vise the same, together with all my other real and personal estate whatsoever and wheresoever, upon and subject to the following trusts:" The trustees are then directed to pay certain legacies and annuities, particularly a legacy of 15007. to his sister, Mrs. Ann Wightman, "and after payment thereof, then in trust as to the entire residue of my estate, of what kind or nature soever or wheresoever, for my three natural children, Mary Delisle, Thomas Delisle, and Philip Delisle, share and share alike," &c.

About ten months after the date of the will, the testator purchased a house in Calcutta, and soon after certain grounds and gardens at Similah. He died on 15th July 1788, without having altered or republished his will.

Ann Wightman, the testator's sister and heiress at law, brought an action before the Court of Session against his trustees, to have it found that she had right to the house, grounds, and gardens purchased by the testator, in preference to the trustees claiming under the will. The Lord Ordinary directed opinions of English counsel to be taken; and upon advising those with memorials for the parties, the Lord Ordinary found, "that by the law of England, as extended to the British settlements in India, in which the testator, Philip Delisle, at the time of making his last will and testament in August 1785, and at his death, in July 1788, had his domicil, the subjects in Calcutta, and at Similah, acquired by him after making said will, were not carried thereby, but devolved on the pursuer, Mrs. Wightman, as his heir ab intestato, and that she was entitled to take them up in that character, and at the same time to claim the legacy bequeathed to her by the said will. Likewise found it sufficiently instructed, that by the said law of England, the pursuer, by taking up the said subjects, did not become liable to relieve the rest of the testator's estate contained in said will of his debts, or any part thereof, although contracted for and on account of

the subjects so taken up by her; but that, on the contrary, the funds conveyed by the will are primarily liable for all such debts. In respect of all which repelled the defences, and as the subjects in question had been sold, and the proceeds were in the hands of the defenders, the trustees under the will, found that the defenders must account for the same to the pursuer, and ordained them to account accordingly, and to produce the vouchers thereof."

The trustees reclaimed to the Court, pleading that this was a case of approbate and reprobate, and that Mrs. Wightman, after accepting the legacy in terms of the will, was barred from insisting in her claim. But the Court, being clearly of opinion that the law of England must decide the case, refused to listen to any argument founded on the law of Scotland, and adhered to the interlocutor of the Lord Ordinary. (b)

The difficulties in deciding these mixed cases were explained by Sir William Grant, in his judgment in the celebrated case of Brodie v. Barry, at the Rolls in July 1813. (c) In that case Alexander Brodie, a Scotsman by birth, but domiciled in England, by his will, attested so as to pass freehold estates in England, but not according to the forms of the law of Scotland, gave, devised, and bequeathed to certain trustees, their heirs, executors, &c. "all his freehold, leasehold, copyhold, and other estates whatever and wheresoever situated, in England, Scotland, and elsewhere, and all his personal estate whatsoever and wheresoever," upon trust to carry on his works for three years, and thereafter to sell the whole trust property, and to divide the residue among his nephews and nieces equally,

(b) It appears from a note to the report of the above case in the Faculty Collection, that a similar decision was given the same day in the case Austin v. Austin, concerning a will made in India, decided also according to the opinions of English counsel, agreeably to the doctrines laid down by the Court in this case.

(c) 2 Ves. & Beames, 127.

share and share alike, with remainder to their respective children. The testator's heiress at law in Scotland was Betty Cock, one of his married nieces. This heiress claimed his real estate in Scotland, as not duly carried to the trustees by the English will; and also her share of the personal estate, which was of considerable value. A bill was filed in the Court of Chancery by the other nephews and nieces; and the question came to be, whether Betty Cock could take the real estate in Scotland, and also her share of the other trust estate of the testator; or whether she was to be put to her election.

In the speech of Sir William Grant, at giving judgment on this cause, he enters into an account of several of the cases here previously noticed, particularly those of Balfour v. Scott, and Drummond v. Drummond. (d)

He says, "Where land and personal property are situated in different countries, governed by different laws, and a question arises upon the combined effect of those laws, it is often very difficult to determine what portion of each law is to enter into the decision of the question. It is not easy to say, how much is to be considered as depending on the law of real property, which must be taken from the country where the land lies; and how much upon the law of personal property, which must be taken from the country of the domicil; and to blend both together, so as to form a rule applicable to the mixed question, which neither law separately furnishes sufficient materials to decide.

