the two countries; but there are some important points in which they differ so materially, that it is proper briefly to notice them. 1. In regard to leases. According to the general law of England, these, of whatever length of duration, are termed chattels real, and are of the nature of personal estate ; and, upon the decease of the lessee, devolve to the personal representative. (b) In Scotland, on the other hand, leases are held to be property of a mixed nature. In regard to succession, they are accounted heritable, and descend to the heir; but they are still moveable in the case of the single escheat of the lessee, and would in such event fall to the Crown as moveable estate. They are thus (in the language of the law of Scotland) heritable as to succession, but moveable as to the fisc. (c) 2. Mortgages and securities for money affecting lands or real estate in England, and bonds of all kinds, are of the nature of personal estate, and belong to the personal representative (d): while, in Scotland, all securities for money affecting lands or heritable property are themselves heritable, and descend to the heir. Formerly a large class of bonds, containing covenants for the payment of interest, were held to be heritable in that country; but by the act of the Scottish parliament, 1661, c. 32. (re-enacting the rescinded act of 1641, c. 57.), these were rendered moveable as to succession; though they neither fall to the Crown in a case of single escheat, nor go to a widow jure relictæ. Thus such bonds are also of a mixed nature: in so far as regards the children and nearest of kin, they are moveable; but in so far as regards the fisc, and the jus (b) 2 Blacks. Com. 386. relicta, they remain heritable, as they were before the making of the statute. (e) It may be remarked also, that in both countries, certain parts of the chattels or personal estate of a person deceased go to the heir, and not to the personal representative. These are termed heirlooms in England, and heirship moveables in Scotland. These resemble each other in many particulars: the law as to both has been transmitted from a remote antiquity. It has been matter of much discussion in both countries, what articles go to the heir under these respective denominations; it would be foreign to our present inquiry to enter into these questions here. (f) The rules of a general nature which relate to the objects of our present inquiry, and which have equal application in the two countries, appear to be very few in number. These may be comprehended under the following heads: SECT. I. Rules of Succession common to the Law of both Countries. 1. THE succession to, and distribution of, the personal estate of the deceased is to be governed by the law of that country in which the residence or legal domicil of the deceased was fixed at the time of his or her death. This is clearly laid down as a general rule in the cases of Pipon v. Pipon (g), Thorne v. Watkins (h), Bruce v. (e) Erskine, b. ii. t. 2. s. 5. (f) As to heirlooms in England, see 2 Blacks. Com. 427.; Williams on Executors, 461. et sequen., and the cases there quoted. As to heirship moveables in Scotland, see Leg. Burg. c. 125. 1474. c. 53. Erskine, b. iii. t. 8. s. 17., and Brown's Synopsis, hoc verb. (g) Supra, p. 108. (h) Supra, p. 109. Bruce (i), and the other cases of that class already fully noticed; but it appears to be a rule not without exception. It does not extend to the personal estate of a freeman of London, which, according to the cases of Cholmley v. Cholmley (k), Webb v. Webb (1), Onslow v. Onslow (m), and other authorities, is held, in a case of intestacy, to be distributable by the custom of London, wherever such freeman may have fixed his domicil, and wherever such personal estate may be situated. 2. Though the rights of succession and distribution be to be regulated by the law of the domicil of the person deceased, yet the party entitled to the administration of the estate of the deceased, whether as executor, or other personal representative, must invest himself with such right of administration under authority of the proper courts, or according to the law of the country, within which the personal estate is locally situated. This also is clearly laid down in the above-mentioned cases of Pipon v. Pipon, and Thorne v. Watkins. It is, indeed, founded upon principles so clear, that it scarcely needs authority to support it. Though the practice is less fixed in Scotland, it appears that, in England, the courts having jurisdiction in regard to probates of wills, have respect to the law of the domicil of the deceased, in deciding as to what testamentary instruments shall be admitted to probate. The cases of Nasmyth v. Hare (n), Stanley v. Bernes (0), and others of that class before mentioned, clearly go to this extent: when the ́matter shall come to be the subject of special discussion in Scotland, it is likely that it must there be decided in a similar way. Though the point has not yet undergone similar discussion in England in cases of intestacy, by parity of reason, in the grant of administrations, inquiry should be made into the beneficial right of the party, according to the law of the domicil of the deceased, or other law or custom regulating his succession. (p) 3. All persons in either country, having attained the age of discretion, and being unmarried and without children, if of sound mind, may dispose of their whole personal estate by will, or other testamentary instrument. It does not appear to have been clearly settled in England what shall be the lowest age at which a person shall be allowed to make a will of personal estate. The rule of the civil law is, that the age at which a party has the power of making a testament, and the age of puberty coincide, namely, fourteen in males, and twelve in females. (9) Some of the English cases appear to fix the age of discretion at fourteen in both sexes. (r) Blackstone appears to incline to the opinion, that the age of puberty in both should be held to be the age of capacity. (s) (p) Supra, p. 274. (q) Institut. lib. ii. tit. 12. s. 1. D. lib. xxviii. tit. 1. c. 5. (r) See the various cases upon this subject in 4 Burn's Eccles. Law, p. 44. et sequen. (s) 2 Blacks. Com. 496. has been introduced into the House of Commons, for the Amendment of the Law with respect to Wills. It is meant that this shall extend to England and Ireland. By one of the clauses of this bill, no person under the age of seventeen is to be capable of making a will of personal estate; but any person of that age may make a will as well of real as of personal estate and it is proposed to establish certain rules in regard to the attestation of wills, as well of personal as of real estate. While this treatise is in the press, a bill In Scotland there does not appear to be any doubt that, as in the civil law, the testamentary age agrees with the age of puberty. (t) But to this universal power of making a will, there is one clear exception in England; namely, that regarding the orphanage part of the children of a freeman of the city of London: this, as shall be afterwards noticed (u), cannot be given by will or other testamentary instrument, made by the child of a freeman, till he or she shall attain twenty-one years of age; but, in case of the death of one of these children unmarried, his or her share descends to the other or others of them among whom the orphanage part is to be divided. There is also a clear exception in Scotland; namely, that of bastardy. According to the law of Scotland, it is held that a bastard, before receiving letters of legitimation from the Crown, can make no valid will or testamentary disposition, unless he have lawful issue, in which case he possesses the testamenti factionem, like other inhabitants of Scotland. (x) This matter was discussed in the case of Purvis v. Chisholm, before stated (y); and important inquiries suggest themselves upon that case. The bastard there was born in Scotland, but died in England: his will was admitted to probate in the English Ecclesiastical Courts, but his personal estate fell under escheat to the Crown in Scotland. In that case the domicil appears to have been little, if at all, inquired into. Even at the present day, a question might be raised as to the personal estate of an English bastard which might be situated in Scotland, or of a Scotch bastard which might be situated in England; in either case, a direct conflictus legum might be pleaded, which the courts of law would have to deal with as they best could. In any arrangement that may (t) Erskine, b. i. tit. 7. s. 33. (x) Erskine, b. iii. t. 10. s. 6. (u) Infra. |