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and in conferring the office in Doctors Commons, the civilians there will not give themselves the trouble to inquire what the law of Scotland is with regard to succession."
It is obvious that the matters alluded to in these two cases are very different; the first related to succession, the other to the right of obtaining administration, points in themselves totally distinct, but confused in the statement here given. There appears never to have been any doubt in either country, in recent times, that a right of administration, or confirmation, was to be treated of, and discussed, in the courts of the lex loci rei sitæ. It seems likely, from the confusion of these two different subjects, that the opinion of Sir Dudley Ryder had related rather to a question of administration, than to one of succession. He must have been conversant with the cases which had been decided by Lord Hardwicke upon this subject so recently before; and he could scarcely have given an opinion contrary to the law so clearly laid down in those cases.
But whatever the opinion of Sir Dudley Ryder may have been, it must be admitted that there was some degree of supineness in taking a matter of this importance for granted upon so slender an authority, when the point, as will appear afterwards, had been repeatedly considered and decided in the English courts. If the cases of Pipon, and of Thorne and Watkins (to be immediately mentioned) had been then distinctly known, a great deal of litigation would probably have been prevented in Scotland, in regard to the cases in that country; as well those noticed above, as those to be afterwards stated.
OF THE CASES UPON INTERNATIONAL SUCCESSION DECIDED IN
THE ENGLISH COURTS BEFORE THE TIME OF THE CASE OF
BRUCE V. BRUCE.
As far as has been seen, it is only in modern times, that questions of international succession have attracted attention in England.
The earliest case that appears to have occurred connected with this branch of the law, was one relating to a conflicting rule of succession in the customs of the city of London and of the province of York. This was the case of Cholmley v. Cholmley (1688.) (a) The custom of London was held to prevail over the custom of the province of York. A freeman of London died within the province of York, leaving a widow, and issue, two sons and a daughter. An estate of the father of about 50l. a year, within the province of York, descended to the elder son; and if the custom of the province of York should prevail, he would thereby have been excluded from having any share of the personalty, which was of the value of about 20,0001. A bill was filed in the Court of Chancery, for the direction of the Court how and in what manner the personal estate should be disposed of; and the Court was of opinion, that the deceased being a freeman of London, the custom of the city for the distribution of the personalty should prevail, and control the custom of the province of York; and that, notwithstanding the custom of the province to the contrary, the heir should come in for
(a) 2 Vern. 47. 82.
a share of the personal estate ; “for that the custom of the province was only local, and circumscribed to a certain place, but that the custom of London followed the person, though never so remote from the city.” (6)
It does not distinctly appear in this case whether the deceased had fixed his domicil in the province of York or not; this point does not seem to have then attracted attention. From the words of the report, it might be inferred, that it was understood that the custom of York had merely operation in regard to effects and estates within the province. It is not unlikely that the doctrine, that personal estate had no locality or situs, was not brought forward in that case.
Another case occurred upon a similar question, Webb v. Webb and others, Mich. 1689. (c) The custom of London was held to prevail over the law of the domicil. John Webb, late the husband of the plaintiff Elizabeth Webb, being a freeman of London, but having left town, and living many years at Winchester, in June 1684 made his will, and thereby devised a chattel lease to Nicholas Webb, and all his books to John Webb; and as to all the residue of his estate, he gave the yearly profits and benefits thereof to his wife for life by quarterly payments; and he directed his executors to pay his wife's funeral charges after her death, and gave her the use of his plate, &c. during her life, and directed that his stock and estate in the hands of one Cranmer should remain there during his wife's life, and the product be paid to her for her maintenance; and he gave several particular legacies; and, after the death of
(6) In the case of Somerville, to be afterwards noticed, it appears that a search had been made for cases arising out of the conflicting rules of decision in the province of York and city of London, and that this case of Cholmley was the only case which had been found.
(c) 2 Vern. 110.
his wife, he gave the residue and surplus of his estate to his brother, Nicholas Webb; and he made John Webb, William Cranmer, and others his executors. The testator died, leaving a widow, but no children.
The widow filed a bill in the Court of Chancery against the executors, claiming her customary rights as the widow of a freeman of London. The cause was first heard before the Master of the Rolls; and it was decreed that the plaintiff should have her widow's chamber, and one entire moiety of the personal estate, after debts paid, as well of the lease and books, which were specifically bequeathed, as of the rest and residue of the estate, by the custom of the city of London; and should have the benefit of the other moiety for life by the will; and an account was decreed accordingly. This decree was confirmed upon an appeal to the Lords Commissioners. (d)
In this cause a question was made, whether the legatees of the lease and books (a moiety of their legacies being taken by the widow by the custom of London) should have satisfaction made to them for what was evicted from them, against the legatees at large, or against the legatee of the residue. It was adjudged that they should not; for though the legatee of a specific legacy has a preference, and is not to abate in proportion with other legatees, when the estate falls short, as to the payment of debts, yet in any case he cannot have more than what the testator devised to him ; and, as in this case the testator could only devise one moiety, nothing more passed by his will; and therefore the specific legatees must be contented with a moiety.
The case is also important, as showing that the custom of London in regard to the personal estate of a freeman
(d) This case was before the statute allowing freemen of London to give their whole estate by will; it shows the rule before that time.
prevailed over the law of the domicil. Though, since the statute 11 Geo. I. c. 18., this case could not occur upon the will of a freeman of London, which would be effectual against all claims of a widow or children; yet, in a case of intestacy, according to this case (e), and the preceding case of Cholmley v. Cholmley, the law of the domicil would yield to that of the custom. (f)
(e) When inquiry was made in the case of Somerville as to conflicting cases between the customs of London and York and the law in other places, this case does not appear to have been known.
(f) A case has recently occurred, showing, in a striking way, that the custom of London not only controls the law of the domicil, but that it does so, where the freedom was merely of an honorary nature. That was the case of Onslow v. Onslow before the Vice-Chancellor (1 Sim. 18.), 1826. In that case it appeared, that on the occasion of Lord Rodney's victory in 1782, Sir Francis Samuel Drake, being an admiral of the Royal Navy, was presented with the freedom of the city of London, and in 1784 was made a liveryman of the Grocers' Company, and took the oaths. In his marriage settlement of personal property on the wife this was expressed to be in lieu of all dower and thirds, or other portion at common law, or otherwise, which the wife might claim out of the freehold or copyhold lands, hereditaments, and premises of the husband.
Sir Francis Samuel Drake having died intestate, and without issue, his widow afterwards intermarried with Mr. Serjeant Onslow, and died in 1822. After her death, Mr. Serjeant Onslow having claimed that the widow of Admiral Drake, as the widow of a freeman of London, should take one half of the personal estate by the custom, and the half of the residue by the statute, a bill was filed in the Court of Chancery by the surviving trustee in the marriage settlement of Sir Francis Samuel and Lady Drake against Mr. Serjeant Onslow, and the personal representative of Sir Francis Samuel Drake, for having those questions decided.
The Lord Mayor and Aldermen, by the mouth of their Recorder, certified to the Vice-Chancellor that the deceased was a freeman of the city in the sense, meaning, and operation of the custom of the city, relating to the distribution of the effects of freemen who die intestate, and that the widow was not barred of her customary share by the clause in the marriage settlement; and the Vice-Chancellor decided accordingly,