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"I have argued in the House of Lords cases in which difficulties of this kind occurred. Two of the most remarkable were those of Balfour v. Scott, and Drummond v. Drummond. In the former a person domiciled in England died intestate, leaving real estate in Scotland. The heir was one of the next of kin, and claimed a share of the

personal estate. To this claim it was objected, that by the law of Scotland the heir cannot share in the personal property with the other next of kin, except on condition of collating the real estate, that is, bringing it into a mass with the personal estate, to form one common subject of division. It was determined, however, that he was to take his share without complying with that obligation. There the English law decided the question.

"In Drummond v. Drummond, a person domiciled in England had real estate in Scotland, upon which he granted a heritable bond to secure a debt contracted in England. He died intestate, and the question was, by which of the estates this debt was to be borne. It was clear that, by the English law, the personal estate was the primary fund for the payment of debts; it was equally clear that, by the law of Scotland, the real estate was the primary fund for the payment of the heritable bond. Here was a direct conflictus legum. It was said for the heir, that the personal estate must be distributed according to the law of England, and must bear all the burthens to which it is by that law subject. On the other hand, it was said that the real estate must go according to the law of Scotland, and bear all the burthens to which it is by that law subject. It was determined that the law of Scotland should prevail, and that the real estate must bear the burthen.

"In the first case, the disability of the heir did not follow him to England, and the personal estate was distributed as if both the domicil and the real estate had been in England. In the second, the disability to claim exoneration out of the personalty did follow him into England, and the personal estate was distributed as if both the domicil and the real estate had been in Scotland."

In that case of Brodie v. Barry, Sir William Grant was of opinion that the will of the Scotch estates might be read against the heir at law; and the decree was, that the

heir must make her election. In coming to this conclusion he appears to have considered that great weight was due to the case of Cunyngham v. Gainer, in which a similar doctrine had been laid down by Lord Hardwicke in the Court of Chancery; and the doctrine of approbate and reprobate had been applied between the same parties, by the Court of Session in Scotland (e).

(e) This case of Cunyngham v. Gainer, in the Court of Chancery, is fully stated in a note to the case of Ker v. Wauchope, 1 Bligh, p. 27.

The case between the same parties in Scotland is reported in Fol. Dic. v. 3. p. 34., in Fac. Coll., 17th January, 1758, and in Morrison, p. 617. In that case the testator, by a will executed according to the English forms only, devised a real estate in the Island of St. Christopher to his son; and a real estate in Scotland to his wife. It was found that the son, who took the estate in St. Christopher's by the will, was barred from challenging the settlement of the Scotch estate, made to the wife in the same instrument.

Three cases have also been decided in Scotland, upon points connected with the questions which arose in the case of Brodie v. Barry ; but in these the heirs were not put to their election, but took the real estates, and also the interests in the personal estates given to them by the respective testators. These were the cases of Robertson v. Robertson (Fac. Coll., 16th February, 1816). Trotters v. Trotters (Fac. Coll., 5th December, 1826, 3 Wilson and Shaw, 407., affirmed in the House of Lords, 10th June, 1829); and Murray v. Smith (4th March, 1828, 6 Shaw and Dunlop, 690.). In the two first cases, the wills had been made in India by persons natives of Scotland, but domiciled in India. In the last, the will was made in England by a person domiciled in that country. The testators in all these cases had heritable estates in Scotland. In all of them, the instruments were not conceived according to the forms of the law of that country, so as to carry heritable estate; and it was matter of ambiguity and discussion, whether the terms of those instruments imported, that the testators meant to include their real estates in Scotland, or otherwise.

The Court, considering that the wills were to be construed according to the law of the domicils of the testators, in these cases, directed the opinions of English counsel to be taken, for explaining the meaning and import of the wills. Counsel were of opinion, that the words did not import devises of real estate. Accordingly, the decision in each of these cases was, that the heir took the real estate in his own right, and also his share of the personal estate under the will without collation.

But if the import of the words of the wills had been such as to have