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 sitæ. 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.
(b) Durie, p. 723.

(c) 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 sita is recognised in moveable as well as in heritable succession.

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 "a 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 1670.

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 (81. 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 100l. 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. On 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

(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.