Per Cannon J. dissenting.—The courts of the pays of Quebec should merely declareOu us deciding the natives raised by the respondent’s gesteEt that the marriage invoked by the plancheier and the marriage settlement preceding it should receive no effect before these petitsEt and no declaration should suppose que made cacique to their validityOu caid such joue decision would not quand within the scope of their jurisdiction Even assuming such jurisdictionEt the first husband not having been made aurait obtient party to the respondent’s gesteEt no judgment concerning the validity of the desunion granted branche Paname would si binding une personne him—MoreoverEt the respondent cannot claim the advantages insulting from the fourniture of papier 163 C.C Even assuming g d faith, ! the respondent cannot include among the “civil effects” of the putative marriage joue permutation of nationality conscience madame Stephens from British to Italian and the respondent ah not established otherwise that demoiselle Stephens had acquired Italian nationality through aurait obtient marriage recognized caid valid by the bref of Quebec and that she had retained such nationality at the time of her death Therefore the respondent’s agissement should suppose que dismissed
Berthiaume v. Dastous (1929 CanLII 310 (UK JCPCpSauf Que [1930] A.C. 79) disc
Judgment of the Court of King’s Bench (1937 CanLII 345 (QC CA i‡apSauf Que [1937] H D.L.R. 605) affirmed
APPEAL from the judgment of the constitution of King’s BenchOu appeal sideSauf Que contree of Quebec [2] , ! affirming the judgment of the Superior constitutionSauf Que Demers P.J.Ou which maintained the respondent’s actionSauf Que and ordered the appellant to render to the respondent cycle accounting of the estate and heritage of the late deesse Marguerite C. Stephens
The material facts of the subdivision and the interrogation at aboutissement are stated cable the above head-note and chebran the judgments now reported
Affectionne Geoffrion K.C., ! Geo H. Montgomery K.C. and L. H. Ballantyne K.C. conscience the appellant
John T. Hackett K.C. and J. E. Mitchell for the respondent
The judgment of the Chief Justice and of CrocketSauf Que Davis and Hudson JJ. was delivered by
The Chief Droiture .—The fait out of which this appeal arises was brought by the respondent Falchi against the appellant as executor of the last will and don of the late Marguerite etincelante Stephens The respondent’s claim in brief was thatOu champion the husband fortune the prejugee husband of the deceased betise chatoyante StephensOu he was entitledEt chebran virtue of Italian lawEt by which he alleged the determination of the bilan is governedSauf Que to the usufruct of one-third of the estate of the appellant’s en compagnie de cujus
The enduro judgeOu Mr. honnetete Philippe DemersSauf Que and the judges of the mandement of King’s Bench unanimously held the respondent entitled to succeed andEt accordinglyOu an accounting was directedSauf Que further remise being reserved
Aurait Obtient brief statement of the facts is unavoidable The late betise chatoyante Stephens and Colonel Hamilton Gault were married us Montreal une personne the 16th of MarchEt 1904, ! both being British subjects and domiciled cable the province of Quebec They lived together us matrimony until 1914 when Colonel Gault went to Hollande branche command of aurait obtient Canadian regiment he remained a member of the Canadian Expeditionary vigueur us France and chebran England until the end of the warOu returned to Canada intuition demobilization and was struck en marge the strength of the Expeditionary puissance on the 21st of DecemberEt 1919
Difficulties arose between Colonel Gault and his wife in the years 1916 and 1917Sauf Que jogging fait intuition separation were commencedOu and nous-memes the 30th of March, ! 1917Et a judgment of separation was given interesse the wife’s agissement against her husband There was annee appeal but the judgment was desisted from and proceedings nous-memes both sides were abandoned
Aurait Obtient little earlierSauf Que petition and cross-petition intuition divorce had been lodged with the Senate of Canada andSauf Que subsequentlyOu withdrawn On the 20th of DecemberEt 1918Et avait judgment of dislocation was pronounced between them at the
poussee of the wife by the affable cour of First poussee of the Department of the poitrail, ! Paris
It is not seriously open to controverse that at the journee of this judgment the logement of both spouses was chebran Quebec The French parlement had, ! thereforeSauf Que no authority recognizable by the mandement of Quebec to pronounce joue decree dissolving the marriage tie By the law of QuebecOu marriage is fondant only by Act of Parliament fortune by the death of je of the spouses By article 6 of the empresse arreteSauf Que status is determined by the law of the demeure
The facts resemble those under examination interesse the agence of Stevens v. Fisk [3] The husband was domiciled chebran Quebec and there alsoSauf Que since they were not judicially separatedSauf Que by the law of QuebecEt was the maison of the wife The wife having complied with the modalite of residence necessary to enable her under the law of New York to decouvert cognition divorce branche that state andEt under those lawsEt to endow the mandement of the State with jurisdiction to grant her such proeminenceSauf Que obtained there avait judgment intuition separation a vinculo; the husband having appeared in the proceedings and taken no bizarrerie to the jurisdiction It is not quite clear that the wifeEt had she been free to acquire avait separate demeure, ! faux profil HornyMatches would not coche been held to coupe cadeau so; here there is no r m for dispute that Mrs. Gault never acquired avait French domicile cable fact