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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 senience, 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)
(s) Ante, p. 280.
Justice Parke, K. B. Burnaby,
Curteis, (u) The following foreign jurists appear to have been referred to in the case of Stanley v. Bernes :
Denisart, tit. Domicile, s. ll.; 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. l.; Argentrie de la Coutume de Bretagne, art. 449.; Maillaire, Dict. de Droit Canonique, tom. ii. p. 220.; Huberi Prælect. tom. ii. lib. I. t. 3. s.5.; Grotius de Jure Belli, lib. 11. c. 6. s. 14.; Heinec. Recitat. lib. 11. t. 10. s. 492.
In the goods of Anne Dormoy, (in Hilary term 1832,) (x) inquiry was made into the law of the domicil, and administration granted to a person having beneficial interest, though an executor had been named.
Anne Dormoy, a widow, died in November 1818, in the West Indies, in that part of the island of St. Martin which was subject to the laws of France. She left four children, and of her will appointed Cremony, her son-inlaw, sole executor; but by this will she made no disposition of her property, except as to bequeathing to several of her slaves their freedom. Cremony assigned over all his interest in Mrs. Dormoy's estate to her eldest son, and administration was, in 1828, granted by the Prerogative Court of Canterbury, to the son's attorney. The attorney became bankrupt, and brought in the administration; and the son prayed that it might be granted of new to himself. It was objected in the Registry, that the residue being undisposed of, Cremony, as nude executor, was entitled to the grant. To meet this objection, the son made an affidavit, “ that, by the 913th article of the French Code, no person, leaving three or more children at his death, can dispose by will of more than a fourth part of his effects; and by the 1025th and 1026th articles, a testator may name testamentary executors, and may give them the possession of his moveables, but that such possession cannot continue beyond a year and day from his decease:” that the will of the deceased was executed according to the French law; and by that law Cremony ceased to be executor at the expiration of the year and day, and could no longer interfere with the estate.
After some inquiry into the law of France, the administration was granted to the son, as prayed for. (y)
(x) 3 Haggard's Eccles. Rep. 767.
of he Island of St. Martin was effectively governed by the French laws;
It does not appear that there is any class of cases in England, where effect, as a title to sue, has been given in that country to a confirmation obtained in Scotland, or, to what is equivalent to a probate or administration obtained in any foreign country. The general rule in England is, that letters testamentary, or administrations granted abroad, give no authority to sue in that country, though they may be sufficient ground for obtaining new authority in the proper Ecclesiastical Courts in England to the same parties. (z)
According to the law of England, an executor may perform many acts appertaining to his office, before obtaining probate. Such probate is rather the authentic evidence than the foundation of the executor's title; for he derives all his interest from the will itself, and the property of the deceased vests in him from the moment of the testator's death. (a)
The executor may commence actions before obtaining probate; but he cannot advance in them beyond that step when the production of the probate. becomes necessary, till probate be obtained. The rule appears to be different in different kinds of actions: in some, the executor must declare before probate; in others, it is sufficient if the probate be produced at the trial. (6)
in this case.
and that the affidavit set forth the law with perfect accuracy. Sir John Nicholl
appears to have had some doubt if the certificate of the consulgeneral was sufficient; and if the ambassador should not have certified
Under all the circumstances, the administration was granted, but the sureties were made to justify.
(z) Tourton v. Flower, 3 P. Wms. 369. Lee v. Bank of England, 8 Vesey, 44. It has been seen that, to a certain extent, a different rule obtains in Scotland. (Supra, pp. 259. 262. 273.)
(a) Hensloe's case, 9 Co. 38 a.; Graysbrook v. Fox, Plowden, 281.; Comber's case, P. Wms. 767.; Smith v. Milles, 1 T. R. 480.; Woolley v. Clark, 5 B. & A. 744. i Dowl. & Ryl. 409.; Williams on Executors, 159.
(6) Williams on Executors, 163, 164.
In regard to the administrator, inasmuch as he derives his authority entirely from the appointment of the ordinary, the general rule is, that the party entitled to administration can do nothing as administrator till letters of administration are granted to him. Thus the letters of administration must issue before the commencement of suit at law by the administrator ; for he has no right of action till he has obtained them. (c)
He may, however, file a bill in Chancery before he has taken out letters of administration, and it will be sufficient to have them at the hearing; but the bill must allege that they are already obtained. (d)
But as there appears to be no difference between the powers of the English, or of the foreign executor or administrator, before obtaining probate or letters of administration respectively, it would be out of place to enter minutely into their respective powers here. As far as has appeared, there is no instance where, in the English courts of common law or courts of equity, an executor or administrator has placed any reliance upon a probate or administration granted in a foreign country, or upon a confirmation granted in Scotland, as being of any
force or validity extra territorium.
Thus there appears to be no class of cases similar to that which we have already stated as having occurred in Scotland, in regard to the effect of foreign probates and administrations.
(c) Williams on Executors, 239.
(d) Ibid. A recent case, however, in regard to an executor, would appear to militate against this rule. In Simons v. Milman, it was pleaded against a bill filed by a person in the character of executor, that the probate had not been obtained, and this plea was allowed. (2 Sim. 241.)
OF THE RULES OF
LAW AT PRESENT
IN FORCE IN
TO THE SUCCESSION IN, AND DISTRIBUTION OF, PERSONAL OR MOVEABLE ESTATE, IN THE DIFFERENT PARTS OF THE
Under this division of the subject, it is not proposed to enter into the wide field which would be opened to us were we to treat, in detail, of all that has been done and decided in the courts of the different parts of the kingdom, under their respective laws, in questions connected with personal succession. It is our object to confine this part of the treatise to matters explanatory of our international law; and to exhibit, as far as may be, in one view, in what particulars the laws of the several countries, or of the different parts of the same country, coincide, and in what they disagree, in regard to the succession in, and distribution of, moveable or personal estate. (a)
It is important to notice, in commencing this branch of the inquiry, that the terms personal estate, or personalty, in the law of England ; and moveables, or moveable property, in the law of Scotland ; though they coincide in regard to many particulars, are by no means synonymous in their extent and application. It would not be expedient to enter at present into a minute inquiry as to all the particulars in which these coincide, or in which they differ, in
(a) It has, in general, been deemed sufficient to refer, under the different heads, to those books of authority in both countries in which the points are discussed and the relative cases stated in detail; yet, in some instances, we have referred to the cases themselves.