fourth of the residue; and the opinion of Sir Arthur Pigott was founded on. There were many other points in the cause; but, upon the construction of the will, the Court found, "that by the plain import and meaning of the "words of the testament, as well as by the judgment of "the competent court in Virginia, where the testator died (obtained to regulate the conduct of the executors), and "which stands unchallenged and unaltered, the fee of the legacy in question is vested in Mary Brown, who, by the "assent of both parties, is long past the period of having "children: that the construction of this American will "cannot be affected by the opinion of any English counsel, "as it must be judged of solely by the laws of America."

66

66

An appeal was brought against the judgment of the Court of Session, consisting of many different points, and amongst others, that regarding the construction of the will. But the judgment was affirmed with costs. At pronouncing judgment in the House of Lords, the Lord Chancellor (e) said: "It was further urged, and a petition was pre"sented for that purpose, that the opinions of American "lawyers of that particular district of America should be "taken, for the purpose of guiding the consideration of the The Court, however, rejected that petition, and I "think they were right in doing so, under the circumstances "of this case. The question with respect to the con

❝case.

"struction of the will had been before the court in America. "In the year 1816, they had pronounced in effect a judg"ment as to the construction of that will, for they had "decreed that Mary Brown was entitled absolutely to this

66

property; they had directed that property to be paid to “ her, and it was paid accordingly to her agent, appointed 66 by her to receive what she was entitled to under the

(e) Lord Lyndhurst.

"will. It seemed, therefore, under these circumstances, " and after so long an interval of time, not right again to 66 postpone the cause for the purpose of taking further ❝evidence as to the real and proper construction of the "will."

The import of this part of the judgment was, that the estator's will was to be construed according to the law of his domicil; and having been construed by a court of competent jurisdiction in the State of Virginia, such construction was not to be challenged in a foreign country.

All the cases of domicil which have been hitherto noticed, have related to the domicils of persons who were adults, and of age sufficient to fix their own places of residence. The following case of Potinger v. Wightman, at the Rolls, in July 1817 (ƒ), belongs to a different class, namely, to that of infant children, who, after the death of their father, followed their mother into a different domicil.

In December 1805, Thomas Potinger, a native of England, died in Guernsey, the place of his domicil, intestate, leaving seven children living at his decease, four by a former wife, and three by his wife Harriet (afterwards Harriet Wightman), who was then pregnant of a fourth child, afterwards born.

Shortly after the decease of the intestate, the Royal Court in Guernsey, on the nomination of the nearest relations of the children, appointed Daniel de Lisle Brock guardian for the children of the first marriage, and the widow guardian for her own children; and, by permission of the Royal Court, Daniel de Lisle Brock and the widow, in their character of guardians, sold the real and personal estate of the intestate in the island of Guernsey, and vested he produce in the English funds. In September 1806,

(f) Merivale, p. 67.

the widow quitted the island of Guernsey, and came to England, bringing with her her four infant children, and from that time established her domicil in England. In May 1809, Henry James Potinger, one of her children, died at the age of six years; and in April 1812, John Lockman Potinger, another of her children, died at the age of ten years.

A bill was filed in the Court of Chancery, on behalf of the infant children of the second marriage, by Richard Potinger their next friend, against the mother and her second husband Robert Wightman, the infant children of the first marriage by Irving Brock, their guardian Daniel de Lisle Brock, and others, praying for the usual accounts of the real and personal estate of the intestate. The decree directed an inquiry, " Whether the intestate was domiciled in the island of Guernsey; and if the Master should find that he was domiciled there at the time of his death, he was to inquire and state who was or were his heir or heirs at law at the time of his death, and what was the law of the island with respect to real and personal estates, and who was or were, and are, according to the law of the said island, entitled to the intestate's real and personal estate therein, and in what shares and proportions?"

The Master, by his report dated 8th April 1816, stated that the intestate was domiciled in Guernsey at the time of his death; and he also stated the law of Guernsey respecting the descent of the real estate, and the distribution of the personal estate, of persons dying intestate there. (g)

(g) The law is of considerable intricacy, as well in regard to the real as to the personal estate; it is stated in the report of the case, but this does not enter into the present question: among other things it is mentioned, that “no real estate in Guernsey can be devised by will.” Im this it resembles the law of Scotland.

After ascertaining the original shares of the respective parties in the intestate's personal estate, the Master proceeded to certify, that, in consequence of the deaths of John Lockman Potinger and Henry James Potinger (two of the infant children of the second marriage of Thomas Potinger), their shares in the intestate's personal estate were by the law of Guernsey divisible in equal shares between Richard Potinger and William Potinger, the two sons of the first marriage.

When the cause came on to be heard for further directions, it was contended, on the part of the widow and daughters, that the shares of the deceased children were distributable by the law of England. It being admitted that the personal property was regulated by the law of the domicil of the proprietor, the question was, Whether the deceased children retained their paternal domicil in Guernsey, or acquired a new derivative domicil from their mother in England?

It was referred back to the Master to report on the domicil of the children at the time of their death; by his report, dated 8th March 1817, the Master gave his opinion, that the children, at the time of their deaths, were domiciled in England. The cause coming on to be again heard, this question was argued before the Master of the Rolls.

It was admitted that no authority existed upon this case in the English law. A dictum of Lord Alvanley in Somerville v. Somerville (h), that a minor cannot during his state of pupillage acquire a domicil of his own, was stated obviously to refer to that domicil which a minor could acquire by his own acts, or, according to the expression cited from Bynkershoek, "proprio marte." But it was contended, that

(h) Supra, p. 174.

the domicil of the widow, combining (during her widowhood) the characters of guardian and head of the family, was communicated to her minor children.

In the absence of English authorities, the following foreign jurists were referred to, to shew that it was the right of the surviving parent, whether father or mother, to transfer the domicil of the minor children, if this were done fairly, and without any fraudulent intention: Voet. Comm. ad Pand. lib. 5. t. 1. s. 100.; Rodenburg. de Jure Conj. tit. 2. cap. 1. s. 4. cap. 2. ss. 2, 3.; Bynkershoek, Quest. Jur. Priv. lib. 1. c.16.; Denisart, voce Domicile, ss. 9. 14. 37.; Pothier, Coutumes d'Orleans; Introd. Générale, chap. 1. s. 1. no. 16. 20.; Mornac, Obs. in Cod. lib. 3. tit. 20. p. 129.; Decisiones Celeberrimi Sequanorum Senatus Dolani, authore Joanne Grivello, Dec. 11. pp. 21. 24.; Code Civ. liv. 1. tit. 3.

art. 108.

Cases of settlement under the Poor Laws were also referred to. Where the mother removes with her infant children, and acquires a new settlement, that settlement is communicated to them, and supersedes their original paternal settlement: Inhabitants of Woodend v. Inhabitants of Paulspury (Raym. 1473. Stra. 746. S. C.); Rex v. Inhabitants of Barton Turfe (Burr. Sett. Ca. 49.); Rex v. Inhabitants of Oulton (Burr. Sett. Ca. 64.); Wooddeson's Lectures, 278, 279.; 1 Nolan's Poor Laws, 236, et seq. to 276.

After the conclusion of the argument, the Master of the Rolls (Sir William Grant) said:

"On the subject of domicil there is so little to be found in our own law, that we are obliged to resort to the writings of foreign jurists for the decision of most of the questions that arise concerning it. The dictum of Lord Alvanley in Somerville v. Somerville (i) has no relation to the point

(i) 5 Ves. 787.