the time of his death). 1 This is the view of Savigny,
and the practice of the German courts is in accordance
with his view.

(2) The whole property may be subject to the law of
the place where it happens to be at the time of the
testator's death. This is in accordance with a rule of
law much in favour on the continent, known as the rule
of locus refjit actum, applying primarily to contracts,
thence transferred to succession.

(3) Moveable property may be subject to the law of
the domicil ; immoveable (including leaseholds) to that

1 Domicil for the purpose of succession must be more fully
established than for some other purposes, e.g. contract or divorce. In
Brodit\. Brodie, 30 Law Journal (Probate), 185 (1861), the court
dissolved a marriage on evidence of domicil which would have been
insufficient for succession.



LORD KINGSDOWN'S ACT 183

of the place where it is the lex loci rd sitce, as it is
expressed by the text-writers. This is the view taken
by the United Kingdom and the United States.

Testamentary capacity is governed by the law of the
testator's domicil. The form of the testamentary
instrument is in most countries valid if it be good by
either the law of the domicil or the law of the place
where it be made, at the option of the testator. The
old rule of the English common law was to allow only
the former alternative. It is still the law, and has been
confirmed by legislation, in many of the states in the
United States. The occasional hardships caused by
such a state of the law were illustrated by a well-known
case of Bremer v. Freeman, before the judicial committee
of the Privy Council in 1859. It was held in that case
that the will of an English lady domiciled at Paris, and
made in the English form, was insufficient to pass her
personal property in England, though it was admitted
that it passed real property in India. 1 In order to
obviate such difficulties for the future, an act, commonly
known as Lord Kingsdown's Act, was passed in 1861
(24 and 25 Viet., c. 114). The act provides that every
will and other testamentary instrument made out of the
United Kingdom by a British subject, whatever be the
domicil of such subject, shall, as regards personal
estate, be held to be well executed for the purpose of
probate if it be made (1) according to the forms required
either by the law of the place where it was made, or
(2) by the law of the place where the testator was
domiciled when it was made, or (3) by the laws then
in force in that part of Her Majesty's dominions where
he had his domicil of origin. With regard to a will
1 10 Moore, Privy Council Cases, 361.



184 CONFLICT OF LAWS

made in the United Kingdom by a British subject, it is
well executed, as regards personal estate, if executed
according to the forms required by the laws for the
time being in that part of the United Kingdom where
it is made. Subsequent change of domicil does not
revoke the will. It will be noticed that the act does
not affect wills of real property, which must conform to
the law of the place where the property is situate, nor
does it affect wills of aliens, so that an alien domiciled
abroad cannot make a valid will in England in the
English form, unless, indeed, the English and foreign
forms coincide. On the same day on which Lord Kings-
down's Act was passed (August 6, 1861) another Act (24
and 25 Viet, c. 121) received the royal assent. By the
terms of this act Her Majesty in council is empowered,
under convention with any foreign state, to direct by
order in council that no British subject resident at the
time of his death in the foreign country named in such
order shall be deemed under any circumstances to have
acquired a domicil in such country unless he shall have
been resident in such country for one year immediately
preceding his decease, and shall have made and deposited
in a public office of such foreign country (such office to
be named in the order in council) a declaration in
writing of his intention to become domiciled in such
foreign country. 1 A similar provision is made as to
subjects of the foreign country acquiring a domicil in
the United Kingdom. The act does not apply to
foreigners naturalised in any part of Her Majesty's
dominions. Under certain circumstances foreign con-

1 In spite of this provision, a dt facto domicil, for the purposes of
accession, may be acquired by a British subject who has not con-
formed to the law of France so as to obtain full civil rights there.
Hamilton v. Dallas, Law. Rep., 1 Chancery Div., 257 (1



CONSTRUCTION 185

sular officers in British dominions may, on obtaining
authority from the proper court, take possession and
have the custody of the personal property of a deceased
foreigner belonging to the country of the consular
officer, may apply the property in payment of his
debts and funeral expenses, and may retain the surplus
for the benefit of the persons entitled thereto.

