character of immovable, and their disposition is governed by the lex domicilii of the testator.(a) PART II. PROPERTY. CAP. VI SUMMARY. (ii.) NATURE AND INCIDENTS OF REAL OR IMMOVABLE PROPERTY. The lex rei site is entitled to determine what is, and what is not, real or immovable property. p. 202. The lex rei sita may accordingly impress the character of pp. 202-204. personality upon the res sita for its own purposes (as for the payment of legacy duty), without abandoning its claim to regard the same res sita as realty or immovable property for the purposes of international law. The lex rei site, in calling the res sita personalty, does not thereby convert it into movable personalty. Movables and personalty are not equivalent terms. The lex rei sitœ will generally prevail as to questions of limitation and prescription in their application to real or immovable property, inasmuch as these naturally arise only in the forum rei sita. There is some authority for saying that the pp. 205–208. lex rei site will also prevail when such questions arise in a foreign court; but among jurists there is some conflict of opinion on the point, the lex fori asserting its claim to deal with the matter as pertaining to the remedy. The lex rei sita will determine the liability of real or immovable property for the debts of its deceased owner testate or in testate, and the obligation of the heir in respect of those debts. pp. 207 212. But this principle may be modified, (i.) by the rule that the construction of a will depends upon the law of the domicil of the deceased; (ii.) by a personal equity affecting the heir. The lex rei sitæ does not extend to the proceeds of immov- p. 212. ables once validly sold under a power good by the same law. (iii.) Transfer of Immovable Property inter vivos. transfer. It is firmly established, that both as regards the capacity of Capacity for transferring, and the necessary forms to effect the transfer, of land, the lex situs is alone competent to speak.(b) With respect to formalities, the rule has been recently recognised and followed, in a case where it was held that a conveyance not under seal, executed in England, of the right of shooting over Scotch lands, was governed by Scotch and not by English (a) In re Piercy; Whitwham v. Piercy (1895), I Ch. 83. (b) Story, Conflict of Laws, §§ 430, 436 a; see the cases cited, ibid. 428, n. 3. CAP. VI. PART II. law.() As regards the question of capacity, there is a dearth PROPERTY of English decisions, and Mr. Westlake (Priv. Int. Law, § 89) shows an inclination to refer to it, even with respect to the Transfer of transfer of realty, to the ler domicilii of the person, rather than Immorables. to the ler situs. It has been pointed out in a previous chapter that English law as to the proper test for determining the capacity of a person, with reference to a particular act, is in an unsatisfactory state; (b) but it can hardly be supposed that the fact of an Englishman being domiciled in Prussia, where majority is not attained until the age of twenty-five, would be sufficient to invalidate a conveyance by him of English land made when he was twenty-four. This is, however, a proposition for which numerous jurists, who advocate the claims of the domiciliary law, are prepared to contend; (c) but the language of Abbott, C.J., in Birtwhistle v. Vardill(d) may be quoted to show how untenable it must be considered. The rule as to the law of the domicil has never been extended to Formalities of transfer. real property. . . . Is there any authority that the law of England, as to any lands in England, is to adopt the law of a foreign country ? "(e) As to the formalities required to make a valid transfer, there is a greater abundance of decisions. Transfer inter vivos of real estate, by English law, must be governed as to the formalities which accompany it, by the ler rei sita alone.(ƒ) In Robinson v. Bland (y) Lord Mansfield said: "In every disposition or contract where the subject-matter relates locally to England, the law of England must govern, and must have been intended to govern. Thus . . . . as to conveyances or wills of land, the local nature of the thing requires them to be carried into execution according to the law here." Waterhouse v. Stansfield(h) was a case where the effect of the law in Demerara was considered as to land there situate, purporting to restrain the alienation by a debtor of any immovable property without the assent of his creditors, express or implied, and without certain prescribed forms, intended to secure this object; and it was held that such a law must prevail to exclude the claim of an English assignee of the equitable interest in such land. Turner, V.C., said: "When the law of a foreign country places a restraint (a) Adams v. Clutterbuck, 10 Q. B. D. 403. (c) See Story, Conflict of Laws, §§ 432 sq., 51 sq. (b) Chap. iii. (e) As to the recent alteration in the law regarding the capacity of aliens, see 33 & 34 Vict., c. 14, ante, p. 42. (f) 2 Dwarris on Stat. 648; Warrender v. Warrender, 9 Bligh, 127. (g) 2 Burr. 1079. (h) 10 Hare, 254. upon the alienation of the property of a debtor situate in such country, an equity arising here on a contract entered into in respect of such property cannot be enforced against the ler loci rei sita." PART II. PROPERTY. CAP. VI. Transfer of The restraint spoken of in the case last cited was, as has Immorables. been said, only conditional, depending upon the neglect or Restraints employment of the forms prescribed by the lex situs. It is to on transfer. be observed, however, that all restraints imposed by that law, which determines generally the effect and operation of any attempt at the transfer of realty, are to be accepted as binding; and that such restraints only bind within the territorial limits of the authority which imposed them. Thus the English Statute of Mortmain does not apply to land within the colonies, which was decided in Whicker v. Hume,(a) upon the authority of Sir W. Grant in Attorney-General v. Stewart,(b) though the case turned more upon the intention of the Legislature, and the policy of the law of mortmain generally, than upon the strictness of the theory of the intra-territorial operation of all laws regulating the disposition of immovables. Nor do they apply to land in Scotland; but where a will was made in England, and according to English form, by a domiciled Scotchman, bequeathing money to trustees to purchase lands (without saying where), and pay over the rents for charitable purposes to persons resident in Scotland, the bequest was held void under the Statute of Mortmain, there being nothing in the words to show that a purchase of anything but English lands was contemplated.