COUNSEL: Davey, Q.C., and Speed, for the Appellant.

D. L. Alexander, for the Petitioners.

Bleby, and Brabant, for other parties.

 

SOLICITORS: Wild, Browne, & Co.; Capron & Co.

 

JUDGES: Lush, Cotton and James, L.JJ.

 

DATES: 1881 Feb. 28; March 4; April 13.

 

 

Statute of Distributions – 22 & 23 Car. 2, c. 10, ss. 6, 7 – Next of Kin – Brother’s Child – Intestate domiciled in England – Child legitimated by Subsequent Marriage – Foreign Law.

 

The Statute of Distributions being a statute not for Englishmen only but for all persons, English or not, dying intestate and domiciled in England,and applying universally to persons of all countries, races, and religions whatsoever, the proper law for determining the “kindred” under that statute is the international law adopted by the comity of states.

 

Therefore a child born before wedlock, of parents who were at her birth domiciled in Holland, but legitimated according to the law of Holland, by the subsequent marriage of her parents:-

 

Held (by James and Cotton, L.JJ., dissentiente Lush, L.J.), entitled to a share in the personal estate of an intestate dying domiciled in England as one of her next of kin, under the Statute of Distributions.

 

Boyes v. Bedale (1) disapproved.

 

The decision of Jessel, M.R., reversed.

 

THIS was an appeal by Hannah Pieret from a decision of Jessel, M.R.(2), disallowing her claim as one of the next of kin of Rachel Goodman.

 

Rachel Goodman died unmarried in 1878, domiciled in England,and a legacy given by her will having lapsed to her next of kin, was paid into Court under the Trustee Relief Act, and the question for decision was who were her next of kin at the time of her death.

 

It appeared that her sole next of kin were the children of her two deceased brothers. One of these brothers, Leyon Goodman,had three illegitimate children in England by Charlotte Smith, and in 1820 went to Holland with the intention of permanently residing there. While in Amsterdam he had another illegitimate child by Charlotte Smith, Hannah Pieret, the present Appellant. In 1822, while still in Amsterdam, he married Charlotte Smith, and thereby the previously born children became legitimate according to the law of Holland. They afterwards had another child, Anne Denis,who claimed to be the only legitimate child according to the English law. The Master of the Rolls decided that Hannah

 

(1) 1 H. & M. 798.

 

(2) 14 Ch. D. 619. [*267]

 

Pieret was illegitimate according to English law, and she appealed from this decision.

 

The facts are more fully stated in the previous report.

 

Davey, Q.C., and Speed, for the Appellant:–

 

The persons who are to take under the statute must be the children, the sons and daughters, of the intestate’s two brothers. The question whether the Appellant is a daughter of Leyon Goodmanor not is one of status to be determined by the law of domicil of the father: Story, Conflict of Laws(1); Huberus, De Con. Leg.(2); Vinnius, Ad. inst.(3); Burge on Foreign and Colonial Law(4).

 

She has already been declared to be a legitimate child in Goodman v. Goodman(5), a suit relating to her grandfather’s estate, and the reason why the three children born in England were excluded was that the father was on their respective births domiciled in England.

 

In the case of Doe v. Vardill (6), the son, being an ante natus,was held not entitled to inherit real estate in England; but in that case Lord Brougham, with the apparent consent of all the Lords, assumes as an incontrovertible proposition that as regards personal estate he could succeed; the decisions of the Barons as declared in the Statute of Merton only affected the law of inheritance, and the inference may be drawn from the demand of the Bishops being confined to that, that as regards succession to personal estate, the canon law then prevailed.

 

The case of Boyes v. Bedale(7) is no doubt against the Appellant; but the observation of Vice-Chancellor Wood on the effect of the statute is only a dictum. The decision was that a child born before marriage and subsequently legitimated by a marriage in France was not included in the term “children” in the will of a testator domiciled in England, on the principle that the will is to be construed and effect given to it according to the English law, the law of the domicil. That is so, no doubt, but that does not affect the question here, who is the “child,” for it is part of the law of England that the status of the child is to be determined by

 

(1) 93, b.

 

(2) Lib. i. tit. 3, ¤ 9.

 

(3) Lib. i. tit. 3, Introd.

 

(4) Vol. i. pp. 59-97.

 

(5) 3 Giff. 643.

 

(6) 2 Cl. & F. 571; 7 Cl. & F. 895; 6 Bing. N. C. 385; 9 Bl. N. R. 32.

 

(7) 1 H. & M. 798, 805. [*268]

 

the law of the domicil of the father. The Vice-Chancellor, we submit, was right in his principle, but wrong in his application of it to the facts.

 

In Re Wright’s Trusts (1), at the time of the birth of the claimant the father was domiciled in England, which is the case of the three children of Leyon Goodman who were excluded.

 

In Udny v. Udny (2) Lord Hatherley describes the former decisions in Boyes v. Bedale (3) and Re Wright’s Trusts as holding that by English law a bastard child whose putative father was English at its birth could not be legitimated by the father afterwards acquiring a foreign domicil and marrying the mother in a country where subsequent marriage legitimates issue.

 

Re Don’s Estate (4) was the converse of Doe v. Vardill (5), viz., that a father could not inherit English land as heir of an ante natus son; but Vice-Chancellor Kindersley there states the principle to be such as we are contending for, viz., that the legitimacy or illegitimacy of any individual is to be determined by the law of that country which is the country of his origin, that if he is legitimated by the law of that country his personal status here is that of a legitimate son.

 

The judgment of Lord Wensleydale in Fenton v. Livingstone(6) is in our favour; he says that the distribution of personal estate is governed by the law of the domicil. So too is Skottowe v. Young (7), a case under the Legacy Duty Acts, where the Vice-Chancellor held persons in exactly the same situation as Mrs. Pieret to be “children” and liable to pay duty at 1 per cent. only.

 

[They also referred to Wallace v. Attorney-General (8); Munro v. Saunders (9); Shedden v. Patrick (10); Strathmore Peerage Case (11); Rose v. Ross (12); Munro v. Munro (13); Shaw v. Gould (14); In re Wilson’s Trusts (15).]

 

If the Master of the Rolls is right, children legitimate by the law of Australia, e.g., children of the marriage of a man with a

 

(1) 2 K. & J. 595.

 

(2) Law Rep. 1 H. L., Sc. 441, 447.

 

(3) 1 H. & M. 798, 805.

 

(4) 4 Drew. 194.

 

(5) 2 Cl. & F. 571; 7 Cl. & F. 895; 6 Bing. N. C. 385; 9 Bl. N. R. 32.

 

(6) 3 Macq. 497, 547.

 

(7) Law Rep. 11 Eq. 474.

 

(8) Law Rep. 1 Ch. 1.

 

(9) 6 Bli. 468.

 

(10) 1 Macq. 535.

 

(11) 4 Wils. & Shaw, App. 89.

 

(12) 4 Wils. & Shaw, 289.

 

(13) 7 Cl. & F. 842.

 

(14) Law Rep. 3 H. L. 55.

