent marriage or by privilege.'
Lorenzo, the appellant's great-grandfather, was, as
has been seen, such a person. Lorenzo, says the respondent, was excluded from
the vocation and his exclusion carries with it that of all persons - and the
appellant is one of them - who can come within the vocation only through him.
To this difficulty the answer upon which, it appears,
the appellant mainly relied in both Courts in
It is true that while the exclusion of legitimated
persons from a primogenitura is permitted to
founders, if they desire to make it, nevertheless, such an exclusion is not
favoured by the law and its term will be construed strictly: 'Hi namque (legitimati per subsequens matrimonium) speciali nota digni sunt, et eorum exclusio debet
esse expressa, concludens
et certa, ita ut verba fideicommittentis nominatim eorum exclusionem praeseferant.' (Joseph Urceolus, Consultationes Forenses, tom. 1, pars 2, c. 57 (1701), p. 45.)
It is true also, that authority can be found for the
proposition that such an exclusion applies only to the
legitimated persons themselves and does not extend to their descendants, if
they, in other respects, are entitled. But there is preponderant authority the
other way - authority, the Court of Appeal say, supported by the general
opinion of text writers, and authority, which their Lordships agree with that
Court in thinking, is according to reason. That view is supported too, in the
case of this deed, by a reference to cl. 18, which
shows that the founders know how to protect the descendants of an excluded
person when it is their desire or intention to do so. In these circumstances
their Lordships on this point will content themselves by selecting from the
numerous authorities which have been called to their attention the following
comprehensive statement of Censalius, 'Observationes cum additionibus ad
Tractatum de fideicommissis
Marci Antonii Peregrini' -
ad articulum 24, p. 93, where he paraphrases a
passage from Fusarius thus: 'omnes Doctores cumulat: secundum quos resolvit quod nec filii legitimi
et naturales ipsius legitimati admittendi sint ad exclusionem substituti, tamquam nati ex radice infecta, et redarguit contrarium sentientes.'
The appellant's first answer to this objection
accordingly does not avail him. If Lorenzo was excluded from the vocation so is
he. But the appellant has another answer which the Board accepts. In their
Lordships' judgment Lorenzo was not so excluded. He comes under both of the
exceptions contained in the deed. These exceptions must according to the rule
already stated receive a generous construction, and, so regarding the first of
them, their Lordships agree with the Court of Appeal in taking its effect to be
that a descendant of the Donn' Anna legitimated per subsequens is only excluded in favour of a brother born of
a true and lawful marriage, and Lorenzo never had such a brother. But they
think further that Lorenzo came within the exception of cl.
14. He was the last male of his primogenial line -
the agnatic line of Filippo. As Filippo
was the youngest son of the Donn' Anna, the
succession, failing Lorenzo, went to or through 'a female born of a lawful
marriage.' As against such a person - and on the principle just discussed, a
male descended from such a female is in no stronger position than the female
herself - Lorenzo was by cl. 14 entitled to enjoy
'without question' the present 'primogenitura,' and
his privilege extends to his agnatic line. On these grounds their Lordships are
of opinion that the appellant is, under the deed, the true representative of
the male line of Filippo, and that the second
contention of the respondent is not well founded.
This brings them to the third and last of the
respondent's answers to this suit. He is in possession, and he says that the
claim of the appellant as against him is barred by the right to the primogenial property of the Noble Lorenzo Antonio, which on
the appellant's view of the deed of foundation is necessarily prior to his own.
In other words, the respondent as against the appellant sets up an exceptio
juris tertii, and the question is whether he is entitled so to do.
Now, with reference to this matter, as it is
undoubted that the right of a third party can only be set up by a defendant
'quando exceptio est ipso jure exclusiva
juris agentis,' it becomes important at once to determine
what the position of the Noble Lorenzo Antonio in relation to this property has
been since 1892. He has made no claim to it: he has accepted in relation to it
neither privileges nor burdens. On the contrary, he has been in continuous
possession of the Testaferrata primogenitura - a possession
competent to him, only on the footing that this Viani
primogenitura is not united with it in himself. Is his position in relation to the Viani primogenial property
nevertheless this, that 'nolens volens' it has vested
in him so that his title to it, his 'jus,' is 'ipso jure exclusivum
juris' of the appellant, or is it that while under the instrument of foundation
he may accept the property with its primogenial
obligations as well as its rights, he is entitled also, if he be so minded, to
ignore it?
