In the city of Madrid, on the twenty-first of May nineteen hundred and ninety-nine 

FIRST: 

1. The Barrister D. Alejandro Pérez Montes Gil, in the name of and representing Mr Timothy John Denney, Ms Sarah Petica Kirtz and Ms Teresa Frances Anderson brought a suit for a major claim before the Court of First Instance of Jerez de los Caballeros, against Ms Mercedes Royde Smith and don Luis Vargaz-Zuñiga, in which after putting forward the facts and points of law he considered to be applicable, he concluded by asking the Court to issue a decision stating as follows: 1. - That the succession of Mr John Anthony Denney must be governed by Spanish law.  2. - That in accordance with the same, the plaintiffs - as children of the predecessor in title - have the capacity of legitimate heirs competing with the surviving spouse.  3. - That as a consequence they must be acknowledged in the partition of the shares in the legal inheritance.  4.- That the deeds of partition executed between the executor Sr Montero Vargas Zuñiga and Royde Smith, as well as the awards made to the latter by means of a public document certified on 22nd October 1990 by the Almendralejo Notary Don Tomás Agustín Martínez Fernández are null and void.  5.- That the registration made in favour of Ms Celia Mercedes Royde Smith in the Land Registry of Jerez de los Caballeros pursuant to which she is awarded the full title to the estate registered under no. 3.176-N is null and void.  Likewise he asks for the defendants to be ordered to accept the statements made above, as well as to pay the costs arising from the proceedings. 

2. - With leave having been given for the action to go ahead and the defendants having been summonsed to appear, the Barrister Da Reyes Palencia Pérez appeared in person in the proceedings, in the name of and representing Ms Celia-Mercedes Royde Smith and D. Luis-maría Montero Vargas-Zuñiga, and tendered a plea and after invoking the facts and legal grounds she considered to be applicable, ended by petitioning the Court to issue a ruling rejecting the claim, without going into the merits of the case, if it accepted some of the procedural objections invoked; or on the other hand, if the merits of the issue being raised were gone into for it to discharge them from all the petitions submitted, and for the plaintiffs in any event to be ordered to pay costs. 

3. - Having examined the evidence declared to be pertinent to the proceedings, his Excellency the Judge of the Court of First Instance of Jerez de los Caballeros, issued a decision on 30th January 1995, RULING as follows:  "Partly allowing the claim filed by the counsel for MR TIMOTHY JOHN DENNEY AND MS SARAH PETICA KIRTZ AND MS TERESA FRANCES ANDERSON against MS CELIA MERCEDES ROYDE SMITH and DON LUIS MONTERO VARGAS ZUÑIGA and by virtue of the above: I DECLARE that the succession resulting from the death of Mr John Anthony Denney is governed by Spanish law and that as a result of this the plaintiffs as children of the deceased are legitimate in competing with Ms Royde-Smith in the succession of Mr Denney deceased and therefore are entitled to a third of the latter’s inheritance in full rights and to the joint rights of the third for betterment , rights of use and enjoyment of same belonging to the widow, who also owns the  third of the estate disposable at will.  As a consequence the partition and award made in favour of the defendant of the Castle site in Salvatierra de los Barros as well as the subsequent legalisation is null and void.  As soon as this resolution becomes definitive an order is to be issued in duplicate to the Land Registry of this city ordering it to proceed to cancel the entry relating to the aforementioned property effected in favour of Ms Royde.  I discharge the defendants of the rest of the claims made against them and require the provisions of ground sixteen of this resolution to be immediately enforced.  Each party will pay the costs occasioned by its petition and will pay the joint costs at half each" 

Following the lodging of the remedy of appeal against the judgement of first instance and the appeal having been conducted as prescribed by law, the first section of the Provincial Court of Badajoz issued its decision on 11th July 1996, whose stipulatory part has the following líteral meaning: WE RULE AS FOLLOWS: That having allowed the appeal filed by the counsel for the defence against the decision pronounced by the Judge of the Court of First Instance of Jerez de los Caballeros and revoking it, we must discharge and do discharge the defendant of all the claims in the action without entering into the merits of the case and ordering the plaintiffs to pay the costs occasioned in the first instance and without making any express order for those occasioned in the appeal.

