that he never had ceased to be an Englishman: he also doubted, "whether this can be; whether a British subject is entitled so far exuere patriam (e) as to select a foreign domicil in complete derogation of his British; which he must at all events do, in order to render his property in this country liable to distribution according to any foreign law." (f)

It is to be remarked, that subsequently to the sentence in the Prerogative Court of Canterbury, the Court of First Instance at Paris came to a decision totally different from that of the English court, pronouncing the will null and void, and condemning the executor in costs. Thus in the two countries the courts of competent jurisdiction came to decisions directly opposed to each other.

The decision of the Prerogative Court in this case appears not to be free from difficulty. It was not carried by appeal to the Court of Delegates. Some proceedings were afterwards had between the parties in the Court of Chancery in England, but no decision was pronounced in

(e) He alluded to the maxim of Lord Coke, Co. Litt. 198., nemo potest exuere patriam.

(f) 2 Addams's Reports, p. 17. This appears to be set at rest; and there can now be no doubt that a person may so exuere patriam, as to establish a foreign domicil for all purposes of succession. See the case of Stanley v. Bernes, postea, p. 297. In the argument in that case of Stanley v. Bernes (3 Haggard's Eccles. Rep., p. 452.), it is stated that no such distinction was ever adverted to by any court, till thrown out in Curling v. Thornton. In Lord Thurlow's judgment in Bruce v. Bruce (supra, p. 121.), it appears that he had no difficulty of this kind.

In the case of Curling v. Thornton, Sir John Nicholl also noticed the case of the Duchess of Kingston's will, which had been made in Paris in 1786, and which, according to the then custom of Paris, was null and void. It was admitted to probate in England, after some opposition of the next of kin (non constat, upon what grounds) had been withdrawn. Monsieur Target, a French lawyer, had given his opinion that the will was valid. (See Collectanea Juridica, vol. i. pp. 323. 331.)

that court, the parties, as is understood, having made some arrangement by way of compromise.

In the goods of the Countess da Cunha, a Portuguese lady, in Hilary term 1828 (g), respect was had to the law of Portugal in granting a limited administration to the person entitled by the law of that country. The Countess da Cunha had 14,9117. 16s. three per cents. in her own name, in the books of the Governor and Company of the Bank of England; she was described in the Bank books as now the wife of His Excellency Don Joze Maria Vasques da Cunha, Count da Cunha."

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This lady, by her will, dated 8th of September 1824, appointed her daughter Donna Maria da Carmo (a minor) residuary legatee. The will was established in Portugal, and a judge administrator assigned, who, in that character, had the entire management and control of the minor's property.

On the marriage of the minor to the Count Da Viana, under the licence of the Prince Regent of Portugal, her disability as a minor ceased, and the appointment of the administrator was thereby at an end. The husband was also a minor, but it appeared that, by the laws of Portugal, by reason of his holding a commission in the army, and of his marriage, he was considered as of full age, and was legally authorized to do all acts, as if he had attained the age of twenty-one. On this account, therefore, a guardian could not be appointed.

To establish these facts, the sentence of the Court confirming the Countess da Cunha's will, the will therein embodied, the appointment of the judge administrator, an affidavit as to the existence of the stock, and certificates of

(g) 1 Haggard's Eccles. Rep., 237.

four Portuguese advocates as to the law of that country, were laid before the Court.

It appeared also, that by the law of Portugal the Countess Da Viana, under her dotal contract, was entitled to the dividends on this stock during her life. It was therefore moved, that a limited grant of administration should be made to the Countess Da Viana, who, though a minor by the law of England, was, by the law of Portugal, competent to act as administratrix.

The Court, considering that the Countess Da Viana was entitled to the dividends, and that no possible inconvenience could arise from the limited grant, allowed it to pass as prayed.

In the case of Larpent v. Sindry (in the goods of Thomas Barnes, of the Honourable East India Company's service, deceased), in Easter term 1828 (h), a question occurred, whether the Prerogative Court, in granting administration, should be be governed by the decision of the Court of Probate, where the deceased was domiciled.

Thomas Barnes had left two testamentary papers, both written with his own hand, bearing date respectively the 12th of April 1825, and 6th of May 1826, both beginning in the same formal manner, and both disposing of the whole of his property, though differently. By the first will five executors were appointed; but, by the second, no executor was named, though it contained a reference in one place to "the executors hereinafter mentioned;" and the paper thus concluded, "I feel too fatigued to write more."

The last paper bequeathed the residue to the testator's natural son, who, in 1824, had been sent to England for

(h) 1 Haggard's Eccles. Rep., 382.

his education; the paper was subscribed, but not witnessed. The testator died in India in May 1826.

Of both these instruments probate had been granted, by the Supreme Court of Judicature at Calcutta, to John Palmer, one of the executors of the will of 1825, with the ordinary power reserved to the other executors to come in and prove the will. An exemplification of the Indian probate having been transmitted to England, administration, with the will annexed, was prayed to be granted to Mr. Larpent, partner in the house of Cockerell and Company, the attornies of John Palmer, the executor. The property within the province of Canterbury amounted to nearly 2000l.

The Court was of opinion that the grant in India was not exactly according to their practice. In this country the two papers would have been proved, as together containing the will of the deceased; but the court in India, where the deceased died domiciled, and which was the court of competent jurisdiction, considered them as a will and codicil. The Judge added, "The question how far this and other courts of probate are to be governed by the decision of the court of probate where the deceased was domiciled, has never been expressly determined (i); but I should not feel inclined to depart from what has been the general practice, unless a strong case of inconvenience were brought under my consideration. I have, on the present occasion, the less difficulty in following the Indian grant, because I am not aware that there will be

(i) Apparently it was decided in the case of Burn v. Cole, at the privy council (Ambler, 415.; ante, p. 277.): there it was determined that when a testator, resident in England, died, the judge of probate in the plantations was bound by the probate granted here, where the testator resided.

much difference in the ultimate results, whichever way the

decree passes."

The administration was therefore granted to Mr. Larpent, as prayed for.

This rule of law or practice was soon afterwards, in Easter term 1828, again considered, in the matter of the goods of Lieutenant-Colonel Read. (k) He was deputy quarter-master-general of the forces in India, and died there, in 1827, leaving a widow, and two daughters of a former marriage. He left a testamentary writing, which contained these passages :—“ The little property I possess being in household goods, plate, carriages, horses, &c., I give, after all my just debts in Madras are paid, to my dearly beloved wife, Lydia, to apply and dispose of as she may think proper." It concludes in these terms:— "I refrain from separating into small parcels the little property that may arise from the sale of my effects, but wish my dear and affectionate wife may enjoy the whole, after, as I before said, my just debts in Madras are paid." This instrument was written by the testator, but not signed, nor was the date filled up, except that of the year (1827); blanks were left in some places; there was also, at the end, the word "witnesses," but it was not attested.

On the 17th of September 1827, probate of this instrument was granted at Madras to his widow, as sole legatee and constructive executrix.

Some time after, the Prerogative Court of Canterbury was moved that probate should be granted in this country, as granted at Madras. This would have given the widow the control of the property in England, without finding surety. But the Court was of opinion, that it was very doubtful whether, according to the due construction of the

(k) 1 Haggard's Eccles. Rep., 474.