PROPERTY. CAP. VII. domicilii is concerned; and for the purpose of determining PART II. the succession to movable estate, Lord Selborne has said that recourse must be had, not always or necessarily to the Courts, but always and necessarily to the law of the domicil."(a) And where the title has been adjudicated upon by the Courts of the domicil, such adjudication is binding upon, and must be followed by, the Courts of this country.(b) But so far as the legitimacy of next of kin is concerned, it has been already more than once stated that English law refers the question of legitimacy, both in cases of testacy and intestacy, to the law of the domicil of the next of kin concerned. Thus, in cases under the Statute of Distributions, the legitimacy of a child claiming as next of kin is decided by the law of his domicil-i.e., the law of his father's domicil at his birth.(c) And in cases of legitimisation per subsequens matrimonium, it has been held that the legitimisation must be recognised, not only by the law of the father's domicil at the time of birth, but by the law of the father's domicil at the time of the subsequent marriage.(d) Where the estate in England was that of a bastard, intestate without heirs, of Austrian domicil and nationality, it was held that there was no succession, and that the English Crown took as bona vacantia.(e) It follows, from the rule just stated, that the succession duties payable in such cases are calculated on the assumption that the beneficiaries are legitimate by English law if they are legitimate by the law of their own domicil,(f) though in the case cited the question arose under a will, and moreover at that time the law of the testator's domicil was erroneously regarded as the governing law in such cases. The domicil of the testator and of the legatees happened in Skottowe v. Young to be the same. Under the old view of the law applicable to such cases it had been held that the law of the domicil will prevail as to what is sufficient to constitute kinship; so that where the intestate died domiciled in England, leaving debts and choses in action recoverable in Scotland, the English (a) In Ewing v. Orr-Ewing, 10 App. Cas. 453, 502. (b) Per Stirling, J., in In re Trufort, 36 Ch. D. 600, 611. (c) Re Goodman's Trusts, 17 Ch. D. 266; overruling Boyes v. Bedale, 1 H. & M. 798. See ante, pp. 278, 279, and cf. chap. iv. (d) Re Grove, Vaucher v. Treasury, 40 Ch. D. 216. (e) Barnett's Trusts (1902), 1 Ch. 847. (f) Skottowe v. Young, 11 Eq. 474. See this case commented on in Goodman's Trusts, 17 Ch. D. 266; and cf. Wallace v. Attorney-General, L. R. 1 Ch. 1, 8. Morables- PART II. PROPERTY. CAP. VII. Succession. rule as to kindred by half blood, and not the Scotch, was followed.(a) The distinction between cases of distribution on intestacy, Morables which are to be governed by the law of the intestate's domicil, and those in which the real question is how far the operation of the lex situs on his real property shall prevail, is well seen in two cases cited by Sir W. Grant in Brodie v. Barry.(b) In the first the intestate's domicil was English, and it was accordingly held that the next of kin took his personalty by English law, so that the Scotch heir was not obliged to bring the Scotch realty into hotchpot, in order to claim his share, as the Scotch law would have compelled him to do.(e) In the other case, where the domicil was also English, it was held that the personalty was not liable to be called upon to exonerate Scotch real estate from debts to which it alone was liable by Scotch law, although the English law would have imposed such a burden upon English land.(d) Obviously this decision does. not touch the claim of the lex domicilii to govern all questions that affect the personalty only, and, in accordance with this general principle, it was held in Hog v. Lashley (e) that a Scotch testator could not exclude his children from the legitim or share in his personalty given to them by the Scotch law, though the property was situate in England. In Ommaney v. Bingham (f) it was decided that the law of the testator's domicil determined whether or not a condition in restraint of marriage with a bequest over was void. These two last cases properly come under the head of succession to personal property by will; but the principles regulating the two branches of the subject are almost identical, and they are virtually authorities for the general principle, that the rights and liabilities of those entitled to succeed to the movable personalty of a deceased person are governed by the law of his domicil. The duties of executors and administrators will be considered immediately. Title of foreign ex (b) Right and Title of the Personal Representative.