Recorder of Bombay, my brother, and for other good causes and considerations me moving, do hereby, with and under the burdens, declarations, and reservations after specified, give, grant, alienate, assign, and dispone, to and in favour of the said Sir Alexander Anstruther, and his heirs and assignees whomsoever, heritably and irredeemably, all and sundry lands, tenements, annual rents, and other heritages, and all heritable and moveable means and estate of whatever nature or denomination, and wherever situated." The instrument then went on to convey all her bonds, securities for money, rights of action, &c.; it also contained an obligation to invest the said Sir Alexander Anstruther and his foresaids, in all her lands and heritages, and power to him to call in and pursue for, uplift, receive, and discharge or assign the debts, goods, and effects thereby disponed and conveyed; and it appointed him sole executor in the following terms:

"And I hereby nominate and appoint the said Sir Alexander Anstruther to be my sole executor, and intrometter with my moveable estate, hereby excluding and debarring all others my nearest in kin from the said office." Then followed clauses reserving the granter's life rent, a power of revocation, and dispensing with the delivery and consenting to the registration in the books of the Court of Session, or others competent, in the form commonly used in Scotland.

Miss Anstruther deposited this instrument in the hands of the writer to the signet who prepared it. She afterwards returned to England, but continued occasionally to visit Scotland as formerly. In September 1820 she died at her home in London. She had never altered or revoked the instrument in question, and it remained at her death in the hands of the gentleman with whom she had deposited it : she left no real estate; her personal estate was in England. The instrument was registered in Scotland after her death;

but this was for preservation merely, and gave no additional validity to the instrument.

Sir Alexander Anstruther, the executor and legatee named in this instrument, had died in 1818, during the lifetime of Miss Anstruther, having made his will, and appointed his wife his executrix.

In March 1821 letters of administration, with the testamentary instrument of Miss Anstruther annexed, were granted by the Prerogative Court of Canterbury to James Chalmer and Alexander Fraser, the attornies of Elizabeth Campbell, the sister and only next of kin of Miss Anstruther.

A bill was filed in the Court of Chancery, by the executrix of Sir Alexander Anstruther, against Mr. Chalmer and Mr. Fraser, and their constituent Mrs. Campbell, charging, that according to the law of Scotland the disposition to Sir Alexander Anstruther was absolute, and did not lapse by his death in the lifetime of Miss Anstruther, but subsisted for the benefit of his child or children; and that it had been intended that the disposition ought to be construed by the law of Scotland.

It was admitted that this was the true construction of the instrument by the law of Scotland, if the instrument were to be construed by that law. It was also admitted that Miss Anstruther was domiciled in England at the time of her death.

In the course of the argument it was contended for the plaintiff, that though the law of the domicil regulated succession as well in a case of testacy as of intestacy, still this was entirely a Scotch instrument; and it contained technical phrases which were totally unintelligible unless the Scotch law was applied to it.

The defendants insisted, that, as the testatrix was domiciled in England, there was not enough to prevent the court from construing the will according to the law of England.

At pronouncing judgment, the Vice Chancellor (Sir John

Leach) gave this opinion:-" In this case, Miss Anstruther, who was born in Scotland, but was domiciled in England, being on a visit in Scotland, caused her will to be prepared there by a writer to the signet, who made it in the Scotch form, so as to give an absolute interest in all her real and personal estate to Sir Alexander Anstruther, who afterwards died in her lifetime. This will, after the death of Miss Anstruther, was proved in England. Miss Anstruther, at her death, had no personal estate; and it being admitted that by the law of Scotland the gift to Sir Alexander Anstruther was not lapsed by his death in the lifetime of Miss Anstruther, the question in this cause is, whether Miss Anstruther's personal property would, under this instrument, belong to the representative of Sir Alexander Anstruther, or to the next of kin of Miss Anstruther, as in the case of a failure by lapse.

