THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW
 

 
 ADMINISTRATION 
 
 OF 
 
 FOREIGN ESTATES.
 
 ADMINISTRATION 
 
 OF 
 
 FOREIGN ESTATES. 
 
 BEING THE 
 
 PEINOIPLES OF PEIVATE INTERNATIONAL LAW 
 
 RELATING TO THE ADMINISTRATION OF THE 
 
 ESTATES OF DECEASED PERSONS. 
 
 [iN TWO PARTS.] / 
 
 PART I. ESTATES OF DECEASED BRITISH SUBJECTS LEAVING PROPERTY 
 ABROAD. 
 
 PART II. ESTATES OF DECEASED FOREIGNERS LEAVING PROPERTY 
 WITHIN THE UNITED KINGDOM. 
 
 [Thesis approved for the Degree of Doctor of Laws in the University 
 of London."] 
 
 BY 
 
 E. LESLIE BURGIN, LL.D. (LONDON), 
 
 Solicitor of the Supreme Court ; University Law Scholar, 1908 ; 
 
 Clement's Inn and Daniel Heat don Prizeman of the Law Society, June, 1909 ; 
 
 Scott Scholar, 1909 ; Tutor to the Law Society. 
 
 LONDON: 
 
 STEVENS AND SONS, LIMITED, 
 119 & 120, CHANCERY LANE, 
 
 1913.
 
 T
 
 PREFACE. 
 
 IN presenting this treatise on a branch of Private 
 International Law, the writer realizes that any 
 attempt to add to the literature on that subject 
 requires a word of explanation. 
 
 There is probably no branch of English Law 
 to which the great masters of the profession have 
 given greater attention than the subject of 
 domicile and the kindred principles underlying 
 Private International Jurisprudence. 
 
 A branch of law which has received such 
 elaborate treatment at the hands of many famous 
 judges and upon which the standard text- book 
 writers are such well-known men as Professor 
 Westlake, Professor Dicey, Mr. Foote, Mr. Nelson 
 and other great jurists, is one to which it might 
 be thought superfluous to add further comment. 
 Whilst, however, great learning has been applied 
 to this branch of law, in a very real sense, the 
 results of that learning are singularly inaccessible 
 to the greater part of the legal profession, or are 
 presented in a manner more consistent with 
 academic research than practical utility. 
 
 693494 
 1KW
 
 In the course of a not inconsiderable experience 
 of foreign probate work, most of the problems 
 dealt with in this book have come before the 
 author in concrete form in actual cases, and it 
 has been his experience that in a number of such 
 instances the solution has involved many hours of 
 research amongst the English authorities and has, 
 more often than not, made it necessary to trace 
 the matter back to first principles in order to 
 appreciate the position at the present time. 
 
 It is the author's modest hope that the present 
 book may furnish a guide to the principal English 
 cases and fulfil the purpose of a handy index to 
 the more important rules which the English Courts 
 apply in dealing with the estates of deceased 
 persons wherein some foreign element occurs. 
 
 In dealing with the practical administration of 
 the law upon this subject, and in the course of 
 his research, the author has had occasion to study 
 the great bulk of published work bearing upon 
 the matter. 
 
 He would express his obligations to all the 
 well-known writers both in Knirland and on 
 the Continent. Acknowledgment is made in- 
 dividually in the text wherever more particular 
 
 renre l"-> inaiic t UI1Y one Work. 
 
 So far an possible, direct reference lias been 
 made to the actual reported cases, and for the 
 greater number of the views expressed in this
 
 PREFACE. Vll 
 
 book the author is indebted to the clearness of 
 thought and conciseness of language of the various 
 able judges who have given the matter a special 
 place in that treasure-house of learning known as 
 English Case Law. 
 
 Amongst the more modern works on the sub- 
 ject, the author has read with great profit a 
 Thesis of the University of Paris by Andr^ 
 Marion, Docteur en Droit, entitled "La Loi du 
 Domicile en matiere Successorale selon la Juris- 
 prudence Anglaise " and the very able treatise 
 by Mr. Norman Bentwich on " The Law of 
 Domicile and its relation to Succession " whilst 
 no study on the complicated question of " Renvoi" 
 would be complete without a reference to the 
 masterly notes made by Mr. J. Pawley Bate on 
 that subject. 
 
 Whilst the author has in every case dealt with 
 the matter strictly from the point of view of 
 English Law as it stands at the present day, he 
 has in a concluding chapter ventured to advance 
 certain views upon the advisability of modifying 
 some of the rules adopted in the present English 
 practice, with a view to making such practice 
 more logical, more reciprocal and more in con- 
 formity with other leading systems of law. 
 
 Many of the points touched upon have, it is 
 submitted, not yet received their final treatment 
 at the hands of English judges, and the whole
 
 Vlll PREFACE. 
 
 subject-matter of Private International Law is of 
 a peculiarly unstable nature and liable to modifi- 
 cation. 
 
 In these circumstances the author is fully aware 
 of the incompleteness of his work. He can only 
 hope to dispel some of the vagueness, and to 
 make clear some of the complexity, with which 
 the subject is enshrouded, and to provide a 
 stepping-stone to further study. 
 
 At the same time, if these observations on the 
 English authorities and the rules to be deduced 
 therefrom should in some small measure assist 
 those who have occasion to deal with the problems 
 of a like nature, the object of the author will 
 have been achieved, and he will be more than 
 satisfied with the result of his labours. 
 
 E. LESLIE BURGIN. 
 
 3, GRAY'S INN PLACE, 
 LONDON. 
 
 July, 1913.
 
 OUTLINE OF THE SUBJECT 
 
 ABEANGEMENT OF THE TOPICS DEALT WITH. 
 
 PAGE 
 
 TABLE OF CASES xv 
 
 INTRODUCTION . . . . xxiii 
 
 GENERAL MATTERS. 
 CHAPTEE I. 
 
 THE NATURE OF PRIVATE INTERNATIONAL LAW. 
 
 CHAPTEE II. 
 DOMICILE IN ENGLISH LAW 11 
 
 OHAPTEE III. 
 BRITISH NATIONALITY 36 
 
 CHAPTEE IV. 
 
 THE NATURE OF ADMINISTRATION AND SUCCESSION IN ENGLISH 
 
 LAW AND THE APPLICATION OF THE LAW OF THE DOMICILE 40 
 
 CHAPTEE V. 
 
 THE SITUATION OF ASSETS AND THE LEGAL EESULTS ARISING 
 
 THEREFROM , 4.8 
 
 (a) Immoveables. 
 
 (b) Moveablesu 
 
 (c) Choses in action. 
 
 (d) Ships.
 
 X OUTLINE OF THE SUBJECT. 
 
 CHAPTER VI. 
 
 PAGE 
 
 THE JURISDICTION OF THE ENGLISH HIGH COURT OF JUSTICE IN 
 
 MATTERS OF ADMINISTRATION AND SUCCESSION 64 
 
 (a) Jurisdiction in Probate. 
 
 (b) Jurisdiction in Administration. 
 
 (o) Jurisdiction of the Chancery Division. 
 
 PART I. 
 
 Estates of Deceased British Subject! leaving Property 
 Abroad. 
 
 CHAPTER VII. 
 
 TESTATE SUCCESSION 78 
 
 WHI:N PROBATE WILL BE GRANTED OF seen WILLS. 
 
 The will form of will capacity of testator executor 
 appointment assets locally situate within the jurisdiction 
 compliance with the lex fori as to procedure revocation 
 of wills effect of marriage previous marriage contract. 
 
 WHEN ADMINISTRATION WITH THE WILL ANNEXED WILL BE GRANTED 118 
 Different kinds nature of grant attorney. 
 
 CHAPTER VIII. 
 
 INTESTATE SUCCESSION 120 
 
 When letters of administration will be granted intestacy 
 absolute partial various kinds of administration juris- 
 diction assets here lex fori. 
 
 CHAPTER IX. 
 
 EFFECT OF AN ENGLISH GRANT OF PROBATE OR ADMINISTRATION.. 126 
 Foreign domicile English domicile principal or ancillary 
 effect of grant as to 
 
 (a) Immoveables. 
 
 (b) Moveables. 
 
 (c) ('hoses in notion. 
 
 (d) Ships.
 
 OUTLINE OF THE SUBJECT. XI 
 
 CHAPTER X. 
 
 PAGE 
 
 EIGHTS OF PARTIES INTERESTED IN THE ESTATE 131 
 
 Rights of beneficiaries under such wills construction gene- 
 rally what law applicable common form probate solemn 
 form forum law governing procedure law governing 
 status of beneficiary legitimacy. 
 
 CHAPTER XI. 
 
 RIGHTS OF BENEFICIARIES AB INTESTATO 140 
 
 Forum election position of heir-at-law status of claimant 
 legitimacy English Statute of Distributions rights of 
 claimants to 
 
 (a) Immoveables. 
 
 (b) Moveables. 
 
 (c) Choses in action. 
 
 (d) Ships. 
 
 PART II. 
 
 Estates of Deceased Foreigners leaving Property within the 
 United Kingdom. 
 
 CHAPTER XII. 
 
 TESTATE SUCCESSION 151 
 
 WHEN PROBATE WILL BE GRANTED OF SUCH WILLS. 
 
 Will form of will capacity appointment of executors 
 
 assets here revocation effect of marriage contract lex fori. 
 
 WHEN LETTERS OF ADMINISTRATION WITH THE WILL ANNEXED 
 
 GRANTED 161 
 
 CHAPTER XIII. 
 
 INTESTATE SUCCESSION 163 
 
 WHEN LETTERS OF ADMINISTRATION WILL BE GRANTED. 
 
 Intestacy absolute partial various grants jurisdiction. 
 
 CHAPTER XIV. 
 
 EFFECT OF ENGLISH GRANT OF PROBATE OR ADMINISTRATION GENE- 
 RALLY 168 
 
 And over 
 
 (a) Immoveables. 
 
 (b) Moveables. 
 
 (c) Choses in action. 
 
 (d) Ships.
 
 Xll OUTLINE OF THE SUBJECT. 
 
 CHAPTER XV. 
 
 PAGE 
 
 RIGHTS OF PARTIES INTERESTED IN THE ESTATE 170 
 
 Rights of beneficiaries under such wills solemn form probate 
 forum lex fort status of beneficiary legitimacy. 
 
 RIGHTS OF BENEFICIARIES AB INTESTATO. 
 
 GENERAL MATTERS. 
 CHAPTER XVI. 
 
 GENERAL PRINCIPLES UPON WHICH THE ENGLISH COURTS FOLLOW 
 A FOREIGN GRANT OF REPRESENTATION TO THE ESTATE OF 
 A DECEASED PERSON 173 
 
 CHAPTER XVII. 
 
 RIGHTS OF CREDITORS 194 
 
 Forum when entitled to a grant practice priorities inter 
 se marshalling of assets. 
 
 CHAPTER XVIII. 
 EXERCISE OF POWERS OF APPOINTMENT BY WILL 199 
 
 CHAPTER XIX. 
 
 DEATH DUTIES 210 
 
 Estate Duty effect of domicile local assets Legacy Duty 
 effect of domicile Succession Duty effect of domicile Set- 
 tlement Estate Duty effect of domicile method of calcula- 
 tion liability of personal representative. 
 
 CONCLUSION. 
 CHAPTER XX. 
 
 THE THEORY OF THE " RENVOI " IN SUCCESSION 218 
 
 The principle explained examples of history adoption 
 English views arguments for against advantages of 
 present English attitude.
 
 OUTLINE OF THE SUBJECT. Xlll 
 
 CHAPTER XXI. 
 
 PAGE 
 
 "OBSERVATIONS AS TO THE VALIDITY OF THE ENGLISH PRINCIPLES OF 
 
 DOMICILE.... .. 235 
 
 CHAPTER XXII. 
 
 COMMENTS AND SUGGESTIONS AS TO THEIR EXTENSION OR LIMITATION 238 
 
 APPENDIX. 
 
 HISTORICAL NOTE AS TO DOMICILE.... 243 
 
 INDEX 263
 
 TABLE OF CASES. 
 
 PAGE 
 
 Abaroa, Re (unreported) 182 
 
 Abdul Messih v. Farra, 13 A. C. 431 33 
 
 Adams v. Clutterbuck, 10 Q. B. D. 403 50, 
 
 Aganoor's Trusts, Re, (1895) 64 L. J. Ch. 521 92 
 
 Alexander, Re, 29 L. J. P. 93 201 
 
 Anderson v. Laneuville (1860), 30 L. J. P. 25 91 
 
 Andros v. Andros, 24 Ch. D. 637 147 
 
 Anstruther v. Chalmers, 2 Sim. 1 138 
 
 Atkinson v. Anderson, 21 Ch. D. 100 149 
 
 Att.-Gen. v. Bouwens, 4 M. & W. 171 60 
 
 v. Countess de Wahlstadt, 3 H. & C. 374 21,22 
 
 v. Higgins, 2 H. & N. 339 61,62 
 
 v. Hope, 1 C. M. & R. 530; 8 Bli. N. S. 44 81 
 
 v. Hubbuck, 10 Q. B. D. 488; 13 Q. B. D. 275 212 
 
 v. Mill, 3 Russ. 228; 2 Dow & Cl. 393 51,135 
 
 v. Napier, 6 Ex. 217 29 
 
 v. Pottinger (1861), 30 L. J. Ex. 284 29 
 
 v. Pratt, 9 Ex. 140 61 
 
 v. Sudeley, (1895) 2 Q. B. 526, C. A.; (1896) 1 Q. B. 
 354, H. L. (E.); (1897) A. C. 11; W. N. 
 
 (1896) 162 (14) 61,62,211 
 
 v. Wallace (1865), L. R. 1 Ch. 1 212 
 
 Badart's Trusts, Re, L. R. 10 Eq. 288 215 
 
 Baker's Settlement Trusts, Re, 13 Eq. 168 206 
 
 Bald, Re, 66 L. J. Ch. 524 209 
 
 Balfour v. Scott (1793), 6 Brown's Reports, H. L. pp. 550 
 
 557 9, 228, 248, 252 
 
 Barnes v. Vincent, 5 Moo. P. C. 210 200 
 
 Barnett's Trusts, Re, (1902) 1 Ch. 847 122 
 
 Barreto v. Young, (1900) 2 Ch. 339 202 
 
 Batthyany v. Welford, 33 Ch. D. 624; 36 Ch. D. 269 138 
 
 Beckford v. Wade (1805), 17 Ves. 87 51 
 
 Beggia, Re (1822), 1 Add. 340 190 
 
 Belli;. Kennedy (1868), L. R. 1 H. L. Scotch Appeals, 307 26,259
 
 TABLE OF CASES. 
 
 PAGE 
 
 Bempde v. Johnstone, 3 Yes. 198 .......................................... 250 
 
 Bent v. Young (1838), L. J. (N. S.) Ch. 151 ........................... 51 
 
 BetheU v. Hildyard, 38 Ch. D. 320 .......................................... 148 
 
 Bianchi, Re (1862), 3 Sw. & Tr. 16 ....................................... 178 
 
 Birtwistle v. Vardill (see Doe v. Vardill), H. L. 5 B. & C.; 
 
 2 Cl. & Fin. 571 ............................................................... 7 
 
 Black, Ro (1887), 13 P. D. 5 ................................................ 187 
 
 Blackwood v. Bag. (1882), 8 A. C. 82 ............... 72,140,189,196,197 
 
 Bloxam v. Favre (1883), 8 P. D. 101; 9 P. D. 130 ............... 94 
 
 Bolton, Re (1876), 12 P. D. 202 .......................................... 160 
 
 Bonnefoi, In re, (1912) P. 233, C. A ............................... 77, 138 
 
 Bowes, Re, Bates v. Wengel (1906), 22 T. L. R. 711 ...... 10,16, 
 
 31, 32, 91, 222, 226, 228, 230, 234 
 Boyee v. Bedale, 1 H. & M. 798 ........................ 141, 142, 144, 147 
 
 Bremer v. Freeman, 10 Moo. P. C. C. 306 ...... 44,53,88,89,155,177, 
 
 202, 226, 228, 234, 257, 258 
 Brentano, Von, In the Goods of, (1911) P. 172 ..................... 116 
 
 Briesemann, In the Goods of, (1894) P. 260 ...... 72, 180, 181, 184, 187 
 
 Brinkley v. Att.-Gen., 15 P. D. 76 .................................... 148 
 
 British South Africa Co. v. De Beers, (1910) 1 Ch. 354, C. A.; 
 
 (1910) 2 Ch. 502 ............................................................ 132 
 
 Brown Sequard, Re, 70 L. T. (N. S.) 811 .................. 9,91,228,229 
 
 Bruce v. Brace, M. 4617; 3 Paton, 163 ..................... 244,248,249 
 
 Brunei v. Brunei (1871), L. R. 12 Eq. 298 .............................. 259 
 
 Burn v. Cole, reported in case Marsh v. Hutchinson, 3 B. & P. 229 
 
 245, 250 
 Buseck, Re (1881), 6 P. D. 211 ........................................ 94 
 
 Cammell v. Sewell (1858), 3 H. & N. 617; 5 H. & N. 728 57 
 
 Capdeville, Re (1864), 33 L. J. Ex. 306; 2 H. & C. 985 21,22 
 
 Castriqno v. Imrie (1870), L. R. 4 H. L. 414 57 
 
 Cigala's Settlement, Re, 7 Ch. D. 351 211,215 
 
 Clayton, In the Goods of (1886), 11 P. D. 76 189 
 
 Collier v. Riva* (1841), 2 Curt. 855 9,91,124,228 
 
 Colonial Bank v. Whinney (1885), 30 Oh. D. 276; 11 
 
 App Cas. 426 59 
 
 Commissioners of Stamps v. Hope, (1891) A. C. 476 60 
 
 - v. Salting, (1907) A. C. 449 62 
 
 Coode, In the Goods of, L. R. 1 P. & D. 449 115, 160 
 
 Cook v. Gregaon (1854), 2 Drew. 286 196, 197 
 
 Cosnahan, In the Goods of (1866), L. R. 1 P. & D. 183 184 
 
 Craigie v. Lewin (1842), 3 Curt. 435 266 
 
 Crookenden r. Fuller, 29 L. J. P. & M. 1 ; 1 Sw. & Tr. 441... 
 
 201, 228
 
 TABLE OF CASES. XV11 
 
 PAGE 
 
 Cunningham, Ex parte (1884), 13 Q. B. D. 418, C. A 29 
 
 Curling v. Thornton (1823), 2 Add. 6 83,253,254,257 
 
 Curtis v. Hutton (1808), 14 Yes. 537 51,98 
 
 Da Cunha, In the Goods of (1828), 1 Hag. EC. 237 186 
 
 Dalrymple v. Dalrymple (1811), 2 Hag. Con. 58 146 
 
 Daly's Settlement, Ee (1858), 25 Beav. 456 202 
 
 D'Angibau, Re, 15 Ch. D. 228 200 
 
 De Beers Consolidated Diamond Mines v. British South Africa 
 
 Co., (1910) 2 Ch. 502, C. A.; (1912) A. C. 52 51, 132 
 
 De Bonneval v. De Bonneval (1838), 1 Curt. 856 42,91,171, 
 
 228, 255, 257 
 
 Dehais, In the Goods of, 48 Sw. & Tr. 13 .11?' 
 
 D'Huart v. Harkness (1865), 34 Beav. 328 200,204 
 
 De la Vega v. Vanna (1830), 1 B. & Ad. 284 195 
 
 De Nicols v. Curlier, (1900) A. C. 21; W. N. (1906) 192 100, 
 
 101,157 
 
 D'Este's Settlement Trusts, Re, (1903) 1 Ch. App. 898 206 
 
 De Vigny, 13 \V. R. 616, 640 89 
 
 De Zichy Ferraris v. Hertford (1843), 3 Curt. 468 257 
 
 Doe v. Vardill, 2 Cl. & Fin. 571. ..7, 49, 51, 141, 143, 144, 145, 150 
 
 Doglioni v. Crispin (1863), Sw. & Tr. 96 89,177 
 
 Donaldson v. McClure, 20 D. 307 23 
 
 Dost Aly Khan, In the Goods of (1880), 6 P. D. 6 180 
 
 Doucet v. Geoghegan (1877), C. A.; (1878), 9 Ch. D. 441... 260 
 
 Douglas v. Douglas (1871), L. R. 12 Eq. 617, 645 21 
 
 Duncan v. Lawson (1889), 41 Ch. D. 394 52,154,158 
 
 Duplein r. DC Roven (1705), 2 Verney, 540 60 
 
 Earl, In the Goods of (1867), L. R. 1 P. & D. 450 179, 181, 184 
 
 Elliott, Re, Elliott v. Johnson (1891), 39 W. R. 297 158 
 
 Enohin v. Wylie (1862), 10 H. L. C. 1, 13... 74, 76, 77, 136, 176, 177 
 
 Esto v. Smyth, 18 B. 112 52- 
 
 Evans r. Burrell (1859), 28 L. J. P. 82 71 
 
 Ewing, In the Goods of (1881), 6 P. D. 23 62 
 
 Ewing v. Orr-Ewing, 10 A. C. 513; 9 A. C. 34, 39.. .3, 136, 17G 
 
 Fonton v. Livingstone, 3 Macq. 497, 547 145 
 
 Fergusson's Will, Re, (1902) 1 Ch. 483 148 
 
 Fernandes, Executors of, Re (1870), L. R. 5 Ch. 314 61,62 
 
 Firebrace r. Firebrace, 4 P. D. 6385 29 
 
 Fitzgerald, Re, (1904) 1 Ch. 573 101 
 
 Forbes v. Steven, L. R. 10 Eq. 178 212 
 
 Freke v. Lord Carbery, L. R. 16 Eq. 461 42,49,52,154 
 
 Frere v. Frere, 5 Notes of Cases, 593 228 
 
 B. b
 
 XV111 TABLE OF CASES. 
 
 PAGE 
 
 Gaily, In the Goods of (1876), 1 P. D. 438 93 
 
 Gmtili, Re, Ir. R. 9 Eq. 541 50, K>1 
 
 Goodman v. Goodman (1862), 3 Gif. 643 145 
 
 Goodman's Trusts, Re, 17 Ch. D. 266, C. A 141, 142, 143, 144, 
 
 147, 148, 150 
 
 Gordon v. Brown (1830), H. L.; cited in 3 Hag. EC. 445 254 
 
 Gouin, Re, L. Q. R. Jan. 1913, p. 40 182 
 
 Graham v. Johnstone, 3 Ves. 198 250 
 
 Grasai, Re, (1905) 1 Ch. 584 53, 85, 87 
 
 Crey's Trusts, In re, (1892) 3 Ch. 88 141,148 
 
 Groos, Re, (1904) P. 269 46, 95, 107, 110, 113, 155, 160, 185 
 
 Grove, Re, 40 Ch. D. 216243 150 
 
 Curney v. Rawlins (1836), 2 M. & W. 87 60 
 
 Haas f. Atlas Insurance Co., Times Newspaper, Fob. 20, 1913... 120 
 
 lladley, Re, (1909) 1 Ch. 20 207,208 
 
 llaldane r. Eckford (1869), 8 Eq. Cas. 631 20, 21. 22 
 
 Hallyburton, In the Goods of, L. R. 1 P. & M. 90 188, 201 
 
 Hamilton v. Dallas (1875). 1 Ch. 1). 257 1-71, 228, 2.VI 
 
 Hare r. Nasmyth (1816), 2 Add. 25 254, 25.>. 2V; 
 
 Harris, In tli<- Goods of, L. R. 2 P. & D. 83 115 
 
 Harrison r. Harrison (1873), L. R. 8 Ch. 342 !is 
 
 Hellman's Will, Re, L. R. 2 Eq. 363 !!! 
 
 lli-rnandii. Ho (1884), 27 Ch. D. 284 50, s 
 
 Hill, In the Goods of (1870), L. H. 2 I'. \ I). 89, 90 191 
 
 HodgSOn r. I).- I'.eaileliesni.. VI .Moo. I'. C. C. 2X.". 18, 2.8 
 
 Hog r. Ui-h'.ev (1792) (>> Appendix) 88, 101, 247 
 
 Hop.- /. Carneirie. I- H. 1 Ch. 320 138 
 
 1 1. .skins 9. Matli.-ws (18515). 25 L. .1. Ch. liS'l _><. :;) 
 
 llul.er. In t he Goods of. ds'iii) 1. 209 201 
 
 Hummd /. Hummel. (ISHH) I Ch. (i2 203 
 
 lluntly (Marchioness of) 9. Gaskell. (19061 A. C. .Mi 22. 2:t. 25 
 
 Ilderton 9. Ilderton. 2 Hy. Ml. 115 7 
 
 Jackson . IVtrie (1804), 10 Vex. ]<>4 51 
 
 James. lf>'. .lam.-s >. .lame., its L. T. 438 2.'i. 2(i 
 
 .I.-\,'s 9. Sl.a.hvell (1815.1). L. K. 1 ( 'li . 7 21.'. 
 
 .lolu.-oi,. //,.. |{o|,,. r is 9. \tt.-Gcn.. (1903) 1 Ch. 821 Ill, Hi. 27. 
 
 31. 220, 222, 22.-.. 22(i. 29 
 Johnston.- 9. Meattie. Ill ( I. X Kin. 42 2'.i 
 
 Kilpatriek r. Kilpatri.-k (M Appendix) 88, 244. 2:. 2.MI 
 
 Kinr 9. Foxwell (1876), 3 Ch. H. :.ls 22 
 
 Kirwan's Trusts, / ,-r (1883), 25 Ch. I). 373 202 
 
 Klocbc, He (1884), 28 Ch. I). 17f, 19.5, 19T,
 
 TABLE OF CASES. XIX 
 
 PAGE 
 
 Lacroix, Re (1877), 2 P. D. 94 91, 93, 94, 228 
 
 Laidlay v. Lord Advocate, 15 A. C. 468 62 
 
 Laneuville v. Anderson (1860), 30 L. J. P. 25 ...91, 113, 160, 183, 228 
 
 Lashley v. Hogg, 3 Hag. EC. 415 101, 135 
 
 Levy, In the Goods of, (1908) P. 108 125, 178, 181, 182 
 
 Lord v. Kelvin (1859), 28 L. J. Ch. 361, 365 17 
 
 Lovelace, Re, 28 L. J. Ch. 489 216 
 
 Lyall v. Lyall, L. E. 15 Eq. 1 215 
 
 Lynch v. Government of Paraguay (1871), L. B. 2 P. & M. 241... 92 
 Lyne v. de la Ferte (1910), 102 L. T. 143 90, 165 
 
 Mackenzie, In the Goods of (1856), Deane, 17 183 
 
 Maltass v. Maltass (1844), 1 Eob. EC 33 
 
 Maraver, In the Goods of, 1 Hagg. 498 89, 190 
 
 Marsh v. Hutchinson, 3 Bos. & Pul. 229 245 
 
 Martin, Re, Loustalan v. Loustalan, (1900) P. 211, C. A.. ..108, 111, 
 
 112, 228, 229 
 
 Meatyard, Re, (1903) P. 130 114, 180, 186 
 
 Megret, In re, Tweedie v. Maunder, (1901) 1 Ch. 541 208 
 
 Merryweather v. Turner (1844), 3 Curt. 802, 817 70 
 
 Miller v. James, L. E. 3 P. & D. 4 89, 122, 192 
 
 Moffatt, Re, (1900) P. 152 185 
 
 Moorhouse v. Lord (1863), 10 H. L. C. 272 17, 18, 19, 21, 22, 23, 
 
 29, 258, 259 
 
 Mouchel, Re (unreported) 103 
 
 Murphy v. Deichler, (1909) A. C. 446 155, 200, 203 
 
 Murray, In the Goods of, (1896) P. 65 115, 160 
 
 Nelson v. Bridport, Westlake, 225 98 
 
 Niboyet v. Niboyet (1878), 4 P. D. 1 29 
 
 Oldenburg, In the Goods of Prince (1884), 9 P. D. 234 191 
 
 Oliphant, In the Goods of (1860), 30 L. J. P. 82 183 
 
 Ommaney v. Bingham, 3 Hagg. EC. 414 250 
 
 - v. Douglas, 8th March, 1796, H. L 248 
 
 Orleans, Re, Duchess of, 1 Sw. & Tr. 453 114, 185, 186 
 
 Orr Ewing, Re (1882), 22 Ch. D. 456, C. A 76 
 
 Pawley v. London and Provincial Bank, (1905) 1 Ch. 58 169 
 
 Payne v. Reg., (1902) A. C. 553 60 
 
 Pearse v. Pearse (1838), 9 Sim. 430 61 
 
 Peat's Trusts, Re (1869), L. E. Eq. 302 51, 52 
 
 Pechell v. Hilderley (1869), L. E. 1 P. & D. 673 84 
 
 b 2
 
 XX TABLE OF CASES. 
 
 r.\t,i: 
 Pcnn v. Lord Baltimore (1750), 1 Ves. sen. 4-14 ........................ 73 
 
 Pepin v. Bruycro, (1900) 2 Ch. 501 : 1902.) 1 Ch. 24. C. A..... 62, 86, I5:i 
 
 Pipon w. Pipon. 2 Ami). 25 ..................... 53. 5i. s*. i'i I. 2 hi, '.'.MI. 2.vj 
 
 I'itt 9. Dacre (1876), 3 Cli. H. 25 ....................................... 51. 52 
 
 Pouey r. Hordcrn, (1900) 1 Ch. 492 ....................................... 209 
 
 Preston 9. M.-lvill... s Cl. \ Kin. 1 .................................... 75, 196 
 
 Price, In re, Tomlin v. hatter, (1900) 1 Cli. 442 ...... 138, 202, 205, 206 
 
 Probart, In tin- I ionds ,,f (186(5), 36 L. J. P. 71 ........................ 178 
 
 Pryce, In re, Lawford r. Pryoc, (1911) 2 Ch. 286, C. A.. ..101, 208, 209 
 
 Read, In th.- Qoodfl "f il28), 1 Hag. EC. 474 ..................... 174, 183 
 
 Reid, Re, L. U. 1 P. \ I). 71 .............................. 106, 107. 111. I6i 
 
 Robinson r. Bland, 1 \V. HI. 234: 2 Burr. 1079 .................. 
 
 Rogerson, In the Goods of (1840), 2 Curt. 656 ..................... 175, 190 
 
 Ross v. Ewer, 3 Atk. 163 ...................................................... 81 
 
 Rule, In the Goods of, 4 P. 1). 76 .................................... 117. liil 
 
 Sander-. In tli, - G.H,,1* of, (1900) P. 292 ................................. 124 
 
 Sartoris, In the Goods of (1838), 1 Curt. 910 ................. . ......... 191 
 
 Scholetteld, 11,: (11(05) 2 Cli. 408; (1907) 1 Cli. 664 ............ 204, 206 
 
 Sell r. Milln-. \\V,tlakr. 225 ................................................ !s 
 
 Si-lot's Trusts II,; (1902) 1 Ch. 488 ..................... 99, 102. 103, KM 
 
 Shaw r. Gould. L. H. 3 11. L. 70 .......................................... 144 
 
 Sill 9. Worswick (1791). I II. H. L. 665 ........................... 53. 2 Hi 
 
 Skottowe v. Young, L. It. 11 Kq. 474 ........................... 144, 145, 149 
 
 Smelting Co. of Australia >: Commissioners of Inland Ri-vcniic. 
 (1897) 1 Q. B. 175 ............................................................ (12 
 
 Smith, In the Goods of (1868), \V. It. 1130 .............................. 179 
 
 Smith's Trusts, Re, 12 W. R. 933 .......................................... 215 
 
 Smith, In ,<: Li-cch 9. l^-ei-h, (1898) 1 Ch. 89 ..................... 61,211 
 
 Somerville 9. I .or. I Sumcrv illc (ISO!). 5 Ves. 749 ............... 88, 251 
 
 Stanley r. Herne* (1831), 3 1 1 air. l'>. 16 ............... 42, 45, 83, 88, 
 
 177, 251. 25.-1. 257 
 Steigerwald, In the Goods of (1864), 10 .lur. \. S. 15!) ......... 178, 182 
 
 St.Tliiitf-.Maxwoll 9. Cartwright, 11 Ch. D. 523 ........................ 77 
 
 Stewart, In the G.H..U of, 1 Curt. 904 .................. 72, 175, 17 
 
 Stokes f. Stokes, 67 L. .1. P. 55 ............................................. !U 
 
 Stmld 9, Ci>ok, A. C. 577 ................................................ 134 
 
 9. llank.-y ls:is } . -J \l,,,,. I'. C. C. ;;|2 ....................... 2U| 
 
 ThoniHon r. A<l\>ratr-Gi-ii-ral. 13 Sim. 153 ..................... 212. 213 
 
 Thome r. Watkin* (1750). 2 \ ... -, . :;.-, ...... 53, 211. 215. 250. 252 
 
 Tomlinsoii, In the Goods of (1881), 6 I'. l>. 2(l!l ........................ 67 
 
 Tootal's Trusts, Re (1883), 23 Ch. I). 532 .............................. 33
 
 TABLE OF CASES. XXI 
 
 PAGE 
 
 Trefond, In the Goods of, (1899) P. 247 188 
 
 Trotter v. Trotter (1828), 4 Bli. 502 133 
 
 Trufort, lie (1887), 36 Ch. 1). 600 89, 190, 228, 229 
 
 Tucker, In the Goods of (1864), 34 L. J. 29 71, 114, 124, 160 
 
 Turner, In the Goods of, 3 Sw. & Tr. 476 115 
 
 Udny v. Udny, L. R. 1 Scotch Appeals, 441 13, 19, 20, 21, 23, 
 
 34, 43, 259 
 Urquhart v. Butterfield, 37 Ch. D. 385 29 
 
 Van Faber, In the Goods of, 20 T. L. R. 640 108 
 
 Vannini, Re, (1901) P. 330 1&8 
 
 Veiga, J. J. F., Re, 3 Sw. & Tr. 13 187 
 
 Viesca v. D'Aramburu (1839), 2 Curt. 277 174, 175 
 
 Von Brentano, Re, (1911) P. 172 116, 159 
 
 Von Buseck, In the Goods of (1881), 6 P. D. 211 94 
 
 Von Linden, Re, (1896) P. 148 184 
 
 Walker, In re, McColl v. Bruce, (1908) 1 Ch. 566 203 
 
 Wallace v. Att.-Gen. (1865), L. R. 1 Ch. 1 215 
 
 Wallop's Trusts, Re (1864), 33 L. J. Ch. 351 216 
 
 Wankford v. Wankford (1703), 1 Salk. 299, 308 70, 113, 160 
 
 Watson, In re (1887), 35 W. R. 711 85 
 
 Weaver, In the Goods of (1866), 36 L. J. P. 4 188 
 
 Westerman v. Schwab (1905), 13 Sc. L. T. R. 594 Ill, 166 
 
 Whicker v. Hume (1858), 7 H. L. C. 124 17, 18, 258 
 
 Williams v. Colonial Bank (1888), 38 Ch. D. 388, C. A 57 
 
 Winans v. Att.-Gen., (1904) A. C. 287 22, 23, 25, 29 
 
 Winter, In the Goods of (1861), 30 L. J. (N. S.) P. & M. 56 159 
 
 Worms v. De Valdor (1880), 49 L. J. Ch. 261 102, 103 
 
 Wright's Trusts, Re, 2 K. & J. 595 27 
 
 Wyckoff, In the Goods of (1862), 3 Sw. & Tr. 20 61 
 
 Young, Re, Smith v. St. John, (1905) 2 Ch. D. 408 204
 
 ( xxiii ) 
 
 INTRODUCTION. 
 
 AT first sight it may seem strange that this Work should 
 bo divided into two parts on a basis of nationality. 
 
 It is true, as a general rule, that the English Courts in 
 administering Private International Law in this country 
 are little influenced by the political status or nationality 
 of any individual, but rely rather on domicile as a criterion 
 of personal law. 
 
 It seems, however, to the writer that inasmuch as the 
 first two sections of Lord Kingsdown's Act governing 
 the formal validity of wills apply only to British subjects, 
 confusion is avoided by dealing with the law that relates 
 to British subjects and foreigners in separate parts of 
 this book. 
 
 Moreover, although nationality may not be the English 
 basis of the rules of choice of law, it is so in many Con- 
 tinental countries; and the English Courts, in administer- 
 ing the estates of deceased foreigners dying intestate 
 leaving assets within the United Kingdom, are frequently 
 called upon to apply the law of the nationality of the 
 deceased. 
 
 Whether or not a deceased person was a British subject 
 is generally a matter of easy determination, and con-
 
 XXIV INTRODUCTION. 
 
 sequently once that fact is ascertained, only that part of 
 tho book dealing with such a case need bo consulted in 
 reference thereto. It is hoped, therefore, thai such a divi- 
 sion of the subject will render it unnecessary for a reader 
 to be continually dissecting the text for the purpose of 
 ascertaining how far the law there stated applies only to 
 the case of a British subject or is of general application, 
 and this arrangement of the subject-matter of the book 
 has been adopted by the writer with that idea.
 
 ADMINISTRATION OP FOREIGN ESTATES. 
 
 GENERAL MATTERS. 
 
 CHAPTEK I. 
 
 THE NATURE OF PRIVATE INTERNATIONAL LAW. 
 
 THE world no longer consists, as in the days of the Early 
 Roman Empire, of one single sovereign state, but is 
 divided into a large number of separate communities. 
 
 No longer does the legislation of one sovereign body 
 regulate the legal rights of the civilised world. Each 
 state is subject to its own particular system of laws. 
 
 If a member of any of these states travels beyond the 
 territorial limits of the community of which he is a 
 member and enters the territory of a different state wherein 
 an entirely different legal system prevails, the question at 
 once arises by what law are the acts and deeds of such 
 citizen to be governed, what law shall affect his property 
 and his capacity of disposing of it in his lifetime or on 
 death. Is the national or territorial law of his own state 
 to be held applicable or is he considered to be subject to 
 the laws of the country where he happens to be ? It is 
 apparent that such a question is not merely theoretical, 
 but one of extreme practical importance intimately con- 
 nected with the lives and acts of an ever-increasing number 
 of persons. 
 
 B. 1
 
 2 ADMINISTRATION OF FOREIGN ESTATES. 
 
 The means of communication between the various parts 
 of the earth are constantly becoming better developed, the 
 habits of people (belonging to all classes in the community) 
 are becoming yearly more migratory, and the problem of 
 emigration and the laws affecting such individuals are a 
 serious consideration of every leading state. 
 
 It follows that a multiplicity of cases must arise in 
 which the legal tribunals called upon to adjudicate in the 
 circumstances of a particular case, have to decide which 
 legal system governs the matters in dispute. 
 
 The body of rules laying down the principles upon 
 which the Courts of a particular country decide whether 
 they have jurisdiction to entertain a particular case and 
 determining the system of law to apply, is called " Private 
 International Law." 
 
 Private international law in the sense in which we use 
 the term, became a science on the continent of Europe 
 before it had been seriously considered in this country. 
 Especially in the Netherlands the subject was debated 
 with great acumen and extraordinary keenness, with the 
 result that most of the authoritative early works on the 
 subject emanated from abroad, whilst the earlier decisions 
 in our own Courts show that our judges not infrequently 
 borrowed from that store. 
 
 The earliest decisions in cases of succession and admin- 
 istration are mostly to be found in the reports of the 
 Prerogative Court of Canterbury, the earliest Probate 
 Court of this country. 
 
 Usually these reports relate to cases either where the 
 deceased left estate in more than one count rv. and relatives 
 being in the different countries claimed according to the 
 laws of their particular country, or where in other came 
 the deceased made a will disposing of his property in a 
 manner allowed by one system of law and forbidden by
 
 THE NATURE OF PRIVATE INTERNATIONAL LAW. 3 
 
 another. The respective claimants urged their conten- 
 tions in the Courts of this country. 
 
 Professor Westlake defines " Private International 
 Law" as "that department of national law which arises 
 from the fact that there are in the world different terri- 
 torial jurisdictions possessing different laws " (a). With- 
 out entering into the very technical question of the exact 
 judicial position and scientific accuracy of the term 
 " Private International Law " (for criticism of the ex- 
 pression, see Dicey, 2nd ed., p. 14), it seems to us that 
 Professor Westlake's description possesses the double 
 advantage of accuracy and simplicity. 
 
 Wherever the territorial laws cannot apply, the rules of 
 private international law must be resorted to. 
 
 For the purposes of this work it is enough to say that 
 certain questions of judicial competence and the choice of 
 law, where the Courts of one country have to adjudicate 
 upon matters connected with another country, are known 
 in this country as " Private International Law," an expres- 
 sion which conveniently indicates the nature of the ques- 
 tions referred to, and which has obtained wide currency 
 and understanding throughout the civilised world. (See 
 remarks of Lord Selborne in Eiving v. Orr-Ewing, 10 
 A. C. at p. 513.) 
 
 Our more particular concern, however, in this work is 
 to deal with the rules the English Courts apply in matters 
 of international aspect, from which it follows that the 
 actual laws to which we shall more particularly confine 
 ourselves in this treatise, are the laws, not of foreign 
 countries, but of England purely and simply, as applied 
 in this country in matters of international importance, 
 and these are the only rules of law which are of practical 
 
 (a) Private International Law, 5th ed. p. 1 . 
 
 1 (2)
 
 4 ADMINISTRATION OF FOREIGN ESTATES. 
 
 interest to the legal profession of this country in dealing 
 with the subject of private international law. 
 
 This branch of the law consists of those rules which 
 regulate the jurisdiction of the Courts of this country, 
 the validity of acts, and the choice of law wherever the 
 parties to the suit and the subject-matter of the proceed- 
 ings are not wholly and uniquely subject to the English 
 territorial law. 
 
 Whenever a foreign element exists in a matter in dis- 
 pute in this country, some principle of English law at once 
 determines the various questions raised by the presence of 
 that foreign element. 
 
 It is obvious that this branch of English law is far more 
 extensive than the law relating to the administration of 
 estates of deceased persons . 
 
 It is thought, however, that a work in which are collected 
 the sum total of the principles and rules relating to the 
 administration of such estates will prove not only useful 
 to the legal practitioner, but will be helpful to a better 
 understanding of the true application of these principles 
 and the consequent uniformity of the various legal systems 
 of the world. 
 
 In matters relating to the administration of the estates 
 of deceased persons in which some foreign element exists, 
 certain rules apply, of which the most notable is perhaps 
 the rule " mobilia sequuntur personam." 
 
 In England, and indeed in every civilised state wherein 
 there exists a defined system of law, that law consists, 
 broadly speaking, of two fundamentally distinct branches; 
 on the one hand is the general body of law regulating tho 
 righto of citizens and governing all transactions which 
 take place within its territorial limits, and on the other 
 hand, those rules and principles governing the choice of 
 laws where the territorial laws cannot apply.
 
 THE NATURE OF PRIVATE INTERNATIONAL LAW. 5 
 
 It is apparent that if the tribunals of one country re- 
 fused to apply any principles of foreign laws, no matter 
 what the circumstances were of the matter in question, 
 great injustice would certainly result. 
 
 It is, moreover, evident that this branch of law increases 
 in practical importance from year to year, as the occasions 
 for its use and application become more frequent. 
 
 If a deceased person leaves property in more than one 
 country, and questions arise as to the law applicable to its 
 distribution, the Court before which the matter is brought 
 for decision might, it is conceived, adopt at least three 
 different methods: 
 
 (1) It might apply to all assets of the deceased of what- 
 ever nature they consist, and whether moveable or immove- 
 able, the law of the country in which the particular assets 
 happened to be at death the true " lex loci rei sit& " in 
 which event an estate might be subject to numerous 
 systems of law corresponding with the countries in which 
 the properties were actually situate at death. It is un- 
 necessary to point out the confusion such an application of 
 a number of laws would involve . The duties of the repre- 
 sentatives of the deceased charged with the administration 
 of his estate, the payment of his debts, and the ultimate 
 division amongst those entitled, already considered to be 
 onerous, would be immeasurably increased. 
 
 Such a rule would not, therefore, be a convenient solu- 
 tion of the difficulty. 
 
 (2) It might, on the other hand, apply to the succession 
 and all matters connected therewith, the personal law of 
 the deceased this being treated either as the national law 
 (the law of the country to which the deceased owed allegi- 
 ance) or the law of his domicile (the law of the place where 
 the deceased had resided with the intention of remaining 
 there for an indefinite period).
 
 6 ADMINISTRATION OF FOREIGN ESTATES. 
 
 This, however, is not the English rule, as it conflicts 
 with the fundamental principle of English jurisprudence, 
 that immoveables are governed by the lex situs, and that 
 inoveable property is governed by the law of the last domi- 
 cile of the deceased. Or 
 
 (3) It might distinguish between immoveable and 
 moveable property. 
 
 To the immoveable property it might apply the lexaitui, 
 whilst the moveable property might be governed by the 
 rule " mobilia sequuntur personam." 
 
 In most countries immoveable property is held to be 
 governed solely by the law of the country where it is 
 situated. This rule is based probably on the necessity for 
 supreme control over all portions of its own territory which 
 a state was deemed to desire. 
 
 By English law as regards land, the rights and obliga- 
 tions relating thereto are regulated entirely by the lex 
 situs. The principle is a very general one, and applies 
 alike in all matters of succession and administration affoct- 
 ing the same. 
 
 The transfer of such rights at death, whether such trans- 
 fer operates through a will or by virtue of an intestacy, is 
 governed by the law of the same land (lex situs) (6). 
 
 In connection with immoveable property, therefore, the 
 representatives of the deceased will be bound to give effect 
 to the laws of each country where the testator owned ira- 
 moveable property at the date of his death . 
 
 Through this compulsory division of the administration 
 of the testator's immoveable property into as many succes- 
 sions as there are foreign countries in which immovoables 
 
 (*) Certain interest* in land are, however, treated in English law u 
 penonal estate, and thu, although for many purposed they nre regarded 
 a* immoveablem still their trannfer is governed by the Itr dom\cil\>, and 
 not the It* loci rri tit*. (See infra. Chapter V.)
 
 THE NATURE OF PRIVATE INTERNATIONAL LAW. 7 
 
 belonging to the deceased are situate, it might be thought 
 there would arise great confusion; but as this is the system 
 adopted by the great majority of states, any question of 
 conflict is very rare. 
 
 When such conflict does arise, as, for instance, in the case 
 of an Italian subject dying domiciled in Italy leaving 
 immoveable property in England the Italian law, which 
 enacts that for purposes of succession immoveable pro- 
 pert}-, like moveable, is regulated by the personal law of the 
 deceased, remains of no effect, and the English law will 
 prevail (c) . 
 
 Whilst, however (with the exception of Italy), immove- 
 ables are almost invariably governed by the lex situs the 
 rule "mobUia sequuntur personam" is interpreted in two 
 distinct ways: the " personal " law is regarded on the con- 
 tinent of Europe as being the "national" law, whilst in 
 the United Kingdom the law of the domicile is meant . 
 
 It is this cleavage in the great systems of the world 
 which is responsible for a very large number of the pro- 
 blems arising in practical cases before the Courts of the 
 various countries. 
 
 Owing to the territorial position, and to the habits of 
 the peoples, France, Germany, and the neighbouring con- 
 tinental states are very greatly interested in the commerce, 
 the arts and the institutions of this country, whilst a large 
 number of the citizens of this country reside permanently 
 in one or other of those countries. Questions frequently 
 arise where the estate of a deceased person, who dies leav- 
 ing property in both France or Germany and England, 
 would be regulated on entirely different lines according 
 
 (c) See judgment of Lord Chief Baron Alexander in the case of Doe v. 
 Vardill (House of Lords), 5 B. & C. 543 ; 2 01. & F. 571 ; and see 
 Ilderton v. Ilderton, 2 Hy. Bl. 145.
 
 8 ADMINISTRATION OF FOREIGN ESTATES. 
 
 to whether French, German, or English law is the govern- 
 ing factor. 
 
 The matter is, therefore, one of frequent practical 
 interest. 
 
 The object of far-seeing jurists and statesmen in the 
 leading countries of the world has been to bring the com- 
 peting theories of private international law into uni- 
 formity. Conferences of the nations have been held at 
 the Hague, and many valuable discussions have taken 
 place. Complete uniformity, however, can never be 
 achieved so long as the conflict between the national law 
 and the law of the domicile exists with reference to the 
 moveable property of a deceased person . It has been sug- 
 gested that this country should adopt the continental 
 practice and decide the matter by reference to the national 
 law in every case. There are, however, very great objec- 
 tions to such a suggestion, which will be examined in a 
 later place; not the least being that a member of die 
 United Kingdom may have one of several national laws, 
 there being no such thing as a national law common to all 
 parts of the British Isles. Moreover, it is possible for a 
 man to have more than one nationality (as, for instance, 
 where a Frenchman becomes naturalized in England with- 
 out the consent of his own government; in such circum- 
 stances his nationality would be English in every part of 
 the world, except France and possibly her colonies in 
 \\liii-h he would remain a Frenchman), though he cannot 
 have more than one domicile. 
 
 It M.nietinies happens that the Courts of one country in 
 apphini: t<> the evtiiir of a deceased person situate within 
 their jurisdiction, the rule of private international law 
 then- prevailing, refer the matter to some other jurisdic- 
 tion, \\hich in its turn refers the matter to the original or 
 some other system.
 
 THE NATURE OF PRIVATE INTERNATIONAL LAW. 9 
 
 This is the doctrine of the " renvoi " or throwing back, 
 as, for instance 
 
 If the English Courts have before them a matter arising 
 out of the estate of a deceased person, who was a British 
 subject but died domiciled in France, they will refer the 
 matter to the law of the domicile, e.g., French law for 
 decision . 
 
 By French law, however, the rule applied is the law of 
 the nationality, and so the matter is referred by French 
 law back to English law. In such an event it is submitted 
 that the better opinion is that the English Courts accept 
 the " renvoi," and decide the case before them by pure 
 English law. 
 
 As, however, the English Courts in such a case would 
 treat themselves as sitting in France, it would be more 
 accurate to say that the case would be decided by the view 
 of English law which the French Courts would themselves 
 have applied, had the matter come before them for deci- 
 sion. (See Laws of England, Art. Conflict of Laws, 
 Vol. 6, p. 223, and notes to sect. 335.) 
 
 Jurists have been greatly divided as to whether the 
 Courts of one country in applying the laws of another 
 should apply the " internal " laws of such other country, 
 or whether, in the event of such country applying some 
 other rule, they should also apply the rule that would be 
 applied had the matter come up for decision in such other 
 country. The English Courts have in frequent instances 
 laid down the principle that when they apply the law of a 
 foreign country, they treat themselves as deciding the 
 point in the foreign country, and, so far as possible, treat 
 the matter in precisely the same way as the judges of such 
 other country would do. (See Balfour v. Scott; Cottier 
 v. Rivaz ; In the goods of Broum Sequard.} This 
 being so, it follows that it would lead to uniformity of
 
 10 ADMINISTRATION OF FOREIGN ESTATES. 
 
 action if the "renvoi " (being merely a logical deduction 
 of this doctrine) were to be accepted in its entirety by the 
 English Courts. 
 
 Recent decisions, such as in Re Johnson, Roberts v. 
 Att.-Gen., [1903] 1 Ch. 821, and in Re Botces, Bates v. 
 Wengel (1906), 22 T. L. R. 711, would seem to show 
 that this is the view taken by the English judges. 
 
 The matter is fiercely debated on the Continent, and in 
 France particularly, jurists are divided into two abso- 
 lutely hostile camps. The general tendency of modern 
 decisions throughout the world is, however, to accept the 
 " renvoi " doctrine as being the best practical solution, 
 until the comity of nations admits of some artificial rule 
 adopted by agreement to meet the cases of practical diffi- 
 culty and hardship. The matter is discussed in detail in 
 a later chapter (d) . 
 
 (rf) See Chapter XX.
 
 CHAPTER II. 
 
 DOMICILE AND ITS BEARING ON ADMINISTRATION AND 
 SUCCESSION. 
 
 IN dealing with questions of administration and succession 
 we shall have occasion constantly to refer to the " law of 
 the domicile" of the deceased. 
 
 To enable us to understand the expression " law of the 
 domicile " we must first examine the nature and meaning 
 of domicile itself, as recognised and understood in English 
 law. 
 
 At different periods of early legal history the purely 
 personal theory of law and the purely territorial conception 
 have in turns prevailed . In those countries which accepted 
 the personal theory of law each citizen was treated as a 
 member of the particular group to which he belonged, and 
 was considered to be subject to the laws prevailing amongst 
 that group in the place where he resided . 
 
 However, at this stage the idea of allegiance to a parti- 
 cular state had not been fully developed, and consequently 
 the conception of nationality had no place in the law of 
 that age. 
 
 Where conflict arose as to the personal law governing 
 a particular person's acts it usually happened to be a case 
 of foreign merchants or traders who had travelled beyond 
 the limits of their country of origin in pursuit of 
 commerce. 
 
 The criterion adopted was usually, therefore, that of the 
 place where the merchant resided at the time, provided
 
 12 ADMINISTRATION OF FOREIGN ESTATES. 
 
 such residence appeared to be more or less permanent, and 
 not of a merely transitory nature. 
 
 From this casual beginning and the accidental adoption 
 of the permanent residence as the deciding factor the 
 modern conception of domicile in this country has been 
 slowly evolved. 
 
 The process has been a very gradual one, and during the 
 course of the centuries many competing principles have 
 had to be contended with. 
 
 The result is that the reports of cases in the Courts of 
 this country contain a large number of contradictory de- 
 cisions which greatly confuse the domain of private inter- 
 national law. 
 
 Unless these cases are treated chronologically, and tho 
 progress of the evolution of modern ideas on domicile 
 carefully noted, the reader of them is apt to be bewildered 
 by the seeming fluctuations of judicial opinion, and will 
 come away from his researches with doubts cast upon 
 fundamental principles of law which are now established 
 beyond all dispute. 
 
 Those who are interested in the historical development 
 of our legal system will find a full examination of the cases 
 in the Appendix, under the heading " Historical Note on 
 the Evolution of the English Conception of Domicile," 
 but we have thought that it would not conduce to clearness 
 to treat the subject historically at this point. 
 
 In the present and following chapters we deal with the 
 subject of domicile and the application of the lex 
 domicilil as it exists at the present day. 
 
 The conception of domicile in English law is the legal 
 relationship between a person and a place; it is a con- 
 ception which has received special treatment at the hands 
 of the judges of the English tribunals, with the result that
 
 DOMICILE. 13 
 
 the notion of domicile in English law possesses a distinc- 
 tive character and special features of its own. 
 
 It is a conception partly dependent upon law and partly 
 upon fact. 
 
 There must be actual residence in a given country 
 coupled with an intention to reside there for an indefinite 
 period, whilst at the same time, in view of the legal nature 
 of the conception of domicile, the English law attributes 
 to every person at birth a domicile by operation of law, 
 which domicile, known as the domicile of origin, can only 
 be changed within prescribed limits, and in default of a 
 clear acquisition of another domicile by choice, governs 
 the possessor of it throughout his life. 
 
 " The notion of domicile in English law is the judicial 
 recognition of the actual residence of a person in some 
 place coupled with an intention, either expressed or 
 implied, to remain there for an indefinite period." 
 
 An excellent judicial summary of the English principles 
 relating to domicile, showing clearly the peculiar nature 
 of the domicile of origin, is to be found in the judgment 
 of Lord Westbury in the House of Lords in the celebrated 
 case of Udny v. Udny (reported in Law Reports I., Scotch 
 Appeals, p. 441), and we cannot do better than incorporate 
 such judgment (in so far as it deals with this point) in 
 extenso in the text. 
 
 It is as follows (at p. 457 of the Report): 
 
 " The law of England and of almost all civilised 
 countries ascribes to each individual at his birth two 
 distinct legal states or conditions: one by virtue of which 
 he becomes the subject of some particular country, binding 
 him by the tie of natural allegiance, and which may be 
 called his political status; another by virtue of which he 
 has ascribed to him the character of a citizen of some
 
 14 ADMINISTRATION OF FOREIGN ESTATES. 
 
 particular country, and as such is possessed of certain 
 municipal rights, and subject to certain obligations, which 
 latter character is the civil status or condition of the in- 
 dividual and may be quite different from his political 
 status. The political status may depend on different laws 
 in different countries; whereas the civil status is governed 
 universally by one single principle, namely, that of 
 domicile, which is the criterion established by law for the 
 purpose of determining civil status. For it is on this basis 
 that the personal rights of the party, that is to say, the law 
 which determines his majority or minority, his marriage, 
 succession, testacy or intestacy must depend. Interna- 
 tional law depends on rules which, being in great measure 
 derived from Roman law, are common to the jurisprudence 
 of all civilised nations. It is a settled principle that no 
 man shall be without a domicile, and to secure this result 
 the law attributes to every individual as soon as he is born 
 the domicile of his father if legitimate, and the domicile 
 of his mother if illegitimate. This has been called the 
 domicile of origin, and is involuntary. Other domiciles, 
 including domicile by operation of law, as on marriage, 
 are domiciles of choice. For as soon as an individual is 
 sui juris it is competent to him to elect and assume another 
 domicile, the continuance of which depends upon his will 
 and act. When another domicile is put on, the domicile 
 of origin is for that purpose relinquished and remains in 
 abeyance during the continuance of the domicile of choice; 
 but as the domicile of- origin is the creature of law, and 
 independent of the will of the party, it would be incon- 
 sistent with the principles on which it is by law created 
 and ascribed, to suppose that it is capable of being by the 
 act of the party, entirely obliterated and extinguished. 
 It revives and exists whenever there is no other domicile, 
 and it does not require to be regained or reconstituted
 
 DOMICILE. 15 
 
 <mimo et facto, in the manner which is necessary for the 
 acquisition of a domicile of choice. 
 
