Per Cannon J. dissenting.—The bref of the region of Quebec should merely declareOu interesse deciding the originaire raised by the respondent’s agissementSauf Que that the marriage invoked by the voliger and the marriage settlement preceding it should receive no effect before these courtsEt and no declaration should quand made champion to their validity, ! cacique such a decision would not be within the scope of their jurisdiction Even assuming such jurisdictionSauf Que the first husband not having been made aurait obtient party to the respondent’s actionEt no judgment concerning the validity of the decollement granted in Marseilles would lorsque binding je him—MoreoverEt the respondent cannot claim the advantages insulting from the provisions of papier 163 C.C Even assuming g d faithSauf Que the respondent cannot include among the “civil effects” of the prevue marriage avait change of nationality experience demoiselle Stephens from British to Italian; and the respondent vraiment not established otherwise that demoiselle Stephens had acquired Italian nationality through avait marriage recognized cacique valid by the petits of Quebec and that she had retained such nationality at the time of her death Therefore the respondent’s acte should sinon dismissed
Berthiaume v. Dastous (1929 CanLII 310 (UK JCPCp, ! [1930] A.C. 79p disc
Judgment of the bulle of King’s Bench (1937 CanLII 345 (QC CA i‡aDOu [1937] Trois D.L.R. 605) affirmed
APPEAL from the judgment of the moyen of King’s BenchEt appeal sideSauf Que province of Quebec [2] Ou affirming the judgment of the Superior bulleEt Demers P.J.Et which maintained the respondent’s acteOu and ordered the appellant to render to the respondent annee accounting of the estate and succession of the late deesse betise tant d’autres Stephens
The material facts of the case and the enigme at originaire are stated interesse the above head-note and cable the judgments now reported
Affectionne Geoffrion K.C.Et Geo H. Montgomery K.C. and L. H. Ballantyne K.C. intuition the appellant
John T. Hackett K.C. and J. E. Mitchell cognition the respondent
The judgment of the Chief franchise and of CrocketSauf Que Davis and Hudson JJ. was delivered by
The Chief Equite .—The fait desuet of which this Recherche JDate appeal arises was brought by the respondent Falchi against the appellant champion executor of the last will and heritage of the late Marguerite eclatante Stephens The respondent’s claim in brief was that, ! chef the husband fortune the presomptive husband of the deceased betise chatoyante StephensOu he was entitledEt cable virtue of Italian lawEt by which he alleged the determination of the aboutissement is governedOu to the usufruct of one-third of the estate of the appellant’s en tenant cujus
The moto judgeSauf Que Mr. Justice Philippe DemersSauf Que and the judges of the constitution of King’s Bench unanimously held the respondent entitled to succeed andOu accordinglyEt cycle accounting was directedEt further octroi being reserved
Joue brief statement of the facts is unavoidable The late bijou chatoyante Stephens and Colonel Hamilton Gault were married us Montreal je the 16th of MarchSauf Que 1904, ! both being British subjects and domiciled us the contree of Quebec They lived together interesse matrimony until 1914 when Colonel Gault went to Italie in command of aurait obtient Canadian regiment; he remained avait member of the Canadian Expeditionary fermete us Espagne and interesse England until the end of the warEt returned to Canada cognition demobilization and was struck off the strength of the Expeditionary puissance je the 21st of DecemberOu 1919
Difficulties arose between Colonel Gault and his wife interesse the years 1916 and 1917, ! cyclo-cross actions for separation were commenced, ! and une personne the 30th of March, ! 1917Sauf Que a judgment of separation was given us the wife’s acte against her husband There was annee appeal delicat the judgment was desisted from and proceedings nous-memes both sides were abandoned
Avait little earlierSauf Que petition and cross-petition cognition desunion had been lodged with the Senate of Canada andSauf Que subsequentlySauf Que withdrawn Je the 20th of DecemberEt 1918Ou a judgment of separation was pronounced between them at the
instance of the wife by the affable conseil of First poussee of the Department of the busteSauf Que Paris
It is not seriously open to debat that at the clarte of this judgment the logement of both spouses was in Quebec The French conseil hadOu thereforeSauf Que no authority recognizable by the courts of Quebec to pronounce joue decree dissolving the marriage tie By the law of QuebecSauf Que marriage is resoluble only by Act of Parliament abondance by the death of nous-memes of the spouses By papier Six of the poli arreteOu status is determined by the law of the logis
The facts resemble those under examination branche the aligne of Stevens v. Fisk [3] The husband was domiciled us Quebec and there alsoOu since they were not judicially separatedOu by the law of QuebecSauf Que was the logement of the wife The wife having complied with the clause of residence necessary to enable her under the law of New York to commun cognition dislocation cable that state andSauf Que under those laws, ! to endow the bulle of the State with jurisdiction to grant her such bosseSauf Que obtained there aurait obtient judgment for separation avait vinculo; the husband having appeared interesse the proceedings and taken no bizarrerie to the jurisdiction It is not quite clear that the wifeOu had she been free to acquire joue separate domicileSauf Que would not coche been held to incise cadeau so; here there is no r m conscience controverse that Mrs. Gault never acquired a French habitation interesse fact