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now in dispute. He is speaking of the power of a minor to acquire a domicil by his own acts. Here the question is, Whether, after the death of the father, children remaining under the care of the mother follow the domicil which she may acquire, or retain that which their father had at his death, until they are capable of gaining one by acts of their own? The weight of authority is certainly in favour of the former proposition; it has the sanction both of Voet and Bynkershoek; the former, however, qualifying it by a condition, that the domicil shall not have been changed, for the fraudulent purpose of obtaining an advantage by altering the rule of succession. Pothier, whose authority is equal to that of either, maintains the proposition as thus qualified. There is an introductory chapter to his treatise on the Custom of Orleans, in which he considers several points that are common to all the customs of France, and, among others, the law of domicil. He holds, in opposition to the opinion of some jurists, that a tutor cannot change the domicil of his pupil; but he considers it as clear that the domicil of the surviving mother is also the domicil of the children, provided it be not with a fraudulent view to their succession, that she shifts the place of her abode : and he says, that such fraud would be presumed, if no reasonable motive could be assigned for the change.

"There never was a case in which there could be less

suspicion of fraud than the present. The father and mother were both natives of England; they had no long residence in Guernsey; and, after the father's death, there was an end of the only tie which connected the family with that island. That the mother should return to this country, and bring much a matter of course, that the fact of her doing so can excite no suspicion of an improper motive; and I think, therefore, the Master has rightly found the deceased children to have been domiciled in England. It is, conse

her children with her, was so

quently, by the law of this country that the succession to their personal property must be regulated.” (k)

(k) Hitherto this is understood to be the only reported case upon this branch of the law, relative to a change of domicil during infancy or minority. In 1827, a case occurred in the Court of Session in Scotland, in regard to the domicil of Robert Alexander Paterson Wallace, connected with this point. He was born in Scotland: his father, Captain Wallace, was by birth a Scotchman, and an officer in the army, who had married Miss Oliver, an English lady, in England. The father named guardians to his child, one of whom (the maternal grandfather, Mr. Oliver) resided in England; and another (Mr. Hathorn) resided in Scotland; but the father dying when the infant was of tender years, he was carried by his mother into England. She also dying when the child was in infancy, he continued in England under the charge of his maternal grandfather, who was one of his guardians, and went to English schools, and an English university. The bulk of the property consisted in stock of the Bank of Scotland. He occasionally visited that country, as well before as after he came of age. He purchased a small landed estate in Scotland after he attained majority. He died at Hastings, in England, on the 29th of May, 1824, at the age of 22 years and 7 months, a bachelor and intestate.

His personal property was claimed in the Court of Session in Scotland by his maternal grandfather, as his next of kin, according to the law of England; and by his uncle and aunt by the father's side as his next of kin, according to the law of Scotland. The law as to change of domicil during minority was much discussed in that case. The Lord Ordinary (Cringletie) held, that after the age of puberty the minor had a right to choose his own domicil; that tutor datur personæ, curator rei; and he was inclined to the English domicil.

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He gave out the following note on the cause, when he pronounced an interlocutor thereon: "3d December 1827. The Lord Ordinary regrets that the parties have thought it necessary to detail the circumstances of Capt. Wallace's marriage with Miss Oliver in England, and the terms of his contract of marriage with that lady; as, to the Lord Ordinary, they appear not to have the least bearing on the cause. A man, by marrying in England an Englishwoman, does not thereby become domiciled there; nor is it necessary that he should reside a day there for that purpose; far less does he make his children domiciled there by the mere act of marrying in England. The lady must reside in a certain parish for a specified time, to enable her to be married in the church of it, and an oath must be made that such has been her residence and domicil; otherwise she requires a special licence to be married. Of this the Lord Ordinary can inform the parties, for he

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SECT. II.

Cases in which the Succession to real or heritable, and also as to personal Estate, was involved in the same Decision. THE first of these mixed cases, in point of date, which

knows it personally; he married a lady born under English law, and who had resided all her life in and near London: he had to make oath that she had lived in the parish of Acton for a certain time, and he entered into a contract of marriage in the English form; but that had no more effect in fixing his domicil than the winds of heaven. Capt. Wallace, having been a Scotchman in the army, did not acquire any domicil by marrying there, but returned to Edinburgh, where he sold out of the army, lived here for some time, and died here. There can therefore be no doubt that he died here, domiciled as a Scotchman.

