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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." (b)

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

(b) 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.

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. (ƒ)

(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 accord

In the case of Pipon v. Pipon, Trin. 1744 (g), a bond debt due in London to a resident in Jersey was, upon his death intestate, distributable by the law of Jersey. Pipon the intestate was resident in Jersey, and died there. At the time of his death a bond debt of 500l. was due to him in London. A question occurred in regard to this bond debt. The representatives of certain deceased sisters of the intestate filed a bill in the Court of Chancery against the surviving sisters of the intestate for a distribution of this 500l. bond, which was due in London, according to the statute of distributions. The defendants, the surviving sisters, according to the laws of Jersey, were personal representatives of the deceased, to the exclusion of the plaintiffs, the representatives of the deceased sisters. There were separate administrations in the province of Canterbury, and in Jersey; and the question was, whether this 5007. bond should be distributable according to the law of England, it being found within the province of Canterbury; or whether it should be distributed according to the laws of Jersey, where the intestate resided at the time of his death. Lord Hardwicke said, on deciding this cause," I should be unwilling to go into the general question, for it is very extensive. This is merely the case of a debt. The question then is, whether the plaintiffs, as next of kin, have a right to call for an account of this part of the residue only; and I think there is not sufficient ground for it. If I was to go into the general question, the personal estate follows the person, and becomes distributable according to the law or custom of the place where the intestate lived. As to the usage of taking out administration, that is only to give the party power to sue within such a jurisdiction, and does not any way deter

(g) Ambler, p. 25.

mine the equitable right which the party has to the effects. This argument holds the same as to foreign countries, in relation to this question. Though Jersey is under the king's dominion as part of his duchy of Normandy, yet it is governed by its own laws; and if the question was to be determined now, I think the locality could not prevail, for it would be extremely mischievous, and would affect our commerce. No foreigner could deal in our funds, but at the peril of his effects going according to our laws, and not those of his own country. The words of the statute are very particular, viz. the residue undisposed of is to be distributed, &c.; so that the plaintiffs are wrong in coming into this court for an account of only part, for by the statute an account must be decreed of the whole, and the general administration is not before the Court. If I was to direct an account of the whole, the courts in Jersey would act contrary, which would be to involve the people in great difficulties. This case differs from where a specific part consists of chattels here in England - Bill dismissed with costs."

In the case of Thorne v. Watkins, 30th October 1750, a similar decision was pronounced by Lord Hardwicke, in the case of a Scotch personal succession, which was held to be regulated by an English domicil. (h)

Richard Watkins, who resided in Scotland, died there, and left the residue of his personal estate by his will among his nephews and nieces. William Watkins, one of these nephews, residing in England, died in that country, entitled to a share of his uncle's residuary personal estate. The defendant, who was one of the executors appointed by the will of Richard Watkins, was also one of the next of kin of William the nephew, and as such obtained letters of administration in England to William's estate.

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