1.- The Barrister D. Andrés García Arribas replaced on account of his death by his partner Da lsabel Campillo García), in the name of and representing Mr Timothy John Denney, Ms Sarah Petica Kirtz and Ms Teresa Frances Anderson, filed an appeal to the supreme court against the decision pronounced by the Provincial Court of Badajoz, supported by the following grounds: .- Under art.,. 1692.4 of the Regulations governing civil lawsuits. Infringement of the provisions of art, 524, together with 533.6 of the Regulations governing civil lawsuits, and incorrect application of the decision of the Supreme Court of 24th July 1986. SECOND.- Under art. 1692.4 of the Regulations governing civil lawsuits. Infringement through ignorance and non-application of the provisions of articles 9.1; 9.8 and 12.2 of the Civil Code; as well as articles 806, 807, 808, 814 and 834 of this Code. THIRD,- Under art.1692.4 of the Regulations governing civil lawsuits. On account of infringement and breach of the criteria of jurisprudence as regards "lack of necessary passive joint litigation" 

2- Having allowed the appeal before the supreme court by decree dated thirteenth of June 1996, a copy of the document was handed to the counsel for the plaintiffs, 
in conformity with the provisions of article 1710.2 of the Regulations governing civil lawsuits, stating that they had a time period of 20 days to appeal against this. 

3.- The Barrister D. Juan Ignacío Avíla, of Hierro, in the name of and representing Ms Celia Mercedes Denney, presented an application challenging the appeal before the supreme court filed in opposition. 

4. - As the parties did not request the matter to be held in a public hearing, this was indicated by voting and ruling on the 5th May of the current year, in which it took place. 

The Judge, his Excellency D. PEDRO GONZÁLEZ POVEDA having stated the opinion of the court. 

Firstly - A suit for a major claim was brought by Mr Timothy John Denney, Ms Sarah Petica Kirtz and Ms Teresa Frances Anderson against Ms Mercedes Royde Smith and don Luis Montero Vargas-Zuñiga, in which petition they asked for a ruling to be made declaring as follows: 1.- That the succession of Mr John Anthony Denney must be governed by Spanish law.  2. - That in accordance with the same, the plaintiffs - as children of the predecessor in title - have the capacity of heirs legitimate in competing with the surviving spouse.  3. - That as a consequence they must be acknowledged in the partition of the shares in the legal inheritance.  4.- That the deeds of partition  executed between the executor Sr Montero Vargas Zuñiga and Royde Smith, as well as the awards made to the latter by means  * of a public document certified on 22nd October 1990 by the Almendralejo Notary Don Tomás Agustín Martínez Fernández are null and void.  5.- That the registration made in favour of Ms Celia Mercedes Royde Smith in the Land Registry of Jerez de los Caballeros pursuant to which she is awarded the full title to the estate registered under no. 3.176-N is null and void.  Likewise he asks for the defendants to be ordered to accept the statements declared above, as well as to pay the costs arising from the proceedings. 

The following facts provide the background to this dispute:  The plaintiffs are the children of the first marriage of Mr John Anthony Denney, of British nationality, who died in Salvatierra de los Barros on 30th of April 1990, under a nuncupative will made on 23rd November 1987; in the first clause of his will the testator states that he was married in the first instance to Ms Diana Ross, from which marriage the plaintiffs are the issue; in the second clause he directed that "without prejudice to the legitimate rights which in accordance with National Law might belong to the aforementioned three children or descendants, he sets up as sole and universal heir of his assets, titles and stocks his wife Ms Celia Mercedes Royde-Smith; in the third clause he named as his executor don Luis Montero Vargas-Zuñiga.  On 22nd October 1990, before the Notary of Almendralejo, don Luis Montero Vargas-Zuñiga and Ms Celia Mercedes Royde Smith executed a public declaratory statement, in settlement of the inheritance of Mr John Anthony Denney, awarding to Ms Celia Mercedes Royde Smith, the sole assets inventoried, half in settlement of their common property, and the other half, as an inheritance as referred to above.  The inventoried assets are described as "Rural: plot of land with some fig trees, on the site of the castle, in the district of Salvatierra de los Barros, with surface area of approximately fourteen and a half acres, equivalent to six hectares, six ares and forty centiares"; it is declared that this was purchased by the deceased, when married to the party appearing, Ms Celia Mercedes. 