 

(15) Ibid. 1 Eq. 247. [*269]

 

deceased wife’s sister, if they came to settle in England, and become domiciled here, would be bastardized.

 

The law of England does adopt the general rules of jurisprudence recognised by foreign countries, provided they are not contra bonos mores.

 

D. L. Alexander, for the Petitioners:–

 

An English statute must be construed according to the interpretation put upon words by the English law. Here the nearest of kindred are the “children” of the intestate’s brothers: sect. 7. We are thus thrown back on the meaning of the word “children,” and that by English law means “children born in wedlock.” A will is construed according to the law of the domicil of the testator, and the ascertainment of the persons who are to take under such rill is also to be made under the same law: Story, Conflict of Laws(1).

 

Boyes v. Bedale (2) is in my favour; if that case is right, its reasoning will à fortiori apply here.

 

It is really stronger in the case of an intestacy than in that of a will, for there may be a question whether there may not be a sufficient descriptio person3Ú4 as to shew that by “child” the testator meant an illegitimate child.

 

The succession to personalty is governed by the law of the domicil, not of the claimant, but of the deceased intestate – in this case an English domicil: Doglione v. Crispin (3), and the observations of Lord Westbury in Enohin v. Wylie (4).

 

Under the statute no one can come in who is not born in lawful wedlock. A constructive legitimacy, by a notion of relation back, is not such as will entitle a person to claim.

 

Bleby, and Brabant, for other parties.

 

Davey, in reply.

 

 

April 13. LUSH, L.J.:-

 

This case raises a question of great importance, namely,

 

(1) 479, a, 479, c.

 

(2) 1 H. & M. 798.

 

(3) Law Rep. 1 H. L. 301.

 

(4) 10 H. & C. 1, 13. [*270]

 

whether, in the administration of the goods of an intestate English subject domiciled in England, a child of the intestate’s brother, born illegitimate in Holland, but legitimated in that country by the after-marriage of the father and mother, both being at the time of the birth and marriage domiciled in Holland,is entitled to claim as one of the next of kin under the Statute of Distributions. The contention on the part of the Appellant is that her status in Holland as a legitimated child of the brother of the intestate entitles her as “brother’s child” within the meaning of that statute, thus raising the question whether the statute is to be interpreted with reference to the civil law or to the common law.

 

It was admitted, and, as far as my researches have enabled me to form an opinion, rightly admitted, by the counsel on both sides that no decision is to be found in our books which sanctions such a construction of the Act. It is well established that the distribution of an intestate’s property is governed by the law of his domicil. If the father of the claimant, being domiciled in Holland and dying intestate, had left personal property in this country, our Courts would have administered it, not under the Statute of Distributions, but according to the law of Holland, and in that administration the claimant would have been treated as one of his lawful children. To that extent, and with reference to that course of administration, it might truly have been said that her status in her own country was recognised and accepted as her status here. But we are dealing with the estate of an intestate who was domiciled in England, and in such a case the administration is to be according to English law. This is admitted on all sides; but then it is argued for the Appellant that English law, even when it has to deal with an English estate, has so far yielded to the comity of nations as to accept the status established by the law of the claimant’s domicil, and, departing from its own table of consanguinity, to treat as of kin a person who if born in this country would have been filius nullius. This is the point upon which I have the misfortune to differ from my learned colleagues.

 

The only authority for this doctrine is to be found in the opinions of foreign jurists, and in some dicta of our own Judges [*271] based upon those opinions. It will be remembered that in the well-known case of Doe v. Vardill, which I shall presently have to discuss more fully, Lord Brougham warmly advocated this doctrine in the House of Lords, and with perfect consistency sought to carry it to its full extent as applicable to the succession to land where, as in that case, the alleged heir was a British subject; but the House declined to adopt his views, and decided that a Scotchman legitimated in Scotland by the subsequent marriage of his parents, could not take as heir to his father in England, because he was not born in lawful wedlock. I cannot help remarking, in passing, that this point being established, a decision in favour of the present claimant would now present the singular anomaly pointed out by Lord Brougham,that the same person may be both legitimate and illegitimate in the same country; legitimate as regards succession to personalty, illegitimate as regards succession to real estate. In the Appellant’s own country no such anomaly exists. She is legitimated there for all purposes. But if she died seised of real estate in this country intestate and childless, that estate would undoubtedly go to the Crown, but her personalty, if she succeeds in her present claim, would go to those who by the law of Holland are her kindred.

 

I believe I may say with perfect accuracy that no trace of such an inroad upon the ancient common law of England is to be found in any digest or treatise of English law, nor in any dicta of Judges until comparatively modern times. That it was part of the ancient law of England that a person born out of lawful wedlock was deemed filius nullius cannot be disputed. And as such a person had no kindred in the ascending line it follows that he had no collateral relations. The oft-quoted Statute of Mertonshews that the clergy of that day sought to introduce the canon law, which, like the civil law, recognised the subsequent marriage of the parents as legitimating the previous issue, but that the Barons stoutly resisted it. To understand the early part of this statute it must be remembered that general bastardy where it was put directly in issue, whether in a real or in a personal action(1), was tried by the certificate of the Ordinary; the validity of the marriage being supposed to be within the exclusive cognizance of

 

(1) 2 Roll. Abr. 865. [*272]

 

the Church (Com. Dig. Bastardy, D. 2); but special bastardy, as it was called, of which the question put in the King’s writ mentioned in the statute is an instance, was tried by the country, that is, by the rules of the common law(1); and general bastardy when not put directly in issue, was also tried by the country. This explains the answer of the Bishops to the King’s writ. The Statute of Merton is in these terms: “To the King’s Writ of bastardy, whether one being born before matrimony may inherit in like manner as he that is born after matrimony, all the Bishops answered that they would not, nor could not answer to it because it was directly against the common order of the church, and all the Bishops instanted the Lords that they would consent that all such as were born afore matrimony should be legitimate as well as they that be born after matrimony as to the succession of inheritance, for as much as the church accepteth such for legitimate. And all the Earls and Barons with one voice answered that they would not change the laws of the realm which hitherto had been used and approved.”

 

It was argued that this decision of the Barons affected only the law of inheritance, and that it may be inferred from the demand of the Bishops being confined to that branch of our law, that the canon law already prevailed in the succession to personalty, and some of the reasoning in Doe v. Vardill undoubtedly favours this view. But this appears to me to be pure speculation, and when the subject is considered in all its bearings, it will be seen that there is no foundation for it. It is easy to conceive why at that day prominence should be given to real estate, and that the Bishops might well conclude that if the canon law were introduced into the law of inheritance, it would be let in without hesitation to the succession to personalty. The church had no more jurisdiction to certify the question proposed in the writ in a personal than in a real action. It was always tried by the country. It was true that the Ordinary had at that time the disposal of the goods of an intestate, and after paying the widow and children their partes rationabiles they might apply the surplus as they pleased, free from the control of the temporal Courts(2). How they disposed of the

 

(1) 2 Roll. Abr. 865.

