ministrations, the Courts should enquire into the beneficial interest, according to the law of the domicil, and grant the administration according to such beneficial interest; but it is not known that it has yet been so ruled in any case. (r)

(r) In the case of the next of kin of Robert Alexander Paterson Wallace (before referred to, p. 201.), a question arose in the Prerogative Court of Canterbury, whether he was domiciled in England, or in Scotland, at the time of his death. The succession was claimed by the maternal grandfather, John Bass Oliver, as his next of kin according to the law of England, on the one hand; and by his paternal uncle and aunt, Captain Wallace and Mrs. Rooke, as his next of kin, according to the law of Scotland, on the other. If the English domicil was established, Mr. Oliver, the grandfather, was admitted to be preferable to the uncle and aunt under the statute of distributions; while, by the law of the Scotch domicil, as a maternal relative, he would have been entirely excluded.

'

The uncle and aunt were advised to claim the grant of administration to the exclusion of the grandfather. A learned civilian (Dr. Phillimore) gave this opinion on the subject::- “But in deciding upon the grant of administration, a question will arise upon the construction of "the 21 H. VIII. c. 5., which enacts that administration shall be granted by the ordinary to the next of kin; and it will be contended, that "the Court is bound to grant it in this case to the maternal grandfather, "who is the next of kin by the law of England. In my judgment it "will be sufficient to state, in reply to this, that the uncle and aunt, being next of kin according to the law of the country, which is to regulate the succession to the effects of the intestate, are the next of "kin in the sense and meaning of the statute; but the case is one, as far as I can learn, entirely primæ expressionis, and it is impossible to give any decided opinion as to the decision of the Court upon it."

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In 1825, these parties respectively claimed administration in the Prerogative Court of Canterbury; the matter proceeded at first by act on petition, but afterwards upon plea and proof. Much evidence was taken on both sides, but the case was not argued by counsel. On the 4th of March, 1826, administration was decreed to the grandfather. At pronouncing judgment, the judge, Sir John Nicholl (according to a note taken and revised by counsel at the time), appears to have spoken as follows:—“The only question to be decided in this case is, to whom "administration should be granted: the statute decides this. I do not "state this ground of decision to avoid looking into the whole of this case. I am aware that in the case of a residuary legatee, it has been "ruled that the statute did not cover that case; but that, on the con

In matters of testate succession, it is now also clearly understood in England, that in the case of a will made by

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trary, it has been held, that the deceased in such a case intended that "the residuary legatee should have the administration. The general principle is, that the administration and the beneficial interest should go together. But there is a case in which parties are excluded from "the distribution, and yet are not excluded from the administration. "This is the case of a woman dying intestate, being survived by her "husband; and the husband afterwards dying also without taking out "letters of administration to the deceased wife. In that case, adminis"tration is given to the representatives of the wife, though they become mere trustees for the representatives of the husband. I doubt very "much the propriety of this rule; but such has long been the practice "of this Court. Perhaps a case of foreign law is analogous to this.

"In the present case, the only ground upon which I could exclude "the grandfather from the administration, would be, that he had no "beneficial interest. I think I am warranted in holding, that if it be

even doubtful, whether or not the grandfather is entitled in distribu"tion, I cannot deny him administration, as that would be to exclude "him also in distribution. I must be clearly of opinion that the grand"father is totally excluded by law in the distribution, before I can ex"clude him from the administration."

But the judge in that case, after going over the facts, was inclined to the opinion that, upon a review of the whole, the deceased was to be held as domiciled in England. He concluded in these terms:-" Even "if the matter were more doubtful, sufficient ground would not, in this case, have been established to exclude the next of kin by the law of England from the administration.

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"If I am wrong in this opinion, my error may be rectified by a superior court. If I am right as to granting administration, and wrong "as to the domicil and distribution, the parties have it in their power to apply to another jurisdiction, to decide whether the administrator "should not be held to be only a trustee for the other parties."

The matter proceeded no further, the case having been settled by compromise. In Scotland, where the bulk of the personal estate lay, Mrs. Rooke, the paternal aunt, was confirmed executrix-dative qua nearest in kin; Mr. Oliver, the maternal grandfather, not having opposed this, but having proceeded afterwards in the Court of Session, as mentioned before (p. 201.). In the Prerogative Court, the point, whether or not a domicil could be charged during infancy, was not stated by the judge he founded his opinion on this,- that the deceased had himself selected an English domicil, after he had attained majority.

a person dying with a foreign domicil, inquiry should be made with regard to the validity of that will, by the law of the domicil; and that according to the result of such inquiry probate of the will should be granted or rejected in the English ecclesiastical courts. It is not without some conflicting decisions that the courts have arrived at these rules.

