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by the law of Scotland. The opposite conclusion presents itself with irresistible force. His will is an English will in every sense of the word; and it is, therefore, an obvious conclusion that, in his opinion, the law of England was to dispose of his property.
But it is urged, that he also made a will, or disposition, in the Scotch form, of his property in Scotland. He did so, and he was well advised when he did so, because that property being heritable, it could only be disposed of by those forms prescribed by the law of Scotland. But, what was the object of this disposition? It was to direct that his whole property in Scotland should be sold, that it might be converted into personal property, and distributed and disposed of in the same manner as his property in England. Under these circumstances, it is impossible to conceive that Sir Charles Douglas had the most distant idea that his will would be set aside by his children, because, by the law of Scotland, they are entitled to legitim; or by his wife, who, probably, had no settlement by covenant, because she, by the same law, might claim her thirds. It appears, on the contrary, to be very evident, that Sir Charles Douglas, looking to the laws of this couutry, as the only medium by which his intention was to be carried into effect, never dreamed of these claims; and the hardship would rather be, that his disposition should not take effect, in consequence of his long residence in England. In my opinion, therefore, your Lordships ought to declare that the succession of Sir Charles Douglas must be regulated by the law of England.
Should your Lordships be of this opinion, it is then unnecessary to enter into the other question, because your judgment attaches on all the property, wherever situated, and Sir Charles Douglas's executors will be authorized to act as his personal representatives and executors in Scotland, under the authority of the Court of Session ; the effect of which will be, that the Respondent, Mrs. Bingham, unfortunately will, by means of the codicil, lose the benefit which was intended for her by the will of her father. At the same time, it may not be improper to say a few words on the other question, even though it shall be declared that Sir Charles had his domicil in this country; in which opinion the noble and learned Lord (Lord Thurlow), who attended most of the pleadings, perfectly agrees with me; while, at the same time, he entertains, as I do, a very great degree of doubt whether, by the law of Scotland, the first interlocutor of the Court of Session can possibly be supported.
I have looked with care into the text writers on the Scotch law, without being able to discover any positive declaration or opinion, different from what is to be met with in the law of this country.
Stair treats only of bonds of provision, which are materially different from deeds of a testamentary nature ; for the former constituted the provision a debt against the estate, subject, no doubt, to a certain condition, the legal validity of which depended upon its object and tendency.
If it be a general restraint, it is said to be contra libertatem matrimonii, and, on that account, null. If it forces the grantee to marry a particular person, it is then termed contra pietatem parentis : the father as exceeded his authority; and for this reason, the provision is sustained, while the condition is rejected.
Erskine speaks of bonds, with a condition impossible to be performed, in which case he lays it down, that the debt is constituted ; while, the condition being impossible, the bond is taken as a pure bond. Or, if the condition be such as a father ought not to impose, the debt in this case is likewise sustained without regard to the condition, because it is an improper one.
Then, as for their cases, there are several where the consent of particular persons, such as trustees, was declared to be necessary previous to marriage ; but there is not a single case in which it has been found that a father might not impose upon his child a reasonable condition. I shall just add, on the subject of these bonds of provision, that they do not require delivery, but are perfectly valid, and the provision contained in them becomes an existing debt, if found in the father's repositories at his death.
But there is no affinity betwixt these cases and the present. A father in Scotland can disinherit his child ; and certainly he can, with at least equal propriety, impose upon such child a condition in itself neither unreasonable nor improper. But, in fact, this is not properly the case of a condition, but rather that of the revocation of the bequest in a will by a subsequent codicil. The question, then, to be considered is, whether the legacy revoked by the codicil has been, and ought to be forfeited. The legacy, given by Sir Charles in his will, is recalled if his daughter had married, or should marry the Respondent or any of his brothers; that is, the legacy continues in force, but the codicil revokes it sub modo, if a certain event had happened, or should happen ; and there could be nothing unreasonable in this.
The event had happened; and, on the death of Sir Charles, his will was found to contain the legacy to his daughter, but the codicil was found to revoke it. There is no affinity betwixt this, and those cases in which the Court of Session has annulled the condition annexed to the gift or existing debt.
I feel much diffidence, however, in delivering this opinion. But the reversal of the interlocutor, on the legality of the condition, does not depend upon it. It is the declaration, that Sir Charles Douglas was a domiciled Englishman, which governs the case : that depends upon principles of general law; and the reversal of the first interlocutor is a necessary consequence of the reversal of the second.
On the motion of the Lord Chancellor, this judgment was pronounced (18th March, 1796):
It is ordered and adjudged, That the said interlocutors of the 17th of December, 1793, and the 17th of February, 1794, complained of in the said appeal, be, and the same are hereby reversed; and it is hereby declared, that the succession to the property of Sir Charles Douglas be regulated by the law of England: And it is further ordered and adjudged, That the interlocutor of the 17th of February, 1792, also complained of in the said appeal, be, and the same is hereby reversed.
IN DE X
MATTERS RELATING TO THE LAW OF SCOTLAND.
ACCOUNTANT-GENERAL, a similar officer recommended for Scotland
by Lord Eldon, 139.
take ? 137.
Balfour, Sir James, Practicks under his name, the work of an un-
an extraordinary person ; held numerous offices, 67.
the international effects held to belong to it in the British
cannot make a will before obtaining letters of legitimation,
English and Scottish law, 21.
moveable, of a mixed nature as to succession, ibid.