 

(2) 2 Bl. Com. 494; 1 Williams, Executors, pt. i. bk. v. p. 402. [*273]

 

surplus is immaterial to the present question. If the common law had recognised any distinction at that time between the succession to real and the succession to personal estate, it would have been a strong argument for the Bishops, and something one would expect would have been said about it. The Statute of Merton has been the subject of further consideration since Doe v. Vardill was decided. Even Lord Brougham, who so strenuously opposed that decision, said in the later case of Fenton v. Livingstone (1): “Doe v. Vardill, in some of the opinions of the learned Judges below, is supposed to have been decided in consequence of a statutory provision, but the Statute of Merton is only declaratory of the common law – or rather it is a refusal to alter that law.” Lord Wensleydale expressed himself to the same effect, and Lord Hatherley, when Vice-Chancellor Wood, in his judgment in Re Wright’s Trusts (2), says: “Ever since the discussion that took place in Doe v. Vardill it has been acknowledged by all parties, and by Lord Brougham himself, who was opposed to the view of the Judges, that the Statute of Merton, though it is confined to the inheritance of lands, is nevertheless to be taken as a declaratory Act of the common law as it then existed. That is strongly verified by the presumption which arises from the contemporaneous change in the form of the writ directed to the bishop which used to be open, but which from fear of the bishop’s attachment to the law of the church has been altered, and instead of sending an open writ to him to inquire as to bastardy, they always send to inquire whether the child was born in wedlock.” I have already shewn that when bastardy was put directly in issue the writ went to the bishop to certify as well in a personal as in a real action.

 

I therefore read the Statute of Merton as declaring that no innovation upon the ancient law of England, of the nature of that demanded by the Bishops shall be made at all. Not that the civil law was unknown to or unnoticed by the temporal Courts. In 1 Roll. Abr. tit. Bastardy D., it is said, quoting 47 Edw. 3, 14. b, 11 Hen. 4, 84, Bracton, book v. pp. 416, 417: “If A. has issue by B., and afterwards they intermarry, still the issue is bastard by

 

(1) 3 Macq. 497, 532.

 

(2) 25 L. J. (Ch.) 621, 627; S. C. 2 K. & J. 595. [*274]

 

our law, but mulier by the civil law” (mulier being the designation of one born of a wife).

 

There is here no suggestion of any distinction between succession to real and succession to personal estate. Blackstone thus deals with the question, who are bastards(1): “A bastard by our laws is one that is not only begotten but born out of lawful matrimony. The civil and canon laws do not allow a child to remain a bastard, if the parents afterwards intermarry; and herein they differ most materially from our law, which though not so strict as to require that the child shall be begotten, yet it makes it an indispensable condition, to make it legitimate, that it shall be born after lawful wedlock. And the reason of our English law is surely much superior to that of the Roman if we consider the principal end and design of establishing the contract of marriage, taken in a civil light, abstractedly from any religious view which has nothing to do with the legitimacy or illegitimacy of the children. The main end and design of marriage being therefore to ascertain and fix upon some certain person to whom the care, the protection, the maintenance, and the education of the children should belong, this end is undoubtedly better answered by legitimating all issue born after wedlock than by legitimating all issue of the same parties even born before wedlock so as wedlock afterwards ensues, 1. Because of the very great uncertainty there will generally be in the proof that the issue was generally begotten by the same man, whereas by confining the proof to the birth and not to the begetting, our law has rendered it perfectly certain what child is legitimate and who is to take care of the child. 2. Because by the Roman Law a child may be continued a bastard or made legitimate at the option of the father and mother by a marriage ex post facto, thereby opening a door to many frauds and partialities which by our law are prevented. 3. Because by those laws a man may remain a bastard till forty years of age, and then become legitimate by the subsequent marriage of his parents whereby the main end of marriage, the protection of infants, is totally frustrated. 4. Because this rule of the Roman Law admits of no limitations as to the time or number of bastards so to be legitimated, but a dozen of them may twenty years after their birth by

 

(1) Book i. p. 455. [*275

the subsequent marriage of their parents be admitted to all the privileges of legitimate children. This is plainly a great discouragement to the matrimonial state, to which one main inducement is usually not only the desire of having children, but also the desire of procreating lawful heirs, whereas our constitutions guard against this indecency, and at the same time give sufficient allowance to the frailties of human nature. For if a child be begotten while the parents are single, and they will endeavour to make an early reparation for the offence by marrying within a few months after, our law is so indulgent as not to bastardize the child if it be born, though not begotten, in lawful wedlock, for this is an incident that can happen but once, since all future children will be begotten as well as born within the rules of honour and civil society. Upon reasons like these we may suppose the peers to have acted at the Parliament of Mertonwhen they refused to enact that children born before marriage should be esteemed legitimate. From what has been said it appears that all children born before matrimony are bastards by our law.”

 

In another chapter, book ii. c. 15, on “The rights of things,” he states one instance in which our law shews indulgence to persons born out of lawful wedlock, but whose parents afterwards intermarry. He says, “There is indeed one instance in which our law has shewn them some little regard, and that is usually termed the case of bastard eign and mulier puisn. This happens when a man has a bastard son and afterwards marries the mother and by her has a legitimate son, who, in the language of the law, is called a mulier, or as Glanvil expresses it in his Latin, filius mulieratus, the woman before marriage being concubina and afterwards mulier. Now here the eldest son is bastard, or bastard eign,and the younger son is legitimate, or mulier puisn. If then the father dies, and the bastard eign enters upon his lands and enjoys it to his death and dies seised thereof whereby the inheritance descends to his issue, in this case the mulier puisn and all other heirs (though minors, femes coverts, and under any incapacity whatever) are totally barred of their right. And this, 1. As a punishment on the mulier for his negligence in not entering during the bastard’s life and evicting him. 2. Because the law [*276

will not suffer a man to be bastardized after his death, who entered as heir and died seised and so passed for legitimate in his lifetime. 3. Because the canon law (following the civil) did allow such bastard eign to be legitimate on the subsequent marriage of his mother, and therefore the laws of England (though they would not admit either the civil or canon law to rule the inheritance of this kingdom yet) paid such regard to a person thus peculiarly circumstanced that after the land had descended to his issue they would not unravel the matter again and suffer his estate to be shaken. But this indulgence was shewn to no other kind of bastard, for if the mother was never married to the father such bastard could have no colourable title at all.” These extracts, written nearly a century after the passing of the Statute of Distributions, shew that the learned commentator was not aware of any concession to the canon and civil law which should entitle a legitimated ante natus to rank in our table of consanguinity as a child born in wedlock. If he had, surely he would in one or other of these paassges have mentioned it.

 

The Ordinary continued to have the disposal of the goods of an intestate until the 31 Edw. 3, st. 1, c. 11. That Act required him to depute “the next and most faithful friends” of the intestate to administer his goods, that is, said Coke, “the next of blood who are not attainted of treason, felony, or other lawful disability, but are lawful friends”: Hensloe’s Case (1). This is the original of administrator: Williams on Executors(2). The 21 Hen. 8, c. 5, s. 3, is founded upon the authorities cited by Coke. It enlarges in some degree the power of the ecclesiastical Judge by providing that in case any person dies intestate, or that the executors named in any testament refuse to prove it, the Ordinary shall grant administration to “the widow of the deceased, or to the next of his kin, or to both as by the discretion of the same Ordinary shall be thought good.” And the section goes on to say, that “where divers persons claim the administration as next of kin, which be equal in degree of kindred to the testator or person deceased, and where any person only desireth the administration as next of kin where indeed divers persons be in equality of kindred as is aforesaid, that in every such case the Ordinary to be at his election

 

(1) 9 Rep. 39, b.