The construction of a will is governed by the law of
the domicil of the testator, as he must be supposed to
have used the language of his domicil, unless, indeed,
he express himself in the technical language of another
country. But a mere use of some Scotch legal terms,
such as " dispone " and " liferent," is not sufficient of
itself to induce the court to apply Scotch principles of in-
terpretation to a will made by a domiciled Englishman. 1

The persons who are to take under a will or an
intestacy are decided by different rules, according as
the property is moveable or immoveable. Moveables
take their legal character from the domicil of the owner,
and the distribution of the goods and the class of persons
entitled to benefit are regulated by the same law. The
rule as to immoveable property is different. The persons
entitled to succeed to that must be entitled by the law
of the place where the property is situate. Most of the
cases on the subject have turned upon the question of
illegitimacy. In a well-known case in the House of
Lords in 1840 it was held that a child legitimate in
Scotland by the marriage of its parents after its birth
was not legitimate for the purpose of inheriting real
property in England. On the other hand, it was held
that a child in a similar position, legitimate by the law
of England but not by the law of Holland, was so far

1 Doe v. Vardill, 7 Clark and Finelly's Rep., 911.
VOL. I 13



186 CONFLICT OF LAWS

legitimate as to be entitled to share in personal property
in England as one of the next of kin of the deceased. 1
In order that such a child may be legitimate for the pur-
pose of succession, it is essential that the father should
at the time of its birth and of the subsequent marriage
be domiciled in a country the law of which allows
legitimation per subsequens matrimonium. 2 The principle
on which these cases were decided was well expressed
by Lord Justice James in the latter case. " Heirship
is an incident of land, depending on local law. . . .
Kinship is an incident of the person, and universal."
On the same principle it has been held that lease-
holds in England belonging to a domiciled Scotchman
devolved on intestacy by English law, 3 and that a Scotch-
man making a will disposing of personalty locally situate
in England could not exclude his children from their
legitim. 4 Difficult questions have arisen as to how
far the English legal restrictions on the disposition of
real property apply to property of that nature situated
out of England. The question of public policy, already
mentioned in the chapter on construction, becomes
important here. For instance, the law of mortmain was
held not to extend to British India, 5 or to the island of
Grenada in the West Indies, 6 or to British Honduras.'
A devise of real estate in England for the maintenance
of a charity in Scotland was held to be void. 8 On the
other hand, a bequest by a domiciled Englishman of

1 Re Goodman's Trusts, Law Rep., 17 Chancery Div., 266 (1881).

2 Re drove, Law Rep., 40 Chancery Div., 216 (1888).
Duncan v. iMWSon, Law Rep., 41 Chancery Div., 394 (1889).
/log v. iMshley, 6 Brown's Parliamentary Cases, 577 (1792).
Mayor of Lyons v. East India, Company, 1 Moore's Privy Council

Cases, 175 (1836).

Atlorney-Utneral v. Kteicart, 2 Merivale's Hep., 143 (1811).
Jtx v. M'Kinnsy, Law Rep., 14 Appeal Cases, 77 (1888). *
Curtis v. Mutton, 14 Vesey's Rep., 537 (1808).



PUBLIC POLICY 187

money to be laid out in the purchase of lands in Scot-
land, to be settled in a manner which would have been
void in England for remoteness, was held to be good. 1
The law of perpetuities was held to apply to a gift in
the Straits Settlements. 2 Trusts in the strict sense of
the word, not merely constructive, could probably not
be affixed by an English testator to lands situate abroad,
especially in a country where anything like the English
equitable estate is unknown.

The law of the domicil determines whether a deceased
person died testate or intestate. The legal representa-
tion of the deceased, collection of effects, and adminis-
tration are governed by lex situs, that is, the law of the
place where the property, moveable or immoveable, is
situate at the time of the death of the deceased. " The
court of the domicil," said Lord Westbury, " is the
forum concursus to which the legatees under the will of
a testator, or the parties entitled to distribution of the
estate of an intestate, are required to resort." 3 This is,
especially as to the word " required," since the case of
Ewing v. Orr-Ewing, perhaps too broadly stated, for in
that case Lord Selborne said that recourse must be had
not always or necessarily to the courts of the domicil
but always and necessarily to the law of the domicil.
The forum of the domicil is, however, in most cases the
most convenient one, though the English courts have no
doubt asserted their jurisdiction when even a very small
part of the property of the deceased has been in
England. In Ewing v. Orr-Ewing such an assertion of
jurisdiction led to some conflict between the English and