In their Lordships' view he is so entitled. The primogenitura is a development of the fideicommissum:
each successive person called is called to a trust created by the founder. Must
he not accept that trust by claim or entry before his interest, whatever it may
be called, vests in himself? De Valentibus
(De Ultimis Voluntatibus,
(1744), tom. 2, pars 1, votum 28, p. 307) expressly
answers this question in the affirmative with direct reference to the matter
now under discussion. He there says that a jus tertii does not exclude a
plaintiff's claim 'quando tale jus pendet a voluntate tertii, qualia sunt jura fideicommissaria, quae
ad aliquem non spectant, nisi illo
volente, hoc enim casu,
jus, quod non, nisi ipso tertio volente,
est exclusivum juris agenti, illo non opponente, opponi nequit.'
Again, in his De Fideicommissis
(1599) art. 41, p. 576 (13th ed. 1725) Peregrinus
cites with approval Acharanus: 'ubi distinguit, quaedam esse jura,
nobis facto, et re ipsa quaesita et adversus haec
mala fides impedit praescriptionem; quaedam vero jura esse quae demum nobis competunt, facta declaratione, ut in casu jure emphyteutico et in fideicommissis
et legatis quae effectualiter
non acquiruntur, nisi praevia animi declaratione, et volentibus legatariis et fideicommissariis.'
So, again, Joannis
Torre, Variarum Juris Quaestionum (1705), tom. 1, tit. 2, p. 465, after
observing that before this exceptio can be set up by a defendant the right of
the third party should ipso jure exclude the plaintiff's right whether the
third party wishes it or not, proceeds: 'Et tale non potest
esse jus fideicommissarii, cum requiratur
eum velle succedere, et in puncto, quod propterea possessor non valeat excipere de jure fideicommissi tertio competente.'
And the following authorities show who is to succeed,
if the person entitled in priority makes no claim:-
Joannis Torre, Variarum
Juris Quaestionum, tom. 2, tit. 6, qu. 6, says: '.... si filius Liberti haereditatem repudiaverit, Patronus admittitur, quamuis alias excludatur a filio Liberti. Et plenissime quod qui non potest succedere habeatur pro non extante, adeo ut sit locus aliis successive vocatis.'
Again, Cardinal de Luca, tom. 2 (ad lib. 10), decisio 107,
observes: 'In primogenituris sequens
in gradu admittitur ex
propria persona si praecedens non successerit,
dummodo aliquo tempore saltem
in potentia fuerit habilis.'
So Rota Romana Decisio 458,
Ibid: decisio 255,
The cumulative effect of these authorities cannot be
gainsaid. Neither their relevance nor their weight was in any way challenged by
learned counsel for the respondent, nor were they met by the citation of any
authority to the contrary. Unfortunately none of them were brought to the
attention of the Court of Appeal, although they displace to a large extent by
anticipation the grounds upon which the decision of that Court in favour of the
respondent was rested. Stated broadly, the view of the learned judges there was
that this suit to recover possession of primogenial
property is in its essence an actio rei vindicatoria, in which the plaintiff if he is to succeed at
all must have in himself the 'dominium' of the property which he alleges is
unjustly detained by the defendant. If that 'dominium' is vested in some one
else, the plaintiff cannot maintain the suit. Here the 'dominium' is
outstanding in the Noble Lorenzo Antonio. His 'jus' is 'exclusivum
juris agentis.' The exceptio juris tertii accordingly
applies.
