recognized, in the decisions of the courts of law in Scotland. It is stated as matter of legal anecdote, that this train of decisions had been introduced in consequence of an opinion given by Sir Dudley Ryder, when AttorneyGeneral of England, in regard to the succession of Alexander Lord Banff, who died at Lisbon in November 1746, without making a will. Lord Banff appears to have had personal estate in England, as well as in Scotland. There were, of competitors for his succession, an aunt by the father's side, who was next of kin according to the law of Scotland, and three brothers uterine, who were preferable by the law of England. It was stated, that Lord Banff's principal domicil was in Scotland, and that he never had any settled domicil in England; but it is said, that Sir Dudley Ryder having given an opinion " that the succession to effects situated in England was to be governed by the law of England," it came to be taken for granted in Scotland, that, in England, the courts of law regarded only the lex loci rei sitæ. Accordingly it is said, that in the case of Lorimer v. Mortimer, mentioned above (a), it was laid down by one party, and not controverted by the other, "that by the law of England, effects, as well heritable as moveable, situated in England, do descend ab intestato, agreeably to the rules of descent established by the laws of England, without any regard to the lex domicilii."

And in like manner in the case of Davidson v. Elcherson, decided in 1778 (b), the same erroneous statement was made in the following words: " if a Scotsman leave effects in England, the person entitled by the law of England will obtain letters of administration in Doctors Commons; and it will be in vain for an uncle or an aunt to compete with a mother, no such thing being known in the law of England;

(a) Supra, p. 97.

(b) Supra, p. 97.

and in conferring the office in Doctors Commons, the civi lians there will not give themselves the trouble to inquire what the law of Scotland is with regard to succession."

It is obvious that the matters alluded to in these two cases are very different; the first related to succession, the other to the right of obtaining administration, points in themselves totally distinct, but confused in the statement here given. There appears never to have been any doubt in either country, in recent times, that a right of administration, or confirmation, was to be treated of, and discussed, in the courts of the lex loci rei sita. It seems likely, from the confusion of these two different subjects, that the opinion of Sir Dudley Ryder had related rather to a question of administration, than to one of succession. He must have been conversant with the cases which had been decided by Lord Hardwicke upon this subject so recently before; and he could scarcely have given an opinion contrary to the law so clearly laid down in those cases.

But whatever the opinion of Sir Dudley Ryder may have been, it must be admitted that there was some degree of supineness in taking a matter of this importance for granted upon so slender an authority, when the point, as will appear afterwards, had been repeatedly considered and decided in the English courts. If the cases of Pipon, and of Thorne and Watkins (to be immediately mentioned) had been then distinctly known, a great deal of litigation would probably have been prevented in Scotland, in regard to the cases in that country; as well those noticed above, as those to be afterwards stated.

CHAP. VII.

OF THE CASES UPON INTERNATIONAL SUCCESSION DECIDED IN THE ENGLISH COURTS BEFORE THE TIME OF THE CASE OF BRUCE V. BRUCE.

As far as has been seen, it is only in modern times, that questions of international succession have attracted attention in England.

The earliest case that appears to have occurred connected with this branch of the law, was one relating to a conflicting rule of succession in the customs of the city of London and of the province of York. This was the case of Cholmley v. Cholmley (1688.) (a) The custom of London was held to prevail over the custom of the province of York. A freeman of London died within the province of York, leaving a widow, and issue, two sons and a daughter. An estate of the father of about 50l. a year, within the province of York, descended to the elder son; and if the custom of the province of York should prevail, he would thereby have been excluded from having any share of the personalty, which was of the value of about 20,000l. A bill was filed in the Court of Chancery, for the direction of the Court how and in what manner the personal estate should be disposed of; and the Court was of opinion, that the deceased being a freeman of London, the custom of the city for the distribution of the personalty should prevail, and control the custom of the province of York; and that, notwithstanding the custom of the province to the contrary, the heir should come in for

(a) 2 Vern. 47. 82.

a share of the personal estate; "for that the custom of the province was only local, and circumscribed to a certain place, but that the custom of London followed the person, though never so remote from the city." (b)

It does not distinctly appear in this case whether the deceased had fixed his domicil in the province of York or not; this point does not seem to have then attracted attention. From the words of the report, it might be inferred, that it was understood that the custom of York had merely operation in regard to effects and estates within the province. It is not unlikely that the doctrine, that personal estate had no locality or situs, was not brought forward in that case.

Another case occurred upon a similar question, Webb v. Webb and others, Mich. 1689. (c) The custom of London was held to prevail over the law of the domicil. John Webb, late the husband of the plaintiff Elizabeth Webb, being a freeman of London, but having left town, and living many years at Winchester, in June 1684 made his will, and thereby devised a chattel lease to Nicholas Webb, and all his books to John Webb; and as to all the residue of his estate, he gave the yearly profits and benefits thereof to his wife for life by quarterly payments; and he directed his executors to pay his wife's funeral charges after her death, and gave her the use of his plate, &c. during her life, and directed that his stock and estate in the hands of one Cranmer should remain there during his wife's life, and the product be paid to her for her maintenance; and he gave several particular legacies; and, after the death of

(b) In the case of Somerville, to be afterwards noticed, it appears that a search had been made for cases arising out of the conflicting rules of decision in the province of York and city of London, and that this case of Cholmley was the only case which had been found.

(c) 2 Vern. 110.

his wife, he gave the residue and surplus of his estate to his brother, Nicholas Webb; and he made John Webb, William Cranmer, and others his executors. The testator died, leaving a widow, but no children.

The widow filed a bill in the Court of Chancery against the executors, claiming her customary rights as the widow of a freeman of London. The cause was first heard before the Master of the Rolls; and it was decreed that the plaintiff should have her widow's chamber, and one entire moiety of the personal estate, after debts paid, as well of the lease and books, which were specifically bequeathed, as of the rest and residue of the estate, by the custom of the city of London; and should have the benefit of the other moiety for life by the will; and an account was decreed accordingly. This decree was confirmed upon an appeal to the Lords Commissioners. (d)

In this cause a question was made, whether the legatees of the lease and books (a moiety of their legacies being taken by the widow by the custom of London) should have satisfaction made to them for what was evicted from them, against the legatees at large, or against the legatee of the residue. It was adjudged that they should not; for though the legatee of a specific legacy has a preference, and is not to abate in proportion with other legatees, when the estate falls short, as to the payment of debts, yet in any case he cannot have more than what the testator devised to him; and, as in this case the testator could only devise one moiety, nothing more passed by his will; and therefore the specific legatees must be contented with a moiety.

The case is also important, as showing that the custom of London in regard to the personal estate of a freeman

(d) This case was before the statute allowing freemen of London to give their whole estate by will; it shows the rule before that time.