petition, the Court adhered. The children of the full blood then appealed to the House of Lords. After counsel on both sides had been heard, the Chancellor (Lord Thurlow) spoke to the following effect: "That as he had no doubt that the decree ought to be affirmed, he would not have troubled their lordships by delivering his reasons, had it not been pressed with some anxiety from the bar, that if there was to be an affirmance, the grounds of the determination should be stated, to prevent its being understood that the whole doctrine laid down by the interlocutor appealed from, and particularly that on which it was said the judges of the Court of Session proceeded principally in this and former cases similar to it, had the sanction of this house. It had been urged that the judgment should contain a declaration of what was the law, and he had revolved in his own mind whether that would be expedient. It was not usual in this house, or in the courts of law, to decide more than the very case before them, and he had particular reluctance to go farther in the present case, because as had been stated with great propriety by one of the respondent's counsel, various cases had been decided in Scotland upon principles, which if this house were to condemn, a pretext might be afforded to disturb matters long at rest. But he could have no objection to declare what were the grounds of his own opinion, and how far he coincided with the rules laid down by the court below. Two reasons were assigned for having declared that the distribution of Major Bruce's personal estate ought to be according to the law of England; 1st, That India, a country subject to that law, was to be held as the place of his domicilium. The second reason assigned by the interlocutor was, that the property of the deceased which was the subject of distribution, was at the time of his death in India or in England. As to this he founded so little upon it, that he professed not to see how the property could be considered to be in

England. It consisted of debts owing to the deceased, or money in bills of exchange drawn on the India Company. Debts have no situs, they follow the person of the creditor. That proposition in the interlocutor therefore fails in fact.

After examining the circumstances establishing the domicile of Major Bruce, and expressing his concurrence in this part of the judgment of the Court of Session, his lordship proceeded to add, "that though he would move a simple affirmance of the decree, yet he would not hesitate as from himself to lay down for law generally, that personal property follows the person of the owner, and in case of his decease must go according to the law of the country where he had his domicile; for the actual situs of the goods has no influence. He observed that some of the best writers in Scotland lay this down expressly to be the law of that country, and he quoted Mr. Erskine's institutes as directly in point. In one case it was clearly so decided in the Court of Session, and in the other cases which had been relied on as favouring the doctrine of lex loci rei sitæ, he thought he saw ingredients which made the court, as in the present case, join both domicilium and situs. But to say that the lex loci rei sita is to govern, though the domicilium of the deceased be without contradiction in a different country, is a gross misapplication of the rules of the civil law and jus gentium, though the law of Scotland on this point is constantly asserted to be founded on them." (a)

This opinion, with the judgment, settled the law of Scotland, and placed it on the true footing, conformably with the law of Europe. This decision was followed in Hog v. Lashley, and Ommaney v. Bingham. The rule laid down by Lords Thurlow and Loughborough in these cases is, that the succession to the personal

(a) Bruce v. Bruce, cited Marsh v. Hutchinson, 2 Bos. and Pull. 230.

estate of the intestate is to be regulated by the law of the country in which he was a domiciled inhabitant at the time of his death, without any regard whatever to the place, either of the birth, or the death, or the situation of the property at that time. That is the clear result of the opinion of the House of Lords. (a)

In the case of Colville v. Lauder, and in Brown v. Brown, it was expressly admitted. (b)

The law of the domicile of the intestate, at the time of his death, and not that of his former domicile, is to be applied. But it must not be understood, that a residence alone constitutes a domicile for the purpose of subjecting the succession of the intestate's property to the law which prevails there. (c) "Sed veriùs est, neque solam animi destinationem aut voluntatem, sine actuali habitatione, neque etiam solam habitationem per se, etiamsi sit longissimi temporis, sine permanendi voluntate domicilium constituere, sed duo, voluntatem scilicet et factum habitationis requiri, et conjunctim adesse debere; quoties ex duobus illis requisitis unum deficit, ibi non esse domicilium; adeoque omnes eos, qui ex temporali causâ in aliquo loco habitant, ibi quidem habitationem habere, neutiquam vero domicilium contraxisse censere. (d)

"Hinc successio legitima defertur secundum leges territorii in quo defunctus domicilium habuit, licet ipse alibi mortuus sit, et leges Imperii communes hæreditatem aliis deferant, ac res mobiles extra illud territorium reperiantur." (e)

A temporary residence for the purposes of trade or health, from the apprehension of the incursion of an

(a) Somerville v. Somerville, 5 Ves. 750.

