through the means of letters of administration obtained. either in his name or that of another; that the legal right of succession to the government stock accrued to George Anderson, and was also effectually vested in him and of consequence that the stock now belongs to the pursuer, Mrs. Margaret Gardner, his nearest in kin.”

A reclaiming petition was presented for Mrs. Craigie, in which, and in answers thereto, the whole point was fully argued. In this reclaiming petition there appears to have been a statement in regard to the practice of the English Ecclesiastical Courts, which was not entirely well founded; it is there stated, -"The English Ecclesiastical Courts do not, in granting letters of administration, pay the least regard to the lex domicilii, but prefer the person who would have had the beneficial interest by the law of England; but the administrator is a trustee, acting for behoof of the person who may, by the law of the domicil, have the beneficial interest."

On the 12th of June 1817 the Court adhered to the interlocutor of the Lord Ordinary.

This case also involved a conflictus legum: apparently it was decided upon sound principles, though now of less importance since the passing of the act 4 G. IV. c. 97. (h)

In the case of Milligan v. Milligan, 9th of February 1826 (i), a similar decision was pronounced. The facts were these:-William Milligan, a native of Scotland, died domiciled in South Carolina, leaving a considerable personal estate in Britain, consisting chiefly of stock in the public funds, but partly also of debts due to himself in Scotland. In his latter will he gave all his property to certain trustees for the payment of legacies and other purposes therein specified. To his eldest sister, Helen Irving,

(h) Supra, p. 65.

(i) Fac. Coll.; 4 Shaw & Dunlop, 432.

the testator left a legacy of 2000l., and a share of the residue of his estate.

Helen died domiciled in Scotland in May 1818, leaving two children, Anne and James; and Dr. Milligan and John Keir were appointed curators to them, and took out letters of administration in England in their name.

In August 1818, Anne made a testamentary disposition in favour of her brother James; and, in October following, James made a testamentary disposition, nominating Dr. Milligan and Mr. Keir his executors. Both Anne and James died without expeding any confirmation to the mother, and the executors named by James entered upon a general intromission with the mother's estate.

Under these circumstances Elizabeth Milligan and her husband, and her brother Peter Milligan, claimed the suc cession of their sister Helen, as her nearest of kin, and brought an action of count and reckoning against the executors of James her son.

The property of Helen consisted of moveable funds both in Scotland and in England. With regard to the funds in Scotland, it was admitted ultimately by the defenders that those parts of them of which possession had not been taken by Helen's children, necessarily fell to her next of kin. The only question then was, as to the funds situated in England, and derived from William Milligan the brother.

The pursuers contended, that Helen being a domiciled Scotchwoman, the distribution and transmission of her property fell to be regulated by the law of Scotland; and that the children having died without confirmation, the property went to her next of kin, unless so far as possession had been obtained by her children.

The defence was, that though the lex domicilii does generally rule in the succession of moveable property, to the effect of determining who has right to succeed, the ques

tion of vesting was regulated by the lex loci rei sitæ ; and the former cases of Egerton and Craigie were referred to.

The Court was much divided in opinion: two of the judges, Lord Craigie and Lord Gillies, delivered opinions in favour of the pursuers; but the Lord President, Lord Hermand, and Lord Balgray, were in favour of the defenders, and of opinion that the funds in England vested without confirmation.

Accordingly," the Court sustained the defences as to the funds situated in England;" and they afterwards adhered upon advising a petition and answers. (k)

This case, involving also a conflictus legum, was decided< after the passing of the act 4 G. IV. c. 97., but was not ruled by that act, as it related to a succession which had occurred before the act was passed.