 " Domicile of choice is an inference which the law 
 derives from the fact of a man fixing his sole or chief 
 residence in a particular place, with an intention of con- 
 tinuing to reside there for an unlimited time. This is a 
 description of the circumstances which create or constitute 
 a domicile, and not a definition of the term. There must 
 be a residence freely chosen, and not prescribed or dictated 
 by any external necessity, such as the duties of office, the 
 demands of creditors, or the relief of illness; and it must 
 be a residence fixed not for a limited period or particular 
 purpose, but general and indefinite in its future contem- 
 plation. It is true that residence, originally temporary 
 or intended for a limited period, may afterwards become 
 general and unlimited, and in such a case so soon as the 
 change of purpose or animus manendi can be inferred, 
 the fact of domicile is established . 
 
 " The domicile of origin may be extirpated by act of 
 law: as, for example, by sentence of death or exile for life, 
 Avhich puts an end to the status civilis of the criminal; but 
 it cannot be destroyed by the will and act of the party. 
 Domicile of choice, as it is gained animo et facto, so it 
 may be put an end to in the same manner." 
 
 From this able description of the notion of domicile in 
 English law, it is at once made clear that domicile must be 
 carefully distinguished from nationality. 
 
 The political and the civil status of an individual are 
 entirely separate conceptions. 
 
 Voluntary residence by an individual in a given country 
 with the intention of remaining there permanently, or for 
 an indefinite period, is sufficient to create in such person a 
 domicile of choice, quite independently of any change in
 
 16 ADMINISTRATION OF FOREIGN ESTATES. 
 
 allegiance or of any knowledge by such person of the legal 
 effect of such residence. 
 
 In view of the decisions in Re Johnson, Roberts v. 
 Alt. -Gen. and in Re Bowes, Bates v. Wengel (referred 
 to on p. 31), some authorities consider this statement of the 
 effect of voluntary residence should be qualified by the 
 addition of these words, " provided that the law of such 
 country recognises and gives effect to domicile in the 
 English sense of the term." 
 
 Considerations are, however, advanced on p. 32, infra, 
 which in the writer's opinion show that this view is not 
 correct, and that so far as the "acquisition" (as distin- 
 guished from the legal effect) of a domicile of choice is 
 concerned, the law is correctly stated in the text. 
 
 In spite of the very exact language of Lord Westbury 
 already referred to, the view that change of domicile is 
 wholly distinct from change of nationality and political 
 allegiance has not always been made clear in reported 
 cases. 
 
 Formerly, it was indeed held that the political status of 
 a British subject could not be so far discarded as to enable 
 him to acquire a new civil status. This was the interpre- 
 tation of the old rule, "nemo potest exuere patriam" 
 
 Several of the early cases dealing with matters of suc- 
 cession prior to the decision of the Appellate Court in 
 Stanley v. Bernes (1831), 3 Hagg. Eccl. 447, completely 
 disregarded the acquisition of the foreign domicile by a 
 British subject, and regulated the matters in dispute 
 purely by the English territorial law. 
 
 Great reluctance was shown in allowing a British subject 
 to acquire a domicile in a foreign country, and different 
 considerations were held to be applicable according to 
 whether the country of choice belonged to the British 
 Empire or was entirely foreign.
 
 DOMICILE. 17 
 
 In formulating these differences some judges greatly 
 confused the question of civil status and political allegi- 
 ance, and by the constant quotation of their judgments 
 much false reasoning has been introduced even into modern 
 cases. For instance, in the case of Whicker v. Hume 
 (1858), 7 H. L. C. 124, Lord Cranworth says (at p. 159 
 of the report): 
 
 " I think it is not inexpedient in questions of this sort 
 to say that I think that all Courts ought to look with the 
 greatest suspicion and jealousy at any one of these ques- 
 tions as to change of domicile into a foreign country' 
 You may much more easily suppose, that a person having 
 originally been living in Scotland, a Scotchman, means 
 permanently to quit it and come to England, or vice versa, 
 than that he is quitting the United Kingdom in order to 
 make his permanent home where he must for ever be a 
 foreigner, and in a country where there must always be 
 those difficulties which arise from the complication which 
 exists, and the conflict between the duties that you owe to 
 one country and the duties which you owe to the other. 
 Circumstances may be so strong as to lead irresistibly to 
 the inference that a person does mean ' quatenus in iUo 
 exuere patriam.' But that is not a presumption at which 
 we ought easily to arrive, more especially in modern times, 
 when the facilities for travelling, and the various induce- 
 ments for pleasure, for curiosity, or for economy, so fre- 
 quently lead persons to make temporary residences out of 
 their native country." 
 
 And again in Moorhouse v. Lord (1863), 10 H. L. C. 
 272, similar expressions occur. 
 
 The decision of the lower Court (Vice-Chancellor Kin- 
 dersley) is reported sub nom. Lord v. Kelvin (1859), 4 
 Drew. 366, and is remarkable for a detailed exami- 
 nation of the ancient Latin definitions of domicile, and a 
 
 B. 2
 
 18 ADMINISTRATION OF FOREIGN ESTATES. 
 
 learned commentary upon them. In the House of Lords, 
 however, the case is reported as Moorhouse v. Lord, and 
 although the learned Vice-Chancellor's decision is affirmed 
 and the appeal dismissed, yet in their judgments certain 
 judges use expressions which in our view exhibit a loose- 
 ness of phrasing, and which if literally understood are 
 certainly not the law of England. 
 
 Lord Cranworth says (at p. 283): 
 
 " In order to acquire a new domicile, according to an 
 expression which I believe I used on a former occasion, 
 and which I shall not shrink on that account from repeat- 
 ing, because I think it is a correct statement of the law, a 
 man must * quatenus in itto exuere patriam.' It is not 
 enough that you merely mean to take another house in 
 some other place, and that on account of your health or for 
 some other reason you think it tolerably certain that you 
 had better remain there all the days of your life. That 
 does not signify; you do not lose your domicile of origin 
 or your resumed domicile merely because you go to some 
 other place that suits your health better, unless, indeed, 
 you mean either on account of your health or for some 
 other motive to cease to be a Scotchman and become an 
 Englishman or a Frenchman or a German. In that case, 
 if you give up everything you left behind you and establish 
 yourself elsewhere, you may change your domicile. 
 
 " But it would be a most dangerous thing to say that 
 by going and living elsewhere you make yourself a 
 foreigner instead of a native." 
 
 Lord Chelmsford agreed, and quoted the words of Lord 
 Cranworth in Whicker v. Hume, which we have already 
 examined. Lord Kingsdown in the same case took the 
 same view, and quoted with approval a statement made by 
 Dr. Lushington in the case of Hodgson v. De Beauchesne,
 
 DOMICILE. 19 
 
 12 Moo. P. C. C. 285. He says: " A man must intend to 
 become a Frenchman instead of an Englishman." 
 
 Against these statements we have the judgments in 
 Udny V. Udny. Lord Hatherley (the Lord Chancellor) 
 says at the conclusion of an examination of the facts of 
 that case and of the authorities bearing thereon (p . 452 of 
 the report): 
 
 " I have stated my opinion more at length than I should 
 have done were it not of great importance that some fixed 
 common principles should guide the Courts in every; 
 -country on international questions. In questions of in- 
 ternational law we should not depart from any settled 
 decisions, nor lay down any doctrine inconsistent with 
 them. I think some of the expressions used in former 
 cases, as to the intent ' exuere patriam,' or to become ' a 
 Frenchman instead of an Englishman,' go beyond the 
 question of domicile. The question of naturalisation and 
 of allegiance is distinct from that of domicile. A man 
 may continue to be an Englishman and yet his contracts 
 and the succession to his estate may have to be determined 
 by the law of the country in which he has chosen to settle 
 'himself." 
 
 In the same case Lord Westbury (at p. 459) says: "I 
 am obliged to dissent from a conclusion stated in the last 
 edition of that useful book (Story's Conflict of Laws), 
 and which is thus expressed, ' The result of the more recent 
 English cases seems to be that for a change of national 
 domicile there must be a definite and effectual change of 
 nationality.' 
 
 " In support of this proposition the editor refers to some 
 words which appear to have fallen from a noble and learned 
 lord in addressing this House in the case of Moorhouse v. 
 Lord, when in speaking of the acquisition of a French 
 domicile, Lord Kingsdown says : ' A man must intend to 
 
 2 (2)
 
 20 ADMINISTRATION OF FOREIGN ESTATES. 
 
 become a Frenchman instead of an Englishman.' These 
 words are likely to mislead if they were intended to signify 
 that for a change of domicile there must be a change of 
 nationality that is, of natural allegiance. That would 
 be to confound the political and civil status of an 
 individual, and to destroy the difference between patria 
 and domicilium." 
 
 This was the view definitely taken in the case of Haldane 
 v. Eckford (1869), 8 Eq. Gas. 631, the head-note to which 
 is as follows: 
 
 " The question of domicile is distinct from that of 
 naturalisation and allegiance, and in order to effect a 
 change of domicile it is not necessary that a man should 
 do all in his power to divest himself of his original 
 nationality (exuere patriam}, it being sufficient that there 
 should be a change of residence of a permanent character 
 voluntarily assumed." 
 
 Sir William Milbourne James (Vice-Chancellor) in his 
 judgment says: 
 
 " The law is very clearly laid down in the judgment of 
 Lord Westbury in the case, to which I have been referred 
 on both sides, of Udny v. Udny in the House of Lords. 
 He says: ' Domicile of choice is a conclusion or inference 
 which the law derives from the fact of a man fixing volun- 
 tarily his sole or chief residence in a particular place with 
 an intention of continuing to reside there for an unlimited 
 time. This is a description of the circumstances which 
 create or constitute a domicile and not a definition of the 
 term. There must be a residence freely chosen and not 
 prescribed or dictated by any external necessity such as the 
 duties of office, the demands of creditors, or the relief from 
 illness, and it must be a residence fixed not for a limited 
 period or particular purpose, but generally and indefinite 
 in its future contemplation. It is true that residence
 
 DOMICILE. 21 
 
 originally temporary, or intended for a limited period, 
 may afterwards become general and unlimited, and in such 
 a case, as soon as the change of purpose, or animus 
 manendi, can be inferred, the fact of domicile is estab- 
 lished.' 
 
 " That is the rule as laid down by Lord Westbury. In 
 substance it is the same as the rule laid down in the same 
 ase by the Lord Chancellor, and differs but slightly, I 
 think, from the rule as laid down by Lord Chelmsford. I 
 agree that it must be considered as differing from the rule 
 as laid down in what may be called the intermediate class 
 of cases in the Exchequer. In Re Capdeville, Att.-Gen. 
 v. Countess de Wahlstatt, following the decision in the 
 House of Lords (Moorhouse v. Lord), in which, if I may 
 use the expression, that unfortunate term ' exuere patriam ' 
 was introduced, as if it were a question of nationality and 
 not of more or less permanence of residence. It does differ 
 from those cases, but it differs in bringing back the law to 
 that which (in my opinion) was always, before those cases, 
 considered to have been the law, and evidently is the law 
 as laid down by the treatise writers, viz., that domicile 
 was to be considered as changed whenever there was a 
 change of residence of a permanent character voluntarily 
 assumed." 
 
 The same point of view is further shown in the subsequent 
 case of Douglas v. Douglas, Douglas v. Webster (1871), 
 L. H. Eq. Cas., Vol. 12, where it was stated in argument 
 that: " It was not necessary, on the authority of Udny v. 
 Udny, for the testator in that case, whose domicile of 
 origin was Scotch, to abandon his character as a Scotch 
 proprietor because, as Lord Westbury pointed out in that 
 case, political status and domicile are two distinct things. 
 Then follows the important case of Haldane v. Eckford 
 above referred to, important both because the facts were
 
 22 ADMINISTRATION OF FOREIGN ESTATES. 
 
 very similar to the facts here, and also as explaining and 
 putting on a proper footing the decision in Moorhouse v. 
 Lord, where certain loose expressions occasioned some 
 misconception as to the state of law which also ran through 
 the decisions in the other cases in Re Capdeville and Att.- 
 Gen. v. Countess de Wahlstatt." 
 
 In his judgment in this case Sir John Wickens, V.-C., 
 said: 
 
 " It seems to me, as it did to Vice-Chancellor James in 
 Haldane v. Eckford, that the intention required for a 
 change of domicile, as distinguished from the action em- 
 bodying it, is an intention to settle in a new country as a 
 permanent home, and that if this intention exists and is 
 sufficiently carried into effect certain legal consequences 
 follow from it, whether such consequences were intended 
 or not, and perhaps even though the person in question 
 may have intended the exact contrary." 
 
 Since when, the exact case the Vice-Chancellor appa- 
 rently had in mind has been so decided. 
 
 In the case of King v. Foxwell (1876), 3 Ch. D. 518, 
 Jessel, M. R., it was held that where a native of this 
 country possessing a domicile of origin here became domi- 
 ciled and naturalised abroad, and subsequently abandoned 
 his foreign domicile and acquired no further domicile of 
 choice, his English domicile of origin reverted even 
 though he retained his foreign nationality. 
 
 Regardless of these authorities the judgments in the 
 House of Lords in two recent cases on domicile (Winans 
 v. Att.-Gen., [1904] A. C. 287, and Huntley v. Gaskell, 
 [1906] A. C. 56) contain references to the older views, 
 and in the writer's opinion again tend to cloud the true 
 nature of domicile in English law (a) . 
 
 (a) See aim Bentwich, Domicile and Succession, at p. 27.
 
 DOMICILE. 23 
 
 In Winans v. Att.-Gen., Lord Macnaghten says (at 
 p. 291): "A change of domicile is a serious matter 
 serious enough when the competition is between two domi- 
 ciles both within the ambit of one and the same kingdom 
 or country more serious still when one of the two is alto- 
 gether foreign. The change may involve far-reaching 
 consequences in regard to succession and distribution and 
 other things which depend on domicile." 
 
 Lord Lindley, on the other hand, in his dissenting judg- 
 ment (as to the true interpretation to be put upon the 
 admitted facts of the case) puts the matter upon what he 
 considers the proper footing. He says (at p. 299): 
 
 " An intention to change nationality, to cease to be an 
 American and to become an Englishman, was said to be 
 necessary in Moorhouse v. Lord, but that view was decided 
 to be incorrect in Udny v. Veiny." 
 
 In Huntley (Marchioness of) v. GasJcell, supra, Lord 
 Halsbury says: " I myself think in my view of the law 
 that it is expressed very well indeed by Lord Curriehill, 
 approved and quoted by Lord President Inglis in the case 
 of Steel v. Steel. ' It is, I think/ says the learned Judge, 
 ' by no means an easy thing to establish that a man has 
 lost his domicile of origin, for, as Lord Cranworth said in 
 the case of Moorhouse v. Lord, " In order to acquire a new 
 domicile a man must intend quatenus in illo exuere 
 patriam," and I venture to translate these words into 
 English as meaning that he must have a fixed intention or 
 determination to strip himself of his nationality, or, in 
 other words, to renounce his birthright in the place of his 
 original domicile.' The serious character of such a change 
 is very well expounded by Lord Curriehill in the case of 
 Donaldson V. M'Clure. He says: ' To abandon one domi- 
 cile for another means something far more than a mere 
 change of residence. It imports an intention not only to
 
 24 ADMINISTRATION OF FOREIGN ESTATES. 
 
 relinquish those peculiar rights, privileges, and immunities 
 which the law and constitution of the domicile confer on 
 the denizens of the country in their domestic relations, in 
 their business transactions, in their political and municipal 
 status, and in the daily affairs of common life, but also the 
 laws by which the succession to property is regulated after 
 death. The abandonment or change of a domicile is there- 
 fore a proceeding of a very serious nature, and an intention 
 to make such an abandonment requires to be proved by 
 satisfactory evidence.' 
 
 " My Lords, I do not believe that it could be expressed 
 more clearly or distinctly than it is in that judgment 
 . . . ," and later (at p. 69): " To my mind it is perfectly 
 clear that he knew, because it had been explained to him 
 he was not without advice what the distinction was 
 and what domicile meant, and the assurance that he was 
 an Englishman contented him and satisfied him, and he 
 did no more. 
 
 " For my own part I cannot entertain the smallest doubt 
 that from that moment he had satisfied himself that he 
 was, as he intended to be, an Englishman, and retained 
 his English domicile." 
 
 Again, Lord Robertson says (at p. 71): 
 
 " But, speaking of the present case, it seems to me that 
 this attempt to turn a strenuous English banker and great 
 landed proprietor into a Scotchman is, on the face of the 
 broad facts, hopeless." 
 
 These loose expressions show a tendency to revert to the 
 former confusion of the ideas of domicile and nationality. 
 
 It is submitted tknt these statements arc <|iiite contrary 
 to the great bulk of the English decisions, and conflict 
 with the established Kn-li-h rule on the subject (6). 
 
 (6) A learned writer in the Law Time*, December 28th, 1912, 
 Mr. N. W. Hoyloa, has an interesting article on the above
 
 DOMICILE. 25 
 
 Their inclusion in judgments of the Supreme Court of 
 Appeal is all the more regrettable as they are apt to pre- 
 vent the lower Courts from taking a contrary view, and, 
 as we believe, a more correct view in future cases. 
 
 They have already profoundly influenced a Chancery 
 judge in the case of In re James, James v. James, 98 
 L. T. 438, where Mr. Justice Eve, after quoting Lord 
 Macnaghten's words in Winans v. Att.-Gen., quoted in 
 full and apparently approved the words of Lord Halsbury 
 in the later case of Huntley v. Gaskell. After doing so, 
 he says: "Now, what I have to ask myself here is this: 
 Did this poor man, suffering as he was, from a very serious 
 condition of his health did this poor man in acting as 
 he did in going to South Africa and remaining there as 
 he did, except for a short visit, intend to renounce the 
 rights and privileges and immunities which, as Lord 
 Halsbury t:aid, quoting Lord Cranworth, constitute his 
 birthright ? " 
 
 And further, he concludes his judgment by saying: " I 
 have no hesitation in saying that the plaintiffs have failed 
 to discharge the onus on them to show that the plaintiff 
 was a domiciled Englishman." 
 
 From this, however, it must not be assumed that the 
 case of Huntley v. GasJcell has no bearing of importance 
 upon the law of domicile. It is undoubtedly an authority 
 of the very highest value for showing that the relinquish- 
 ment of a domicile of origin in favour of a domicile of 
 choice is a serious step, and must be definitely proved by 
 unequivocal inferences before the Courts will give effect 
 thereto. 
 
 Mr. Hoy lea treats Lord Halsbury 's remarks as mere dicta, and criticises 
 Mr. Bentwich's comments on these cases. In the writer's view, 
 Mr. Bentwich's comments are amply justified, and for the reasons 
 given in the text it is submitted that Lord Halsbury's judgment has 
 tended to confuse the subject.
 
 26 ADMINISTRATION OF FOREIGN ESTATES. 
 
 Domicile must also be clearly distinguished from resi- 
 dence. Residence in itself, even for an extremely long 
 period, is insufficient. There must be the animus 
 manendi. The element of intention is just as essential as 
 the fact of residence . We again turn to the words of Lord 
 Westbury, this time from the case of Bell \. Kenned//, 
 L. R. I. Scotch Appeals, 320, where he says: 
 
 "Residence and domicile are two perfectly distinct 
 things. It is necessary in the administration of the law 
 that the idea of domicile should exist, and that the fact of 
 domicile should be ascertained in order to determine which 
 of two municipal laws may be invoked for the purpose of 
 regulating the rights of the parties. We know very well 
 that succession and distribution depend upon the law of 
 domicile. Domicile, therefore, is an idea of law. It is 
 the relation which the law creates between an individual 
 and a particular locality or country." 
 
 Again at p. 321: 
 
 " For although residence may be some small primd facie 
 proof of domicile, it is by no means to be inferred from 
 the fact of residence that domicile results, even although 
 you do not find that the party had any other residence in 
 existence or in contemplation." 
 
 Domicile must further be distinguished from the ex- 
 pression "home"(c). It may, of course, frequently 
 happen that a place where a man has his "home," in the 
 sense of his principal residence, is also the place where he 
 resides permanently with no intention of removing there- 
 from, and if so, such place would no doubt be his domicile. 
 
 It is, however, quite possible for a man to have more 
 than one homo, and ho is domiciled somewhere \. n if he 
 has no home at all. 
 
 () See Laws of England, Art. " Conflict of Laws," at p. 183, 
 sect. 280.
 
 DOMICILE. 27 
 
 The English domicile of choice may frequently coincide 
 with the idea of a man's home, but, strictly speaking, the 
 expressions are not identical in meaning and cannot be 
 interchanged. 
 
 Such then in outline is the notion of domicile in English 
 law, and we are now in a position to deal briefly with the 
 various rules for determining the domicile of a particular 
 individual and the authorities by which they have been 
 established in this country. 
 
 / 
 Domicile of Origin. 
 
 To every individual at birth the law ascribes a domicile 
 of origin. Such domicile of origin in the case of a legiti- 
 mate child is the domicile of the father at the time of the 
 child's birth. The domicile of origin of an illegitimate 
 child is the domicile of the mother at the time of the 
 birth (d) . It is submitted that the rule is correct as stated 
 above. Some authorities seem to state that if the father 
 of an illegitimate child is known, such child would in law 
 have his father's domicile. However, in Re Johnson, 
 Roberts v. Att.-Gen., the deceased was the illegitimate 
 daughter of a Maltese woman and a domiciled English- 
 man. Held, that her domicile of origin was Maltese, 
 i.e., the domicile of her mother at date of birth in 
 accordance with the ordinary rule, although the father was 
 known (e). 
 
 The same would apply in the case of a posthumous child. 
 The domicile of origin of a child legitimated (per subse- 
 
 (d) The question of legitimacy and the exact test to apply is dealt 
 with in detail in a later chapter, at p. 143. 
 
 (e) But see He Wright's Trusts, 2 K. & J. 595, as an authority for the 
 statement that if the paternity of the father is fixed hy acknowledgment 
 or otherwise, the domicile of the father attaches to the child. (See 
 Foote, p. 53 (w).)
 
 28 ADMINISTRATION OF FOREIGN ESTATES. 
 
 quens matrimonium) would be that of the father at 
 birth (/). 
 
 Domicile of Dependent Persons. 
 
 Dependent persons take the domicile of those upon 
 whom they are legally dependent. For instance, a minor 
 legitimate that of the father, otherwise of the mother; 
 a married woman that of her husband. 
 
 Domicile of Choice. 
 
 A domicile of choice can be obtained by the necessary, 
 residence and intention of indefinite stay. In this con- 
 nection some authorities would add, provided the local 
 requirements, if any, were complied with. See, however, 
 the same discussed on p. 30, and later fully with reasons 
 at p. 32, infra. 
 
 If the person is independent, this can be obtained by 
 the fulfilment of the above two conditions of fact and 
 intention. If dependent, the domicile changes with that 
 of the person upon whom they are dependent, unless the 
 change is made dishonestly or is expressly intended not to 
 affect the domicile of the dependent person. 
 
 For instance, a wife's domicile changes with that of her 
 husband, an infant with that of his father, a ward with 
 that of his guardian (in the latter case, however, only if 
 the change is made with the utmost boma fides, and would 
 be for the ward's benefit) . 
 
 There are a large number of cases where, although an 
 individual does in fact reside in a particular country even 
 for a great length of time with apparently the intention of 
 remaining there indefinitely, he is considered to retain the 
 
 (/) The rule* relating to legitimation , and the special F.nfflinh treat- 
 ment of frffitimalio per mhnrqttfnK matritHonium, are dealt with in the 
 chapter dealing with legitimacy, at p. 149.
 
 DOMICILE. 29 
 
 domicile possessed at the commencement of such residence 
 unless there be strong proof to the contrary. Such cases 
 are those of consuls and members of the diplomatic service, 
 soldiers, sailors, and others in the service of the State, and, 
 generally speaking, any person whose residence abroad is 
 not strictly voluntary. 
 
 Amongst others, see Ait. -Gen. v. Napier (1851), 20 
 L. J. Ex. 173, 175; Niboyetv. Nibvyet (1878), 4 P. D. 
 1; Ex parte Cunningham (1884), 13 Q. B. D. 418 et seq. 
 
 In reality such cases afford us no exception to the general 
 rule for the acquisition of a domicile of choice, as there is 
 no sufficient animus manendi ; whilst if there were a 
 definite intention sufficient to amount to animus manendi, 
 it is submitted a foreign domicile would be acquired, even 
 by a soldier or a sailor or other person referred to above. 
 As whatever the motive, if fact of residence and intention 
 to remain indefinitely coincide a domicile of choice would, 
 it is submitted, be held to have been acquired. 
 
 For instance, if a man is told that he must go abroad 
 for his health or die, his going does not, without intention 
 of permanent residence, work a change of residence. 
 (Att.-Gen. v. Potinger (1861), 30 L. J. Ex. 284; John- 
 stone v. Beattie, 10 Cl. & F. 42; Firebrace v. Firebrace, 
 4 P. D. 63 65; Moorhouse v. Lord, supra; and see 
 Hosklns v. Mathews, quoted and approved in Re James, 
 'James v. James, supra.) 
 
 " The theory apparently is, that the de cujus is not a 
 free agent. To acquire a new domicile of choice there 
 must be an opportunity of exercising a choice, for if there 
 is no alternative it cannot be said there is volition or 
 choice." (See Lopes, L. J., in Urquhart v. Butter field, 
 37 Ch. D. 385.) 
 
 But, on the other hand, there is a dictum of Lord Hals- 
 bury in Winans v. Att.-Gen. (at p. 288), where he says:
 
 30 ADMINISTRATION OF FOREIGN ESTATES. 
 
 " If I were satisfied that he (the testator) intended to 
 make England his permanent home I do not think it 
 would make any difference that he had arrived at the 
 determination to make it so by reason of the state of his 
 health, as to which he was very solicitous.' This is pro- 
 bably a correct view. (See Hoskins v. Mathews, supra.) 
 Whatever the motive, if there is a bond fide intention of 
 permanent residence coupled with such residence, domicile 
 will be acquired. 
 
 It is further submitted that the law of the country 
 where the domicile of choice is acquired has no bearing 
 upon the question of whether or not a domicile has been 
 acquired there within the meaning of the English law, 
 although under such circumstances no greater capacity will 
 be acquired than the foreign law will allow. 
 
 In many countries a local domicile cannot be acquired 
 in the eyes of the lex situs by a foreigner without some 
 form of permission or authorisation being obtained from 
 the government of that country. In such cases, the ques- 
 tion arises will residence in such a country under conditions 
 sufficient to impute a domicile of choice by English law, 
 be prevented from having this effect owing to the local 
 law containing provisions of a varying nature under which 
 the person would not in such country be held to have 
 acquired a local domicile. 
 
 In dealing with this subject Professor Westlake says 
 (at p. 353 of his work, to which we have already 
 referred): 
 
 "If an establishment be made in any country in such 
 manner that by English law it would fix the domicile 
 there, still no effect which the law of that country does not 
 allow to it, can be allowed to it in the character of domicile 
 in England. In other words, no one can acquire a personal 
 law in the teeth of that law itself.'
 
 DOMICILE. 31 
 
 And Professor Dicey, in his second edition of the 
 Conflict of Laws, at p. 118, commenting upon this passage 
 of Mr. Westlake's, says: 
 
 " When it has been found by the English Court that the 
 deceased has acquired or possessed a domicile in the 
 English sense of the term, the question of its legal effect 
 must be answered solely with regard to the foreign law, 
 and this without any reference to the legal effect of the 
 domicile under the law of England see also Laws of 
 England, Art. Conflict of Laws, sect. 296, at pp. 193, 
 194." The point has arisen indirectly in the recent case 
 of In re Bowes, Bates v. Wengel (1906), 22 T. L. R. 
 711, decided by Mr. Justice Swinfen Eady. 
 
 The head-note to that case is as follows: " In re Bowes, 
 Bates v. Wengel (1906), 22 T. L. E. 711. 
 
 "A British subject born in England lived permanently 
 in France so as to be in fact domiciled there, although he 
 had not acquired a legal domicile there in the manner 
 prescribed by French law, and which only recognised a 
 legal domicile. He died in France having made his will. 
 Held, that as to construction and administration the will 
 was governed by English law. In re Johnson followed." 
 
 In that case the testator had made an English will con- 
 stituting an English trust and power of appointment with 
 residuary bequests to legatees and charitable institutions 
 in the United Kingdom. Evidence was given that the 
 French Courts would in like circumstances apply the 
 English law. 
 
 It was held by Mr. Justice Swinfen Eady that the case 
 fell exactly within the decision of In re Johnson, Roberts 
 v. Att.-Gen., and he accordingly decided that the will 
 was to be governed by English law. 
 
 The case bears out the statement in the text that 
 although according to the local foreign law no legal
 
 32 ADMINISTRATION OF FOREIGN ESTATES. 
 
 domicile has been acquired the acquisition of the foreign 
 domicile remains unaffected, but the legal effect of that 
 acquisition is no greater here than it would be under the 
 same circumstances in the foreign Court. 
 
 In other words, although the English Courts will treat 
 the deceased as having a foreign domicile, and will look to 
 the law of the country of the domicile as the criterion 
 governing the personal estate, they will, in doing so, take 
 into account the foreign view of the deceased's domicile, 
 and will only apply such rules of law as the foreign Courts 
 hold applicable. 
 
 The important point being that the reference to the 
 foreign law will still take place, and that law will govern, 
 unless and until it is shown that by some provision of the 
 foreign law another rule will be held to apply, as was the 
 decision in the case of Re Bowes quoted above. 
 
 The decision so far as English law is concerned is merely 
 an instance of the doctrine that in applying a foreign law 
 the English Courts will apply whatever law the foreign 
 Courts would themselves apply, and depends upon that 
 doctrine for its accuracy. 
 
 The relation of this case to the " renvoi " doctrine is 
 considered on a later page. 
 
 Domicile in Non-Christian Countries. 
 
 Here, as in other branches of the personal law, entirely 
 different considerations apply where the country of 
 residence is a non-Christian country. In such cases the 
 English rule may be shortly stated as follows: 
 
 Where a Western -born person settles permanently in 
 an Eastern non-Christian country, although a domicile in 
 fact may be obtained in that country, yet the personal law 
 to which such person becomes thereby subject is not the 
 general law applying to the non-Christian population of 
 such country, but the special law applying to the trading
 
 DOMICILE. 33 
 
 or residential community of which he becomes a member, 
 and which in many Eastern countries would be his own 
 national law. 
 
 The authorities on the point are conflicting, and the 
 matter cannot be said to be beyond doubt. (See Tootal's 
 Trusts (1883), 23 Ch. D. 532; Maltassv. Maltass (1844), 
 1 Eob. Eccl. 67 ; Abd-ul-Messih v. Farra (1888), 13 
 A. C. 431. 
 
 The best known English text-book writers, however, 
 seem to agree with the statement of the rule expressed 
 above; thus, in Piggott on Exterritoriality, 2nd ed., 1907, 
 at p. 232, the rule is stated to be as follows: 
 
 " The law which regulates a man's personal status must 
 be that of the governing power in whose dominions his 
 intention is permanently to reside, or must be so recog- 
 nized and established by that governing power as to be 
 in fact the law of the land." 
 
 And Professor Westlake, in the fifth edition of his 
 book on Private International Law, takes the same view 
 at p. 348, and in sect. 243 of his work on that page gives 
 an admirable exposition of the English case law on the 
 subject. 
 
 An alternative method of dealing with the difficulty 
 would be for the English Courts to hold that domicile 
 cannot be acquired in a non-Christian country at all, in 
 which case the personal law of the party concerned would 
 be that of the domicile of origin. 
 
 Domicile of Choice (continued). 
 
 When a dependent person becomes independent, the last 
 domicile is always retained until changed by the act and 
 choice of the person so becoming independent. 
 
 Thus, for example: 
 
 A widow retains her late husband's domicile. 
 
 B. 3
 
 34 ADMINISTRATION OF FOREIGN ESTATES. 
 
 A divorced woman also. 
 
 A person sui juris that possessed by him during his 
 minority. 
 
 We have already seen, from Lord Westbury's judgment 
 in Vdny v. Udny, that no person can be without a 
 domicile, and that unless a definite domicile of choice has 
 been acquired, the domicile of origin applies, and attaches 
 or re-attaches between the abandonment of one domicile 
 of choice and the acquisition of another domicile of choice. 
 It would seem to be the better opinion that the domicile 
 of origin applies where an individual leaves a domicile 
 of choice, animo non revertendi, and is in itinere towards 
 another country where he intends to acquire a fresh 
 domicile of choice. (Dicey, at p. 116. See, however, 
 Westlake, sect. 260 (1), (2), (3) and (4)(0).) 
 
 In addition to the above defined rules there are many 
 presumptions in English law with regard to domicile. 
 They are, however, only presumptiones juris and not pre- 
 sumptiones juris et de jure they can therefore always 
 be displaced by evidence to the contrary. 
 
 For instance, voluntary residence in a country implies 
 a presumption of domicile there, and a known domicile 
 implies a presumption that such domicile is continued, 
 but evidence may always be produced which shows a con- 
 trary intention. 
 
 We need not consider in detail the above rules for deter- 
 mining whether a particular individual is domiciled in a 
 particular country or not. 
 
 Wo see the test to apply, and it becomes, as a rule, 
 
 lg) It is a little difficult to understand the principle upon which it is 
 contended thnt journeying towards a given place is equivalent to 
 residence there. It would not be sufficient to acquire an original 
 domicile of choice.
 
 DOMICILE. 35 
 
 largely a question of fact whether a particular individual 
 conforms to the test or not (h) . 
 
 What interests us far more for our present purpose is 
 the relation of the question of domicile to matters of suc- 
 cession. We have seen that in this country the rule 
 "mobUia sequuntur personam" in its reference to the 
 questions the subject-matter of this treatise is interpreted 
 to mean, "succession to the moveable property of a de- 
 ceased person is governed by the law of his domicile at 
 the date of his death." 
 
 We wish to study what precisely this rule means, and 
 its principal application at the present time in English 
 law . 
 
 In English law it is the law of the domicile that governs 
 the personal rights of an individual and which determines 
 his majority or minority, his marriage, succession, testacy 
 or intestacy. 
 
 We are, however, only concerned in this work with 
 domicile in its relation to the succession to and the 
 administration of the estates of deceased persons, and 
 important though the other branches of the personal law 
 are in practice, they are outside the scope of this treatise. 
 AVe have occasion in this work to study the personal law in 
 relation to the rights over property, the capacity to dispose 
 of property on death, capacity to make a will, and capacity 
 to succeed both as devisee or legatee and as heres ab 
 intestato. 
 
 (h) It is largely upon this ground that the system of domicile is 
 attacked. The opponents of that system contend that it is frequently 
 a matter of extreme difficulty and great expense to determine the 
 domicile of a given individual. 
 
 3(2)
 
 CHAPTER III. 
 
 BRITISH NATIONALITY. 
 
 ALTHOUGH at first sight it may appear that English law 
 pays little or no attention to the nationality of a deceased 
 person, especially in cases of intestacy, the subject is im- 
 portant for two reasons. 
 
 First, in testate succession, the provisions of Lord 
 Kingsdown's Acts introducing the principle of locus regit 
 actum to the testamentary law apply only to British sub- 
 jects, i.e., only to those who are natural-born British 
 subjects, or who have become British subjects since birth 
 by means of naturalization. Secondly, in cases of in- 
 testacy, although the "administration" of such estates is 
 governed by reference to the lex fori, yet all questions of 
 succession will be referred to the lex domicilii, and as in 
 most Continental countries succession is determined by 
 reference to the national law, the Courts of this country 
 will themselves be concerned witli the nationality and the 
 national law of the deceased. 
 
 Nationality is the condition or status of an individual 
 in reference to the nation or State of which he is deemed 
 to be a citizen either by birth or naturalization. It is 
 upon the nationality of an individual that his political 
 status and natural allegiance depend- Whilst an indi- 
 vidual may be domiciled and thus possess a civil status in 
 one country, he may be invested, whether by birth or by 
 naturalization, with the political status or nationality of 
 another country. 
 
 The nationality of persons has played an import M in
 
 BRITISH NATIONALITY. 37 
 
 part in the development of private international law in 
 most Continental countries, where it has, as a rule, super- 
 seded domicile as the test of status and capacity. 
 
 It is the municipal or territorial law of each state which 
 determines the persons who are to be regarded as its 
 subjects. 
 
 The status of British nationality is determined solely 
 by English law. 
 
 By the common law of England everybody whose birth 
 happened within the allegiance of the Crown was "a 
 natural-born British subject; everyone else, except British 
 ambassadors and the children of the king, were aliens. 
 
 National character was incidental to birth only, and 
 provided that took place within the allegiance of the 
 Crown, including children born on English ships or in the 
 residences of members of the English diplomatic service, 
 the person became a natural -born British subject, regard- 
 less of the status or condition of his parents or either of 
 them. 
 
 The rules relating to the acquisition of British 
 nationality were frequently modified by statutes, and as 
 these have been codified and consolidated in the Naturali- 
 zation Act, 1870 (33 & 34 Viet. c. 14), as slightly 
 amended by the Naturalization Act of 1895, it is unneces- 
 sary here to set out the successive intermediate stages. 
 
 At the present day most questions of nationality in 
 English law depend upon the construction of that Act 
 although, as the measure is not retrospective, cases may 
 still arise when the old rules are applicable. 
 
 At common law the character of a natural-born British 
 subject was as a rule indelible. It was not competent to 
 the early citizens of Britain to throw off their allegiance 
 to the king. The old broad rule, "nemo potest exuere
 
 38 ADMINISTRATION OF FOREIGN ESTATES. 
 
 patriam " was then of practical force, and exceptions were 
 not frequently met with. 
 
 Nowadays, however, naturalization is of everyday 
 occurrence, and under the terms of the Naturalization 
 Acts, 1870 and 1895, aliens can become British subjects, 
 and British subjects are permitted to become citizens of 
 foreign States. 
 
 Private international law, as interpreted by the English 
 Courts, draws a distinction between those who are British 
 subjects and those who are not. The leading statutory 
 enactment upon the matter so far as British subjects are 
 concerned is Lord Kingsdown's Act, four sections out of 
 five of which relate solely to British subjects. 
 
 It is therefore of importance to consider the rules deter- 
 mining the nationality of a given individual. 
 
 According to English law every individual is either a 
 British subject or an alien. 
 
 To quote Professor Hill, "a child born of foreign 
 parents even during an accidental stay of a few days 
 (within British dominions) is fully and, until the age of 
 twenty -one years, irretrievably a British subject." 
 
 (a) Generally speaking, any person born within the 
 British dominions is a natural-born British subject that 
 is to say, he is a British subject at birth, and remains 
 such until he complies with the requisite formalities for 
 permission to change his nationality. 
 
 The rule is based upon the fundamental nature of the 
 conception of political status and the personal tie between 
 subject and sovereign. 
 
 Blackstone says: "Allegiance is the tie or ligament 
 which binds the subject to the king in return for that 
 protection which the king affords the subject. Moreover, 
 as a general rule, it accords with fact subject to certain
 
 BRITISH NATIONALITY. 39 
 
 rare exceptions the protection of the king is afforded to 
 every individual born within the British dominions." 
 
 Such an exception would arise were a portion of the 
 British dominions in hostile occupation at the time of 
 birth or where, although locally situate within the 
 empire, the birth took place in what is regarded as foreign 
 territory, such as a foreign ambassador's residence. 
 
 (b) Again, any person whose father was born in the 
 British dominions, or whose paternal grandfather was so 
 born, is a natural-born British subject wherever he may 
 happen to be born, provided his father has not since birth 
 lost his character of a natural-born British subject. 
 (Dicey, 2nd ed., p. 169.) 
 
 (c) Any person complying with the formalities of 
 naturalization becomes a British subject, and his infant 
 children residing with him become British subjects if the 
 same requisite formalities are observed. 
 
 (d) A woman marrying a British subject becomes 
 herself a British subject. 
 
 The rules are general, and a woman in English law is 
 deemed to take her husband's nationality on her marriage. 
 
 (e) Under the terms of the Naturalization Acts it is 
 open to any person who is a natural-born British subject, 
 who has during his minority acquired a nationality other- 
 wise than by his own act, on attaining his majority to 
 make a declaration of alienage, and thus either to acquire 
 a foreign or a British national character. 
 
 (f ) Nationality can also be resumed in the case of per- 
 sons sui juris who comply with the Naturalization Act. 
 
 Finally, it may be said that any person who is not a 
 British subject within the meaning of the above rules is in 
 the eyes of the English law an alien.
 
 CHAPTER IV. 
 
 ADMINISTRATION AND SUCCESSION IN ENGLISH LAW, IN- 
 CLUDING THE MEANING OF THE LAW OF THE DOMICILE 
 AND THE NATURE OF ITS APPLICATION IN MATTERS 
 RELATING TO THE ESTATES OF DECEASED PERSONS. 
 
 WE shall see in a later chapter that from a very early date 
 in English legal history the Courts have controlled the 
 administration of the estate of a deceased person. 
 
 The same is true of most civilised countries, and the 
 reason is probably that the State in each case" wishes to 
 ensure payment of the contribution to the National Ex- 
 chequer which is required before the persons entitled 
 obtain unlimited possession of the assets of the deceased. 
 In England little progress can be made towards collecting 
 or distributing the assets of a deceased person without an 
 application to the Courts or their officials (a) . 
 
 The whole of the proceedings required for obtaining 
 authority to deal with the estate of a deceased person, for 
 the payment of the estate duty or other tax on inherit- 
 ance, the freeing of the estate from all charges and debts, 
 form part of the process known in English law as adrainis- 
 ti nl ion in the largest sense of the word. 
 
 Such dealings with the estate, however, are in reality 
 foreign to succession. Befoiv tin- demised person could 
 have freely disposed of his property in his lifetime, the 
 process of freeing the estate from charges and debts would 
 
 (a) For CUMS* in which it ia not neoeraary to take out an English grant 
 of representation, two Trixtram & Cooto, Probate Practice, 14th ed. 
 p. 10; and Chapter VIII., infra.
 
 ADMINISTRATION AND SUCCESSION IN ENGLISH LAW. 41 
 
 have to be undertaken by him, and after his death his 
 representative, to use a Continental expression, " continues 
 the existence of the deceased for the purpose." 
 
 To these dealings the law of the domicile of the deceased 
 has no direct application. 
 
 Applications to the Courts of this or any other country 
 are governed by the lex fori, as are also all matters of 
 procedure and evidence, and no exception is made in the 
 case of applications to the Probate, Divorce and 
 Admiralty Division of the English High Court of Justice ., 
 
 It is also the lex fori which determines the nature and 
 extent of the grant of representation made by the Courts 
 of this country, and the person to whom such grant should 
 be made. 
 
 In fact, all steps in the administration of the estate of a 
 deceased person from the time when the legal personal 
 representative is invested with his powers to the time when 
 the surplus estate is available for distribution are, strictly 
 speaking, foreign to questions of succession properly so 
 called. 
 
 Such steps are of infinite variety according to the parti- 
 cular circumstances of each case, and depend on the nature 
 of the subject-matter and the charges affecting the estate, 
 and the number and nature of the creditors. 
 
 To all these various steps, the same law is applied as 
 would have prevailed had the deceased continued to live. 
 That is to say, each step is submitted to its appropriate 
 law 
 
 Applications to the Court to the lex fori ; 
 Validity of a debt to lex loci contractus ; 
 
 Effect of a charge on land to the lex loci rei sitce ; 
 and so on. 
 
 The creditors, for example, will retain all the rights 
 they had against the deceased in his lifetime, and will
 
 12 ADMINISTRATION OF FOREIGN ESTATES. 
 
 enforce them against the proper representative in likr 
 manner; the only difference to them being the power to- 
 control the administration, and if circumstances should 
 warrant it to apply to the Court for a grant of administra- 
 tion to enable one of their number to do so. 
 
 These, however, are administrative dealings with the 
 deceased's property by the person appointed to act as his 
 representative for the purpose. 
 
 When once, however, all duties, debts and charges have 
 been paid and discharged, the available surplus must l v 
 distributed amongst those entitled. 
 
 This distribution is succession properly so called. 
 
 What then is the precise application of the lex domicilU 
 to succession ? 
 
 With regard to succession (except in those cases to wlm-li 
 special attention is called at p. 134, infra) it is now an 
 established rule of English law that with regard to move- 
 ables, both testamentary and intestate succession depend 
 upon the law of the last domicile of the deceased. (See 
 Westlake, 5th ed., sect. 59; and De Bonneval v. De 
 Bonneval (1838), 1 Curteis, 856, in which Sir Herbert 
 Jenner says: " It is now settled by the case of Stanley v. 
 Bernes that the law of the place of domicile and not the- 
 lex loci rei sitce governs the distribution of and succession 
 to personal property in testacy and intestacy.") 
 
 With regard to immoveables the lex situs generally 
 prevails (b). 
 
 As to what are inoveables and what are immoveables the 
 lex situs decides (c) . 
 
 The English division of property into realty and por- 
 
 (b) For exceptions, aee Chapter XI., infra. 
 
 (e) The teat to apply is fully considered and explained at p. 49 ; and 
 aee Frekr v. Lord Carbery, L. R. 16 Eq. 461 (Lord Selborne).
 
 ADMINISTRATION AND SUCCESSION IN ENGLISH LAW. 43 
 
 sonalty is not a division on the basis of immoveables and 
 moveables, but is a division peculiar to English law. 
 
 The result is that certain classes of property in this 
 country may be immoveables for one purpose, and there- 
 fore governed by the lex situs, whilst at the same time 
 they may be personalty within the meaning of an English 
 Act of Parliament, such as Lord Kingsdown's Act, and as 
 such may be capable of being disposed of in accordance 
 with the law of the domicile, such as chattel interests in 
 land, or lands belonging to a partnership firm. 
 
 In the case of succession on intestacy, the rule that the 
 domicile of the deceased at date of death governs the 
 question of succession to the moveables, presents no diffi- 
 culty. We have seen the tests to apply to determine the 
 domicile, and it becomes a question of fact. Although 
 the facts may be disputed, once the domicile is ascertained, 
 there can be no conflict between the domicile at the date 
 of death and the domicile at any other period of the 
 deceased's existence. If a given individual is domiciled 
 for the greater part of his life in France and dies intestate 
 domiciled in England, the French domicile in earlier years 
 can have no bearing upon the question of succession to his 
 estate. His estate, in so far as it consists of immoveables, 
 will be regulated by the lex situs, and his moveables will 
 devolve in accordance with the law of the domicile at the 
 date of his death (which in the case given would be in 
 accordance with the English law). 
 
 With regard, however, to testamentary succession the 
 question is much more difficult. 
 
 To immoveables the lex situs applies regardless of the 
 domicile of the deceased, and need not, therefore, be 
 further considered. With regard to moveables, however, 
 we have seen from Lord Westbury's judgment in ~Udny 
 v. Vdny, that by English law the whole of a man's personal
 
 44 ADMINISTRATION OF FOREIGN ESTATES. 
 
 rights are governed by the law of his domicile. This 
 being so, we must first ascertain what matters are deter- 
 mined by reference to the domicile, and secondly the period 
 of time at which the domicile is to be ascertained . 
 And first 
 
 In matters of administration and succession the law of 
 the domicile determines such matters as the following: 
 
 (a) Is the succession testate or intestate ? 
 
 (b) If testate, whether probate is to be granted, and if 
 
 so, of which instrument if more than one ? 
 
 (c) The capacity of a testator to dispose of his property 
 
 and the respective effect of successive wills. 
 
 (d) If intestate, who is entitled to share in the estate ? 
 
 For instance, although if there is no testamentary 
 instrument at all left by the deceased, the succession is, of 
 course, wholly intestate, and the property is distributed 
 according to the rules governing an intestacy; yet if a 
 testamentary document is left, it will be to the law of the 
 domicile that reference must be made as to the validity of 
 such instrument. See Bremer v. Freeman, 10 Moo. P.O. 
 306 (Lord Wensleydale) : 
 
 " It lies upon the party propounding a will to prove 
 that the law of the domicile was such as to authorise a will 
 in that form. If he fails in that proof the will propounded 
 cannot be admitted to probate. That the law of the 
 testator's domicile at the time of making the will, and of 
 the death of the testator, when there is no intermediate 
 change of domicile, must govern the form and solemnities 
 of the will, can be no longer questioned (d}. The maxim, 
 ' mobilia sequuntur personam,' has long prevailed, and 
 
 (d) For the law ainoe Lord KingncUmn'i* Act, both where there is and 
 in not an intermediate chancre of domicile between the making of the 
 will and date of death, tee Chapter VII., at p. 93 and following pages.
 
 ADMINISTRATION AND SUCCESSION IN ENGLISH LAW. 45 
 
 whatever the origin of that doctrine may be, whether it 
 was derived from a fictitious annexation of moveables to 
 the person or from an enlarged policy growing out of their 
 transitory nature, it has so general sanction amongst all 
 civilised nations that it may now be treated as part of the 
 jus gentium. (See Story, sect. 330.) It follows from 
 this maxim that the post-mortuary distribution of the 
 effects of a deceased person must be made according to the 
 law of his domicile at the time of his death, if he dies 
 without a will, and it seems equally to follow that if the 
 law of the country allowed him to make a will, the will 
 must be in the form and with the solemnities which that 
 law required (e), and it was so decided in the case of 
 Stanley v. Bernes, which doctrine, we believe, has been 
 generally approved." (Story, sect. 468.) 
 
 Once it has been determined by such a test that the 
 deceased has left a formally valid will or testamentary 
 disposition, it must be seen whether any other document 
 is incorporated, and if so, whether probate should be 
 granted of one or both; further, although valid in form, 
 it must be shown that the testator had capacity to make 
 such a will. Capacity in English law is governed by the 
 law of the domicile (usually at the time of performing a 
 legal transaction, as to which see p. 97, infra}. 
 Secondly 
 
 In applying the law of the domicile to testate succession, 
 this question arises: 
 
 At what period of a man's life is the domicile to be- 
 ascertained for providing the index to his personal law ? 
 
 A given individual duly makes his will in accordance 
 with the law of his then domicile. Subsequently he 
 
 (e) Since Lord Kingsdown's Act the rule would appear to be as stated 
 on p. 95, infra.
 
 46 ADMINISTRATION OF FOREIGN ESTATES. 
 
 abandons his former domicile and acquires a fresh domi- 
 cile, either by the acquisition of a new domicile of choice 
 or by the re-attachment of his domicile of origin. 
 
 Is the will affected ? Which law governs ? 
 
 Or, again, having made his will the testator marries. 
 When will marriage revoke the will ? What is the test, 
 domicile at date of making the will or at the time of 
 marriage ? 
 
 At common law it was the law of the domicile at the 
 date of death which governed the validity of the will of 
 moveables of a deceased person. If, therefore, any change 
 of domicile supervened between the making of the will 
 and the time of death, the will would be affected, and would 
 be altogether invalid or only so far valid as the law of the 
 domicile at date of death permitted. 
 
 This rule operated very harshly upon British subjects 
 who had gone abroad, and having acquired a foreign 
 domicile by residence abroad made wills in accordance 
 with the forms of the law of their domicile of origin. 
 
 It was therefore amended by the Wills Act, 1861, known 
 as Lord Kingsdown's Act (/), which introduced for British 
 subjects only the principle of " locus regit actum " into 
 the English law relating to the formal validity of testa- 
 mentary documents. 
 
 The Act also provided (g] that a will otherwise valid 
 should not be rendered invalid as to form by a subsequent 
 change of domicile. 
 
 This latter provision is general in its operation, and 
 applies to foreigners as well as to British subjects. (Re 
 DeGroos, [1904] P. 269 (A).) 
 
 (/) 24 4 25 Viet. c. 114. 
 (y) Sect. 3. 
 
 (A) Notwithstanding the preamble of the Act and apparently limited 
 scope of it* provisions.
 
 ADMINISTRATION AND SUCCESSION IN ENGLISH LAW. 47 
 
 We deal later in detail with the form of wills and the 
 principles governing the Courts in reference to construc- 
 tion of wills, and the administration and distribution of 
 the estates of intestates, showing in each case the limits 
 and effects of the application of the law of domicile. 
 
 So far we have referred to the " law of the domicile " 
 without discussing the meaning attached to that expression 
 in English law . In the sense in which we use the expres- 
 sions law of the domicile and law of a given country, they 
 mean the whole of the law, whether it be the territorial 
 law or the rules of private international law, which the 
 Courts of the country would apply under the particular 
 circumstances. (See Westlake, sect. 59, 5th ed., at 
 p. 113.) Considerations are advanced in a subsequent 
 chapter for showing that this is the sense in which the 
 terms are used in English law. (See p. 91 and 
 Chapter XX.)
 
 CHAPTEK V. 
 
 THE RULES RELATING TO THE LOCAL SITUATION OF ASSETS 
 AND THE LEGAL CONSEQUENCES ARISING THEREFROM. 
 
 FOR the purposes of private international law, property is 
 divided into two classes, moveablee and immoveablee. Im- 
 moveables, speaking generally, are lands and houses and 
 all estates and interests therein, including leaseholds or 
 chattels real. 
 
 Moveables are all other property, whether tangible 
 objects which have an actual local situation, or choses in 
 action which have but a constructive situation. 
 
 It is important to consider the legal situation of these 
 two classes of property and of the various species of each 
 class in order to ascertain the system of law applicable. 
 
 Moreover, it is settled law that unless the estate of a 
 deceased person includes assets locally situate within the 
 jurisdiction of the English High Court of Justice, no 
 application for probate or letters of administration can be 
 successfully made here. 
 
 Most of the reported decisions upon the legal situation 
 of assets occur in connection with the incidence of English 
 death duties. However, as the liability to death duties 
 depends upon principles wholly independent of private 
 international law, and frequently turns upon the construc- 
 tion of the wording of Acts of Parliament, wo have 
 thought it advisable to deal with the legal situation of 
 assets in general in this chapter rather than to relegate tin- 
 subject entirely to the chapter in which death duties are 
 examined and discussed.
 
 EULES RELATING TO LOCAL SITUATION OF ASSETS. 49 
 
 We have seen that in private international law all pro- 
 perty is either immoveable or moveable. 
 
 The test of whether a particular species of property 
 belongs to the one class or the other depends upon the law 
 of the place where the property is legally situated. (Freke 
 v. Lord Carbery, supra.} 
 
 As Story says in his Conflict of Laws, p. 630, "the 
 question is not so much what are or ought to be deemed 
 ex sua natura, moveables or not, as what are deemed so 
 by the law of the place where they are situated." 
 
 As has been pointed out by Professor Dicey, at p. 497, 
 law in reality deals with rights over property, and the law 
 of the country where a given tangible thing is in fact 
 located can alone determine whether the rights over such 
 thing, be it land or obligations connected with it, or docu- 
 ments which embody such rights or obligations, shall be 
 treated as moveables or immoveables. 
 
 When the personal theory of law was accepted in this 
 country, it was only to the moveable property of a deceased 
 person that the law of the domicile was treated as having 
 any reference. 
 
 The old feudal ideas prevailed as to immoveable pro- 
 -perty, and no foreign law or custom was recognised in 
 reference to land or any interest or easement connected 
 therewith. We again quote Story: 
 
 " The common law declares that the law of the situs 
 shall exclusively govern in regard to all rights, interests 
 and titles in its immoveable property." 
 
 All rights over or relating to immovea.bles are therefore 
 governed, generally speaking, by the law of the country 
 where the immoveables are locally situated. This applies 
 almost universally in the civilised world, but is particu- 
 larly true of English law: see Doe v. Vardill, supra, where 
 the Lord Chief Baron Alexander says: 
 
 B. 4
 
 50 ADMINISTRATION OF FOREIGN ESTATES. 
 
 " What the rights of the claimant are respecting 
 English land must be left to the law of England, and the 
 comity of nations is totally ineffective to alter in the 
 slightest, degree the rules of inheritance and descent which 
 the law of England has attached to this English law." 
 (And see further, with particular reference to leaseholds, 
 In the goods oj Gentili, L. R. 9 Eq. 541.) 
 
 Immoveables. 
 
 In English rules of private international law the follow- 
 ing are considered as immoveables: 
 
 (1) All real estate which (by the Wills Act, 7 Will. 4 
 & 1 Viet. c. 26, s. 1) is deemed to include manors, advow- 
 sons, messuages, lands, titles, rents and hereditaments, 
 whether freehold, customary freehold, tenant right, cus- 
 tomary or copyhold, or of any other tenure, and whether 
 corporeal, incorporeal, or personal. 
 
 And any undivided share thereof. 
 And any estate, right or interest (other than a chattel 
 interest) therein. 
 