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"As to his son Robert Alexander Paterson Wallace, it is admitted that he was born in Edinburgh, and went to England with his mother. Even had there been no contract made before he was permitted to accompany her, the Lord Ordinary could have no doubt that, had he died in pupilarity, his legal domicil of Scotland could not have been changed by his residence in England; a pupil has no persona standi, has no will in law, and he cannot act for himself- could not fix his domicil not make a will. But the matter is quite changed when he passes the years of pupilarity. As a domiciled Scotchman he is entitled to act for himself, with the consent of his curators; he is entitled to live where he pleases; for curators have no controul over his person. ' Hence,' says Erskine (b. i. tit. 7. s. 14.), also, though the natural person of a pupil is under the power either of his tutor or next cognate, yet a curator cannot claim the custody of a minor's person, who hath attained the age of puberty, or prescribe to him where he must reside. A minor can make a will disposing of his personal succession, and of course can do so by change of domicil.' The defenders seem totally to have lost sight of this principle. They state their case as if Mr. Hathorn could have prevented Robert Alexander Wallace from living in England; as if he placed him there, and was at the expense of his education there; when it is quite plain, that it was Mr. Hathorn's indispensable duty to advance the minor's own funds to him, for a suitable and reasonable maintenance and education. Still, residence merely for education may be questionable how far it constitutes a domicil to govern succession. But when education is over, when a man attains majority, and still resides in England, making only short visits to Scotland; having no house of his own in which he lives in Scotland, and dies in England in a house of his own; the Lord Ordinary confesses that he thinks that there is

occurred after the decision in the case of Bruce v. Bruce, was the important case of Balfour v. Scott. (1)

David Scott, of Scotstarvet, was a Scotsman born, and proprietor of the estate of Scotstarvet in Scotland. This estate had been strictly entailed by his father, but David Scott had reduced this entail by an action in the Court of Session, as in fraudem of his father's marriage settlement, by which the estate was destined to him without being entailed. He had succeeded to this estate in 1767; in 1774 he removed to London, where he took the lease of a house, and also a lease of chambers in Gray's Inn. Before he left Scotland he had sold off the chief part of the

little room for doubting what must be held to be his domicil. From the admitted facts in this case, the question appears to have been fairly tried in a competent court in England; and a question may arise, how far it is proper or competent to try it again here; and whether an appeal against the English judgment would not be the mode to obtain redress.

"Perhaps, as there has been a confirmation here, and no reduction of it has been brought, the decree of the English court is to be considered as a foreign decree, to which effect is not to be given if it can be shown to be wrong. But this is a doubtful and difficult matter, where the error lies entirely on a point of law. Was the confirmation here posterior to the English decree? Neither the one nor the other has been transmitted to the Lord Ordinary.

"3d December, 1827. The Lord Ordinary appoints the cause to be inrolled in his note of motions, and parties to attend by counsel to close the record."

The proceedings in England to which Lord Cringletie referred, were those in the Prerogative Court of Canterbury, relative to the granting of letters of administration to the effects of the deceased situated in England. These were granted to the maternal grandfather. The questions made in that court are noticed in a subsequent chapter. The paternal aunt had obtained a confirmation in Scotland, without any

contest.

The matters in dispute between the parties were settled by compromise, and the proceedings in the Court of Session were withdrawn; so that no final judgment was pronounced on this important case.

(1) Fac. Coll., 15th Nov. 1787, Morrison, 2379. 4617. House of

furniture in his mansion house in that country. He continued in London till the time of his death, having visited Scotland only once or twice during the last seven or eight years of his life; occupying himself chiefly in attending to his property in the public funds, which was considerable. He held a public office in Scotland (m), but this was a sinecure office, and managed by a deputy. He died in London, in February 1785, a bachelor and intestate.

At the time of his death his property consisted of his estate of Scotstarvet, of the annual value of about 1500l.; some personal estate of inconsiderable value in Scotland; and personal estate in England, chiefly vested in the public funds and in government securities, to the amount of 60,000l. and upwards. His next of kin at the time of his death were Henrietta, Lucy, and Joanna Scott (n), daughters of his brother, General John Scott, deceased; and John Hay Balfour, Mrs. Lucy Moncrieff, and Mrs. Butler, children of his sister, Mrs. Elizabeth Hay, deceased.

Henrietta, the eldest Miss Scott, succeeded to the estate in Scotland, which was settled upon the eldest heir female without division by a deed of her grandfather, the father of the last David Scott of Scotstarvet; and it came to be a question, whether she, taking this estate in Scotland, could also claim a share of the personal estate of her late uncle, David Scott, as one of his next of kin.

All parties had joined in granting a power of attorney to John Way, esquire, by virtue of which he obtained letters of administration of the personal estate of the late David Scott, in the Prerogative Court of Canterbury; and, in this character, paid certain sums of money to Henrietta Scott. Mr. Hay Balfour, Mrs. Moncrieff, and

(m) It is understood that he was director of the Chancery.

(n) Afterwards respectively Duchess of Portland, Lady Doune, and Viscountess Canning.

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