communion, finds that bonds bearing interest, island certificates, and island paper, fall to be reckoned as part of the goods in communion, and that the fund in medio, including these bonds, certificates, and paper, fell under the jus mariti of the now deceased John Chalmers, the husband of the said Margaret Newland or Chalmers, also deceased: finds the trustees of the said John Newland entitled to be ranked on the said fund in medio, quoad one half of the goods in communion accordingly, and decerns; sustains the decree-dative of date the 15th day of January 1830, in favour of William Newland (and others), cousins and executors qua nearest in kin of the said deceased Margaret Newland: finds them entitled in virtue thereof to be ranked on the said fund quoad the other half of the said goods in communion accordingly; and decerns in the preference, and for payment accordingly." This interlocutor was submitted to review, but it was unanimously adhered to by the Court (Second Division). Apparently this decision was given upon principles more sound than those suggested in the conclusion of the opinion of the English counsel. They had not been aware of the doctrines of the law of Scotland, in regard to the right of succession to the goods in communion on the death of a husband and wife. The question, whether the funds in medio were to be considered as heritable or moveable, belonged to the lex loci rei sitæ. As by that law they appeared to be clearly moveable, they were then to be dealt with as moveable estate, to which Margaret Newland had succeeded by her brother's death, and which had fallen under the communion of goods between Chalmers and her. According to the law of Scotland, one half of the goods in communion devolved to the next of kin of Margaret Newland, upon the event of her death. Some question appears to have been made as to whether she succeeded Q to the property before or after her marriage. This was not distinctly ascertained, but it seems to be immaterial. Another case upon this subject was also recently decided in the Court of Session and in the House of Lords, Dundas v. Dundas and others, 14th January 1829, House of Lords, 22d December 1830. (l) In this case General Francis Dundas, domiciled in Scotland, by a mortis causâ instrument, executed in the Scotch form, and before two witnesses conveyed all his property, heritable and moveable, real and personal, including a freehold estate known by the name of Sansonseal, lying within the liberties of Berwick-upon-Tweed, subject to the law of England, to trustees, to be sold and converted into money; and, after paying an annuity of 8007. to his widow, the proceeds were to be distributed equally among his children. His whole property was valued at 51,000l., Sansonseal being valued at 14,000l. His children were minors. On behalf of the heir a claim was made that he was entitled to take the estate of Sansonseal in his own right, and also his share of the trust estate, which had been duly conveyed to the trustees by the instrument in the Scotch form; and proceedings were had in Scotland to have this question tried in a multiplepoinding raised by the trustees for that purpose. The Court decided, that if the heir should "ultimately take the estate situated in England, without surrendering the same to the purposes of the trust, he could not be entitled to claim under the trust deed any share of the heritable and moveable estates in Scotland thereby conveyed to the trustees." On an appeal to the House of Lords their Lordships simply affirmed the judgment. Apparently this decision was given upon the same principles as those in the case of Brodie v. Barry, and the (1) Fac. Coll., 7 Shaw and Dunlop, 241.; 4 Wilson and Show 460, other cases of the same class. The words of the instrument interpreted, according to the law of Scotland, where the testator had his domicil, clearly imported that he meant to give his whole property to the same uses. As the heir could not both approbate and reprobate these, he was put to his election. They thus avoided the great subtlety that attaches to that branch of the law of England which regards the devises by will of freehold estate in that country, which are not to be read against the heir unless attested according to the statute of frauds (m). A decision of similar import was come to in the case of Bennett v. Bennett's trustees (Fac. Coll. and Shaw and Dunlop 1st July 1829), in regard to an estate in the Isle of Man. John Bennett a Scotchman, then domiciled in Scotland in 1821, executed a trust disposition, and settlement, of his whole lands, heritages, heritable bonds, tacks, debts, and sums of money, belonging or owing to him, or which should belong and be owing to him at the time of his death, for certain purposes and inter alia