() In Renaud v. Tourangeau(d) the effect of an attempt at restriction of all alienation for twenty years, by a Canadian testator, was discussed with reference to Canadian land; and though it was suggested in argument, by way of analogy, that such a restriction would be bad by English law, even if there had been a gift over, it was assumed throughout that the real question was, whether such a restraint on the alienation of Canadian land was bad or good by the law of Canada. It is true that Lord Romilly said in his judgment that it would be invalid, not only by the old French law, prevailing in Lower Canada, but by the general principles of jurisprudence; but it is plain that all that was meant by this latter expression was to signify those rules of public policy which must be taken as part of the Common Law in every part of the British Empire. (a) 7 H. L. C. 124. (b) 2 Meriv. 143. () Attorney-General v, Mill, 3 Russ. 328; Curtis v. Hutton, 14 Ves. 537. (d) L. R. 2 P. C. 4. PART II. PROPERTY. CAP. VI. p. 213. pp. 214, 215. Formalities of wills of The income or annual proceeds of immovables are regarded as movables, either in the hands of trustees or of a beneficial owner, and may be validly disposed of without regard to the lex situs [Fitzgerald, in re (1903), 1 Ch. 933, 941; Scott v. Allnutt, 2 Dowl. & Cl. 404; Noell v. Robinson, 2 Ventr. 358]. SUMMARY. (iii.) TRANSFER OF IMMOVABLE PROPERTY INTER VIVOS. The lex situs determines all questions relating to the transfer of real estate. Thus (inter alia), it determines the capacity of the parties to the transfer. [There is, however, little direct authority on this point, and jurists show a tendency to decide capacity on this, as on all other matters, by the lx domicilii.] The formalities of the transfer, and the restrictions on the freedom of alienation, are similarly decided by the same law. (iv.) Succession to Immovable Property by Will. It is hardly necessary to state that the principle that conimmovables. Veyances inter vivos of realty must comply with the formalities required by the lex situs, applies à fortiori to all alienations of real property by will.(a) And this rule applies to leaseholds or chattels real, which for this purpose are immovables. Thus a will executed according to the forms of the lex domicilii, but not attested according to English law, will not pass leaseholds in England.(b) Conversely, a will executed according to the Wills Act, but not in accordance with the lex domicilii, will do so.(c) The case of Hood v. Barrington (d) is referred to in a note in Jarman on Wills (5th ed. vol. i. p. 5) as an authority for the proposition that a will of a testator domiciled abroad, not executed according to 1 Vict. c. 26, may enable the executor to sell leaseholds here, though it will not operate on the beneficial interest. This proposition appears questionable if taken generally, though undoubtedly true in the case cited. (a) Coppin v. Coppin, 2 P. Wms. 291; Curtis v. Hutton, 14 Ves. 537; Borey v. Smith, 1 Vern. 85; Drummond v. Drummond, Bro. P. C. Toml. 601. (b) Pepin v. Bruyere (1900), 2 Ch. 504. 6 (c) De Fogassieras v. Duport, 11 L. R., n. 123. Cf. Hood v. Barrington (L. R. 6 Eq. 218), in which it would appear that this point was not expressly taken. (d) Hood v. Barrington, L. R. 6 Eq. 218. As to the cases in which the operation of Lord Kingsdown's Act (24 & 25 Vict. c. 114) may affect the disposition of leaseholds by will, see infrà, p. 268, n. PART II. PROPERTY. CAP. VI. Immovables. The decision in Hood v. Barrington, however, rested on the statutory effect of an English adoption (by sealing in the Probate Court) of a Scotch confirmation or probate; and it was held by Lord Romilly, M.R., that the effect of the statute Succession to (21 & 22 Vict. c. 56, s. 12) was to give the Scotch executor all the powers of an English executor, including the power of selling leaseholds. It would be unsafe to infer from this decision that the executor of any foreign will, executed in accordance with the domicil of the testator and admitted to probate in England, has a like power, if the formalities of English law as to wills of immovables have not been complied with. But a will though not executed so as to pass real estate, may be read for the purpose of discovering in it an implied condition respecting real estate, annexed to a gift of personal property, and thus in Brodie v. Barry,(a) a Scotch heir-at-law who was entitled to personal property under a will made in English form, was put to his election. Exactly the reverse case occurred in Dundas v. Dundas, (b) where the heir-at-law of real estate in England, which the testator had attempted to devise by a will in Scotch form, imperfect to carry out the intention, was put to his approbate or reprobate of the will as it stood. Where the heir-at-law, in such a case, elects to take by inheritance in opposition to the will, it has been already shown that no personal equity attaches to him, by which the foreign realty can be affected by the law of the English Court as to marshalling in favour of the legatees,(c) the mere fact Equities that he is before the Court as a party to the suit not warranting or devisee. affecting heir any interference as to the foreign real estate, with the lex loci rei sita. Such an equity results, however, from the expressed intention of the testator, according to the interpretation of his will by the domiciliary law, (d) and therefore though the English will of a domiciled Englishman may not be available to devise Scotch land, yet the heir to whom it would go on intestacy cannot share in other benefits under the will, if he Foreign heir defeat the intention of the testator as to the land by taking to his elecadvantage of the invalidity of the will to pass it to the tion. devisee. In such a case, therefore, he is put to his election; but the intention of the testator to pass the foreign land by his will must clearly appear, and it has been held that general expressions will not, as a rule, be sufficient to show that (b) 2 Dow & Cl. 349. (c) Harrison v. Harrison, L. R. 8 Ch. 342; ante, p. 189. (d) Maxwell v. Maxwell, L. R. 4 H. L. 501. (a) 2 Ves. & B. 127. -when put |