 (2) Further, any property not of a moveable nature 
 which in English law is considered personal estate, such 
 as: 
 
 Leaseholds or other chattel interests in land. 
 
 Land on trust for sale converted by rule of law into 
 personal estate. 
 
 English partnership realty and leasehold properties. 
 
 Proceeds of sale of foreign land. 
 
 Foreign partnership immoveables. 
 
 The above classes of property being considered immove- 
 ables in English law, the following results accrue: 
 
 Capacity to dispose thereof depends (as a general rule) 
 on the local law as the lex situs and in addition the 
 formalities necessary for alienation. (Re Hcrnando 
 (1884), 27 Ch. D. 284; see Adams v. Clutterbuck (1883),
 
 RULES RELATING TO LOCAL SITUATION OF ASSETS. 51 
 
 10 Q. B. D. 403.) The length of time to acquire a 
 possessory title. (Beckford v. Wade (1805), 17 Ves. 87; 
 Re Peat's Trusts (1869), L. R. 7 Eq. 302; and Pitt v. 
 Dacre (1876), 3 Ch. D. 295.) Devolution on death. 
 (Doe v. Vardill.} 
 
 Liability to taxation during the owner's lifetime and 
 on his death to death duties. 
 
 Restrictions on alienation for particular purposes. 
 (Curtis v. Hutton (1808), 14 Ves. 537; and see also 
 Ait. -Gen. v. Mill, 2 D. & Cl. 393.) 
 
 Priority of incumbrancers, position of mortgagees and 
 their powers. (Bent v. Young (1838), 7 L. J. (N. S.) 
 Ch. 151; Jackson v. Petrie (1804), 10 Ves. 164.) 
 
 Necessity for registration of the instrument of title, 
 escheat and forfeiture are all governed by the local laws. 
 
 At this point, however, it may be well to mention that 
 the position of parties under a contract relating to im- 
 moveables probably depends on the lex loci contractus (De 
 Beers Consolidated Diamond Mines v. British South 
 Africa Co., [1912] A. C. 52), and that in proceedings in 
 the Courts all questions of procedure, whether the subject- 
 matter of the suit relate to immoveables or not, depend on 
 the lex fori. 
 
 The English Statute of Limitations of Actions has been 
 held merely to bar the remedy, and not the right, and is 
 thus treated as part of the procedure of the Courts. 
 
 The period of time, therefore, within which a particular 
 action must be brought depends on the lex fori, even if 
 relating to title to land situated elsewhere, where a dif- 
 ferent rule may prevail. 
 
 Whilst this is so as to any mere statute of limitations, 
 where the effect of the foreign rule is to extinguish not 
 only the remedy but also the right, then a plaintiff in this 
 country can have no greater rights than in the country of 
 
 4(2)
 
 52 ADMINISTRATION OF FOREIGN ESTATES. 
 
 the situs (Pitt v. Dacre (1876), 3 Ch. D. 295), and 
 there is also authority for the proposition that although 
 statute-barred here, a claim may be put forward as to 
 immoveables situated abroad if it would be allowed by 
 the Courts of the situs. (See Re Peat's Trusts, supra.) 
 For the whole subject of prescription, see Dicey, 2nd ed., 
 at p. 505; and see Laws of England, Art. Conflict of 
 Laws, sects. 320 and 450.) 
 
 Of the above varieties of immoveable property in 
 English law, some call for special comment. 
 
 Chattels real, which mean in English law lands of lease- 
 hold tenure, furnish probably the most unique type, and 
 we will now consider their legal nature with reference to 
 the English rules of private international law. 
 
 Chattels real are a peculiar conception of English law 
 whereby leasehold interests in land are treated as personal 
 estate. Thus, although in fact leaseholds are almost uni- 
 versally regarded as immoveables (Freke v. Lord Carbery] 
 and are treated as such in English law so far as the estates 
 of all persons other than British subjects are concerned, 
 there are cases in which the rules usually applicable to 
 moveables also apply to them. 
 
 A foreigner to make his will effectively apply to land 
 in this country must, no matter what his domicile, comply 
 with the forms required by English law, and that whether 
 his interest in the land be in freehold, copyhold or lease- 
 hold hereditaments, and whatever the extent of such 
 interest, and regardless of whether such property is treated 
 here as realty or personalty. (See Este v. Smyth, 18 B. 
 112; Duncan v. Lawson (1889), 41 C. D. 394; Pepin 
 v. Bruyere, [1900] 2 Ch. 504, and C. A., [1902] 1 Ch. 
 24.) 
 
 A British subject also, in the case of freehold or copy- 
 hold lands, must comply with the forms required by the
 
 RULES RELATING TO LOCAL SITUATION OF ASSETS. 53 
 
 Wills Act, 1837, no matter what his domicile. In the 
 case of leaseholds, however, it has been held that a British 
 subject can validly dispose of these by any will valid 
 either by the Wills Act, 1837, or by virtue of Lord 
 Kingsdown's Act. (Re De Grassi, Stubberfield v. Grassi, 
 [1905] 1 Ch. D. 584.) 
 
 As this latter Act applies to all personal property, it is 
 submitted on the authority of the principle governing the 
 above decision that all property treated as personal pro- 
 perty here, would also pass under such a will, even thoughf 
 the same consisted of proceeds of sale of land, or of land 
 which by the equitable doctrines of conversion or recon- 
 version is treated as money, such as land on trust for sale. 
 
 Moveables. 
 
 When the personal theory of law became supreme it was 
 held in England, as elsewhere, that the moveable property 
 of a person was subject to his personal law. 
 
 Moveables were said to "follow" the person, " mobilia 
 sequuntur personam." 
 
 By a legal fiction moveable property was considered to 
 be situated in the country where its owner was domiciled 
 for the time being. 
 
 Various reasons were given for the rule. (See Bremer 
 v. Freeman, supra.} According to some judges it was 
 stated that the rule was based upon public policy. (See 
 Lord Hardwicke's judgments in Pipon v. Pipon, and in 
 Thome and WatJcins (1750), 2 Ves. sen. 35.) At other 
 times it was put in a more scientific form. For instance, 
 Lord Loughborough, in the bankruptcy case of Sill v. 
 Worswick (1791), 1 H. B. C. at p. 690, says:- 
 
 " First, it is a clear proposition not only of the law of 
 England but of every country in the world, where law 
 has the semblance of a science, that personal property has
 
 54 ADMINISTRATION OF FOREIGN ESTATES. 
 
 no locality, but that it is subject to that law which governs 
 the person of the owner. With respect to the disposition, 
 with respect to the transmission of it, either by succession, 
 or the act of the party, it follows the law of the person. 
 The owner in any country may dispose of his personal 
 property. If he dies, it is not the law of the country in 
 which the property is, but the law of the country in which 
 he was a domiciled subject that will regulate the succes- 
 sion. For instance, if a foreigner having property in the 
 Funds here dies, that property is claimed according to the 
 right of representation given by the law of his own 
 country." And he quotes and approves Lord Hardwicke's 
 judgment in Pipon v. Pipon. 
 
 However, this rule that the disposition of moveable pro- 
 perty and the succession thereto on the death of a person 
 are governed by the law of the domicile only applies to the 
 moveables treated as a universality. 
 
 In so far as the death of the owner operates to transfer 
 a universal succession the rule applies. By a universal 
 succession we mean a succession to a universitas juris, 
 i.e., to the universality of the rights and duties of the 
 deceased. 
 
 Treated individually the moveables belonging to a 
 deceased person are subject in many ways to the laws of 
 the country where they are situate, and to the laws of the 
 country in which a contract concerning them is made. 
 
 In other words, a given article is subject to the ordinary 
 rules of private international law, both as to lex situs and 
 lex loci contractus. 
 
 This distinction between the rules governing the move- 
 ables as a universitas juris and individually is well treated 
 in a thesis of the University of Paris, by Andre Marion, 
 Docteur en Droit (1906), entitled " La loi du domicile en 
 matiero successorale selon la jurisprudence anglaise."
 
 RULES RELATING TO LOCAL SITUATION OF ASSETS. 55 
 
 After dealing with the peculiarities of the English 
 system of law, the learned author says (a): 
 
 " We must now consider the exact conditions under 
 which the question of choice of law arises, and the precise 
 points to which the English Courts have to apply their 
 principle. At first sight, there is an apparent paradox. 
 It is said that the moveable property of a deceased follows 
 the person in other words, such property is only situated 
 in the country where the deceased was domiciled . It would 
 seem, therefore, that the English Courts would never have 
 to deal with succession to moveable property unless the 
 assets had their legal situation in England, that is, unless 
 the deceased was domiciled in England. From which it 
 would result that the English Courts would only have to 
 apply English law, and as no conflict would be possible, 
 the question would be devoid of all practical interest. To 
 reason thus is, however, to deny what continually happens 
 in practice. 
 
 " Whatever theory may be relied upon in a given 
 country to decide the law to apply to a deceased's estate, 
 and whether the moveable property has in law no other 
 situation than that of the country where the deceased was 
 domiciled or not, in practice we know that such property 
 is frequently situated elsewhere. A deceased having his 
 domicile in England may possess amongst his property in 
 France valuable furniture and precious collections of 
 articles of value. On the other hand, a Frenchman not 
 domiciled in England may have invested large sums in 
 the Funds of that country. In spite of theories the actual 
 presence of these properties in the different countries 
 concerned cannot be ignored, and the Courts of the 
 countries where they are in fact situate will have fre- 
 quently to deal therewith." 
 
 (a) Marion, These, p. 13 et seq.
 
 56 ADMINISTRATION OF FOREIGN ESTATES. 
 
 This is well illustrated in English law by the different 
 stages in the disposition of a deceased's estate. 
 
 The administration, collection of the assets, payment 
 of fiscal duties, discharge of debts, granting of representa- 
 tion are in general independent of the law of domicile. 
 
 They depend on the lex fori or the law of the place 
 where representation is applied for, and consequently the 
 law of the place where part of the deceased's estate is in 
 fact situate. 
 
 It has already been shown that until the process of 
 administration is complete there is in effect no succession. 
 
 We refer again to Dr. Marion's thesis (&): 
 
 " Of the two phases of operations in the English system, 
 that which is concerned with the realisation of the assets 
 and payment of debts, and that governing the distribution 
 of the surplus, the latter alone is really succession. This 
 appears to exactly correspond with the sense in which 
 ' mobilia ' is used in the maxim ' mobilia sequuntur per- 
 aonam.' If during the period of liquidation obedience is 
 given to the lex situs and lex loci contractus, it is precisely 
 because so long as this operation continues the moveable 
 property of the deceased does not form an ' open succes- 
 sion,' i.e., a distributable estate (succession ouvcrte in 
 French law). The whole has not been ascertained, and 
 there is not any question of transfer. When the whole is 
 complete, and debts charged upon the assets have been 
 paid, the local law will cease to apply, and will allow the 
 personal law of the deceased to make its influence felt. 
 Then, and not until then, will a legal relationship be 
 created between the deceased and those entitled to share 
 in his estate, and it is only such relationship which the 
 personal law of succession can govern." 
 
 (*) Marion, Thw, p. 91.
 
 RULES RELATING TO LOCAL SITUATION OF ASSETS. 57 
 
 Until the state of succession, strictly so called, is reached 
 the lex domicilii does not in general apply. 
 
 Thus, although a deceased die domiciled in France, the 
 succession to his moveable property will be governed by 
 French law, yet English law will refuse to allow his move- 
 able assets situated here to be dealt with by any person 
 claiming rights under the law of the domicile, unless and 
 until such person has clothed himself with the necessary 
 authority required by the local English law that is, unless 
 a grant of probate of the will or letters of administration 
 to the estate of the deceased has been made to the person in 
 question . 
 
 Moveables in English law may be divided into: 
 
 (1) Pure chattels, i.e., things of a tangible nature, 
 
 known as choses in possession. 
 
 (2) Choses in action: Rights to personal property 
 
 independent of possession (which, strictly 
 speaking, are neither moveable nor immove- 
 able). 
 
 (3) Ships. 
 
 (1) With regard to pure chattels there is little diffi- 
 culty. Individually, the laws of the country where they 
 are in fact situate will govern. (Cammell v. Sewell 
 (1858), 3 H. & N. 617, and 5 H. & N. 728; also Castrique 
 v. Imrie (1870), L. E. 4 H. L. 414.) 
 
 As a general rule, a particular disposition of a move- 
 able according to the lex situs cannot be disregarded, 
 and will be binding even though invalid by the law of the 
 domicile. 
 
 Whether a good title has been acquired to particular 
 moveables by transactions taking place in this country is 
 to be governed by the law of this country. (See Williams 
 v. Colonial Bank (1888), 38 Ch. D. 388 (C. A.), which, 
 although it relates to share certificates, illustrates this
 
 58 ADMINISTRATION OF FOREIGN ESTATES. 
 
 particular point.) In that case certificates of shares in 
 an American railway company had been transferred in 
 England, and the question was whether the transferees 
 had a good title. In favour of this contention the trans- 
 ferees relied on American law. 
 
 Held, that the transaction taking place in England, the 
 title to the shares depended on English law. 
 
 Lord Lindley says (at p. 403): "American law is 
 important up to a certain point, but not beyond that point. 
 We must look to American law for the purpose of under- 
 standing the constitution of the railway company and the 
 proper mode of becoming a shareholder in it. Moreover, 
 it may be that the consequences of having acquired a title 
 to the certificate may depend on American law, but the 
 question how a title is to be acquired to a certificate by a 
 transaction in this country does not depend on American 
 law at all. One question, and to my mind the main ques- 
 tion, resolves itself into this: Who is entitled to these 
 certificates ? Now, the certificates have been dealt witli 
 by the executors in England, and the certificates are 
 chattels, and when we are considering who is entitled to a 
 chattel bought or sold or pledged in England, it is English 
 law and not American law that is to govern the case." 
 
 This view was adopted by the other members of the 
 Appeal Court, Cotton, L. J., and Bowen, L. J., who used 
 similar expressions. 
 
 As in the case of pure chattels there can be no doubt as 
 to their actual situation, and as the law of the situation 
 governs all transactions taking place within its jurisdic- 
 tion, difficulty rarely arises in determining their ownership 
 or the title thereto. 
 
 (2) In the case of choses in action, the question is more 
 complicated, largely because their legal " situation " is a 
 matter which frequently gives rise to great dispute.
 
 RULES RELATING TO LOCAL SITUATION OF ASSETS. 59 
 
 Where is a debt incurred by a person residing in France 
 to a creditor in London deemed to be situate ? Would the 
 same rule apply if judgment had been obtained in the 
 Courts of either country ? 
 
 Are bearer bonds to be treated as tangible chattels and 
 capable of a de facto situation, or are they merely evidence 
 of a loan due from a limited company to the rightful owner 
 of the bonds ? 
 
 The accepted definition of chose in action has varied in 
 the progress of legal notions, and the conception of a chose 
 in action has been greatly widened in modern times. 
 Originally the term " chose in action " was applied only to 
 a right to take proceedings either at law or in equity to 
 recover a debt or damages, or to obtain some other judicial 
 relief. It did not include any other incorporeal right of 
 property, and, of course, included no tangible personal 
 property. It was practically identical with what is now 
 called a " right of action." 
 
 But as stated by Lord Justice Cotton in Colonial Batik 
 v. Whinney (1885), 30 Ch. D. at p. 276, there has un- 
 doubtedly been, not only in common language but in legal 
 language, an extension of the application of the term 
 " chose in action " beyond its legal meaning. 
 
 In more modern times there have sprung up several 
 species of incorporeal personal property which were un- 
 known to the early writers, such as Consols, stocks, shares, 
 debentures, patents and copyrights. All these, probably 
 for want of a better classification, are often called choses 
 in action; they are, strictly speaking, personal property of 
 an incorporeal nature. 
 
 The following are the principal rules of English law 
 relating to the legal situation of choses in action: 
 
 Debts. Simple contract debts are situated where the
 
 60 ADMINISTRATION OF FOREIGN ESTATES. 
 
 debtor resides at the time of death of the creditor. (Att.- 
 Gen. v. Bouwens (1838), 4 M. & W. 171.) 
 
 This is so, even though the debt is secured by a mort- 
 gage on land abroad (Payne v. Regina, [1902] A. C. 
 553); and even where, by the law of the place where the 
 property is situate, the debt is treated as a " specialty 
 debt." (Payne v. Regina. .) 
 
 This, however, does not apply to bills of exchange and 
 promissory notes, where they are instruments negotiable 
 elsewhere. (See Dicey, 2nd ed., p. 311, and Att.-Gen. 
 v. Bouwens.} 
 
 Specialty debts (in accordance with the old view taken 
 by the Ecclesiastical Courts) are situated where the instru- 
 ment securing them is situated. (Att.-Gen. v. Bouwens; 
 Gurney v. Raivlins (1836), 2 M. & W. 87; see also 
 Commissioner of Stamps v. Hope, [1891] A. C. 476.) 
 
 For certain purposes (estate duty) all specialty debts 
 owing by debtors resident within the United Kingdom 
 are situated here. (Revenue Act, 1862 (25 & 26 Viet, 
 c. 22,s. 39).) 
 
 Judgment debts are situated in the country where the 
 judgment is recorded. (Att.-Gen. v. Bouwens.} (This 
 same rule applies to debts due under foreign judgments, 
 although, strictly speaking, such debts are not "judgment 
 debts" in the English sense. (See Duplein v. De Roven 
 (1705), 2 Vern. 540.)) 
 
 Shares, stock, bonds, debentures, obligations, bearer 
 warrants and other certificates of title to an interest in the 
 assets of a company, or the funds of a municipality, State 
 or foreign government are situated here in the following 
 circumstances: 
 
 (a) If the registered office of the company concerned is 
 
 here; or 
 
 (b) If the holders must be registered here; or
 
 RULES RELATING TO LOCAL SITUATION OF ASSETS. 61 
 
 (c) If the instruments themselves or the rights of which 
 they are the evidence are capable of being trans- 
 ferred, sold, or dealt with here. (Att.-Gen. v. 
 Higgins (1857), 26 L. J. Ex. 403; Fernandes' 
 Executors' case (1870), L. R. 5 Ch. 314.) 
 
 However, a mere request to convert foreign stock into 
 registered stock here which has not been carried through 
 prior to the date of death is insufficient of itself to make 
 such foreign stock assets locally situate here. (Pearse v. 
 Pearse (1838), 9 Sim. 430.) 
 
 As to other personal property of an incorporeal nature.' 
 
 Goods on the high seas are situated in the country 
 where the bills of lading can be dealt with. (See Hanson 
 on Death Duties, 6th ed., p. 110; and Att.-Gen. v. Hope 
 (1834), 1 C. M. & R. 530.) 
 
 Goods in transitu from one country to another are con- 
 sidered locally situate in the country to which they have 
 been consigned. (Hanson, p. 11; and Att.-Gen. v. Pratt 
 (1874), L. R. 9 Ex. 140; and Wyckoffs case (1862), 3 
 Sw. & Tr. 20.) 
 
 An interest in a trust fund will be held to be situated 
 in the country where the trustees reside. 
 
 No matter what the actual situation of property subject 
 to an English trust with trustees resident here, any in- 
 terest in such trust property, such as a reversion, or the 
 like, is considered locally situate here. (Att.-Gen. v. 
 Lord Sudeley, [1897] A. C. 2; Re Smyth, Leech v. Leech. 
 [1898] 1 Ch. 89.) 
 
 Money owing under an insurance policy is deemed 
 locally situate in the country where the head office of the 
 insurance company is situated. (Hanson, p. 110.) Pro- 
 perty which consists of shares in or claims upon any com- 
 pany or society must be taken to be locally situate where 
 the company has its head office. (See Att.-Gen. v.
 
 62 ADMINISTRATION OF FOREIGN ESTATES. 
 
 Higgins (1857), 2 H. & N. 339; and Fernandes' 
 Executors' case (1870), L. R. 5 Ch. 314.) 
 
 A share in the assets of a partnership is deemed to be 
 situate in the country where the partnership business is 
 principally carried on. 
 
 In the goods of Ewing, 6 P. D. 23, Sir James Hannen: 
 " the share of a deceased partner in a partnership asset is 
 situate where the business is carried on." (Commissioner 
 of Stamps v. Salting, [1907] A. C. 449; Laidlay v. Lord 
 Advocate, 15 A. C. 468.) 
 
 A patent is presumably deemed to be situate in the 
 country where the same has been registered. If, however, 
 the rights covered by the patent can in fact be dealt with 
 elsewhere, no doubt they could in some senses be considered 
 as locally situate wherever the rights could be dealt with. 
 Thus, on this reasoning it has been held that an interest 
 in a Colonial patent which was capable of assignment 
 here was not property locally situate out of the United 
 Kingdom. (See Smelting Co. of Australia v. Commis- 
 sioners of Inland Revenue, [1897] 1 Q. B. 175; and 
 Hanson, p. 110.) 
 
 Copyright is presumably deemed to be situate in the 
 country of registration. If capable of assignment else- 
 where, see note above referring to patents. 
 
 A claim against the estate of a deceased person is an 
 asset in the country where the deceased was domiciled at 
 the date of his death. (Att.-Gen. v. Lord Sudeley ; and 
 In the goods of Ewing, infra.) 
 
 This is not affected by the actual situation of the assets 
 belonging to the estate of the deceased against whom the 
 claim is made, nor by the domicile of the creditor or 
 claimant. (In the goods of Ewing (1881), 6 P. D. 19.) 
 
 And in general any property which may from time to 
 time be included in the expression " chose in action " will
 
 RULES RELATING TO LOCAL SITUATION OF ASSETS. 63 
 
 be considered locally situate in the country where the same 
 can be sued for and recovered. 
 
 (3) British ships are deemed to be locally situate in 
 the country of their port of registry. (See 27 & 28 Viet, 
 c. 56.) 
 
 This would seem to be on the assumption that before 
 an effective transfer of a ship could take place, some 
 formality would have to be complied with at the port of 
 registry. 
 
 If this were not so, a ship would probably be situate in 
 the country where it actually was at the date of death, 
 and if on the high seas, in the country where the owner 
 was domiciled. 
 
 Thus, it is submitted a foreign ship would be situated 
 here if within the territorial limits of the United 
 Kingdom, no matter what the port of registry. (See, 
 however, Hanson, at p. 110.) 
 
 And ships wherever situate or wherever registered will 
 be deemed to form part of the moveable assets of a deceased 
 Avho dies domiciled in England, and will be (inter alia} 
 subject to duties here.
 
 CHAPTER VI. 
 
 THE JURISDICTION OF THE ENGLISH HIGH COURT OF JUSTICE 
 IN MATTERS RELATING TO THE ADMINISTRATION OP 
 THE ESTATES OF DECEASED PERSONS. 
 
 FROM the earliest times when English law began to 
 formulate itself, the Courts of the country have inter- 
 vened on the death of an owner of property to control it& 
 disposition. 
 
 In the days of Saxon rule, on the death of a person 
 intestate his effects became vested in the Lord of the 
 Manorial Court of which the deceased had been a member 
 and in which he had his socn, whilst his land descended 
 strictly in accordance with the common law. On the in- 
 troduction of the system of primogeniture in the twelfth 
 century the heir succeeded to lands, and no devise was 
 possible. This continued until 32 Hen. VIII., Chap. I. 
 (See Encyclopaedia of the Laws of England, 2nd od., 
 Art. Probate, Vol. 11, p. 674.) 
 
 After the Norman Conquest the jurisdiction of the lords 
 of the manor as to chattels gradually passed into the 
 hands of the foreign ecclesiastics who came to this country 
 and continually encroached on their prerogatives. 
 
 The Church stepped in to protect gifts at death to pious 
 uses, and if there were no testamentary gifts of land, the 
 Clmrch Courts were allowed exclusive jurisdiction. 
 
 The written will of chattels, and the appointment and 
 position of an executor, a person charged with the carrying 
 out of the wishes of the deceased, make their appearance 
 at the same time in English law. According to Scldcn
 
 JURISDICTION OF THE HIGH COURT. 65 
 
 there is no instance of any process for establishing the 
 validity of a man's testamentary dispositions or will prior 
 to the reign of Henry III. 
 
 The proper tribunal was at first that of the ordinary, 
 usually the bishop, in whose diocese the effects of the 
 deceased were situate, and if the deceased left goods of a 
 certain value (bona notabilid) in more than one diocese, 
 the archbishop alone had jurisdiction, which he exercised 
 in the Court of Arches. Administration in intestacy does 
 not appear until later. The Church was interested in 
 securing the making of a will or a bequest in her favour for 
 the poor, and it was regarded as an ecclesiastical offence 
 to die intestate. 
 
 In that event, however, the Church stepped in and 
 claimed to control the disposition of the deceased's effects. 
 
 As early as 1285 the jurisdiction of the ordinary in 
 cases of intestacy was confirmed by statute (Statute of 
 Westminster II. c. 19), and thereby the ordinary was 
 bound to pay the debts of the deceased in the same manner 
 as an executor. 
 
 In the year 1443 the Prerogative Court of Canterbury 
 was established, and all powers formerly vested in the 
 Archbishop's Court of Arches were transferred to it. 
 
 This Court existed side by side with the various 
 manorial and other privileged Courts which had not suc- 
 cumbed to the invasion by the Church, until the formation 
 of the Court of Probate in the year 1857. 
 
 At the time of the passing of the Court of Probate Act, 
 in that year, there were no less than 372 ecclesiastical or 
 other Courts possessing authority to grant or revoke pro- 
 bates of wills and letters of administration to the estates 
 of deceased persons. 
 
 By the Court of Probate Act (20 & 21 Viet. c. 77), the 
 preamble to which recites that "it is expedient that all 
 
 B. 5
 
 66 ADMINISTRATION OK FOREIGN ESTATES. 
 
 jurisdiction in relation to the grant or revocation of pro- 
 bates of wills and letters of administration in England 
 should be exercised in the name of her Majesty by one 
 Court," it is enacted in sect. 4 as follows: "The volun- 
 tary and contentious jurisdiction and authority in relation 
 to the granting or revoking probate of wills and letters of 
 administration of the effects of deceased persons now 
 vested in or which can be exercised by any Court or person 
 in England, together with full authority to hear and 
 determine all questions relative to matters and causes 
 testamentary, shall belong to and be vested in her Majesty, 
 and shall, except as hereinafter is mentioned, be exercised 
 in the name of her Majesty in a Court to be called the 
 Court of Probate, and to hold its ordinary sittings and 
 to have its principal registry at such place or places in 
 London or Middlesex as her Majesty in Council may 
 from time to time appoint." 
 
 By sect. 23 of the Act it was provided that the Court of 
 Probate should be a Court of Record, and have the same 
 powers throughout England as the Prerogative Court of 
 the Province of Canterbury had in relation to testamen- 
 tary matters and effects of deceased persons. 
 
 It was, however, expressly provided by the same section, 
 " that no suits for legacies, or suits for the distribution 
 of residues, shall be entertained by the Court, or by any 
 Court or person whose jurisdiction as to matters and causes 
 testamentary is hereby abolished." 
 
 Matters of this kind had formerly been entertained by 
 the old Ecclesiastical Courts; after being expressly re- 
 served by this Act they were assigned to the CIiannT\ 
 Division of the High Court, and are now dealt with there. 
 
 By the Court of Probate Act, 1858 (21 & 22 Viet. 
 c. 95), s. 19, it was provided that: 
 
 "From and after the decease of any IHT-SOII dying in-
 
 JURISDICTION OF THE HIGH COURT. 67 
 
 testate, and until letters of administration shall be granted 
 in respect of his estate and effects, the personal estate and 
 effects of such deceased person shall be vested in the judge 
 of the Court of Probate for the time being, in the same 
 manner and to the same extent as heretofore they were 
 vested in the ordinary." 
 
 The Probate Court continued its separate existence 
 until 1875, when, by the operation of the Supreme Court 
 of Judicature Act, 1873 (36 & 37 Viet. c. 66), the Probate 
 Court, was abolished, and became part of the new Supreme 
 Court of Judicature, consisting of the Court of Appeal 
 and High Court of Justice. By this Act, the High Court 
 of Justice is declared to be a superior Court of Record, 
 and amongst other jurisdictions that of the Court of 
 Probate is transferred to it. By sect. 34 all causes and 
 matters pending in the Court of Probate, and all causes 
 and matters which would have been within the exclusive 
 cognizance of the Court of Probate if this Act had not 
 been passed, were assigned to the Probate Division of the 
 High Court of Justice. 
 
 The five Divisions of the High Court of Justice have 
 since been reduced to three. 
 
 The Act also dealt fully with the procedure to be 
 adopted, and the new enactments in this respect apply to 
 and override the former rules of contentious practice in 
 the Court of Probate. 
 
 The voluntary or non-contentious practice is unaffected, 
 and it has been expressly held that the old rules in 
 existence before the passing of the Judicature Act still 
 govern this branch of the procedure in probate matters. 
 (See In the goods of Tomlinson (1881), 6 P. D. 209.) 
 
 In small cases there is a certain jurisdiction relating to 
 matters of succession and administration vested in the 
 
 5(2)
 
 68 ADMINISTRATION OF FOREIGN KSTATE8. 
 
 County Courts, but for our purposes it is not of im- 
 portance. 
 
 Speaking generally, therefore, it may be said that in 
 England the Court possessing jurisdiction with regard to 
 the granting or revoking of probates of wills and letters of 
 administration is the probate section of the Probate, 
 Divorce and Admiralty Division of the High Court of 
 Justice. 
 
 Whilst matters relating to the administration of the 
 estates of deceased persons, suits for legacies, suits for the 
 distribution of residues, and all proceedings relating to th& 
 enforcement of trusts are primarily the subject-matter of 
 the jurisdiction of the Chancery Division of the same 
 Court. 
 
 It is the dual nature of the jorum for administration 
 of estates in English law which causes much of the com- 
 plexity with which the rules of private international law 
 are involved in this country. 
 
 On account of the extensive inherent jurisdiction in 
 personam exercised formerly by the English Court of 
 Chancery, and now by the Chancery Division of the High 
 Court, many of the rules of private international law, such 
 as the application of the lex fori to matters of procedure 
 and the local situation of choses in action, have received a 
 more extended application in the Courts of this country 
 than in those of Continental countries. 
 
 Without an intimate acquaintance with the respective 
 spheres of the Probate Court and of the Chancery Division, 
 and an exact appreciation of the peculiar nature of the 
 jurisdiction in Chancery, a student of private international 
 law, as accepted in England, will find himself surrounded 
 by an interminable number of judicial problems of which 
 there is no apparent solution. 
 
 In considering the jurisdiction of the English Courts
 
 JURISDICTION OF THE HIGH COURT. 69 
 
 in matters relating to the administration of the estates of 
 deceased persons the natural division would be into the 
 law dealing with probate or proof of wills and that 
 governing grants of simple letters of administration to the 
 estates of deceased persons. 
 
 The term probate, in its strictest sense, signifies the 
 copy of the will which is given to the executor, together 
 with a certificate under the seal of the Court, signed by a 
 registrar of such Court, certifying that the will has been 
 proved. In a wider sense the word indicates the process 
 and results of proving a will, and, generally, is used to 
 denote all matters which come within the sphere of the 
 Probate Division of the Probate, Divorce and Admiralty 
 Division of the High Court of Justice. 
 
 Jurisdiction as to Probate. 
 This consists of two branches: 
 
 (a) Common form business. 
 
 (b) Solemn form or contentious business. 
 
 As regards (a). By the Court of Probate Act, 1857, 
 s. 2, voluntary, non-contentious or common form business 
 is defined as being " the business of obtaining probate and 
 administration where there is no contention as to the right 
 thereto, including the passing of probates and administra- 
 tion through the Court of Probate in contentious cases 
 when the contest is terminated, and all business of a non- 
 contentious nature to be taken in the Court in matters of 
 testacy and intestacy, not being proceedings in any suit, 
 and also the business of lodging caveats against the grant 
 of probate or letters of administration." 
 
 The jurisdiction of the Probate, Divorce and Admiralty 
 Division in common form business applies to the per- 
 sonalty of a deceased person situated within the jurisdic-
 
 70 ADMINISTRATION OF FOREIGN ESTATES. 
 
 tion of the Court or in transitu to this country, and since 
 1897 to real estate here as well. 
 
 Grants of representation are made in accordance with 
 statutes, statutory rules and a certain unwritten law of 
 the Court based upon precedents and the practice of the 
 Division. 
 
 To executors probate is granted. Such representation 
 is general or limited, absolute or for a time only. 
 
 It is not, however, in every case that the English Court 
 will assume jurisdiction to grant probate. The Court 
 will not grant probate (at all events in common form) 
 unless the deceased has left a valid will containing the 
 appointment, either express or implied, of an executor. 
 (See infra, p. 113, and Wankford v. Wankford, there 
 quoted and referred to.) Nor will the Court assume juris- 
 diction unless there is some property belonging to the 
 deceased's estate locally situate within the jurisdiction of 
 the Court. On the application for probate being made 
 the Court determines the exact nature and extent of the 
 grant of representation to be made. 
 
 This and all other matters relating to the application to 
 the Courts are treated as questions of procedure, and are 
 therefore regulated solely by the lex fori. 
 
 Nor does the power of the Court cease on the original 
 grant being made. In a very real sense the Court controls 
 the disposition of the estate, and permits any person 
 aggrieved to apply to the Court for protection and 
 assistance. 
 
 Probate granted in common form is revocable. Any 
 person whose interest is adversely affected may call it in 
 and put the party who obtained it to proof in solemn form. 
 (Merryweather v. Turner (1844), 3 Curt. 802817.) 
 
 As regards (b) In solemn form or contentious busi- 
 ness. A grant of probate in solemn form means a grant
 
 JURISDICTION OF THE HIGH COURT. 71 
 
 consequent upon a judgment or decree of the Court after 
 action brought, and is usually the result of either 
 
 (1) A doubt on the part of the executor who formally 
 
 submits the document to the Court for adjudi- 
 cation as to its validity; or, 
 
 (2) A dispute by parties interested who take hostile 
 
 steps to prevent common form probate being 
 
 obtained on the grounds of undue influence, the 
 
 faulty execution of the will, defective testing 
 
 power of the deceased, or other suitable reasons' 
 
 In either case, on the hearing, the Court will go fully 
 
 into the merits of the case, and will not grant probate until 
 
 all the formalities required by reference to the proper 
 
 system of law are complied with. 
 
 As in common form business the one essential, in order 
 to give the High Court jurisdiction, is the presence of 
 some property belonging to the deceased within the juris- 
 diction of the Court. (See Evans v. Burrell (1859), 28 
 L. J. P. 82; In the goods of Tucker (1864), 34 L. J. P. 
 29.) 
 
 'Jurisdiction in Cases of Letters of Administration . 
 
 Whenever there are assets in this country, and wherever 
 the deceased left a valid will, but there is no executor, 
 either because no executor has been appointed, or by reason 
 of his having renounced probate or having predeceased the 
 testator, the Court will grant letters of administration, 
 with the will annexed, to the person having the greatest 
 interest in the estate usually the residuary legatee, if the 
 will contains a residuary clause. 
 
 If no residuary bequest is contained in the will, then the 
 grant will be made to the next of kin, and failing them, to 
 creditors or a legatee.
 
 72 ADMINISTRATION OF FOREIGN ESTATES. 
 
 If the deceased died wholly intestate, a grant of simple 
 administration of the estate will be made. 
 
 The principles upon which the Court acts in granting 
 letters of administration here are purely principles of 
 English law. (See Dicey, 2nd ed., p. 658, and see Black- 
 wood v. Regina, 8 A. C. 82.) 
 
 The choice of the representative, the nature of the grant 
 of representation accorded, are alike referred to the lex 
 fori. (Re Stewart (1838), 1 Curt. 904.) 
 
 In deference, however, to the rule that the Courts of the 
 domicile are the forum primarily entitled to decide such 
 matters, the English Courts will, as a general rule, in 
 making such grants give effect here to any judgment or 
 order made by the Courts of the domicile. (In the goods 
 of Briesemann, [1894] P. 260 ; and see Chapter XVI., 
 infra, where the subject is discussed in detail, and the 
 principal cases are set out and commented upon.) 
 
 Jurisdiction of the Chancery Division. 
 
 Whilst both the ecclesiastical and the common law 
 Courts acquired an early jurisdiction to deal with matters 
 testamentary, they had a very rigid system of procedure, 
 and no efficient means of enforcing a judgment or of com- 
 pelling a person to comply with the terms of the orders 
 made by them. 
 
 For the purpose of administration it was necessary that 
 property should be collected and realised, debts and lia- 
 bilities ascertained and paid, and residuary estate, whether 
 real or personal, distributed or conveyed to the respective 
 persons beneficially entitled. 
 
 The ecclesiastical and common l:i\\ Courts did not 
 possess the machinery necessary for such administration. 
 
 It was not, therefore, to be wondered at that the Court 
 of Chancery, which alone could compel discovery, properly 
 control the taking and examination of accounts, and
 
 JURISDICTION OF THE HIGH COURT. 73 
 
 readily enforce its decrees, should have become at an early 
 time in English legal history the favourite tribunal for 
 the performance of such functions. 
 
 Research into the early decisions in matters of adminis- 
 tration and the performance of trusts shows that adminis- 
 tration suits by creditors were of common occurrence as 
 far back as the reign of Edward VI. 
 
 The Chancery Court has also for a great length of time 
 claimed to exercise a wide jurisdiction in personam over 
 accountable parties or persons in a fiduciary position,, 
 whenever such parties were within the jurisdiction or 
 within reach of the process of the Court. 
 
 Once the process of administration of an intestate 
 succession is complete the administrator holds the surplus 
 in reality as trustee for the persons beneficially entitled to 
 succeed thereto, according to the law of the deceased's 
 domicile. 
 
 In the case of a will, the executors are also in reality 
 trustees, whose mission is to carry out the trusts created by 
 the deceased. 
 
 No matter, then, where the assets forming the estate of 
 the deceased were situate, provided his representatives 
 (executors or administrators) were in fact within the reach 
 of the Court, the Chancery Courts entertained, and still 
 entertain, suits to compel the performance of the trusts 
 upon which, and subject to which, the property of the 
 deceased had come into their possession or under their 
 control. 
 
 In the leading case upon the extent of this equitable 
 jurisdiction in personam (Penny. Lord Baltimore (1750), 
 1 Ves. sen. 444), Lord Hardwicke indicates the basis of 
 this jurisdiction. 
 
 It does not depend upon an original jurisdiction, but 
 rather on the ground of some equity between the parties.
 
 74 ADMINISTRATION OF FOREIGN ESTATES. 
 
 Thus, it does not necessarily follow that the Chancery 
 Court will make a decree against the representative of a 
 deceased. 
 
 It will only do so where by the lex fori there is some 
 equity between the parties entitling the claimant to relief. 
 If the lex fori refers the matter to some foreign law, the 
 claimant must show that the foreign law admits a similar 
 equitable right. 
 
 It is needless to say that such jurisdiction is quite in- 
 dependent of the domicile of the deceased. 
 
 If a testator had a foreign domicile and left any assets 
 locally situate here, it would be necessary to constitute an 
 English personal representative, and it would be the duty 
 of such representative to pay the debts, and only after that 
 was done to distribute the surplus. 
 
 But payment out of personal assets of the debts in this 
 country is a matter of procedure for which the English 
 representative would be responsible, and which would be 
 governed by the lex fori. 
 
 It was, indeed, at one time suggested that the Courts 
 of the domicile had " exclusive" jurisdiction in all matters 
 relating to administration to succession, and that the 
 Courts of this country had no locus standi to entertain 
 suits relating to the estate of a deceased dying domiciled 
 in a foreign country. 
 
 Thus, Lord Westbury, in Enohin v. Wylie (1862), 10 
 H. L. C. 1, says: "I hold it to be put beyond all pos- 
 sibility of question that the administration of the personal 
 estate of a deceased person belongs to the Court of the 
 country where the deceased was domiciled at his death. 
 All questions of testacy or intestacy belong to the judge 
 of the domicile. It is the right and duty of that judge to 
 constitute the personal representative of the deceased. To 
 the Court of the domicile belong the interpretation and
 
 JURISDICTION OF THE HIGH COURT. 75 
 
 construction of the will of the testator. To determine 
 who are the next of kin or heirs of the personal estate of 
 the testator is the prerogative of the judge of the domicile. 
 In short, the Court of the domicile is the forum concursus 
 to which the legatees under the will of a testator or the 
 parties entitled to the distribution of the estate of an 
 intestate are required to resort." 
 
 Lord Cranworth, however, in the same case lays down 
 what we submit is the more correct view. He says: 
 "Personal property in this country belonging to a, 
 foreigner, or to a British subject domiciled abroad, can 
 only be obtained, in the event of his death, through the 
 medium of a representative in this country. If he has 
 died intestate, then administration will be granted here, 
 limited to the personal estate in this country. If he has 
 left a will valid by the law of his domicile and has thereby 
 appointed executors, then probate of that will must be 
 obtained here. There may be cases of a more special 
 nature, but for our present purpose they may be dis- 
 regarded. In every case the succession to the property 
 will be regulated not according to the law of this country, 
 but to that of the domicile. Where there is such a will, 
 and probate of it has been obtained here, the duty of the 
 Court in administering the property, supposing a suit to 
 be instituted for its administration, is to ascertain who, 
 by .the law of the domicile, are entitled under the will, and 
 that being ascertained, to distribute the property accord- 
 ingly. The duty of administration is to be discharged by 
 the Courts of this country; though in the performance of 
 that duty they will be guided by the law of the domicile. 
 This was the mode in which the law was laid down by 
 Lord Cottenham in this House in the case of Preston v. 
 Lord Melville, 8C1.&F. 1." 
 
 Lord Chelmsford in the same case took an equally
 
 76 ADMINISTRATION OF FOREIGN ESTATES. 
 
 decided view, and it does not seem that Lord Westbury's 
 view has ever been followed, whilst on several occasions 
 it has been expressly dissented from. 
 
 The matter was really definitely decided by the Orr- 
 Ewing decision, where, in the English appeal (1883, 
 A. C.), Lord Selborne says: "With reference to domi- 
 cile it is familiar law that the succession to the moveable 
 estate of a deceased person is governed by the lex domicilii. 
 But that law does not prescribe the jorum in which the 
 persons beneficially entitled to the succession may pursue 
 against the trustees in whom the estate is vested their 
 proper remedies. The proposition that the Courts of that 
 country only in which a testator dies domiciled can 
 administer his personal estate, is without support from 
 any authority, except certain dicta of Lord Westbury, in 
 Enohinv. Wylie, with which the other Lords who decided 
 that case did not agree. If it were true, it must extend 
 (as Lord Westbury extended it) to the whole moveable 
 estate of the deceased person, wheresoever situate, on the 
 principle ' mobilia sequuntur pers&nam.' This was not 
 seriously contended for at your Lordships' bar," and later 
 in the same case: 
 
 "The Courts of Equity in England are, and always 
 have been, Courts of conscience, operating in personam and 
 not in rent, and in the exercise of this personal jurisdiction 
 they have always been accustomed to compel the perform- 
 ance of contracts and trusts as to subjects which were not 
 either locally or ratione domicilii within their jurisdic- 
 tion. They have done so as to land in Scotland, in 
 Ireland, in the Colonies, in foreign countries." And 
 again: "A jurisdiction against trustees, which is not 
 excluded ratione legis rei sites as to land, cannot be ex- 
 cluded as to moveables because the author of the trust 
 may have had a foreign domicile. . . . Accordingly, it
 
 JURISDICTION OF THE HIGH COURT. 77 
 
 has always been the practice of the English Court of 
 Chancery (as was said by James, L. J., in Stirling 
 Maxwell v. Cartwright, 11 Ch. D. 523) to administer as 
 against executors and trustees personally subject to its 
 jurisdiction, the whole personal estate of testators or in- 
 testates who have died domiciled abroad, by decrees like 
 that now in question." 
 
 Lord Blackburn and Lord Watson concurred, and an 
 order for general administration of testator's will and 
 codicils, with the usual accounts and inquiries, was made / 
 as to the whole of that estate, both Scottish and English 
 
 In the subsequent appeal from the Scotch Courts to the 
 House of Lords in the same case two years later (1885, 
 A. C. at p. 512), Lord Selborne again lays down the 
 same principles and dissents from Lord Westbury's dictum 
 in Enohin v. Wylie, and it was definitely held by the 
 whole tribunal that the order of the Scotch Courts claim- 
 ing the exclusive competency of their jurisdiction was 
 not supported by statute or authority. (See also Re 
 Bormefoi, [1912] P. 233, where this was reaffirmed by the 
 Court of Appeal.) 
 
 Speaking generally, it may be said that wherever the 
 English Courts have jurisdiction to make a grant of repre- 
 sentation to the estate of a deceased person, they have 
 power to determine any matter arising out of the estate. 
 (Dicey, 2nd ed., p. 318.) 
 
 Conversely, as a general rule, where there is no power 
 to make a grant there is no power to determine other 
 matters connected with the administration of the estate. 
 (Dicey, 2nd ed., p. 317.)
 
 PART I, 
 
 CHAPTER VII. 
 
 ESTATES OF DECEASED BRITISH SUBJECTS LEAVING PROPERTY 
 HERE AND ABROAD. 
 
 THE principles of private international law relating to 
 matters of administration and succession as accepted in 
 this country having been laid down, the precise 'application 
 of those principles in English law to such administration 
 and succession will form the subject of this chapter. 
 
 In many countries the State makes a will for the citizen 
 in the sense that definite provision is made by law for 
 certain classes of relatives and dependants which cannot 
 be affected by any testamentary disposition made or 
 attempted to be made by the testator. 
 
 In this country, however, no such rule of law exists, and 
 the capacity to dispose of one's property extends to the 
 entirety of the assets. 
 
 The division of the subject-matter into testate and 
 intestate succession may be preserved as different prin- 
 ciples of law apply. 
 
 TESTATE SUCCESSION. 
 When Probate will be granted. 
 
 A deceased British subject having left assets in this 
 country and abroad, and having by his will or wills dis- 
 posed of the whole or part of his property in a particular
 
 ESTATES OF DECEASED BRITISH SUBJECTS. 79 
 
 manner, by what tests is it to be determined whether or 
 no the English Courts will grant probate of such will or 
 wills ? 
 
 It has been shown that if a will exists, no executor 
 appointed by that will can (except in certain cases) 
 effectually deal with deceased's estate in this country until 
 the English Courts have formally proved the will and 
 granted probate of it. 
 
 In a purely inland case, if a will apparently valid on 
 the face of it deals with property in this country, and^ 
 appoints an executor, such executor will be able to obtain 
 probate in common form on complying with the ordinary 
 requirements of the Probate Registry, and taking such 
 steps as the practice of the registry demands. The 
 question arises to what extent those domestic requirements 
 are modified when the estate in question contains some 
 foreign element. British subjects frequently have sub- 
 stantial domestic and pecuniary interests in foreign 
 countries, and it is such cases as these that we wish parti- 
 cularly to consider. 
 
 We have seen that the process of obtaining probate of 
 a will in this country is in reality an application to the 
 Courts by the executor for the determination and verifi- 
 cation of his title to deal with the deceased's estate. This 
 being so, it follows that the English Courts will not grant 
 such probate until their own requirements are complied 
 with. The essential facts which an executor must prove 
 before he can successfully apply to the English Probate 
 Court for probate of the will of the deceased are as 
 follows: 
 
 1 . That the deceased left a will or testamentary docu- 
 
 ment or documents. 
 
 2. That the will is valid as to form. 
 
 3. That the testator had the capacity to make the will,
 
 80 ADMINISTRATION OF FOREIGN ESTATES. 
 
 and that the will was effective at the date of 
 death. 
 
 4. That the will, expressly or impliedly, contains an 
 
 appointment of an executor or executors who, at 
 the time when probate is applied for, are capable 
 of acting and willing to act. 
 
 5. That there is some property belonging to the 
 
 deceased situate, either in fact or by presump- 
 tion of law, within the jurisdiction of the Court. 
 
 6. That the party applying for probate has duly proved 
 
 his title, and has adduced the evidence and com- 
 plied with the rules of the lex fori (i.e., the 
 English Courts), and has paid the necessary 
 death duties upon the estate. 
 
 As a general rule, it may be said that all the above 
 requirements must be fulfilled before probate will be 
 granted, and that the absence of any one of them will 
 effectually prevent the executor obtaining probate of the 
 will. (The exceptions to such rule are noted in this 
 chapter.) It may well be, however, that although the 
 Court would not in some circumstances grant probate, yet 
 a grant of letters of administration with the will annexed 
 might be made in the requisite form to the person entitled. 
 
 Dealing first with the question of probate, let us 
 examine these requirements in detail. 
 
 1 . The Deceased must have left a Will or Testamentary 
 Document or Documents. 
 
 This is not the place for the detailed examination of tho 
 English principles relating to wills, and the subject is 
 only dealt with in so far as the presence of a foreign 
 clement allows departures from the strict English muni- 
 cipal testamentary law.
 
 ESTATES OF DECEASED BRITISH SUBJECTS. 81 
 
 It has been said that there is nothing which requires so 
 little solemnity as the making of a will by English law. 
 Lord Hardwicke, in the case of Ross v. Ewer, 3 Atk. 163, 
 says: " There is nothing that requires so little solemnity 
 as the making of a will of personal estate according to the 
 ecclesiastical laws of this realm for there is scarcely any 
 paper writing which they will not admit as such." 
 
 In order to constitute a will, or to entitle a document to 
 be considered as a testamentary writing, the document 
 must clearly show that the maker thereof, or the signatory 
 of the writing, intended the same to operate on his death . 
 
 The actual appearance or nature of the document is 
 wholly immaterial, provided such intention exists, and it 
 is properly executed in accordance with the law governing 
 the form of such documents. 
 
 Thus, these and the preceding requirements being com- 
 plied with, the following documents have been admitted 
 to probate here as wills: A letter, a deed, a deed poll, a 
 statutory declaration, signed memoranda, and other writ- 
 ings in an unusual form . 
 
 If, however, the document is, from its nature, irrevoc- 
 able, the English Courts will not treat it as a will, it being 
 a fundamental rule of English law that a will is revocable 
 at any time. 
 
 There are also cases in which by reference to the lex 
 domicilii the document may be admitted to probate here, 
 although such document may not comply with, or is in 
 fact inconsistent with the above rules of English law and 
 procedure. 
 
 2. The Witt must be valid as to Form. 
 
 Although private international law decided that the 
 capacity of an individual was to be governed by his per- 
 B. 6
 
 82 ADMINISTRATION OF FOREIGN ESTATES. 
 
 sonal law, meaning thereby either the law of his domicile 
 ascertained at the date of his death or his national law, 
 it has from the first moment when this branch of law came 
 to be regarded as a science, and to be developed as such, 
 paid considerable respect to the law of the place where a 
 given transaction was carried into effect. 
 
 Thus, at an early stage of private international law, the 
 law of the place where a contract was made, or a document 
 drawn up, was considered the proper test of the external 
 forms of such contract or document (a). 
 
 The rule was expressed in the Latin phrase " locus regit 
 actum." 
 
 The formal validity of a document depended on the 
 place of execution, the material validity and the effect of 
 its provisions were regulated by the personal law of the 
 contracting parties or that of the signatory of the 
 document. 
 
 In many Continental countries the rule was extended 
 to all classes of legal documents, including wills and testa- 
 mi -i it ary dispositions. 
 
 In England, however, it was otherwise, and although 
 the principle of " locus regit actum " held an important 
 place in the English rules of private international law with 
 regard to the execution and external formalities of con- 
 tracts and certain other documents of a quasi-contractual 
 nature, it never extended to wills and documents of a 
 testamentary nature until, by Lord Kingsdown's Act, 
 1861, such rule was expressly made to apply to wills of 
 British subjects dealing with personal estate. 
 
 According to English ideas a will is essentially different 
 from a contract. The English law knows nothing of the 
 
 (a) See judgment of Lord Manufield in Robimon v. liland, \ W. Bl. 
 234 ; 2 Burr. 1079.
 
 ESTATES OF DECEASED BEITISH SUBJECTS. 83 
 
 ancient contractual will, the " testamentum per as et 
 libram " of early Eoman law. 
 
 In the case of Culling v. Thornton (b) (1823), 2 Add. 
 6, Sir John Nicholl did, it is true, expressly decide upon, 
 the validity of a will by applying- the principles of law 
 governing the formal validity of interpretation of con- 
 * tracts. The rationes decidendi of this case, and of a sub- 
 sequent one by the same judge to the same effect, were, 
 however, expressly disapproved of and rejected by the 
 Appeal Court in Stanley v. Bernes (c) (1831), 3 Hagg. ' 
 Eccl. 447. In that case a testator domiciled in Portugal 
 made a will and two codicils valid by Portuguese law, and 
 two codicils made by him in England in the English form. 
 Sir John Nicholl, applying the principles upon which 
 he had based his decision in Curling v. Thornton, granted 
 probate of the will and all four codicils . 
 
 The Court of Delegates, however, on appeal limited the 
 grant to the will and the two codicils valid according to 
 the law of Portugal, being the law of the domicile. 
 
 In English law the principles governing the formal 
 validity of a will still vary according to the nature of the 
 property to be disposed of. 
 
 In general the formal validity of the will, so far as it 
 relates to immoveables, is governed by the lex situs (d], 
 and, so far as it relates to moveables, by lex domicilii (e), 
 at the time of making the will or at date of death. It 
 must, however, be remembered that in order to determine 
 the validity of a will regard will be had to the law of one 
 
 (f>) See Appendix, where this case is further discussed. 
 (<?) See Appendix. 
 
 (it) See Foote, Private International Jurisprudence, p. 216, and cases 
 there cited. 
 
 () See Appendix, where the cases are set out. 
 
 6(2)
 
 84 ADMINISTRATION OF FOREIGN ESTATES. 
 
 country only at a time. (See Pechell v. Hilderley (1869), 
 L.R. 1P.&D.673.) 
 
 Dealing first with Immoveables. 
 
 We have already discussed the distinction in private 
 international law as received in this country between 
 immoveable and moveable property. 
 
 This distinction has an important bearing on the form 
 of wills and testamentary documents. 
 
 A will dealing with immoveables must, as a general rule, 
 comply with the provisions of the Ux situs, both as to 
 form and effect; and such rule is not affected by any pro- 
 visions of the law of domicile of the deceased. 
 
 If a testator, a British subject, possesses immoveable 
 property out of England, then (in general) the formalities 
 required by the law of the country where the property is 
 situated must be complied with in order to pass by will 
 the beneficial interest therein. 
 
 Seeing that whether property is immoveable or not 
 depends on the lex situs, the importance of this rule to- 
 British subjects who invest their funds in land abroad is 
 obvious. 
 
 In such a case it will usually be wisest for the owner of 
 such property to make separate wills, the one dealing only 
 with the land abroad, and made in accordance with the lex 
 situs of the foreign immoveables; the other dealing with 
 the remainder of his property. 
 
 And generally, where a testator, a British subject, 
 possesses immoveable property in various countries, and 
 personal property as well, he should make as many wills 
 as there are countries in which immoveable property is 
 situate, each in the form required by the local law, and 
 then a general will of his personalty. 
 
 To dispose of lands abroad, therefore, the will must
 
 ESTATES OF DECEASED BRITISH SUBJECTS. 85 
 
 comply with the lex situs it may be, however (and in 
 some countries it is), that the lex situs allows some other 
 form of will than the purely local forms. 
 
 By Italian law immoveable property and moveable pro- 
 perty have been so far assimilated that a will dealing with 
 immoveables is valid as to form if it complies with the 
 personal law of the deceased, regardless of the situs. 
 
 With regard to immoveables in the United Kingdom, 
 however, the rule is absolute. Whatever the domicile of 
 the testator, his will must be made in accordance with the f 
 English Wills Act, in order to pass immoveables within 
 the jurisdiction of the English Courts. (See Westlake, 
 p. 226.) There is, however, an important exception in the 
 case of leasehold interests in land. In such a case, 
 although by the rule of international law leaseholds are 
 immoveables, by a statutory enactment Lord Kings- 
 down's Act, 1861 a British subject can dispose of the 
 beneficial interest in such properties without of necessity 
 complying with the formalities of the lex situs. 
 
 And so in In re Watson (1887), 35 W. R. 711, it was 
 held that an Englishman domiciled in Scotland could 
 'effectively dispose of English leasehold properties by a 
 will executed according to the law of Scotland. 
 
 And in In re De Grassi, Stubberfield v. Grassi, [1905] 
 1 Ch. D. 584, it was held that the holograph will of au 
 Italian subject, who had become a naturalised Englishman, 
 and whose will was formally valid according to Italian law, 
 the lex domicilii, was valid according to Lord Kingsdown's 
 Act, and operated to dispose of the leasehold property in 
 England. Buckley, J., thus decided on the ground that 
 Lord Kingsdown's Act extended to all personal estate, and 
 therefore included leaseholds in England. 
 
 The exception of leaseholds is, however, more apparent 
 than real, as the legality of the will in such cases depends
 
 86 ADMINISTRATION OF FOREIGN ESTATES. 
 
 upon the wording of Lord Kingsdown's Act, which extends 
 to all personal estate, and in which the expression " per- 
 sonal estate " has its full English meaning, and is therefore 
 more extensive than the class of " moveables." 
 