The Judge of the Court of First Instance issued a decision declaring that the succession consequent on the death of Mr John Anthony Denney is governed by Spanish law and therefore the plaintiffs as children of the deceased are legitimate in competing with Ms Royde-Smith in the succession of Mr Denney deceased and therefore are entitled to a third of the latter’s inheritance in full entitlement and to the third for betterment whose rights to use and enjoyment belong to the widow, who also owns the portion of the estate disposable at will.  As a consequence he declared the partition and award made in favour of the defendant of the Castle site in Salvatierra de los Barros as well as the subsequent legalisation null and void and he ordered the striking of the corresponding registry entry.    The First Chamber of the Provincial Court of Badajoz allowed the remedy of appeal which was filed, revoked the ruling of the first instance and, without entering into the merits of the case, discharged the defendants in the petition. 

The action for claiming inheritance, which is not governed by our Civil Code, which limits is restricteditself to mentioning to this in its article 192 and in articles 1016 and 1021, is the responsibility of the actual heir against anyone who possesses the hereditary assets as an heir of the same predecessor in title or without having any entitlement to obtain their return, but starting from the assumption that the passive subject of the action possesses the assets by invoking a title exclusive to any assisting the claimant; in the case in question, although even admitting that the action brought was one of claiming inheritance, notwithstanding the fact that it did not contain in the petitum of the action any claim for returning to the plaintiffs assets supposedly forming part of the body of the estate, and not an action for declaring the legitimate rights of the plaintiffs and the consequent nullity of the partition effected without their concurrence, it seems clear that the procedural relations are constituted between those who might be directly affected by the decision pronounced, as claimants of legitimate rights in the succession of their deceased father, and the testamentary heir, who opposes this recognition, as well as the testamentary executor as executor of the wishes of the deceased; in the action claiming inheritance, with regard to its aspect of restitution to the actual heirs, is not necessary, as the "a quo" Court seems to have understood, for this to refer to all the assets forming the inheritance estate, but it can be limited to assets which are in the possession of a given person and not others (it must be noted that, in this case, the movable assets and those which constitute the household furnishings which are located in the home of the deceased, are in the possession of one of his heirs, the surviving spouse, therefore these would not be handed over to the plaintiffs, even though this may have been requested, assuming their rights to be legitimate, until they have been awarded them in the corresponding partition); on the other hand, the passive legitimisation in the action of claiming inheritance of those who do not assume the condition of owners of the assets as heirs or with universal title, only proceeds when they are mere owners without any individual title, a condition which is not the case, pursuant to the evidence placed upon the record, in the Museum of Toulouse or in the Town Hall of this French city, since they own the aforementioned collection either as trustees, as the predecessor in title handed it over in this condition, or as donees on accepting the donation made by the testamentary heir; therefore their possession is based on individual title and so no action claiming inheritance can ever be brought against them, without prejudice to any action which, in relation to those possessory titles or titles of ownership the plaintiffs might bring, should they be declared the legitimate heirs of the predecessor in title.  It is therefore concluded that the lack of necessary joint litigation observed by the "a quo" Chamber is not present and the ground must be allowed. 

