estate differ widely in the several parts of the kingdom, in England and in Scotland; and there is this peculiarity in regard to this branch of the law, that, by a permanent change of residence, a person may effect the greatest alterations upon the rights of himself, and of those who are most nearly connected with him. In this respect, the conflicting rules in the law of succession in personal estate are more inconvenient, than those relating to the succession in real estate. While, in regard to the former, the rules of law are subject to the most important alterations as the owner changes his domicil; it has never been matter of dispute that, in regard to the latter, they remain fixed and permanent, and attached to the property.

A very considerable period has elapsed since two distinguished writers on the law of Scotland, Sir John Nisbet of Dirleton and Sir James Stewart, had pointed out what appeared to them to be defects in this branch of the law, and the expediency that then existed of effecting changes upon it in some important particulars. But in after times this expediency of a change ceased to attract the attention which the subject merited. (b)

In England many important alterations have been made upon the law of succession in personal estate in modern times; but in Scotland the law remains now nearly as it has stood from an early period, while the circumstances of the country have changed very materially, augmenting in

(6) Under the title, "If a mother and her friends may succeed," Sir John Nisbet asks (Direleton's Doubts, p. 129.), "If in no case cognati on the mother's side can succeed?" and he answers, It is thought "that they ought to succeed." "But in this our custom is lame, " and opus est vel constitutione vel decisione.” Sir James Stewart, in his Answers to Dirleton's Doubts (p. 210.), assents to the view taken by Dirleton of the lameness of the custom, and adds, "eget constitutione,” probably being of opinion that no judicial decision could remedy what he considered to be defective.

a high degree the inconveniences which existed in the times of Dirleton and Stewart.

There is still much of anomaly, and much requiring consideration, in the law of succession in England, particularly in regard to the local customs still obtaining in that country. But some of the alterations which have been made in the law of succession in England have now stood the test of long experience; and it is worthy of consideration whether similar alterations, to some extent at least, may not be introduced into the law of Scotland with great benefit to the public.

In recent times, the intercourse between the different parts of the kingdom has become much more frequent than it was even at no distant period. This is increasing rapidly, as new facilities of every kind arise for promoting it. The changes of domicil must thus become more frequent every year.

Already it has become ambiguous in what part of the realm some of the principal families of the kingdom, possessing estates and places of residence in England, in Scotland, and in Ireland, have their fixed or legal domicils; and it is in the necessary course of events that this ambiguity should, in process of time, be more generally extended.

It is the object of the present Treatise, to bring into one view the various and conflicting rules which affect the succession of this species of property in the different parts of the United Kingdom. The right understanding of these may tend to bring about such changes, connected with this subject, as may remove many inconveniences arising, and likely to increase, from the state of the law as it now exists. (c)

(c) In giving judgment in the case of Somerville (to be afterwards noticed), Sir R. P. Arden, Master of the Rolls, remarking the incon

In prosecuting the present inquiry, it is proposed to examine into the state of the ancient law of succession in personal estate in England and in Scotland; to show the changes which have been introduced in these countries into this branch of the law by statute, by lapse of time, or by other causes; to trace downwards the cases which have arisen from the conflicting rules in regard to the succession in personal estate, and which have been the subject of discussion and decision in the courts of law in both countries (d); and to conclude with a statement and review of the parallel rules, in the law of personal succession, which now exist in the different parts of the United Kingdom.

It gives an additional interest and importance to this subject, that many of the questions which have occurred, and which are afterwards noticed, belong rather to the law of nations than to the municipal law of either country.

veniences which resulted from the then state of the law, in questions of international succession, expressed his hope, that the legislature would interpose to assimilate the laws of the two countries. This was upwards of thirty years ago, and nothing has yet been done upon this subject.

(d) Succession is the word used by the writers on the civil law, and on the law of Scotland, when treating of this subject; it is used in a narrower sense by Blackstone (2 Com. 430.), and is applied to the succession of corporations only. In the present treatise, it is applied not only to succession under a will, or disposition to take effect post mortem, but to succession ab intestato.

CHAPTER I.

OF THE EARLIER RULES IN THE LAW OF SUCCESSION IN PERSONAL ESTATE IN ENGLAND AND IN SCOTLAND.

BEFORE proceeding to consider the state of the law as it now is upon the subject of succession in personal estate, it is not unimportant to see how it stood in more remote times. The chief object of entering into this inquiry is to endeavour to discover, whether or not there was, at that period, a coincidence between the laws of the two countries in regard to personal succession.

SECT. I.

Early Rules of Succession in the Law of England.

THE power of bequeathing personal property by a will or testament, appears to be coeval in England with the first rudiments of the common law. (e)

We find it stated in Glanvil, in the reign of Henry II., that every free man, not being involved in great debts, might make a will of his personal estate; but under certain regulations:-" Quod dominum suum primo de me"liore, et principaliore re quam habet, recognoscat; deinde

Ecclesiam; postea vero alias personas pro voluntate "sua." (f) In a subsequent part of the same chapter it is laid down, that a wife and children were entitled to certain parts of the personal estate, of which they could not be de

(e) Co. Litt. 111., and note (1) by Hargrave. 2 Bla. Com. 491. (ƒ) Glanvil, lib. 7. c. 5.

prived by will. Upon this subject Glanvil says, "Cum quis "in infirmitate positus testamentum facere voluerit, si de"bitis non sit involutus, tunc omnes res ejus mobiles in "tres partes dividentur æquales, quarum una debet hæredi; "secunda uxori; tertia vero ipsi reservatur. De qua tertia "liberam habebit disponendi facultatem. Verum si sine "uxore decesserit, medietas ipsi reservatur.” (g)

In the Great Charter of King John, it is laid down in regard to the tenant of a lay fee holden of the Crown, that in case of his death none of his chattels were to be removed till his debts to the crown were paid; it is added, "et re"siduum relinquatur executoribus ad faciendum testa"mentum defuncti; et si nihil nobis debeatur ab ipso, "omnia catalla cedant defuncto, salvis uxori ipsius et "pueris rationabilibus partibus suis.” (h)

In the immediately subsequent chapter of the same Charter, there is this regulation in regard to the intestacy of a free man: "Si aliquis liber homo intestatus deces"serit, catalla sua per manus propinquorum parentum et "amicorum suorum, per visum ecclesiæ, distribuantur, salvis "unicuique debitis quæ defunctus ei debebat." (i)

Again, in the Great Charters of the 1st and 9th of Henry III., the provision in regard to the deceasing tenant of a lay fee holden of the Crown, is adopted in the same words as in the Charter of John. (k) But the equitable pro

(g) Glanvil, lib. 7. c. 5.

(h) Magna Carta Joannis, c. 26.

(i) Ibid. c. 27. Magna Carta, 9 Henry III. c. 18. In another great charter of Henry III. granted in 1217, as printed by the commissioners of the public records, there is a difference of expression from that in the other two charters of the same king, in the head referred to. The words in that charter are, "urori ipsius rationabilibus partibus suis:"- The words "et pueris” are omitted, apparently from mistake, as they are necessary to the sense of the passage.

(k) Great Charter, 1 Henry III. c. 20.

"Salvis