 The division of property in English law into realty and 
 personalty is an arbitrary division arising out of historical 
 development, and does not correspond with the private 
 international law division into immoveables and move- 
 ables. 
 
 Leasehold interests being personal property in English 
 law, thus come expressly within the terms of the Act. 
 
 Or, again, it may be said that Lord Kingsdown's Act is 
 really part and parcel of the lex situs. 
 
 If this be the correct view, the case of leaseholds forms 
 no exception at all, as the English leaseholds 'are in such 
 cases governed by a provision of the lex situs. 
 
 And if this view is correct, it is none the less so because 
 a particular provision of the lex situs refers the matter 
 to some other system of law, such as the law of the 
 domicile. That is to say, the lex situs is not necessarily 
 the territorial law itself, but means any law which the 
 territorial law would consider applicable. 
 
 It must, of course, be remembered that the sections of 
 Lord Kingsdown's Act referred to (i.e., sects. 1 and 2) 
 apply only to British subjects, and consequently a 
 foreigner desiring to dispose of English leaseholds by will 
 must still comply with the strict lex situs, and make his 
 will in the form required by the Wills Act, 1837. (Pepin 
 v. Bruyere, [1900] 2 Ch. 504; [1902] 1 Ch. 24.) 
 
 In that case a Frenchman domiciled in France made a 
 will valid according to the laws of France (that is, valid 
 by the law of his domicile), and it was held by the English 
 Court of Appeal, affirming Kekewich, J., that the will 
 was inoperative to pass leasehold property situated in
 
 ESTATES OF DECEASED BRITISH SUBJECTS. 87 
 
 England, such property being immoveable, and therefore 
 governed by the lex situs and not the lex domicilii. 
 
 In order to avoid the difficulty thus caused, it is a 
 common practice for foreigners owning immoveable pro- 
 perty here, whether real or personal, to make a separate 
 will in accordance with the Wills Act, 1837, limited to 
 such English immoveable property, and a general will 
 dealing with the remainder of their assets. 
 
 It is submitted that a British subject, in addition to 
 being able to dispose of English leaseholds by a will valid 
 under Lord Kingsdown's Act, can still also do so by a will 
 made in accordance with the Wills Act, 1837. 
 
 For example, suppose a natural-born British subject, 
 whose domicile of origin is Trinidad, makes a will while 
 on holiday in Switzerland, at a time when he is domiciled 
 in Germany, it is submitted that he could dispose of lease- 
 hold properties situate in England by any will valid as to 
 form according to any one of the following laws: 
 
 Trinidad. The law of domicile of origin. 
 
 Switzerland. The lex loci. 
 
 Germany. The law of the domicile. 
 
 England. The lex situs contained in the Wills Act, 
 1837. 
 
 In the first three cases the will would depend for its 
 validity upon the terms of Lord Kingsdown's Act (/), 
 and in the last case the will would be valid by the broad 
 principle of English private international law that dis- 
 positions of immoveables are governed by the lex situs. 
 
 Formal validity of Wills of Moveables. 
 
 In England the maxim "mobilia sequuntur personam " 
 is interpreted to mean that the disposition of and succes- 
 
 (/) As construed in the case of Re Grassi, cited above.
 
 88 ADMINISTRATION OF FOREIGN ESTATES. 
 
 sion to the moveable property of a deceased person depends 
 upon the law of the domicile at the date of death (17) . 
 (See Bremer \. Freeman, supra.) 
 
 This is the general rule, but British subjects have more 
 extended privileges by reason of the Act already referred 
 to, i.e., Lord Kingsdown's Act, 1861. 
 
 The rule that the law of the domicile governed succes- 
 sion on intestacy can be traced back at least as far as 1744 
 (sec Pipon v. Pipon, and cases given in the Appendix), 
 but it was not until the case of Somerville v. Somerville 
 (1801) that the question of the application of the lex 
 domicilii in cases of testate succession definitely arose (h). 
 
 In connection with testate succession the form of the 
 will had then to be considered. We have seen that the 
 principle of locus regit actum was at one time applied, but 
 that that view was rejected in Stanley v. Bernes (1831). 
 
 So far as wills of moveable property were concerned, the 
 rule of locus regit actum had no place in English law from 
 that time forward until 1861, when Lord Kingsdown's 
 Act introduced the rule by statute. 
 
 During the period of 1831 to 1861 the Courts regularly 
 refused probate of the wills of deceased British subjects 
 dealing with moveables wherever the form was bad owing 
 to a change of domicile between the time of making the 
 will and the date of death, or where for any other reason 
 the will was not in the form required by the last domicile 
 of the deceased. 
 
 The new rules introduced by Lord Kingsdown's Act 
 extended tho powers of British subjects with regard to the 
 form of wills, but did not in any way lessen the earlier rule 
 
 g) For a dincuwuuu of the earlier case* eHtublitihing thin proposition, 
 aee Appendix. 
 
 (A) See, however, Kilpatriek v. Kilpatrick, cited in the Appendix, 
 and note the argument!* used in Hoy v. Lath If y (1792).
 
 ESTATES OF DECEASED BRITISH SUBJECTS. 89 
 
 that a will valid in form according to the law of the last 
 domicile of the deceased is valid and effectual here so far 
 as moveables are concerned. The statute was an enabling 
 Act, and extended, but did not abrogate, the previous 
 rules. Since Lord Kingsdown's Act, therefore, the posi- 
 tion is this: In order to be valid as to form the will of a 
 British subject dealing with moveables must be either 
 
 (a) Valid according to the law of his domicile at the 
 
 date of death meaning thereby valid according 
 to any law the lex domicilii would apply in the 
 
 j 
 
 circumstances (see p. 91, infra); or 
 
 (b) Valid according to Lord Kingsdown's Act, 
 
 and subject to those cases in which Lord Kingsdown's Act 
 applies, no will of moveables which is not formally valid 
 according to the law of the domicile at the date of death, 
 is valid in England . 
 
 And firstly Validity by the law of the domicile at 
 date of death. 
 
 If a will is formally valid by the law of the domicile at 
 the date of death, it will be considered valid as to form by 
 the English Probate Court (Bremer v. Freeman), even 
 though, according to English notions, the document is not 
 in the form of a will at all (Doglioni v. Crispin (1863), 3 
 S. & T. 96 (see Chapter XVI. for full report of this case)); 
 or where the instrument would be incapable of effect had 
 the domicile been English. (See In bonis Mardver, 1 
 Hagg. 498; and Chapter XVI., post.) 
 
 Where the validity of the will has been adjudicated 
 upon by the Courts of the domicile, the English Court will 
 follow the decision of the Court of the domicile, and make 
 a similar decree. (Miller v. James, L. E. 3 P. & D. 4; 
 Ee Trufort (1887), 36 Ch. D. 600; and see Jarman on 
 Wills, 6th ed., Vol. 1, p. 7, n.; see also the case of In 
 the goods of De Vigny, 13 W. E. 616, 640.)
 
 90 ADMINISTRATION OF FOREIGN ESTATES. 
 
 If the matter has not arisen in the Courts of the domi- 
 cile, the English Court will endeavour to ascertain the law 
 of the domicile and itself apply it to the issues before the- 
 Court (). 
 
 Again, where there is a defect in the form of the will 
 according to the test of the law of domicile, the English 
 Court will apply the law of the domicile, and if satisfied 
 that the defect is one which would have been remedied by 
 the Courts of the domicile, will itself allow the will to be 
 deemed formally valid in England for all purposes. This 
 is merely an instance of the general rule that the English 
 judge will place himself in the same surroundings as the 
 foreign judge, and will endeavour to make the same decree 
 that the foreign Court would make. 
 
 It seems that the English Court will grant equitable 
 relief whenever, in the opinion of the Court, such relief 
 should be granted, without too closely scrutinizing the 
 actions of the Court of the domicile in similar cases. 
 
 Thus, recently a postcard was admitted to probate in 
 England as the will of a deceased in a case where a domi- 
 ciled Frenchwoman had in accordance with French law 
 made a holograph will on the back of a postcard, although 
 the instrument was wrongly dated. By French law the 
 date of a holograph will is a material consideration, and 
 any error or omission is usually fatal. The English Court 
 held, however, that the wrong date was filled in by inad- 
 vertence, and that the testator's intentions having been 
 clearly shown, the circumstances were such as to justify 
 the Court in remedying the defect. (Lyne v. De la Ferte 
 (1910), 102 L. T. 143.) 
 
 Where the country of the domicile has no general form 
 
 (i) Proof of foreign law, being a question of procedure, is governed by 
 the Itx fort. For the English practice, see Weetlake, 424 428.
 
 ESTATES OF DECEASED BRITISH SUBJECTS. 91 
 
 of testament, a will formally valid according to general 
 principles will be treated here as valid in form for purposes 
 of admission to probate. (Stokes v. Stokes, 67 L. J. P. 
 55.) 
 
 Mr. Bentwick, in his book on Domicile and Succession, 
 at pp. 116, 117, suggests that the same rule applies to 
 the case of residents belonging to a Christian community 
 in an Oriental or non-Christian country, and although the 
 matter does not appear to have been expressly decided, it 
 
 would seem most in accordance with logic that the rule 
 
 / 
 
 should be so. 
 
 Where the will is not in accordance with the forms 
 required by the law of the domicile (meaning thereby the 
 territorial law of the country of the domicile), it will be 
 held to be valid as to form if the Courts of the country of 
 the domicile would give effect to the will. (See Be Lacroix 
 (1877), 2 P. D. 94 (fc).) 
 
 Thus, a testatrix domiciled in France made a will in 
 English form. The French law, that is, the French Civil 
 Code, required, under similar circumstances, a will exe- 
 cuted in a different form but evidence was given that in 
 the particular circumstances the French Courts would give 
 effect to the will. It was held that the will was valid. 
 (Be Broim-Sequard, 70 L. T. N. S. 811 ; see also Re 
 Bowes, Bates v. Wengel, supra.} 
 
 Changes in the law of the domicile between death of the 
 testator and distribution of the estate do not affect the 
 validity of the will. 
 
 The will must be valid according to the law of the 
 domicile at death no subsequent change in the law, even 
 though specifically declared to be retrospective, is allowed 
 
 (k) Also see Collier v. Rivaz ; De Bonneval v. De Bonneval ; Anderson v. 
 Laneuville ; Re Bowes, Bales v. Wenyel ; and cases cited.
 
 92 ADMINISTRATION OF FOREIGN ESTATES. 
 
 to affect the matter. (Lynch v. Provisional Government 
 of Paraguay (1871), L. R. 2 P. & M. 241; and later Re 
 Aganoor's Trusts (1895), 64 L. J. Ch. 521 (Eomer, J.).) 
 
 Secondly Validity under Lord Kingsdowu's Act. 
 
 The Wills Act, 1861 (24 & 25 Viet. c. 114), known as 
 Lord Kingsdown's Act, enacts as follows: 
 
 1. Every will and other testamentary instrument made 
 out of the United Kingdom by a British subject (whatever 
 may be the domicile of such person at the time of making 
 same, or at the time of his or her death) shall, as regards 
 personal estate, be held to be well executed for the purpose 
 of being admitted in England and Ireland to probate and 
 in Scotland to confirmation if the same be made according 
 to the forms required either by the law of the place where 
 the same was made, or by the law of the place where such 
 person was domiciled when the same was made, or by the 
 laws then in force in that part of her Majesty's dominions 
 where he had his domicile of origin. 
 
 2. Every will or other testamentary instrument made 
 in the United Kingdom by any British subject (whatever 
 be the domicile of such person at the time of making the 
 same, or at the time of his or her death) shall, as regards 
 personal estate, be held to be well executed, and shall be 
 admitted in England and Ireland to probate and in Scot- 
 land to confirmation if the same be executed according to 
 the forms required by the laws for the time being in force 
 in that part of the United Kingdom where the same is 
 made. 
 
 3. No will or other testamentary instrument shall be 
 held to be revoked or to have become invalid, nor shall the 
 construction thereof be altered, by reason of any subse- 
 quent change of domicile of the person making the same. 
 
 4. Nothing in this Act contained shall invalidate any 
 will or other testamentary instrument as regards personal
 
 ESTATES OF DECEASED BRITISH SUBJECTS. 95 
 
 estate which would have been valid if this Act had not 
 been passed, except so far as such will or other testamen- 
 tary instrument may be revoked or altered by any subse- 
 quent will or testamentary instrument made valid by this 
 Act. 
 
 5 . This Act shall extend only to wills and other testa- 
 mentary instruments made by persons who die after the 
 passing of this Act. 
 
 From sect. 1 it will be seen that a British subject can 
 make a will of " personal estate " out of the United King- 
 dom, valid as to form if the same is valid according 
 
 (1) Either to the law of the place where it is made 
 
 (locus regit actum) ; or 
 
 (2) To the law of the domicile at the time the will is 
 
 made; or 
 
 (3) To the law of that part of his Majesty's dominions 
 
 where the testator had his domicile of origin; 
 
 and that within the United Kingdom a will of personal 
 estate made by a British subject is valid as to form by 
 sect. 2 of the Act if executed in accordance with the law 
 of that part of the United Kingdom where it is made. 
 
 These two sections apply only to British subjects. 
 
 They apply, however, to both natural-born British sub- 
 jects and those who become so by naturalisation. (In the 
 goods of Gaily (1876), 1 P. 438; In the goods of Lacroix,. 
 L. R. 2 P. 94.) 
 
 In such case the testator must be a British subject at 
 the time of making the will. Acquisition of British 
 nationality at a period of time subsequent to the execution 
 of the will is not sufficient to render a will effective which 
 would otherwise be invalid, and conversely the fact that 
 the testator was at one period a British subject is imma- 
 terial if he has altered his nationality at the date of making-
 
 94 ADMINISTRATION OF FOREIGN ESTATES. 
 
 his will. (In the goods of Buseclc (1881), 6 P. D. 211; 
 and Eloxain v. Favre (1883), 8 P. D. 101; and on appeal 
 (1884), 9 P. D. 130.) 
 
 The words of the statute are, " will or other testamentary 
 instrument made by a British subject." 
 
 The rule also is limited to personal estate. This, how- 
 ever, extends not only to pure personalty, but to all 
 property which is by English law treated as personalty, 
 including chattels real, viz., leaseholds. 
 
 The statute takes no notice of the more usual division 
 of property into moveable and immoveable, and personal 
 estate is given, therefore, its fullest interpretation, and 
 includes other immoveables treated as personal property 
 by English law. 
 
 Professor Dicey points out in his Conflict" of Laws, 
 2nd ed., at p. 675, that the law of the domicile of origin 
 is only applicable in those cases where the domicile of 
 origin is in a country forming part of the British Empire. 
 
 If the domicile of origin of a British subject were in 
 any other country than a part of the British Empire, the 
 statute would not apply in this respect. This is of special 
 importance in the case of naturalised British subjects, who 
 will, therefore, usually be limited to two alternatives, 
 either the law of the domicile at the time the will is made 
 or the law of the place where the will is made. 
 
 The words "law of the place" in sect. 1 invariably 
 
 i lira n any law that the Court of the place would themselves 
 
 apply to the particular case, and are not restricted to the 
 
 municipal or territorial laws of the country referred to. 
 
 In the goods o/ Lacroix (1877), 2 P. D. 94.) 
 
 Sect. 3 involves a great innovation. Change of domi- 
 cilr between the making of the will and the death of the 
 tr-tatnr had been the cause of defeating many a testator's 
 \\ Nies prior to 1861.
 
 ESTATES OF DECEASED BRITISH SUBJECTS. 95 
 
 It has been held, in spite of the preamble to the Act 
 and the general tenor of its provisions, that this section is 
 of universal application, and extends to British subjects 
 and foreigners alike. (See Re Groos, infra (I}.) 
 
 The section especially refers to invalidity of wills. It 
 lays down a negative rule, no will shall be rendered invalid 
 by a change of domicile. 
 
 Sect. 4 preserves all wills valid without the Act, except 
 so far as the ordinary principles of revocation apply. 
 
 Sect. 5 shows that although the Act only applies to the 
 
 4 
 
 wills of persons dying since the passing of the Act (6th 
 August, 1861), yet as to such persons its provisions are 
 retrospective. 
 
 So far as personal property is concerned the Act, there- 
 fore, gives a very extensive freedom to British subjects 
 in matters of formal requirement in cases of wills and 
 testamentary instruments, and in practice nearly all wills 
 made out of the United Kingdom by British subjects, 
 whose deaths have taken place since the date of the passing 
 of the measure, depend for their validity upon the enabling 
 provisions of the Act; whilst the provisions of the all- 
 important 3rd section (by which change of domicile does 
 not affect validity of wills) are greatly relied upon by 
 those responsible for preparing wills of British subjects 
 and foreigners alike. 
 
 There is on the English Statute Book a further enabling 
 Act (24 & 25 Viet. c. 121, 6th August, 1861), entitled An 
 Act to amend the law in relation to the wills and domicile 
 of British subjects dying whilst resident abroad, and of 
 foreign subjects dying whilst resident within her 
 Majesty's dominions. 
 
 (I) The fourth edition of Foote's Private International Jurisprudence 
 was completed in 1903, and published in 1904, prior to the decision in 
 this case. The statements on pp. 267269 must therefore be revised in 
 this respect.
 
 96 ADMINISTRATION OF FOREIGN ESTATES. 
 
 Under this Act certain rules were laid down governing 
 wills and domicile of British and foreign subjects, to be 
 carried into effect by means of Conventions with foreign 
 countries. 
 
 No Convention has, however, been made under this Act, 
 and it remains practically a dead letter (m) . 
 
 With reference to change of domicile a further question 
 has arisen: Can change of domicile validate a will in so 
 far as the formalities of execution are required ? The 
 answer would appear to be in the affirmative. 
 
 If the law of the domicile at the date of death treated 
 the will as valid, it is apparently immaterial that at the 
 time of making it the document was bad in form and of no 
 effect. (Dicey, 2nd ed., notes to Rule 187, at pp. 682 
 et seq.*) 
 
 We deal later with the question of construction, and 
 refer here solely to the " form " of the will. 
 
 3. The Will must be one which the Testator had the 
 requisite capacity to make, the provisiom of which 
 are not invalid, and which is effective at the date of 
 death. 
 
 And first of capacity. Testamentary capacity in 
 English law is a branch of status, and all questions of 
 status are governed by the law of the domicile, with the 
 exception of those relating to immoveables in England. 
 However, it must at onoe be pointed out the question of 
 capacity to make a will does not of necessity arise in every 
 OM0. 
 
 If a will is valid as to form, bears no apparent defect, 
 and the remaining requirements of the Probate Court are 
 complied with, probate in common form would, as a rule, 
 be granted, without inquiry as to the capacity of the 
 
 (m) See, however, Foot*, pp. 66, 66 (n.).
 
 ESTATES OF DECEASED BRITISH SUBJECTS. 97 
 
 testator (but in all cases where Lord Kingsdown's Act is 
 called in aid an affidavit of British status has to be filed 
 to show that the Act does in fact apply) . 
 
 Where, however, the question is raised, or where objec- 
 tion is taken, the testamentary capacity of the testator 
 must be proved. 
 
 In English law capacity to make a will must exist at 
 the time the will is made, and is probably governed by the 
 law of the testator's domicile at that time. (See Dicey, 
 notes to Rule 184; Story, sect. 465.) 
 
 Thus, a will made by a person under age, according to 
 the law of his domicile, would be invalid, although full 
 age might have been attained before the date of death. 
 
 The making of a will is regarded as an act of great 
 importance, and it is in accordance with general principles 
 of law that a will to be regarded as valid must be the 
 voluntary expression of a testator's desires, arrived at with 
 due understanding and of his own volition. 
 
 A person who is incapable of understanding the nature 
 and effect of a testament is incapable of making one. 
 
 A will made through fear, under duress, by fraud or 
 otherwise against the desire of the person making it, would 
 not be given effect by the English Courts. 
 
 This being so, several classes of persons are placed by 
 law under a testamentary incapacity varying according to 
 their powers. 
 
 Thus, different provisions apply in the case of those 
 who are blind or deaf, or are otherwise deprived of the 
 full use of their faculties. 
 
 Testamentary capacity being governed by the law of 
 the domicile, generally at the time of the will being 
 made (n), it is important to consider the various classes of 
 
 () But see Westlake, p. 125. 
 B. 7
 
 98 ADMINISTRATION OF FOREIGN ESTATES. 
 
 persons who are incapacitated from the full powers of 
 testacy. 
 
 In English law, persons under the age of twenty-one 
 years are, as a general rule, unable to make wills, as are 
 also persons of unsound mind. 
 
 Similar restrictions prevail in most civilised countries, 
 although the details vary, and in some cases the incapacity 
 is absolute, whilst in others it is limited, and the age limit 
 as to minority varies very greatly in the various countries 
 possessing a defined system of law. 
 
 In Continental countries there are also a number of 
 incapacities of a more or less penal nature unknown to 
 English law, such as the limited status of the " prodigal " 
 in French law, and the spendthrift of those other systems 
 which have their origin in the Roman law. (As to how 
 far these will be recognised in the English Courts, see 
 p. 104, infra.} 
 
 With regard to capacity, as in other branches of private 
 international law, different rules apply according to the 
 nature of the assets to which reference is made. In the 
 case of immoveables by English law (in the absence of 
 any trust or personal contract) all questions of testamen- 
 tary capacity are referred to the lex situs in common with 
 questions of form and material validity. (See Curtis v. 
 Hutton; Nelson v. Bridport ; Sell v. Miller; Harrison 
 v. Harrison ; cited in Westlake, p. 225, and Foote, p. 216, 
 and cases there cited.) 
 
 Capacity to dispose by will of English freeholds is 
 governed solely by the lex situs, regardless of any powers, 
 privileges or limitations granted or imposed by the law of 
 the domicile of the testator. (In re Hernando, 27 Ch. D. 
 284.) 
 
 With regard to moveables, testamentary capacity is in 
 general in English law to be determined according to the
 
 ESTATES OF DECEASED BRITISH SUBJECTS. 99 
 
 law of the domicile of the deceased at the time the will is 
 made. (Story, Conflict of Laws, sect. 465; Dicey, 2nd 
 ed., Rule 187, and notes, at p. 683; see, however, West- 
 lake, 5th ed., p. 125, and Bentwich, 101.) 
 
 As a general rule, however, where at the date of his 
 death a testator is domiciled in a foreign country, he can 
 take advantage of any powers conferred upon him by the 
 laws of that country. 
 
 Thus, if the foreign law allows an infant (under the age 
 of twenty-one) to make a valid will, the will of an infant 
 British subject domiciled in that country, made in accord- 
 ance with the local law, would be valid even though, 
 according to British principles, the testator had no testa- 
 mentary capacity at all. (Re Hellmann's Witt, L. R. 
 2 Eq. 363.) 
 
 The rule applies not only to enabling provisions of the 
 law of the domicile, but to restrictive conditions also, 
 unless indeed they are restrictions which are referred to 
 in this country as of a penal nature in which case the 
 condition would be disregarded by the Courts of this 
 country. (See Re Selot's Trusts, infra.} 
 
 Once it is shown that a testator had power to make a 
 testament, a further question of capacity may arise: Was 
 the testator prevented from disposing of his estate, and if 
 so, to what extent; and what law is to determine the 
 matter ? 
 
 For instance, the capacity of a testator to dispose of his 
 estate may be limited in the following ways: 
 
 (a) There may be persons he cannot disinherit. 
 
 (b) There may be persons he cannot benefit to more 
 
 than a certain extent. 
 
 (c) There may be restrictions as to imposing conditions 
 
 upon bequests. 
 
 7(2)
 
 100 ADMINISTRATION OF FOREIGN ESTATES. 
 
 (d) The dispositions may themselves be invalid unless 
 within prescribed limits. 
 
 All of which, however, are in some measure governed 
 by the law of the domicile ascertained at the date of death. 
 
 Capacity as regards (a) may be limited in cases where 
 a marriage settlement exists, or in which the law of the 
 matrimonial domicile gives the parties to a marriage rights 
 and interests in the property of each other, such as in the 
 case of the French communio bononim. 
 
 In England it is a common practice prior to the solemni- 
 sation of a marriage for a settlement to be entered into, 
 whereby certain property belonging, it may be, to either 
 or both of the spouses is conveyed to trustees upon certain 
 trusts declared by the indenture of settlement. 
 
 In many other countries the positive law of the country 
 makes provision for a similar arrangement, either under 
 the Continental system of community of goods, or by 
 regulating the rights of the parties to a marriage in some 
 other similar way. 
 
 Where, therefore, a marriage contract exists, or where 
 the. law of the country of the matrimonial domicile pre- 
 scribes the rights of the parties, the testamentary capacity 
 of those parties may be affected, in so far as the property so 
 regulated is concerned. 
 
 It has recently been held by the House of Lords that the 
 rights given on marriage by the law of the matrimonial 
 domicile are not affected by a subsequent change of 
 domicile of the parties to the marriage. (De Nichols v. 
 CttrJier, [1900] A. C.21.) 
 
 Where, therefore, upon a marriage, a marriage contract 
 or settlement is made, or where a rule of the lex loci exists, 
 which regulates the property of the spouses, such contract, 
 settlement, or rule of law shall have full effect given to 
 its provisions wherever the parties may afterwards be
 
 ESTATES OF DECEASED BRITISH SUBJECTS. 101 
 
 domiciled. It may, therefore, frequently happen that the 
 testamentary capacity of either or both of the spouses is 
 very seriously limited or curtailed by a previous contract 
 of marriage or other equivalent provision . Where the law 
 of the matrimonial domicile does not give either party any 
 rights in the property of the other during life, the rights 
 of the parties on death can be changed by a subsequent 
 change of the husband's domicile, since in that case the 
 domicile at the death of either spouse would govern the 
 rights of the other in all cases of intestacy. (See Lashley 
 v. Hog (1804), 4 Paton, 581, discussed and distinguished 
 in De Nichols v. Curlier ; see also on a similar point, Re 
 Fitzgerald, [1904] 1 Ch. 573.) See also Westlake, at 
 p. 156:- 
 
 " If any dispositions are invalid by the law of the last 
 domicile, whether as being in excess of the disposing power 
 allowed by it, or for any other reason, they will fail to 
 effect," and later on the same point, " The right of a widow 
 or child to legitim and consequently to defeat any contrary 
 disposition made by the testator depends entirely on the 
 law of the last domicile. (See Hog v. Lashley.)" 
 
 As to (b) . By the laws of many Continental countries 
 it is not competent for a testator to give away to strangers 
 in blood more than a certain proportion of his estate. 
 
 The existence or not of such a restriction will depend 
 upon the testator's domicile at the date of his death. 
 
 Thus, in the case of Re Pryce, Lawjord v. Pryce, [1911] 
 2 Ch. 286 (C. A.), the testatrix was domiciled in Holland 
 at the date of her death, and purported by her will to 
 dispose of all her property in favour of a beneficiary. 
 
 By the law of the domicile at the date of death her 
 mother was entitled to a one-tenth share of her estate. It 
 was, therefore, held that under the circumstances she was 
 unable completely to dispose of her property, and that
 
 102 ADMINISTRATION OF FOREIGN ESTATES. 
 
 one-tenth part must be considered as belonging to her 
 mother in spite of the will. (This was a ease involving 
 the exercise by will of a general power of appointment, 
 and the question was whether the appointor, by making 
 the funds subject to the power, general assets, could over- 
 ride the provisions of the law of the domicile, and it was 
 held that she could not. The same case is discussed later 
 in connection with the subject of powers of appointment.) 
 
 As to (c). It is unnecessary to discuss at length the 
 question of conditions attached by a testator's will to the 
 legacies and bequests given thereby. The general prin- 
 ciples of law relating thereto are well known, and such 
 conditions, in so far as they relate to moveablc property, 
 are usually valid or invalid according to the law of the 
 domicile of the testator at the date of his death. 
 
 However, cases sometimes arise in which the conditions 
 attached to a gift, either by the testator himself or by the 
 law of the domicile of the beneficiary, are repugnant to 
 some established principle of English law. 
 
 Where such is the case the English Courts will not 
 assist any party to proceedings pending before them to 
 support or take advantage of such conditions or restric- 
 tions. 
 
 Indeed, in proceedings in this country, there are 
 authorities for showing that such conditions will be 
 ignored by the English Courts. Thus, in the case of 
 Worms v. De Valdor (1880), 49 L. J. Ch. 261, a Fr.-n.-h 
 plaintiff, who had been adjudicated a " prodigal " in 
 France, and who consequently was unable by French la\v 
 to conmii'iicf proceedings without the concurrence of his 
 conseil jii(li< i'lifi . \vas allowed to sue here in his own name 
 and without such concurrem 
 
 This was followed in the case of Re Selot's Trust, [1902] 
 1 Ch. 488, by Lord Justice Farwell (then Mr. Justice
 
 ESTATES OF DECEASED BRITISH SUBJECTS. 103 
 
 Farwell), who quoted the earlier case (Worms v. De 
 Valdor} with approval, and on similar grounds to those 
 expressed in that case, allowed a Frenchman, who had been 
 similarly declared a prodigal, to obtain payment out of 
 Court to himself of certain funds in Court here, and this, 
 not only without the concurrence of his conseil judiciaire, 
 but in spite of the most active opposition of that official. 
 
 These two cases have been adversely criticised by text- 
 book writers (see Westlake, p. 53, and Bentwich, p. 104, 
 although Dicey apparently does not disapprove, nor does 
 Foote, see p. 82). 
 
 It would certainly seem that the two cases were con- 
 cerned with a change of status, which would in the 
 ordinary way have been referred solely to the law of the 
 domicile for its legal effect. 
 
 Moreover, it seems a little fantastic to place such classes 
 of personal disqualification as those of the French prodigal 
 on an equal footing with slavery and other penal conditions 
 which would never be tolerated by any modern system of 
 law . 
 
 However this may be, there can be no two opinions as 
 to the view taken by the judges of the English Chancery 
 Division on the matter. 
 
 The case of Re Selot's Trust, although only a decision 
 of a Court of First Instande, was not appealed from, and 
 has remained for over ten years without being overruled, 
 or even being judicially dissented from. The question 
 has been before the Courts recently in the unreported case 
 of In re Mouchel, Thompson v. The Orphelines de Ste. 
 Marie, Neville, J., December 12th, 1912. In that case 
 the testator, a Frenchman, domiciled in England, had by 
 an English will made in the English language in the 
 English form, and with English executors and trustees, 
 bequeathed a certain share of his residuary personal estate 
 to a charitable institution in France.
 
 104 ADMINISTRATION OF FOREIGN ESTATES. 
 
 By the French Civil Code a charitable institution in 
 France is unable to accept legacies until authorised by the 
 decree of the President of the Republic so to do. This 
 authorisation had never been obtained, and it was eon- 
 tended by counsel for the next of kin of the testator that 
 under those circumstances there was an intestacy as to the 
 share of the residue in question. The matter was argued 
 at length, and the case of Re Selof* Tn<*l \\a> <jiioted with 
 approval by the judge. The point wa- not. how.-ver, 
 expressly decided as to whether that restriction on the 
 acceptance of charitable legacies under English \\ills was 
 one which the Court would uphold, as the judge decided 
 on the construction of the will, that the gift could be 
 construed to be a gift to an individual on behalf of the 
 charity, and not as a gift to the charity itself. He, there- 
 fore, upheld the legacy. In the course of his judgment. 
 Mr. 'Justice Neville remarked that he \va< dearly of 
 opinion that as the bequest in his view was a bequest to 
 an individual, he should decree payment without regard 
 to any condition imposed by foreign law of the kind men- 
 tioned, but that had he come to the conclusion that the gift 
 was one in favour of a corporation different considerations 
 would have arisen. In that cast 1 it might well be that a 
 corporation could only have the powers given to it by 
 the law of the country where it was incorporated. If that 
 law gave no power to accept legaci. - r\.-e|it under certain 
 conditions, then, unless those conditions were complied 
 with, probably the gift would have failed. 
 
 From the remarks of the judge in this case it may there- 
 fore be safely stated that the English Courts will entirely 
 disregard any condition or status which is in any decree 
 unknown to, or is of a kind repugnant to, English i 
 whenever the matter concerns an individual. 
 
 As to corporations, see also Westlake, pp. 388, 389. 
 
 As to (d). The limitations in the will must not be
 
 ESTATES OF DECEASED BRITISH SUBJECTS. 105 
 
 invalid; in other words, the will must not be subject to 
 material invalidity, as determined by the appropriate test. 
 
 In the same way as in cases of capacity, common form 
 probate can usually be obtained, if a will is valid as to 
 form, without discussing the material validity of the dis- 
 positions contained in it. The validity of these is usually 
 a matter for the Court of construction to decide at a later 
 stage. 
 
 The subject must, however, be noticed in passing, as it 
 is possible for cases to arise in which the invalidity would, 
 if brought to the notice of the Probate Court, effectually 
 prevent the will being proved. 
 
 As the question of validity usually arises in adminis- 
 tration proceedings after probate has been obtained, the 
 question is discussed later in connection with other matters 
 arising upon construction. 
 
 The will must be effective at the date of death, that is, 
 the will must remain in force and unrevoked at the time 
 the testator dies. 
 
 The general principles of revocation need not be set 
 out here, as to which see the text-books on the law of wills. 
 One particular method of revocation, to which attention 
 has been given by the Courts of this country in such cases 
 as those under discussion in this book, is, however, that of 
 revocation by marriage. 
 
 By English law, marriage absolutely revokes the will 
 of a man or woman made prior thereto (except as to certain 
 property which would not under any circumstances pass 
 to his or her representatives in the event of no will being 
 made). 
 
 This rule, however, is modified where a conflict of laws 
 arises, and the question of the domicile of the testator or 
 testatrix at the time of marriage has to be considered. 
 
 It is submitted that the true rule of English law now
 
 106 ADMINISTRATION OF FOREIGN ESTATES. 
 
 adopted by the English Courts is that the question of the 
 effect of marriage upon the validity of an ante-nuptial 
 will is determined by reference to the law of the domicile 
 of the parties contracting the marriage at the date of the 
 marriage, which means the law of the domicile of the 
 husband at the time the marriage is celebrated. 
 
 If the law of the husband's domicile at that time revokes 
 the will on account of the marriage, the .will is revoked 
 independently of any subsequent change of domicile, or 
 df t IK- laws of the country where the marriage is celebrated. 
 
 And, conversely, if by that law marriage does not 
 operate to revoke the will, then the will is good and 
 remains valid in spite of the parties subsequently becom- 
 ing domiciled in a country where the rule is otherwise. 
 
 Thus, in the case of In the goods of Reid, L. II. 1 
 P. & D. 74, Sir J. P. Wilde admitted to probate the will 
 of a person dying domiciled in England, who whilst domi- 
 ciled in Scotland had made a will and subsequently 
 married, and then acquired an English domicile. By 
 Scotch law, marriage had no effect on the will. It was 
 then-fore held to be valid here. 
 
 Inasmuch, however, as Lord Kingsdown's Act (sect. ;> > 
 specifically enacts that "no testamentary instrument shall 
 be held to have become invalid, nor shall the construction 
 thereof In altered, by reason of any change of domicile of 
 the person making the same"; it has been contended in 
 sum. ijiiarters that the view expressed above is inaccurate. 
 
 The opponents of the rule stated above suggest that the 
 true rule is this: That if the will is valid when niadi-. no 
 subsequent change of domicile makes it invalid, so that if 
 h\ the hi\v of the new domicile marriage revokes the will, 
 and the testator having made a \alid will, changes his 
 domicile and then marries, the \\ill \\onld not be rend'-ivd 
 invalid owing to sect. 3 of Lord Kingsdown's Act
 
 ESTATES OF DECEASED BRITISH SUBJECTS. 107 
 
 (although if the law of the matrimonial domicile gives 
 either party rights which cannot be defeated by testation, 
 the will would to that extent be ineffective and invalid, 
 but not revoked). The authorities, apparently, relied 
 upon for this proposition are the cases of In the goods of 
 Reid, quoted above, and that of In the goods of Groos, 
 [1904] P. 269. 
 
 Considering first the case of In the goods of Reid, we 
 find that in that case, in his judgment, Sir J. P. Wilde 
 said: 
 
 " It appears that at the time the will was made it was a 
 good will, that the deceased was married on the day after 
 it was made, but it was still a good will notwithstanding 
 the marriage, that he remained domiciled in Scotland for 
 some time, and that up to the time that he abandoned his 
 Scotch domicile the will was good . He afterwards changed 
 his Scotch domicile for an English domicile, but he did 
 nothing after he came to England which had the slightest 
 effect on the validity of the will, either by the law of 
 England or by the law of Scotland. If, therefore, he 
 should be held to have revoked his will by passing from 
 Scotland to England, it would be impossible to say that 
 the will was not revoked ' by reason of a subsequent change 
 of domicile.' The section, therefore, directly applies to the 
 case and the will is valid. If instead of marrying in 
 Scotland, he had married in England after he had obtained 
 an English domicile, a question of some nicety would 
 probably have arisen." 
 
 It would appear, therefore, that the learned judge had 
 decided the case on the basis that it was one governed by 
 the 3rd section of Lord Kingsdown's Act. 
 
 It is submitted that the judgment is inconsistent on the 
 face of it. It is stated accurately enough that at the time 
 the testator married, his will was valid by Scotch law (the
 
 108 ADMINISTRATION OK FOREIGN ESTATES. 
 
 lex domicilii), and that down to the moment of leaving 
 Scotland his will remained valid . 
 
 Now, the only reason alleged for revoking the will \va 
 the fact of the testator having married after the will was 
 made. It was, therefore, quite unnecessary for the learned 
 judge to have discussed the effect of the change of domicile 
 no change of domicile after marriage could have affected 
 tlu> validity of the will, and it was never suggested by 
 any party to the suit that such was the case. 
 
 Whilst therefore agreeing that on the facts of that case 
 tlir will was unquestionably valid at the date of death, it 
 seems to us that there was a confusion of thought in 
 deciding the case by reference to sect. 3 of Lord Kings- 
 down's Act, which in our opinion has no application to 
 such a case. (See also the case of In the goods of Van 
 Faber,2Q T. L. R. 640.) 
 
 But however that may be, suppose the facts had been 
 these: Whilst domiciled in Scotland the testator had 
 made a valid will and subsequently became domiciled in 
 England, and whilst so domiciled married, could it be 
 said that owing to sect. 3 of Lord Kingsdown's Act the 
 will remained invalid ? 
 
 Could it for one moment be pretended that the old- 
 established rule of English law, whereby marriage revokes 
 a previous will, did not apply owing to the mere accident 
 that there had been a change of domicile since the making 
 of the will, and that the testator was therefore entitled to 
 pray in aid the wording of a statute passed to effect a very 
 different purpose ? 
 
 It is respectfully submitted that it is perfectly clear tint 
 it could not, and that the will would be revoked in such a 
 case. (See In re Martin, Loustalan v. Loustalan, [1900] 
 P. 211 (C. A.).) 
 
 In that case it was held by Rigby and Vaughan
 
 ESTATES OF DECEASED BRITISH SUBJECTS. 109 
 
 Williams, L. JJ. (Lindley, M. R., dissenting), that as 
 the domicile of the husband, and consequently of the wife 
 (the testatrix), at the time of marriage was English, the 
 question of the validity of the ante-nuptial will was 
 governed by English law and not by French law (the law 
 of the domicile at the time the will was drawn up), and 
 that being so, that the will was revoked by the marriage. 
 The case is a very valuable one in private international 
 law, and contains many judicial pronouncements of an 
 important nature. The case turned purely on the facts 
 as to domicile, the Master of the Rolls dissenting from the 
 other members of the Court solely upon this point. 
 
 So far as the effect of marriage upon a will is concerned 
 all three judges of the Court of Appeal are unanimous. 
 Thus Lord Lindley in his judgment says: 
 
 " If the domicile of the deceased is to be treated as 
 English, when she became a married woman her will was 
 revoked by her marriage, for such is the law of England 
 whatever the intention of the parties may be (1 Jarman on 
 Wills, c. 7) ; but if the domicile was French her will would 
 not be revoked by English law, and still less by French 
 law. Both laws are alike in regarding her domicile as 
 that of her husband so soon as she married him . The effect 
 of the marriage must therefore depend on the English view 
 of his domicile." 
 
 And later (at p. 233 of the report) he says: 
 
 "It is not necessary to cite authorities to show that 
 it is now settled that according to international law as 
 understood in England the effect of the marriage on the 
 moveable property of spouses depends (in the absence of 
 express contract) on the domicile of the husband in the 
 English sense at the time of the marriage . The authorities 
 will be found collected in Foote's International Law, 2nd 
 ed., pp. 315 321, and Dicey's Conflict of Laws, p. 648.
 
 110 ADMINISTRATION OF FOREIGN ESTATES. 
 
 This being clear, if the domicile was French at the date of 
 marriage the will was not revoked." 
 
 And Vaughan Williams, L. J., says (at p. 240): 
 
 " I think that the rule of English law, which makes a 
 woman's will null and void on her marriage, is part of the 
 matrimonial law and not of the testamentary law," and 
 further on in the same case: " In my opinion the effect of 
 the husband's domicile on the matrimonial property is 
 based on the presumption that you must read the law of 
 the husband's domicile into the marriage contract as a 
 term of it, unless there is an express agreement to the 
 contrary." 
 
 In the later case of In the goods of Groos, [1904] P. 
 269, Sir Francis Jeune (President) appears to again con- 
 fuse the point at issue. 
 
 In that case the testatrix whilst domiciled in Holland 
 made a will valid according to Dutch law, and subse- 
 quently whilst still so domiciled in Holland was married 
 there with all the formalities required by Dutch law. 
 She subsequently acquired an English domicile, and died 
 domiciled in England . It was therefore held that the will 
 was not revoked by marriage. 
 
 Upon motion being made for probate of the will it was 
 sought to validate the will by reference to sect. 3 of Lord 
 Kingsdown's Act (and the case is reported on the proposi- 
 tion that notwithstanding the preamble and title of the 
 Act, and the apparent scope of its provisions and limitation 
 to British subjects, this particular section is of general 
 application, and applies to British subjects and foreigners 
 alike). 
 
 In his judgment Gorell Barnes, J., says (at p. 272): 
 
 " The point for my determination is whether the change 
 of domicile renders the will bad on account of the marriage 
 which took place after the execution of the will."
 
 ESTATES OF DECEASED BRITISH SUBJECTS. Ill 
 
 It is submitted with great respect that a change of 
 domicile after the date of marriage could not possibly 
 have affected the validity of the will. 
 
 Neither In the goods of Reid, nor the case of Re Martin, 
 Loustalmi v. Loustalan, appear to have been cited, and 
 neither are expressly referred to in the judgment. 
 
 In addition, however, to these English authorities there 
 is an important Scotch decision, Westerman v. Schicab 
 (reported in 1905, 13 Scots Law Times Eeports, 594), in 
 which the learned judges discussed the principles at great 
 length, and examined the English authorities bearing, 
 upon the matter. 
 
 In that case a domiciled Englishwoman made a will 
 properly executed according to English law, and thereafter 
 married a domiciled Scotchman, and subsequently died in 
 Scotland. Held, that the will was not revoked by reason 
 of the marriage. Throughout the case no mention what- 
 ever is made of Lord Kingsdown's Act. The learned 
 judges base their decision almost entirely upon the case 
 Re Martin, Loustalan v. Loustalan. Thus, the Lord 
 President (Lord Dunedin) says (at p. 597): "Accord- 
 ingly, I think that, carefully looked at, it will be found, 
 that I certainly have the great authority of Lord Lindley 
 for saying that when you come to consider what the effect 
 of the marriage is upon the will, which you have already 
 started with as being properly executed, you must consider 
 that in the light of the law of the domicile of the married 
 persons at the date of the marriage, and the law of the 
 domicile of the married persons is the law of the domicile 
 of the husband. Here the domicile of the husband at the 
 date of the marriage was Scottish, and, therefore, you 
 have to consider the effect of the marriage upon the will in 
 the light of the Scottish law and not of the English. 
 That being so, there is no question whatsoever that by the
 
 112 ADMINISTRATION OF FOREIGN ESTATES. 
 
 Scottish law the will of this spinster, being valid before 
 her marriage, was not revoked, and accordingly 1 think the 
 will stands." 
 
 The leading text-book writers appear to be unanimous 
 in agreeing that the material criterion is the law of tho 
 husband's domicile at the time of marriage. (See West- 
 lake, Private International Law, 5th ed., at pp. 123, 1:20: 
 also Dicey, Conflict of Laws, 2nd ed., at p. 684; Foote, 
 Private International Jurisprudence, 4th ed., at pp. 269, 
 332; Bentwich, Domicile and Succession, pp. 39, 40, 148/ 
 
 Mr. Bentwich, in commenting upon Re Martin (supra). 
 says, and it is submitted with absolute accuracy: " In 
 such a case indirectly the change of domicile after tho 
 will is executed revokes the will, but it is the special 
 marriage law, and not the testamentary law of succession 
 of the domicile, which produces the effect, so that the 
 exception in the law of succession is only apparent." 
 Upon all the facts, therefore, we submit that the rule is 
 clearly established that the law r of the domicile of the 
 testator or of the husband of the testatrix at the time of 
 marriage is the law which alone determines the effect of 
 the marriage upon the ante-nuptial will. 
 
 Besides being valid in form, and being one which the 
 testator had power to make, the will must contain certain 
 other provisions before it can be admitted to probate. 
 Thus 
 
 4. The Testamentary Instrument must, expressly or 
 implicdly, appoint an Executor who, at the time when 
 probate of the Will is sought, must be capable of 
 acting and willing to act. 
 
 Unless there is an express appointment of an executor, 
 or unless tho powers and duties of an executor arc clearly 
 conferred or imposed upon some person mentioned in the
 
 ESTATES OF DECEASED BRITISH SUBJECTS. 113 
 
 will, probate of the will cannot be granted (at all events, 
 in common form), although letters of administration with 
 the will annexed might be. 
 
 The only person entitled to a grant of probate is the 
 executor, whether he be expressly appointed or merely by 
 implication. (See judgment of Holt, C. J., WanJcford 
 v. Wankford (1703), 1 Salk. 299, at p. 308.) 
 
 If the executor named in the will or codicil is not subject 
 to any incapacity preventing him from applying to the 
 Court, and is capable of acting and willing to act, no 
 difficulty will arise, and probate will be granted to him, 
 provided the requirements of the law as to form of the will 
 and capacity of the testator have been duly complied with . 
 
 Any person not under an incapacity can be appointed 
 executor. 
 
 A corporation may be appointed, in which case an officer 
 called a "syndic" will be appointed on behalf of the 
 corporation to take the grant. 
 
 The law of the domicile of the deceased at the date of 
 his death determines the nature and extent of the 
 executor's powers. (See Tristram & Coote, Probate 
 Practice, 14th ed., p. 53, and note.) Thus, for instance, 
 where a British subject dies domiciled in France, the 
 persons appointed executors have by French law only one 
 year and a day from the death of deceased in which to take 
 seisin (saisine}, and after this period has expired they are 
 no longer empowered to prove the will, and probate would 
 not be granted to them here (although no doubt letters of 
 administration would be granted with the will annexed 
 to some other person entitled in the particular case). 
 (Laneuville v. Anderson; and also Re Groos.} 
 
 No person will be allowed to prove the will here who, 
 by the laws of this country, is considered incapable of 
 
 B. 8
 
 114 ADMINISTRATION OF FOKKIGN ESTATES. 
 
 acting as executor, even if the law of the domicile contains 
 no such restriction. (See Chapter XVI., infra.) 
 
 For instance, probate will not be granted here to a 
 minor, no matter what the provisions of the lex domicilii. 
 (In the goods of Meatyard, [1903] P. 130; In the goods 
 of Duchess of Orleans, 1 Sw. & Tr. 453.) 
 
 When there is no express appointment of executors, but 
 where it is evident from the terms of the will that the 
 testator intended certain persons named therein to collect 
 the assets, pay the debts, and distribute the surplus, such 
 persons will be considered executors according to the tenor 
 and will be entitled to probate. 
 
 In all other cases probate cannot be granted, although 
 letters of administration with the will annexed may be. 
 
 The general tendency of the English Court is to grant 
 letters of administration with the will annexed, unless the 
 appointment of executors is very clear. The Court does 
 not favour an executor according to the tenor, especially 
 in foreign cases. (See Chapter XVI. for examples of this, 
 in practice.) 
 
 Then, again, there must be assets of the deceased within 
 the United Kingdom. 
 
 5. There must be some Property situate either in fact or 
 by presumption of law within the jurisdiction of tin- 
 English Court. (In the goods of Hannah Tuck' r 
 (1864), 3 Sw. & Tr. 585.) 
 
 A deceased died in France leaving personal estate there, 
 but none in England, and it was alleged that by tin- Lw 
 of France her husband, from whom she had eloped, could 
 not establish his claim to her property there without an 
 English grant. Grant refused. 
 
 Sir J.P.Wilde said:- 
 
 " It is not one of the functions of this Court to deter-
 
 ESTATES OF DECEASED BRITISH SUBJECTS. 115 
 
 mine as an abstract question who is the proper representa- 
 tive of a deceased person, and if the Courts of France insist 
 upon such a declaration they are very unreasonable. 
 
 " The foundation of the jurisdiction of this Court is 
 that there is personal property of the deceased to be dis- 
 tributed within its jurisdiction. 
 
 " In this case the deceased had no property within this 
 country, and the Court has, therefore, no jurisdiction." 
 
 (It is just possible, if the Court thought there was a 
 primd facie case made out that the deceased was likely to 
 be interested in property the subject of a suit, that a grant 
 of administration pendente lite would be made to enable 
 the question to be tried.) (See this case, and also In the 
 goods of Charles Twner, 3 Sw. & Tr. 476; see also follow- 
 ing this case, In the goods of Coode, L. R. 1 P. & D. 
 449.) 
 
 It is a fundamental principle of English law that a will 
 dealing solely with property abroad is not, by itself, en- 
 titled to"proMte~Tiere- 
 
 If, therefore, there are no English assets, or if the 
 deceased's will does not operate to dispose of them or affect 
 them in any way, the will cannot be proved here. 
 
 It is otherwise if the will, although not itself operating 
 to dispose of the English estate, incorporates another docu- 
 ment under which the estate here is affected, and in this 
 case the will can and must be proved here, e.g., a foreign 
 will which in terms refers to and incorporates an English 
 will. (See In the goods of Harris, L. R. 2 P. & D. 83; 
 and compare In the goods of Murray, [1896] P. 65.) 
 
 It is immaterial that a will dealing with property here 
 also deals with property abroad. 
 
 It is a common thing for a testator to leave separate 
 wills framed in accordance with the laws of the different 
 States in which his property is situated. In such a case, 
 
 8(2)
 
 116 ADMINISTRATION OF FOREIGN ESTATES. 
 
 only the will dealing with the English property will be 
 entitled to probate here. 
 
 Where, however, although there is only one will, 
 different executors are appointed to deal with the property 
 in the different countries, the English Courts will make a 
 grant to the general executors limited to the English pro- 
 perty, and a separate grant of the remainder of the estate 
 to the foreign executors. (Re Von Brcntano, [1911] P. 
 172.) 
 
 The amount or money value of the assets in this country 
 is immaterial, and there is authority for saying that the 
 existence of the smallest assets, even that of wearing 
 apparel, is sufficient assets upon which to invoke the juris- 
 diction of the English Court. 
 
 It would seem, therefore, that whenever a testator dies 
 in this country, there must necessarily be sufficient assets 
 to found a grant upon. 
 
 We have discussed in Chapter V. the rules determining 
 the legal situation of assets. 
 
 It is immaterial that the assets in this country were 
 brought there subsequent to the date of death (o) the 
 essential period of time being the time when probate is 
 applied for. 
 
 There must also be proof of title in accordance with lex 
 fori. 
 
 6. The Party applying for Probate must prove his title, 
 and must adduce the evidence required by the lex fori . 
 
 It is a general rule of private international law that 
 questions of evidence are governed by the laws of the 
 tribunal before which the matter comes for decision, and 
 this rule extends to the domain of administration and 
 succession . 
 
 Before probate will be granted in England the applicant 
 
 (o) See note (o), opposite.
 
 ESTATES OF DECEASED BRITISH SUBJECTS. 117 
 
 must strictly comply with the English probate procedure, 
 and must prove his title and adduce the evidence required 
 by the English law (the lex fori) . 
 
 We are not concerned with the details of mere practice 
 rules of the Probate Registry, which are readily accessible 
 to all who require information concerning them. (See 
 Tristram & Coote's Probate Practice, 14th ed.) 
 
 One aspect, however, of the practice interests us here. 
 That is, the rules as to the instrument of which probate 
 will be granted (o) . 
 
 In a case of a will made abroad, it may be that the 
 original is deposited in the Courts of the foreign country 
 if so, what are the requirements of the English Court 
 before probate can be obtained ? 
 
 The principle is that the English Courts act on the same 
 document as that before the Court of the domicile, and 
 where by the laws of such country a deposit of the will is 
 required, the English Courts will require a duly authenti- 
 cated notarial copy of the document to be lodged. (See 
 Laws of England, Vol. Conflict of Laws, for cases where 
 will deposited abroad.) 
 
 If that document be in a foreign language a notarial 
 translation into English will also be required. 
 
 Whilst if, owing to the will being in a different language 
 to that of the Court of the domicile, a translation was 
 adjudicated upon in the forum of the domicile, the English 
 Courts will require a translation of the translation, and 
 will not, as a general rule, refer to the original text. (In 
 the goods of Dehais, 48 S. & T. 13; In the goods of Rule, 
 4 P. D. 76.) 
 
 Throughout the system of administration where there 
 is a principal or leading grant, and other ancillary admin- 
 
 (o) See Dicey, Rule 63, at p. 307.
 
 118 ADMINISTRATION OF FOREIGN ESTATES. 
 
 istrations granted in connection with it, every effort is 
 made to ensure uniformity, and this must be given as the 
 reason of so artificial a rule as the above. 
 
 Death Duties. 
 
 In addition to complying with the rules of practice, so 
 far as evidence is concerned, the requisite death duties 
 must be paid on the deceased's property the subject of the 
 grant. 
 
 In another chapter we consider the incidence of estate 
 duty and the other fiscal charges upon the estates of 
 deceased persons, and the manner in which foreign estates 
 are subject to them. Until duty is paid, or the Revenue 
 authorities are satisfied that no duty is payable, the papers 
 to lead to a grant cannot be proceeded with. 
 
 Moreover, although formerly affidavits of estate bear- 
 ing a statement that the deceased died domiciled abroad 
 were freely accepted by the Revenue authorities without 
 challenge, it is now the practice to demand proof of the 
 foreign domicile before the affidavit is assessed to duty (p) . 
 
 If, on the application for probate, it is shown that all 
 the above requirements have been complied with, a grant 
 will be made, and the executor will thus obtain his formal 
 evidence of title to deal with and dispose of the testator's 
 estate in this country in due course of administration. 
 
 TESTATE SUCCESSION. 
 
 When Letters of Administration (cum testamento annexo) 
 will be granted with the Will annexed. 
 
 A grant of letters of administration with the will 
 
 ( p) The uHual practice i- for the authorities to require a short state- 
 ment of fact* to be lodged in the Probate Registry showing date and 
 place of birth and marriage, and any other fact beariug upon question of 
 domicile.
 
 ESTATES OF DECEASED BRITISH SUBJECTS. 119 
 
 annexed is made where the will of the deceased does not 
 contain the appointment of an executor, or where the 
 executor is unwilling or unable to act, or where the estate 
 having been partially administered the executor dies with- 
 out appointing an executor. 
 
 The same principles apply to granting letters of ad- 
 ministration with the will annexed as to probate of wills, 
 and no special feature calls for comment. 
 
 Whilst, however, probate can only be granted to the 
 executor, letters of administration with the will annexed 
 are granted to the person having the greatest interest in 
 the estate, usually the residuary legatee, or if none, to the 
 next of kin. 
 
 The grant may be to an attorney or to some person for 
 the use and benefit of another, and until such person shall 
 duly apply for a grant or until some contingency happen . 
 
 For the form which such grants take, and for the 
 practice connected with such cases, see Tristram & Coote's 
 Probate Practice, and Mortimer on Probate.
 
 CHAPTER VIII. 
 
 INTESTATE SUCCESSION. 
 
 THE jurisdiction of the English Courts to superintend and 
 control the administration and distribution of the estate 
 of a deceased person is not limited to cases in which the 
 deceased has left a valid will disposing of his property. 
 
 Where no will exists the Court has jurisdiction to ensure 
 that the moveable estate reaches the hands of those entitled 
 by the law of the domicile, or if the deceased was domiciled 
 in England, of those entitled under the English Statutes 
 of Distribution, whilst as to immoveables the Court has 
 also jurisdiction to protect the interests of the parties 
 entitled thereto under the appropriate laws of inheritance. 
 
 As a general rule, whenever a person dies intestate leav- 
 ing property within the jurisdiction of the English Courts, 
 letters of administration to his estate must be obtained 
 before that property can be distributed (a). 
 
 An important exception to this rule exists in the case of 
 policies of insurance effected upon the lives of persons 
 dying domiciled elsewhere than in the United Kingdom. 
 (See Revenue Act, 1884, s. 11, as amended by Revenue 
 Act, 1889, s. 19; see also the very recent case of Haas v. 
 Atlas Insurance Compntni, " Times " newspaper for 
 February 20th, 1913, where these statutes were judicially 
 construed.) 
 