The question clarifying the lawsuit which has been filed is centred on determining the material law in accordance with which the succession of the father of the plaintiffs, who was British, but died in Salvatierra de los Barros, where he had lived for many years, under his nuncupative will, mentioned in the first ground of this decision, as the deceased was the owner of the property previously described, and with the inheritance assets being completed, according to the plaintiffs, by the fixtures and fittings described in the fourth statement of the claim, some being located in the aforementioned property and others in the Museum of Toulouse (France) is to be governed.  The plaintiffs claim that the succession of their deceased father must be governed by Spanish law by virtue of the remission the English courts, in stated in the report on English law accompanying the claim, make to the legislation of the country in which the assets are located, as being applicable for governing the succession of the deceased, a form of remission which, it is said, is referred to in article 12.2 of our Civil Code, in accordance with which "the remission to foreign law will be understood to be made to its material law, without taking into account the remission which its rules applicable to conflict might make to a law other than Spanish law." 

Notwithstanding the content of the report on the case law of the English Courts concerning the application of the remission, which accompanies the claim, what is certain is that, as the authors, both Spanish and British, indicate, the case law of that country marks a new trend of reluctance in applying this remission in matters of succession; an attitude which coincides with what is advocated by the most modern internationalist Spanish doctrine in relation to the remission established in article 12.2 of the Civil Code with regard to the English rule of conflict on the subject of property successions; as can be seen in the Adams case, the English judge rejected the application for remission, understanding that the Spanish courts only apply it in certain cases and under certain conditions, so that it is applied when the courts consider this appropriate, that is, they only accept the remission when this produces a result in accordance with the general principles of Spanish law. 

Although a purely literal application of article 12.2 of the Civil Code would lead to the solution being argued in the claim, the current developments of the International Private Law, as stated in the comparative jurisprudence and notably in International international Contractual conventional Law, involves a very precise treatment of remission which makes it impossible to adopt an indiscriminate attitude of acceptance or rejection of the same, but makes it necessary to apply it with a flexible criterion of limited application involving many conditions.  The application of remission under the terms put forward in the claim is contrary to the principle of total estate in a succession which governs our Law on succession or prohibits giving a different legal treatment to succession involving personal property and real estate; likewise it contradicts and makes unenforceable the guiding principle of English law on the subject of succession which is the freedom to make a will, which is a declaration of the freedom to determine ones own wishes. On the other hand, as indicated in the ruling made by this Chamber on 15th November 1996, in a case similar to the current one, the application to remission would not achieve the aims this legal instrument is intended to produce, namely harmonising the legal systems of the States, to which it must be added that in this case the solution which would be achieved using this application would not be able to claim that it was producing greater justice for those involved.  Therefore, it must be concluded that the succession of Mr John Anthony Denney deceased is governed by his national law, that is, by English law, which recognises the freedom to make a will for its nationals, and, as a consequence, the Chamber must proceed to reject the claim, revoking the ruling of first instance. 

WE RULE 

That we must and do declare that we have examined the appeal to the Supreme Court brought by Mr Timothy John Denney, Ms Sarah Petica Kirtz and Ms Teresa Frances Anderson against the decision pronounced by the First Section of the Provincial Court of Badajoz dated the eleventh of July nineteen hundred and ninety-five, which we repeal and annul; and revoking the decision pronounced by the Judge of the Court of First Instance of Jerez de los caballeros, dated thirtieth of January nineteen hundred and ninety-five, we must reject and we do reject the claim filed, discharging the defendants Celia Mercedes Royde Smith and don Luis Montero Vargas-Zuñiga from the same; without making any express order for costs for the instances nor for those for this appeal to the supreme court.  And we leave the corresponding certification to the aforementioned Court, with the record of the proceedings and the Chamber roll to be returned in due time. 

Therefore by means of our decision, which will be inserted in the LEGISLATIVE COLLECTION producing the copies required for this purpose, we pronounce, order and sign 

(signature) Ignacio Sierra Gil de la Cuesta 
(signature) Pedro González Poveda 
(signature) Antonio Gullón Ballasteros