Now the analogy here relied upon between these
proceedings and an actio rei vindicatoria
rests, it will be seen, on at least two assumptions. The first is that the
interest of a person called to the enjoyment of primogenial
property can properly be described as 'dominium.' The second is that that
interest vests in each successive holder ipso jure. As to the first of these
their Lordships are not prepared to accept it without devoting to the subject
much greater consideration than it has received in these proceedings. An
onerous trust coupled with an interest would certainly describe more aptly than
the term 'dominium' the nature of each successive holder's interest in primogenial property. But that question may be reserved for
consideration on some other occasion, because it appears to the Board that the
second assumption of the Court of Appeal - namely, that the existing primogenial interest - describe it how you will - remains
outstanding in the Noble Lorenzo Antonio is entirely displaced by the
authorities to which reference has just been made. These authorities however go
further. They describe in terms apt for the present purpose the existing
position of the appellant in relation to this primogeniture and expound the
principle upon which, regardless of the Noble Lorenzo Antonio who prefers to
stand aside, the claim of the appellant as against the respondent is
maintainable. The appellant indeed contended that the Noble Lorenzo Antonio had
definitely elected to abandon the Viani primogenitura. Their Lordships cannot so decide in his
absence. But his interest in the property in respect of the long period of his
refusal to accept its responsibilities is gone. In the result, on this question
also, the Board have reached a conclusion favourable to the appellant.
It is a satisfaction to the Board to feel that they
are justified by authority in doing so, for that conclusion seems to them to be
alone consonant with principle and right. The consequences of the view adopted
by both Courts in
Accordingly, the orders of both Courts in
As to the appellant's claim to the income accrued or
which with the diligence of a prudent man might have accrued from the
institution of the proceedings until relinquishment, their Lordships observe
that in the earlier suit before the Court of Appeal in 1910 in which the First
Hall gave judgment for the plaintiff that Court directed that the liquidation
of the income should form the subject matter of a separate suit. It would not
be right to adopt that course in the present case, owing to the time which has
elapsed since these proceedings were commenced. But this demand is too serious
to be disposed of at once. It has not yet been considered in any Court, and the
Board think that this claim of the appellant's should be referred back to the
Court of Appeal for adjudication by that Court on the footing of the above
declaration.
The orders of both Courts in
Their Lordships will humbly advise His Majesty
accordingly.
Representation
Solicitors for appellant: William A. Crump & Son.
Solicitors for respondent: Thomas Cooper & Co.
(c) Incorporated Council of Law Reporting For
[1925] A.C. 416
END OF DOCUMENT
Further Remarks:
Relevance to Maltese nobility of the judgment “Cassar Desain v. Testaferrata Moroni Viani” decided by Privy Council PC (Lord Blanesburgh, MR. Justice Duff, and Sir Adrian Knox.) 1925 Jan. 20. [and Cross-Appeal.] (On Appeal from the Court of Appeal of Malta )
This judgment concerns an entail which was founded in 1775. Although this entail was contested by two of Malta’s nobles, there is no reference whatsoever to this primogenitura (or more precisely, irregular primogenitura) in the Correspondence and report of a Commission appointed to inquire into the Claims of the Maltese Nobility, presented to both Houses of Parliament by Command of Her Majesty, May 1878, [C-2033] London, 1878. However, although at first it appears that this judgment is irrelevant to the succession of Maltese nobiliary titles, further considerations made below will show that this judgment provides an effective tool to control the unlawful possession of anything held under the wide rules of primogeniture, including therefore any unlawful possession of a Maltese title of nobility.
The judgment in question concerned the nature of the proof that is incumbent on a person who claims a primogenitura.
The background is as follows: it may happen that there are several claimants to a primogenitura recently vacated, in which case a special precedence takes place in order to ascertain the best one of the competing claims, or it may happen that that the entail is already in possession of a person and a claimant claims it from him.
The latter procedure is similar to the actio reivindicatoria and the general rule in Malta is that for a plaintiff to succeed in such an action, he must prove an absolute title and it is not sufficient to merely prove that he has a better claim than the holder.
The judgment “Cassar Desain vs Testaferrata Moroni Viani” decided that a claim to a primogenitura is distinct to a claim based on an actio reivindicatoria.
In this case, the facts were that one person happened to be entitled to 2 entails, which however, could not be possessed by the same holder. He (the person entitled) therefore remained passive upon the vacation of the second one, which was founded in 1775.
It happened however that the actual holder for many years was the person (Testaferrata Moroni Viani) who was entitled to it in the third place, and the one (Cassar Desain) who was entitled to it in the second place attempted to recover it from him.
The Maltese courts agreed that Cassar Desain, albeit descending in a legitimated male to male line from a younger son, had a better claim than Testaferrata Moroni Viani who was descended in a legitimate line through a female from the eldest son. However, the Maltese Courts continued saying that Cassar Desain could not succeed in an actio reivindicatoria because he was only entitled in the second place.