 

(2) Vol. i. pt. i. bk. v. p. 403. [*277]

 

and liberty to accept any one or more making request where divers do require the administration.”

 

The “next of kin” mentioned in this statute are the “next of kin” mentioned in the Statute of Distributions. Any person filling that relation so as to be entitled to share in the distribution, is entitled in his order, subject to the discretion of the Ordinary given by the Act of Hen. 8, to take out administration. I have been unable to find an instance in which administration to an English estate has been granted, or even applied for, to a child born out of wedlock but domiciled and legitimated in a foreign country.

 

Of the Statute of Distributions the late Mr. Justice Williamssays: “It is obvious to observe how near a resemblance this statute bears to the ancient English law de rationabili parte bonorum.

 

“It also bears some resemblance to the Roman Law of Succession ab intestato, which, and because the Act was also penned by an eminent civilian (Sir Walter Walker) has occasioned a notion that the Parliament of England copied it from the Roman Pr3Ú4tor, though it is little more than a restoration, with some refinements and regulations, of our old constitutional law, which prevailed as an established right and custom from the time of King Canutedownwards, many centuries before Justinian’s laws were known or heard of in the western parts of Europe”(1); and Holt, C.J., laid it down in Blackborough v. Davies (2), in reference to this statute, that if the Spiritual Court attempted a distribution contrary to the rules of the Common Law, they would prohibit, “for by that statute,” said he, “they are restrained to the rules allowed among us.”

 

I now come to the dicta of Judges which are supposed to sanction the doctrine contended for by the applicant, namely, that English law recognises for the purposes of succession to the personal estate of an intestate domiciled in England the status of legitimacy which the applicant has acquired in his or her foreign domicil. The first in order and importance is Doe v. Vardill (3).

 

(1) Wms. Exrs. 8th Ed. p. 1493.

 

(2) 1 P. Wms. 49, 50.

 

(3) First reported in 5 B. & C. 438. [*278

The facts were that W., domiciled in England, died intestate, leaving one brother who was domiciled in Scotland, and who, after having had an illegitimate son, married the mother of the child, who thereby became by the law of Scotland legitimated. The Plaintiff was that son, and he claimed to inherit the lands in England as heir to W.

 

Tindal, who afterwards became Lord Chief Justice of the Common Pleas, contended for the Plaintiff that legitimacy was a personal status which accompanied the man wherever he went, and after citing Huber, “De Conflictu Legum,” and other writers on international law, in support of the proposition, said it must be conceded that the rules laid down by these writers could only apply where our laws admit the existence of a corresponding status,and where they are not at variance with any positive law, and instanced the status of slavery as one “which was not recognised in this country.” After quoting Dalrymple v. Dalrymple (1) that the validity of a foreign marriage must be tried by the law of the country where it was celebrated, and the status thereby acquired is recognised in every other country, he says: “in like manner in cases of intestacy the foreign law prevailing at the place of the intestate’s domicil, has governed the distribution of property in this country. The argument for the Plaintiff only extends to the recognition of the status of marriage and of legitimacy which are known to the whole of Europe where Christianity is professed. We do recognise the foreign marriage, why not the consequences also?” The counsel on the other side pressed on the Court that this country does not recognise any foreign status where it is contrary to the spirit of our moral, religious, and political opinions.

 

I have set out the substance of the arguments in order to explain passages in the judgment which are ambiguous, and which I venture to think have been misunderstood. Abbott, C.J., said (2): “The rule as to the law of domicil has never been extended to real property, nor have I found in the decisions in Westminster Hall any dictum giving countenance to the idea that it ought to be so extended. Two decisions in the House of Lords have, however, been referred to, whence it is said such an opinion may be inferred: it is therefore satisfactory to me to know that

 

(1) 2 Hagg. Const. 58.

 

(2) 5 B. & C. 451. [*279]

 

this case may be carried before that tribunal. There being no authority for saying that the right of inheritance follows the domicil of the parties, I think it must follow that of the country where the land lies. Personal property has no locality, and even with respect to that, it is not correct to say that the law of Englandgives way to the law of a foreign country, but that it is part of the law of England that personal property should be distributed according to the jus domicilii. ... It is not against our law that a foreign marriage, however solemnized, should be held good. We adopt the laws of all Christian countries as to marriage, but it by no means follows that we are to adopt all the consequences of such marriages which are recognised in foreign countries; it is sufficient if we admit all such consequences as follow from a lawful marriage solemnized in this country.”

 

The single paragraph that “it is part of the law of Englandthat personal property should be distributed according to the jus domicilii,” forms the basis of the Appellant’s argument. Bat to my mind it is obvious, looking to the argument and the well-established rules of distribution, that the domicil referred to is not that of the person who claims to participate in the distribution, but the domicil of the intestate whose property is under administration.

 

The property of an intestate domiciled in a foreign country, as I before observed, is and always has been distributed according to the foreign law, and if the property in question had belonged to a person domiciled in Holland, the Appellant would undoubtedly have been entitled. But the property of an intestate domiciled in England is and always has been distributed according to English law. The concluding sentence of the judgment expresses the view of the Lord Chief Justice as to the law of England, and its its recognition of the consequences of marriage to such “as follow from a lawful marriage solemnized in England.”

 

Bayley, J., says(1): “I concede that the lex loci governs the question of marriage, but whether all the consequences recognised in a foreign country as following upon a marriage there, are also to be recognised in this country, is a very different question, and I think must be answered in the negative.” Holroyd and Littledale

 

(1) 5 B. & C. 453. [*280]

 

JJ., expressed themselves to the same effect. Though the judgment is confined to the point in question, namely, the right of succession to real estate, the observations quoted in answer to the arguments shew conclusively to my mind that neither of these Judges would, under the circumstances of this case, have sanctioned the Appellant’s claim.

 

The two cases in the House of Lords quoted in the argument and referred to by the Lord Chief Justice, are Shedden v. Patrick (1) and the Strathmore Peerage Case (2). Shedden v. Patrick was an appeal from the Court of Session. Shedden, of New York, entered into a regular marriage there with a woman who had previously borne him two children. He died there intestate, leaving an estate in Ayrshire. The marriage had not the effect in America of rendering the children legitimate. It was held that the son could not inherit the estate in Scotland, because his legitimacy or illegitimacy must be determined according to the laws of America, where his parents were domiciled and where he was born, and by the laws of that country he was illegitimate. It was argued in Doe v. Vardill, and perhaps rightly argued, that if the claim in Shedden v. Patrick had been founded upon circumstances similar to those upon which the case then in question depended, the claim would have been established by the House of Lords. For the House was sitting to administer the law of Scotland, and if the civil law had prevailed in America as it prevails in Scotland, the claimant might have been held legitimate by the law of Scotland and entitled to inherit. The Strathmore Peerage case was decided on the same principle.

