total intestacy. He alleged, 1st, that his father was a Portuguese subject, domiciled in Madeira at the time of his death; 2d, that by the laws of Portugal, a Portuguese subject leaving a widow, not endowed, and issue, cannot dispose by will of more than one sixth of his whole property, the widow taking a moiety (to two thirds of which moiety the issue necessarily succeeds as heir at her decease), and the issue two thirds of the other moiety, or the whole of the moiety if the father does not dispose by will of his third thereof; 3d, that though the will and two first codicils were executed with the forms required by the Portuguese law, yet the whole were repugnant to the Portuguese law, and therefore invalid; 4th, that there was this further invalidity in regard to the third and fourth codicils, that they were not executed according to the forms of the Portuguese law. Upon the counter-allegations of the parties, a great deal of evidence was adduced on the subject of the domicil of the deceased, and in regard to the law of Portugal. It appeared, that the evidence did not support the allegation of John Stanley in regard to the total invalidity of these instruments according to the Portuguese law. He therefore afterwards admitted the validity of the will and two first codicils, which were executed and attested according to the Portuguese forms, and restricted his opposition to the two last codicils, which regarded the property in the British funds, and which were not executed according to the Portuguese forms, though they were valid according to the forms of the English law.

The Prerogative Court does not appear to have had any difficulty as to the domicil: but stated, that "the true question was, whether a British subject who has acquired a foreign domicil was deprived of the right of disposing of his British property according to the forms of the British law." It was admitted that this point had not yet received a dis

tinct decision in that court; and thus the case became one

of great importance.

In the course of the argument, the cases which had hitherto occurred in England and in Scotland upon points connected with the questions made in this cause, and various authorities from the foreign jurists, are stated and commented on. No case of this kind in the Ecclesiastical Court had been previously treated with the same extent of discussion. In Easter term 1830, the Prerogative Court decreed, that administration should be granted to Bernes with the whole testamentary writings annexed, and the costs were given out of the estate. The ground of the decision was stated thus in the note of the judge (q) :— "What then is the Court called upon by the opposer of the codicil to decide? That the codicil is invalid, contrary to the manifest intention of the testator, that intention being expressed in an instrument duly executed, according, and with reference, to the law of this country, in his own handwriting, and attested by three witnesses. The Court is called upon to extend disqualification, and to deprive of privilege; to disqualify a British subject, because he is resident in a foreign country, from giving effect to his wishes in the disposition of his property at his death; and to deprive him of the testamentary privilege, which is so highly favoured by the general law of this, and of most other countries. Without some more direct authority than any which has been quoted, or with which this Court is acquainted, I do not feel warranted to proceed to such a length. I am the less disposed so to do, because in one way the decision of the Court of Probate would be conclusive; in the other it would not. If the codicil be pronounced against, and probate be refused, the legatee could not resort to any other jurisdiction; if pronounced

for, this Court would merely decide on the factum, and the residuary legatee might resort to a Court of Equity, to take its decision upon the question of construction."

Against the decision of the Prerogative Court an appeal was taken to the High Court of Delegates; the cause was again very fully argued before them. In the course of that argument, the difficulty stated by Sir John Nicholl in the case of Curling v. Thornton (r), whether a British subject was "entitled so far exuere patriam as to select a foreign domicil in complete derogation of his British," and thereby to render his property in England liable to distribution according to any foreign law? — was adverted to and considered. It was said, that "no such distinction was ever adverted to by any court till thrown out in Curling v. Thornton." On the 11th of February, 1831, the Judges reversed so much of the decree of the Prerogative Court as pronounced for the third and fourth codicils, and the addition to the third codicil, and decreed letters of administration, with the will and first two codicils annexed, to John Stanley, the residuary legatee, and directed the costs to be paid out of the estate.

This appears to have been a most important case: it decided that a British-born subject might so exuere patriam, that his testamentary acts should be subject, as to their validity in regard to his property in England, to the laws of the adopted country; that the will of such Britishborn subject, when domiciled in a foreign country, if invalid by the laws of that country, though valid according to the English forms, should not be admitted to probate in England.

It would appear, that the Prerogative Court, in this case of Stanley v. Bernes, proceeded on the same principle

(r) Curling v. Thornton, ante, p. 287.

as the Prerogative Court and Court of Delegates had done before on the case of Lashley v. Hog. (s) In that case, it seems to have been considered, that the decision of the Scotch courts ought to make no difference in their sentence, and that the testamentary papers should be admitted to probate in England, regarding property in England, because not repugnant to the English law, whatever might be their character according to the law of Scotland. The Court appears to have considered also, in that case, that the legitim of Mrs. Lashley could only be obtained after a representation to the deceased; and therefore that probate should be given to the executor named, leaving Mrs. Lashley to make good her claims against the executor in the courts of competent jurisdiction.

In the case of Stanley v. Bernes, the Court of Delegates (t), in moving the decree of the Prerogative Court, appears to have adopted the true principle, by inquiring into and deciding according to the law of the domicil; and this, notwithstanding the ground which appears to have weighed with the Prerogative Court, namely, that by deciding against the codicils, parties could go no further; whereas, if they were admitted to probate, parties might still discuss their beneficial rights in the Court of Chancery. (u)

(u) The following foreign jurists appear to have been referred to in the case of Stanley v. Bernes:

Denisart, tit. Domicile, s. 11.; Vattel, lib. 2. c. 8. s. 111.; Voet. lib. 1. t. 4. pars 2. lib. 5. t. 1. lib. 28. t. 1. s. 3.; Huber. de Conf. Leg. lib. 1. t. 1.; Argentrie de la Coutume de Bretagne, art. 449.; Maillaire, Dict. de Droit Canonique, tom. ii. p. 220.; Huberi Prælect. tom. ii. lib. 1. t. 3. s. 5.; Grotius de Jure Belli, lib. 11. c. 6. s. 14.; Heinec.

for, this Court would merely decide on the factum, and the residuary legatee might resort to a Court of Equity, to take its decision upon the question of construction."

Against the decision of the Prerogative Court an appeal was taken to the High Court of Delegates; the cause was again very fully argued before them. In the course of that argument, the difficulty stated by Sir John Nicholl in the case of Curling v. Thornton (r), whether a British subject was "entitled so far exuere patriam as to select a foreign domicil in complete derogation of his British," and thereby to render his property in England liable to distribution according to any foreign law?—was adverted to and considered. It was said, that "no such distinction was ever adverted to by any court till thrown out in Curling v. Thornton." On the 11th of February, 1831, the Judges reversed so much of the decree of the Prerogative Court as pronounced for the third and fourth codicils, and the addition to the third codicil, and decreed letters of administration, with the will and first two codicils annexed, to John Stanley, the residuary legatee, and directed the costs to be paid out of the estate.

This appears to have been a most important case: it decided that a British-born subject might so exuere patriam, that his testamentary acts should be subject, as to their validity in regard to his property in England, to the laws of the adopted country; that the will of such Britishborn subject, when domiciled in a foreign country, if invalid by the laws of that country, though valid according to the English forms, should not be admitted to probate in England.

It would appear, that the Prerogative Court, in this case of Stanley v. Bernes, proceeded on the same principle

(r) Curling v. Thornton, ante, p. 287.