"By the law of England, where an absolute interest in personal property is given by a testamentary instrument, there the gift fails if the donee die in the lifetime of the testator; and, Miss Anstruther being domiciled in this country, the law of England must prevail in this case. The next of kin are therefore entitled." The bill was therefore dismissed. (a)

In the case of Brown's Trustees v. Mary Brown (b) a

(a) In this case a reference was made to Vattel (lib. 2. c. 8. p. 175.), in which it is said, " As to the form or solemnities appointed to settle the validity of a will, it appears that the testator ought to observe those that are established in the country where he makes it, unless it be otherwise ordained by the law of the state of which he is a member;" and he adds, " I speak here of a will which is to be opened in a place where a person dies." The doctrines involved in this case appear to have been much considered by the continental writers; but these do not appear to have entered much into the discussion on this case. This case appears to be in opposition to that of Machargs v. Blain, decided by the Court of Session. (Supra, p. 95.).

(b) 4 Shaw & Dunlop, 42. 4 Wilson & Shaw's Appeal Cases, 28.

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question occurred in regard to the mode of construing a will made in Virginia by William Brown, a native of Scotland, but domiciled in the state of Virginia, in America. By this will, dated in 1805, he gave the following directions in regard to the residue of his property:-"The re"mainder of my estate, after deducting therefrom the above legacies, is to be divided in the following manner; viz., "to my father and mother, James and Mary Brown, of Kirkcudbright, North Britain, I leave one fourth of the "balance of my estate; to them or the survivor of them. "To my sister, Jean Muir, Kirkcormick, in Galloway, Scot"land, I leave one fourth share of the balance of my estate, "at her death to be equally divided between her children. "To my sister Isabella Black, of Castle Douglas, Scotland, "I leave one fourth of the remainder of my estate, to be at her death equally divided between her children. To my sister, Mary Brown, Kirkcudbright, North Britain, "I leave the remaining one fourth share of the balance of my estate, at her death to be equally divided between "her children, should she have any." The testator died in Virginia, in 1811. All the above-mentioned parties survived him. The will was proved by the executors in America, and the father and mother took administration in England with the will annexed, in regard to certain funds of the testator in that country.

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Mary, the only unmarried sister, was well advanced in life at the testator's death; she had no prospect of issue. Mary and her sister, Jean Muir, and the husband of the latter, about 1815, filed a bill in the Court of Chancery of the State of Virginia against the local executors, in regard to their rights under this will. The Court, by their decree on the 24th of May, 1816, ordered the executors to

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pay to the said Mary Brown one fourth of the residuary "estate of the testator," and to the husbands of the other two sisters each one fourth of the residuum, "upon their

"severally executing in person, or by their attorney, bond "to be deposited with the clerk of this court, payable to "the said surviving executors, in the penalty each of "70,000 dollars; with condition that, at the deaths of their "said wives, their said legacies shall be divided amongst "their children, as provided by the will of the said "testator." (c)

Disputes afterwards arose among the parties in regard to the rights of Mary in her share of the residue; it was contended that she had only a right of life-rent therein. Upon this subject Sir Arthur Pigott was consulted in England, and gave his opinion, "that Mary Brown took only the "interest for her life; if she never had, and will not now "have, any children, the share of which she took only the "interest for her life is now undisposed of, and seems, "therefore, vested in the testator's father, subject to being "divested in the contingency of the birth of a child or "children of Mary Brown, at any time during her life.”(d)

Mary was a person of a facile disposition, and had, upon certain inadequate terms, granted a release of her rights; but she afterwards brought an action in the Court of Session against John Brown, a nephew of the testator, who had received her share of the money as her attorney. John Brown had obtained right to the shares and interests of the father and mother of the testator, under the will made in Virginia. Various defences were pleaded, and, amongst others, that Mary had only a right of life-rent in her

(c) This last part of the judgment is said to have been altered, but what alteration was made does not appear. In England, if the funds had been taken out of the hands of the executors, they would have been paid over to the Accountant-General, to be invested till the children became of age.

(d) It does not appear upon what facts Sir Arthur Pigott was consulted; nor whether the law of the State of Virginia, as to the succession in personal estate, had been before him.