The last case which has been observed upon this branch of the subject, is that of Sir Henry Steuart v. Macdonald, 21st November 1826. (l)

Sir Henry Steuart, as survivor of three executors of the will of the late Archibald Seton, who died in Calcutta,

(k) The reporter appears to have stated the opinion delivered by Lord Gillies in an erroneous way. According to that report, the law of the domicil ought to rule in every case, not only in regard to succession, but in regard to making up the active title to the property. In a subsequent case of Robertson v. Gilchrist (Fac. Coll. 25th Jan. 1828), upon the head of service and confirmation, Lord Alloway says, "he had the best information that the opinion of Lord Gillies, upon which the pursuer founded, is not correctly reported."

(1) 5 Shaw & Dunlop, 29. It may be remarked in this case, that the interlocutor of the Lord Ordinary mentions a probate and letters of administration as synonymous, though they are very different.

The counsel who pleaded the second preliminary defence for Macdonald, do not appear to have been aware that the law of England was clearly against him on this point. The executors named by Mr. Seton took as joint tenants, and all their rights survived to the survivor without the necessity of any clause of devolution. (Williams on Executors, 897., and the cases there stated.)

having obtained probate in the Prerogative Court of Canterbury, raised action against Macdonald for the contents of a bill due to the deceased, payable in Edinburgh.

Macdonald pleaded as dilatory defences, 1st, That a probate from the Prerogative Court of Canterbury was no sufficient title to sue in Scotland; 2d, That, by the law of England, the survivor of three executors was not entitled to take out a probate, unless there had been a devolution on the survivors, which was not the case here.

The Lord Ordinary repelled these preliminary defences, and found that the "probate and letters of administration "produced by the pursuer afford a sufficient title to "pursue, the pursuer always, in case he shall be successful,

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confirming before extract." And by a second decision, the Court, after hearing counsel for Macdonald, unanimously refused a reclaiming note for him. They considered that the question was settled by the previous cases of Wardlaw and Clerk, before noticed.

SECT. II.

Of Probates and Administrations in England, in cases of Foreign and International Succession.

It is matter of regret that no reports have been published of the decisions of the ecclesiastical courts in England till a very recent period. For this reason, the information to be had upon the subject of our present inquiry is more scanty, and commencing at a later period, than it must otherwise have been (o). During the great length of time

(0) The earliest published ecclesiastical reports are those of Dr. Phillimore, commencing from Hilary Term 1809. Similar reports have been continued by Dr. Addams, and Dr. Haggard; and the latter has also published reports of the cases argued and decided in the Consistory Court of London, commencing in 1789. These reports, with the reports of the decisions in the High Court of Admiralty, have fortunately pre

T

that these courts have subsisted, numerous questions must have come before them, the knowledge of which would not only have been interesting to the professional inquirer; but must have tended to illustrate the history and state of the law in our own country, and in the other countries of Europe.

In England it is a general rule in the ecclesiastical courts, that, in cases of intestacy, and in construing the statutes of the 31 Edw. III. c. 11. and 21 Hen. VIII. c. 5. the grant of administration shall conform to the beneficial right.

There appears to have been an exception to this rule in modern times in regard to the granting an administration of the goods of a deceased wife, who had been survived by her husband also deceased. In such case, though the beneficial interest was in the representatives of the husband, the practice had been to grant the administration to the representatives of the wife (p).

But in a recent case, in the Prerogative Court of Canterbury, Fielder and Fielder v. Hanger (in Hilary Term 1832 (q), administration de bonis non to a feme covert was granted to the representatives of the deceased husband, though an appearance was given, and administration prayed by the next of kin of the wife; and the Court directed that, though the modern practice had been otherwise, such grants should for the future pass to the husband's representatives, unless special cause to the contrary was shown.

According to the broad terms of the above general rule, it should appear to follow that, in case of intestate succession, where the law of the domicil of the person deceased, has laid down different rules in the succession of personal estate, from those of the law of England, in granting ad

served to the world much of the judicial labours of Lord Stowell, - а name alike respected at home, and by all foreign nations.

(p) 1 Haggard, Eccles. Rep., 341. Ibid. vol. ii. Appendix, 158. 170. (9) 3 Haggard, Eccles. Rep., 769.