At the present day, these would clearly be held to be subject to the law of the domicil. (r) While the institutional writers in Scotland held these various and conflicting opinions, as was to be expected, the decisions of the courts of law could not proceed upon any fixed and certain principles. (s) The earliest case appearing upon this subject is that of Purvis v. Chisholm, 1st February 1611. (t) This was a case of succession to the estate of a bastard. "A Scotsman born bastard, dying in England, his goods will fall under escheat to the King, and his donatar will have right thereto, notwithstanding any testament alleged made by the bastard, and confirmed in England, and that though bastards be alleged to have testamenti factionem there; especially if it be offered to be proved that the bastard has rents, resort, and traffic in this country as a Scotsman, and not as an Englishman naturalised or made denizen." In various respects, in the present state of the law, this is an important case. It does not distinctly appear what the domicil of the bastard was, but his will had been admitted to probate in England. As far as is known, this is the only case which has occurred in regard to the effect of bastardy, in opposition to a will made by the bastard in another country, where he had the power of making a will. The testator in this case, as far as appears, was born before (r) Pothier appears to have had the same view in regard to the public stocks of any country, that Erskine had. He considered that these were to be subject to the real statutes of the country, in which the bureau public, by which they were managed, was situated. Pothier, Cout. d'Orleans, c. 1. s. 2. n. 23. (s) I have deemed it better not to pass over those cases which were decided before the law was better understood. We see in them the state of the law at the time, and several of them contain matter for important observation and consideration at the present day. (t) Kaimes's Dict., i. p. 320. Haddington MS. Morrison, p. 4494. the union of the crowns, and thus an alien in England, though this would not have prevented his holding personal estate in that country. (u) But the question might be raised, whether, even at this day, the will of an English bastard could extend to his personal estate in Scotland, and if the rights of the Crown would be thereby cut off. They adopt ex comitate the law of the domicil in the general case; but they have a special rule of their own, regulating in regard to the testaments of bastards, upon which this case was decided. (x) In Henderson's Bairns v. Murray, 9th December 1623 (y), a will made in a foreign country was held to be effectual only for the heritage and goods in that country; not for those in Scotland. Colonel Henderson, by birth a Scotsman, but settled in Holland animo remanendi, where he had married, and where his children were born, had lent out (u) Calvin's case, where the question as to the rights of postnati in regard to real estate excited so much attention, was decided in England in the following year, 1612. Coke's Seventh Report. (x) In the recent English case of Doe on the demise of Birtwhistle v. Vardill, 5 Barn. & Cres. 438., it was found by the Court of King's Bench, that a person born out of wedlock in Scotland, but legitimated per subsequens matrimonium in that country, did not succeed as heir to real estate in England. That case suggests considerations connected with this case of bastardy. In both, a person might be held legitimate quoad effectum in one country, and illegitimate in the other. This appears to be one of the most important cases on the conflict of laws, which has been agitated in modern times. It was brought by writ of error to the House of Lords; it was argued in 1830, and several questions were put to and answered by the judges thereon; but a new series of questions was put to them on the 16th of July, 1830, which have not yet been answered, and the case still remains undecided: the chief difficulty appears to be, whether Birtwhistle could be said to have been born out of wedlock, as the law of Scotland, by a fiction, in such cases presumes that the marriage had taken place between his parents before he was born; and whether the question of legitimacy or illegitimacy ought not, therefore, to have been left to be decided according to the law of Scotland. (y) Durie, p. 88. Lord Kaimes's Dict., i. p. 320. Morrison, p. 4481. money upon heritable bonds in Scotland; these bonds were left in the hands of Murray, "who had employed the moneys, and to whom the trust and handling and employing thereof was committed by the said Colonel." The Colonel made his will or testament in Holland, according to the forms of the Dutch law, instituting his bairns as his universal heirs, and dividing his moveables, lands, and heritages among them, in certain proportions, as therein specified. He afterwards died at the siege of Bergen-opZoom. After his death, his two sons and three daughters sued Murray, the factor, and the debtors in the bonds, to hear and see them decerned to make payment