 A deceased person will be denned to have died intestate 
 according to English law if either he left no will at all, 
 
 (a) For exception*, nee Tristram & Cootc'a Probate Practice.
 
 INTESTATE SUCCESSION. 121 
 
 or he left a will which is invalid or of no effect, as for 
 instance: 
 
 (a) A will dealing with English immoveables which is 
 
 not in accordance with the lex situs (unless the 
 will falls within the exception created by Lord 
 Kingsdown's Act in respect of personal estate 
 belonging to British subjects). 
 
 (b) A will dealing with foreign immoveables (of such 
 
 a nature that they do not amount to personal 
 estate in English law, and therefore do not come 
 within the above Act), and which is not in 
 accordance with the forms of the lex situs. 
 
 (c) A will dealing with moveables which is invalid by 
 
 the law of the domicile on account of testamen- 
 tary incapacity, formal invalidity or material 
 invalidity. (Under this heading we must again 
 cncept such cases as by Lord Kingsdown's Act 
 are not necessarily governed by the law of the 
 domicile (&).) 
 
 (d) A will dealing solely with property situate abroad . 
 
 In any of the above cases the deceased will be deemed 
 to have died intestate, and the rules of succession on 
 intestacy will apply, and letters of administration will be 
 required to obtain possession of the English estate and to 
 deal therewith. 
 
 If the deceased died domiciled abroad, and the Courts 
 of the domicile have adjudicated upon the estate, the 
 English Courts will as a rule follow the decision of the 
 Court of the domicile, and make a grant in the appropriate 
 form to the administrator appointed in the country of the 
 
 (b} Some authorities consider that Lord Kingsdown's Act only regulates 
 questions of form ; others, that the Act extends to everything except 
 testamentary capacity. (See Westlake, p. 125.)
 
 122 ADMINISTRATION OF FOREIGN ESTATES. 
 
 domicile. (Miller v. James; and see Chapter XVI. r 
 infra.) 
 
 Where no such adjudication has been made the English 
 Court will itself appoint an administrator according to 
 English rules. 
 
 The appointment of a legal personal representative of a 
 deceased person in this country, whether the deceased was 
 a British subject or a foreigner, and whatever the domicile, 
 is regarded as part and parcel of the administration of an 
 estate, and all the steps and provisions thereof are governed 
 by the lex fori. 
 
 This being so, the English Court will apply English 
 rules and English principles to determine the choice of a 
 legal personal representative for the deceased's estate. 
 
 In cases of intestacy such legal personal representative 
 will in general be the surviving spouse, if any, and failing 
 such survivor the heir-at-law or next of kin. Where the 
 deceased left real estate the heir-at-law and the next of 
 kin have equal rights to administration. 
 
 If there is no real estate the next of kin are alone 
 entitled. 
 
 The order in which they are entitled is practically the 
 order in which they are entitled to succeed to personal 
 estate under the Statutes of Distribution. 
 
 Where the deceased died domiciled abroad administra- 
 tion will usually be granted to the person entrusted by the 
 law of the domicile with the administration. 
 
 Where there are no next of kin the personal estate de- 
 volves as bona vacantia to the Crown, notwithstanding a 
 foreign domicile. (See Re Barnett's Trusts, [1902] 1 
 Ch. 847.) In such a case there is, in truth, no question of 
 succession at all. 
 
 On the application to the Court for a grant of letters
 
 INTESTATE SUCCESSION. 123 
 
 of administration the party applying for the grant must 
 show: 
 
 1. That the deceased died intestate. 
 
 2. That there exist assets in this country at the time 
 
 the grant is applied for. 
 
 3. That the party applying for the grant of letters of 
 
 administration is the party entitled to a grant, 
 and 
 
 4. That the requirements of the lex fori as to death 
 
 duties, evidence and compliance with the rules 
 of the Probate Registry have been fulfilled. 
 We will deal with these requirements in the order 
 named . 
 
 1. That the deceased died intestate. 
 
 First where there is no mil. Where there is no testa- 
 mentary document at all, there can be no question but that 
 the deceased died intestate, and the estate will be divided 
 amongst those entitled as to immoveables (other than 
 English leaseholds) according to the laws of descent of 
 the situs, and as to moveables according to the law of the 
 domicile of the deceased at the date of his death. 
 
 Where there is a wttl or other testamentary document 
 (if it is valid, probate or letters of administration with the 
 will annexed will be granted according to the appropriate 
 test) . 
 
 If the will is invalid then the estate is intestate. The 
 validity of the will may be questioned on many grounds. 
 
 In English law the rules may be shortly stated as 
 follows: A will dealing with immoveables must comply 
 as to form with the lex situs. 
 
 Whilst this is so as to English municipal law (except 
 in the case of a British subject dealing by will with per- 
 sonal estate under the express provisions of Lord Kings-
 
 124 ADMINISTRATION OF FOREIGN ESTATES. 
 
 down's Act), it is not so in some Continental countries, 
 where the rule locus regit actum is allowed to apply to 
 wills dealing with immoveables, nor is it so where the 
 form of such wills is regulated by the personal law of the 
 testator. 
 
 If, therefore, the deceased was domiciled in a country 
 which permits a will to be made in the form other than 
 that of the situs, such will would be valid here, as English 
 law would recognise and give effect to the law governing 
 the matter according to the law of the domicile. (Collier 
 v. Rivaz, 2 Curt. 855.) 
 
 A will dealing with moveables is invalid 
 
 (a) Unless it complies with the terms of Lord 
 
 Kingsdown's Act; or 
 
 (b) Unless it is valid by the law of the domicile of 
 
 the testator at the date of death. 
 
 As to (a), we have already discussed the effect of Lord 
 Kingsdown's Act. 
 
 As to (b), any will which is not valid according to the 
 law of the last domicile of the testator on account of 
 Formal invalidity 
 
 Testamentary incapacity > is invalid here, 
 Material invalidity 
 
 each of which points has already been dealt with in Part I., 
 supra. 
 
 2. There must be assets here. 
 
 We have already seen that the rule is that jurisdiction 
 of the English Courts is founded on the presence here of 
 assets at the time application is made to the Court of 
 administration. (In the goods of Tucker.} 
 
 It is possible, however, for a colonial grant to be re- 
 sealed here in some cases when no assets exist in this 
 country. (See In the goods of Sanders, [1900] P. 292.)
 
 INTESTATE SUCCESSION. 125 
 
 3. The applicant must prove his title. 
 
 If the Courts of the domicile have adjudicated upon a 
 will or intestacy, and have appointed a provisional or other 
 administrator, the English Courts will follow the foreign 
 order and make a grant to the same person or his attorney 
 here. (Chapter XVI., post.} 
 
 If the matter has not been adjudicated upon by the 
 foreign Courts, the Court here, so far as mere adminis- 
 tration is concerned, will, as a general rule, apply English 
 law, and determine the choice of an administrator in pre- 
 cisely the same manner as in a purely English case. 
 
 In applications for administration, as in probate, the 
 formalities of the Probate Registry must be complied 
 with. 
 
 The English law as to evidence and procedure must be 
 fully observed. 
 
 4. The lex fori must be complied ivith. 
 
 The lex fori will also determine the nature and extent 
 of the grant of representation to be made. 
 
 Thus, in a case where the Courts of the domicile 
 appointed a judicial administrator of a banking business 
 for a period of six months, the English Court, under the 
 wide powers conferred by sect. 73 of the Court of Probate 
 Act, made a general grant of representation to the English 
 estate of the deceased in favour of the attorney of the 
 judicial administrator without any limit of time, as a 
 limited grant would have caused inconvenience ; but see 
 In re Levy, [1908] P. 108; Chapter XVI. as to the 
 accuracy of this case, and generally as to the limitations 
 to the rule of following the foreign decision. (See also 
 "Law Quarterly Review," p. 38, January, 1913.)
 
 CHAPTER IX. 
 
 THE EFFECT OF AN ENGLISH PROBATE OR GRANT OF 
 ADMINISTRATION . 
 
 THE executor of a will having obtained a grant of probate 
 to him under the seal of the Court, or, in cases of intestate 
 succession, a grant of administration having been made 
 in favour of the applicant, let us consider the scope and 
 effect of such grants. 
 
 An executor derives his powers from the will, an 
 administrator from the grant made to him . 
 
 By the issue of these grants the English representative 
 then obtains evidence of his title to deal with the deceased's 
 estates. As a general rule, neither a grant of probate nor 
 of administration has any extra-territorial effect. An 
 English grant has no direct operation outside England. 
 
 The effect of an English grant of probate or letters of 
 administration upon foreign assets depends partly upon 
 the nature of the property in question, that is, whether it 
 consists of immoveables, moveables, choses in action, ships 
 or other property of special kinds, and in practice partly 
 upon the domicile of the deceased at the date of his death . 
 Although in so far as proceedings in the Courts of this 
 country are concerned, the domicile is irrelevant. 
 
 With regard to Immoveables. 
 
 An executor does not, by virtue of English grant of 
 probate alone, acquire any rights or powers over foreign 
 immoveable property.
 
 EFFECT OF AN ENGLISH GRANT. 127 
 
 His grant cannot (except in the case of moveables be- 
 longing to a deceased domiciled in England) directly 
 extend to property situate outside the jurisdiction of the 
 Court. 
 
 In the same way, a grant of administration gives the 
 administrator no direct rights over foreign immoveables. 
 
 What the executor or administrator does, however, 
 acquire by such grants is, in most cases where the English 
 grant is the grant of the domicile, the right to call upon 
 the Courts of the foreign country to follow the English 
 grant, and give him ancillary administration, that is, by 
 order to clothe him with the authority required by the 
 lex fori of the foreign Court to enable him to acquire 
 and exercise the rights which the deceased had in his life- 
 time over the property situated within the jurisdiction of 
 the Courts of such foreign country. 
 
 No doubt the English executor is regarded by the Courts 
 of this country as representing the deceased in respect of 
 the whole of his property wherever situate, but the title 
 to foreign land cannot be adjudicated upon by English 
 Courts and the administration of such foreign lands 
 must depend on the lex situs, and succession thereto must 
 be regulated by the same law. 
 
 It would, therefore, perhaps be more exact to say that 
 the English grant of probate only gives the executor such 
 rights over immoveables situated out of the United King- 
 dom as are allowed by the lex situs. 
 
 Thus, in French cases it is sometimes competent to an 
 English executor, under a will proved in England, to 
 dispose of immoveable property abroad without making 
 the English probate executory in France, and without 
 obtaining any ancillary grant to the deceased's estate. 
 Compliance must, however, be made with the lex situs 
 in each case.
 
 128 ADMINISTRATION OP FOREIGN ESTATES. 
 
 As to Moveables. 
 
 Where the domicile of the deceased was English at the 
 date of his death, the maxim mobilia scqunntur pcrsonam 
 is interpreted to mean that all moveables are considered 
 as situate in England, and the English grant of probate 
 or administration extends to all the moveable property of 
 the deceased wherever situate, and gives the executor or 
 administrator rights over all such property. 
 
 In such circumstances an executor or administrator can 
 by virtue of the English grant of probate or administra- 
 tion: 
 
 (1) Sue in the Courts of this country in respect of all 
 
 moveables wherever situate. 
 
 (2) He can receive or recover or reduce into possession 
 
 any moveable property of the deceased . 
 
 (3) He can receive moveables situate in a foreign 
 
 country. 
 
 (4) He can retain moveables of the deceased which are 
 
 brought into this country after the death, unless 
 a good title has previously been acquired thereto 
 in a foreign country. 
 
 Whilst, however, the operation of an English grant of 
 probate or administration in cases where the deceased was 
 domiciled in England is to vest all the moveable property 
 of the deceased in the executor or administrator, yet it 
 may frequently happen that the executor or administrator 
 has to obtain the requisite local authority before he can 
 <lr;il with foreign property. 
 
 Thus, where a deceased domiciled in England 1< 
 
 money and securities on deposit in a French l:nk. 
 
 although an English grant of probate vests such proper) \ 
 
 in the executor, and give- him the right to recover it. \<-\ 
 
 unot successfully do so until he complies with ih
 
 EFFECT OF AN ENGLISH GRANT. 129 
 
 local law and fulfils the proper formalities required by the 
 bank at which the securities are lodged or the account was 
 opened, and which formalities usually consist in the pro- 
 duction of a certificate by a qualified English practitioner 
 of the effect in England of the grant, and as to the power 
 of the executor or administrator to receive and collect the 
 moveable assets of the deceased wherever situate. 
 
 Where, however, the domicile of the deceased at the 
 date of death was not English, then the English grant of 
 probate or administration only directly extends to move- 
 able property within the jurisdiction of the English 
 Probate Court, and the executors' powers are limited 
 accordingly. At the same time the grant extends to all 
 moveables, wherever situate, for the purpose of enabling 
 the English executor or administrator to sue in respect of 
 them in the Courts of this country. 
 
 With reference to Choses in Action. 
 
 For the purposes of this chapter, choses in action form 
 part of the moveable estate of the deceased. If, therefore, 
 ,the domicile of the deceased be English, the grant of 
 probate will extend to and cover all choses in action 
 wherever locally situate . Where the domicile was foreign, 
 the grant would not extend to choses in action situate out 
 of the jurisdiction (except for purposes of suing here). 
 
 As to Ships. 
 
 If a ship is registered here, the English grant will 
 extend to it, and will enable the executor to deal with the 
 deceased's rights and interests therein. 
 
 If the port of registry is out of the jurisdiction, the 
 executor will presumably be unable to exercise rights over 
 
 B. 9
 
 100 ADMINISTRATION OF FOREIGN ESTATES. 
 
 such ships until his title has been approved by the Courts 
 of the country of the port of registry. 
 
 If the deceased had a British domicile, the executor 
 would apply for ancillary probate in the foreign country. 
 
 Although an English grant of probate or administra- 
 tion does not directly extend to property locally situate 
 outside England, it must be remembered that in so far as 
 Scotland, Ireland and the British colonies are concerned, 
 express legislative provision has been made for extend- 
 ing the operation of English grants to such places, and 
 vice versa. (See Chapter XVI., post.}
 
 CHAPTER X. 
 
 CONSTRUCTION GENERALLY FORUM LAW APPLICABLE 
 RIGHTS OF BENEFICIARIES UNDER THE WILL. 
 
 THE construction of the will of moveables of a deceased 
 person is, so far as the " operation " of the will is con- 
 cerned, in general governed by the laws of the last domicile 
 of the testator; so far as the meaning of the testator's 
 words is concerned, this is usually governed by the law of 
 the domicile of the testator at the time when the will was 
 made. 
 
 The rules of construction of a will of immoveables 
 cannot be said to be definitely established. 
 
 Professor Westlake says (a): "No general rule can be 
 laid down for the construction of contracts, wills or other 
 dispositions concerning immoveables. A stringent rule 
 of construction will, of course, prevent any instrument 
 from affecting imtnoveables except in accordance with it, 
 but otherwise a reasonable regard must be had to all the 
 circumstances, including the locus contractm or actus, and 
 the national character or domicile of the parties, testator 
 or other disponer," and he quotes cases which have been 
 decided on points arising out of such construction. 
 
 It would seem, however, that there is a difference govern- 
 ing the rules of construction of a will, and the rules govern- 
 ing the effect given to the construction when properly 
 ascertained. Thus, for instance, a will is couched in the 
 terms exclusively used in a particular country; the con- 
 
 () Private International Law, 5th ed., sect. 170. 
 
 9(2)
 
 132 ADMINISTRATION OF FOREIGN ESTATES. 
 
 struction may be, and probably is, governed by the law 
 of the domicile of the testator, and on applying the rules 
 prescribed by that law a particular meaning is attached 
 to the words used by the testator, but it is upon the lex 
 situs that the effect to be given to that interpretation will 
 depend. 
 
 In Surge's Colonial Law a case is given where a parti- 
 cular disposition made by a 'testator of his immoveables 
 would operate to create a grant of a fee simple as to part 
 of his estate, an estate tail as to a further part, and an 
 estate for life of a third portion . Such a result is obviously 
 inconvenient. 
 
 It would seem that a uniform rule of interpretation of 
 the testator's dispositions should be ascertained by refer- 
 ence to a single law which law would be either the law 
 of the domicile at the date of death, or such other system 
 of law (if any) as the testator had indicated should apply 
 to his will. 
 
 This principle has recently been applied to a contract 
 dealing with immoveables in the case of British Sou tit 
 Ajrica Company v. De Beers Consolidated Miix**, 
 Limited, [1910] 2 Ch. 502 (C. A.), and also on another 
 point, [1912] A. C. 52. 
 
 That decision is an authority for saying that a contract 
 relating to immoveables is governed by the "proper l.i\\ 
 of the contract," and that is the lex loci contractus in tin- 
 absence of express provision, and that the lex situs does 
 not exclusively apply. 
 
 There seems no good reason why such a canon of con- 
 struction should not apply equally in cases of testann-iit.-irx 
 instruments. The advantage to be derived from such rules 
 of construction applying both to wills of immoveables and 
 moveables is well pointed out by Mr. Bentwich in his book 
 on Domicile and Succession. Moreover, the words of Lou!
 
 CON8TKUCTION OF WILLS. 133 
 
 Lyndhurst in the Scotch appeal case of Trotter v. Trotter 
 apply with great force to such a position . 
 
 In that case Lord Lyndhurst said: "A will must be 
 construed according to the law of the country where it 
 was made, and where the party making the will has his 
 domicile. There are certain rules of construction adopted 
 in the Courts, and the expressions which are made use of 
 in a will, and the language of a will have frequently re- 
 ference to those rules of construction, and it would be 
 productive therefore of the most mischievous consequences, 
 and in many instances defeat the intention of the testator, 
 if those rules were to be altogether disregarded, and the 
 judge of a foreign Court, which it may be considered in 
 relation to the will, without reference to that knowledge 
 which it is desirable to obtain of the law of the country 
 in which the will was made, were to interpret the will 
 according to their own rules of construction. 
 
 " That would be productive of another inconvenience, 
 namely, that the will might have a different construction 
 put upon it in England to that which might be put upon 
 it in the Courts of a foreign country." 
 
 As to moveables the position is clear. 
 
 As Professor Dicey says in his Conflict of Laws, 2nd 
 
 */ i/ 
 
 ed., at p. 679: 
 
 " A will of moveables is in general interpreted with 
 reference to the law of the domicile at the time when the 
 will is made." 
 
 The justice of the rule is apparent it is probably to 
 the law of his domicile that the testator himself refers 
 when using technical terms, or even in non-technical 
 language reference is probably intended to the established 
 customs of the country of the domicile. 
 
 As Professor Dicey further points out (at p. 679), 
 " where wills are expressed in the technical terms of the
 
 134 ADMINISTRATION OF FOREIGN ESTATES. 
 
 law of a country where the testator is not domiciled, the 
 will should be construed with reference to the laws of that 
 country." 
 
 This arises principally in two classes of cases 
 
 (1) Where the will is made in the language of the 
 
 country where it is drawn up, and 
 
 (2) Where the will contains references to the laws of 
 
 the country where its provisions are to be 
 carried into effect. 
 
 Moreover, whilst these rules serve as useful canons of 
 interpretation, and probable guides to the testator's inten- 
 tions, as Professor Dicey rightly points out, except where 
 the construction is governed by an absolute rule, these 
 rules are mere canons of interpretation, which should not 
 prevail if any good reason exists to suppose that the 
 testator meant a different result. 
 
 Hence, it is open to a testator to choose his system of 
 law, and if an unequivocal choice is made that law will 
 undoubtedly form the basis of construction. (See Studd 
 v. Cook, 8 A. C. 577.) Where a testator in a foreign 
 will expresses himself in the technical language of the 
 place where the will is made, and where he is domiciled, 
 to obtain the intention, the technical terms must be inter- 
 preted by the meaning put upon them in the system of 
 law from which they are borrowed . 
 
 However, whilst in the case of immoveables no effect 
 will be produced by any attempted disposition which 
 conflicts with the lex situs, yet both as to immoveables 
 and moveables, the operation of the will is largely affected 
 by the law of the domicile at date of death . 
 
 If the testator's dispositions are invalid by that law, 
 they will fail to take effect, and the disposition of the 
 proceeds will be governed by the same law. 
 
 Thus, a widow's right to legitim depends on the law of
 
 CONSTRUCTION OF WILLS. 135 
 
 the domicile at the death of the testator. (Lashley v. 
 Hog, 3 Hagg. Eccl. 415.) 
 
 Also the validity of conditions attached to bequests, 
 the lapse of legacies, and a hundred other questions and 
 points arising out of the construction of the will, depend 
 upon the law of the domicile at date of death. 
 
 A class of cases calling for special comment consists of 
 those instances in which the testator devises lands or makes 
 bequests of mortgage debts to be used for charitable 
 purposes. 
 
 So far as personal estate is concerned, the question must 
 be decided wholly by the law of the domicile at date of 
 death, but difficulties arise where the lex situs of the 
 immoveables does not allow the charitable bequest. 
 
 For instance j the case of Alt. -Gen. v. Mill, 2 Dow & 
 Cl. 393. There a testator, a native of Montrose, made a 
 will in England in English form, bequeathing the residue 
 of his estate to trustees for the purchase of lands in fee 
 simple, the rents of which were to be devoted to charitable 
 purposes in Montrose, Scotland. 
 
 Held by the House of Lords that the bequest was void 
 by the Statute of Mortmain, as the testator had not con- 
 templated the purchase of lands in Scotland, he having 
 referred to lands in fee simple, which was an English 
 expression . 
 
 Similarly, questions have arisen as to election by an heir 
 of real estate desiring to retain the estate and at the same 
 time to upset the will as to some other provisions. 
 
 Also where the heir pays debts properly chargeable to 
 personalty. 
 
 In all such cases the lex domicilii at date of death plays 
 an important part. 
 
 Such being in outline the rules which determine the 
 construction and operation of the will of a deceased person,
 
 136 ADMINISTRATION OF FOREIGN ESTATES. 
 
 we must next consider in which Courts such questions 
 should be decided. Should application be made in the 
 Courts of the country of the domicile, or have the Courts 
 of the country where the estate is situated equally juris- 
 diction to decide the matter ? 
 
 It was at one time claimed by Lord Westbury that the 
 Courts of the last domicile had exclusive jurisdiction in 
 matters testamentary relating to moveable estate (fe). 
 
 The idea was, however, repudiated, and the reverse is the 
 case in English law at the present day (c). 
 
 The Courts of the last domicile are primarily entitled 
 to construe the will of a deceased person, and to determine 
 the effect to be given to his testamentary disposition-: 
 but the Courts of this country have also jurisdiction to do 
 so wherever they have jurisdiction to make "an English 
 grant in respect of the deceased's estate or any part of it. 
 
 In exercising that jurisdiction the English Courts will 
 follow a decision of the Courts of the domicile, and give 
 full effect to it here, whilst, if no such decision exists, the 
 Courts here will determine for themselves the law of the 
 domicile, and will apply such law in all matters of con- 
 struction. So that where an English grant of probate 
 has been taken out to the estate of a deceased person tin- 
 beneficiaries under the will have a right to commence 
 administration proceedings in the Courts of this country 
 for the judicial construction of the deceased's will, or for 
 the administration of the trusts of that will by tin- ( 'ourt 
 of Chancery, or for tin- determination of any matter 
 arising out of the deceased's estate. 
 
 And this rii:lit is independent of tlu> domicile of the 
 deceased. It' tin- last domicile of tin- deeeased !>, |(,ivi<_Mi, 
 
 (b) In Enohin \. H'yl<r, * 
 
 (c) See remarks of Lord Selborne in F.wing \ <?, 9 A. C. 
 34, 39.
 
 CONSTRUCTION OF WILLS. 137 
 
 the Courts will endeavour to decide the matter in dispute 
 precisely in the same manner that it ought to have been 
 decided had the case arisen before the Courts of the 
 country of the domicile. The forum to which benefi- 
 ciaries under a will are required to resort is primarily that 
 of the testator's domicile at the date of death, but resort 
 may be had to the English Courts if jurisdiction exists to 
 make a grant of representation here. 
 
 Whenever it is admitted that by the law of the domicile 
 the testator possessed the requisite physical and intellectual 
 capacity to make the will, that he has not thereby disposed 
 of more than the proportion of his property allowed by the 
 same law, nor in favour of beneficiaries whom he is unable 
 to benefit, and that his testamentary dispositions are not 
 subject to conditions which the law disallows, it frequently 
 happens that the will requires judicial interpretation as 
 to the meaning in detail of the testator's bequests. 
 
 If the executor, having obtained probate in England, 
 properly and expeditiously carries out the terms of the 
 will, pays the death duties, debts and legacies, and distri- 
 butes the whole estate, no question will arise as to the 
 proper forum for the beneficiaries to resort to for the 
 purpose of enforcing their rights under the will. 
 
 But if there is any irregularity or uncertainty in the 
 terms of the will, or on default being made by the executor 
 in the carrying out of the wishes of the testator, then it 
 may well happen that a beneficiary under the will may- 
 wish to seek the aid of the Courts. 
 
 Whilst the construction of a will is, as a rule, governed 
 by the law of the domicile at date of death as to operation, 
 and by the law of domicile at the time the will is made as 
 to meaning, this may be negatived by any expression in 
 the will of the testator's intention that some other system
 
 138 ADMINISTRATION OF FOREIGN ESTATES. 
 
 of law should regulate his dispositions. A test of such 
 intention might be the employment of technical terms 
 only employed in a particular system of law, the writing of 
 the will in the language of that country (although, other- 
 wise, this fact alone would probably be insufficient to dis - 
 place the usual rule), or other defined indications of an 
 intention to adopt some system other than that prevailing 
 in the country of the last domicile. (See Anstruther v. 
 Chalmers, post; also Re Price, Tomlin v. Latter.} 
 
 The question sometimes arises when proceedings are 
 pending both in this country and in a foreign country, 
 whether one set of proceedings should not be stayed to 
 abide the result of the other. 
 
 It is now clearly established that in a proper case the 
 English Courts will restrain a party to proceedings 
 pending before them, and over whom they have thus juris- 
 diction, from pursuing or continuing similar proceedings 
 in another country, although such a power is never exer- 
 cised, unless on the balance of convenience it appears to 
 be the best thing for all parties, and even then, only in 
 those cases where all the points raised can be satisfactorily 
 disposed of in the English suit. (See Hope v. Carnegie, 
 L. R. 1 Ch. 320; and compare the case of Batthyany v. 
 Welford, 33 Ch. D. 628.) 
 
 Where, however, an action for administration has been 
 properly instituted in the Courts of this country, it is very 
 difficult to obtain a stay of the English proceedings pend- 
 ing the decision of a foreign Court. 
 
 In fact, it may be stated that if the English Court has 
 unchallenged jurisdiction to dispose of the matters in 
 question, the proceedings here will not be stayed. (See 
 Boimefoi, 57 S. J. 62 (C. A.) (since reported in [1912]
 
 CONSTRUCTION OF WILLS. 139 
 
 P. 233 (C. A.)), in which the Court of Appeal refused to 
 stay the English proceedings, and reversed the decision of 
 the President, who had directed the English proceedings 
 to remain in abeyance until the will had been construed 
 by the Italian Courts (d).) 
 
 (d) See the comments on this case in the Law Magazine and Review, 
 February, 1913, at pp. 220 et seq.
 
 CHAPTER XI. 
 
 RIGHTS OF BENEFICIARIES AB INTESTATO 
 FORUM STATUS OF BENEFICIARY LEGITIMACY FORUM . 
 
 WHEN letters of administration have been obtained to the 
 estate of the deceased, his administrator will proceed to 
 " administer " the estate. That is, he will pay any legacy 
 or other duty, funeral expenses, charges and debts, and do 
 everything needful to clear the estate of liabilities. 
 
 When this has been done he will proceed to distribute 
 the balance as to moveables according to the law of the 
 domicile of the testator at the date of the death as to 
 irninoveables according to the lex situs. 
 
 The general rule that the law of the domicile applies to 
 the moveable property of a deceased person must be under- 
 stood as meaning that it governs the devolution " For 
 the purpose of succession and enjoyment the law of the 
 domicile governs the foreign personal assets. For the 
 purposes of legal representation of collection and adminis- 
 tration as distinguished from distribution amongst suc- 
 cessors, they are governed not by the law of the owner's 
 domicile, but by the law of their own locality." (Black- 
 wood v. Regina, 8 A. C. 93.) 
 
 If, however, the administrator does not properly and 
 expeditiously wind up the estate, a person interested may 
 desire to obtain the intervention of the Court. 
 
 As in cases of testate succession the primary jorum is 
 that of the domicile, but if an English grant exists, or if 
 the case is such that the English Courts have jurisdiction
 
 RIGHTS OF BENEFICIARIES AB INTESTATO. 141 
 
 to make a grant, the beneficiary is entitled to invoke the 
 aid of the English Courts in administration proceedings. 
 If the aid of the Courts is invoked before complete 
 distribution, the Court will itself distribute deceased's 
 estate according to the appropriate law of succession, i.e., 
 as to immoveables, the lex situs; as to moveables, lex 
 domicilii at date of death. 
 
 As to Immoveables. 
 
 Succession to immoveables on intestacy depends on the 
 lex loci rei sitce but if that law applies some other law, 
 then the latter will prevail. 
 
 It is the whole of the lex situs which applies to each 
 particular case. 
 
 As to English Immoveables. 
 
 Where the immoveables are realty according to English 
 law the strictest rules of inheritance apply, and only those 
 who are born in wedlock can succeed. (Doe d. Birt-ivhistle 
 v. V or dill.} 
 
 (Needless to say, this is only so in cases of intestacy. 
 (See Re Grey's Trusts, Grey v. Stamford, [1892] 3 Ch. 
 88.)) 
 
 As to immoveables which are personalty, probably in 
 English law the case is different. (See Foote, pp. 232 
 237.) 
 
 As to them the Statute of Distributions determines the 
 class of persons entitled to succeed whether the claimants 
 come within such class depends on their own personal law 
 at birth (the domicile of origin). That is, the domicile 
 of their father at date of birth if legitimate, and of their 
 mother if illegitimate. (See Re Goodmans Trusts 
 (1881), 17 Ch. D. 266; Court of Appeal overruling Boyes
 
 142 ADMINISTRATION OF FOREIGN ESTATES. 
 
 v. Bedale, 1 H. & M. 798; see also Foote, pp. 9096, 
 and 278, 279.) 
 
 As to Moveables. 
 
 The distribution of these and succession thereto in 
 intestacy depend (as to property which has not been 
 affected by any settlement or marriage contract made by 
 deceased in his lifetime) entirely on the law of the domicile 
 of the deceased at the date of death. In other words, the 
 law to be applied is the law the Court of the last domicile 
 prescribes as applicable. 
 
 As to choses in action the same rule applies, and these, 
 too, are governed by the law that would be applied by the 
 Courts of the last domicile, as also are all other personal 
 and moveable assets of whatever nature. 
 
 Status of Beneficiary. 
 
 The old rule that the domicile of the deceased governed 
 the status of the beneficiary no longer forms part of 
 English law. (Re Goodman's Trusts, supra.) 
 
 The status of a beneficiary is governed not by the 
 domicile of the deceased, but by his own personal law at 
 birth, which in English law is the law of his domicile of 
 origin. 
 
 It is the law of the deceased's domicile at the date of 
 his death which prescribes the rules of succession, as, for 
 instance, on the death of an individual domiciled in the 
 United Kingdom leaving no widow, but children him sur- 
 viving, the Statutes of Distribution enact that the children 
 take the personal estate in equal shares. 
 
 Whether or not a particular person answers to the de- 
 scription required by the law of the deceased's domicile 
 depends on the law of the claimant's domicile of origin. 
 
 If this law of the claimant treats the claimant as a child
 
 RIGHTS OF BENEFICIARIES AB INTESTATO. 143 
 
 of the deceased, that claimant will, for all purposes of 
 succession to personal property, be treated as a child of 
 the deceased throughout the world. 
 
 The capacity of a person to succeed as heres ab intestato 
 to moveable property depends therefore on such law, and 
 such law alone. As to immoveables the status would be 
 governed by such law, unless it conflicted with the lex 
 situs, when the latter law would govern. 
 
 Legitimacy. 
 
 The question of capacity to succeed to an estate on 
 intestacy most frequently arises in connection with cases 
 in which the legitimacy of the claimant is questioned. 
 
 With regard to English freeholds the rule of English 
 law is that a person seeking to inherit freehold lands in 
 England on intestacy must not only be legitimate accord- 
 ing to his personal law, but must have been born in wed- 
 lock. (Doe v. V or dill.} 
 
 With regard to other property, however, the rule is that 
 legitimacy depends upon the law of the claimant's domicile 
 of origin. 
 
 If that claimant can show that the law of his domicile 
 of origin considers him " legitimate," then the English 
 Courts will consider him legitimate for all purposes. 
 
 This is the direct result of the decision in Re Goodmcm's 
 Trusts, as since followed and explained. 
 
 In the one special case of legitimation by subsequent 
 marriage, however, a further condition must be complied 
 ^vith, namely, that the law of the domicile of the father at 
 date of marriage and at date of birth of child both allow 
 legitimation in this manner, and recognise such marriage 
 for that purpose. 
 
 Until the decision in Ee Goodmans Trusts (1881), 17 
 h. D. 266 (C. A.), it had been thought that the question
 
 144 ADMINISTRATION OF FOREIGN ESTATES. 
 
 of the legitimacy of the successor to personal property of a 
 deceased person was governed solely by the law of the 
 domicile of the deceased. However, by that decision the 
 modern rule was clearly laid down, namely, that the 
 legitimacy of a successor depends upon the successor's 
 domicile of origin. 
 
 There had been indications prior to this that certain 
 judges had considered that this should be the rule, 
 although the decision of the Master of the Rolls and the 
 learned judgment of the dissenting member of the Court 
 of Appeal (Lord Justice Lush) in Re Goodman's Trusfs, 
 show with what little support such a view had met down 
 to that time. 
 
 Indeed, in the case of Doe v. Vardill, Lord Brougham 
 had expressed the view that as to personal property 
 legitimacy must be regarded ae purely a question of status, 
 and therefore be governed by the law of the successor's 
 domicile of origin. (See 2 Cl. & F. 596; see also judg- 
 ment of Lord Cranworth in the case of Shaw v. Gould. 
 L. R. 3 H. L. 70; and Foote, p. 89 et seq.) 
 
 The legacy duty case of Skottowc v. Young, L. R. 2 
 Eq. 474, was also an authority in favour of this view, 
 although the case of Boyes v. Bedale, 1 H. & M. 798 
 (Vice-Chancellor Wood), to the effect that the word 
 " children " in an English will was not sufficiently exten- 
 sive to include children whose only claim to be legitimate 
 depended on the law of their domicile of origin, was 
 certainly directly in opposition. 
 
 In Re Goodman's Trusts, in the Court of first instance 
 (14 Ch. D. 619), Jeaeel, M. R., had followed Boyes v. 
 Bedale, and had decided that the English Statute of Dis- 
 tributions could only extend to children recognised as such 
 under English municipal law. 
 
 From this decision, a child who had been born out of
 
 RIGHTS OF BENEFICIARIES AB INTESTATO. 145 
 
 wedlock, but had been legitimated by the subsequent 
 marriage of her parents in accordance with the law of 
 Holland, where they were domiciled, appealed. 
 
 The headnote to the case in the report of the decision 
 of the Appeal Court is as follows: 
 
 " The English Statute of Distributions being a statute 
 not for England only, but for all persons, English or not, 
 dying intestate and domiciled in England, and applying 
 universally to persons of all countries, races and religions 
 whatever, the proper law for determining the ' kindred ' 
 under that statute is the international law adopted by the 
 comity of States. 
 
 " Therefore, a child born before wedlock of parents who 
 were at her birth domiciled in Holland, but legitimated 
 according to the law of Holland by the subsequent 
 marriage of her parents, held, by James and Cotton, 
 L. JJ. (Lush, L. J., dissentiente) , entitled to a share 
 in the personal estate of an intestate dying domiciled in 
 England as one of her next of kin under the Statutes of 
 Distribution. (Boyes v. Bedale disapproved; the decision 
 of Jessel, M. R., reversed.)" 
 
 The argument for the appellant quotes Story, Huberus, 
 Vinnius, and Burge; also Goodman v. Goodman ; Doe v. 
 Vardill (Lord Brougham); Fenton v. Livingstone, 3 
 Macq. 497, 547; Skottowe v. Young, L. R. 11 Eq. 474. 
 
 The dissentient judgment of Lush, L. J. (pp. 269 
 290), is an extremely learned dissertation, in which all the 
 authorities are reviewed, and in which all that possibly 
 can be advanced against the rule of the domicile is well 
 put . It is not too much to say that such view is definitely 
 disposed of by the judgments of Cotton and James, 
 L. JJ., in this case. Cotton, L. J., says (at p. 291): 
 
 " In support of the decision (of the Master of the Rolls) 
 
 B. 10
 
 146 ADMINISTRATION OF FOREIGN ESTATES. 
 
 it was urged that in an English Act of Parliament the 
 nearest of kin must be taken to mean those who by the law 
 of England are recognised as nephews and nieces, i.e., as 
 legitimate children of the intestate's brother. This is 
 doubtless correct, but the question is, who are by the law of 
 England recognised as legitimate ? It was urged in sup- 
 port of the decision of the Master of the Rolls that the law 
 of England recognises as legitimate those children only 
 who are born in wedlock. This is correct as regards the 
 children of persons who at the time of the children's birth 
 are domiciled in England. But the question as to 
 legitimacy is one of status, and in my opinion by the law 
 of England questions of status depend on the law of tho 
 domicile. For this proposition there is authority. It is 
 stated by Mr. Justice Story in his book on Conflict of 
 Laws, para. 93, that 'foreign jurists generally, though 
 not universally, maintain that the question of legitimacy 
 or illegitimacy is to be decided exclusively by the law of 
 the domicile of origin'; in para. 93, he states 'that the 
 same general rule is avowedly adopted by the Courts of 
 England,' and he refers to the opinion expressed by Lord 
 Stowell in Dalrymple v. Dalrymple, 2 Hagg. Const. 58, 
 that by the law of England ' the status or condition of a 
 claimant must be tried by reference to the law of tho 
 country where that status originated,' and later, at p. 292, 
 the well-known passage: ' If, as in my opinion is the case, 
 the question whether a person is legitimate depends on 
 the law of the place where his parents were domiciled at 
 his birth, i.e., on his domicile of origin, I cannot under- 
 stand upon what principle, if he be by that law legitimate, 
 he is not legitimate everywhere, and I am of opinion that 
 if a child is legitimate by the law of the country where at 
 the time of its birth its parents were domiciled, the law of 
 England, except in the case of succession to real estate in
 
 RIGHTS OF BENEFICIARIES AB INTESTATO. 147 
 
 England, recognises and acts on the status thus declared 
 by the law of the domicile.' 
 
 "In fact, the respondents wish to use the proposition 
 that 'in an English Act of Parliament those only are 
 next of kin or children of a deceased whom the law of 
 England recognises as legitimate,' as if it were 'whom 
 the law of England would recognise as legitimate if at the 
 time of their birth, their domicile, i.e., the domicile of 
 their parents, had been English.' But in my opinion, in 
 deciding questions of legitimacy, i.e., of status, the law 
 of England looks to the law of the actual, not of an hypo- 
 thetical domicile. I am of opinion, on principle, that 
 since by the law of Holland, where the parents of Hannah 
 Pieret were in fact domiciled at the time of her birth, she 
 is legitimate, the law of England, for the purpose of succes- 
 sion to personal estate, ought to hold her legitimate." 
 
 Lord Justice James' judgment (pp. 296 301) is just 
 as strong, and contains several well-known passages to the 
 same effect. 
 
 It will be noted that, although the actual decision in 
 Re Goodman's Trusts related to a case of intestacy, the 
 judgments contain no suggestion that the principles would 
 in any way differ had the case referred to a will. 
 
 Moreover, Boyes v. Bedale, which was a case of a will, 
 was expressly overruled. In the later case of Andros v. 
 Andros, 24 Ch. D. 637, the point arising was precisely 
 similar to that in Boyes v. Bedale, and the decision was 
 the reverse, as Kay, J. (see pp. 638 642 of the report), 
 followed Re Goodman's Trusts. 
 
 The headnote to Andros v. Andros is as follows: 
 
 " A bequest of personalty in an English will to the 
 children of a foreigner must be construed to mean, to his 
 legitimate children, and by international law, as recog- 
 nised in this country, those children are legitimate whose 
 
 10(2)
 
 148 ADMINISTRATION OF FOREIGN ESTATES. 
 
 legitimacy is established by the law of their father's 
 domicile." 
 
 This rule has since been extended to the case of a devise 
 of land contained in a will. (See Re Grey's Trusts, 
 [1892] 3 Ch. 88.) 
 
 The case of Re Ferguson, [1902] 1 Ch. 483, where the 
 law of the domicile was not followed in construing a 
 bequest to the next of kin of a deceased legatee, is not, in 
 fact, contrary to the rule expressed above. In that case 
 the words "next of kin" had'to be construed, and the 
 judge was guided purely by the testator's apparent inten- 
 tion . The question of legitimacy did not arise. 
 
 From these cases it may therefore be stated that, with 
 the single exception of succession on intestacy to English 
 freeholds, the legitimacy of a successor must be determined 
 by the law of his own domicile of origin. 
 
 It is submitted that Re Goodman's Trusts is an 
 authority for the widest possible interpretation of the rule 
 that is to say, that short of any provision of foreign law 
 which would be considered contrary to bonos mores (a}, 
 wherever the law of the domicile of origin treats a person 
 as legitimate, he will be considered legitimate here for all 
 purposes except succession to English freeholds. 
 
 Thus, in some American States (Missouri, for example) 
 the law provides that where one party to a marriage is 
 innocent, and unaware of any defect, the children shall not 
 be considered illegitimate. 
 
 Supposing, therefore, that a person already married 
 when domiciled in Missouri contracted marriage with a 
 native of that State, who was unaware of any reason for 
 invalidating the marriage, the children of such a union, 
 
 (a) Such M polygamy. (See Bfthtllv. Hildyard, 38 C. D. 320 ; although 
 Me BrtnkUy v. Att.-Gfn., 15 P. D. 76 (Japanese marriage).)
 
 RIGHTS OP BENEFICIARIES AB INTESTATO. 149 
 
 provided they were born while the parents remained domi- 
 ciled in Missouri, would, it is submitted, be entitled to be 
 regarded as children here within the meaning of the 
 Statutes of Distribution . It must be noted, however, that 
 the rule only extends to cases in which the law of the 
 domicile of origin treats the children as "legitimate." 
 Nothing short of legitimacy will suffice mere capacity to 
 succeed on death is immaterial the only test being, " are 
 the parties legitimate in the eyes of the law of the 
 domicile ?" 
 
 Thus, in Atkinson v. Anderson, 21 Ch. D. 100, where 
 an Englishman having an Italian domicile had "recog- 
 nised" certain natural born children, who had in conse- 
 quence a right of succession by virtue of Italian law, it 
 was held that such children were strangers in blood to the 
 deceased, and that succession duty was payable at the rate 
 of 10 per cent, upon certain real estate in this country. 
 
 It is pointed out by Mr. Foote, at p. 94, that this 
 decision is unquestionable, and that had the parties been 
 claiming under an intestacy, they must necessarily have 
 failed. 
 
 The rule stated above as to legitimacy depending solely 
 on the domicile of origin of the successor has, however, one 
 important exception, namely, in cases of legitimatio per 
 subsequens matrimonium. 
 
 Wherever it is sought to establish the legitimacy of a 
 person born out of wedlock through the effect of the sub- 
 sequent marriage of his parents, it is a rule of English law 
 that two conditions must prevail, i.e. 
 
 (a) The law of the domicile of the father at the date of 
 birth of the child must contain a provision allow- 
 ing legitimatio per subsequens matrimonium, 
 and
 
 150 ADMINISTRATION OF FOREIGN ESTATES. 
 
 (b) The law of the domicile of the father at the time of 
 marriage must contain a similar provision, and 
 must recognise the legitimacy of such children. 
 
 If either of these stipulations is uucomplied with, the 
 legitimacy will not be established in English law. (See 
 Re Grove, Voucher v. Treasury Solicitor, 40 Ch. D. 216 
 243, where the rule was so stated by Stirling, J., in the 
 lower Court, and affirmed, on appeal, by Cotton, Lopes 
 and Fry, L. JJ.) 
 
 So far we have discussed the matter with reference to 
 English freeholds on the one hand, and to personal estate 
 in general on the other. 
 
 It has been doubted whether the rule as to leaseholds 
 should be derived from Doe v. VardUl or Re Goodman's 
 Trusts. It is submitted that the better view is that there 
 is no reason whatever for the rule being any different as 
 applied to leaseholds than to personal estate in general . 
 
 Freehold property stands on an entirely different foot- 
 ing, and Doe v. Vardill must in consequence be limited 
 strictly to such property. 
 
 On this point, see Foote, pp. 232 237, for an admir- 
 able resume of the arguments, both for and against this 
 view, and in which he definitely decides in favour of the 
 view expressed above.
 
 PAET II. 
 
 CHAPTER XII. 
 
 ESTATES OF DECEASED FOREIGNERS LEAVING PROPERTY 
 WITHIN THE UNITED KINGDOM. 
 
 WE propose in the next few chapters to discuss the law 
 relating to the administration- and succession of estates 
 left in the United Kingdom by deceased foreigners. We 
 shall observe the same divisions of the subject as employed 
 in Part I., and therefore propose to deal first with testate 
 succession, and then intestate succession. 
 
 (a) TESTATE SUCCESSION. 
 Firstly: 
 
 When Probate will be granted. 
 
 Having dealt with the principles of private international 
 law applying to the estates of deceased British subjects 
 leaving property here and abroad, we turn to the converse 
 case of a deceased foreign subject leaving property within 
 the United Kingdom. 
 
 For the purposes of this part of our subject we define 
 a foreigner to be any person other than a British subject. 
 
 The particular subject-matter of this and the succeed- 
 ing chapters is, then, the dealing with and distribution of 
 the property situated within the United Kingdom which 
 forms part of the assets of a deceased foreigner. 
 
 To what extent do the English Courts control the dis-
 
 152 ADMINISTRATION OF FOREIGN ESTATES. 
 
 tribution of the estate of a foreigner possessing property, 
 locally situate within the United Kingdom, and by what 
 principles is such control fixed and determined ? 
 
 Prior to the passing of the Naturalization Act, 1870, 
 an alien or foreign subject had no capacity to make a will 
 according to English law, and any such attempted dis- 
 position of his property had no effect in law upon his 
 property here. 
 
 Since that Act, however, nationality has little bearing 
 in this country upon testamentary capacity, and a 
 foreigner has, generally speaking, the same powers of 
 testamentary disposition over his estate in the United 
 Kingdom as a British subject. Before his estate in this 
 country can be dealt with there is the same necessity for 
 obtaining a grant of representation to his estate. 
 
 If there is a will, can probate be obtained ? As in the 
 case of a British subject there are certain essentials before 
 probate of a deceased foreigner's will can be granted by 
 the Courts of this country. Thus, the applicant must 
 show 
 
 That the deceased has left a will, valid in form, which 
 he had capacity to make. That such will exists at the time 
 of death, and that its provisions are not invalid. Such 
 will must also contain an appointment of one or more 
 executors, which appointment does not infringe a muni- 
 cipal law of this country. It must also be shown that the 
 executors are capable and willing to act, that there are 
 assets within the jurisdiction of the Court. 
 
 The original will or a duly authenticated copy must be 
 lodged in the Probate Registry, and the requirements of 
 the Probate Registry must be properly complied with. 
 
 Unless these essentials exist a grant of probate will not 
 be obtained, although it is possible that letters of adminis- 
 tration cum testammto annexo might be granted.
 
 ESTATES OF DECEASED FOREIGNERS. 153 
 
 Taking these requirements in the order mentioned: 
 
 (1) There must be a Will. 
 
 The essentials that must exist before a document can be 
 considered as a testamentary writing have already been 
 examined. 
 
 English law will not recognise a document as a will 
 which is in conflict with any fundamental principle, or 
 which in the eyes of the English Courts lacks any of the 
 essentials of a valid testamentary disposition. 
 
 Thus, under no circumstances will the English Courts 
 give effect as a " will " to a document which from its terms 
 is irrevocable; or which does not take effect upon the death 
 of the maker; or which does not represent the free will of 
 the testator; or which has in any way been obtained by 
 fraud, or in a manner inconsistent with a voluntary ex- 
 pression of the testator's desire. 
 
 At the same time, the mere fact that such document is 
 not in strict accordance with English municipal law will 
 not prevent its obtaining recognition here if the law of 
 the domicile permits a will to be made in such a f orm . 
 
 (2) The Will must be valid as to Form. 
 
 We are not concerned in this part of the subject with the 
 effect that the will of a foreigner may have in his own 
 country. It is its effect by English law upon property 
 within the United Kingdom which we are considering. 
 
 The requirements as to formal validity of such testa- 
 mentary dispositions depend upon the nature of the 
 property. 
 
 As to Immoveables. 
 
 The formal validity of wills dealing with immoveables 
 in the United Kingdom is governed by the lex situs (which 
 in the case of a foreigner is the Wills Act, 1837).
 
 154 ADMINISTRATION OF FOREIGN ESTATES. 
 
 In order, therefore, to dispose of iminoveables locally 
 situate in England, the will of a foreigner must comply as 
 to form with the requirements of English law, i.e., of 
 the Wills Act, 1837. 
 
 This is so, whether the immoveable property is realty or 
 personalty, i.e., leaseholds which rank as personalty in the 
 eyes of British law. 
 
 A will of a foreigner dealing with English leasehold 
 properties must be in the form required by the lex situs, 
 that is, must satisfy the requirements of the Wills Act, 
 1837. (See In the goods of Gentili; also Duncan v. 
 Lawson and Frckc v. Lord Carbery.} 
 
 Similarly, in the case of freeholds belonging to a part- 
 nership firm, although both such freeholds and leaseholds 
 are personal estate in English law, and consequently could 
 be bequeathed by a British subject by any will valid under 
 Lord Kingsdown's Act, regardless of the Wills Act, 1837, 
 yet, as foreigners are not included within the terms of 
 sects. 1 and 2 of Lord Kingsdown's Act, their wills, to 
 give valid effect to dispositions of such property, must 
 follow the old rule and comply with the local lex situs, 
 the property being in fact of an immoveable nature. 
 
 Whether a particular kind of property locally situate 
 within the United Kingdom is immovoable or not depends 
 on the lex situs. 
 
 As to Movedbles. 
 
 With regard to formal validity, so far as moveables are 
 concerned, the form of a will disposing of moveables wit Inn 
 the United Kingdom made by a foreigner must comply as 
 to form with the law of the domicile of the foreigner at 
 the time of execution or deal h . 
 
 This is the joint effect of the old rule that the law of 
 the domicile at the date of death governed the disposition
 
 ESTATES OF DECEASED FOREIGNERS. 155 
 
 of the moveable estate of a deceased, and the provisions of 
 sect. 3 of Lord Kingsdown's Act to the effect that no 
 change of domicile subsequent to the making of a will 
 renders that will invalid . 
 
 It will be remembered that this section does extend to 
 foreigners as well as to British subjects. (In re Groos.) 
 
 (a) Therefore, under the common law rule any will of 
 a foreigner disposing of moveables is valid as to fortn! 
 which is valid according to the law of the domicile of the 
 deceased at the date of death. 
 
 (b) Any such will of moveables which is valid according 
 to the law of the domicile of the testator at the date of its 
 execution is, under some circumstances, also valid at death, 
 as no change of domicile subsequently to the making of a 
 will renders that will invalid. (Wills Act, 1861, s. 3.) 
 
 Validity by the Law of the Domicile at Death. 
 
 Under the operation of this rule it may happen that a 
 will invalid as to form at the date of its execution will be 
 valid in England if valid according to the domicile of the 
 deceased at the date of death. 
 
 The rule of locus regit actum is not applied by English 
 law to the wills of foreigners unless, indeed, such prin- 
 ciple forms part of the law of the domicile to which 
 English law refers questions of form. 
 
 A will made by a foreigner in British form, but not 
 valid in accordance with the law of the domicile, is treated 
 as invalid here, and will not operate to pass even move- 
 able estate in this country (). (Bremer v. Freeman.) 
 
 On the other hand, the will of a foreigner made in 
 
 () Such a "will, although invalid, might under some circumslaures 
 amount to a valid exerei'-e of a power of appointment conferred by an 
 English instrument. (See Mnrpliy v. JJeichler, and Chapter XVIII., 
 infra.}
 
 156 ADMINISTRATION OF FOREIGN ESTATES. 
 
 accordance with the law of his domicile of origin, but not 
 in accordance with the domicile of choice at date of execu- 
 tion or of death, is equally invalid. 
 
 Whilst, even if a will is in accordance with the law of 
 the domicile, it will be regarded as formally invalid so 
 far as immoveables in England are concerned, unless the 
 formalities of the Wills Act, 1837, are complied with. 
 (Pepin v. Bruyere.) 
 
 (3) The Will must be one which the Testator had the 
 requisite capacity to make, and must remain in 
 force at the Date of Death. 
 
 Testamentary Capacity. 
 
 Capacity to execute a will as to immoveables is in 
 English law governed by the lex situs, and as to moveables 
 probably by the law of the domicile at the time of execu- 
 tion. (See, however, Weetlake, p. 125, sect. 86.) 
 
 Whilst, however, it is true that capacity to execute a 
 particular instrument must in general be gauged by 'refer- 
 ence to the laws applicable at the time of execution, accord- 
 ing to Professor Westlakc, it ought to be held that a will 
 which the testator was under an incapacity to make at the 
 date of execution, but as to which he obtained capacity to 
 do so under the law of his domicile at the time of death, is 
 treated as valid and enforceable here. So far as we are 
 aware, there is no authority in support of this proposition 
 in the shape of a decided case. However, it would seem 
 to be certainly inaccurate as to certain grounds of in- 
 capacity, e.g., lunacy or want of age. No will made by 
 a lunatic, whilst under delusions, can be rendered valid 
 by the fact that ho subsequently recovers his sanity, nor
 
 ESTATES OF DECEASED FOREIGNERS. 157 
 
 can a will executed by a minor acquire validity by the 
 fact that he dies after acquiring full age . 
 
 Witts where there exists a Settlement or Marriage 
 Contract. 
 
 If a will is made subsequently to a duly authenticated 
 marriage settlement or contract of marriage, the testator 
 will not be enabled to dispose of the property included in 
 such settlement or contract except in the manner pre- 
 scribed by the settlement. 
 
 The rights of the parties under such a settlement or 
 marriage contract are determined by reference to the law 
 of the contract, viz., the lex loci contractus. (See De 
 Nichols v. Curlier.} 
 
 The will must remain effective and unrevoked at the 
 date of death. 
 
 We have dealt with the principles of revocation of testa- 
 mentary instruments. 
 
 In the case of revocation by the execution of a subse- 
 quent will, such revocation might depend upon a question 
 of construction governed by the appropriate law of con- 
 struction . 
 
 It must be remembered that only such wills are revoked 
 by marriage as would by the law of the domicile of tho 
 testator at the time of marriage be revoked by such 
 marriage. (Page 106, supra, and authorities there cited.) 
 
 Where at the time of marriage the law of the husband's 
 domicile does not treat the will as revoked by marriage, 
 such will remains valid and unaffected by the marriage, 
 wherever the ceremony takes place, and irrespective of 
 any subsequent change of domicile of the parties con- 
 cerned.
 
 158 ADMINISTRATION OF FOREIGN ESTATES. 
 
 Material Invalidity. 
 
 The provisions of the will must not be materially 
 invalid. 
 
 It has been shown that a will valid as to form will 
 generally be admitted to common form probate in this 
 country without discussion of the validity of the principles 
 upon which the will attempts to dispose of the property. 
 But although this is no doubt true in practice, yet the 
 question of validity may at any time be raised, and if so 
 raised, must be proved. 
 
 The English law will not assist any devise or bequest 
 for a purpose which is against English public policy or 
 contra bonos mores, whether the law of the domicile allows 
 it or not. 
 
 Hence, a possible exception to the universal validity of 
 a will valid according to the law of the domicile, is where 
 the will contains a disposition of property for the carrying 
 out in England of some purpose disallowed by English 
 law, such as a limitation for a superstitious purpose but 
 see Re Elliott, Elliott v. Johnson (1891), 39 W. R. 297. 
 
 Frequent instances of this kind of will are found in 
 wills infringing the English Mortmain Acts on such 
 questions as the gifts of lands for charitable purposes, 
 <tc. (See Duncan v. Lawson (1889), 41 Ch. D. 394.) 
 
 (4) There must be an Appointment of Executors. 
 
 What will amount to an appointment of an executor of 
 a will, and the rules as to who can be so appointed accord- 
 ing to English law, have been examined on a previous 
 page. 
 
