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Page 232. line 25., for "remembrances,” read "incumbrances."
364. line 1., for "Sir James Stewart," read "Sir John Nisbet."
384. note (o), for "Ovory," read "Ivory."

The case of Doe on the demise of Birtwhistle v. Vardill
(noticed p. 86.) has again attracted the attention, which is due to its
importance, as a question of international law. On the 2d of
September, 1835, the House of Lords, on the motion of Lord
Brougham, ordered the cause "to be further argued before the
Judges in the next Session.”

A TREATISE

ON THE

LAW OF PERSONAL SUCCESSION.

INTRODUCTION.

THERE is no branch of the law of more general interest, than that which relates to the right of Succession in moveable, or personal estate. In modern times, this species of property has attained to a degree of importance which was formerly unknown, by reason of the vast increase of the public securities of the nation, and of its agriculture, commerce, and manufactures.

It is now the general rule, in every part of the realm (a), that the law of that part of the kingdom in which the person dying possessed of personal estate had his residence, or legal domicil, at the time of his death, shall regulate the right of succession to such personal estate. This rule, in regard to the domicil, was not assented to or fixed in Scotland without much inquiry, and many conflicting decisions, in the courts of law of that country.

The other rules of the law of succession in personal

(a) It will be seen in the sequel, that an exception must be made in regard to the succession of a freeman of London, under the custom of that city.

B

estate differ widely in the several parts of the kingdom, in England and in Scotland; and there is this peculiarity in regard to this branch of the law, that, by a permanent change of residence, a person may effect the greatest alterations upon the rights of himself, and of those who are most nearly connected with him. In this respect, the conflicting rules in the law of succession in personal estate are more inconvenient, than those relating to the succession in real estate. While, in regard to the former, the rules of law are subject to the most important alterations as the owner changes his domicil; it has never been matter of dispute that, in regard to the latter, they remain fixed and permanent, and attached to the property.

A very considerable period has elapsed since two distinguished writers on the law of Scotland, Sir John Nisbet of Dirleton and Sir James Stewart, had pointed out what appeared to them to be defects in this branch of the law, and the expediency that then existed of effecting changes upon it in some important particulars. But in after times this expediency of a change ceased to attract the attention which the subject merited. (b)

In England many important alterations have been made upon the law of succession in personal estate in modern times; but in Scotland the law remains now nearly as it has stood from an early period, while the circumstances of the country have changed very materially, augmenting in

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(b) Under the title, " If a mother and her friends may succeed," Sir John Nisbet asks (Direleton's Doubts, p. 129.), "If in no case cognati on the mother's side can succeed?" and he answers, "It is thought "that they ought to succeed." "But in this our custom is lame, "and opus est vel constitutione vel decisione.” Sir James Stewart, in his Answers to Dirleton's Doubts (p. 210.), assents to the view taken by Dirleton of the lameness of the custom, and adds, "eget constitutione,” probably being of opinion that no judicial decision could remedy what he considered to be defective.

a high degree the inconveniences which existed in the times of Dirleton and Stewart.

There is still much of anomaly, and much requiring consideration, in the law of succession in England, particularly in regard to the local customs still obtaining in that country. But some of the alterations which have been made in the law of succession in England have now stood the test of long experience; and it is worthy of consideration whether similar alterations, to some extent at least, may not be introduced into the law of Scotland with great benefit to the public.

In recent times, the intercourse between the different parts of the kingdom has become much more frequent than it was even at no distant period. This is increasing rapidly, as new facilities of every kind arise for promoting it. The changes of domicil must thus become more frequent every year.

Already it has become ambiguous in what part of the realm some of the principal families of the kingdom, possessing estates and places of residence in England, in Scotland, and in Ireland, have their fixed or legal domicils; and it is in the necessary course of events that this ambiguity should, in process of time, be more generally extended.

It is the object of the present Treatise, to bring into one view the various and conflicting rules which affect the succession of this species of property in the different parts of the United Kingdom. The right understanding of these may tend to bring about such changes, connected with this subject, as may remove many inconveniences arising, and likely to increase, from the state of the law as it now exists. (c)

(c) In giving judgment in the case of Somerville (to be afterwards noticed), Sir R. P. Arden, Master of the Rolls, remarking the incon

In prosecuting the present inquiry, it is proposed to examine into the state of the ancient law of succession in personal estate in England and in Scotland; to show the changes which have been introduced in these countries into this branch of the law by statute, by lapse of time, or by other causes; to trace downwards the cases which have arisen from the conflicting rules in regard to the succession in personal estate, and which have been the subject of discussion and decision in the courts of law in both countries (d); and to conclude with a statement and review of the parallel rules, in the law of personal succession, which now exist in the different parts of the United Kingdom.

It gives an additional interest and importance to this subject, that many of the questions which have occurred, and which are afterwards noticed, belong rather to the law of nations than to the municipal law of either country.

veniences which resulted from the then state of the law, in questions of international succession, expressed his hope, that the legislature would interpose to assimilate the laws of the two countries. This was upwards of thirty years ago, and nothing has yet been done upon this subject.

(d) Succession is the word used by the writers on the civil law, and on the law of Scotland, when treating of this subject; it is used in a narrower sense by Blackstone (2 Com. 430.), and is applied to the succession of corporations only. In the present treatise, it is applied not only to succession under a will, or disposition to take effect post mortem, but to succession ab intestato.

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