The Privy Council disagreed with the analogy with the actio reivindicatoria and decided that the person in the third line of vocation as contemplated by the 1775 entail could be successfully ousted from possession by person in the second line of vocation. Remarkably, the Privy Council even went as far to say that “the consequences of the view adopted by both courts in Malta are indeed devastating. Their decision means that on failure by a beneficiary from whatever reason interested motive to claim primogenial property that property is at the mercy of any person, whether within or without the vocations, who succeeds in obtaining possession of it. He may hold it as against all comers - even those next in the vocation - freed and discharged from all primogenial obligations precise and serious as in this case they are. A more complete frustration of founders’ intentions can hardly be conceived”
In explaining their decision, the Privy Council said that while “dominium” could vest only in one or more persons to the exclusion of others, the “vocatio” in a primogenitura envisaged a series of callings one after the other.
The main legal difficulty in this case was whether the exceptio iuris tertii could be availed of by the defendant. The Privy Council held that a person could not receive a primogeniture against his will and that it did not vest in him by power of law without his consent. If for some reason (as happened in this case), the one who was next in vocation had the right to claim.
In regard to the specific difficulty relative to the legitimacy of Cassar Desain’s line, the Privy Council added that It is true that while the exclusion of legitimated persons from a primogenitura is permitted to founders, if they desire to make it, nevertheless, such an exclusion is not favoured by the law and its term will be construed strictly: 'Hi namque (legitimati per subsequens matrimonium) speciali nota digni sunt, et eorum exclusio debet esse expressa, concludens et certa, ita ut verba fideicommittentis nominatim eorum exclusionem praeseferant’. In this case, therefore, the Pricy Council found that the legitimation of Cassar Desain’s ancestor did not present any difficulty.
On this very same judgment, J.M. Ganado wrote as follows: “It is said that this decision (Cassar Desain vs Testaferrata Moroni Viani) caused considerable local feeling at the time but one must admit that the decision was not only in conformity with the requirements of justice but was also based on strong legal arguments. Although the doctrine of precedent does not apply to Malta and the Maltese courts would be free to dissent from the Privy Council’s conclusion, I do not think that there is any likelihood of disagreement should this point be raised again in another case.”
As observed elsewhere in http://www.maltagenealogy.com/SME/catena.html, to succeed in primogenitures, in the absence of any particular rule, one must consider, in the first place, the line, in the second place, the degree, in the third place, the sex, and in the fourth place the age.
However, in this case, the 1775 entail differs from a strictly regular primogenitura by preferring sex to line. This was in fact observed by the Privy Council as follows: “Until the death of the Baron Dr. Giuseppe Testaferrata Viani, the third holder of the primogenitura, there was no room for doubt as to the proper devolution of the primogenial property. The Donna Francesca had died without issue, and the property devolved upon the Marquis Giuseppe, the eldest born of the Donn' Anna's three sons, that lady's line entering into the primogenitura under cl. 8 of the deed. The Marquis was succeeded by his only son Gilberto, as the second holder, and Gilberto by his only son, the Baron Dr. Giuseppe, who died without issue in April, 1892. It is not in dispute that thereupon the direct male line of the Marquis Giuseppe, the eldest born son of the Donn' Anna became extinct; and, if the first limitation established by the third clause of the deed is a purely male agnatic descent from which all males descending from females and females themselves are excluded, as is the contention of the appellant, then, on the death of the Baron Dr. Giuseppe, the primogenitura ought to have made its ingress in the male line of Lorenzo (second born son of the Donn' Anna) or, failing that line, in the male line of Filippo - her third son - the line which the present plaintiff claims to represent.”
Although this judgment has no intrinsic relevance to succession of Maltese titles of nobility, it must be remarked that the patents relative to Maltese titles of nobility do provide for different remainders akin to fideicommissary succession, be they regular primogeniture, agnatic or multiple, as well as the extinction thereof.