 

It cannot, I should think, be doubted that a person legitimated by a subsequent marriage would, in any country where the canon or civil law prevails, be recognised as legitimate; but we are dealing with English law, which has never, that I can find, adopted this rule of the canon or civil law, but on the contrary, has persistently repudiated it and steadily abided by the Common Law of England.

 

The next reported stage of Doe v. Vardill is in 2 Clark & F. p. 571; 9 Bligh’s New Reps. p. 32. The question had been argued before the Judges, and their opinion was delivered by

 

(1) 1 Macq. Sc. 535.

 

(2) 4 Wils. & Shaw, App. 89. [*281]

 

Chief Baron Alexander. It is clear that the opinion of foreign jurists had influenced the learned Judges, and they drew a distinction between what is there called “real and personal status,” the last being that which respects the person and follows it everywhere, the first that which is connected with the land and adherent to it, and is as immovable as the subject to which it is applied.

 

They intended this doctrine, I have no doubt, to be applied as well to the administration of the goods of an intestate domiciled in England as to those of an intestate domiciled abroad. The inaccurate quotation from Lord Stowell’s judgment in Dalrymple v. Dalrymple given by Chief Baron Alexander shews how strongly they had been prepossessed in favour of this distinction.

 

Dalrymple v. Dalrymple (1) was a suit by an alleged wife for restitution of conjugal rights, and the only question before the Court, and the only question touched on by the judgment, was the validity of a Scotch marriage. After recapitulating the facts, Lord Stowell (then Sir William Scott) says(2): “Being entertained in an English Court the cause must be adjudicated according to the principles of English law applicable to such a case. But the only principle applicable to such a case by the law of England is that the validity of Miss Gordon’s marriage rights must be tried by reference to the law of the country where if they exist at all they had their origin. Having furnished this principle, the law of England withdraws altogether and leaves the legal question to the exclusive judgment of the law of Scotland.” Not a word is said from the beginning to the end of a long and elaborate judgment, devoted to the effect of the evidence on the single question of marriage or no marriage, as to the status of the children here or in Scotland, for no such question could possibly arise in the case. Yet Chief Baron Alexander quotes it as if it dealt with the status of ante-born children. He says at the commencement of the judgment, after stating that the first question in order regarded the status or condition of the then claimant, “I believe I express the opinions of the Judges when I say in the well-considered language of Lord Stowell in Dalrymple v. Dalrymple, ‘The cause being entertained in an English Court must

 

(1) 2 Hagg. Const. 54.

 

(2) 2 Hagg. Const. 58. [*282]

 

be adjudicated according to the principles of English law applicable to such a case; but the only principle applicable to such a case by the law of England is that the status or condition of the claimant must be tried by reference to the law of the country where the status originated. Having furnished this principle, the law of England, withdraws altogether and leaves the question of status in the case put to the law of Scotland.’ Such is the sentiment of that great Judge, and such is his language, varied only so far as to apply to a question of legitimacy what was said of a question respecting the validity of a marriage.”

 

Thus the preliminary question in the cause leading up to the point which the Court had to determine was, notwithstanding what had been said by the Judges in the Court below, without reasoning or discussion quietly assumed. Dr. Story, I may here observe, adopts the version of Dalrymple v. Dalrymple (1) given by Chief Baron Alexander, and starting from that broadly lays it down that the status of legitimacy or illegitimacy decided by the law of the place where the marriage took place must be deemed equally true and valid everywhere else, quoting Doe v. Vardill from 9 Bligh (2). The Judges nevertheless, resting on the Statute of Merton, were of opinion that this doctrine was not applicable to immovable property, and advised the House that the claimant not being born in wedlock could not inherit as heir.

 

Lord Brougham strongly opposed both the distinction between movable and immovable property which the Judges had drawn and their conclusion, and advocated the adoption of the civil law as regards succession in both cases. He pointed out with great force the anomalies and inconveniences which would result from such a distinction (3). “That a man may be bastard in one country and legitimate in another, seems of itself a strong position to affirm; but more staggering is it when it is followed up by this other, that in one and the same country he is to be regarded as bastard when he comes into one Court to claim an estate in land, and legitimate when he resorts to another to obtain personal succession; nay, that the same Court of Equity, when the real estate happens to be impressed with a trust, must view him as both

 

(1) 2 Hagg. Const. 54.

 

(2) Story’s Conflict of Laws, 93, e,

 

(3) 2 Cl. & F. 595. [*283]

 

bastard and legitimate in respect of a succession to the same intestate. Further still, should he happen to be next of kin to his uncle, who had a mortgage upon the estate, he must be denied his succession to the land of the mortgagor in his quality of bastard, and be allowed to come in as an incumbrancer upon the self-same estate in his capacity of legitimate son to the same mortgagor. All this is assumed to be the law by the learned Judges who have decided below and advised your Lordships here.” And further on he says (1): “May I be permitted most respectfully to express a doubt whether or not this question has received all due consideration at the hands of those learned Judges, and whether they have not dealt with it a little too easily; made somewhat too light of it.” The learned Lord deeming the decision wrong, thought it desirable that the case should undergo further consideration.

 

Lord Lyndhurst expressed himself as struck with some of the views put by Lord Brougham, and thought they required very full and patient consideration, and Lord Denman concurring, the case was ordered to be further argued before the Judges. In 1840(2) the case was argued beforeTindal (then C.J.), Vaughan, Bosanquet, Patteson, Williams, Coleridge, Coltman, JJ., and Parke, Maule, and Gurney, BB., and the unanimous opinion of the Judges delivered by Tindal, C.J. One cannot but observe a marked difference between this opinion and that delivered by Alexander, C.B.

 

The opinions of foreign jurists were as before insisted on by counsel, but, instead of taking for granted the proposition that the status of the claimant as regards succession to chattels must be tried by reference to the law of the country where the statusoriginated, Tindal, C.J.(3), left that question untouched.

 

“There can be no doubt,” he said, “but that marriage, which is a personal contract, when entered into according to the rites of the country where the parties are domiciled, and the marriage celebrated, would be considered and treated as a perfect and complete marriage throughout the whole of Christendom. But it

 

(1) 2 Cl. & F. 596.

 

(2) Reported 7 Cl. & F. 895.