1 Fordyce v. Bridges, 2 Phillips's Rep., 497 (1848).

2 Yeap Cheah v. Ong Cheng, Law Rep., 6 Privy Council, 381
(1875).

3 Enohin v. Wylie, 10 House of Lords Cases, 1 (1862).



188 CONFLICT OF LAWS

Scotch courts. The testator in that case was a domiciled
Scotchman, his personal estate in Scotland was of the
value of 460,000, that in England of 25,000, and
before the trial all the English assets had been removed
into Scotland. The House of Lords held that the
English Chancery Division had under these circum-
stances jurisdiction to administer the whole estate, both
Scotch and English. 1 The Court of Session in Scotland
refused to accept the English decision on the ground
that it was contrary to international comity. On
appeal from the Scotch decision, the House of Lords
held that the claim of exclusive competency made
by the Court of Session was not supported by statute
or authority, but that under the circumstances a primA
fade case of convenience in favour of administration in
Scotland had been made out. 2 The ultimate effect of
this and other cases appears to establish that the ques-
tion of what tribunal is to administer the estate of the
deceased is one of convenience rather than of right 8
As to minor matters falling within this part of the
subject, the priorities of creditors are determined by the
lexfori, that is, the law of the tribunal of administration,
without regard to the law of the domicil. The ques-
tions of currency and interest are determinable by the
same law. Thus interest at four per cent (the English
rate) will be all allowed by an English court, though
the personalty is in a country where a higher rate is
allowed.

A will executed abroad is generally required to be

1 LAW Rep., 9 Appeal Cases, 34 (1884).

* Swing v. Orr-fiwing, Law Rep., 10 Appeal Cases, 453 (1885).

1 The mere fact that probate of a will has been granted by an
English court is not conclusive evidence that the testator was domi-
ciled in England



PROBATE 189

clothed with the authority of a court of the country
where any property affected by the will is situate, for
a grant of probate or anything corresponding to it is not
extra-territorial in effect. A will disposing of property
wholly situated abroad is not admitted to probate in
England, and where the testator was domiciled abroad
the English probate is limited to English assets where
there is property in England. A foreign probate is
conclusive both as to the grounds on which it was
granted and the period for which its authority continues.
As to the United Kingdom, there are statutory provi-
sions for the carrying into effect of probate or confirma-
tion granted in one kingdom in one of the other king-
doms. By 20 and 21 Viet, c. 79, s. 94, an English
probate or letters of administration may be sealed in
Ireland, and being duly stamped shall have the same
operation in Ireland as if it had been granted by the
Probate Division of the High Court of Justice in
Ireland. S. 95 provides for the opposite case of sealing
an Irish probate in England. By 21 and 22 Viet, c. 56,
s. 12, confirmation of the executor of a person who died
domiciled in Scotland, when produced in the Principal
Eegistry in England together with a certified copy of
the interlocutor of the commissary finding that such
deceased person died domiciled in Scotland, is to be
sealed with the seal of the English court, and has the
same effect as an English probate or letters of adminis-
tration. S. 13 makes a similar provision for sealing the
confirmation in Dublin. S. 14 provides for the due
indorsement by the commissary clerk in Edinburgh of
an English or Irish probate or letters of administration,
which, when duly stamped, will have the same effect as
a confirmation.



190 CONFLICT OF LAWS

Duties. On the death of a foreigner probate duty is
payable on any assets, the disposition of which was
governed by an English probate or letters of administra-
tion, in the same way as though he were a natural-born
British subject. The liability to legacy and succession
duty of foreign assets of a British testator or intestate,
or of British assets of a foreign testator or intestate, has
been the subject of numerous decisions, from which it is
perhaps possible to extract the following principles.

(1) Liability to legacy duty seems to attach more
directly to the person than does liability to succession duty.
Legacy duty is therefore not as a rule payable when the
testator is domiciled abroad, unless the fund has been
collected and placed in this country by the executor,
in which case any subsequent devolution of the property,
even in favour of a person domiciled abroad, becomes
liable to the duty.