 It may be stated here that there is no objection to 
 separate appointments of executors, each limited to the
 
 ESTATES OF DECEASED FOREIGNERS. 159 
 
 estate in particular countries, such as one set of executors 
 for estate in England, one for America, and one for France 
 and, indeed, such a case is by no means infrequent where 
 the testator desires his various properties to be differently 
 dealt with. (See In re Winter (1861), 30 L. J. (N. S.) 
 P. & M. 56; and see Ee Von Brentcmo, [1911] P. 172.) 
 
 Whether the appointment of executor is valid or not 
 depends upon the true construction of the will, and the 
 rules of construction apply. A will, as a rule, is construed 
 according to the law of the domicile of the deceased either 
 at the time of execution or at the date of death; but see 
 p. 131 for a more detailed statement as to this. 
 
 (5) The Appointment of Executors must not infringe a 
 
 Municipal Law of this Country. 
 
 No matter what the domicile of the deceased, nor what 
 the Court of construction may decide, the English rule is 
 to refuse to make a grant of probate in favour of any 
 person who by the law of England is considered incapable 
 of representing the deceased such as a minor. (See 
 Chapter XVI., infra, and cases there cited.) 
 
 (6) The Executor must be capable of action and willing 
 
 to act. 
 
 The executors' powers must be still in force at the date 
 that probate is applied for. When, therefore, the law of 
 the domicile only gives the executors seisin for a limited 
 period, as for instance, in France, where the seisin is 
 limited to a year and a day from the death of the testator, 
 the grant of probate must be applied for here within the 
 time in which the executors are capable of acting abroad, 
 and of necessity no probate can be granted unless the 
 executor is willing to act and applies for the grant. (See
 
 160 ADMINISTRATION OF FOREIGN ESTATES. 
 
 Re Groos, Lanettvttle v. Anderson; and as to the last 
 sentence, see Wankford v. Wankford.) 
 
 An executor cannot be compelled to prove a will. He 
 may renounce probate, but he can be compelled by citation 
 to bring the will into the Principal Registry. 
 
 (7) There must be some Estate in this Country at the 
 
 time the grant is applied for. 
 
 The jurisdiction of the English Probate Court is based 
 upon the presence within its reach of assets belonging to 
 the deceased. (See In the goods of Tucker.} 
 
 The English Court will not grant probate of a will 
 dealing solely with property abroad, unless it can be shown 
 that such will is incorporated in another will which does. 
 (See Re Murray, [1896] P. 65; Re Coode (1867), L. R. 
 1 P. & M. 449; and also Re Bolton (1876), 12 P. D. 202 
 (different circumstances).) 
 
 It has been demonstrated that the actual value or amount 
 of the assets so situate is immaterial. Assets of the 
 slightest value are apparently sufficient to give the English 
 Courts full jurisdiction to make a grant of representation 
 to the estate, and thus to give jurisdiction to decide any. 
 matter connected therewith. 
 
 (8) The original Will or same authenticated Copy must 
 
 be brought into the Registry. 
 
 Where it is possible, in accordance with the ordinary 
 rule that the best evidence must be produced, the original 
 will must be brought in and made an exhibit to the 
 executor's oath. 
 
 Where, however, as in Franco, the foreign law forbids 
 the handing over of the original wills, which are lodged 
 with notaries, a notarial copy, or other accepted copy
 
 ESTATES OF DECEASED FOREIGNERS. 161 
 
 authenticated in the manner provided by the law of the 
 foreign country, must be produced and sworn to here . (In 
 the goods of Rule (1878), 4 P. D. 76.) 
 
 (9) The formal requirements of the Probate Registry 
 must be complied with just as in an inland case, and as 
 the practice only differs in a few special instances, to which 
 special attention is drawn elsewhere, we do not propose 
 to set out here the common practice of the Division. 
 
 Subject to all the above requirements being complied 
 with, probate will be granted here of the will of a deceased 
 foreigner, no matter what his nationality or the country 
 in which he was domiciled at the date of his death . 
 
 Secondly: 
 
 When Letters of Administration with the Will annexed 
 will be granted. 
 
 Where the deceased foreigner has left a will but has 
 
 (1) Made no appointment of executors, either express 
 
 or implied; or 
 
 (2) Has appointed executors who have predeceased 
 
 him, who have renounced, whose term of office 
 
 has expired, or who are incapable or unwilling 
 
 to act, such will may be none the less valid, 
 
 and may deal with the estate in this country. 
 
 In such circumstances, application should be made to 
 
 the English Courts for a grant of letters of administration 
 
 with the will annexed to the estate of the deceased . 
 
 If the will contains a residuary devise or bequest, the 
 residuary legatee will, as a rule, be most entitled to take 
 out such a grant, or failing him, the next of kin and heir- 
 at-law (if real estate exists) have an equal right. (See 
 Tristram & Coote's Probate Practice.) 
 
 Where the deceased died domiciled abroad, it may be 
 
 B. 11
 
 162 ADMINISTRATION OF FOREIGN ESTATES. 
 
 said, as a general rule, that the person entrusted with the 
 administration of the estate in the country of the domicile 
 is entitled to administration here with the will annexed, 
 if the facts make such a grant the proper one in the circum- 
 stances. (See Chapter XVI., infra.} 
 
 The proper forum for all matters connected with such 
 administration is determined by the same principles as 
 those detailed in the similar chapter to this in Part I. 
 hereof.
 
 CHAPTEE XIII. 
 
 INTESTATE SUCCESSION. 
 
 WHERE a deceased foreigner dies intestate leaving assets 
 within the United Kingdom, a grant of administration 
 must, as a general rule, be applied for to deal with the 
 estate in this country (a) . 
 
 Intestate in this sense means when the deceased has 
 left 
 
 (1) No will at all; or 
 
 (2) A will which is invalid on account of 
 
 Formal invalidity; or 
 Testamentary incapacity; or 
 Material invalidity; or 
 
 (3) A valid will which has subsequently been revoked. 
 
 Where there is no will at all, no difficulty arises, as the 
 administration of the English estate of a deceased 
 foreigner is governed solely by the lex fori. 
 
 It is English law alone which determines the choice of 
 the personal representative, and which defines the nature 
 and extent of the grant of administration to be made. 
 Such choice is determined by English rules, subject, how- 
 ever, to referring all questions of beneficial succession to 
 the Courts of the domicile. If by the Courts of the 
 domicile someone has been entrusted with the administra- 
 tion, the grant will usually be made to the same person. 
 
 (a) For exceptions, see Tristram & Coote. 
 
 11(2)
 
 164 ADMINISTRATION OF FOREIGN ESTATES. 
 
 Where, however, a document does exist, and the validity 
 of such document as a will is doubtful, the matter must be 
 further tested. 
 
 The principal grounds of invalidity of a will are : lack 
 of formality; want of testing capacity; or material in- 
 validity. 
 
 Lack of formality exists when the formalities required 
 by the appropriate law for validity of the document as a 
 will are lacking. 
 
 Want of capacity is evidenced where the testator is a 
 person who, by his own personal law (ascertained either at 
 his death or at the date of making the will), is incapable 
 of executing a testamentary writing; or, if the estate con- 
 sists of immoveables situate within the United Kingdom, 
 is, by the lex situs, not considered as having testamentary 
 power. 
 
 Material invalidit} r arises where there is a will valid in 
 form, but the terms of the testator's bequests infringe the 
 provisions of the law governing the construction and effect 
 of the limitations of the will. 
 
 Should the will be defective in any of these particulars, 
 it will bo invalid according to English law, and, to the 
 extent of the invalidity, there will be an intestacy. 
 
 If the will is wholly invalid the estate will bo wholly 
 intestate. 
 
 Formal Invalidity. 
 
 The requirements as to the form of the wills of 
 foreigners dealing with estate in the United Kingdom 
 have been considered. (Pago 153.) 
 
 If the will does not answer to those requirements, it \\ ill 
 be invalid here on account of its form, except that the 
 English Courts will sometimes treat as formally valid, by 
 exercising their jurisdiction in aiding the execution of the
 
 INTESTATE SUCCESSION. 165 
 
 document, a will which is not actually in the form required 
 by the lex situs or the lex domicilii, as the case may be., 
 
 This will only be done where the English Courts are 
 satisfied that the general principles of the law of the 
 domicile would permit of such a course. (Lyne v. De la 
 Ferte.) \ 
 
 Testamentary Incapacity. 
 
 The rules governing the capacity of a foreign subject 
 to make a will dealing with assets in this country have 
 been examined. (Page 156.) 
 
 If the testator does not possess the required capacity by 
 reference to the law applicable, a will made by him will 
 not be treated as valid here. 
 
 The question, however, arises : Suppose a testator 
 executes a will which at the time of execution he has not 
 the requisite capacity to make, but subsequently acquires 
 capacity to execute, is such a will valid at his death ? 
 
 According to Story, " The law of the actual domicile 
 of the party at the time of the making of the will or 
 testament was to govern that capacity or incapacity." 
 
 In English law the better opinion seems to be that the 
 essential period of time for purposes of capacity to sign a 
 particular document or perform a particular transaction 
 is the time of signing or performance. (See, however, 
 Westlake, sect. 86, at p. 125.) 
 
 Material Invalidity. 
 
 The validity of the provisions in a testator's will are 
 determined by the law applicable at the moment of his 
 death. 
 
 Thus, a will of moveables must be valid as to matter by 
 the law of the domicile at the date of death of the deceased . 
 (See Dicey, rule 187, and notes.)
 
 166 ADMINISTRATION OF FOREIGN ESTATES. 
 
 And this being the rule, it is immaterial that at the 
 date of execution the provisions were invalid . (See Dicey, 
 rule 187, and notes thereon.) 
 
 A valid Will which has been revoked. 
 
 A will, which may have been perfectly valid at the date 
 of execution, may subsequently cease to have any effect by 
 reason of revocation. 
 
 A will which simply revokes a previous testamentary 
 writing, and does nothing more, is not entitled to proof, 
 and the deceased will be deemed to have died intestate. 
 
 Revocation by Marriage. 
 
 If the domicile of the testator is English at the time of 
 his marriage, then by English law the marriage will revoke 
 all previous testamentary dispositions. 
 
 When, however, the law of the domicile of the husband 
 at the time of marriage does not render a will inoperative 
 by reason of such marriage, the will remains valid and 
 effectual, notwithstanding a subsequent marriage. (Re 
 Reid, Wester man V. Schuxib.') 
 
 If for any of the above reasons the deceased is considered 
 to have died intestate within the meaning of English law, 
 the beneficial succession to his moveable estate will be 
 governed by the law of his domicile at the date of 
 death. 
 
 The fact that the deceased has been domiciled in other 
 countries at other periods of his life, or that his domicile 
 of origin is not his domicile at death, is immaterial, as also 
 is the place of death or the local situation of the assets. 
 
 There is no conflict between different domiciles in such 
 ft case. The only test is the law of the domicile at the date 
 of death.
 
 INTESTATE SUCCESSION. 167 
 
 In order to obtain letters of administration the applicant 
 must prove 
 
 (1) That the deceased died intestate. 
 
 (2) That there are assets within the jurisdiction of the 
 
 Court. 
 
 (3) That he is the proper party to apply for the grant. 
 
 (4) That the requirements of the Probate Registry have 
 
 been complied with, 
 all of which points have already been considered.
 
 CHAPTER XIV. 
 
 THE EFFECT OF AN ENGLISH GRANT OF PROBATE OR OF 
 LETTERS OF ADMINISTRATION TO THE ESTATE OF A 
 DECEASED FOREIGNER OWNING PROPERTY IN THE 
 UNITED KINGDOM. 
 
 THE general position in law of an executor holding an 
 English grant of probate, or of an administrator who has 
 obtained a grant of letters of administration from the 
 English Court has been dealt with previously. 
 
 Such position is not affected by the national character 
 of the deceased . 
 
 The powers and duties of executors and administrators 
 of the estates of deceased foreigners are identical with those 
 of the representatives of deceased British subjects. Under 
 the English grant of representation, whether in the form 
 of a probate or simple letters of administration, all the 
 moveablea and the personal estate of the deceased in this 
 country pass to the English representative. This applies 
 to all immoveables (which are personal estate), moveables, 
 choses in action, ships and other property, and the English 
 representative acquires a title to all such property indepen- 
 dently of possession. Where the grant operates upon 
 immoveables which are not personal estate, they will also, 
 under the Land Transfer Act, 1897, vest in the legal 
 personal representative. Thus, a good title to English 
 freeholds belonging to a deceased person cannot be made
 
 EFFECT OF AN ENGLISH GRANT. 169 
 
 without the concurrence of the English proving 
 executors (a) . 
 
 Moveables cannot be disposed of except by them . 
 
 Stocks and shares and other choses in action locally 
 situate here cannot be dealt with except by their instruc- 
 tions. 
 
 (a) Land Transfer Act, 1897 (and see Paivley v. London and Provincial 
 Bank, [1905] 1 Ch. 58), as amended by Conveyancing Act, 1911, s. 12.
 
 CHAPTER XV. 
 
 RIGHTS OF BENEFICIARIES UNDER THE WILL FORUM- 
 CONSTRUCTION, GENERAL INTERPRETATION. 
 
 IF an English grant of representation has been taken out, 
 the English Courts have jurisdiction over all matters con- 
 nected with the estate, and the beneficiaries can apply to 
 the Court for assistance or redress. 
 
 The rules as to jurisdiction have been set out in detail, 
 and apply to the wills of foreigners as well as. to those of 
 British subjects. 
 
 There is no obligation on the part of parties interested 
 under the will of a deceased foreigner domiciled abroad 
 to apply first in the Courts of the domicile. 
 
 They are, of course, entitled to do so, if they so desire. 
 Such applications would then be governed by the particular 
 lex jori, and fall outside the scope of this treatise. 
 
 Should, however, the beneficiaries, or any of them, 
 decide to avail themselves of the jurisdiction of the 
 English Courts, what principles must apply ? 
 
 All matters of practice and procedure will be regulated 
 purely by English law, and the beneficiaries setting the 
 machinery of the Courts in motion would have to comply 
 with the formalities of the lex jori in all respects in such 
 matters. 
 
 Choice of Laws to apply. 
 
 When once the English Chancery Court (for adminis- 
 tration suits and matters relating thereto are peculiarly 
 the subject-matter of proceedings in that Division) is
 
 CONSTRUCTION OF FOREIGN WILLS. 171 
 
 validly seised of some proceedings relating to a question 
 of administration of the trusts of the will of a deceased 
 person, the question of the law to apply becomes 
 important. 
 
 We have seen that the construction i.e., " operation " 
 of the will of a foreigner is, as to moveables, governed 
 by the law of the domicile of the deceased at the time of 
 his death; as to immoveables, the lex situs prevails. 
 
 When the law of the domicile applies, it is the whole 
 law of the domicile which is referred to, and not only the 
 internal or municipal laws of the country of the domicile . 
 (See Bonneval v. De Bonneval, and later chapter on 
 " Henvoi" (Chapter XX.).) If the English Courts have 
 jurisdiction in any particular case, they have power to 
 decide all matters of forum, testamentary capacity, 
 material validity, and any other question arising out of 
 the testator's will on the succession or intestacy to the- 
 deceased's estate. Each of these questions will be sub- 
 mitted to its appropriate test, and the system of law appli- 
 cable will govern. As to how foreign law is proved in 
 the Courts of this country, see p. 90, supra. 
 
 Rights of Beneficiaries ab intestate. 
 
 FORUM CHOICE OF LAW STATUS OF BENEFICIARY- 
 LEGITIMACY. 
 
 The forum for beneficiaries to resort to does not vary in 
 testate or intestate succession. 
 
 The jurisdiction to make an English grant of repre- 
 sentation gives the English Courts jurisdiction to adjudi- 
 cate upon all matters arising out of the estate, and in cases 
 of testacy and intestacy the parties entitled to the estate 
 can apply either to the Courts of the domicile or to the 
 English Courts, or both.
 
 172 ADMINISTRATION OF FOREIGN ESTATES. 
 
 The rules regulating the choice of law in cases of 
 intestate succession are simpler than those of testate 
 succession . 
 
 In intestate cases, the only law applicable as to move- 
 ables is that of the domicile of the deceased at the date 
 of death. 
 
 Whilst, if the deceased left a will, there would in many 
 oases be a conflict between the law of the domicile at the 
 time the will was made and at death, or the testament 
 might itself show an intention for some other system of 
 law to govern the interpretation. 
 
 Status o/ Beneficiary and Legitimacy. 
 
 The law governing the succession determines the class 
 of successors under the will, i.e., the persons who as heredes 
 ab intestato are entitled, and also regulates the proportions 
 in which members of that class participate. 
 
 But it is upon the domicile of origin of the beneficiary 
 that his claim for admission as a member of a particular 
 class depends. 
 
 With this the domicile of the deceased or the law govern- 
 ing his succession have nothing to do, the capacity of a 
 beneficiary being governed by his domicile of origin, as 
 already stated at p. 144.
 
 CHAPTER XVI. 
 
 GENERAL PRINCIPLES APPLICABLE TO PROBATE ANI> 
 ADMINISTRATION WHEN A GRANT HAS ALREADY BEEN 
 MADE ABROAD. 
 
 WHEN once the rule had been adopted that the distribu- 
 tion of the moveable property of a deceased person and 
 beneficial succession thereto was to be regulated by the 
 law of his last domicile, it followed as a natural result, that 
 the decisions of the Courts of the domicile should be 
 accepted in this country. 
 
 From a very early period we find that when the Courts 
 of the country of the domicile have had an opportunity of 
 pronouncing judgment upon any matter connected with 
 the disposition of moveables belonging to a deceased person 
 or of succession to them, their orders and decrees have been 
 greatly respected by the Courts of this country. In time, 
 this respect became almost customary, and the general rule 
 laid down was that the English Courts should in general 
 "follow" the decision of the Court of the domicile. 
 
 The rule seems to have been well founded, for it cannot 
 be doubted that, so far as possible, it is advisable to have 
 a single succession governed by a single law. 
 
 Presumably the Courts of a particular country are best 
 able to interpret the laws of that country, and it is very 
 certain that no good result could accrue if each foreign 
 tribunal were to take upon itself the construction of a 
 testamentary document or the interpretation of a rule of 
 law of another country. 
 
 Reason therefore points to the wisdom of following the
 
 174 ADMINISTRATION OF FOREIGN ESTATES. 
 
 foreign grant, and we must consider the modern rule upon 
 the subject, and precisely how far the Courts of this 
 country are prepared to give effect to the orders and decrees 
 of a foreign tribunal. 
 
 In the first place, let it be said, that the rule as to follow- 
 ing a foreign grant has not always obtained. 
 
 In some of the earlier cases the judges of the Preroga- 
 tive Court of Canterbury not infrequently refused to pay 
 any attention to the foreign Court, and in all cases claimed 
 a discretion as to following the grant or not. 
 
 Thus, in an early text-book, Toller on Executors, 
 7th ed., published in 1838, it is said, at p. 108: 
 
 " A grant of administration in a foreign Court, as for 
 example, in Paris, is not taken notice of in our Courts of 
 Justice." 
 
 In order to appreciate the position at the present day, 
 it will probably be best to take the principal cases which 
 are included in the reports and examine them. 
 
 One of the earliest of these (In the goods of Read 
 (1828), 1 Hagg. Eccl. 474) was a case in which the 
 testator had died in India, and the Courts of Madras had 
 made a grant of probate to the widow. The Courts here 
 granted administration with the will annexed to the widow 
 as relict and principal legatee, the difference being that as 
 a result the widow was compelled to enter into a bond, and 
 give security which would not have been required had 
 probate been granted. In the course of the judgment 
 reference is made to the peculiar circumstances frequently 
 attending Indian cases, and then the learned judge uses 
 these words: " It is not fully decided whether this Court 
 is bound in all cases and under all circumstances to follow 
 the grant of probate made by a Court of competent juris- 
 diction." 
 
 The next important case appears to be that of Viesca
 
 EULES AS TO FOLLOWING THE FOREIGN GRANTS. 175 
 
 v. D'Aramburu (1839), 2 Curt. 277. In that case a 
 testator had died domiciled in Spain, and suits were pend- 
 ing in the Spanish Courts as to which of two wills was 
 valid ; pending these suits a judicial administrator was 
 appointed by the Court of Cadiz with certain powers of 
 collecting the assets, and the English Court, carrying out 
 the decree of the Court of the domicile, granted adminis- 
 tration to the attorney in England of the judicial adminis- 
 trator so appointed, limited to carrying out the powers 
 conferred by the Courts of the domicile. In that case 
 counsel opposing the grant argued that the order of the 
 Court of Cadiz was merely interlocutory, and amounted 
 only to a direction pending the proceedings, and should 
 not therefore be followed. It was, however, conceded on 
 all hands that when the Courts of Cadiz had definitely, 
 decided as to the validity of the testator's will, such deci- 
 sion would be binding upon the English Court. In giving 
 his decision, Sir Herbert Jenner said: 
 
 " I do not know that this order is absolutely binding 
 upon this Court; but if it be discretionary, the Court 
 would be inclined to follow the decision of the tribunal to 
 which all parties are subject, and which ought to have that 
 which is incidental to the cause, viz., the care and security 
 of the property." 
 
 The rule was not limited to following the decision of 
 the foreign Court on such points as those mentioned, but 
 also extended to regulating the choice of the party entitled 
 to administration here. Thus, in the case of In the goods 
 of Rogerson (1840), 2 Curt. 656, a Scotchman had died 
 domiciled in Scotland leaving a widow and a brother; by 
 Scotch law administration belonged to the brother, and 
 he had obtained a decree in the Scotch Courts. Held, 
 following In re Isabella Stewart, 1 Curt. 904, that ad- 
 ministration should be granted to the brother, notwith-
 
 176 ADMINISTRATION OF FOREIGN ESTATES. 
 
 standing the widow's prior claim according to English 
 law. 
 
 In the later case of Enohin v. Wylie, House of Lords, 
 1862 (reported 10 H. L. C. 1), there is a celebrated 
 dictum of Lord Westbury, which, however, has since been 
 expressly dissented from on many occasions (judgment 
 of Lord Selborne in Ewmg v. Orr-Etving). Lord West- 
 bury says: 
 
 " I hold it to be now put beyond all possibility of 
 question, that the administration of the personal estate 
 (moveables ?) of a deceased person belongs to the Court 
 of the country where the deceased was domiciled at his 
 death. All questions of testacy or intestacy belong to the 
 judge of the domicile. It is the right and duty of that 
 judge to constitute the personal representatives of the 
 deceased. To the Court of the domicile belong the inter- 
 pretation and construction of the will of the testator. To 
 determine who are the next of kin or heirs of the personal 
 estate of the testator is the prerogative of the judge of the 
 domicile. In short, the Court of the domicile is the forum 
 cotmtrsus to which the legatees under the will of a testator, 
 or the parties entitled to the distribution of the estate of 
 an intestate, are required to resort." 
 
 Later, in the same case, however, he makes some valuable 
 observations as to the duty to follow the foreign grant, 
 and the dangers that would arise were each Court to adopt 
 its own principles of construction. 
 
 Thus, he says: "When the Court of Probate was 
 satisfied that the testator diod domiciled in Russia, and 
 that his will, containing a general appointment of 
 executors, had been (as it was) duly authenticated by those 
 executors in the proper Court in Russia, it was the duty 
 of the Probate Court in this country at once to have 
 revoked the former letters of administration which had
 
 RULES AS TO FOLLOWING THE FOREIGN GRANT. 177 
 
 been granted, and to have clothed the Russian executors 
 with ancillary letters of probate to have enabled them to 
 get possession of that personal estate, which, in fact though 
 not in law, was locally situate in England." 
 
 The well-known case of Doglioni v. Crispin, 3 Sw. & 
 Tr. 44, 96, also contains important references to the prin- 
 ciple now under discussion. 
 
 The headnote to that case reads as follows:- " The judg- 
 ment of the Court of the domicile of the deceased at the 
 time of death is binding upon the Courts of a foreign 
 country in all questions as to the succession and title to 
 personal property, whether under testacy or intestacy, 
 where the same questions between the same parties are in 
 issue in the foreign Court which have been decided by the 
 Court of the domicile." 
 
 Sir Cresswell Cresswell, in giving judgment, says:- 
 
 " I have not now to encounter the difficulty of arriving 
 at a correct conclusion of foreign law; for, after considera- 
 tion, I have come to the conclusion that it does not belong 
 to this Court to sit as a Court of Appeal from the Portu- 
 guese Courts. It is beyond dispute that Henry Crispin 
 died domiciled in Portugal, and therefore the succession 
 to his personal estate must be determined by the law of 
 Portugal (Stanley v. Bernes, 3 Hagg. 373, which related 
 to an English subject domiciled in Portugal; Bremer v. 
 Freeman, 10 Moo. P. C. 300, and many other cases), 
 and the law of the domicile applies equally whether the 
 party whose succession is in question dies testate or in- 
 testate." After quoting a passage from Enohin v. Wylie, 
 in which reference is made to the resort to the Court of the 
 domcile, he continues: " To that Court the plaintiff did 
 resort. The very same points were then raised that have 
 been put in issue in this Court. A judgment was then 
 pronounced in favour of the plaintiff, and that was affirmed 
 
 B. 12
 
 178 ADMINISTRATION OF FORKIGN ESTATES. 
 
 on appeal. By that it was decided that the plaintiff was 
 entitled to the inheritance of the deceased Henry Crispin. 
 By that judgment I feel I am bound." 
 
 There are other early cases in which the grant of the 
 foreign Court is followed, such as In the goods of Bianchi 
 (1862), 3 Sw. & Tr. 16, where a Sardinian, who had 
 settled in Brazil, died intestate during a voyage to Genoa 
 an agreement was come to between the Brazilian and 
 Italian Governments whereby Italy assumed entire control 
 of the administration of the estate. 
 
 By a decree of the Court of Turin it was declared that 
 the infant children were domiciled in Italy, and that their 
 guardian was entitled to administer the estate. The Court 
 (Sir Cresswell Cresswell) followed the decree of the Italian 
 Court, and granted letters of administration to the 
 guardian . 
 
 There is also the case of In the goods of Steigerwald 
 (1864), 10 Jur. N. S. 159, the decision in which may be 
 said to be as follows: The Court of Probate will make a 
 grant to a provisional executor appointed by the proper 
 Court of the domicile of the deceased; but it will limit it 
 for such time as the appointment by the Court of the 
 domicile remains unrescinded and in force. (See, how- 
 ever, In the goods of Levy, [1908] P. 108, referred to on 
 p. 181.) 
 
 In the case of In the goods of Probart (1866), 36 L. J. 
 P. 71 (Sir J. P. Wilde), a lady and her husband were 
 domiciled in the Cape of Good Hope, and were married 
 under the provisions of a deed whereby the husband was 
 entirely excluded from any share in his wife's estate. On 
 her death administration was granted to a brother, 
 following In the goods of Isabella Stewart, referred to 
 above. 
 
 The next case may be described as the starting point
 
 RULES AS TO FOLLOWING THE FOREIGN GRANT. 179 
 
 of the general rule (In the goods of Earl (1867), L. R. 
 1 P. & D. 450), a most important decision, in which Sir 
 J. P. Wilde authoritatively states the English law upon 
 this subject. Although in that particular case, as will be 
 explained later, the actual form of the foreign grant was 
 not followed here, the principles laid down are of general 
 application . 
 
 Sir J. P. Wilde says, in the course of his judgment: 
 
 " I think this Court ought to act upon sect. 73 of the 
 Court of Probate Act, and make a grant in all such cases 
 as the present to the person who has been clothed by the 
 Court of the country of the domicile with the power of 
 duly administering the estate, no matter who he is or on 
 what ground he has been clothed with that power." 
 
 Very similar language is used by the same learned judge 
 in the later case of In the goods of Smith (1868), 16 
 W. R. 1130. 
 
 There the deceased died domiciled in India, and had 
 by his will appointed three executors. Two had proved 
 in the Indian Courts, and applied for a grant to their 
 attorney in this country, no evidence being given as to 
 whether the third executor had renounced. 
 
 Sir J. P. Wilde, in granting the application, said: 
 " It is a general rule upon which I have already acted, 
 that where a person died domiciled in a foreign country, 
 and the Court of that country invests anybody, no matter 
 whom, with the right to administer the estate, this Court 
 ought to follow the grant simply because it is the grant 
 of a foreign Court, without investigating the grounds on 
 which it was made, and without reference to the principle 
 upon which grants are made in this country. I shall there- 
 fore make the grant in this case under sect. 73, inserting 
 a clause which will enable the third executor to come in 
 
 12(2)
 
 180 ADMINISTRATION OF FOREIGN ESTATES. 
 
 and claim his share of the representation if he should see 
 fit." 
 
 Similar decisions have frequently been given by the- 
 Courts of this country since that time. Thus, in the case 
 of In the goods of Dost Aly Khan (1880), 6 P. D. 6, 
 the English Court granted letters of administration to 
 the estate of a Persian subject in accordance with Persian 
 law to the party appointed by the Persian Courts. 
 
 The limitations upon the rule of following the foreign 
 grant are considered on a subsequent page, but during tho 
 course of their settlement the rule itself has undergone 
 slight modifications. 
 
 The principles applied by the English Courts at the 
 present day are well set out in the modern case of In the 
 goods of Briesemann, [1894] P. 260. 
 
 In that case Sir Francis Jeune says: 
 
 " The principle is that regard should be had to the law 
 of the domicile, in order to determine what power or 
 authority has been vested in anyone with regard to dealing 
 with the estate, and then to give such a grant to such 
 person as will enable him to perform in this country the 
 duties imposed upon him." 
 
 The case of In the goods of Meati/ard, [1903] P. 125, 
 illustrates this same principle. In that case the testator 
 was domiciled in Belgium (so found by Sir F. Jeune 
 (President), see p. 129), and made an English will 
 appointing executors, and later executed a will in the 
 Belgian form in Brussels. Orders were made by the 
 Court of Appeal in Brussels appointing two Belgian 
 notaries receivers, entrusting them with the administration 
 of the personal estate and effects, as well in Belgium as in 
 England, with full powers, and in pursuance of thoso 
 orders the Belgian receivers applied for administration 
 with the will annexed of the English estate. The grant
 
 EULES AS TO FOLLOWING THE FOREIGN GRANT. 181 
 
 was opposed by the executors of the English will, and Sir 
 Francis Jeune, in granting the motion, says: 
 
 "According to the law of Belgium, this appointment 
 of executors in the will made in English form is not one 
 that the Belgium Courts would accept and act upon. The 
 duty of this Court is to follow, so far as it can, the law of 
 the testator's domicile, namely, the law of Belgium, by 
 recognising the persons whom the Belgian Court has in- 
 vested with the power and duties of administrators. This 
 is in accord with more than one authority, the strongest of 
 which is perhaps In the goods of Earl, in which Lord 
 Penzance had before him a very similar case; and the 
 principle there laid down is that this Court ought to act in 
 accordance with the law of the testator's domicile." 
 
 He also refers to his own decision in In the goods of 
 Briesemann, and later says: 
 
 " For this Court to insist on appointing the executors 
 named in this testator's will would be to fly in the face of 
 the law of the testator's domicile, and that is what this 
 Court never does, if it can avoid it." 
 
 With the principles thus clearly established, it became 
 the common practice at the Principal Probate Registry 
 for the orders and decrees of the Court of the domicile to 
 be followed without question, and in the absence of any 
 exceptional circumstances, the decisions are not reported, 
 and in most cases being grants made in the Registry never 
 came before a judge at all. 
 
 In the case of In the estate of Levy (deceased), [1908] 
 8 P. 108, however, in a case where the Court of the 
 domicile of a deceased person, part of whose estate con- 
 sisted of personal estate in England, had made an appoint- 
 ment of a judicial administrator for a limited period of 
 time, this Court, under sect. 73 of the Probate Act, 1857, 
 made a general grant to the foreign administrator (follow-
 
 182 ADMINISTRATION OF FOREIGN ESTATES. 
 
 ing a similar grant in the case of In the goods of Abaroa 
 (deceased), [1902], Gorell Barnes, J., unreported). 
 
 It must, however, at once be said that there is consider- 
 able doubt whether In re Levy would be followed at the 
 present time (see " Law Quarterly Review," January, 
 1913, p. 40), and in practice grants in similar circum- 
 stances are invariably limited to the time during which 
 the foreign grant is in force. (See Re Gouin, cited in 
 " Law Quarterly Review," as above; see also case of In the 
 goods of Steigerwald, supra, which was not referred to 
 in Re Lew/.} 
 
 Having considered the general rule, we proceed at once 
 to deal with the exceptions, that is, with those cases in 
 which the foreign grant is not completely obeyed. Such 
 exceptions are principally of three kinds: 
 
 (a) Where the grant is made abroad to a party as 
 
 executor, who would not be considered an 
 executor of English law. 
 
 (b) Where the grant is made abroad to someone who is 
 
 not regarded by English law as having the re- 
 quisite capacity to act as administrator, as for 
 instance, a grant made to a minor. 
 
 (c) Where the grant is made abroad, not to a party en- 
 
 titled but to someone else, as for instance, to a 
 nominee of the person entitled or to a creditor. 
 Let us take these in their order: 
 (a) It is abundantly clear that probate can only be 
 granted to an executor recognised as such by the English 
 Courts. If the powers given to him fall short of those of 
 a testamentary executor in English law, probate will not be 
 granted here, whether such a grant has been made in the 
 Courts of the domicile or not; although, no doubt, in a 
 proper case a grant of administration with the will 
 annexed will be made.
 
 RULES AS TO FOLLOWING THE FOREIGN GRANT. 183 
 
 See In the goods of Read (supra), and also In the goods 
 of Mackenzie (1856), Deane, 17, where Sir John Dodson, 
 following Re Read, made a grant in these circumstances. 
 A person had been appointed personal representative by 
 the Courts of the domicile (Scotland) who would not have 
 been so entitled by English law. A grant was made to 
 the same party limited to the property in England, the 
 character varying so as to bring the grant into conformity 
 with the English practice. 
 
 In the later case of Laneuville v. Anderson (1860), 30 
 L. J. P. 25, there is a detailed judgment of Sir C. Cress- 
 well which is of great importance upon this point. The 
 headnote reads as follows: 
 
 " When an executor is appointed by a foreign will, the 
 nature and extent of the office conferred by the appoint- 
 ment are regulated by the law of the testator's domicile 
 and not by English law, even as to property situate in 
 England. If by the law of the domicile the executorship 
 lasts only for a limited period, the Court of Probate cannot 
 after that period has expired grant probate to the executor. 
 A domiciled Frenchman by his will appointed A. 
 executeur testamentaire, and B. his universal legatee. A 
 French Court having decided that A.'s executorship had 
 expired, and that he had no longer any right to inter- 
 meddle with the estate of the testator, either in France or 
 England, but that such right belonged exclusively to the 
 representatives of B., the Court of Probate, holding that 
 it was bound by that decision, refused to grant probate to 
 A., and granted administration with the will annexed to 
 the representatives of B." 
 
 In the case of In the goods of Oliphant (1860), 30 
 L. J. P., it was laid down that the proper course was to 
 grant a residuary legatee letters of administration with the 
 will annexed, and not probate.
 
 184 ADMINISTRATION OF FOREIGN ESTATES. 
 
 Other authorities as to foreign executors not always 
 being recognised by the Courts of this country are In the 
 goods of Cosnahan (1866), L. R. 1 P. & D. 183, where 
 it was decided that the English Court of Probate follows 
 the grant of the Court of the testator's domicile, as to the 
 document which that Court has admitted to probate, but 
 not as to the person to whom the grant is made. Probate 
 had been granted in the Isle of Man to a person as executor 
 according to the tenor, who would not have been so entitled 
 here; a grant was therefore made of administration with 
 the will annexed under the 73rd section. The next case 
 of importance was that already quoted of In the goods of 
 Earl. There the testator died domiciled in New South 
 Wales, and probate of his will was granted by the Courts 
 of the domicile to an executor according to the lenor. By 
 English law, the applicant would not have been considered 
 an executor according to the tenor, but nevertheless the 
 Court, here granted administration with the will annexed 
 to the executor as the person entitled to administer under 
 the grant of the Court of the domicile. 
 
 This was followed in In the goods of Briesemann 
 (supra}, and subsequently in Re Von Linden, [1896] P. 
 148, in which latter case Sir Francis Jeune (President) 
 discusses the nature of an executorship according to 
 English law. He says: 
 
 " Where in a foreign will a person is in terms named 
 executor, probate will be granted in this country to that 
 person, but where the powers granted to a person in the 
 will full short of the powers of executors according to 
 English law, there will be a grant to him of administra- 
 tion, with powers as near as may be to those granted by 
 the will. The present case lies between those two cases. 
 On the one hand, the applicant has not been in terms 
 appointed executrix, but we are able to infer that it was
 
 RULES AS TO FOLLOWING THE FOREIGN GRANT. 185 
 
 the intention of the testator that she should have the 
 powers of an executrix that is, she is an executrix accord- 
 ing to the tenor. In dealing with a foreign will, it is, of 
 course, even more necessary than in the case of an English 
 one, that the Court should be satisfied that the powers 
 granted by the will are those of a full executor." 
 
 Since that decision, in a case of Re Mary Moffatt, 
 [1900] P. 152, the deceased died domiciled in Hayti, and 
 left a Avill, but appointed no executors expressly; by con- 
 sent a grant was made in England, under the 73rd section, 
 with the will annexed without citing the next of kin. 
 
 The rule of foreign law that an executorship only lasts 
 for a period of a year and a day from the death of the 
 testator (see Ee Groos, [1904] P. 269 (Gorell Barnes, J.); 
 and Tristram & Coote's Probate Practice, at p. 53) is now 
 fully recognised in the Principal Probate Registry, and 
 the executors appointed by the deceased will be passed over, 
 without further proof, once their period of activity has 
 expired, that is to say, a grant of probate will no longer 
 be made to them. 
 
 Secondly. (b) The foreign grant will not be followed 
 where the grant is made to someone who is considered not 
 to possess the requisite capacity in English law . Thus, in 
 In the goods of Duchess of Orleans (1859), 28 L. J. P. 
 129, the headnote is worded as follows: "Although the 
 Court of Probate in granting administration of the effects 
 of a person who died domiciled abroad generally follows 
 the law of the domicile, it will not grant administration 
 to a person who by the law of England is incapacitated 
 from taking upon himself the liabilities of an adminis- 
 trator. It will, therefore, refuse to grant administration 
 to a minor, even though by the law of the domicile such a 
 minor might be entitled to administer the estate of the 
 deceased."
 
 186 ADMINISTRATION OF FOREIGN ESTATES. 
 
 In that case administration was granted to the lawful 
 guardian of the minor. 
 
 There is a dictum of Sir Francis Jeune to the same 
 effect in the case already cited, In re Meatyard, where he 
 says (at p. 130): 
 
 " This Court cannot follow the foreign law so far as to 
 grant administration to anyone who is personally dis- 
 qualified from taking the grant. For instance, however 
 much the foreign Courts may think that a minor should 
 have the grant, this Court cannot go so far as to give it 
 to such a person." 
 
 Although this is undoubtedly the modern rule of law, 
 there is one reported case in which a grant was made to a 
 minor, viz., in the case of In the goods of Da Cunha 
 (1828), 1 Hagg. Eccl. 237. The facts of that case wnv 
 certainly very special, and the decision was practically a 
 consent judgment; however, there a residuary legatee 
 under a will was a minor, and was married, the husband 
 being also under age. By Portuguese law, which was the- 
 law of the domicile, guardians could not be appointed, 
 and ultimately administration was granted here to tho 
 residuary legatee, limited to the receipt of dividends upon 
 a large sum of Consols standing in the name of the de< 
 in the books of the Bank of England. 
 
 This case is an isolated one, and would probably not be 
 followed at the present time. It was not cited in tho case 
 of In the goods of Duchess of Orleans. Mr. Nelson, in 
 his book on Private International Law, seeks to distinguish 
 the two cases (see p. 209). It is certainly true that in 
 the case of Da Cunha there were practically no adminis- 
 trative duties to perform, and that the decision, given at a 
 very early stage of the history of private international h\\ 
 upon this subject, was an eminently "convenient " one in 
 tin- particular cases.
 
 RULES AS TO FOLLOWING THE FOREIGN GRANT. 187 
 
 It is submitted, however, that the law is as stated, and 
 that this case could in no way be treated as an authority 
 for the proposition that a minor could now obtain a grant . 
 The headnote to the case of In the goods of Briesemann, 
 already cited, is also in point: " The Court will follow the 
 grant of the foreign domicile, unless the administrators 
 appointed by the foreign Court are by the law and practice 
 of this country personally disqualified from taking a grant 
 here." 
 
 Under this heading may also be included those cases in 
 which the English Court refuses to give effect to the 
 foreign grant as being inconsistent with its own practice. 
 Such cases are In the goods of Joaquwi Jose Ferreira 
 Veiga, 3 Sw. & Tr. 13. 
 
 There the deceased died domiciled in Portugal, and a 
 grant was made by the Prerogative Court of Canterbury 
 to an executor entitled according to the law of Portugal; 
 ultimately changes took place in the executors in Portugal, 
 and on one executor renouncing in conformity with the 
 law of Portugal, another person was named executor for 
 all purposes by the Portuguese Courts. The Court, how- 
 ever, refused to grant administration de bonis non to the 
 new executor on the ground that there was no authority 
 for an executor who took such a grant in the English 
 Courts renouncing, and that, therefore, there was still a 
 legal personal representative of the deceased in this 
 country, and in face of this fact the Court could not follow 
 the grant of the foreign Court as it otherwise would have 
 done. (For the case of an almost opposite decision, where, 
 however, no previous English grant had been made, see 
 In the goods of Black (1887), 13 P. D. 5, where, on an 
 appointment of the Administrator-General of British 
 Guiana consequent upon the renunciation of an executor.
 
 188 ADMINISTRATION OF FOREIGN ESTATES. 
 
 administration was granted here to the Administrator- 
 General.) 
 
 Another case which illustrates the rule that a grant will 
 not be followed which violates the English practice, is 
 Re Vannini, [1901] P. 330, which is an authority for the 
 statement that even where the husband consents, the Court 
 will refuse to grant probate to the executor named in the 
 will of a married woman who dies domiciled abroad, 
 although with such consent the Court will make a grant 
 of administration with the will annexed. (And see In the 
 goods of Hallybwton, L. R. 1 P. & M. 90; and In the 
 goods of Trefond, [1899] P. 247.) 
 
 (c) The third exception to the rule of following the 
 foreign grant occurs when the grant is made abroad, not 
 to a party entitled, but to someone else, as for instance, to 
 a nominee of the party entitled, or to a creditor. 
 
 Thus, the case of In the goods of Weaver (1866), 36 
 L. J. P. 4, shows that where administration of the estate 
 of an intestate who dies domiciled abroad, is granted by 
 the foreign Court to a person entitled in his own right to 
 administration, the Court of Probate will follow the 
 foreign grant; but it will not do so where the foreign 
 grant is made to a nominee of the person entitled, except 
 upon the exprees consent of the latter. 
 Sir J. P. Wilde says in his judgment: 
 " It is said the Court ought to dispense with the consent . 
 because it is bound to follow the American grant; when 
 the Court of a foreign country, in which a person dies 
 domiciled, grants administration to one who by the law 
 of that country is entitled to the grant, this Court in 
 making a grant with reference to the property situate in 
 Kugland, follows the foreign grant. But this case does 
 not fall within that rule, for here the grant was made, not 
 t" persons entitled to it, but to persons nominated by the
 
 EULES AS TO FOLLOWING THE FOREIGN GRANT. 189 
 
 widow, and if the foreign law is to be followed, this Court 
 should require, as was the case in the American Court, the 
 widow's consent before the grant is made." 
 
 (It appears that subsequently this consent was forth- 
 coming, and on the motion being renewed a grant was 
 made in the terms of the motion.) 
 
 In the later case of In the goods of Clayton (1886), 11 
 P. D. 76, a grant was made to a nominee, but the circum- 
 stances were very special. In that case trustees for carry- 
 ing on the deceased's business had been appointed, and 
 this appointment had been confirmed by the Chancery 
 Division. A grant of administration was accordingly 
 made by the Probate Court to the trustees for the sake of 
 convenience . 
 
 Grants to creditors abroad stand upon the same footing^ 
 as grants made to parties other than those entitled in their 
 own right. In the case of Blackwood v. The Queen 
 (1882), 8 A. C. 82 (Privy Council), the judgment was 
 delivered by Sir Arthur Hobhouse, and contains the 
 following statement: 
 
 " The grant of probate does not of its own force carry 
 the power of dealing with goods beyond the jurisdiction 
 of the Court which grants it, though that may be the Court 
 of the testator's domicile . At most it gives to the executor 
 a generally recognised claim to be appointed by the foreign 
 country or jurisdiction even that privilege is not neces- 
 sarily extended to all legal personal representatives as for 
 instance, when a creditor gets letters of administration in 
 the Court of the domicile." (See pp. 92 and 93 of the 
 report.) 
 
 Generally speaking, therefore, it may be said that the 
 authorities quoted above show that it would require a 
 very strong case of inconvenience to induce the English 
 Courts not to follow the foreign grant.
 
 190 ADMINISTRATION OF FOREIGN ESTATES. 
 
 It certainly seems eminently desirable that the rule 
 should prevail as frequently as circumstances will allow, 
 and that proper effect should be given by the English 
 Courts to the decisions of the Courts of the domicile in all 
 cases, except those in which the decision given conflicts 
 with the established principles of the English law. 
 
 It must be added that the rule of following the foreign 
 grant is not limited to cases in which the Court of the 
 domicile has made a grant in accordance with its own lex 
 fori the rule extends to and covers cases in which the 
 Court of the domicile refers the matter to some other legal 
 system for decision, as for instance, where the lex domicilii 
 adopts the theory of the r envoi. 
 
 Thus, in Re Trufort, Trafford v. Blanc (1887), 36 
 C. D. 600, Stirling, J., held that the decision of the Swiss 
 Courts, which by the law of the domicile were the proper 
 forum to determine all questions relating to the succession, 
 was binding upon the English Court, and he decreed 
 accordingly. 
 
 Moreover, although in the cases cited, we have in each 
 case been dealing with those cases wherein an actual formal 
 decision of the Court of the domicile has been pronounced, 
 the rule is precisely similar where some person is entitled 
 by the law of the foreign country to administer the estate, 
 and such person, on proof of his authority according to the 
 lex domicilii, will be entitled to administration here. 
 
 Thus, In the goods of Beggia (1822), 1 Add. 340, a 
 public functionary of Morocco died leaving estate in this 
 country, and a grant was made to an appointee of the 
 Emperor in accordance with the law of Morocco. (See 
 also In the goods of Steivart and Re Roger son, cited above; 
 also In the goods of Maraver (1828), 1 Hagg. Eccl. 498, 
 where probate of the will of a married woman domiciled 
 in Spain was granted to the son, as executor, on an affidavit
 
 RULES AS TO FOLLOWING THE FOREIGN GRANT. 191 
 
 as to Spanish law; and, further, In the goods of Sartoris 
 (1838), 1 Curt. 910, where a deceased died intestate in 
 Paris leaving children under age. The nearer parties 
 having renounced, administration was granted to the 
 guardian of the minors, who had been appointed by the 
 proper authorities in Paris. 
 
 Another case to the same effect, and which exactly 
 illustrates this point, is In the goods of Hill (1870), L. R. 
 2 P. & D. 89, 90 (Lord Penzance). The headnote of that 
 case is as follows: 
 
 " When the deceased dies domiciled in a foreign country,, 
 and an application is made to this Court, either for an 
 original or a de bonis non grant of administration, this 
 Court will be prepared to make it to the person recognised 
 by the proper Court of the foreign country." 
 
 Similarly, In the goods of Oldenburg (1884), 9 P. D. 
 234, which had reference to the estate of Prince Peter 
 Georgevitch Oldenburg of Russia. By the law of Russia 
 no will or codicil of a deceased member of the royal family 
 has any effect as such, but the deceased's property is distri- 
 buted according to an " acte definitif," decreed by the 
 other members of the family and confirmed by the 
 Emperor. This having been done in the present case 
 probate was granted in the English Courts of the " acte 
 definitif," although a will and several codicils were in 
 existence. 
 
 SCOTCH, IRISH AND COLONIAL GRANTS. 
 
 Special legislative provision has been made for dealing 
 with Scotch, Irish and Colonial grants of representation, 
 and for providing for such grants being made executory 
 here, and for English grants being extended for use there. 
 Scotch grants are covered by the Confirmations and 
 Probate Act, 1858 (21 & 22 Viet. c. 56), Ireland by the
 
 192 ADMINISTRATION OF FOREIGN ESTATES. 
 
 Probates and Letters of Administration Act (Ireland), 
 1857 (20 & 21 Viet. c. 79), and the British Colonies by the 
 Colonial Probates Act, 1892 (55 Viet. c. 6). (For details 
 of the practice under these Acts, see Tristram & Coote's 
 Probate Practice.) 
 
 It will have been gathered from the foregoing state- 
 ments upon the practice of the English Courts to follow 
 the foreign grant, that the rules which in this chapter are 
 more particularly dealt with, are of greater practical im- 
 portance in cases of administration than in those of 
 probate. 
 
 Probate in this country being confined to executors in 
 the English sense, it follows (as has already been pointed 
 out) that no decision of the Court of the domicile could 
 operate to extend the powers given to a person by will, 
 and convert such person into an executor entitled to pro- 
 bate unless that would be the view taken of his powers in 
 this country. Although this is true, it must not, however, 
 be supposed that the decision of a foreign Court is unim- 
 portant in cases of probate; whilst the decision of the 
 Court of the domicile would not in all cases be followed 
 hen-, in that a grant of probate might not be made, it is 
 abundantly clear that the English Courts will consider 
 themselves bound by the decision of the foreign Court as 
 to the testamentary character of an instrument, and even 
 if unable to make a grant of probate, will give effect to the 
 foreign decision, and make a grant of administration with 
 the will annexed to the party entitled. (Sco Miller v. 
 Jame*, L. R. 3 P. & D. 4.) 
 
 We have hitherto dealt with the question of following 
 the foreign grant entirely from the standpoint of the 
 English Court before which a foreign grant is pleaded; 
 the position in general holds good when the opposite posi- 
 tion is taken, that is, when the foreign Courts have to
 
 RULES AS TO FOLLOWING THE FOREIGN GRANT. 193 
 
 consider the effect of an English grant of administration. 
 Without going into the matter in greater detail, it may 
 be stated that the English Courts expect reciprocal treat- 
 ment at the hands of foreign judges, and a study of the 
 decisions of the principal Continental countries tends to 
 show that the practice of respecting the decision of the 
 Courts of the domicile is not confined to this country, but 
 is very generally met with in other parts of the civilised 
 world .
 
 CHAPTER XVII. 
 
 GENERAL MATTERS RIGHTS OF CREDITORS. 
 
 THE position of a creditor, his rights and obligations, are 
 governed by the lex fori, as the payment of debts due 
 from the estate of a deceased person constitutes a part of 
 the process of administration. 
 
 As to immoveables administration, however, is governed 
 in general by the lex situs. 
 
 Therefore, as against immovcable property of the 
 deceased creditors will rank in accordance with the 
 priorities prescribed by the lex situs, and their powers of 
 enforcing payment of their accounts, the nature and extent 
 to which they are secured, and all other questions relating 
 to the enforcement of their rights will be determined by 
 the same law. 
 
 This statement of the law presupposes that the deceased 
 has not left a will in which a contrary intention is shown . 
 It must not be assumed, however, that a creditor's rights 
 can be reduced by any provisions in the testator's will, 
 although it is possible for a testator to so dispose of his 
 property as to give creditors important rights over pro- 
 perty which they might not otherwise possess. 
 
 If the testator has shown an intention to override the 
 general rule, his assets will, if necessary, be marshalled 
 according to that intention, whether they be moveable or 
 immoveable. 
 
 With regard to moveables the English law is clear. 
 
 Creditors' rights and liabilities are limited by the lex
 
 RIGHTS OF CREDITORS. 195 
 
 ~fori, and by English law the creditors all take pari passu, 
 whether they are English or foreign creditors. 
 
 In the case of In re Kloebe, Kannreutherv. Geiselbrecht 
 (1884), 28 Ch. D. 175, the authorities were considered by 
 Pearson, J., and the above rule strongly laid down. 
 
 The deceased, a domiciled Greek, left assets here and 
 partnership debts owing to English and foreign creditors. 
 It was contended on behalf of the English creditors, that 
 the English estate must first be distributed amongst them- 
 selves, and then the balance handed to the foreign adminis- 
 trator for distribution in his own forum. This view, 
 however, was not successful. 
 
 Mr. Justice Pearson, in his judgment, approved a 
 passage from Professor Westlake upon the subject, and 
 continues: "Therefore, if a man dies domiciled in 
 England possessing assets in France, the French assets 
 must be collected in France and distributed according to 
 the law of France. If the French creditors are entitled 
 according to that law to be paid in priority, that rule must 
 be observed, because it is the lex fori, and for no other 
 reason . But if it should happen that a man died domiciled 
 in France leaving assets in England, those assets can only 
 be collected under an English grant of administration, and 
 being so collected must be distributed according to the law 
 of England." 
 
 The matter is well put in the old case of De la Vega 
 v. Vanna, 1 B. & Ad. 284, where Lord Tenterden says: 
 " A person suing in this country must take the law as he 
 finds it; he cannot by virtue of any regulation in his own 
 country enjoy greater advantages than other suitors here, 
 and he ought not, therefore, to be deprived of any superior 
 advantage which the law of this country may confer. He 
 is to have the same rights which all the subjects of this 
 kingdom are entitled to." 
 
 13(2)
 
 196 ADMINISTRATION OF FOREIGN ESTATES. 
 
 At a later place in his judgment in In re Kloebe. 
 Pearson, J., says: " Whatever the law in France or India 
 may be, the law of England has always been, that you must 
 enforce claims in this country according to the practice 
 and rules of our Courts, and according to them a creditor, 
 whether from the farthest north or farthest south, is 
 entitled to be paid equally with other creditors in the same 
 class." The general proposition in the matter so far as 
 international law is concerned, is stated in the Privy 
 Council case of Blaekwood v. The Queen (1882), H. C. 
 82, where Sir Arthur Hobhouse, in giving the judgment 
 of the Court, says: " The grant of probate does not of its 
 own force carry the power of dealing with goods beyond 
 the jurisdiction of the Court which grants it, though that 
 may be the Court of the testator's domicile. At most, it 
 gives to the executor a generally recognised claim to be 
 appointed by the foreign country or jurisdiction. Even 
 that privilege is not necessarily extended to all legal per- 
 sonal representatives, as for instance, when a creditor gets 
 letters of administration in the Court of the domicile." 
 
 And when the legal personal representative has born 
 constituted in the foreign country, whether he be the 
 executor of the domicile or another, the administration of 
 assets must take place in the foreign country, with tin 
 effect of giving the foreign creditors such priority a< 
 regards foreign assets as is shown by the cases of Preston 
 v. Melville (1840), 8 Cl. & F. 1, and Cook v. Greg son 
 (1854), 2 Drew, 286. For the purpose of succession and 
 enjoyment the law of the domicile governs the foreign 
 personal assets. For the purpose of legal representation, 
 of collection and of administration, as distinguished from 
 distribution among the successors, they are governed not 
 by the law of the owner's domicile, but by the law of tin-M- 
 own locality.
 
 RIGHTS OF CREDITORS. 197 
 
 The subject of priorities deserves attention. 
 
 Whilst it is undoubted law that in administration in 
 this country all creditors take according to English law, 
 yet where foreign assets are being administered here with 
 the consent of the foreign administrator, as to those assets 
 foreign creditors will retain any priorities given them by 
 the foreign law. (Cook v. Greg son.} 
 
 When Creditors are entitled to a Grant of Administration. 
 
 A creditor's title to obtain a grant of representation to 
 the estate of a deceased person is inferior to the right of all 
 other interested parties, and the ground of making the 
 grant at all is the obvious one, of enabling him to pay 
 himself his debt. 
 
 He can only apply if all other interested parties 
 renounce, or having been cited refrain from taking out 
 administration. The amount of the debt and the nature 
 of it (whether judgment, special, or simple contract) is 
 immaterial, unless there is a contest between the creditors 
 themselves, when the grant is usually made in favour of 
 the largest creditor. 
 
 The case of a creditor's grant is one of the exceptions 
 to the rule of following the decision of the Court of the 
 domicile . 
 
 Where a creditor obtains a grant in the Court of the 
 domicile, that grant will not be followed here, and 
 administration here must be applied for in strict accord- 
 ance with English rules. (Blackwood v. The Queen.} 
 
 Liability of Administrator. 
 
 The liability of an administrator is primarily confined 
 to such cases as are recognised and enforced by the Courts 
 in whose jurisdiction he has obtained his powers.
 
 198 ADMINISTRATION OF FOREIGN ESTATES. 
 
 But an English administrator is liable for all the assets 
 he has received, wherever they were originally situate. 
 
 Thus, he must account for assets abroad which he has 
 reduced into possession, provided, of course, that he has 
 not done so under a foreign grant. 
 
 Again, by English law a foreign administrator who 
 allows assets of a moveable nature belonging to the estate 
 to be brought to this country without accounting for them 
 to his own Courts, may be sued in this country for the 
 administration of those assets, provided the action is pro- 
 perly constituted.
 
