testate succession merely, the law of Scotland must have regulated; but she contended that the nuncupative will being valid, according to the law of the country where it was executed, must carry the whole succession to her; and she referred to the validity given in Scotland to instruments executed in foreign countries, without the solemnities of the law of Scotland.

The next of kin contended that a nuncupative will could have no effect in this case upon the funds and effects in Scotland, and that though a legacy might be left by word of mouth, yet it could not by the law of Scotland be allowed to exceed 100l. Scots (87. 6s. 8d. sterling.)

"The Lords" (according to the report in Stair) "having considered the reasons and former decisions, preferred the executors confirmed in Scotland; for they found that the question was not here of the manner of probation of a nomination, in which case they would have followed the law of the place, but it was upon the constitution of the essentials of a right, viz. a nomination, although it were certainly known to have been by word; yea, if it were offered to be proven by the nearest of kin that they were witnesses thereto, yet the solemnity of writ not being interposed, the nomination is in itself defective and null in substantialibus."

It is not stated distinctly in this case whether Shaw the testator was domiciled in England or not at the time of his death; the decision appears to have been founded solely on the nullity of a nuncupative will, according to the Scotch law, for a larger sum than 100%. Scots, a rule of law which had been already repeatedly recognised in the courts of that country, in the cases of Russel (Had.), 24th November, 1609, and Wallace v. Mure, 7th July,

1629.

This is a curious case, and has been noticed by almost

every writer on the law of Scotland. (f) Assuming that the maker of the nuncupative will was domiciled in England, as the words "residenter at London" appear to import, a direct conflictus legum occurred, upon which different opinions might be formed, even at this day. If he had not been domiciled in England, according to what is well understood, his nuncupative will might have been challenged even in regard to the property in England, as made by a Scotsman, and contrary to the law of Scotland. (g)

In The nearest of kin of Adam Duncan competing, 16th February 1738 (h), it was held that the personal succession in Scotland of a Scotsman born, who died domiciled in Holland, was to be regulated by the Scotch law. Adam Duncan, a Scotsman, had resided for forty years in Holland, and died there. He left moveables and debts in Scotland, and after his death a competition arose before the Commissaries of Edinburgh, for the office of executors dative to the deceased, between James and Ann Duncan, his surviving brother and sister, and his nephews and nieces by other brothers and sisters deceased. The Commissaries preferred the surviving brother and sister. a bill of advocation to the Court of Session, by the nephews and nieces, complaining that the Commissaries had preferred the brother and sister to the office of executor, and refused to conjoin them, though the defunct had his residence more than forty years in Rotterdam, and died there, and that " by the law of Holland (which by the

On

(f) I see that it has also attracted notice in America: in Story's "Commentaries on the Conflict of Laws," (p. 395.) both this case and that on the bastardy in Purvis v. Chisholm (supra, p. 85.) are noticed and commented on.

(g) Nasmyth v. Hare, infra.

(h) Elchies' Decisions and Notes v. Succession.

law of nations must regulate the succession) nephews and nieces succeed jure representationis et per stirpes, in place of their parents deceased, jointly with their surviving uncles and aunts," the Court refused the bill, reserving to the advocators "to be afterwards heard upon their right to the succession as accords."

Though this related to a question of confirmation, which does not form the subject of our present inquiry, yet the Court appear to have given an opinion on the question of succession, founded upon the lex loci rei sita, in opposition to the law of the domicil. Lord Elchies says, "The Lords thought that the succession to moveables and debts in Scotland, and the office of executor, must be regulated by the law of Scotland, and not by the law of the place where the defunct proprietor had his residence and died. They did not determine that point.” (¿)

In Brown v. Brown, 28th November 1744 (k), the succession to Irish personal securities, belonging to a Scotsman at the time of his death, was held to be regulated by the law of the domicil, not the lex loci rei sitæ.

The general question between the law of the domicil, and the lex loci rei sita, appears to have been very fully discussed in that case. Captain William Brown of the Scots Royals, son to Adam Brown, late provost of Edinburgh, having died at Edinburgh without issue and intestate, John Brown, his only surviving brother, was

(i) In a case of Fullerton v. Kinloch (Ct. of S., July, 1739. H. of L., 13. Feb. 1740. 1 Craigie and Stewart, 265.) a question of some importance in international law was decided: Dr. Fullerton died domiciled in England; he had a heritable bond due to him on a Scotch estate. His simple contract debts incurred in England, though they did not affect his heir, or his real estate in that country, could be recovered in Scotland against the heir in the heritable bond.

(k) Kilkerran, voce Foreign, No. 1. p. 199. Falconer, p. 11. Elchies, voce Succession, Decisions and Notes. Morrison, p. 4604.

confirmed his executor dative. He gave up in the inventory certain personal securities which the deceased had acquired while the regiment to which he belonged had been quartered in Ireland, and which he had with him in Edinburgh when he died, consisting of two Irish government debentures, and bonds and promissory notes, all granted in Ireland.

Thomas Brown of Braid, nephew of the deceased by a deceased brother, brought an action against the uncle before the Commissaries of Edinburgh; he insisted to have it declared, that the half of the debts for which securities were granted in Ireland belonged to him, on this ground, that by the law of Ireland the jus representationis is admitted in the succession of moveables, and that the succession was to be governed by the law of the country where the effects happened to be situated.

The law of Ireland was admitted, and the question turned upon this general point: "By the law of what country the succession to a defunct's moveables was to be governed; whether by the law of the country where the moveables happened to be at the time of his death, or by the law of the country where the defunct had his domicil?"

The Commissaries of Edinburgh decided "that the deceased Captain Brown was origine a Scotsman, and never had any proper or fixed domicil elsewhere, having only attended his regiment in the different places to which it was called from time to time, until he at last returned to Scotland, his native country, where he resided some months before his death at Edinburgh; and that the said debentures and other nomina in question were found in his possession at his death: that the succession to the said Captain Brown's moveable estate is to be regulated by the laws of Scotland, and that the right to his nomina

belongs to the defender, as his sole nearest of kin, whether these nomina are granted by single persons or bodies politic, and whether the granters of them live in Scotland or Ireland and having considered the debentures in question, which pass by indorsation, and are payable to executors, &c., together with the act of parliament 5 G. 2. referred to in the said debentures, and that the funds appropriated in the said act for payment of the 300,000l. (thereby authorised to be borrowed) are of a personal and moveable nature; and that the time for demanding the capital sum, as well as the annual rent thereof, was elapsed several years before the indorsation to the defunct,-find that the sole right to the said debentures, and sums thereby due, belongs to the defender, and therefore assoilzie him from this process."

This judgment was brought under the review of the Court of Session by bill of advocation, and the case was fully debated on the import of the former decisions, and on the law as laid down by foreign jurists. The uncle contended, that, as the question was new in respect to the custom of Scotland, and as nothing was to be found in the decisions, or law books, directly determining it, recourse must be had to the laws and practice of other countries, and to the testimonies of foreign lawyers; especially as the question might not improperly be said to concern the law of nations. And he stated, that the general and received doctrine of foreign lawyers on this subject may be reduced to these propositions: "1st, That in all countries the succession to heritage is to be governed by the lex loci ubi res sita est. 2dly, That proper mobilia are not considered habere situm, but to follow the law of the country where the owner has his domicil, and to which it is presumed that, sooner or later, he intended to transfer them. 3dly, That the same thing is true con