PROPERTY. Succession to PART II. intention.() General words of intention will be intended to apply to such property only as would by its nature pass by CAP. VI. the will, and to the uses therein expressed.(b) Or, as Lord Cranworth expressed it in a more modern case,(c) the desigImmorables. nation of the subject intended to be affected by the instrument in general words imports prima furie that property only upon which the instrument is capable of operating. To affect foreign land indirectly by a will not executed according to the ler situs, by putting the heir to his election, the foreign property must be either specifically devised, as in Brodie v. Barry,(d) or there must be at any rate words from which the intention to act on it can be unequivocally gathered. These principles have been fully recognised in the later cases, an heir of foreign immovables being put to his election by a will not in itself operating upon them, only where there was a personal equity affecting him with reference to them, arising from the expressed intention of the testator or in any other manner. Thus, in Devar v. Maitland,(e) a will devised lands in England to the testator's son and heir for life, remainder to trustees, and also lands in St. Kitts to the same trustees upon trust to sell and invest the proceeds in lands in England, to hold on the same trusts. The will was executed according to the English law only, and did not operate so as to pass the land in St. Kitts, but the heir-at-law having received the rents of the St. Kitts estates during his life, his infant heir was held bound by such election after his death, so as to be debarred from setting up his title as heir of the lands in question against the title of the trustees, who had contracted to sell the property to a stranger. So in Orrell v. Orrell, (f) where a testator devised all the residue of my real estate situate in any part of the United Kingdom or elsewhere," having real estate in Scotland as well as England, the heir-at-law taking the Scotch lands was put to his election, it being held that the testator had sufficiently indicated his intention to dispose of his real estate in Scotland as far as he was able to do so; notwithstanding the general rule that without clear evidence of intention, a testator will be supposed only to be dealing with what he can dispose of by the instrument whose construction is in question. Except, however, so far as it is affected by such a personal equity as that involved in the (a) Johnson v. Telfourd, 1 Russ. & My. 254; Allen v. Anderson, 5 Hare, 163. (b) Per Sir J. Leach in Johnson v. Telfourd. (d) 2 Ves. & B. 131. (f) L. R. 6 Ch. 302. PART II. CAP. VI. doctrine of election, a will of foreign realty must comply strictly with the lex loci rei site, and with that law alone; and PROPERTY. it was decided long ago (a) that the English Court of Chancery would not direct an issue to try the validity of a will of Succession to lands in one of the colonies, which have distinct local laws Immorables. of their own. And it has been decided that the provisions of 20 & 21 Vict. c. 77, which authorise the citing of the heir-at-law or persons interested in the real estate, when contentious proceedings arise as to the validity of a will, and by which the probate of a will granted after such litigation is to enure to the benefit of all persons interested in the real estate affected by the will, are not applicable to wills which in whole or in part have not been executed in accordance with the Wills Act (1 Vict. c. 26).(b) These statutory provisions cannot be employed, therefore, when the testator was not domiciled in England, and his will was executed so as only to satisfy the requirements of the law of his domicil, in order to bind indirectly immovable property in England by a will not executed in accordance with the ler situs. The construction, however, of wills is in all cases a matter for the law of the domicil alone, even when the destination of immovables situate in some country other than that of the domicil is Will of imaffected by it.(c) movablesmeaning of "child" in devise. It will be seen below, when the succession to movables under the word a will or intestacy is considered (chap. vii.), that the legitimacy of a child depends for the purposes of such succession upon the law of its domicil at birth,() that is, of the father's domicil at that time.(e) The same rule has recently been applied by Stirling, J., to a devise of foreign immovables by a testator domiciled in England, to the children of his son.(ƒ) The argument against such a construction of the word "child" is, of course, based upon the principle of Birtwhistle v. Vardill, and the best collection of authorities which can be cited in support of it will be found in the (dissenting) judgment of Lush, L.J., in Goodman's Trusts,(g) which is a storehouse of learning on the subject. On the other side, the language of (a) Pike v. Hoare, 2 Ed. 182. (b) Campbell v. Lucy, L. R. 2 P. & D. 209. (c) Trotter v. Trotter, 4 Bligh, N. S. 502; S. C. 3 Wils. & S. 407; Enohin v. Wylie, 10 H. L. C. I. (d) Re Goodman's Trusts, 17 Ch. D. 266; 50 L. J. Ch. 425 (overruling Boyes v. Bedale, 1 H. & M. 798). Andros v. Andros, 24 Ch. D. 637. (e) In cases of legitimisation per subsequens matrimonium, the child must be legitimate by the law of the father's domicil, not only at the time of the birth, but at the time of the subsequent marriage: Re Groce, Vaucher v. Treasury, 40 Ch.D. p. 216; ante, p. 90. (f) In re Grey (1892), 3 Ch. 88. (g) In which Cotton and James, L.J.J., overruled (Lush L.J. dissentiente) the judgment of Jessel, M.R. Succession to .. PART II. James, L.J., in Goodman's Trusts (supra) speaks in no uncertain PROPERTY. Words. "There is, of course, no doubt as to what the English CAP. VI. law as to an English child is. . . . But the question is, What is the rule which the English law adopts and applies to a nonImmorables. English child? This is a question of international comity and international law. According to that law as recognised, and that comity as practised in all other civilised communities, the status of a person, his legitimacy or illegitimacy, is to be determined everywhere by the law of the country of his origin -the law under which he was born. It appears to me that it would require a great force of argument derived from legal principles, or great weight of authority, clear and distinct, to justify us in holding that our comity stands in this respect aloof in barbarous insularity from the rest of the civilised world." Legitimacy of devisée may perhaps be referred to lex domicilii. It must be remembered, in considering this question, that until the decision of the Court of Appeal in the case last cited (1880), the principle of applying the law of the domicil of the successor to decide his legitimacy was not recognised at all, even with respect to movables; and Story's statement of the English law on this point must be read as the expression only of the earlier English cases on the subject.