(b) Dict. Success. app. 1. 4 W. and S. 28.

n. 87, 94. Menoch. lib. 6, præs. 42. Carpz. Cujac. 24, obs. 34. Mæv. ad Jus Lub. lib. 1,

(c) Rodenb. de Jure, tit. 2, c. 2. n. 1. (d) Lauterb. Disp. 72, c. 4, lib. 2, tit. 2, resp. 22, n. 20. tit. 2, n. 55.

(e) Carpz, J. F. p. 3, const. 12, def. 13, 19, et lib. 6, tit. 4, resp. 38.

enemy, or on account of the disturbances in his country, or from any other casualty, if the party has not fixed sedem suarum fortunarum, but retains an intention of returning, will not constitute a domicile.

If a person leaving his domicile at Utrecht should go into Spain, and dwell there for many years, following the business of a merchant, and afterwards should return home, and then should go to Amsterdam, and there tarry, engaged in the mercantile business, and should die, but at the same time retain his domicile at Utrecht by all those means which are used for that purpose, the law of Utrecht will regulate the succession to his personal estate. (a)

(a) Someren, de Repræs, c. 3, n. 11, 13. Respons. Juris Holl. part 5, cons. 85, part 3, vol. 2, cons. 4; cons. 138, n. 24, et seq. and part 4, cons. 174. Rodenb. de Jure, Conj. Tr. Prælim. Tr. 2, c. 5, n. 16. Van Leeuwen. Cens. For. part 1, lib. 3, c. 12, n. 5. Carpz. Def. For. part 3, cons. 12, def. 16. Voet, lib. 38, tit. 18, n. 34, 35. 2 Hagg. Cons. Rep. 430.

CHAPTER V.

SUCCESSION BY TESTAMENT.

I. The power of disposing by testament.-Restraints to which it was subject. In respect of the person in whose favour it was exercised. Of the property to which it extended.-Doctrine of the civil law. The institution of the heir.-The disherison or preterition of children, &c.—Inofficiosum testamentum.-Persons entitled to set it aside.-Cannot be set aside if there are just causes of disherison. What are just causes.-Not if the legitime has been given. Other grounds on which this relief may not be competent. Within what time the proceeding must be taken.--Effect of the judgment declaring the testament inofficious.

II. The laws of Holland, and III. of Spain, with some few exceptions, adopt the rule of the civil law.

IV. Coutume of Paris.-The institution of heir is no part of the coutume.— The testamentary power limited to certain portions and certain descriptions of property.

V. The coutume of Normandy rejects the institution of heir, and imposes still further restrictions on the testamentary power.

VI. Code civil.-Its modification of the two opposite systems under the civil law and coutumes.-As to the institution and seisin of heirs.The restrictions on the power of disposing.

VII. Scotland. No destination by proper testament of heritage or heritable subjects. But heritage may be settled by a testamentary deed if proper expressions are used.-Law of deathbed.-Survivance of sixty days, going to kirk or market.-Power of disposing of moveable property by testament, but restricted in order that it may not defeat the jus relicta and children's legitime.

VIII. England. The power of disposition of lands by testament existed before the Conquest.-Effect of the feudal system in restraining it. Customs where the power of devising it was retained.-Removal of the restriction by the statute of wills.-Real estate of which the testator not seised at the date of his will cannot pass.-Power of disposing of moveables without restriction.