Henry John Cuming, for payment as libelled upon, the pursuer completing her title by confirmation."

But, upon a representation to the Lord Ordinary, he reported the cause to the Court; and the Court ordered memorials upon this question, this question, "whether the letters of administration taken out by Colonel Cuming had the effect of vesting in his sister, Mrs. Forbes, her share in the moveable estate of her mother, recoverable in England, so as to take the same out of the hæreditas jacens of her mother, and subject it to the legal assignation by her marriage in favour of Mr. Forbes." At the desire of the Court, the opinions of English counsel were taken upon the law of England, as applicable to this case.

Sir Samuel Romilly and Mr. Bell gave a clear opinion that, by the law of England, the shares of the next of kin in the personal estate of a person dying intestate were vested before administration taken, and were transmissible by assignment or will of such next of kin, and, in case of their dying intestate, would pass to their representatives: but they noticed a peculiarity of the English law in this case, namely, that Mrs. Forbes's interest in the stock in England was a chose in action, which, although transmissible to representatives, did not vest in a husband jure mariti, not being reduced into his possession in his lifetime.

The Court, upon advising the memorials and the opinions of English counsel, decided that Mrs. Egerton's share of the stock in the funds did fall and belong to her late husband Mr. Forbes; and remitted to the Lord Ordinary to consider further as to her share of the personal estate in Scotland.

In a reclaiming petition and answers, the matter was again fully brought before the Court, and the Judges delivered their opinions seriatim in this case, as one of very considerable importance. The Lord Ordinary continued

of his former opinion, and Lord Bannatyne concurred with him; the other four Judges, including the Lord Justice Clerk, were of a contrary opinion; and on the 27th of November 1812, the Court found, "that the pursuer, Mary Wardlaw, during her marriage with the late Arthur Forbes, did acquire right to a share of the moveable estate of the late Lady Cuming, her mother, situated in England, as one of the children; that the same did vest in her; and by virtue of her marriage did fall and belong to the late Arthur Forbes."

This was a case of considerable intricacy. At that time, according to the law of Scotland, personal estate in that country, in a case of intestacy, did not vest without confirmation (d); but confirmation as an active title was only necessary in regard to the personal estate in Scotland; nor could it have been of any avail in England, in regard to the stocks in that country. Here was a direct conflictus legum upon two points:-1. The non-vesting of personal estate by the law of Scotland before confirmation; 2. The doctrine of the law of England as to choses in action of the wife not being vested in the predeceasing husband, unless reduced into possession. Apparently, the Court decided rightly as to the vesting of the share of the stock in Mrs. Egerton in the lifetime of her first husband; and also in rejecting the English law as to a chose in action, as not having operation in her case. The question, whether this property being vested in the wife during marriage, passed to her husband or not, was not one of succession, but related to the right which, by the law of Scotland, a husband acquired in the personal estate of his wife.

Lord Robertson remarked, that Mr. Forbes was put in a better situation than he had right to, either by the law of

(d) Altered by the art 4 Geo 4 c9 (Supra, p. 65.)

England, or the law of Scotland; that, according to the opinions of English counsel, the property in that country did not transmit to him, but to the next of kin in Scotland, again, he would have been told that the right not having been vested could not be claimed by him; but "by a jumble of the laws of both countries, the Court was about to give him what he could not have obtained either by the one law or the other."

Apparently the administration obtained by Colonel Cuming was of great weight in this case; the representation to the deceased was thereby full in England; and he, as administrator, was trustee for himself and the next of kin. (e)

Several of the same questions occurred a few years afterwards in the case of Craigie v. Gardner in 1817. (ƒ) The facts were these: Mrs. Janet Anderson, widow of Wil

(e) Several of the questions which arose in this case of Egerton appear to have been discussed in two former cases mentioned by Fountainhall (Burnet v. Burntfield, 8th March, 1683; 3 Brown's Supplement, 459.; Veitch v. Irving, 25th July, 1700; 4 Brown's Supplement, 495.); but in neither is the judgment given. In the first of these cases Burnet, the commissary of Peebles, insisted against Burntfield that he should confirm in Scotland money due to a defunct in England. Answered, the commissaries' jurisdiction did not extend beyond Scotland; and what locally lay in England, the Englishmen, ere they would pay it, would have it confirmed in their prerogative court; and there cannot be an instance given of any money lying in England that ever was confirmed by a Scotch commissary. Yet we say mobilia sequuntur personam where he dwells; but Sir George Lockhart said, "our law could not force money abroad to be confirmed here."