(a) It is now, however, clear that both with regard to testacy and intestacy, the legitimacy of the successor to movables depends upon his personal law. It is submitted that there is no reason why the same test should not be applied in the case of a devise of English land. There may at first sight appear something inconsistent in applying the lex situs to a case of inheriting land as heir, and the lex domicilii when the question is of the legitimacy of a devisee, but the cases are really different in principle. In the case of heirship, the question is what sort of heir the lex situs demands. In the case of a devisee "to the children of A.," the question is what sort of children the testator intended. "Heirship is an incident of land, depending on local law, the law of the country, the county, the manor, and even of the particular property itself, the forma doni. Kinship is an incident incident of the person, and universal." (b) Legitimacy is an incident of kinship, and was, in fact, the very incident of kinship of which James, L.J., was speaking in the words quoted. So far as the English Courts are concerned, it has been already pointed out that both for devises of realty, and bequests (a) Story, Conf. § 479 h.; Enohin v. Wylie, 10 H. L. Cas. I; Boyes v. Bedale, 1 H. & M. 798. (b) From judgment of James, L.J., in Goodman's Trusts, suprà. of personalty, the law of the domicil of the legatee is now preferred.(a) The view taken may be put shortly thus. "Child" or "son" in an English will means of course legitimate child” or "legitimate son." But the legitimacy of a man's children is a question of status, not of the construction of a will; and the legitimacy of a child is determined by the law of the domicil of his father. A devise of English land "to the heir of A." would of course be a very different thing; and could hardly be construed otherwise than as a devise to that person, who was regarded as the heir by the law of the situs. The rule that the formalities of a will of immovables, including chattels real,(b) must be decided by the lex situs, does not appear to affect the question. SUMMARY. (iv.) SUCCESSION TO IMMOVABLE PROPERTY BY WILL. PART II. PROPERTY. CAP. VI. The lex situs decides the capacity of the testator to devise p. 216. immovable estate (see, however, the qualification of the rule just stated as to the capacity to transfer inter vivos), the formalities of the testamentary instrument, and its operation upon the land which it affects to devise. But where a testator intends and attempts to devise immov- p. 217. able estate by a will not effectual to do so by the lex situs, the heir of the immovable estate will not be permitted to take a bequest of movable personal estate under the will, and to defeat the same will as to the land. In such a case, he will be put to his election whether he will accept the will for all purposes or for none. The liability of his foreign immovable estate to the personal pp. 208, 217. debts of the testator depends upon the lex situs alone, where no intention on the part of the testator to interfere with that law appears; and the law of his domicil cannot impose any burden upon such foreign immovable estate from which by its own law it is exempt. The intention of the testator to devise or burden foreign p. 217. land by a will insufficient by the lex situs to do so, must, in order to impose a personal equity on the heir, be unequivocally expressed. General words, which might be satisfied by a different interpretation, will not be construed as evidence of such an intention. The construction of wills, even when foreign land may be p. 219. (a) In re Grey (1892), 3 Ch. 88. Andros v. Andros, 24 Ch. D. 637. (b) Pepin v. Bruyere (1900), 2 Ch. 504 ; De Fogassieras v. Duport, 11 L. R. Tr. 123. PART II. indirectly affected by it, is for the law of the testator's domicil PROPERTY. CAP. VI. pp. 219. 220. Inheritance of immovables. alone. The meaning of the word "child" in a devise of foreign land is determined by the le domicilii of the child, not of the testator. In other words, the legitimacy of a devisee of land is decided by his personal law, not by the lee situs. Hitherto the transfer of immovable property in accordance with the wish of its owner, expressed either in a conveyance inter vivos, or by a testamentary disposition, has been spoken of. Land, however, changes owners under certain circumstances without any expressed intention on the part of the owner, by the mere operation of law. It will be necessary to consider what law operates, and how far it excludes all others, in the alienation of land either (v.) by succession on intestacy, or (vi.) by assignment on bankruptcy, or (vii.) by operation of marriage. (v.) Succession to Immorable Property on Intestacy. It has already been stated, in treating of the question of legitimacy, that the English law requires an heir to English land to be legitimate by the law of the situs as well as by that of his domicil.(a) Not only is this question to be decided by the former law, but the destination of the property is determined in all other respects by it.(b) The question in Birtwhistle v. Vardill, before which decision the law on this point can hardly be regarded as settled, was whether a child born in Scotland, of parents domiciled there, before their marriage, being Legitimacy admittedly legitimate by the law of Scotland, was legitimate of inheritors. for the purpose of taking English lands by inheritance; and after two arguments before the House of Lords, it was solemnly decided that he was not, since an heir must be, in Lord Coke's words, "ex justis nuptiis procreatus; nam heres legitimus est quem nuptiæ demonstrant." It has been already pointed out that this decision was arrived at in opposition to the opinion of Lord Brougham, and that it is in conflict with the view taken on the question of legitimacy by the jurists of almost all other nations; but the general rule, that the succession to real estate is governed in all respects by the lex loci rei sita, is established by it for all practical purposes. In the words of Wheaton (Elements of International Law, § 80), the "law of the place where real property is situate governs exclusively as to the (a) Doe d. Birtwhistle v. Vardill, 7 Cl. & F. 895; and see suprà, p. 89. On the question whether this special legitimacy is required for succession to chattels real, see note to this chapter, pp. 232-237. (b) Jarman on Wills, p. 2. |