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. Aratr-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 ) See Appendix, where this case is further discussed. ( > 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 domicile of the deceased. It' tin- last domicile of tin- deeeased !>, |(,ivi<_Mi, (b) In Enohin \. H'yl 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, \\ 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/,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 LONDON: PRINTED BY c. F. RO WORTH, 88, FETTER LANE, E.G. WS ANGELES UC SOUTHERN REGIONAL LIBRARY FACILITY A 000 682 598 8 )r^