(2) The estate of a foreigner engaged in trade in
England is liable to legacy duty. In one case the
liability was held to extend even to the estate of an
attache of a foreign embassy. 1 But in this case the
testator had acquired an English domicil before his
appointment as attache.

(3) Succession duty on personal property may be
payable where legacy duty is not payable, e.g. on
settled property in this country the property of a testator
domiciled abroad. It is payable by a foreigner who
benefits by the succession and is payable under certain
circumstances on foreign moveablo property, e.g. funds
of a foreign government or trading corporation com-
prised in a British settlement, vested in trustees subject

1 Attorney-General v. Kent, 1 Hurlatone and Coltman's Rep., 12
(1862).



DUTIES 191

to British jurisdiction, and recoverable by action in a
British court. 1

(4) Succession duty on real property in this country
is payable where the succession is to a person domi-
ciled abroad and in favour of a successor domiciled
abroad. For the purposes of succession rent charges and
estates pur autre vie are real property, even though they
descend like personal property.

(5) On the principle of Doe v. Vardill and Re Good-
man's Trusts it has been held that children legitimated
by the subsequent marriage of their parents are for the
purposes of succession duty to real property strangers in
blood and chargeable with duty at ten per cent, 2 but
for the purposes of legacy duty are so far legitimate
that they only pay duty at one per cent. 3

1 Re Cigala's Trusts, Law Rep., 7 Chancery Div., 351 (1877).

2 Atkinson v. Anderson, Law Rep., 21 Chancery Div., 100 (1882).
3 Skottowe v. Young, Law Rep., 11 Equity, 474 (1871).



CHAPTER XVII

SCOTLAND

THK Scotch law of succession is entirely independent of
the English, and few of the acts which have been cited
(except those relating to the Kevenuc) are operative in
Scotland. Legislation on the subject of testamentary
disposition began at a very early date, the earliest being
a clause in the Staluta Glide (attributed to the reign of
Alexander III, 1249-1286), enabling guild-brethren to be-
queath legacies to the guild. The law of intestate succes-
sion was also regulated by acts of the Scottish Parliament
Up to 1868 the great difference between the English
and Scotch law was that in the latter system wills of
immoveables were not allowed. The usual means of
obtaining disposition of heritage after death was a trust
disposition and settlement l by deed de prccsenti, under
which the truster disponed the property to trustees
according to the trusts of the settlement, reserving a life
interest. Thus something very similar to a testamentary
disposition was secured by means resembling those
employed in England before the Wills Act of Henry VIII.
The main disadvantage of the trust disposition was that

1 This term U Mill properly used to denote a testamentary disposition
of heritable property, while " testament " strictly applies only to a
disposition of movcables.



HISTORY 193

it was liable to be overthrown by the heir, who could
reduce ex cavite lecti all voluntary deeds made to his
prejudice within sixty days before the death of his
ancestor. In 1868 the Titles to Land Consolidation
Act (31 and 32 Viet., c. 101, s. 20) made it competent
to any owner of lands to settle the succession to them in
the event of death by testamentary or mortis causd deeds
or writings duly executed in the manner required or per-
mitted in the case of any testamentary writing by the law
of Scotland. This is of course subject to the children's
legitim and to the widow's right of terce if they have
not accepted any other provision. In 1871 reduction ex
capite lecti was abolished by 34 and 35 Viet., c. 81. A will
of immoveables, which may be partly written and partly
printed, must be executed with the formalities of a deed,
and duly registered in the Register of Sasines. A clause
of consent to registration is usually contained in the
disposition. The executor or trustee must apply the
lands for the purposes of the will. Rei interventus will
not constitute an improbative will a valid conveyance
inter vivos. As the law stands at present, a will, if not
holograph, must be executed in the presence of two
witnesses at least, with the solemnities enforced by the
Act 1681, c. 5 (in effect very much the same as those
of the English Wills Act), 1 or in the presence of a
notary or of the minister of the parish where the
testator resides. Where the testator cannot write, a
justice of the peace, notary, or parish minister may
subscribe the will for him in his presence and by his
authority before two witnesses. The witnesses to a will



1 lu addition to the provision that the testing clause was to
contain the name of the writer of the instrument. This, though no
longer necessary, is still generally inserted.