—Closely ecutor or ad- connected with the subject of succession to personal chattels ministrator. either by will or ab intestato, come the principles by which these personal chattels are collected and made available for the purposes of succession, after clearing the estate of the deceased from all burdens and claims. In cases where all the (b) 2 Ves. & B. 131. (a) Thorne v. Watkins, 2 Ves. Sen. 35. PART II. PROPERTY. personal chattels of the deceased are in one country, and that country the country of his domicil, no difficulty arises; and the personal representative who is appointed by the domiciliary CAP. VII. Court either to execute the will or to administer the estate, as Morables— the case may be, takes possession of all the estate of the Succession. deceased by the authority of the Court which appointed him, and deals with it in accordance with the law which that Court enforces. But in many cases it happens that the personal estate of the deceased is not situate in the country of his domicil, or not wholly so situate; and it is plain, first, that some other authority than that of the Court of the domicil is necessary to enable any representative of the deceased to take possession of it; and secondly, that there will be in many cases a conflict of law as to the principles by which he should be guided in dealing with it. administra torial effect. The first general principle which can be laid down on the Grant of subject is that a foreign grant of probate or letters of administra- probate or tion is intra-territorial only in its operation, and that the title tion-no so conferred extends only as of right to personal estate within extra-territhe jurisdiction of the Government which granted it.(a) Consequently, to entitle the personal representative of a man who has died abroad to take possession of personal estate here, he must prove the will or take out letters of administration here. as well as in the country of the domicil.(b) This rule extends to choses in action, it being an established rule (c) that, in order to sue in any court of this country in respect of the personal rights or property of a deceased person, the plaintiff must appear to have obtained probate or letters of administration in the Court of Probate of this country. But as between the administrator in the forum of the domicil, and local or limited Foreign readministrators elsewhere, it has been held that the former is presentative the person to receive any surplus or balance of the estate in to sue. the hands of the limited administrators.(d) Thus, where a company is being wound up in an English court no personal representative of a creditor can establish his debt without an English probate or letters of administration, though the (a) Story, § 512. (b) Lee v. Moore, Palm. 163; Tourton v. Flower, 3 P. Wms. 369; Vauthienen v. Vauthienen, Fitzgib. 204; Le Briton v. Le Quesne, 2 Cas. temp. Lee, 261 ; AttorneyGeneral v. Bouwens, 4 M. & W. 193. (c) Williams on Executors. i. 362; In re Vallance, 24 Ch. D. 177; AttorneyGeneral v. Bouwens, 4 M. & W. 193; Tyler v. Bell, 2 My. & Cr. 89; AttorneyGeneral v. Cockerell, I Price, 179; Whyte v. Rose, 3 Q. B. 507; Enohin v. Wylie, 10 H. L. C. 19; Macmahon v. Rawlings, 16 Sim. 429; Carter v. Crofts, Godb. 33. (d) Eames v. Hacon, 16 Ch. D. 407; S. C. on appeal, 18 Ch. D. 347; Enohin v. Wylie, 10 H. L. C. 1; De la Viesca v. Lubbock, 10 Sim. 679. --no right PART II. PROPERTY. CAP. VII. Morables Succession. deceased creditor was domiciled abroad.(a) Even a stop-order cannot be obtained without complying with this requisite.(b) But an English grant of probate or administration properly obtained here is by the English Courts regarded as extending to all the personal property of the deceased, wherever situate at the time of his death,(c) at least in such a sense that a representative duly constituted in England may sue in England in relation to foreign assets; and in a case before Sir F. Nicholl, (d) where a domiciled Englishman died in France, leaving two testamentary papers relating to personalty there, and the first of them also to personalty and realty in England, his widow was granted administration with both papers annexed, though a doubt was expressed whether and in what sense such administration extended to the French property. This case was followed by Sir C. Cresswell in In the Goods of Winter,(e) but the true rule on the point, as has been already stated, was laid down in the later cases cited above; (f) and now it may be taken that a will disposing solely of property situate abroad will not be admitted to probate here unless it is incorporated by reference in another will entitled to probate here as disposing of property within the jurisdiction; though a mere mention in the English will of an intention to ratify and confirm the other will be sufficient. To support a right of action, however, a grant of representation or probate in England is only necessary where the plaintiff is suing quà personal representative, in the right of the deceased.