The other case related to a cargo belonging to one Johnston, which had been freighted for Dumfries, but had put into Whitehaven. Administration as to these was obtained by Veitch before the official of the county palatine of Chester. Irving was confirmed executor creditor to the deceased in Scotland. A competition thereupon arose between the English administration and the confirmation in Scotland; but it does not appear that any decision was given thereon.

liam Anderson, writer to the signet, died intestate in December 1813, leaving, amongst other personal property, stock in the public funds. George Anderson, her only child, in regard to the stock in the public funds obtained letters of administration to the deceased in the Prerogative Court of Canterbury; these were entered in the usual way at the Bank of England. He died in May 1814, intestate, and without having taken any steps by confirmation or otherwise in Scotland with regard to the property in the funds; and at his death the stock still stood in the name of his mother.

Disputes having arisen as to the succession of this part of the property, mutual actions of declarator were brought by Mrs. Dorothea Craigie, the sister of Mrs. Janet Anderson, who contended that the property had never been vested in George Anderson, but remained in bonis of his mother Mrs. Janet Anderson, and descended to Mrs. Craigie as her next of kin; and by Mrs. Margaret Gardner, the sister of William Anderson, the father of George, on the ground that the property vested in George Anderson, ipso jure, without confirmation, and, therefore, must descend to her as his next of kin. The whole parties were domiciled in Scotland.

The opinion of English counsel was taken on a joint case for the parties (g); and the Lord Pitmilly Ordinary,

(g) This was the opinion of Sir Samuel Romilly: he merely explains the law of England on the state of the parties. According to that law, the property vested in George Anderson, the next in kin; he had properly obtained letters of administration to his mother's estate; and as the stock still stood in her name, it could only be obtained by the next of kin of the son obtaining letters of administration de bonis non to the mother. He mentioned that the paternal and maternal aunts were, by the law of England, in equal degree to the son, and would be jointly entitled to the administration; but that still the granting of administration was not conclusive in the English courts, as to the beneficial interest in the residue. He gave no opinion upon the question then at issue on the law of Scotland.

on the 18th of November 1815, found

that the late

Mrs. Janet Anderson, having been domiciled in Scotland at the time of her death, and having died intestate, the legal right to the government stock which belonged to her fell to be determined by the law of Scotland, the lex domicilii; but that the form or legal process by which that / right was to be vested in and rendered effectual to him to whom it by law belonged, fell to be regulated by the law of England, as being the law of the place in which the moveable property was situated; that George Anderson, the son of Mrs. Janet Anderson, and who survived his mother a few months, had a right, by the lex domicilii, to succeed to her moveable property wherever situated; and that the form of confirmation, though necessary (unless possession had been obtained) to vest in him that right to such parts of the property as were situated in Scotland, was not necessary either to vest the property of the government stock situated in England, or as the means of obtaining letters of administration from the Prerogative Court of Canterbury, to the effect of entitling the administrator to sue for and acquire possession of the stock, and of rendering him accountable for it to all having interest; and in respect it appears from the opinion of English counsel referred to by both parties, to be the rule of the law of England, that no form of law whatever is required, as in this country, to vest the beneficial interest in the personal property of an intestate, after payment of debts, in the person having the legal right of succession; but that the property vests immediately and ipso jure, without any form of law, on the death of the intestate, only that the person succeeding is not entitled to recover, except

It is not noticed in this opinion, that by the English law two administrations would have been necessary in this case; one to the son, and the other to the effects de bonis non of the mother.