Therefore, it follows that this judgment would have value in any argument asserting that where a person who is not within the line of vocation, succeeds in obtaining possession of any given title of nobility, such person may be successfully ousted by any person who is in a better line of vocation. As seen elsewhere in http://www.maltagenealogy.com/SME/referencegrants.html, where grants of nobility have laid out lines of vocation for the purposes of succession, these lines are to be scrupulously followed. In http://www.maltagenealogy.com/SME/catena.html the Privy Council had occasion to examine the clear terms of an entail resulting in a succession from the last holder in favor of a more distant relative who was in the most senior line of vocation in respect to the founder even though there existed a closer relative of the last holder, whilst the present judgment allows any one of more senior descendants (i.e. not necessarily the seniormost) to successfully contest the possession in a junior line of vocation.
On the other hand, it is debateable whether the present judgment can be invoked in regard to those titles which are neither fideicommissary nor Maltese in origin.
Regarding extinction, see:
(a) http://www.maltagenealogy.com/SME/beberrua.htm
(b) http://www.maltagenealogy.com/SME/marsa.html
(c) http://www.maltagenealogy.com/SME/buleben.html
Regarding succession by regular primogeniture, see:
(a) http://www.maltagenealogy.com/SME/grua1.html
(b) http://www.maltagenealogy.com/SME/catena.html
(c) http://www.maltagenealogy.com/SME/culeja.html
(d) http://www.maltagenealogy.com/SME/sanmarciano.html
(e) http://www.maltagenealogy.com/SME/budack.html
(f) http://www.maltagenealogy.com/SME/gomerino.html
(g) http://www.maltagenealogy.com/SME/benuarrat.html
(h) http://www.maltagenealogy.com/SME/tabria.html
(i) http://www.maltagenealogy.com/SME/ghajnkajet.html
Regarding multiple succession, see
(a) http://www.maltagenealogy.com/SME/balsano.html
(b) http://www.maltagenealogy.com/SME/sangiorgio.html
(c) http://www.maltagenealogy.com/SME/ghajntuffieha.html
(d) http://www.maltagenealogy.com/SME/taflia.html
(e) http://www.maltagenealogy.com/SME/senia.html
(f) http://www.maltagenealogy.com/SME/gnienissultan.html
Regarding agnatic succession, see:
(a) http://www.maltagenealogy.com/SME/sangiorgio.html
(b) http://www.maltagenealogy.com/SME/fiddien.html
(c) http://www.maltagenealogy.com/SME/gnienissultan.html
(d) http://www.maltagenealogy.com/SME/ghajntuffieha.html
Regarding succession in fief, see
(a) http://www.maltagenealogy.com/SME/bahria.html
(b) http://www.maltagenealogy.com/SME/djarilbniet.html
(c) http://www.maltagenealogy.com/SME/gharixem.html
Regarding succession outside Maltese fideicommissary rules, see
(a) http://www.maltagenealogy.com/SME/depiro1.html
(b) http://www.maltagenealogy.com/SME/balsano.html
(c) http://www.maltagenealogy.com/SME/sant3.html
(d) http://www.maltagenealogy.com/SME/sanpaolino.html
(e) http://www.maltagenealogy.com/SME/casandola.html
(f) http://www.maltagenealogy.com/SME/testaferrataderobertis.html
(g) http://www.maltagenealogy.com/SME/wzzinipaleologo.html
(h) http://www.maltagenealogy.com/SME/testaferrataasciack.html
(i) http://www.maltagenealogy.com/SME/marianotestaferrata.html
(j)http://www.maltagenealogy.com/SME/fontani.html
(k) http://www.maltagenealogy.com/SME/mariotestaferrata.html
(l) http://www.maltagenealogy.com/SME/crispobarbaro.html
(m) http://www.maltagenealogy.com/SME/ciantar1.html
(n) http://www.maltagenealogy.com/SME/stagno.html
(o) http://www.maltagenealogy.com/SME/abela.html
(p) http://www.maltagenealogy.com/SME/castelcicciano1.html
(q) http://www.maltagenealogy.com/SME/depausier.html
(r) http://www.maltagenealogy.com/SME/testaferrata2.html
(s) http://www.maltagenealogy.com/SME/sanvincenzoferreri.html
(t) http://www.maltagenealogy.com/SME/mont'alto.html
(u) http://www.maltagenealogy.com/SME/fournier5.html
(v) http://www.maltagenealogy.com/SME/preziosi.html
(w) http://www.maltagenealogy.com/SME/sangiovanni.html
See also “10. The Contribution of the Privy Council on Questions of Maltese Civil Law” by J.M. Ganado (pages 92-101)