 

(3) 7 Cl. & F. 935, 937. [*284

does not therefore follow that, with the adoption of the marriage contract, the foreign law adopts also all the conclusions and consequences which hold good in the country where the marriage was celebrated.” .... “But admitting, for the sake of argument, and we are not called upon to give our opinion on that point, that B.legitimate in Scotland is to be taken to be legitimate all over the world; the question still recurs whether, for the purpose of constituting an heir to land in England, something more is not necessary to be proved on his part than such legitimacy; and if we are right in the grounds on which we have rested the first point, one other step is necessary, namely, to prove that he was born after an actual marriage between his parents.” No doubt this was said with reference to the succession to real estate, the point in question in the cause. But what I desire to call attention to, is that the ultimate opinion of the Judges gives no sanction to the Appellant’s claim, but leaves that question open. Lord Broughamadhered to his former opinion, though he did not oppose the judgment being affirmed. The case therefore stands as a binding authority, that for the purpose of succession to real estate, the foreign status of legitimacy by the subsequent marriage of the parents is not recognised by the law of England. It remains to be decided, so far as this case or any other case up to 1840, the date of this judgment, is concerned, whether the solecism already pointed out shall be introduced into our law, or whether the succession to personal estate, always supposing it to be the estate of an intestate domiciled in England, shall follow the succession to realty.

 

I come now to the case of legacy duty, upon which great stress was laid by the counsel for the Appellant: Skottowe v. Young (1). An Englishman by birth, but domiciled in France, was possessed of considerable estate in England. He married in France a French lady, by whom he had previously had two daughters, and they were legitimated according to French law, and placed upon the same footing as children born in wedlock. By his will he devised his real estate to trustees upon trust for sale and conversion, giving a share in the proceeds to each of his two legitimated

 

(1) Law Rep. 11 Eq. 474; 40 L. J. (Ch.) 366. [*285]

 

daughters, whom he described in the will as his daughters. The question argued was at what rate legacy duty was to be paid upon these legacies. The Commissioners of Inland Revenue claimed 10 per cent., on the ground that these daughters were illegitimate and “strangers in blood,” within the meaning of 55 Geo. 3, c. 184. The petition prayed for a declaration that the legacy duty was only 1 per cent., treating them as children of the testator. Vice-Chancellor Stuart in giving judgment referred to Doe v. Vardill as a case in which it was admitted that the claimant then held in England the status of a legitimate son, except for the purpose of inheriting real estate, and treated these legatees, therefore, as entitled to rank as children, and in that character liable to a duty of only 1 per cent.

 

The Vice-Chancellor’s estimate of the effect of Doe v. Vardill is, I venture to say, certainly erroneous. Very different was Lord Cranworth’s view as expressed by him in Shaw v. Gould (1). “The opinions of the Judges in that case, and of the noble Lords who spoke in the House, left untouched the question of legitimacy except so far as it was connected with succession to real estate. I think they inclined to the opinion that for purposes other than succession to real estate, for purposes unaffected by the Statute of Merton, the law of the domicil would decide the question of status. No such decision was come to, for no question arose except in relation to heirship to real estate. But the opinions given in the case seem to me to shew a strong bias towards the doctrine that the question of status must, for all purposes unaffected by the feudal law as adopted and acted on in this country, be decided by the law of the domicil.” This is all that can be said of Doe v. Vardill, so far as it bears upon the question now under discussion, and more than can be said of the opinions of the Judges in the second argument. Vice-Chancellor Kindersley took what I venture to call the same erroneous view of Doe v. Vardill in his judgment in Re Don’s Estate (2), as Vice-Chancellor Stuarttook.

 

But this is not the only part of the judgment of Vice-Chancellor Stuart which is unsatisfactory. It had been established twenty-six years before by the House of Lords in the case of Thompson v.

 

(1) Law Rep. 3 H. L. 70.

 

(2) 4 Drew. 194. [*286]

 

Advocate-General (1), as a general principle of law applicable to all such cases, that personal property in England follows the law of the domicil of the testator or intestate, and that it is precisely the same as if the personal property had been in the foreign domicil at the time of his death. Further, that the Act imposing legacy duties was limited to Great Britain, and that notwithstanding the general terms contained in the schedule, those terms must be read in connection with the 1st section of the Act, and must receive that limited construction and interpretation which is alone consistent with the 1st section. Upon these principles it was decided that where a British-born subject died domiciled in Demerarapossessed of personal property in Scotland, probate being taken out there for the purpose of administering, and legacies paid to legatees residing in Scotland, such legacies were not liable to legacy duty. In a subsequent case, Arnold v. Arnold (2), Lord Chancellor Cottenham, referring to Thompson v. Advocate-General, said that independently of that authority he should, upon the construction of 36 Geo. 3, c. 52, s. 2, have been of opinion that the legacies in question were not legacies given by the will of a person intended by the Act, for that “when the Act speaks of ‘any will of any person’ and of the legacies being payable out of the personal estate, it must be considered as speaking of persons and wills and personal estates in this country; that being the limit of the sphere of the enactment.” After the passing of the Succession Duty Act (16 & 17 Vict. c. 51) an attempt was made to charge such legacies with succession duty. This also failed, and upon the same grounds: Wallace v. Attorney-General (3). This decision, which was by Lord Chancellor Cranworth, was given five years before the case of Skottowe v. Young (4) was argued, yet neither of the three cases was noticed either in the argument or judgment.

 

If any distinction could be drawn between a legacy bequeathed out of the proceeds of land directed to be sold (which is in terms chargeable with legacy duty under the Act) and any other legacy on the ground that at the date of the testator’s death it was real estate, it would have been satisfactory to know that that point

 

(1) 12 Cl. & F. 1.

 

(2) 2 My. & Cr. 256.

 

(3) Law Rep. 1 Ch. 1.

 

(4) Law Rep. 11 Eq. 474; 40 L. J. (Ch.) 366. [*287]

 

was taken and dealt with, but it was not. The legacies were treated throughout as payable out of personalty. “The trust for conversion,” said the Vice-Chancellor, “is valid, and the subject of the gift is therefore personal estate.

 

If legacy duty had been payable in this case the decision would have been quite right. For the Court was administering a foreign, not an English estate, and as by the foreign law the petitioners took as children of the testator, they could not be charged in any other character. One other case supposed to be favourable to the Appellant remains to be noticed; it is Fenton v. Livingstone (1). Lord Wensleydale’s judgment is quoted as supporting the Appellant’s claim. I read it in an entirely opposite sense. The question in the cause related to the succession to real estate in Scotland,and to that only. The claimant was the issue of an incestuous marriage in England, which was solemnized before the passing of Lord Lyndhurst’s Act, and in the Scotch Court he was held entitled to succeed as heir, because, the mother being dead, the marriage not having been questioned in the lifetime of the parties, must be taken as a valid marriage. The Lords reversed this decision. In giving judgment Lord Wensleydale said (2): “It must be considered as established that the law of a man’s domicil regulates his rights to a personal property wherever situated on the acknowledged principle of mobilia sequuntur personam, and therefore the succession to his effects takes place according to the law of the place where he is domiciled at the time of his death in the cases of intestacy or testacy. It is now fully and perfectly settled by our law that the law of the domicile regulates the distribution of personal estate in the former case, and the form of the will in the latter. The law of the domicil also regulates the personal qualities which take effect from birth, such as legitimacy or illegitimacy, absolutely as to the succession of personal property, but subject to a qualification as to realty. The laws of the state affecting the personal status of its subjects travel with them wherever they go, and attach to them in whatever country they are resident.”

 

It must be admitted that there is some obscurity in the first and last of these passages. But read with the intermediate passages they appear to me clearly to mean that his rights “as to the

 

(1) 3 Macq. 497.