 CHAPTER XVIII. 
 
 THE EXERCISE OF POWERS OF APPOINTMENT BY WILL . 
 
 To the general rule that a will disposing of moveahles 
 must be in the form required by the law of the testator's 
 domicile, there is one further important exception, that 
 is, in the case of wills operating to exercise a power of 
 appointment over moveables, by virtue of some English 
 instrument creating the power. 
 
 English rules treat the law of the domicile of the donor 
 of the power of appointment as a more important factor in 
 such matters than the law of the donee, and attach even 
 greater importance to the proper law of the settlement or 
 will under which the power of appointment arises. 
 
 The proper law of the settlement or will would, in 
 accordance with the ordinary rules, be the law of the place 
 where it was executed, or if the settlor had clearly intended 
 some other system of law to apply, then such other system 
 would govern. 
 
 The matter is one of considerable importance, as one of 
 the commonest interests in property which is met with in 
 British settlements and wills is that of the donee of a 
 power of appointment. The donor has by his will or 
 settlement granted to the donee an "authority" of some 
 kind to dispose of certain property. 
 
 By the terms of the instrument creating it the exercise 
 of this power or "authority" may be carried out in a 
 number of ways, the most important way for our purpose 
 being the appointment by will, in which case the document 
 exercising the power must answer to the test of a will.
 
 200 ADMINISTRATION OF FOREIGN ESTATES. 
 
 Where this is so, and it is desired to exercise the power, 
 what is the test of capacity and what form should the will 
 take? 
 
 Again, if the deceased has left a will, by what test are 
 we to determine whether the power has been exercised or 
 not ? 
 
 The rules governing the matter in English private 
 international law are somewhat complex, and depend con- 
 siderably upon the terms of the instrument creating the 
 power, and upon the circumstances of each case. 
 
 First, of capacity to execute a will for the purpose of 
 exercising a power of appointment over personal property. 
 
 A person who is entitled to make a will by the law of 
 his domicile, can, unless the instrument creating the power 
 imposes special conditions, validly exercise a simple power 
 to appoint personally by will, by any will valid according 
 to the law of the domicile even if such person has no 
 testamentary capacity according to English law. 
 
 This is the result of the case of D'Huart v. Harkness 
 (1865), 34 B. 328, read with the decisions on capacity, 
 viz., In re d'Angibau, a case of appointment by an infant, 
 and Barnes v. Vincent, a case of appointment by will of 
 a married woman before testamentary capacity had been 
 acquired. 
 
 In the case of D'Huart v. Harkness (1865), 34 B. 328, 
 a will valid as to form by the law of the domicile, but 
 invalid by English law, was held sufficient to exercise an 
 English power of appointment over personal estate. 
 
 Conversely, a person can validly exercise such a power 
 by a will made in English form, oven when according to 
 the law of the domicile the testator has no testamentary 
 capacity at all. 
 
 This has now been definitely decided by the House of 
 Lords in the Irish appeal case of Murphy v. Deiehler,
 
 EXERCISE OF POWERS CF APPOINTMENT BY WILL. 201 
 
 [1909] A. C. 446. In that case a will executed in the 
 English form by a domiciled German was held to be a 
 good exercise of an English power of appointment, 
 although the will was not properly executed in accordance 
 with the law of the domicile. 
 
 The decision was not given as being right in principle, 
 but simply on the ground that the Court did not see its 
 way to modify a well-established practice by which such 
 wills were treated as valid for this purpose. 
 
 The decision of the highest tribunal set doubts at rest 
 which had arisen as to the correctness or otherwise of 
 such cases as Tatnell v. Hankey, Crookenden v. Fuller, 
 Re Alexander, Re Hallyburton, Re Huber, and others 
 which are now devoid of interest except to the student of 
 legal history. 
 
 It must not be taken for granted that the House of 
 Lords approves this state of the law, indeed in the case 
 referred to the Lord Chancellor intimated that if the 
 matter had come before them, in an early stage in the 
 history of the law upon the subject, they probably would 
 have arrived at a different conclusion. 
 
 The reason for these rules is that the exercise of a power 
 of appointment does not strictly call for testamentary 
 capacity at all. The donees derive their title from the 
 instrument creating the power, and do not depend on the 
 general law for their capacity to exercise the same, even 
 though the document by which the exercise is effected 
 takes the form of a will. 
 
 Where the terms of the instrument granting the power 
 are not complied with as to the formalities of execution, 
 no will can operate as an exercise of the powers unless it 
 complies with the Wills Act, 1837 i.e., attested by two 
 witnesses . 
 
 By the Wills Act, 1837 (7 Will. 4 & 1 Viet. c. 26,
 
 202 ADMINISTRATION OF FOREIGN ESTATES. 
 
 s. 10), it is specially enacted that a will well executed 
 according to the provisions of that Act is " a valid execu- 
 tion of a power of appointment by will, notwithstanding 
 it shall have been expressly required that a will made in 
 exercise of such power should be executed with some 
 additional or other form of execution or solemnity." (S 
 Re Daly's Settlement (1858), 25 Beav. 456.) 
 
 In that case a testatrix whilst domiciled in England, but 
 residing in France, made a will (before Lord Kingsdown's 
 Act, and died prior thereto) valid according to French 
 law, but not executed according to the Wills Act, 1837. 
 The will did not therefore exercise the power. 
 
 The above section of the Wills Act, 1837, and sect. 9, 
 as to execution of an English will, as well, do not, of 
 course, apply to persons who are not domiciled here. 
 (Bremer v. Freeman (1857), 10 Moo. P. C. 306.) Th- 
 fore, as the enabling provisions of sect. 10 of the above Act 
 are limited to the wills of persons dying domiciled in 
 England, no will of a person dying domiciled abroad can 
 ever operate as an exercise of a power of appointment 
 arising under an instrument whereby special formalities 
 are prescribed, unless those special formalities are complied 
 with (In re Price, Tomlm v. Latter, [1900] 1 Ch. 442; 
 Barretto v. Young, [1900] 2 Ch. 339), even though the 
 will may be executed in strict accordance with sect. 9 of 
 the Wills Act, 1837. 
 
 Where the will is not made in accordance with the terms 
 of the power, and is not executed in accordance witli the 
 Wills Act, 1837, although it cannot operate to exercise the 
 power, yet the will may be admissible to probate so far as 
 the personal estate is concerned. (In re Kirwans Trusts 
 (1883), 25 Ch. D. 373.) 
 
 Where the terms of the instrument creating the pmviT 
 are complied with, a will made in any of the following
 
 EXERCISE OF POWERS OF APPOINTMENT BY WILL. 203 
 
 forms will be formally valid, and be capable of operating 
 as an exercise of the power, if the construction allows: 
 
 (a) If it complies with the Wills Act, 1837; or 
 
 (b) The Wills Act, 1861 (Lord Kingsdown's Act); or 
 
 (c) The law of the domicile either at date of making 
 
 the will or at date of death. 
 
 Under the Wills Act, 1837. 
 
 Where the terms of the instrument creating the power 
 prescribe a will and certain formalities. 
 
 Once the document complies with these formalities it is 
 merely necessary as to form to show that the instrument 
 is a valid will by English law. 
 
 It has now been decided that a will made in accordance 
 with the English Wills Act, 1837, is valid as to form for 
 purposes of exercising a power created by an English 
 instrument, although it may not be in the form required 
 by the law of the domicile. (Murphy v. Deichkr 
 (H. L.).) 
 
 Under the Wills Act, 1861. 
 
 Where the terms of the power are complied with, a will 
 valid in accordance with the above Act will be sufficient as 
 to form. This was not formerly the case, see Hummel v. 
 Hummel, [1898] 1 Ch. 642; but see In re Walker, McColl 
 v. Bruce, [1908] 1 Ch. 566. 
 
 By the Law of the Domicile. 
 
 Where the terms of the power are complied with, the 
 English Courts will consider a will valid as to form if 
 made in accordance with any law which the law of the 
 domicile would apply. 
 
 Where the terms of the instrument creating the power 
 refer to "a will," "a valid will," or "a duly executed
 
 204 ADMINISTRATION OF FOREIGN ESTATES. 
 
 
 
 will," any valid will is sufficient in form. (D'Huart v. 
 Harkmss, 34 B. 328.) 
 
 Construction of Wills as to Exercise of Powers. 
 
 Of course, if a will which is valid in form contains an 
 express reference to the property over which the testator 
 has a power to appoint, little question can arise as to the 
 effect of the will in its operation, and the question of 
 whether or not the power has been exercised is not likely 
 to arise. 
 
 Where, however, no reference is made, or where the 
 reference is not clear, questions arise, and the rules govern- 
 ing such cases are of extreme importance. 
 
 It is assumed throughout this chapter that the matter 
 arises under a British instrument, and is tried in a British 
 Court. 
 
 This being so, the rules of evidence are governed in 
 accordance with the usual principle by the lex fori. 
 
 If, therefore, a will made in France by a person domi- 
 ciled there contains no reference to the appointed property, 
 unsigned or unattested memoranda admissible in evidence 
 by French law, cannot be given in evidence here to show 
 the testator's intention, as such memoranda are not admis- 
 sible according to English rules of evidence. (In re 
 Schole field, Schole field v. St. John and In re Young, 
 Smith v. St. John, reported together at p. 408 in [1905] 2 
 Ch. D.) These cases were taken to the Appeal Court, but 
 were settled before argument. (See [1907] 1 Ch. 664.) 
 
 The facts were these: A testatrix domiciled in France, 
 \\lio had a general power over personalty, appointed ln-i 
 niiTi- universal legatee of her property in England and 
 France by a holographic will in French form. The will 
 contained no reference to the power or the property, but 
 memoranda in the testator's handwriting showed
 
 EXERCISE OF POWERS OF APPOINTMENT BY WILL. 205 
 
 a clear intention to appoint to the niece. Evidence showed 
 that by French law everything would pass under the will, 
 and the memoranda would be admissible as to intention. 
 It was held by Mr. Justice Kekewich that the question of 
 the exercise of the power was to be determined by evidence 
 admissible by the law of England, and that the will did 
 not operate to exercise the power. 
 
 Powers of appointment over property being peculiarly 
 the creatures of English jurisprudence, are governed in 
 English law, and when English rules apply, by special 
 provisions. 
 
 Thus, sect. 27 of the Wills Act, 1837, makes a general 
 bequest of the property of a testator operate as an exercise 
 of a general power of appointment. 
 
 If, therefore, the will is made by a person domiciled in 
 England, this section will apply, as in that case the con- 
 struction would be governed by English law. 
 
 Moreover, if the domicile of the testator is foreign, but 
 English rules of construction apply owing to the wording 
 of the will, the same result will ensue. 
 
 Thus, in the case of In re Price, Tomlin v. Latter, 
 [1900] 1 Ch. 442, a French subject domiciled in France 
 made a will in holographic form, but containing the 
 following words: " I desire my will to take effect in 
 England as in France." The will contained a general 
 bequest. It was held that this showed a desire on the part 
 of the testatrix for English principles to govern her will, 
 and English principles were admitted. Sect. 27 of the 
 Wills Act, 1837, took its place, and therefore the will 
 operated by the application of that section to exercise the 
 power . 
 
 As this was a will of a testatrix domiciled in France, 
 the wall would have been construed according to the law
 
 206 ADMINISTRATION OF FOREIGN ESTATES. 
 
 of the domicile had it not been for the reference to English 
 principles made by the testator. 
 
 Thus, in the case of In re D'Este's Settlement Trusts, 
 Pvulter v. D'Este, [1903] 1 Ch. Ap. 898, a will made in 
 French form by a person domiciled in France, and con- 
 taining no indication of the testator's intention for the 
 will to be governed by a different system of law, was con- 
 strued according to the law of the domicile, and sect. 27 
 did not apply. 
 
 Consequently, although tho will was valid for probate 
 (as far as moveables were concerned), and although it 
 contained a general bequest, the power was not exercised, 
 and the property passed in default of appointment. 
 
 The general leaning of the Court is towards applying 
 English rules of construction wherever possible, and com- 
 paratively slight indications of a desire for English rules 
 to govern seem sufficient. See Re Baker's Settlement 
 Trusts, (1908) W. N. 161, where a general bequest made 
 in a will in English form by a testatrix domiciled in Swit- 
 zerland operated to exercise a general power of appoint- 
 ment. 
 
 The facts were that Mrs. Baker under her English 
 marriage settlement had a power of appointment over one- 
 half of the trust property in the event of her surviving her 
 husband. She survived her husband, resided for many 
 years in Switzerland, and acquired a domicile there. 
 Shortly before her death she executed a will in English 
 form, attested in accordance with English law, containing 
 a general residuary bequest. 
 
 The judgment of Parker, J., in (his case is as instructive 
 as it is short. He said the effect of the decisions In re 
 Price, In re D'Este's Settlement Trusts, and In re Schole- 
 ficld was that a general power of appointment could be 
 exercised by a will which, though not conforming to the
 
 EXERCISE OF POWERS OF APPOINTMENT BY WILL. 207 
 
 requirements of English law, was valid by the law of 
 testator's domicile, or by a will which, whether valid by 
 that law or not, was valid according to the forms of 
 English law; and that in the former event that of the 
 will being valid only by the law of the domicile primd 
 facie sect. 27 of the Wills Act was not incorporated, and 
 the will would be construed irrespective of the section, 
 although any indication on the face of the document that 
 it was to be construed according to English law, would 
 justify that construction being given to it with reference 
 to sect. 27. The question, therefore, was whether the will 
 ought to be construed by the law of the domicile or accord- 
 ing to English law, and in the latter event, whether with or 
 without reference to sect. 27. If it could be so construed, 
 the general residuary bequest was sufficient to exercise 
 the power. Clearly for some purposes the document must 
 be construed according to English law, inasmuch as if it 
 had been a valid will by the law of the place of domicile, 
 the first thing to be done would have been to ascertain the 
 meaning of the terms used, and what was intended to pass 
 by the general bequest. The most reasonable principle to 
 apply was that the will should be construed, not according 
 to hypothetical constructions which the foreign Courts 
 might place upon it, but wholly with reference to English 
 law. That being the case, sect. 27 was clearly applicable, 
 and the power was therefore exercised by the will. 
 
 A further question, however, arises. Assuming that 
 the will does operate as a valid and sufficient exercise of 
 the power of appointment, what is the effect of such an 
 exercise ? 
 
 By English principles the operation of a general power 
 of appointment over moveables is such that the property 
 becomes general assets of the testator for all purposes. 
 (Re Hadley, [1909] 1 Ch. 20.)
 
 208 ADMINISTRATION OF FOREIGN ESTATES. 
 
 Where, therefore, the law of the domicile of the testatrix 
 gave the mother certain rights of legitim over the 
 deceased's estate, it was held that the mother was entitled 
 to her appropriate share of the appointed property. (In 
 re Pryce, Latvjord v. Pryce, [1911] 2 Ch. 286 (C. A.).) 
 
 This decision reversed that of Mr. Justice Parker in 
 the Court of first instance. 
 
 It had previously been held in Re Hadley, [1909] 1 
 Ch. 20 (C. A.), that upon the exercise of a general power 
 of appointment by a testator, the property concerned 
 became general assets, and therefore estate duty on that 
 property was payable out of the whole of the general estate, 
 and not merely out of the proceeds of the property itself. 
 
 The later decision now under discussion expressly 
 follows In re Hadley, and the result would appear to be 
 the logical inference from the earlier decision. 
 
 The case of In re Megret, Ttveedie v. Maunder, [1901] 
 1 Ch. 541, seems to suggest that whereas upon the exercise 
 by will of a general power of appointment, the property 
 subject thereto becomes subject to the provisions of the 
 testamentary law of the domicile of the testator, different 
 considerations may possibly arise where the power is 
 created by an English settlement. 
 
 The suggestion apparently is this: If a power is reserved 
 by a settlement to appoint property, the capacity to 
 entirely dispose of that property is not affected by a sub- 
 sequent change of domicile of the donee of the power of 
 appointment. 
 
 If the test to apply is the law of the settlement, this 
 would of course be so, but the limitation seems to require 
 rather stronger justification than the difference between 
 two forms of legal instruments. In the above case an 
 Englishwoman had power to appoint property by virtue 
 of an English settlement ; she subsequently married a
 
 EXERCISE OF POWERS OF APPOINTMENT BY WILL. 209 
 
 Frenchman domiciled in France, and died leaving a will. 
 Cozens-Hardy, J., decided that the limitations upon her 
 testamentary capacity imposed by the law of the domicile 
 had no application to the property comprised in the settle- 
 ment, over which her power to dispose remained absolute. 
 
 In the later case of In re Pryce (referred to above), the 
 Court of Appeal further commented on this case, and In 
 re Bald and Pouey v. Hordern. 
 
 Looking closely at the judgment of Cozens-Hardy, 
 M. R., it would seem that the true test depends upon the 
 nature of the limits of disposition allowed by the power 
 to appoint. 
 
 If the power is a special one, or if the terms of the 
 power do not allow the donee to make the appointed pro- 
 perty general assets for all purposes, then the limitations 
 (if any) on testamentary power of the appointor imposed 
 by the law of the domicile will not apply, and the capacity 
 to appoint will be governed solely by the law of the instru- 
 ment under which the power is created. 
 
 If this is the true test, it is immaterial whether the 
 power is created by a settlement or will, and the result as 
 to the effect of appointment will be the same in each case. 
 
 It may be confidently asserted that the law upon this 
 branch of our subject has not yet received its final treat- 
 ment at the hands of English judges. 
 
 There are a number of earlier decisions that appear 
 inconsistent with the principles of the judgments in later 
 cases, and which could not, therefore, be relied upon as 
 authoritative at the present time. The idea in this work 
 has been, as far as possible, to give an accurate statement 
 of the law as it would be enforced in the Courts of this 
 country at the present time, and matters merely of 
 historical interest have not been dealt with at length. 
 
 B. 14
 
 CHAPTER XIX. 
 
 DEATH DUTIES. 
 
 IT is now an almost universal rule that a State levies 
 some imposition upon the possessions of a citizen which 
 pass to other parties by reason of his death. 
 
 In this country heavy duties are payable by a deceased's 
 estate upon all property within the United Kingdom, and 
 where the deceased died domiciled therein duties are also 
 payable upon all moveable property of the deceased 
 wherever situate. 
 
 Domicile is therefore an important factor. Indcjn-n- 
 dently, however, of domicile, the property within the 
 jurisdiction of the English Courts is liable to English 
 estate duty where the requisite conditions exist, and in 
 many instances certain other duties besides. 
 
 The death duties which at present are in force in 
 English law are: 
 
 Estate Duty, which is a tax on property passing on 
 death according to its capital value. 
 
 Legacy Duty and Succession Duty: Duties payable by 
 those entitled to property on death, and varying in scale 
 according to the relationship between deceased and 
 successor. 
 
 Settlement Estate Duty: A special duty payable on any 
 settlement created by the will of the deceased, or on pro- 
 perty which, having been settled by some other disposition, 
 passes under that disposition on the death of the deceased 
 to some person not competent to dispose of it.
 
 DEATH DUTIES. 211 
 
 Estate Duty. 
 
 Mr. Bentwich says(a): 
 
 " English estate duty is due on all the property which 
 was subject to probate, legacy and succession duty, 
 and is levied, in addition to the two latter, in cases to which 
 they apply." 
 
 The duty depends on the situs of the property, and is 
 a tax on the property itself. 
 
 Domicile does not affect the liability of assets in this 
 country, although the fact of a testator being domiciled 
 here makes the duty applicable to all moveable property 
 of the deceased wherever situate both in this country and 
 elsewhere . 
 
 " A tax to the British Government can obviously not 
 be exacted in respect of property locally situate abroad 
 which passes on the death of a person abroad domiciled 
 abroad to foreign trustees for foreign beneficiaries. To 
 attract the duty, there must be some British element in 
 the case." (See Soward's Death Duties.) 
 
 Immoveable property situate abroad is not subject to 
 British death duties, even when owned by a British subject 
 domiciled and resident here. When situate here, such 
 property is liable to these duties, even when owned by a 
 foreigner who is neither domiciled nor resident here. 
 
 Yet, if immoveables abroad are to be sold, and a British 
 trust of the proceeds is created, it will then probably 
 become subject to such duties. (See In re Smith, Leach 
 v. Leach, [1898] 1 Ch. 89; Att.-Gen. v. Sudeley, [1897] 
 A. C. 1; In re Cigala's Settlement, 7 Ch. D. 351.) 
 
 Moveables, if situate here, are liable; if elsewhere, only 
 liable if they pass " to persons who become entitled by 
 
 (a) Domicile and Succession, p. 156. 
 
 14(2)
 
 212 ADMINISTRATION OF FOREIGN ESTATES. 
 
 virtue of the laws of this country." (Att.-Gen. v. 
 Wallace (1865), L. R. 1 Ch. 1.) That means, where the 
 deceased was domiciled here. 
 
 Moveable property at an embassy here is " locally 
 situated abroad," and is not chargeable, unless the owner 
 dies domiciled here. If not at an embassy, even though 
 owned by a foreign sovereign, ambassador or diplomatic 
 agent or member of suite, <fec., such moveable property 
 is chargeable with duty. 
 
 As to foreign moveables, i.e., moveable property of a 
 deceased person which are neither situate here in fact, nor 
 arc deemed by law to be so situate, duty is not leviable if 
 the deceased was domiciled abroad. (Thomson v. Adv.- 
 Gen. (1845), 12 Cl. & F. 1; and see Finance Act, 1894, 
 s. 2 (2).) 
 
 This sub-section is as follows: " Property passing on 
 the death of the deceased when situate out of the United 
 Kingdom shall be included only if, under the law in force 
 before the passing of this Act, legacy or succession duty 
 is payable in respect thereof, or would be so payable but 
 for the relationship of the person to whom it passes." 
 
 Legacy and succession duty are only payable on pro- 
 perty abroad if deceased is domiciled here, or the property 
 is made subject to English law by the terms of an English 
 settlement, trust or power of appointment. 
 
 Foreign 
 
 Estate duty is not leviable in respect of real property 
 and immoveable personal property situate out of the 
 United Kingdom, unless such immoveables are assets of 
 a partnership whose principal business establishment is 
 situate in this country. (Forbes v. Steven, L. R. 10 Eq. 
 178; Att.-Gen. v. Hubbuck, 13 Q. B. D. 275.)
 
 DEATH DUTIES. 213 
 
 Moveables. 
 
 Reference must be made to the important statute the 
 Revenue Act, 1889 (52 & 53 Viet. c. 42) by which it is 
 provided that shares in British registered companies on 
 colonial registers are to be considered as situate in the 
 United Kingdom. (Repealing sect. 7 (b), Companies 
 (Colonial Registers) Act, 1883 (46 & 47 Viet. c. 30).) 
 
 Estate duty is not leviable in respect of money which 
 deceased has a general power to charge on realty situate 
 out of the United Kingdom; nor on similar property, the 
 subject of a special power of appointment. 
 
 Estate duty is not leviable in respect of any interest or 
 any annuity not payable or recoverable within the United 
 Kingdom. 
 
 Legacy Duty. 
 
 Legacy duty is charged under 36 Geo. 3, c. 52 (1796), 
 and subsequent Acts. 
 
 If a deceased is domiciled in the United Kingdom, no 
 matter where he die, his personal property divisible 
 amongst his next of kin or under the trusts of his will is 
 liable to legacy duty wherever that property be situated, 
 for the situs of the property does not concern the ques- 
 tion (6). (Stokes v. Ducroz (1883).) 
 
 Should the deceased be domiciled elsewhere than in the 
 United Kingdom legacy duty will not be payable. 
 (Thomsons. Adv.-Gen., 13 Sim. 153.) 
 
 In that case Lord Chief Justice Tindal, in delivering 
 judgment, says: 
 
 " The question is this: A. B., a British subject born in 
 England, resided in a British colony, he made his will and 
 died domiciled there. At the time of his death he had 
 
 (b) In certain cases where net estate under 1,000^. payment of estate 
 duty alone is sufficient, and no other duties are chargeable.
 
 214 ADMINISTRATION OF FOREIGN ESTATES. 
 
 debts owing to him in England, which his executors 
 collected, and out of the funds collected paid legacies to 
 certain legatees in England. The question is, are these 
 legacies liable to the payment of legacy duty ? It is the 
 opinion of all the judges who have heard the case argued, 
 that the said legacies are not liable to the payment of 
 legacy duty." 
 
 The question of liability to legacy duty is therefore 
 largely one of fact. Was the deceased domiciled in tho 
 United Kingdom or not ? and for the purposes of legacj' 
 duty the domicile of the deceased is ascertained according 
 to English law, in precisely the same manner as it is for 
 all other purposes of administration and succession. For 
 estate duty and other death duty purposes the .domicile of 
 the deceased means in every case the domicile at date of 
 death. 
 
 In fact, a large number of the cases which are authorities 
 upon matters of domicile in succession are revenue cases, 
 in which the question of domicile has been litigated witli 
 reference to liability to duty. 
 
 The incidence of legacy duty depends upon a domicile 
 within the United Kingdom. 
 
 The duty extends to " everything of a personal nature 
 by which anyone benefits, either under a will or by the 
 death of a person intestate under the statute for the dis- 
 tribution of an intestate's effects/' 
 
 Succession Duty. 
 
 This is charged by the Succession Duty Act (16 & 17 
 Viet. c. 51), 19th May, 1853, which imposes this duty in 
 its present form. 
 
 The tax is limited to property in Great Britain and 
 Ireland. If the domicile of the deceased is foreign at the
 
 DEATH DUTIES. 215 
 
 date of his death, personal property here is not liable to 
 succession duty (Wallace v. Att.-Gen. and Jeves v. Shad- 
 well (1865), L. E. 1 Ch. 2), except, as under, in the 
 cases of English trusts. 
 
 Where a fund is subject to an English trust, and 
 becomes divisible on a death, the property is liable to 
 succession duty here. 
 
 Thus, in Ee Badart's Trust, L. E. 10 Eq. 288, the 
 testator, whose domicile was foreign, directed a sum of 
 money to be invested in the English funds, and the divi- 
 dends to be paid to a tenant for life, and thereafter the 
 capital and income to be divided among his nephews and 
 nieces. Held by Malins, V.-C., that on the death of the 
 tenant for life there was a succession within the meaning 
 of the Act, and that duty was payable, following the 
 decision of Stewart, V.-C., in Re Smith's Trusts, 12 
 W. E. 933. 
 
 These cases were confirmed in the House of Lords in 
 Att.-Gen. v. Campbell,. L. E. 5 E. & I. 524 (A. C.), 
 and Lyallv. Lyall, L. E. 15 Eq. 1. Since then the case 
 of In re Cigala s Trust, L. E. 7 Ch. 357, which is pro- 
 bably the best known authority, has been decided. 
 
 There an English lady, who had acquired an Italian 
 domicile by marriage, assigned certain property belong- 
 ing to her in France, consisting of French Rentes and 
 other securities, to trustees of an English settlement, 
 executed in England, upon trust after the death of her 
 husband and herself for the children of the marriage. 
 The husband survived, and died leaving the funds in the 
 hands of English trustees. 
 
 It was there held that the succession duty was payable 
 as the settlement was a British settlement, the trustees Were 
 British, the legal ownership of the property was in persons 
 subject to British jurisdiction, and the forum for deciding
 
 216 ADMINISTRATION OF FOREIGN ESTATES. 
 
 the claim was a British Court, as if the children wished to 
 obtain the trust fund, administration proceedings would 
 have had to be commenced here. 
 
 Similarly, funds the subject of an English power of 
 appointment are liable to duty, even though the appointor 
 is a foreigner with a foreign domicile. (In re Lovelace's 
 Settlement, 28 L. J. Ch. 489; In re Wallop's Trusts.} 
 
 Settlement Estate Duty. 
 
 This duty is payable whenever a settlement is created 
 by the deceased, even though the testator be a foreign 
 subject with a foreign domicile. The duty is payable 
 upon so much of the settled fund as is provided by English 
 assets. 
 
 Thus, the usual method of calculation is represented by 
 the following equation: 
 
 English estate fund on which settle - 
 
 X of settled fund = inent estate duty is 
 
 Total estate ,, 
 
 payable. 
 
 From which it will be seen that duty is payable upon 
 the proportion of the settled funds which the English 
 estate bears to the whole estate. 
 
 Presumably, therefore, if the deceased's will expressly 
 limits the settlement to foreign assets, no duty would be 
 payable here in respect of such settlement. 
 
 Income Tax and Super-Tax. 
 
 Although super-tax is not a death duty in the proper 
 sense of the term, in that it is payable during the lifetime 
 of a person, yet as an estate may be liable in respect of this 
 tax it is important to note the following. 
 
 When the income enjoyed by a person since deceased
 
 DEATH DUTIES. 217 
 
 was of such an amount as to render him liable in his life- 
 time to assessment to super-tax as imposed by the Finance 
 (1909-10) Act, 1910, and the deceased dies without the 
 current tax having been discharged, his estate will be liable 
 for the super-tax so unpaid. 
 
 It was at one time expressly contended that super-tax 
 was not capable of apportionment, and that if the deceased 
 died after the commencement of a financial year, the full 
 year's tax became due on his estate. 
 
 It is, however, expressly provided by sect. 6 of the 
 Finance Act, 1912, that the duty in such cases shall be 
 apportioned, and only the proportion of income due from 
 the commencement of the financial year to the date of 
 death shall be liable to be taken into account for the 
 purposes of calculation of the tax. 
 
 As the whole principle upon which super-tax is assessed 
 is similar to that under the Income Tax Acts, residence 
 and domicile are not material. 
 
 It will be remembered that income tax is only payable 
 by foreigners upon profits or incomes made or derived from 
 this country. 
 
 If, therefore, a foreigner permanently resident out of 
 the United Kingdom, and domiciled abroad, receives 
 dividends of over 5,OOOL in value per annum, such 
 foreigner will be liable to super-tax here, in spite of such 
 foreign residence and domicile.
 
 CHAPTER XX. 
 
 THE THEORY OF RENVOI. 
 
 REFERENCE has already been made to the doctrine of the 
 Renvoi, or throwing back from one Court to another. 
 The subject is by no means free from difficulty, and it 
 may assist if we endeavour to deal with the matter very 
 simply. 
 
 It will probably be most convenient to do this under 
 three headings: 
 
 (1) What is Renvoi ? 
 
 (2) Is Renvoi accepted by the Courts of this country ? 
 
 and 
 
 (3) Is it desirable that the Renvoi doctrine should be 
 
 accepted by the English Courts ? 
 
 Our first consideration will therefore be, what is Reiim! ? 
 The word Renvoi, and, indeed, the doctrine which the word 
 is used to denote, are of French origin. 
 
 In the year 1871 a case came before the French 
 Courts (a), in which a deceased person, who was a subject 
 of the Grand Duchy of Hesse, had died intestate in France 
 at Versailles, leaving moveable property in France. Liti- 
 gation ensued as to the persons entitled respectively by 
 German and French law. During the course of the case 
 the following point was established, viz., that the ln\\ 
 which was to be applied to the distribution of the move- 
 ables belonging to the deceased was the law of the 
 nationality. The full effect of such a decision does not 
 appear to have been at once appreciated. 
 
 Wherever the law of the country of which the dec 
 
 (a) See the full report in Mr. Sewell's " French Law affecting Britinh 
 Subject*," pp. 36 6.
 
 THE THEORY OF RENVOI. 219 
 
 was a subject admitted the law of the nationality as the 
 test of personal law, no difficulty arose . Eventually, how- 
 ever, a further case came before the French Courts, where 
 the deceased was a subject of a country (Bavaria) where 
 domicile was recognised as the test of personal law and 
 not the law of the nationality. 
 
 What effect was to be given to this ? Such was the 
 point at issue in the celebrated Forgo case (&), which, after 
 a chequered career, finally came on before the Cour de 
 Cassation on the 22nd of February, 1882. (See Dalloz, 
 E. P. 82, 1, 301; and also Clunet, 10, 1883, p. 64.) 
 
 The decision then given was to the following 
 effect (c) : 
 
 "Whereas it is proved in fact, by the judgment under 
 appeal, that Frangois Xavier Forgo, a natural child, born 
 Bavarian, died intestate at Pau, where he resided for 
 many years; that the French Government obtained a grant 
 to his estate, which was composed exclusively of moveable 
 property in France, and whereas the said Forgo, not 
 having been naturalised in France, not having lost his 
 nationality of origin, and not having obtained from the 
 French Government authorisation to fix his domicile in 
 France, his succession ought to be governed by Bavarian 
 law; but whereas in Bavarian law in the matter of the 
 ' statut personnel ' the law of the domicile or the habitual 
 residence of the deceased is applicable, and in the matter 
 of the ' statut reel ' the law of the situation of the property, 
 whether moveable or immoveable: that therefore in this 
 case, without having to inquire whether, according to 
 Bavarian law, intestate successions depend on the ' statut 
 personnel ' or on the ' statut reel,' French law was alone 
 
 (b) See Sewell, pp. 46 65, for a full report, and also the following- 
 pages for some comments of French jurists thereon. 
 
 (c) Sewell, p. 65.
 
 220 ADMINISTRATION OF FOREIGN ESTATES. 
 
 applicable: whence it follows that the judgment under 
 appeal was right in refusing to admit the claim made 
 against the French Government by the collateral relatives 
 of the natural mother of Forgo." 
 
 Professor Labbe's views on this case are well known. 
 (See "Journal du Droit International Prive," 1885, and 
 the passages referred to by Far well, J., in Re Johnson* 
 infra.} 
 
 Many distinguished jurists, both in France and other 
 countries, have since followed Professor Labbe's lead, and 
 still denounce the principles underlying the above decision. 
 
 From these two decisions the whole of the Renvoi con- 
 troversy may be said to derive its origin . 
 
 Secondly. Is the Renvoi accepted by the Courts of this 
 country ? In this country opinion is sharply divided both 
 as to the wisdom of the doctrine theoretically, and as to 
 whether the English Courts can be said to have in any way 
 countenanced the theory, by judgments given in decided 
 cases. 
 
 Before discussing these further it will be convenient to 
 shortly review the contributions to literature upon this 
 subject by English text-book writers. 
 
 The principal of these are as follows: 
 
 (a) Professor Dicey, see Conflict of Laws, 2nd ed., 
 pp. 715 723. Professor Dicey seems to have consistently 
 been an advocate of the system of following the whole of 
 the law of a foreign country, when reference was made 
 thereto, and there is no trace in his writings of any support 
 to the theory that such reference should be limited to the 
 internal or municipal law. 
 
 From such an attitude, it might have been predicted 
 that this learned jurist would probably incline in favour of 
 the Renvoi theory. Although the subject is not dealt with 
 in the first edition of his work on the Conflict of Laws, a
 
 THE THEORY OF RENVOI. 221 
 
 definite stand seems to have been taken in favour in the 
 second edition at the pages indicated. 
 
 Professor Dicey deals with the Renvoi doctrine when 
 discussing the meaning of the law of a country, and the 
 opening sentence of his notes on this subject is as 
 follows : 
 
 " Meaning of the Law of. a Country and the Doctrine of 
 the Renvoi. 
 
 " My aim in this note is first to insist in connection with 
 the meaning given by the English Courts to the term ' law 
 of a country,' that they do virtually accept the doctrine of 
 the Renvoi: and next to show the way in which this 
 doctrine is generally applied by an English Court to a 
 given case." 
 
 "With the inquiry, whether the English Courts act 
 wisely or unwisely, logically or illogically, in accepting 
 the doctrine of the Renvoi, I have in this note no concern 
 whatever." 
 
 The subsequent pages referred to, bear out the views 
 expressed in the passage quoted. 
 
 (b) Professor Westlake, Private International Law, 
 5th ed., Chapter II., pp. 31 42. Thus, he says (at 
 p. 31):- 
 
 " On one view, which is called in French 'Renvoi,' and 
 in German ' ruckverweisung ,' the rules of private inter- 
 national law are understood as referring a judge to the 
 whole law of a given country, and not merely to its 
 internal laws, so that in the case there stated the principle 
 of domicile would be understood as referring the English 
 or Danish judge who might be seised of the case to the 
 whole law of Italy: this reference being made, the prin- 
 ciple of nationality included in the law of Italy would 
 refer the same judge back to the whole law of his own
 
 222 ADMINISTRATION OF FOREIGN ESTATES. 
 
 country; that law would send him again to Italy, and so 
 on for ever. No result is arrived at: there is a circulus 
 inextricdbilis. It is needless to say that some means must 
 in practice be found, and are found even by the partisans 
 of the Renvoi, to stop the series of references back. But 
 the opponents of the Renvoi treat the theoretical possibility 
 of the circulus inzxtricabilis as proof that the rules of 
 private international law never refer a judge to the whole 
 l;iw of another country, but only to its internal laws." 
 
 He then proceeds to discuss the theoretical objections 
 advanced against the Renvoi, and also the decision in Re 
 Johnson. 
 
 After referring to the fact, as established by Dr. Pawley 
 Bate, that at present on the Continent of Europe tho 
 Courts of law seem to adopt the Renvoi oftener than to 
 reject it, he concludes his observations thus (pp. 41, 42): 
 
 " Thus, the Renvoi is adopted by the English cases when 
 the international domicile fails as a ground of decision, 
 either because (1) nationality and not domicile is adopted 
 as the criterion in the foreign country in question (Baden, 
 In re Johnson), or (2) the international domicile has not 
 been accompanied by a legal sanction necessary in that 
 country (France, In re Bowes). 
 
 " I conclude with the opinion, as founded in reason, that 
 a rule referring to a foreign law should be understood as 
 referring to the whole of that law, necessarily including 
 the limits which it sets to its own application, without a 
 regard to which, it would not be really that law which was 
 applied. It is also the only opinion accepted in the 
 English judgments, and is at least strongly supported on 
 the Continent." 
 
 With reference to the second instance of the acceptance 
 of the Renvoi in England (2), it may be pointed out, tluit 
 supposing, in Re Bowes and similar cases, the deceased
 
 THE THEORY OF RENVOI. 223 
 
 had in fact obtained an authorisation from the French 
 Government to fix his domicile there, the law applied in 
 both the English and French Courts would probably have 
 been French municipal law. 
 
 The Courts of the domicile would in such an event make 
 no reference to any other system of law, and there would 
 therefore be no question of Renvoi to consider. 
 
 (c) Dr. Pawley Bate, see Notes on the Renvoi and 
 numerous contributions to the discussions of the Inter- 
 national Law Association (d} . No one acquainted with 
 the Notes on the Renvoi by this writer could possibly 
 underestimate their value. Dr. Pawley Bate has contri- 
 buted extremely useful matter for a study of comparative 
 law upon this subject. 
 
 His attitude to the Renvoi reminds a reader of Austin's 
 Jurisprudence. It is an extremely learned criticism of 
 the shortcomings, from a logical point of view, of many 
 of the theories connected with the Renvoi, and an elaborate 
 statement of the essentials which should exist before 
 Renvoi could be worthy of acceptance. 
 
 The writer is the head of the school who deny the 
 reference to the whole of the foreign law, and the cases 
 usually relied upon in support of this proposition are dealt 
 with at length and in some detail. Moreover, the writer 
 appears to contend that unless the Renvoi is to be intro- 
 duced wholesale into all branches of English private inter- 
 national law, its admission into any one branch should be 
 strenuously opposed. The writer apparently does not 
 hare the view that questions of succession and adminis- 
 tration can properly be treated on a distinct footing. 
 
 Attention is particularly called to the report to the Paris 
 Conference already referred to, as from this it would 
 
 (d) See particularly a report on "The Renvoi and English Law" 
 presented to the Conference in Paris on 29th May, 1912.
 
 224 ADMINISTRATION OF FOREIGN ESTATES. 
 
 appear that the writer agrees with the results obtained 
 by the acceptance of the Renvoi doctrine, but would prefer 
 that such results were attained by some other process of 
 reasoning. 
 
 In justice to the writer's opinions it may be admitted 
 that the supporters of the Renvoi doctrine do not claim 1 
 that such doctrine is the ideal decision in the matters to 
 which it is applied. It is admittedly in the nature of a 
 compromise, and must necessarily, therefore, be distaste- 
 ful to the strict logician. 
 
 However, it is contended that in default of a practical 
 agreement by the comity of nations on the points in 
 question, the Renvoi doctrine does in actual cases provide 
 a solution, which is usually satisfactory to the parties 
 concerned, and which, in the opinion of many English 
 jurists, is preferable to any decision which could be 
 obtained without reference to that doctrine. 
 
 (d) Mr. Bentwich, see Domicile and Succession, 
 Chapter VIII., pp. 164188. The chapter referred to 
 is a very valuable one, both for a clear statement of the 
 English practice, and also for many important decisions 
 of other countries, which are thus rendered accessible to 
 English readers. 
 
 Mr. Bentwich perhaps puts the rules relating to Renvoi 
 in this chapter a little further than any decided English 
 case yet warrants, but in our view, such chapter is none 
 the less valuable on that account. 
 
 Mr. Bentwich is an entire advocate of following the 
 whole of the foreign law, and he defines Renvoi in general 
 terms as follows: 
 
 " The doctrine of Renvoi, therefore, may be taken to 
 include all cases where the Court administering a succes- 
 sion accepts a reference of the law of the country (which, 
 upon its own principles of private international law, it
 
 THE THEORY OF RENVOI. 225 
 
 would apply to the question before it) to the internal pro- 
 visions of any other law, whether its own or that of another 
 country." 
 
 The English cases upon the subject are also well treated 
 and' discussed. The more valuable part of the chapter, in 
 our opinion, is, however, that in which the theoretical 
 objections to the Renvoi doctrine are successively con- 
 sidered and, in our view, disposed of. Thus, the " circulus 
 inextricdbilis " of the theorists receives a very practical 
 comment. (See pp. 183 and 184.) 
 
 After consideration of the instances of the adoption of 
 the Renvoi by other countries, and of the tendency to the 
 same result of modern legislation (German Civil Code), 
 as indicated in the chapter under discussion, it is in our 
 opinion very difficult to contend that the Renvoi doctrine 
 is losing support. On the contrary, all the indications 
 available seem to us to point to its general acceptance in 
 the Courts of the countries principally concerned with 
 questions on the conflict of laws. 
 
 (e) Mr. Edwin H. Abbot, junior, see "Law Quarterly 
 Keview," Vol. 24, 1909, p. 133 et seq., Article entitled, 
 " Is the Renvoi part of the Common Law ? " In this 
 interesting article the writer shows an undoubted hostility 
 to the Renvoi doctrine, and contends that such doctrine 
 has no place in English law. 
 
 Several of the author's criticisms are certainly well 
 merited, particularly those dealing with In re Johnson, 
 Roberts V. Att.-Gen. ; although, as has also been pointed 
 out by Mr. Bentwich (p. 171), such criticism is consider- 
 ably weakened by the admission, which all supporters of 
 the Renvoi doctrine are willing to make, viz., that parts 
 of Farwell's, J., judgment in In re Johnson consist of 
 "obiter dicta," and were unnecessary for the decision in 
 that case. 
 
 B. 15
 
 226 ADMINISTRATION OF FOREIGN ESTATES. 
 
 In our view, Mr. Abbot's deductions from Bremer v. 
 Freeman are incapable of support, and in our opinion 
 there is nothing in the judgment of the Privy Council 
 in that case which is inconsistent with the principles con- 
 tained in the Renvoi doctrine. 
 
 (f) Mr. W. Jethro Brown, "Law Quarterly Review," 
 Vol. 25, 1908, p. 145 et seq., an Article entitled, "In re 
 Johnson." This learned author is entirely in favour of 
 the view that a reference to a foreign law includes the 
 whole of that law, and in fact his definition of Renvoi 
 includes very little beside this rule. 
 
 He criticises Mr. Abbot's views of Bremer v. Freeman, 
 and his general conclusion is entirely in agreement with 
 our own, viz., that the judges of this country should in all 
 cases apply whatever law the Courts of the country to 
 which reference is made would themselves have applied. 
 
 There is a note in the " Law Quarterly Review," 
 Vol. 14, 1898, pp. 231, 232, giving a useful description 
 of the difficulties connected with the Renvoi doctrine. 
 
 There is also a very valuable contribution to the subject 
 in the same journal, Vol. 19, 1903, pp. 243 247, in which 
 Professor Dicey criticises both the ratio dccidcndi and 
 the decision itself in the Johnson case. At the conclusion 
 of Professor Dicey's note there is a learned commentary, 
 presumably by the editor (Sir Frederick Pollock). The 
 latter supports the decision, and does so expressly on 
 Renvoi grounds. 
 
 There are other articles in the " Law Quarterly Review " 
 bearing upon certain aspects of this subject, but which do 
 not call for individual comment. 
 
 As to the relation of Re Johnson and Re Bowes to the 
 question of what is domicile, see Laws of England, Vol. 6, 
 p. 221, sect. 334. 
 
 Even with such sources of information availabl . it 
 appears, however, that confusion still exists in the minds
 
 THE THEORY OF RENVOI. 227 
 
 of many as to several important points connected with the 
 RenVoi doctrine. In the midst of whatever confusion there 
 may be, there are, however, certain points which, it is 
 submitted, are clearly established in English law. Of 
 these the most important is the rule of following the whole 
 of a foreign law and not merely adopting the internal rules 
 or territorial and municipal law. 
 
 After the emphatic statements to this effect made by 
 several different judges in the earlier cases, which seem to 
 have been consistently followed in practice, it seems to us 
 quite impossible to controvert this proposition. 
 
 There are those who would have us believe that each of 
 the cases usually referred to in support of this statement 
 -can be distinguished and explained away upon some minor 
 point of detail. 
 
 We are, however, more ready to peruse the original 
 reports of these cases, and to draw what seems to us to be 
 the irresistible inference from that perusal, namely, that 
 reference to foreign law means a reference to any law 
 that the foreign law would hold applicable. (See Laws 
 of England, Vol. 6, p. 221.) Once this point is estab- 
 lished, the acceptance or not of the Renvoi becomes a 
 question of terms, and we must define the expressions 
 .used. 
 
 The word " Renvoi " itself is used to denote all or any 
 of the following, and is thus extremely ambiguous: 
 
 (1) The actual reference made by the Court seised of 
 
 a matter to a foreign system of law. 
 
 (2) The reference back made by the foreign law, either 
 
 to the original system (ruckverweisung} , or to 
 some other (weiterverweisung) . 
 
 (3) The branch of law relating to the propriety of such 
 
 references, and the acceptance or refusal of them . 
 15(2)
 
 228 ADMINISTRATION OF FOREIGN ESTATES. 
 
 (4) The special doctrine that when the laws of one 
 
 country refer the matter in dispute to the law of 
 the domicile, and the law of the country of the 
 domicile refers such a matter to the law of the 
 nationality, the English Courts would apply the 
 latter law, usually the law of the domicile of 
 origin . 
 
 (5) The general statement that the Courts of this 
 
 country will, if necessary, adopt the view of the 
 matter taken by the foreign Court, and decide 
 accordingly . 
 
 It will readily be seen that the question of the attitude 
 of the English Courts to the Renvoi depends very largely 
 upon which of the above significations is contemplated by 
 those who ask the question. 
 
 Authority in the form of decided English cases upon the 
 matter is very slight, and the competing theories are so 
 diverse, that some assistance can almost always be obtained 
 from the few cases there are in support of any particular 
 point of view. 
 
 Practically speaking, the only English authorities which 
 in any way relate to the subject, in so far as administration 
 and succession are concerned, arc the following: 
 
 Balfourv. Scott ; De Bowneval v. De Bonneval; Collier 
 v. Rivaz ; Frere v. Frere ; Crookendenv. Fuller ; Lanen- 
 ville v. Anderson; Bremer v. Freeman; Hamilton v. 
 Dallas ; In the goods of Lacroix ; Re Trufort ; Re Broum 
 Sequard; In re Martin, Loustalan v. Loustalan ; Re 
 Johnson, Roberts v. Att.-Gen. ; and in Re Bowes, Bates 
 v. Wengel (each of which has boon previously referred to 
 in the text). (See Table of Cases.) Of these, all except 
 Re Trufort, Re Broum Sequard, In re Martin, Re John- 
 ton and Re Botres are anterior in date to the French case 
 originating the Renvoi dispute, and therefore, although
 
 THE THEORY OF RENVOI. 229 
 
 somewhat similar points arose, such cases cannot in strict- 
 ness be referred to on the matter. 
 
 Of the remaining cases, Re Trufort related to the suc- 
 cession' to English moveables of a deceased subject who 
 had died domiciled in France. The English Court 
 (Stirling, J.) followed the decision of the Court of the 
 domicile, France, which would have applied the law of 
 the nationality, namely, Swiss law, and therefore the 
 English Court accepted the Renvoi made by the law of 
 the domicile to the law of the nationality, and applied the 
 latter law. 
 
 As the Renvoi was in this case a reference to a system 
 of law other than the lex fori, the case is an instance of 
 " weiterverweisung " and not " ruckverweisung ." 
 
 The only possible exception to this case as a decision 
 bearing upon Renvoi would appear to be, that it was a case 
 of the ordinary rule of following the decision of a com- 
 petent foreign Court, and therefore the English judge 
 had very little option in the matter. 
 
 Keference, however, to the judgment of Stirling, J., 
 shows that in the learned judge's view the matter could 
 be considered on far broader lines than this. 
 
 In the goods of Brown Sequard related to the form of 
 a will (see Chapter VII., supra), and it was there held 
 that where a will was made in accordance with a law other 
 than the law of the domicile, but which nevertheless would 
 have been treated as valid by the Courts of the domicile, 
 such will was valid here. 
 
 In the case of In re Martin (already referred to) there 
 is an important dictum of Sir F. Jeune ([1900] P. 216) 
 as follows: 
 
 " Supposing it were possible to say that the domicile of 
 the husband, although French according to English law, 
 was English according to French law, then I think some
 
 230 ADMINISTRATION OF FOREIGN ESTATES. 
 
 very difficult questions would arise; and I am very far 
 indeed from saying that I have arrived at a clear view of 
 those questions. I have considered the evidence given, 
 and I confess it is extremely likely (I go no further) that, 
 in that case, we should again have to apply English law, 
 though I am not insensible to the difficulty Mr. Costelloe 
 (counsel for the plaintiff) has pointed out, as to what he 
 termed an ' infinite series.' ' 
 
 This dictum is very valuable when we have to comment 
 on Re Bowes. 
 
 In re Johnson and Re Bowes have already been 
 partially considered on a previous page. 
 
 In re Johnson (which has been discussed at length by 
 every writer on this subject) is treated by many as the 
 first case in which the doctrine of Renvoi was first actually 
 before an English Court. Others consider the case fully 
 bears out the proposition already stated, that where the 
 law of the country to which English law refers a matter, 
 does not recognise the principle of domicile at all, the 
 English Courts will apply the law of the domicile of 
 origin. (See Foote, p. 270, where Renvoi is never men- 
 tioned in discussing this case.) 
 
 It is worthy of note that the French case of 1905, in 
 which the Renvoi doctrine was repudiated (referred to by 
 Farwell, J., in Re Johnson}, has since been reversed. 
 (See Bentwich, at pp. 176, 177, and cases there cited; 
 although Westlake still refers to the 1905 decision, see 
 p. 38.) 
 
 In In re Bowes the case was different, as it could not 
 be said that French law did not recognise domicile. 
 although in the circumstances sueh recognition was very 
 dilli i-cnt to the English view. However, Swinfen Eady, 
 J., held that the case fell precisely within the "ratio 
 decidendi" of Re Johnson, and decreed accordingly.
 
 THE THEORY OF RENVOI. 231 
 
 The case is not very satisfactory, and is only reported 
 in rather a meagre way in the " Times Law Reports." It 
 appears to have been a case in which all parties before the 
 Court were anxious for English rules of construction to 
 apply, and amounted practically to a consent judgment. 
 
 The same result would have been arrived at by a direct 
 application of the Renvoi doctrine . The lex fori referred 
 the matter to French law as the law of the domicile; by 
 French law, however, as the deceased had not acquired a 
 domicile in France in the eyes of the French law, the law 
 which would be applied in France to the estate would be 
 English law, the law of the nationality; the English Court 
 therefore accepts the reference from the French Courts to 
 its own system, and applies English law. 
 
 This is exactly in accordance with the dictum of Sir 
 Francis Jeune, referred to above. Some authorities en- 
 deavour to explain away these decisions by praying in aid 
 the purely English doctrine of the domicile of origin. 
 These writers put the case thus: Where an English Court 
 is seised of a question of administration or of succession, 
 which according to English law, as the lex fori, is governed 
 by the law of the domicile, if the country where the 
 deceased was domiciled in the English sense does not 
 recognise domicile, then the English Courts will treat the 
 deceased as having failed to acquire a domicile of choice 
 in that country, and if the deceased was born within the 
 British Empire will determine the matter by reference 
 to the domicile of origin. 
 
 This rule they state is a judge-made rule of English 
 law, and although bearing a resemblance to the Renvoi 
 principles, is in fact independent of that doctrine . 
 
 In our view the above statement of the law does not 
 seem satisfactory for these reasons: 
 
 (a) Whether a person is domiciled in a given country
 
 232 ADMINISTRATION OF FOREIGN ESTATES. 
 
 or not depends, it is submitted, solely on English law, and 
 has nothing to do with whether the country in question 
 gives effect to or recognises the principle of domicile as 
 understood in this country. 
 
 (b) Wherever a person is in the view of English law 
 domiciled in a given country, reference is in fact made to 
 the law of that country to determine the law applicable. 
 If on investigation it is shown that on the matter arising 
 in the Courts of that country, a rule of law of some other 
 system would be applied, then it appears to us undoubted 
 law that such rule would be adopted in the English 
 Courts. It seems to us therefore, that if, as a matter of 
 fact, the law of the domicile of origin is ultimately applied 
 by the Courts of this country (and it is not admitted that 
 such is necessarily the case), then it is precisely because 
 that law would have been applied in the foreign* Court of 
 the domicile. To put this more exactly, if the country 
 of the domicile referred the matter to the law of the 
 nationality; that is to say, if the Courts of the country of 
 the domicile would have in fact applied the law of the 
 country of political allegiance, i.e., the national law, the 
 domicile of origin would in all probability be the law 
 answering this description, inasmuch as no British subject 
 has in fact a national law properly so called. 
 
 (c) If the English Court came to the conclusion that 
 the domicile in the foreign country had not been effectually 
 acquired as a domicile of choice, then unless the previous 
 domicile of choice had been definitely abandoned, such 
 prior domicile of choice would attach in preference to the 
 domicile of origin. 
 
 (d) The rule seems incomplete supposing the deceased 
 were not a British subject, what would be the result ? 
 And on what logical grounds can it be said that there 
 should be a difference between the rule to be applied
 
 THE THEORY OF RENVO1. 
 
 accordingly as to whether the deceased was of British or 
 foreign nationality ? 
 
 (e) The rule would appear to possess no advantage 
 whereas it will be shown, that, in our opinion, the Renvoi 
 doctrine possesses the outstanding advantage that, by 
 reference thereto, conflicts can be decided on a basis satis- 
 factory to all parties, and which in practice work without 
 any apparent hardship. 
 
 Thirdly. Is it desirable that the Renvoi doctrine should 
 be accepted by the English Courts ? 
 
 Some writers suggest that where the law of the country 
 where the deceased dies domiciled according to English 
 law does not recognise domicile at all, the English Courts 
 should accept such a position, and pay no further reference 
 to the law of that country on the ground, as the French 
 writers put it, qu'elle se desinteresse. 
 
 They argue, however, that where domicile is recognised, 
 but in some different manner to the English system, a 
 distinction must be drawn, and in such a case the reference 
 to the foreign law must be persisted in and the appropriate 
 law applied. 
 
 It seems to us that if any countenance is given to such 
 suggestions as this, the English rule that the law of the 
 domicile governs will be seriously encroached upon. 
 
 Would it not be simpler in every case to decide the 
 question of domicile purely by English law, and having 
 done so, and the reference to the law of the domicile having 
 been made, to apply to the estate whatever rule of law 
 would have been applied by the Courts of the country 
 referred to ? 
 
 Why should the Courts of this country be concerned 
 with the view taken of domicile by any foreign legal 
 system ?
 
 234 ADMINISTRATION OF FOREIGN ESTATES. 
 
 It is contended that the rule suggested above would not 
 only be a simple solution, which could be universally 
 applied to such cases, but that it is in fact the view taken 
 by the English Courts at the present day. The decision 
 in Re Bowes is exactly in point, so also is the judgment 
 in Bremer v. Freeman. It does not appear to us to be 
 possible that on distributing the moveables here belonging 
 to a deceased person who died domiciled in France in the 
 English sense, but not in the French sense, the English 
 Courts would apply the French internal law, when the 
 Courts of that country under similar circumstances would 
 have applied the English law. Could any result be less 
 conducive to the practical settlement of such matters ? 
 
 In our opinion the difficulties that must inevitably arise, 
 should such a rule be adopted, need only be demonstrated, 
 and the opposite point of view would certainly be taken . 
 
 If our view of what would occur in such a case as is 
 referred to above is correct, and the result arrived at in 
 Re Boives is followed, the same law would be applied* 
 whether the matter arose in the French or English Courts. 
 Such a solution seems eminently desirable, and to be in 
 perfect accord with the aims of international jurists. 
 
