mobilium vilior possessio, in which he makes a quotation from a foreign jurist, (Hering. de molend. quæst. 8. n. 58. & sequen.) it is thus stated: "Mobilia sequuntur conditionem personæ sive domini, adeo et ejus ossibus adhæreant active et passive: Immobilia autem cohærent territorio." (1) Sir James Stewart, in his Answers to the Doubts, under the head mobilia, has these observations: "If mobilia has situm seems to be an improper question; for it is more proper that mobilia sequuntur personam. And as to the question, whether an Englishman in England could make a nuncupative testament as to moveables in Scotland, to me it is without doubt, and that even a Scotsman residing and dying in England may also make a nuncupative testament reaching his moveables in Scotland. But in our law we have a rule as to the probation by witness, limiting the same to one hundred pounds Scots, which being a rule of judgment, might incline our judges to reject a nuncupative testament, though made in England." (m) In this passsage he appears to have alluded to the case of Shaw and Lewins, to be hereafter noticed, with regard to a nuncupative will made by a Scotsman in London, which by the Scotch judges was found to be null in substantialibus. Though it is not difficult to see that the principles which ought to regulate in a matter of this kind had not been very clearly defined in Scotland in the time (1) Sir John Nisbet's Doubts, p. 126. The quotation from Heringius accurately expresses the state of the law, which is now universally assented to, almost in the fewest possible words. (m) Sir James Stewart's Answers, p. 208. Upon the questions arising in regard to nomina debitorum and strangers' debts, it appears that there were various points upon which these eminent persons were both in considerable doubt. (Stewart's Answers, pp. 68. 227. 279 of those writers. Yet both appear to have been well acquainted with the doctrines, now well established, that real estate was subject to the lex loci only; while personal estate was subject to the law of the domicil. Sir James Stewart also puts the case of the nuncupative will upon what appears to be its true principles. When our institutional authors wrote, the law still remained in some degree of uncertainty upon these important questions. Stair, indeed, appears to have understood the rules of law to be totally different upon these subjects from what they are now fixed to be at the present day. In his section on the effect of testaments made abroad (n), he notices several cases which had occurred prior to his time, particularly the case of the nuncupative will made by a Scotsman resident in England, which had been found to be null in Scotland. (0) And when treating of the law and customs of England, and of foreign countries, he says, "Yet the custom of these places cannot constitute any right of succession not allowed by the law of Scotland." Thus he appears to have rejected the distribution by the law of the domicil, and the doctrine that mobilia non habent situm. Bankton also appears to have had erroneous views upon this subject. When noticing the before-mentioned case of the nuncupative will, he says, " And though such testament was made abroad, according to the custom of the place, we would not otherwise sustain it, because the laws of foreign countries can never constitute a right of succession, which must have its force from the laws of the place where the subject lies; and the maxim mobilia sequuntur personam is (n) Stair, b. 3. tit. 8. s. 35. (0) Case of Shaw v. Lewins, infra, p. 89. not to be understood of one's effects without the jurisdiction where the person resides." (p) Thus he also appears to have rejected the distribution by the law of the domicil; and he gives a very limited interpretation to the rule, that mobilia sequuntur personam. Erskine appears to have had correct views upon this subject in general; but upon the details the law in his time was not yet fixed in its present state. He says (q), “Where a Scotsman dies abroad sine animo remanendi, the legal succession of his moveable estate in Scotland must descend to his next of kin, according to the law of Scotland; and where a foreigner dies in this country sine animo remanendi, the moveables which he brought with him hither ought to be regulated, not by the law of the territory in which they locally were, but by that of the proprietor's patria or domicil whence he came, and whither he intends again to return. This rule is founded in the law of nations; and the reason of it is the same in both cases, that since all succession ab intestato is grounded on the presumed will of the deceased, his estate ought to descend to him whom the law of his own country calls to the succession, as the person whom it presumes to be most favoured by the deceased." But he adds, "Yet we must except from this general rule, as civilians have done, certain moveables which the destination of the deceased are considered as immoveable. Among these may be reckoned the shares of the trading companies, or of the public stocks of any country, ex. gr., the banks of Scotland, England, Holland, South Sea Company, &c., which are without doubt descendible according to the law of the state where such stocks are fixed." (p) Bankton, b. 3. tit. 8. s. 5. 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. (*) 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. |