The cases which have occurred upon this branch of the law, whether in regard to testate or intestate succession as far as they are known, are few in number.

The earliest case which appears to have been under discussion was that of Burn v. Cole, at the Privy Council, 7th of April, 1763. (s)

Jacob Allin, having two legitimate children, Ann Burn and Sarah Whitcomb, made his will in Jamaica on the 1st of May, 1755, giving several legacies and annuities, and inter alia 50l. a year to Julia, the daughter of Mary

I see that in the recent case of Stanley v. Bernes, before the delegates (3 Haggard's Eccles. Rep., 462.), it is argued thus by the King's Advocate and Mr. Stephen: "In granting administration to a domiciled "Scotsman, where the half blood do not succeed, the Court could not "exclude a brother by the half blood, in favour of an uncle by the "whole blood; nor could it exclude the mother, who, by the law of "Scotland, cannot succeed to her children in favour of a brother." They cited no authority for this: it is contrary to the opinion given by counsel in the case of Robert Alexander Paterson Wallace; and the principle of looking to the beneficial interest would induce us to form a different conclusion.

It has been already noticed, that the anomalous case of giving the administration to the next of kin of the wife, where the next of kin of the husband were beneficially entitled, has been altered in the case of Fielder and Fielder v. Hanger. When this matter shall come fairly before the Court, perhaps it may see fit, in granting administration in a case of foreign succession, to construe the statutes by the beneficial interest, as has been done in other cases.

(s) Ambler, 415. There is some obscurity in the report, as to whether Julia Cole was executrix, or administratrix with the English will annexed.

Cole, and the residue of his estate to his daughter Ann Burn, with remainders over, and made John Pool executor.

The testator afterwards came to England, and made another will in that country on the 11th of April, 1756, in favour of the said Julia Cole or Allin (who appears to have been a natural daughter of the deceased). He afterwards resided some time in England, and died there. In this last will no executor was named.

In Jamaica the original will of May, 1755, was set up by Ann Burn and the widow of the testator; and Pool, the executor, having renounced, and the widow declining to act, administration, with that will annexed, was granted in Jamaica to Ann Burn, the legitimate daughter, and her husband.

In the mean time, Julia Cole had obtained administration, with the will of April, 1756, annexed, in the Prerogative Court of Canterbury; and producing an exemplification thereof under the seal of the same court, applied to the judge of probate in Jamaica to have the administration which had been granted to Ann Burn and her husband re-called: she succeeded, and obtained administration to herself. The sentence was appealed to the Privy Council in England. The respondent, Julia Cole, making default, the appeal came on to be heard exparte.

Lord Chief Justice Mansfield, after having taken time to consider of it, delivered the opinion of the Lords: That the sentence should be affirmed, which he said went upon this foundation, that Jacob Allin was resident and died in England, and had assets here; and administration of his will had been granted by the Prerogative Court here: Whenever that is the case, and the residence of the party in England is not merely as a visiter, the judge of the probate in the plantations is bound by the administration here, and ought to grant it to the same person: That it would be very mischievous if it were otherwise; there

would be great litigation, different sentences, and much confusion. His Lordship noticed the case of Pipon v. Pipon (t), where the distribution of an intestate's effects was held to be according to the laws of the country where the intestate resided and died.

He cited two cases before the Privy Council bearing upon this case. In the first of these, Browne v. Phillips, in December, 1739, "one died intestate in England; administration granted in England to A., a creditor. The attorney of A. applied in Jamaica for administration, but refused; and upon an appeal to the king in council, which was heard exparte, the sentence was affirmed, because, as none of the kin applied, it was discretionary in the judge to grant administration to a creditor.” (u)

-, in 1747, one "resided

In the other, Williams v. and died intestate in England; administration in England was granted to his widow; in Jamaica, to his sisters and their husbands. Application by the widow to the judge in Jamaica for administration was refused. On appeal to the king in council the sentence was reversed. Lord Chief Justice Lee, who then attended in council, gave his reasons, that the plantations being within the diocese of London, are subordinate to the Prerogative (Court) of Canterbury, and, therefore, bound by the probate of that court: but Lord Mansfield declared himself dissatisfied with that reason; for the plantations are considered within the diocese of London for some purposes only, and not in every respect or point of jurisdiction. He said the better and more substantial reason for such determination is the residency."

A case which attracted a good deal of notice upon this

(t) Antè, p. 108.

(u) This appears rather to militate against the principle laid down in Burn v. Cole.