 For the reasons given above, we are therefore of opinion 
 that the Renvoi doctrine should be accepted by the Courts 
 of this country until express provision is made by legisla- 
 tion or by the comity of nations for the more satisfactory 
 solution of similar problems.
 
 CHAPTER XXI. 
 
 THE VALIDITY OF THE ENGLISH PRINCIPLES OF PKIV.YTE 
 INTERNATIONAL LAW. 
 
 WHEN the personal theory of law was adopted, two oppos- 
 ing theories were derived from it. On the one hand, there 
 was the conception of a national law denoting a personal 
 tie between the subject of a State and the Sovereign 
 power; and on the other hand, there was the notion of 
 domicile or voluntarily chosen "home." 
 
 These great conceptions were at first not clearly 
 separated, but after a time the cleavage became complete, 
 and rival systems of law grew up with the different views 
 of the personal theory of law as their basis. With such a 
 tendency appearing so early in the history of the law, it 
 is not surprising that the rival systems occasioned frequent 
 conflict. 
 
 For a great length of time the frequent clashing of the 
 rules of law adopted in the countries professing the rival 
 theories has caused jurists and statesmen alike to exert 
 all their efforts in favour of introducing uniformity and 
 concord. 
 
 Such a task, however, is a formidable one, if indeed it 
 is possible at all. Such countries as the Continental 
 States, the South American Republics and the greater 
 number of Continental countries have adopted the national 
 law as the basis of their codes, whilst Great Britain and 
 the United States have consistently retained domicile a& 
 their important conception. 
 
 As a justification of the continuing difference in treat- 
 ment of the same branch of law at the hands of these
 
 1236 ADMINISTRATION OF FOREIGN ESTATES. 
 
 different countries' Courts, it will perhaps be useful to 
 consider the position from the English point of view. 
 
 There are many advantages possessed by the system of 
 the domicile. The law of domicile as understood and 
 accepted in England is, in substance, an elaborate attempt 
 on the part of the judicial authorities to determine the 
 intentions of a man with regard to the centre of his 
 interests, his permanent residence and his habitual sphere 
 of influence. 
 
 It is the law governing these factors which regulates his 
 capacity to perform legal acts, and which generally 
 governs all his dealings with his moveable property and 
 belongings. 
 
 Although, in some cases, the determination of the 
 domicile is an expensive process, and unsatisfactory owing 
 to the indefinite information at the disposal of the Court, 
 yet in the great majority of cases domicile by English 
 rules is fairly easy of ascertainment. 
 
 At the same time, the domicile is flexible and can vary 
 almost at the will of its owner. It is in accordance with 
 the freedom of English public institutions that a man 
 should be allowed to readily change his domicile, and by 
 the necessary residence to become domiciled in tho n> \\ 
 country of his choice. 
 
 Whilst the system of domicile possesses advantages of 
 this character, the system of a national law can be strongly 
 opposed for several reasons. It cannot be a universal 
 criterion. 
 
 Tin-re are people whose nationality is unknown ami 
 unknowable, and to such as these the countries applying 
 tin- theory of a national law habitually apply the test of 
 the domicile. Nationality cannot be changed with the 
 -HIM ease, but only by a cumbcrsonn- and < xponsive 
 process of diplomatic interference and recognition.
 
 VALIDITY OF ENGLISH PRINCIPLES. 237 
 
 Nationality is, further, an extremely unsatisfactory 
 test. In many eases the party concerned has never been 
 within the borders of his " patria," and to say that in 
 spite of, it may be, a lifelong residence in some country, 
 the personal capacity and actions of a person are to be 
 governed by the laws of a country he has never had any- 
 thing to do with seems an outrage upon the probable and, 
 maybe, the express intentions of the individual. Further, 
 nationality cannot be used as the test in such countries as 
 England, Scotland, Ireland, Wales, U.S.A., Canada and 
 the colonies where, in spite of the prevalence of different 
 legal systems, there is no difference in national law. A 
 British subject has no national law in the Continental 
 sense, and in the nature of things cannot have. 
 
 The above are, in the writer's opinion, cogent reasons 
 for the rejection of proposals which are occasionally put 
 forward for the breaking down of the exclusive .barrier of 
 domicile, and for assimilating Continental ideas to the 
 j urisprudence of this country . 
 
 Suggestions of the nature referred to have from time 
 to time been made to the conferences at the Hague, but 
 those who study the doings of these assemblies will find 
 very little support given to them by any country in which 
 domicile is the recognised criterion. 
 
 It may be argued, therefore, that England is right in 
 continuing the principle it has always adopted, and in not 
 yielding to the demands of Continental jurists on this 
 point. At the same time, it cannot seriously be contended 
 that modifications of the English rules are not necessary. 
 
 In the next chapter considerations are advanced for 
 modifications along certain lines, which, in the writer's 
 opinion, would serve to make the general private inter- 
 national law of the civilised world a more logical and more 
 scientific whole.
 
 CHAPTER XXII. 
 
 SUGGESTED AMENDMENTS IN THE PRESENT ENGLISH 
 PRACTICE. 
 
 IT will, we think, be readily conceded that the object of 
 j urists and statesmen in all countries in matters of private 
 international law dealing with succession to estates of 
 deceased persons has been to secure, as far as possible, 
 practical uniformity of treatment of any particular estate, 
 no matter what Courts the case may come before for 
 decision . 
 
 It has long been felt on all sides that for a testator's will 
 to have one construction in England, a diametrically 
 opposite construction in France, and yet a third in 
 Germany, is an anomaly which should be rectified at the 
 earliest possible moment. 
 
 If such a desire for uniformity of treatment by the 
 different Courts still exists, and in our view, there seems 
 greater reason to-day for such a desire than ever before, 
 it would seem to follow that the English Courts should 
 desire to give reciprocal treatment to foreigners and their 
 estates in this country, in the same way as the foreign 
 Courts recognise the British subject and estates in the 
 foreign country. 
 
 If this be a correct view, it would follow that any 
 instance in which the English Courts set themselves 
 against granting reciprocal treatment to the estate of a 
 foreigner, would require strong justification before being 
 allowed to continue unaltered. 
 
 What, however, is in fact the position in English law 
 at the present time ?
 
 SUGGESTED AMENDMENTS IN PRESENT PRACTICE. 239 
 
 Taking first the rule of locus regit actum, so much 
 adopted by Continental nations, we have seen that in the 
 United Kingdom the rule was completely unknown, so 
 far as wills were concerned, until the passing of Lord 
 Kingsdown's Act in 1861. By that Act the principle is 
 introduced into English testamentary law subject to two 
 important limitations: 
 
 (a) It is confined to British subjects. 
 
 (b) It is further restricted to wills of personal estate. 
 Whilst, therefore, an English subject abroad can make 
 
 a valid will by complying, inter alia, with the laws of the 
 country where the will is made, as to which he can readily 
 obtain the requisite advice and assistance by consulting 
 any legal practitioner of that country, the position of a 
 foreigner residing here is very different. In order for 
 him to make a valid will of moveables, inquiry must first 
 be made as to his domicile in the English acceptance of 
 the word, and when that has been ascertained the forms 
 prescribed by that law must be followed. Circumstances 
 can easily be imagined, under which it would be extremely 
 difficult, if not impossible, for a foreigner to obtain legal 
 assistance on such a matter, and at all events he would 
 probably only be able to do so at great expense to himself. 
 And yet if the will does not comply with the law of the 
 domicile, it will not be considered as valid in this country, 
 and unless other testamentary dispositions existed of a 
 valid character, the English estate would be distributed 
 under the rules applicable to an absolute intestacy. 
 
 But it might well be, in such a case, that the will so 
 made would be valid in the foreigner's own country. 
 Suppose a Frenchman makes a will whilst domiciled in 
 England in some form other than that allowed by English 
 law, clearly the will would be invalid here. However, 
 ty French law, the rule of locus regit actum applies
 
 240 ADMINISTRATION OF 'FOREIGN ESTATES. 
 
 throughout the testamentary law, and therefore the will of 
 the Frenchman made in accordance with the laws of the 
 place where made would be valid in France, although very 
 probably it would be invalid here. 
 
 Moreover, in many Continental countries (e.g., France) 
 a member of those States can make a will wherever he 
 may in fact be stationed by complying with his own 
 national law. In such a case, again, had the domicile, in 
 the eyes of the English Courts, been anything other than 
 the country of which he was a citizen, such will would be 
 invalid here. 
 
 From such examples, which are merely given as illustra- 
 tions, it is apparent that, in one respect at all events, the 
 English rules are not reciprocal, and could, in our view, 
 be amended with advantage. The suggestion we have to 
 make on this heading would be, that Lord Kingsdown's 
 Act should be extended to all persons, foreigners and 
 British subjects alike. 
 
 Discussing this matter Mr. Bentwich says at p. 119 of 
 his work, to which we already made reference:" It may 
 be said that the differentiation made by Lord Kingsdown's 
 Act between British subjects and others is fundamentally 
 false to the principle of English international jurispru- 
 dence, which pays close attention to domicile and not to 
 political nationality." 
 
 Mr. Bentwich appears also to be a strong advocate of 
 the extension of Lord Kingsdown's Act on the lines 
 suggested above; and he points out (p. 122) that Scotch 
 law lias regularly accepted tin- rule of locus rcgit actum, 
 and only the refusal of this country prevents a harmonious 
 concord of nations on this subject. Another branch of the 
 subject which might with advantage be simplified is that 
 dealing with the exercise by will of powers of appoint- 
 ment. Some rule could probably be devised whereby
 
 SUGGESTED AMENDMENTS ,fN 'PRESENT PRACTICE. 241 
 
 many of the technical results arising from a non-com- 
 pliance with the forms specified in the instrument creating 
 the power could be avoided. 
 
 Further, we think, either that statutory recognition 
 should be given to the Renvoi doctrine, or some effort made 
 to secure a working arrangement by mutual agreement 
 and the comity of States. The reasons which prompt us 
 to this have already been considered. 
 
 Moreover, we think this country might with advantage 
 to its legal system take a more prominent part in the 
 official conferences of the nations upon matters of inter- 
 national law. It is only too frequently that the records 
 of these conferences disclose the fact that England stood 
 on one side and took no part in the discussion or voting. 
 
 In spite, however, of all that can possibly be said against 
 certain minor points of English private international law, 
 we think that on the important points and in the main 
 that branch of the English legal system is one of which 
 the country may well be proud, and to which no jurist can 
 give too great attention . It is hoped that a perusal of the 
 foregoing chapters may induce many to make further 
 researches in this important subject. 
 
 B. 16
 
 APPENDIX. 
 
 DOMICILE HISTOKICAL NOTE. 
 
 The evolution of the conception of domicile in English 
 law has been a very gradual process. We can, however, trace 
 with considerable accuracy the historical progress of the 
 doctrine from the latter half of the 18th century onwards. 
 
 This is due in no small measure to the excellent series of 
 private reports which have been published, dealing with the 
 early cases in the Ecclesiastical and Admiralty Courts, the 
 Prerogative Court of Canterbury and the House of Lords. 
 
 In these early reports it is customary to set out the argu- 
 ments adduced by each side with extreme detail, and, 
 although this practice makes the decision appear a very 
 ponderous one, it has the merit of aiding the student of the 
 history of our law. 
 
 We have been concerned in this book with domicile in its 
 reference to succession and administration of the estates of 
 deceased persons. .Upon this branch of the subject many 
 of the early reported cases occupy fifty, sixty, and even 
 ninety pages of a volume of reports. 
 
 There is therefore no lack of detail connected with the 
 history of the matter. 
 
 The term "domicile" is of Latin origin, and is exten- 
 sively met with in Roman law. It was apparently well 
 understood in this country, at least as early as the reign of 
 Charles II. 
 
 In Wynne's Life of Sir Leoline Jenkins, who was a judge 
 of the High Court of Admiralty and Prerogative Court of 
 Canterbury, and also an ambassador at Cologne and Nime- 
 guen, and Secretary of State to Charles II., in Vol. 11, at 
 p. 785, there is published a letter written from Nimeguen by 
 Sir L. Jenkins to the King, and dated August 2nd, 1676. 
 
 16(2)
 
 244 ADMINISTRATION OF FOREIGN E8TATFJ8. 
 
 He had apparently been commissioned by the King to report 
 upon the sufficiency or otherwise of the reasons given by 
 tiie Courts for a decision relating to a ship of war. In the 
 course of the letter the writer says: " Their Lordships seem 
 to lay stress in that the proofs of the privateer do express 
 the master to have had a house and to have had his domicile 
 at Amsterdam to this I shall crave leave to say, that the 
 term domicile is a term of law, the import whereof is not 
 vulgarly known he might have had a house at Amsterdam 
 and yet have no domicile there"; and the letter contains 
 other references to the law of domicile, showing that, at all 
 events, the learned writer had had occasion to study the 
 nature and effect of domicile, and was well acquainted with 
 its legal significance. 
 
 For some considerable time after this date there is no 
 reported English authority dealing expressly with the 
 matter, although there are a large number of Scotch cases 
 which will be referred to later. 
 
 In 1744, in the case of Pipon v. Pipon, 2 Ambler, 25, 
 Lord Hardwicke makes reference to the rule that " the per- 
 sonal estate follows the person and becomes distributable 
 according to the law and custom of the place where the 
 intestate lived," but he gives no indication of the authority 
 for the rule. 
 
 In 1750, in the case of Thome v. Watkins, 2 Ves. sen. 35, 
 the argument is repeated by the same judge. 
 
 Later, in Kilpatrick v. J\;i/,<i/rick, 6 Bro. P. C. 58, a 
 similar rule is applied to a case in which the deceased left 
 a will. However, it was not until 1790, when the case of 
 Bruce v. Bruce came before the House of Lords on appeal 
 from the Court of Session, that any reasoned judgment was 
 given dealing with the question. 
 
 In Bruce v. Bruce, reported in Morrison, 4617, and 
 3 Paton, 163, it was argued, in support of the lex domicilii, 
 that domicile, in the legal sense, is a word of very different 
 import from residence or habitation, because ambassadors, 
 envoys, exiles, &c., do not lose their domicile, although they 
 reside in a foreign country mere length of time or mere
 
 APPENDIX. 245 
 
 residence in a place does not per se constitute domicile; 
 three rules are invariable: 
 
 (1) Every man has a domicile in his native country, until 
 
 he acquires another. 
 
 (2) That he can acquire another only by establishing him- 
 
 self there animo remanendi. 
 
 (3) That however long he remains abroad in certain capa- 
 
 cities, still his domicile remains at home in his 
 native country, to which he belongs, where he was 
 born, and to which, it is reasonable to presume, he 
 has always an intention of returning, although the 
 time of doing so be undetermined. 
 
 Whilst for the respondent it was contended that by the 
 various decisions of the Court of Session it has been estab- 
 lished that the personal property of an intestate must be 
 distributed according to the law of the place in which such 
 property was situated. 
 
 Moreover, a large number of Scotch, French and Dutch 
 authorities were cited, and passages from several writers 
 on the civil law quoted, besides express reference being made 
 to the English cases of Thome v. Watkins, Kilpatrick v. 
 Kilpatrick and Burn v. Cole. Lord Thur low's judgment is 
 given at length in a note to the case of Marsh v. Hutchinson, 
 reported in 3 Bos. & Pul. 229; apparently at the express 
 request of counsel in the case he stated the law upon this 
 subject at length, including points not covered by the facts 
 of the jp resent cases. He held that the true ground upon 
 which the case turned (namely, that the estate of the late 
 Major Bruce should be distributed as far as moveables were 
 concerned by reference to English law) was, that the domi- 
 cile of the deceased was in India at the time of death. He 
 proceeds to say: "He was born in Scotland, but had no 
 property there. A person's origin in a question of where 
 is his domicile is to be reckoned as but one circumstance in 
 evidence which may aid other circumstances, but it is an 
 erroneous proposition that a person is to be held domiciled 
 where he drew his first breath, without adding something 
 more unequivocal. A person being at a place is primd facie 
 evidence that he is domiciled at that place, and it lies on those
 
 246 ADMINISTRATION OF FOREIGN ESTATES. 
 
 who say otherwise to rebut that evidence it may be re- 
 butted, no doubt; a person travelling, on a visit, he may be 
 there for some time on account of his health or business, a 
 soldier may be ordered to Flanders and be detained at one 
 place there for many months, the case of ambassadors, &c. 
 But what will make a person's domicile or home in contra- 
 diction to these cases must occur to everyone. A British 
 man settles as a merchant abroad, he enjoys the privileges 
 of the place, he may mean to return when he has made his 
 fortune, but if he dies in the interval, will it be maintained 
 that he had his domicile at home?" 
 
 These were the groun'ds of his opinion, though he would 
 move a simple affirmance of the decree, but he would not 
 hesitate as for himself to lay down for law generally, " That 
 personal property follows the person of the owner, and in 
 case of his decease must go according to the law of the 
 country where he had his domicile, for the actual situs of 
 the goods has no influence." 
 
 He observed that some of the best writers in Scotland lay 
 this down expressly to be the law of that country, and he 
 quoted Mr. Erskine's Institutes ' as directly in point. In 
 one case it was clearly so decided in the Court of Session, and 
 in the other cases which had been relied upon as favouring 
 the doctrine of lex loci rei sitce, he thought he saw ingredients 
 which made the Court, as in the present case, join both 
 domieilium and situs. 
 
 But to say that the lex loci rei sita is to govern though the 
 domieilium of the deceased be without contradiction in a 
 different country, is a gross misapplication of the rules of 
 the civil law and jus gentium, though the law of Scotland 
 on this point is constantly asserted to be founded on them. 
 
 In the bankruptcy case of Sill v. Worswick (1791), re- 
 ported 1 Hy. B. L. 665, Lord Loughborough, then Lord 
 Chief Justice, treats the question of the application of the 
 lex domicilii to the moveable estate of a person as definitely 
 decided. He quotes Lord Hardwickc's judgment in Vipon 
 v. Pipon. 
 
 He says in a well-known passage:^-" With respect to the 
 disposition of personal property, with respect to the trans-
 
 APPENDIX. 247 
 
 mission of it, either by succession or the act of the party, it 
 follows the law of the person. The owner in any country 
 may dispose of his personal property. If he dies, it is not 
 the law of the country in which the property is, but the 
 law of the country of which he was a subject, that will regu- 
 late the succession. For instance, if a foreigner having 
 property in the funds here, dies, that property is claimed 
 according to the right of representation given by the law 
 of his own country." 
 
 And throughout his judgment he constantly refers to per- 
 sonal property as being governed by the law which governs 
 the person of the owner. 
 
 In the case of Hog v. Lashley (1792), 6 Bro. Rep. 
 (H. L.), 577, the Court of Session had found by its inter- 
 locutor " that there is no ground for distinguishing between 
 Scotch and English effects because the succession to a 
 defunct's effects ought to be regulated, not by the different 
 laws of the many different countries in which these may 
 happen to be locally situated at the time of his death, but 
 by the law of the domicile," and also that "the succession 
 to the personal effects of the deceased, wherever situated, 
 must be regulated by the lex domicilii." 
 
 The appellant who sought to have these findings set aside 
 pleaded the Scotch authorities in support of the lex loci 
 (which are set out in detail in the report of Balfour v. 
 Scott, post), and also that whatever might be the case on 
 intestacy, the power of making a will was juris gentium, 
 and therefore any restraint upon the liberty of testing, 
 imposed by the lex domicilii, must be confined to effects 
 over which that law extends, and can be attended with no 
 consequence in other countries where no such restraints pre- 
 vail. The arguments urged on each side are reported at 
 considerable length (see pp. 577 600), and afford very 
 useful information as to the state of opinion upon the matter 
 at that date (see especially pp. 583, 584). 
 
 It is there urged, and we think rightly so, "that if the 
 succession ab intestato is to be regulated by the law of 
 the domicile, the same law must likewise regulate the power 
 of testing upon personal estate. The writers upon the law
 
 248 ADMINISTRATION OF FOREIGN ESTATES. 
 
 of nations and the civilians are equally clear upon the 
 point." 
 
 The various English authorities are quoted, and extracts 
 given from such writers as Vatfcel, Voet, Huber and Grotius. 
 The appeal was dismissed without detailed reasons being 
 given, but from that fact alone, and especially after Lord 
 Thurlow's judgment in the earlier case of Bruce v. Bruce, 
 it may be inferred that the House was not much impressed 
 with the theory of the lex loci rei site, which it had already 
 expressly dissented from in similar circumstances. 
 
 The next case in point of time is the well-known decision 
 of Balfour v. Scott, llth April, 1793 (reported in 6 Bro. Rep. 
 (H. L.), pp. 550577). 
 
 The actual decision in that case amounts to this. If a 
 Scotchman dies intestate, having his domicile in England, 
 his whole personal estate, as well in Scotland as England, 
 shall be distributed according to the law of England. 
 
 The report of the case was not compiled until after the 
 decision in Onnnaney v. Douglas, 8th March, 1796, where 
 the House of Lords also declared that the succession to the 
 testator's property should be regulated by the law of 
 England. 
 
 The question there was principally as to the fact of his 
 domicile. The Court of Session held that his succession 
 should be regulated by the law of Scotland " in respect that 
 he was born in Scotland and occasionally had a domicile 
 there, that he died in Scotland where some of his children 
 were boarded, and that he had not at that time a domicile 
 anywhere else." 
 
 The House of Lords reversed the interlocutor of the Court 
 of Session on the ground that the facts of the case did not 
 bear it out. The respondents in their printed case admitted 
 it as completely fixed and settled that the /(/ doniicUii, 
 and not the lex loci rei sites, governs the whole moveable 
 succession of the deceased, both testate and intestate, where 
 there is personal property in different places and subject to 
 different laws. The headnote to these two cases contains 
 this interesting announcement: 
 
 " The arguments at large on the question of the preference
 
 APPENDIX. 249 
 
 of the lex domicilii to the lex loci rei sitce as curious and 
 likely to be applicable to future cases are collected in an 
 appendix to this case." 
 
 The reports and appendix are extremely valuable, as show- 
 ing the undecided nature of the question of the domicile and 
 its application at this date. 
 
 At page 553 there are set out long lists of Scotch autho- 
 rities in which the lex loci rei sitce had been held to govern 
 the question of intestate succession according to the law of 
 Scotland. 
 
 On the hearing of the appeal a further and more elaborate 
 list of authorities to the same effect and going back to the 
 year 1611 is set out; together with extracts from Lord Stair's 
 Institutes to the effect that the lex loci rei sitce governs the 
 succession to personal as well as real property. In the ap- 
 pendix, pages 566 to 600, there are quoted many valuable 
 extracts from the pleadings in the case of Bruce v. Bruce, 
 and also the opinions of well-known writers on international 
 law of most of the systems of law in which domicile had any 
 place at that time the whole being very illuminating and 
 instructive . 
 
 In the first place, the authorities quoted in support of the 
 lex loci rei sitce are critically examined and discussed, and 
 proved in most cases to have but little bearing upon the point 
 at issue. 
 
 Extracts are then given from Erskine's Institutes, B. III., 
 vol. .9, 4, and Lord Kaine's Principles of Equity, B. III., 
 chap. 8, 4, to the effect that 
 
 " The succession to moveables is regulated not by the 
 law of the country in which they locally are, but by the 
 owner's ' patria ' or domicile, whence he came and whither 
 he intends to return." 
 
 A well-known quotation is also given from Vattel, Liv. II., 
 chap. 8, 110 
 
 " Puisque 1'etranger demeure citoyen de son pays et 
 membre de sa nation, les biens qu'il delaisse en mourant 
 dans un pays etranger doivent naturellement passer a ceux 
 qui sont heritiers suivant les lois de 1'etat dont il est membre 
 mais cette regie generale n'empeche point que les biens
 
 250 ADMINISTRATION OF FOREIGN E8TATK8. 
 
 immeubles ne doivent suivre les dispositions des lois du 
 pays ou ils sont situes." 
 
 Further quotations are also giveii from Voet and other 
 civilians, and the English authorities of Pipon v. Pipon, 
 Thome v. Watkins, Bum v. Cole and Kilpatrick \. Kil- 
 patrick are considered, as also are the Dutch and French 
 laws iu favour of the lex domicilii. In this case also, the 
 further question of what is domicile is discussed. See p. 575, 
 where the following propositions are laid down: 
 
 (1) That every man has a domicile in his native country 
 until he acquire another. 
 
 (2) That he can acquire another only by establishing him- 
 self there " anitno morandi," in support of which a further 
 quotation from Vattel, Liv. I., chap. 19, 218, is given: 
 
 " Le domicile est 1'habitation en quelque lieu dans 1'inten- 
 tion d'y demeurer tou jours. Un homme n'etablit done point 
 son domicile quelque part, a moins qu'il se fasse suffisam- 
 ment connaitre, soit tacitement soit par une declaration 
 expresse, son intention de s'y fixer." 
 
 In the later case of Ommaney v. Bingtiam (1796) already 
 referred to, and reported in full 3 Hagg. Eccl. 414, the dis- 
 pute was as to the domicile of the deceased, and whether 
 this was Scotch or English at the date of death. The Scotch 
 decision was reversed by the House of Lords, who held that 
 the deceased's last domicile was English. 
 
 The case contains a valuable examination of the facts 
 which go to determine the question of whether or not an 
 individual is domiciled in a particular country. (See Lord 
 Chancellor Loughborough's judgment at pp. 458 i62.) 
 
 In the same year (1796, June 12th), another important 
 case was decided on this point Bempde v. Johnslone, 3 
 Ves. 198; Graham v. Johnstone and the headnote to which 
 is: 
 
 " The personal property of an intestate, wherever situated, 
 must be distributed by the law of the country where his 
 domicile was, which is priind facie the place of his residence, 
 but that may be rebutted and supported by circumstances." 
 
 The case contains a very good definition of domicile at 
 p. 201, where the Master of the Rolls (Sir R. P. Arden)
 
 APPENDIX. 251 
 
 says: " The question of domicile is primd facie much more 
 a question of fact than of law. The actual place where he is 
 is primd facie to a great many given purposes his domicile. 
 You encounter that if you show it is either constrained, or 
 from the necessity of his affairs, or transitory, that he is a 
 sojourner, and you 'take from it all character of perma- 
 nency. If on the contrary you show that the place of his 
 residence is the seat of his fortune, if the place of his birth, 
 upon which I lay the least stress; but if the place of his 
 education, where he acquired all his early habits, friends 
 and connections, and all the links that attach him to society 
 are found there, if you add to that that he had no other 
 fixed residence upon an establishment of his own, you answer 
 the question, which would be, where does he reside? In 
 London. Is that his domicile? It is unless you show that is 
 not the place where he would be if there was no particular 
 circumstance to determine his possession in some other place 
 at that period." 
 
 The next case (Somerville v. Lord Somerville; Baynton 
 v. Lord Somerville (1801), 5 Ves. 749) is of the greatest 
 importance . 
 
 The headnote is: 
 
 " The succession to the personal estate of an intestate is 
 regulated by the law of that place which was his domicile at 
 the date of death. For that purpose there can be but one 
 domicile, and the lex loci rei sitce does not prevail. 
 
 " The mere place of birth or death does not constitute the 
 domicile. The domicile of origin, which arises from birth 
 and connections, remains until abandoned and another taken. 
 
 " In the case of Lord Somerville of two acknowledged 
 domiciles the family seat in Scotland and a leasehold house 
 in London upon the circumstances the former, which was 
 the original domicile, prevailed." 
 
 In opening the case for the plaintiffs the Attorney-General 
 argued as follows (see pp. 753, 754): 
 
 " The question in these cases must now be understood to 
 depend entirely upon the domicile of the late Lord Somer- 
 ville, the cases decided having put entirely out of sight the 
 lex lod rei sitce. with reference to this question. It was
 
 252 ADMINISTRATION OF FOREIGN ESTATES. 
 
 never understood in this or any country but Scotland that 
 the succession to moveable property could be regulated by 
 two different laws. Some decisions in that country certainly 
 did assert that proposition, but in the Annandale case it 
 was not thought a subject of question; and Lord Hardwicke 
 in Thorne v. Watkins, the House of Lords in Pipon v. 
 Pipon, and Lord Macclesfield and Sir Joseph Jekyl in prior 
 cases had no doubt upon it; but the point was completely 
 decided in Balfour v. Scott, Lady Tichfield's case, in which 
 the ground of the judgment of the House of Lords was 
 expressly declared to be that the personal estate of the in- 
 testate was to be distributed by the law of England, where 
 ho had his domicile. 
 
 " That declaration was certainly intended to put an end 
 to the possibility of raising the question in the future." 
 
 The point then turns upon what is domicile, what facts 
 are evidence of domicile, and what is the correct inference 
 to draw from certain facts. 
 
 The whole of the authorities prior in date are elaborately 
 referred to in the argument of the Attorney-General (see 
 pp. 753 762). For the defence it was argued that as the 
 evidence was equally strong in favour of domicile either in 
 England or Scotland, that the Court should apply its own 
 law to the estate, and the authorities cited are criticised (see 
 pp. 763779). 
 
 The Master of the Rolls, Sir R. P. Arden (who heard the 
 case for the Lord Chancellor) in an elaborate judgment lays 
 down three important rules on the subject: 
 
 (1) That succession to the personal estate of an intestate 
 
 is to be regulated by the law of the country in which 
 he was a domiciled inhabitant at the time of his 
 death, without any regard whatsoever to the place 
 either of birth or death, or the situation of the pro- 
 perty at that time. 
 
 (2) That although a man may have two domiciles for 
 
 some purposes, he can have only one for the purpose 
 of succession. 
 
 (3) That the original domicile, or domicile of origin, is 
 
 to prevail until the party has not only acquired
 
 APPENDIX. 25$ 
 
 another, but has manifested and carried into exe- 
 cution an intention of abandoning his former domi- 
 cile and taking another as his sole domicile. 
 
 He applies these rules to the facts of the case, and ulti- 
 mately decrees in favour of a Scotch domicile. 
 
 The case is one of interest for many reasons, not the least 
 being that the custom of the province of York had to be 
 discussed and applied. 
 
 There is also a dictum of note at p. 787, that a domicile 
 cannot be acquired during pupilage or until sui juris. 
 
 After such a series of decisions, many of them in the 
 highest Court in the land, one would have thought that both 
 the question of what is domicile and the application of the 
 lex domicilii to the moveable succession in cases of both 
 testacy and intestacy, would have been definitely recognized 
 by all branches of the English judiciary. 
 
 The contrary, however, appears to have been the case. 
 
 In the case of Curling v. Thornton (1823), 2 Addams Rep. 
 6 24, Sir John Nicholl decided that a will made in English 
 form by an English subject, who had been authorized to- 
 acquire a domicile in France, and had in fact resided there 
 for the greater part of his life, was valid. 
 
 His judgment appears to us to be very confused. He 
 apparently disputes many points of private international 
 law which had already been well settled by the earlier cases. 
 For instance, his judgment contains a complete repudiation 
 of the idea that the lex domicilii governs a will of moveable 
 property. 
 
 Moreover, the judge in this case based his judgment upon 
 the Continental rule relating to contracts made in a foreign 
 country, namely, that the lex loci actus governs. 
 
 Perhaps the most extraordinary part of the judgment, 
 however, is that in which Sir John Nicholl doubts whether 
 a British subject can ever so far " exuere patriam" as to 
 acquire a domicile in a foreign country. He says: 
 
 " It may even be doubted whether this can be whether a 
 British subject is entitled so far exuere patriam as to select 
 a foreign domicile in complete derogation of his British, 
 which he must at all events do in order to render his pro-
 
 -254 ADMINISTRATION OF FOREIGN ESTATES. 
 
 perty in this country liable to distribution according to any 
 foreign law." 
 
 Reference was made in support of this theory to the 
 Duchess of Kingston's case, in which it had been held that, 
 in the case of an English subject domiciled in a foreign 
 country, compliance with the English forms regulating a 
 will of personally was sufficient to render the will valid 
 as to form. 
 
 At the conclusion of the report of Curling v. Thornton, 
 there is printed a note of the case of Hare V. Xasmyth (1816), 
 2 Addauis, 25. There the testator was a domiciled inhabitant 
 of Scotland, and suits were brought here to prove the will; 
 the proceedings here were suspended to await the decision 
 of the Courts of the domicile. Ultimately, after an appeal 
 from the Scotch Courts to the House of Lords, the deceased 
 was held to have died intestate. 
 
 As against the decision in Curling v. Thornton, there is 
 the case of Gordon v. Brown (1830\ House of Lords, cited 
 in 3 Hagg. Eccl. at p. 455, which establishes the fact that 
 a British subject may acquire a foreign domicile in complete 
 derogation of his British, and that then his will must be 
 construed by the law of that domicile, and also the very 
 important case of Stanley v. Bernes (1831), 3 Hagg. Eccl., 
 the report of which covers over ninety pages, viz., pp. 374 
 465. 
 
 In that case a British subject had died domiciled, and 
 even actually naturalised in Portugal, and had left a will 
 and four codicils, the will and the first two codicils being 
 executed in accordance with the law of Portugal (lex domi- 
 cilii), and the other two codicils being executed in accord- 
 ance with the English formalities. 
 
 Sir John Nicholl, following his own previous decision in 
 Curling v. Thornton, upheld the will and all four codicils, 
 and decreed accordingly. 
 
 An appeal was taken to the Court of Delegates and the 
 matter elaborately argued, the whole of the earlier decisions 
 on the subject being carefully reviewed. 
 
 The various English authorities on domicile were quoted, 
 and are collected at p. 460 of the report.
 
 APPENDIX. 255 
 
 The matter was argued for the respondents as if no 
 'decision had ever been given, depriving a British subject 
 of the power of making a will in the English form, and 
 from the very decided manner in which the sway of the 
 law of the domicile Avas disputed, it may safely be said 
 that the decision is a landmark in the history of the law of 
 domicile in this country. 
 
 In the result the appeal was allowed and probate decreed 
 of the will and the two codicils which were valid according 
 to the law of the domicile. 
 
 There followed a few years later the case of De Bon- 
 neval v. De Bonneval (1838), 1 Curt. 856, the headnote to 
 which is: 
 
 " The domicile of origin continues until another is 
 acquired. A new domicile is not acquired unless it be taken 
 Tip with an intention of abandoning the former domicile. 
 A Frenchman having quitted France in 1792 in consequence 
 of the Revolution in that country, and having resided in 
 England until 1814, when he returned to France, and from 
 that time resided occasionally in both countries, held not 
 to have abandoned his original domicile." 
 
 " The validity of a will is to be determined by the law 
 of the country where the deceased was domiciled at his 
 death." 
 
 Sir Herbert Jenner in his judgment at p. 858 says: 
 " The simple question is, whether the deceased was domi- 
 ciled in France or in this country? On that point it will 
 depend by the laws of which country the validity or in- 
 validity of the will is to be tried, for it is now settled by 
 the case of Stanley v. Bernes that the law of the place of 
 domicile, and not the lex loci rei sitce, governs the distribu- 
 tion of and succession to personal property in testacy or 
 intestacy." 
 
 He also (see p. 863 et seq.) discusses the principles upon 
 which domicile should be ascertained. 
 
 Moreover, the decision is of interest, as being a further 
 case in which proceedings were stayed here, to abide the 
 decision of the Courts of the domicile (following Hare v. 
 Nasmyth, supra).
 
 256 ADMINISTRATION OF FOREIGN ESTATES. 
 
 Sir Herbert Jenner concludes his judgment thus (see 
 p. 869): "I am, therefore, of opinion that the deceased 
 continued a domiciled French subject to the time of his 
 death, and consequently that the validity or invalidity of 
 his will must be determined by the French tribunals and not 
 by this Court. The precise form in which the Court must 
 pronounce its sentence is this: That the deceased, at the 
 time of his death, was a domiciled subject of France, and 
 that the Courts of that country are the competent authority 
 to determine the validity of his will and the successor to his 
 personal estate. And, as in the case of Hare v. Nasmyth, 
 the Court suspends the proceedings here, as to the validity 
 of the will, till it is pronounced valid or invalid by the 
 tribunals of France." 
 
 The weight to be given to the various circumstances 
 attending the life of the testator is also discussed at length 
 by the learned judge in that case. 
 
 In Toller on Executors, 7th ed. (1838), the subject of 
 domicile is very briefly alluded to. 
 
 Thus at p. 386: ''The personal property of an intestate 
 wherever situated must be distributed according to the law 
 of the country where his domicile was, and such is jirinia 
 facie the place of his residence, but that may be rebutted or 
 supported by circumstances." (See 2 Ves. jun. 198, and 
 Sir Charles Douglas' case there cited.) "For although the 
 locality of the party's abode at the time of his death does 
 determine the rule of distribution, yet it must be a stationary 
 and not an occasional residence in order that the municipal 
 institutions may attach to the property." (See 1 Wooddes, 
 385.) 
 
 In Craigie v. Lewin (1842), 3 Curt. 435, an Anglo-Indian 
 case, the judgment of Sir Herbert Jenner Fust is of im- 
 portance on tlu-sc point.*, vi/... change of domicile (MM- pp. 117 
 ami 1 IS i, and as to the necessity of the will oomph in^- \\iili 
 the lex domlcilii. As to the first of these, the case is an 
 authority for saying: "That the domicile of origin does not 
 revive until an acquired domicile i finally abandoned." 
 As to the second, the learned judge says at p. 450: "The 
 (li-t.inction adverted to in the course of the argument between
 
 APPENDIX. 257 
 
 cases of testacy and intestacy makes no difference. It has 
 been held in the cases of Stanley v. Bernes, Curling v. 
 Thornton and De Bonneval v. De Bonneval that a person 
 in order to make a valid will must conform to the law of 
 the country where he is domiciled just as where he makes 
 no will, he must be supposed to have intended distribution 
 according to the law of that country." 
 
 De Zichy Ferraris v. Hertford (1843), 3 Curt. 468, is an 
 authority for the proposition that: 
 
 "A will is not valid unless executed in conformity with 
 the law prevailing in the country where the testator is domi- 
 ciled, and the fact of the property (personal) bequeathed 
 by such will being locally situate in another country, and 
 of the will being duly executed according to the law of that 
 country, will work no distinction." 
 
 The case occurred shortly after the passing of the Wills 
 Act, 1837, and contains a strikingly elaborate judgment 
 of Sir H. Jenner Fust as to the necessity in all cases of attes- 
 tation, and the incorporation of one testamentary paper in 
 another. The judgment covers forty-seven pages of the 
 report (pp. 475522). 
 
 Then comes the case of Bremer v. Freeman (1857), 1 
 Deane Eoc. Rep. 192, and later, on appeal in the Privy 
 Council, 10 Moo. P. C. 306. The headnote to the case reads 
 as follows: 
 
 " The forms and solemnities of a will are governed by the 
 law of the domicile of the testator. The maxim mobilia 
 sequuntur personam is part of the jus gentium. It follows, 
 therefore, that the postmortuary distribution of the effects 
 of a deceased person must be made according to the law of 
 his domicile at the time of his death, and it equally follows 
 that if the law of the country allowed the deceased to make a 
 will, the will must be in the form and executed with the 
 solemnities which that law requires. An Englishwoman, 
 domiciled at the time in France, made in 1842 a will in 
 Paris in the English form, executed according to the Wills 
 Act 1 Viet. c. 26, but not in accordance with the require- 
 
 B. 17
 
 258 ADMINISTRATION OF FOREIGN ESTATES. 
 
 ments of the French law. The deceased, at the time of 
 making the will and at her death, was not naturalised in 
 France, nor had she obtained any authorisation as required 
 by the 13th Art. of the Code Napoleon. Held, that the 
 testatrix being domiciled in France, the authorisation of 
 the French government was not necessary to give her the 
 right of testacy; that the will, not having been executed in 
 conformity with the requirements of the law of the domicile 
 was invalid, and probate refused. The onus probandi lies 
 upon a party impeaching a will to show that it ought not to 
 be admitted to proof; but where the party impeaching the 
 will establishes the fact that a testatrix had lost her English 
 domicile, having gained another elsewhere, and died in the 
 acquired domicile, the onus probandi is in such circumstances 
 shifted, and it lies upon the party propounding the will 
 to prove that the law of the domicile was such as to authorise 
 a will in the form propounded." 
 
 There follows: Hodgson v. De Beauchesne (1848), 12 
 Moo. P. C. 285. Very important case as to the impossibility 
 of an officer in the military service of the Crown acquiring 
 a domicile of choice in a foreign State, and also on the 
 following points taken from the headnote, p. 286. 
 
 The presumption of law is against the intention to 
 abandon the domicile of origin. 
 
 Length of residence in a foreign country per se, accord- 
 ing to time and circumstances, raises a presumption of in- 
 tention to abandon the domicile of origin and to acquire a 
 new domicile, but such presumption may be rebutted by 
 facts showing that there was no such intention. 
 
 A change of domicile is not to be inferred from the fact of 
 a lengthened residence in a foreign country. To constitute 
 a change of domicile it must be animo et facto. 
 
 Very important judgment, first by Sir John Dodson and 
 on appeal by Doctor Lushington, involving a consideration 
 of Bremer v. Freeman, of the effect of Art. 13 of the French 
 Civil Code, and the necessity or otherwise to obtain such 
 authority as preliminary to acquiring a domicile in France. 
 
 The two important cases of Whicker v. Hume (1858), 7 
 H. L. 124167, and Moorhouse v. Lord (1863), 10 H. L. C.
 
 APPENDIX. 259 
 
 272 293, have already been dealt with at length in 
 Chap. II., supra. It will be remembered that Moorhouse 
 v. 1 Lord is the case which (so far as English authorities 
 are concerned) gave rise to the theory that domicile and 
 nationality ^ were closely connected, and that a domicile 
 cannot be acquired unless there is an intention to change the 
 political status. For the reasons given in Chap. II. we are 
 of opinion that the said doctrine is wholly false. 
 
 Bell v. Kennedy (1868), L. E. 1 Sc. App. 307, is 
 important as to the distinction between domicile and 
 residence. 
 
 Udny v. Udny (1869), L. R. 1 Sc. App. 441, has also been 
 dealt with in detail in Chap. II., as have most of the more 
 modern cases on domicile. 
 
 There remains to be noticed the three following cases, 
 viz.: Brunei v. Brunei (1871), L. R. 12 Eq. 298, which 
 bears a headnote to this effect: 
 
 "A French subject by establishing himself in business in 
 this country, marrying and continuing to reside here for 
 more than thirty years, making only occasional visits to 
 France. Held, to have lost his domicile of origin and 
 acquired an English domicile, notwithstanding his refusal 
 to take out letters of naturalisation in this country, on the 
 ground that he might return to France, and would not give 
 up his status as a French citizen." 
 
 The case was comparatively a simple one, and the facts 
 far less involved than in many of the cases on this subject. 
 
 In his judgment, Sir James Bacon, V.-C., immediately 
 deals with Udny v. Udny, which he says "cuts down or 
 rather explains the expressions in Moorhouse v. Lord, that 
 for a change of natural domicile there must be a definite 
 and effectual change of nationality, that a man must intend 
 ' exuere patriam,' " and he adopts Lord Westbury's words 
 as to the acquisition of a domicile of choice. 
 
 And Hamilton v. Dallas (1875), 1 Ch. D. 257. The head- 
 note to which case is: 
 
 "A peer of the British Parliament is not, by reason of 
 17(2)
 
 260 ADMINISTRATION OF FOREIGN ESTATES. 
 
 his obligation to attend the House of Peers whenever his 
 presence is there required, incapacitated from acquiring a 
 domicile of choice in a foreign country." 
 
 "A.de facto domicile governing the succession to per- 
 sonal property of which he dies intestate may be acquired 
 in France by a foreigner who has not obtained the Govern- 
 ment authorisation imposed by the Code of Napoleon, 
 Art. 13, as the condition for enjoyment by a foreigner 
 resident in that country of full civil rights." 
 
 The decision is an extremely interesting one, and the 
 matter is gone into at great length, both as to English and 
 French authorities. 
 
 Vice -Chancellor Bacon's judgment, pp. 267 273, sets 
 out the matter very clearly, and discusses the point as to 
 how far the municipal rules of another State can interfere 
 with recognized rules of international law. 
 
 Also see Doucet v. Geoghegan (1877), C. A. (1878), 9 
 Ch. D. 441. 
 
 The testator in the suit was a Frenchman, but had lived 
 twenty-seven years in England, during the greater part of 
 which time he was a partner in an English house of busi- 
 ness. Paid occasional visits to France. He married 'jii 
 England. He made his will in English form and left his 
 property in a manner inconsistent with French law. Upon 
 an action to establish a French domicile, numerous "wit- 
 nesses deposed to the fact that he had made various parol 
 declarations that he intended to return to France when he 
 made his fortune. It was also proved that he always re- 
 fused to be naturalised in England, and would not take a 
 lease of- more than three years of his house. 
 
 Held by the Court of Appeal, Jessel, M. R., James and 
 Brett, L. J.I. (affirming Malins, V.-C.), that the acts of 
 the testator manifested an intention to acquire an English 
 domicil, and that his declarations of intention to return t. 
 France when he had made his fortune wore not sufficient to 
 rebut the conclusion to be derived from the facts of \\\< lit- . 
 ('sj)iM-ially <>f Jiis Kmrlish marriages. 
 
 The above list of cases, which is, of course, not intended
 
 APPENDIX. 261 
 
 to be exhaustive, as the reported decisions on domicile are 
 extremely numerous, is designed to show the gradual de- 
 velopment of the conception of domicile in English law, 
 and the way in which the rule of the application of the lex 
 domicilii to testate and intestate succession to moveables 
 became established. 
 
 It is hoped that by presenting the cases in chronological 
 order in this manner much research amongst the earlier 
 reports may be avoided, and at the same time a clearer per- 
 ception gained of the position at the present time.
 
 
 . <* 
 
 INDEX. 
 
 ADMINTSTEATION, 
 
 effect of grant of, 126130 
 as to moveables, 128 
 
 immoveables, 126 
 choses in action, 129* 
 ships, 130 
 
 English grant of, when necessary, 40 
 foreign grant, when fallowed, 173 193 
 lex fori applies to, 41 
 limited grant, rules as to, 125 
 meaning of, 40 
 opposed to succession, 4042 
 'what law governs, 41 
 
 what matters governed by law of domicile, 44 
 when letters of, granted, . 
 
 to estate of British subject, 123 125 
 foreigner, 167 
 
 ADMINISTRATOR 
 
 liability of English, 197, 198 
 
 ALIENS, 
 
 who are, 39 
 
 ALLEGIANCE, 
 
 difference from domicile, 15 25 
 
 APPOINTMENT, POWER OF, 
 
 will exercising, generally, 199 209 
 construction of, 204209 
 form of, 201204 
 
 ASSETS, 
 
 English grant necessary for English assets, 41 
 
 must be assets within jurisdiction to obtain English grant, 114- 
 
 116, 160 
 situation of, 
 bonds, 60 
 choses in action, 58
 
 264 INDEX. 
 
 ASSETS continued. 
 
 situation of continued. 
 copyright, 62 
 debts, 59, 60 
 generally, 48 63 
 immoveables, 49 53 
 moveables, 53 58 
 patents, 62 
 shares and stocks, 60 
 
 BENEFICIAL SUCCESSION, 
 what is, 42 
 what law governs, 42 48 
 
 BENEFICIARIES, 
 
 capacity of, 142, 143 
 
 legitimacy of, 143 150 
 
 rights of, under will of British subject, 136 139 
 
 foreigner, 
 ab intestato, 140 150 
 
 BON A VACANTIA, 
 succession to, 122 
 
 BONDS TO BEARER, 
 situation of, 60 
 
 BRITISH NATIONALITY, 
 rules relating to, 36 40 
 
 BRITISH SUBJECTS, 
 
 natural born, who are, 36 40 
 
 naturalized, who can be, 36 40 
 
 estates of. See ESTATES OF DECEASED BRITISH SUBJECTS 
 
 CAPACITY 
 
 to perform legal act, what law determines, 165 
 to make a will, 96 105, 156, 157 
 
 of English freeholds, 98 
 
 how affected by marriage settlement, 100, 157 
 what law determines, 97 105, 156 
 
 CHAXCKRY COURT, 
 jurisdiction of, 72 
 
 CHOSE IN ACTION, 
 meaning of, 59 
 situation of, 59, 60
 
 INDEX. 265 
 
 COLONIAL PEOBATES ACT, 192 
 
 CONDITIONAL BEQUESTS, 
 validity of, 102105 
 
 CONSTRUCTION, 
 
 by what law governed, 131 139 
 of contract relating to land, 132 
 of will exercising power of appointment, 204 209 
 
 of immoveables, 131 
 
 of moveables, 131 133 
 of foreign wills, 170 172 
 
 CREDITORS, 
 
 priorities of, 197 
 
 rights of, generally, 194 198 
 
 when entitled to a grant, 197 
 
 DEATH DUTIES, 
 
 estate duty, 211213 
 
 generally, 210 
 
 legacy duty, 213 214 
 
 must be paid before grant, 118 
 
 settlement estate duty, 216 
 
 succession duty, 214 216 
 
 DEBTS, 
 
 situation of, 59 60 
 
 DOMICILE, 
 
 definitions and descriptions of, 13 15 
 dependent persons, of, 28 
 
 depends partly on law and partly on fact, 13 
 distinguished from nationality, 15 25 
 
 residence, 26 
 
 home, 26 
 
 governed by English rules, 30 32 
 history qf, 11, 243261 
 meaning of, 13 
 relationship between a person and a place, 12 
 
 DOMICILE IN NON-CHRISTIAN COUNTRIES, 
 English rule, 33 
 
 DOMICILE, LAW OF, 
 
 matters governed by, in administration and succession, 44 
 meaning of expression, 47, 91. And see CHAPTER XX.
 
 266 INDEX. 
 
 DOMICILE OF CHOICE, 
 
 acquisition of, does not depend upon laws of place of residence. 
 
 3032 
 dependent person on becoming independent retains last domicile, 
 
 33 
 
 nature of, 28 
 when residence does not give, 28 30 
 
 DOMICILE OF ORIGIN 
 of illegitimate child, 27 
 what is, 27 
 
 ESTATE DUTY. See DEATH DUTIES 
 
 ESTATES OF DECEASED BRITISH SUBJECTS, 
 beneficiary, rights of. See BENEFICIARY 
 capacity to make a will, 96 105 
 construction of wills, 131 139 
 effect of English grant, 126 130 
 essentials which must exist before probate can be obtained, 79 
 
 118 
 
 intestate succession, 120 125 
 when letters of administration cum testamento annezo will be 
 
 granted, 118, 119 
 when probate will be granted, 78 
 wills, form of, 81 84 
 
 of immoveables, 84 87 
 of moveables, 87 96 
 
 ESTATES OF DECEASED FOREIGNERS, 
 beneficiary, rights of. See BENEFIOIABY 
 capacity to make a will, 156, 157 
 construction of wills, 170 172 
 effect of English grant, 168, 169 
 intestate succession, 163 167 
 when letters of administration cum testamento annexo will be 
 
 granted, 161, 162 
 
 when probate will be granted, 151 161 
 wills, form of, 153 
 
 of immoveables, 153, 154 
 of moveables, 154 156 
 validity of, 158 
 
 EXECUTOR 
 
 alone entitled to grant, 113 
 who can be, 113
 
 INDEX. 267 
 
 EXECUTOE continued. 
 
 will must contain appointment of, before probate can be obtained,. 
 112114 
 
 FOLLOWING A FOEEIGN GEANT, 
 general principles and rules, 173 182 
 Scotch, Irish and Colonial grants, 191 193 
 when not followed, 182 191 
 
 FOEEIGNEES. See ESTATES OF DECEASED FOREIGNERS 
 
 FOEM OF WILL, 
 
 of British subject, 81 96 
 
 of foreigner, 153 158 
 
 to exercise power of appointment, 200 204 
 
 IMMOVEABLES, 
 
 situation of, 49 53 
 
 what are, 50 
 
 wills of, 8487, 153, 154 
 
 INCOME TAX AND SUPEE-TAX, 
 
 when payable by estate of deceased, 217 
 
 INTESTATE, 
 
 when estate deemed to be, 121 
 
 INTESTATE SUCCESSION, 
 
 to estate of British subject, 120125 
 foreigner, 163 167 
 
 IEISH PEOBATE ACT, 192 
 
 JURISDICTION 
 
 of English Court, 
 
 history of, 64 
 
 as to probate, 69 
 
 as to letters of administration, 71 
 of Chancery Division, 72 
 in personam, 73 
 when English Courts have to make a grant, 77 
 
 KINGSDOWN'S ACT. See WILLS ACT, 1861
 
 268 INDEX. 
 
 LEASEHOLDS, 
 
 are inunoveables, 52 
 
 Lord Kingsdown's Act applies to, 85 
 
 nature of, 52 
 
 when lex situs applies, 154 
 
 LEGACY DUTY. See DEATH DUTIES 
 
 LEGITIMACY 
 
 of beneficiary, 143 150, 172 
 
 LEGITIMAT10 PER SUBSEQUEKS MATRIMONIUM, 
 English role as to, 149, 150 
 
 LEX FOR1, 
 
 matters governed by, 40, 41 
 
 LEX LOCI REI SITJE, 
 
 formerly governed distribution of moveablee. See APPENDIX 
 
 LEX SITUS, 
 
 governs will of immoveables, 83 87 
 
 but not leaseholds if testator British subject, 85, 86 
 
 LOCUS RE GIT ACTUM, 
 
 place of rule in English law, 82 
 
 MARRLYGE, 
 
 effect of, on earlier will, 105112, 157, 166 
 
 MARRIAGE SETTLEMENT, 
 
 effect of, upon testamentary capacity, 100, 101, 157 
 
 MOBILIA SEQUUNTUR PERSONAM, 
 meaning of rule, 4 7, 44, 53 
 
 MOVEABLES, 
 divisions of, 57 
 situation of, 57 63 
 
 test whether property is moveable or not, 49 
 what are, 48 
 
 wills of, of British subjects, 87 96 
 of foreigners, 154 156 
 
 NATIONALITY, 
 
 difference from domicile, 15 25 
 British, 36 10
 
 INDEX. 269 
 
 NEGOTIABLE INSTRUMENTS, 
 situation of, 60 
 
 ORIENTAL DOMICILE. See DOMICILE IN NON-CHRISTIAN 
 
 COUNTBIES 
 
 PERSONAL PROPERTY, 
 
 term unknown to international law, 86 
 
 POWERS OF APPOINTMENT. See APPOINTMENT 
 
 PRIVATE INTERNATIONAL LAW, 
 meaning of, 3 
 nature of, 1 
 validity of English rules as to, 235238 
 
 PROBATE, 
 
 jurisdiction as to, 69 71 
 meaning of, 69 
 
 of wills of British subjects, 78 118 
 foreigners, 151 161 
 
 PRODIGAL, 
 
 how far foreign status recognized here, 102 105 
 
 REAL PROPERTY, 
 
 term unknown to international law, 86 
 
 BENVOI, 
 
 advantages of, 233, 234 
 
 how far accepted here, 220233 
 
 theory of, 9 
 
 what is, 218220 
 
 RESIDENCE, 
 
 not same as domicile, 26 
 
 REVOCATION OF WILLS, 
 
 by subsequent marriage, 105 112 
 generally, 105 
 
 RIGHTS OF BENEFICIARY. See BENEFICIARY 
 
 SHIPS, 
 
 situation of, generally, 63 
 
 British ships, 63
 
 270 INDEX. 
 
 SOLDIER, 
 
 domicile of, 28 30 
 
 STATUS, 
 
 foreign, when not recognized, 102 
 
 French prodigal, how far recognized here, 102 105 
 
 governed by domicile, 142 
 
 SUCCESSION DUTY. See DEATH DUTIES 
 
 SUGGESTED ALTERATIONS ON ENGLISH PRACTICE, 238 
 241 
 
 TRANSLATION 
 
 required of will in foreign language, 117 
 
 TRUST FUND, 
 situation of, 61 
 
 VALIDITY 4)F ENGLISH PRINCIPLES OF PRIVATE INTER- 
 NATIONAL LAW, 235238 
 
 WIDOW, 
 
 right to legitim, what law governs, 134, 135 
 
 WILL, 
 
 capacity to make. See CAPACITY 
 
 construction of. See CONSTRUCTION 
 
 exercising power of appointment. See APPOINTMENT 
 
 form of. See FORM OF WILL 
 
 general principles as to, 80, 81 
 
 of immovables, 
 
 made by British subject, 84 87 
 
 foreigner, 153, 154 
 of moveables, 
 
 made by British subject, 87 96 
 
 foreigner, 154 156 
 revocation. See REVOCATION 
 
 WILLS ACT, 1837, 
 
 application to wills exercising powers of appointment, 201 209 
 governs wills of freeholds, 84 86, 153, 154 
 
 of immovables so far aa foreigners are concerned, 
 154
 
 INDEX. 271 
 
 , 
 
 WILLS ACT, 1861 (Lord Kingsdown's Act), 
 applies to all personal property, 53 
 
 British subjects both natural born and naturalized, 93 
 leaseholds, 85 
 enabling Act, 85 87 
 foreigners are included in sect. 3... 95 
 introduces rule of locus regit actum, 46 
 provisions of, 92 95 
 
 
 
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