 

(2) 3 Macq. 497, 547. [*288]

 

disposition of his personal property are regulated by the law of the domicil, and therefore the succession to his effects takes place according to the law of the place where he is domiciled,” not where the claimant is domiciled. So in the next sentence, “The law of the domicil” (that is, the same domicil first spoken of – the domicil of the owner of the property) “regulates also the personal qualities which take effect from birth, such as legitimacy or illegitimacy, absolutely as to the succession to personal property, but subject to a qualification as to realty.”

 

The argument is, a person who is legitimate in England but not legitimate in Scotland is entitled in the administration of personal property which happens to be in Scotland of an intestate domiciled in England just as he would be if the estate were administered in England, but it is not so as regards real property in Scotland. The succession to that is governed by the law of Scotland. On this ground the case was said to bear a close resemblance to Doe v. Vardill.

 

I now come to the authorities on the other side. In Re Wright’s Trust (1) Vice-Chancellor Wood held that a child born in Franceof a French mother by an Englishman who had not then become domiciled in France, could not become legitimated in the view of English law by anything that afterwards occurred in France, and could not therefore take under an English will as “child” of her father.

 

Udny v. Udny (2) is to the same effect. I mention Re Wright’s Trust because it was cited in the argument, and referred to and distinguished by the Vice-Chancellor in the case which is precisely in point, namely, Boyes v. Bedale (3).

 

An Englishman residing in England bequeathed a sum of £5000 upon trust after the death of his nephew, to whom he gave the dividends for life, to divide the principal amongst the children of his nephew attaining the age of twenty-one years, or if only one such child, then to that only child.

 

The only child the nephew had was one born in France of a French mother long after the death of the testator, but after the nephew had acquired a French domicil. Some years after the

 

(1) 2 K. & J. 592; 25 L. J. (Ch.) 621.

 

(2) Law Rep. 1 H. L., Sc. 442.

 

(3) 1 H. & M. 798; 33 L. J. (Ch.) 283. [*289]

 

child’s birth the parents intermarried, and then the child became legitimated by the French law.

 

The question was whether such child could take under the bequest. After taking time to consider, the learned Vice-Chancellor delivered a long and elaborate judgment (which is fully reported in the Law Journal) reviewing the authorities, and especially quoting from Story’s Conflict of Laws, and holding it to be clear that the daughter could not, in an English Court administering the trusts of an English will, be recognised as a “child.” He adopts the rule laid down by Story (1), that “where the will is made in the place of the domicil of the testator the general rule of the Common Law is, that it is to be construed according to the law of the place of his domicil in which it is made. A will therefore made of personal estate in England is to be construed according to the meaning of the terms used by the law of England,and this rule equally applies whether the judicial inquiry as to its meaning and interpretation arises in England or any other country.” “It appears to me,” said the Vice-Chancellor (2), “there is such an abundance of authorities as to the construction of all testators’ wills with reference to their domicil, that I really have no doubt upon the subject. The testator’s will, and every term in it, must be construed according to the law of the testator’s domicil, unless there is something to the contrary apparent on the face of the will.” He adds: “So if you take a case under the Statute of Distributions I apprehend the law would be the same. I apprehend it to be quite clear that if a man died domiciled in Englanddescendants of this description not legitimate ab initio, but legitimated in another country, would never under the statute take a part in the distribution of the property.” In In re Wilson’s Trusts (3), affirmed sub nom. Shaw v. Gould (4), Vice-Chancellor Kindersley followed with approval the rule expressed by Vice-Chancellor Wood, that “the word ‘children’ in an English will must be construed to mean children lawfully begotten, unless an intention appears in the will to use the term in a different manner.”

 

It is argued, and with truth, that the reference of Vice-Chancellor

 

(1) Sect. 479, a.

 

(2) 33 L. J. (Ch.) 284.

 

(3) Law Rep. 1 Eq. 247.

 

(4) Ibid. 3 H. L. 55. [*290]

 

Wood to the Statue of Distributions was an obiter dictum.But does it not follow as a logical sequence from the decision?

 

If a testator uses the very words of the Statute of Distributionsand bequeaths legacies to his “brother’s children” or his “next of kindred in equal degree,” and nothing appears to shew that he intended to use the words in any other than their legal sense, a legitimated child, such as the applicant is, would not, according to the authorities, be entitled to rank as a legatee.

 

Upon what principle can the same words in an English statute passed to supply the place of a will, and intended to govern the administration of the estate of a domiciled Englishman, receive a different meaning? I have more than once observed that the estate in this country of an intestate domiciled in a foreign country is administered according to the foreign law, and not under the Statute of Distributions, and I cannot help thinking that this distinction has not been always borne in mind, either in argument or in reading judgments or foreign treatises. In such a case it is correct to say that English law recognises the foreign status, but it is a mistake to apply this maxim to the administration of the estate of a domiciled Englishman.

 

I am therefore of opinion that this statute, like any other, must be construed in the sense which the Common Law puts upon its words, and that “children” means such, and such only, as are recognised in our table of consanguinity.

 

I cannot allow myself to be influenced by considerations of hardship or inconvenience. The question for us is, what the law is, not what we may think it ought to be. Anomalies and absurdities may be pointed out on both sides, some of which, as resulting from a decision in favour of the Appellant, I have already adverted to. For these reasons I am of opinion that the judgment of the Master of the Rolls is right, and ought to be affirmed.

 

 

COTTON, L.J.:-

 

The question in this appeal is as to the right of the Appellant to share in a portion of the personal estate of Rachel Goodman as to which she died intestate. Rachel Goodman was a domiciled Englishwoman. She died a spinster, and at the time of her death she had neither father, mother, brother or sister. But two of [*291]

 

her deceased brothers left children who survived her. Leyon Goodman, one of these brothers, had cohabited with Charlotte Smith, and while domiciled in England had by her three children. He after the birth of these children removed to Amsterdam, and he was thenceforth down to the time of his death domiciled in Holland. While domiciled there he, in the year 1821, had by Charlotte Smith another child, Hannah, the present Appellant, afterwards the wife of Jean Pieret. Leyon Goodman, in the year 1822, married Charlotte Smith. The evidence shews that by the law of Holland this marriage made Hannah Pieret and the three children born while Leyon Goodman was in Englandlegitimate.

