Mrs. Butler, the children of David Scott's sister, thereupon brought an action in the Court of Session against Miss Scott and her guardians, concluding to have it found that she could take no part of the personal estate, either in Scotland or in England, without collating the heritage.

Miss Scott contended, 1st, That the doctrine of collation did not rule in collateral succession, but was confined to the case of the succession of descendants: 2d, That, as she took the real estate in Scotland under the deed of her grandfather, she was not obliged in such case to collate it, to enable her to take a share of the personal estate of her uncle: 3d, That the personal estate, being situated in England, was subject to distribution by the law of that country, where collation did not take place.

The pursuers contended, on the other hand, 1st, That according to the opinions of the institutional writers, and repeated decisions of the courts, it was clear that collation took place as well in collateral succession, as in the succession of descendants: 2d, That Miss Scott was heir alioqui successura to her uncle, as to one third of the real estate, and therefore bound to collate, though she took under the deed of her grandfather: And, 3d, That the law of the domicil must regulate in this matter, and that Mr. Scott was to be considered as having had his domicil in Scotland at the time of his death.

The Court, on the 16th November 1787, and 17th June 1788, found," that Miss Henrietta Scott was not entitled to claim any part of the executry of her uncle, David Scott of Scots tarvet, without collating his heritable estates to which she succeeded as heir; and that the succession to the said David Scott's personal estate in England fell to be regulated by the law of England; and therefore, in so far as respected it, assoilzied the defender." At the time when this decision was given, it was universally understood

by Scotch lawyers (o), that the lex loci rei sita was to regulate in personal succession. The Court thus meant to hold, that the succession of Mr. Scott was to be regulated universally by the lex loci rei sita. They had considered also, that this was a case in which collation should take place according to the law of Scotland, though Miss Scott took the real estate under the deed of her grandfather, not of her uncle.

Against this judgment Mr. Hay Balfour, Mrs. Moncrieff, and Mrs. Butler, brought their original appeal to the House of Lords; and Miss Scott brought her cross appeal against that part of the judgment which respected the collation of the real estate. The case came on to be

argued in the House of Lords, soon after Lord Loughborough had received the great seal. At this period the cases of Bruce v. Bruce, and the first case of Hog v. Lashley, had been recently decided. This cause of Balfour v. Scott, which excited much interest, was pleaded by several of the eminent persons who had been of counsel in the former causes. Lord Thurlow, the late Lord Chancellor, also attended the hearing; and, after a speech on the cause, his Lordship moved the following judgment, on the 11th April 1793:

"Ordered and adjudged, that the original appeal be dismissed, and that so much of the interlocutors as complained of by the cross appeal be reversed; and it is declared, that the said Henrietta Scott is entitled to claim her distributive share in the whole personal estate of her said unele, David Scott of Scotstarvet in Scotland, without collating his heritable estate, to which she succeeded as heir, in so much as she claimed the said share of the said

(0) Antè, p. 101.

personal estate by the law of England, where the said David had his domicil at the time of his death." (p)

The judgment of the Court of Session finding that Miss Scott was not entitled to any part of the personal estate without collation was reversed in general terms, without noticing in the judgment the opinion of their Lordships

upon the very important questions involved in it, namely, whether Miss Scott, taking the estate under a deed of destination of her grandfather, could be obliged to collate before claiming a share of the personal estate of her uncle. This belongs to another branch of the law of Scotland. The important questions involved in it were discussed in the printed cases; but the words of the judgment leave it uncertain whether the House of Lords meant to decide any thing upon this point. (9)

In the case of Durie v. Coutts, it appears to have been then clearly understood, that the succession to personal estate was to be regulated by the law of the domicil of the party deceased. (r) Thomas Durie, a resident in the Isle of Man, had some heritable securities, besides personal property, in Scotland. By an instrument in the Scotch form he conveyed these to trustees, for the use and benefit, in the first place, of the heirs of his body; failing them, of David Durie; and failing him, of Jane Durie and Margaret Durie. Thomas Durie died domiciled in the Isle of Man; the succession under his deed, by failure of those called before them, devolved to Jane and Margaret Durie, who

(p) The following references were made to Voet. in this case :Voet. ad Pandectas, lib. 5. t. 1. sec. 91. et sequen. sec. 97.

lib. 37. t. 6. sec. 27.

(9) There is reason to fear that no note has been preserved of the opinion delivered by Lord Thurlow in this very important case. Inquiry has been made for it in several quarters, but hitherto without

success.

(r) Fac. Coll. 10 November, 1791.

Morrison, 4624.

also resided in the Isle of Man. Jane, having been the survivor, made a nuncupative will in favour of her mother. Two questions, therefore, arose in the Court of Session, between the mother on the one hand, and Alexander Coutts, the heir and personal representative of Jane according to the law of Scotland:-1. In regard to the heritable securities formerly belonging to Thomas Durie; 2. In regard to his personal property. The mother contended that the whole had become personal estate, by having been conveyed to trustees for the use and benefit of her daughters, and that all the personal estate belonged to her by the law of the domicil. The then recent case of Hog v. Lashley was referred to, as superseding all further argument upon this part of the case, namely, that personal estate was to be regulated as to succession, by the law of the domicil.

The Lord Ordinary decided, that "in virtue of the trust disposition by Thomas Durie, the persons for whose behoof that disposition was granted had not a pro indiviso share of the subjects conveyed to the trustees, but only a personal claim or ground of action against them, to account; and that the moveable succession of Thomas Durie must be regulated by the law of the Isle of Man, not that of Scotland."

The Court, however, altered the first part of the interlocutor, and "preferred Coutts to the sums in medio due by the heritable security," but adhered to the last part of the Lord Ordinary's interlocutor. Thus the heir at law took the real securities, notwithstanding the allegation that the trust-deed had made them personal; and the mother took the personal estate, as entitled to it by the law of the Isle of Man. It is to be remarked in this case, that the mother appears to have been admitted to claim under a nuncupative will, in which it differs from the former case of Shaw v. Lewins (s), though the point was not argued.

(s) Shaw v. Lewins, suprà, p. 89.

The mother was also next of kin by the law of the domicil to both her daughters. It does not appear, that the mother had been called upon to make up any title by confirmation, or otherwise, in Scotland.

In the case of Drummond v. Drummonds a very important decision was given in regard to the proper fund out of which a heritable bond, which was a charge upon the Scotch estate of a person domiciled in England, should be paid, and whether the law of Scotland, or the law of England, was to regulate in such case. (t)

David Drummond, a native of Scotland, became domiciled in England, having carried on the business of a winemerchant in London for many years. In 1788, he succeeded to certain landed estates in Perthshire, termed Duchally and Pittentian, in virtue of a disposition and settlement of Mr. James Clow, late professor of logic in the University of Glasgow. This disposition and settlement contained a destination of these lands, failing David, to his next brother, James, and other heirs; but there was no limitation in the deed, in the nature of a strict entail according to the law of Scotland. Accordingly, when David succeeded to the lands, he took them as unlimited proprietor. He was infeft upon Mr. Clow's disposition on 30th August 1788, and the instrument of sasine was duly registered on the 16th of October thereafter.

In February 1789, David Drummond borrowed 20007. from George Birrell, formerly in the service of the East India Company, then residing at Kirkcaldy in Scotland, for which he granted a heritable bond over his lands of Duchally and Pittentian in Perthshire. This bond was dated the 6th of February in that year; the sasine was

(t) Fac. Coll. 7th June, 1798.

Morrison, 4478. House of Lords, 20th Feb. 1799. No notice is taken in Morrison that this important case was appealed.