194 SCOTLAND

must be in all cases at least fourteen years of age and
subject to no legal incapacity, such as insanity, blindness,
or interest The disability of a woman as witness was
removed by the act of 1868. As to wills of moveables,
there are several important points in which they differ
from English wills, the influence of Roman law being
more marked. Males may make a will at fourteen,
females at twelve. A nuncupative legacy is good to
the amount of 100 Scots (8:6:8). A holograph
testament is good without witnesses, but it must be
signed as well as written by the testator, differing in
this from the old English holograph. By the Convey-
ancing Act, 1874, such a will is presumed to have been
executed on the date which it bears. There is not a
complete power of disposition of moveables, as in
England. The moveable property of the deceased is
subject to jus rdidce, or the widow's right to half if
there be no child or children, 1 and the legitim, or bairns'
part, half if there be no widow, one-third if there be a
widow. Only the remainder is disponible as dead's
part. 2 Legitim depends on survivance and is not
transmissible on predecease of a person prospectively
entitled to it Both jus rdidce and legitim may be
excluded by discharge or satisfaction, as by provision
in the contract of marriage. By the Married Woman's
Property Act, 1881, s. 7, the children of any woman
who may die domiciled in Scotland have the same right
to legitim out of her moveable estate as they would
have had out of their father's estate.

1 The Married Woman's Property Act, 1881 (44 and 45 Viet, c.
21, s. 6), gives a similar right to the husband.

* Up to 1855 the executor had a right under the Act 1617, c. 14,
to one-third of the dead's part, but this right was abolished by 18
and 19 Viet., c. 23.



LEGITIM HEIR AND EXECUTOR 195

Both heir and executor in Scotch law are more ex-
tensive terms than in English law. An heir includes an
heir in heritage or by destination, whether by tailzie or
otherwise, and also a person who succeeds to moveables
as a legatory or next of kin. An executor can only be
appointed by writing. He is either nominative (ap-
pointed by the testator) or dative or executor-creditor,
the latter two appointed by the court, and corresponding
in most respects to the English administrator. Caution
is required from the latter two, but not from the former.
The rights and duties of the heir and executor corre-
spond in most essential respects to those which have
been already treated under English law. 1 The executor
is bound to pay all debts pari passu except privileged
debts. Many sections of recent Acts of Parliament
simplify completion of title by an executor, e.g. he may
complete though there is no direct conveyance to him,
and he may do so by notarial instrument in a prescribed
form. The apparent heir may pursue for and discharge
rents and perform certain other acts necessary for the
advantage of the estate before his title is complete. By
30 and 31 Viet, c. 97, s. 18, the resignation of a trustee
who is also executor infers resignation as executor.
"Trustee" in the Trusts (Scotland) Acts does not, as
in the English Acts, expressly include an executor by
the interpretation clauses of the acts. Where an execu-
tor is also trustee his power of investment is now
regulated by the Trusts (Scotland) Amendment Act,
1884. By the common law doctrine of passive repre-
sentation, the heir or executor was liable to be sued for

1 In Scotch cases and text-books, English decisions are constantly
cited as authorities on the law of succession, especially in construction
of testamentary documents. The converse is not the case.



196 SCOTLAND

implement of the obligations of the deceased. The
Roman principle of beneficium inrentarii was first con-
ferred by the Act 1695, c. 24, under which the heir
became liable only to the value of the heritage exhibited
in inventory. The Conveyancing Act, 1874, provided
in more general terms that " an heir shall not be liable
for the debts of his ancestor beyond the value of the
estate of such ancestor to which he succeeds." As the
law stands at present, the heir or executor is liable
only to the amount of the succession, except where he
has made himself liable by passive title. The principal
examples of passive title are vitious intromission in the
case of moveables, gestio pro herede, or behaviour as heir,
and prceceptio hereditatis, or premature taking of the
succession in the case of heritables.

Before the executor has authority to act, he must
obtain confirmation, which includes both the probate
and the letters of administration of English procedure.
In order to obtain confirmation, an inventory must be
duly exhibited. Confirmation granted to an executor-
creditor may, by 4 Geo. IV, c. 98, s. 4, be limited to the
amount of his debt A judicial factor may be appointed
on petition of creditors of the deceased. Without con-
firmation by the court interference by the executor