to the pursuers. In this action the Court of Session "found, that albeit by the laws and custom of the country where the testator died the defunct might institute all his bairns heirs, and divide his heritage among them, yet that testament could not be valuable but for the goods and heritage which were within that province where the testator made his testament, and could not extend to any goods and gear which were within another kingdom or territory, where the goods would not fall under that division and testament of the defunct, by the law of the kingdom within which the goods and lands lay; but the said goods ought to be asked by that person, who would be found to have right thereto, by the law of the kingdom within which they were, and not the laws of any other kingdom; neither could any other country law have place in Scotland for any thing being within Scotland, but the proper law of the country itself; and therefore found that none of the defunct's bairns could pursue for their obligations, the same being heritable, but only the heir, and who must be retoured and served heir after the laws and custom of Scotland." Of this case it may be remarked, that though the judgment related to real or heritable estate, which clearly, and upon the principles recognised at all times by foreign jurists, as well as by our own, could only be given away from the heir according to the rules of the law of Scotland; still it lays down the law as to goods, or personal estate, upon principles now admitted to be erroneous, namely, that the lex loci rei sita was also to regulate as to these. Lord Haddington remarks of this case, that the Judges were equally divided in opinion upon it. (≈) It does not appear that any question occurred in this case, on the doctrine of election, or of approbate and reprobate, as to the right of the heir to take the heritable estate, and also his share of the moveables under the testament (a), though, from the circumstances stated, it appears likely that such a question, if noticed, might have been raised. In Melvil v. Drummond, 3d July 1634 (6), the succession as to bona tam mobilia quam immobilia was held to be regulated by the lex loci rei sita. Mr. Drummond, residing in England, had money lent on a heritable bond in Scotland, and, by his will or testament made in England, gave this particular heritable bond to his wife. In an action brought thereon by her and her second husband, the Court found, "that albeit by the law of England, where the infeftment (c) was made, which bore that legacy, the testator might leave legacies of heritable sums, and that the heir could not quarrel the same, but that such legacies are effectual; and albeit the heir was born in England, and so was alleged behoved to be subject to the English laws; yet, seeing the money left was addebted in Scotland, and was a sum which could not be disponed upon by way of testament, and so came not under legacy, according to the Scottish laws, therefore that the relict had no action to pursue for the (z) Lord Haddington's MS., 2945. (a) See the case of Brodie v. Barrie, infra. (e) Apparently meaning the will. same, by the practique and laws of this realm, for bona tam mobilia quam immobilia regulantur juxta leges regni et loci in quo bona ea jacent et sita sunt; for this legacy was in corpore individuo, of another nature than what was testable in Scotland, being of a particular heritable bond." Thus the decision, so far as it regarded the subject matter or heritable bond, appears to have proceeded upon those principles which are now universally recognised; but, by the dicta in the judgment, the lex loci rei sitæ is recognised in moveable as well as in heritable succession. 66 a In Shaw v. Lewins, 19th January 1665, a conflictus legum occurred, in regard to a nuncupative testament. (d) William Shaw, a native of Scotland, but described in one report as 66 factor at London," and in another as a residenter at London," by a nuncupative will, made at London, nominated Anna Lewins his sole executrix and universal legatee, and declared that he meant to leave her all, and to his relations in Scotland nothing, because they had dealt unnaturally with him. Shaw died possessed of personal estate in England and in Scotland. Of this nuncupative will Anna Lewins obtained probate " in the Court of Probates of Wills in England." (e) Adam and William Shaw, the cousins of the deceased, his nearest in kin, obtained themselves confirmed executors dative to him in Scotland, before the Commissaries of Edinburgh. A competition thereupon arose between the parties, in regard to the personal estate in Scotland. Anna Lewins, the executrix under the nuncupative will proved in England, claimed the whole property as universal legatee. She appears to have admitted, that if it had been a case of in (d) Stair's Dec., vol. i. p. 252. Morrison, p. 4494. (e) I have not found this probate in the registry of the Prerogative Court of Canterbury. There are no calendars of wills or administrations in the Consistory Court of London between the years 1642 and |