for payment of a life-rent provision to his wife, in the event of her surviving him; it being declared that this provision should be in full of all that she could ask or claim from his estate, or by his death. Shortly after this Bennett went to the Isle of Man, where he purchased a small landed estate, and died there in 1824. Mrs. Bennett, his widow, claimed one half of this estate in the Isle of Man, as belonging to a widow by the law of that island, and also her annuity under the Scotch disposition or settlement: but the Court of Session held, that she could not claim the annuity unless she approbated the trust deed by consenting to pay over to the trustees, for (m) Habergham v. Vincent, 2 Ves. 204., and the cases there cited. the purposes of the trust, the property in the Isle of Man falling to her by the law of that island. It does not appear from the report of this case, whether the deceased had his domicil in the Isle of Man or in Scotland at the time of his death; nor whether the law of that island has the same rule in regard to a will of acquirenda in real estate as obtains in England, where it would be entirely inoperative. The court construed the instrument according to its import and effect in the law of Scotland. (n) SECT. III. On the Rules of International Law regarding Bankruptcy. The rules of international law which obtain in regard to the succession in personal estate, are so clearly and firmly (n) In the case of Anstruther v. Chalmer (ante, p. 189.), Sir John Leach held, that a settlement made in Scotland was to be construed by the law of the domicil: perhaps the above case of Bennett was too little sifted upon this subject, though it was decided on equitable grounds. It would be out of place here to enter into that class of cases, by which it appears now to be fixed, that when a trust disposition in the forms of the Scotch law has been executed of heritable estate in Scotland, for purposes to be afterwards declared, these purposes may be declared by an English will, or other instrument not tested according to the forms of the law of Scotland. It was so held in the case of Willocks v. Auckterlony (Morrison, 5539.); affirmed in the House of Lords, 14th December, 1769, in the case of Brack v. Hogg (Fac. Coll., 23d November, 1827, Shaw and Dunlop), affirmed in the House of Lords, 25th February, 1831, and in the case of Ker v. Lady Essex Ker's Trustees, 24th February, 1829 (Fac. Coll., and Shaw and Dunlop), affirmed in the House of Lords, 1st October, 1831; and in the case of Cameron and others v. Mackie, 19th May, 1831, (Fac. Coll., and Shaw and Dunlop), affirmed in the House of Lords, 29th August, 1833. These cases relate to heritable estate only, and do not belong to the objects of the present treatise. Apparently they have now fixed a very important point of international law upon grounds at least convenient to the community, if not entirely consonant to these strict principles which apply to real estate, and require that it shall be entirely governed by the lex loci rei sitæ. established in the cases which we have already stated, that it is almost unnecessary to adduce in support of them, any thing that has been done or decided in regard to other branches of the law. But in one of these, regarding bankruptcy, the British Courts have proceeded upon grounds so closely connected with those which regulate in matters of personal succession, that it would be improper to pass it over in silence, though to enter into it at large would open a field too extensive for our present views. A long class of cases has now been decided in the British courts, in questions of international law respecting bankruptcy, in which it has been clearly recognised and laid down, that personal estate has no situs; and that it follows the law of the domicil of the owner; but that real estate follows the law of the country in which it is situated. The law of bankruptcy in England had its origin in an act of Parliament in the reign of Henry VIII. (o), and has undergone numerous modifications by different statutes, passed from time to time down to the present day, and some of these at a very recent period. (p) The bankrupt laws were unknown in Ireland till a period comparatively recent. By an Act of the Parliament of Ireland, in the 11th and 12th of George III. (q), they were introduced into that country, by adopting, with some variations, the provisions of the acts in regard to bankruptcy which had up to that time been passed, and were then in force in England: thus the laws in regard to bankruptcy were established nearly upon the same footing in the two countries. The first-mentioned act has been altered and new rules and provisions have been introduced in (0) 34 & 35 Hen. 8. c. 5. (p) 6 Geo. 4. c. 16.; 1 & 2 W. 4. c. 56. |