In the case of Robertson v. Macvean, 18th Feb. 1817 (ƒ), an important question was decided in the Court of Session, in regard to the heir, who took a real estate in Jamaica, claiming also a share of legitim in Scotland.

George Robertson, residing in Scotland, conveyed to his son and heir, James, all right that he had to a real estate in Jamaica. James, after his father's death, claimed a share of the personal succession of his father, in name of legitim. In this he was opposed by his sister Mrs. Macvean, who contended that he could take no part of the legitim without collating the real estate, whether situated in Scotland or elsewhere. There was some intricacy in regard to the title to the real estate in Jamaica, whether it came to James Robertson from George his father, or from his uncle James; but Mrs. Macvean restricted her claim to the collation of that part of the Jamaica estate which James took from his father George.

At first the Lord Ordinary decided, that "the Court of Session had no jurisdiction over the heritable estate in Jamaica, and that the heir was entitled to enjoy the estate in Jamaica, with all the privileges, and free from any burthen not imposed upon the heir in that country."

But on a reclaiming petition, the Court "altered the Lord Ordinary's interlocutor; found that James Robertson was not entitled to claim legitim, unless he collated such right as he had to the estate situated in the Island of Jamaica, as well as the other provisions and possessions received by him, as devolving upon him by the death of his father."

included real estate in Scotland, there appears no room to doubt, that the decision of these cases would have been the same as in the cases of Cunyngham v. Gainer, and Brodie v. Barry, to put the heir to his election.

(f) Fac. Coll.

The opinion of the Court as expressed in the report was, "that the heir could not claim a share of the moveables, without collating his right to the heritage. He lay under no compulsitor to take along with the executors (g); but if he chose to avail himself of this privilege, which may be regarded as a prætorian interposition to soften the rigour of the law, he must fulfil the condition annexed. There is no interference with the law of succession in a foreign country. Indeed this is not a question of succession at all; it is a question of right of parties inter se. The claimant comes forward, as a Scotch heir, to avail himself of a Scotch privilege, and to take something from the executors; and they are entitled to insist that equality shall be preserved, by throwing the heritage into the common fund. The petitioner has no more right to retain the Jamaica estate, and at the same time interfere with the executry, than a bankrupt, who claimed the benefit of the Scotch bankrupt law, could insist upon reserving free from his creditors heritable property which he happened to possess abroad." (h).

In the case of Newland's Executors v. Chalmers' Trustees, 22d November 1832 (i), questions occurred between the

(g) So the report terms them, meaning "next of kin."

(h) This case involves a very important point; it was not carried further. If the action had arisen in the courts of Jamaica, after the heir had received a share of the personal estate in Scotland, would the courts in Jamaica have ordered him to collate? It appears to be very questionable if they would. Collation appears to be introduced into the Scotch law, as between the Scotch heir and the Scotch next of kin. The foreign heir may, and must, have obligations unknown to the law of Scotland. It seems to differ in principle from the Scotstarvet case, and the case of Drummond (supra, pp. 203. 209). In the first of these cases the heir in Scotland took the English personal estate without collation; in the other the personal estate in England was held not to be liable for the debts due by the real estate in Scotland.

(i) Fac. Coll., 11 Shaw, Dunlop, and Bell, p. 65.

representatives of a wife and the trustees appointed by her husband, in regard to certain foreign bonds bearing interest, to which the wife had succeeded on the death of her brother, who died domiciled in Jamaica. The husband and wife were domiciled in Scotland; and, according to the law of Scotland, as between husband and wife, Scotch bonds bearing interest would have been deemed heritable, and would have formed no part of the goods in communion.

John Newland, a native of Scotland, died in Jamaica, leaving real and personal estates of considerable value in that island, where he had long been domiciled. He left a will indistinctly expressed, naming trustees for endowing a free school in the parish of Bathgate in Scotland. He was succeeded by his nephew Patrick Newland his heir at law, and Margaret Newland his sister and next of kin. The will became the subject of a suit, first in the Court of Chancery in Jamaica, and afterwards, by appeal, in the Privy Council. In 1815, it was finally adjudged by the Privy Council that the whole estate, for a period of ten years, belonged to the trustees for the purposes of the charity; " and that, so subject, the real estate has descended to the said Patrick Newland, heir at law of the testator; and the personal estate belongs to the said Margaret Newland, as the sole next of kin of the said testator John Newland at the time of his death."

Margaret Newland was married in Scotland to John Chalmers, butcher in Alloa; and powers of attorney were granted by them to persons in Jamaica, to recover and remit to Great Britain that portion of the succession which had been found to belong to her. Considerable remittances were made, and ultimately invested in the names of trustees appointed in a post-nuptial contract, executed by Chalmers and his wife, but which was afterwards set aside on the head of facility on the part of the husband. No part of the remittances was ever received by Chalmers or

his wife, except some small annuities paid to them by their

trustees.

Margaret and her husband died without issue in Scotland, where they had constantly resided, the former in 1818, the latter in 1826.

Thereafter John Newland's personal property, to which his sister had succeeded, became the subject of competition between her nearest of kin, and certain trust disponees of her husband; the former claiming, besides her share of the goods in communion at the dissolution of the marriage, an exclusive right to the bonds bearing interest, and to certain securities termed island certificates, and island paper, of which John Newland's personal estate in Jamaica in part consisted; and the latter claiming the whole of that personal estate, including these securities, as having passed to the husband by the law of England.

By the direction of the Lord Ordinary, English counsel were consulted on these three points:-1. Whether bonds bearing interest, island certificates, and island paper, of the island of Jamaica, are to be held, according to the law of England, as having, on the opening of the succession to Margaret Newland, fallen under the marital rights of John Chalmers? 2. Whether, if they did not at first, they ultimately, by the law of England, fell under such rights, in consequence of the proceedings in Jamaica, and the remitting the money to this country under the powers of attorney granted by Chalmers and his wife? 3. Whether, on the death of Margaret Newland (domiciled at the time in Scotland), her representatives would by the law of England have been entitled to succeed to the funds above specified, or to any of them, independently of the marital rights of Chalmers?

To these questions the counsel (k) answered,—“ The

If

law of England, in relation to the right of the wife by survivorship to her choses in action, not reduced into possession by her husband, has no application to this case, because the husband survived the wife. By the law of England the husband is entitled to letters of administration of the wife's personal estate, and (in the absence of any settlement or trust affecting his right) to receive the whole of his wife's personal estate for his own benefit. he died without having possessed the whole of her personal estate, and without taking out letters of administration, his personal representative is nevertheless entitled to the whole of her personal estate remaining unrecovered; and if her next of kin should obtain administration of her personal estate, and thereupon, as her legal representatives, collect her outstanding personal estate, they would hold it only as trustees for her husband's personal representative. 1. With reference to the facts of this case we are of opinion, that the particulars enumerated, viz. bonds bearing interest, island certificates, and island paper, are to be held, according to the law of England, as having, on the opening of the succession to Margaret Newland, fallen under the marital rights of John Chalmers. 2. It is immaterial, in any question betwixt the representatives of the husband and the next of kin of the wife, whether the personal estate of the husband was actually received by the husband in his lifetime or not. 3. The property in question having come to the wife by the intestacy of her brother, and not being affected by any settlement or trust, cannot be considered independently of the right of the husband surviving her. We are therefore of opinion, that, on the death of Margaret Newland (domiciled in Scotland), her next of kin were not entitled to succeed to the funds above specified, or any of them."

The Lord Ordinary pronounced this interlocutor :"Having heard parties procurators as to the goods in