(g) Thus, where a foreign administrator has already obtained a judgment abroad against an English debtor of his intestate, he may prove in England against the estate of that debtor, if since dead, without taking out English administration to his own intestate.(h) And in Foreign grant granting probate to the executor of a person who has died of probate followed by domiciled abroad, it is the duty of the Court of Probate, in English accordance with the comity of nations, to follow the grant (if Court. any) made by the competent Court of the domicil.(2) In (a) Partington v. Attorney-General, L. R. 4 H. L. 100. (b) Christian v. Devereux, 12 Sim. 264. But probate granted by the Supreme Court at Hong Kong, which by imperial statute has all such jurisdiction as for the time being belongs to the Court of Probate in England, has been admitted in an English court: In re Tootal's Trusts, 23 Ch. D. 536. (c) Whyte v. Rose, 3 Q. B. 498, 507; Scarth v. Bishop of London, 1 Hagg. Eccl. 625. (d) Spratt v. Harris, 4 Hagg. Eccl. 405, 409. (e) 30 L. J. P. & M. 56. (f) In the Goods of Lord Howden, 43 L. J. P. & M. 27; In the Goods of Coode, L. R. I P. & D. 449; In the Goods of Harris, L. R. 2 P. & D. 83; 39 L. J. P. & M. 48; In the Goods of De la Saussaye, L. R. 3 P. & D. 43 ; 42 L. J. P. & M. 47. (g) Vauquelin v. Bouard, 15 C. B. N. S. 341. (h) Macnichol v. Macnichol, L. R. 19 Eq. 81. (i) Enohin v. Wylie, 10 H. L. C. 1, 14; ante, p. 193. PART II. Morables accordance with this principle, it has been the practice, upon the production of an exemplified or certified copy of the probate PROPERTY. granted by the proper Court of the domicil, for the English CAP. VII. Court to make its own grant of probate to the executor who proved there. (a) But where the Court of the domicil appears Succession. to have decreed probate, not of the original will, but of a translation of it, the English Court will not require production of the original will, but only of an English translation of the document admitted to probate abroad.(b) And the doubt expressed as to the expediency of the practice by Sir J. Nicholl in Larpent v. Sindry and In the Goods of Read (c) must now be regarded as set at rest by the judgments of Lord Westbury and Lord Cranworth in Enohin v. Wylie. So where the Court of the domicil has decreed that the time limited by its law for the execution of the executorship has passed, and that the executor has no more right to intermeddle in the estate of the testator as against the persons beneficially interested, the Court held itself bound by such decree, and refused to grant probate as to English personality to such executor.(d) Similarly, in granting ancillary administration, the Court will follow a grant Foreign grant already made in the court of the domicil, and in granting tion-how far original administration will guide itself by the law of that followed. court.(e) And administration with the will annexed has been granted to the attorneys in England for the AdministratorGeneral of a British colony, upon whom by the law of that colony had devolved the representation of a testator there domiciled.(f) But in In the Goods of Cosnaham(g) Lord Penzance said that the Court would not follow a foreign grant so as to treat the claimant as executor to the tenor of a will, where he did not appear to it to be entitled to such a grant, but admitted that the foreign grant should be followed so far as to treat the deed as testamentary, and eventually granted the claimant administration with the will annexed under the discretionary power given by 20 & 21 Vict. c. 77, s. 73. In a later case the same judge used language not quite consistent with this decision, saying, "I have before acted on the general principle that where the Court of the country of the domicil (a) In the Goods of Clarke, 36 L. J. P. & M. 72; Larpent v. Sindry, 1 Hagg. 382; In the Goods of Cringan, 1 Hagg. 549; In the Goods of Rioboo, 2 Add. 461; Viesca v. D'Aramburn, 2 Curt. 277; In the Goods of Henderson, 2 Robert. 144; In the Goods of Smith, 2 Robert. 332. (b) In the Goods of Rule, 4 P. D. 76. (c) 1 Hagg. 474. (d) Laneurille v. Anderson, 2 Sw. & Tr. 24; see Crispin v. Doglioni, 3 Sw. & Tr. 96; S. C. L. R. 3 H. L. 301. (e) Williams on Executors, i. 430; Enohin v. Wylie, 10 H. L. C. 1, and cases cited in note (a), supra. (f) In the Goods of Black, 13 P. D. 5. (9) L. R. 1 P. & D. 183. of administra |