 

Under the Statute of Distributions, 22 & 23 Car. 2, c. 10, the personal estate of Rachel Goodman as to which she died intestate was divisible amongst the children of her deceased brothers. No claim was made on behalf of the three children of Leyon Goodmanborn while he was domiciled in England, but Hannah Pieretclaimed to share, and the Master of the Rolls decided against her claim. In support of this decision it was urged that in an English Act of Parliament the nearest of kin must be taken to mean those who by the law of England are recognised as nephews and nieces, that is, as legitimate children of the intestate’s deceased brothers. This is doubtless correct, but the question is, who are by the law of England recognised as legitimate. It was urged in support of the decision of the Master of the Rolls that the law of England recognises as legitimate those children only who are born in wedlock. This is correct as regards the children of persons who at the time of the children’s birth are domiciled in England. But the question as to legitimacy is one of status, and in my opinion by the law of England questions of status depend on the law of the domicil. For this proposition there is authority. It is stated by Mr. Justice Story in his book on the Conflict of Laws, paragraph 93, that “foreign jurists generally, though not universally, maintain that the question of legitimacy or illegitimacy is to be decided exclusively by the law of the domicil of origin,” and in paragraph 93 e, he states that “the same general doctrine is avowedly adopted by the Courts of England.” And he refers to the opinion expressed by Lord [*292]

 

Stowell in Dalrymple v. Dalrymple (1), that by the law of England “the status or condition of a claimant must be tried by reference to the law of the country where that status originated.” Moreover, in the case of Doe v. Vardill, when it first came before the House of Lords in the year 1830 (2), Chief Baron Alexander, when giving the unanimous opinion of the Judges who were consulted, refers with approval to the opinion so expressed by Lord Stowell as applicable to a question of legitimacy.

 

In Fenton v. Livingstone (3) Lord Wensleydale, in a passage already read and which I do not repeat in its entirety, expressed himself thus: “The laws of the state affecting the personal statusof the subjects travel with them wherever they go, and attach to them in whatever country they are resident.”

 

Vice-Chancellor Kindersley, in a passage of his judgment in Re Don’s Estate (4), to which I shall afterwards refer, lays down the same rule.

 

If, as in my opinion is the case, the question whether a person is legitimate depends on the law of the place where his parents were domiciled at his birth, that is, on his domicil of origin, I cannot understand on what principle, if he be by that law legitimate, he is not legitimate everywhere, and I am of opinion that if a child is legitimate by the law of the country where at the time of its birth its parents were domiciled, the law of England,except in the case of succession to real estate in England, recognises and acts on the status thus declared by the law of the domicil. In fact the Respondents wish to use the proposition, that “in an English Act of Parliament those only are next of kin or children of a deceased brother whom the law of England recognises as legitimate,” as if it were “whom the law of Englandwould recognise as legitimate if at the time of their birth their domicil, that is the domicil of their parents, had been English.”

 

But, in my opinion, in deciding questions of legitimacy, that is of status, the law of England looks to the law of the actual, not of an hypothetical, domicil. I am of opinion on principle, that since by the law of Holland, where the parents of Hannah Pieret were in fact domiciled at the time of her birth, she is legitimate, the

 

(1) 2 Hagg. Const. 58.

 

(2) 2 Cl. & F. 571, 574.

 

(3) 3 Macq. 547.

 

(4) 4 Drew. 194. [*293]

 

law of England, for the purpose of succession to personal estate, ought to hold her to be legitimate.

 

This, on principle, is my opinion, but the cases may have established a different rule, and it is necessary to consider the authorities which were relied upon in argument in support of the decision of the Master of the Rolls. The case which was most discussed was that of Doe v. Vardill, which in the year 1830, and again in 1840, came before the House of Lords. All that was actually decided in that case was, that the eldest son born in Scotlandbefore marriage of parents domiciled there, though by Scotch law legitimate, by reason of the subsequent marriage of his parents was not capable of taking land in England as heir of his father. The unanimous opinion of the Judges as expressed on two occasions was that he could not, but Chief Baron Alexander stated the question to be considered as being, Whether by the law of Englanda man is the heir of English land merely because he is the eldest legitimate son of his father, and though he gives his opinion that he is not, he, particularly in the passage to which I have already referred, treats the general question of his status, that is, of his legitimacy, as one to be determined by the law of the place where the parents were domiciled at the time of his birth, and he was then delivering the unanimous opinion of the Judges who had been consulted. When the case was before the House of Lords io the year 1840, Chief Justice Tindal delivered the unanimous opinion of the Judges then consulted, and he(1) stated the ground of their opinion to be that they held it to be a rule or maxim of the law of England with respect to the descent of land in England from father to son, that the son must be born after actual marriage between his father and mother.

 

Chief Justice Tindal does not, it is true, so distinctly as was done by Chief Baron Alexander, state the proposition that legitimacy must depend on the law of the country of the parents’ domicil at the time of birth, but he treats the Statute of Mertonas referring only to the question of the right to inherit land in England, and in his advice(2) there occurs this passage: “The contest above adverted to was, a contest between the ancient law

 

(1) 7 Cl. & F. 924.

 

(2) 7 Cl. & F. 932. [*294]

 

and custom of England on the one hand, and the canon law on the other, which should prevail as to the hereditary succession to land in England, canon and civil law being acknowledged and prevailing in England in all other respects, with the single exception of its application to the descent of land.”

 

The decision in that case, therefore, was not at variance with the rule which, in my opinion, is on principle the correct one, and the opinion expressed by the Judges strongly supports my view. But it was urged that the opinion expressed by the Judges as to the legitimacy of the son born before marriage was intended to apply only to his right to share in the personal estate of the father domiciled in Scotland. As the eldest son was admittedly legitimate by the law of Scotland, by which the succession to the father’s personal estate must be governed, this contention would reduce to a nullity the opinion expressed by the Judges, and in my opinion they did intend to express their opinion that the claimant being legitimate by the law of Scotland, where his parents were domiciled at his birth and at the date of their marriage, must be considered as legitimate in England, except for the purpose of succession to real estate, and that this depended on a special rule of the feudal law as adopted in England. This, in my opinion, was the view taken by Lord Cranworth in Shaw v. Gould (1), which has been already quoted in a different sense.

 

Vice-Chancellor Kindersley took the same view in Re Don’s Estate (2); he says, “It appears to me that on the authorities applicable to this question, the principle is this, that the legitimacy or illegitimacy of any individual is to be determined by the law of that country which is the country of his origin. If he is legitimate in his own country, then all other civilized countries, at least all Christian countries, recognise him as legitimate everywhere.” He then refers to the case of Doe v. Vardill, and treats it as an exception to the general rule above stated by him founded on the rules of inheritance attached to land in this country.

 

But although the decision in Doe v. Vardill is not against the Appellant, and the opinions expressed in that and the other cases to which I have referred are in his favour, the case of Boyes v.

 

(1) Law Rep. 3 H. L. 70.

 

(2) 4 Drew. 194, 197. [*295]

 

Bedale (1), and the opinion expressed by the Vice-Chancellor in that case, are undoubtedly in favour of the decision of the Master of the Rolls. In Boyes v. Bedale the question was on the construction of a bequest in the will of a domiciled Englishman to the children of a person named. The Vice-Chancellor held that a child exactly in the same position as Hannah Pieret was not entitled under the bequest. He said that the will being that of a domiciled Englishman must be construed according to English law, which in my opinion is correct so far as to require that this word “children” shall be construed “legitimate children.” But he held that English law recognised as legitimate only those children born in wedlock. This, though correct as regards the children of persons domiciled in England at the time of their birth, is, in my opinion, erroneous as to children born of parents who at the time of the birth were domiciled in a country by the law of which the children were legitimate. The Vice-Chancellor, at the end of his judgment in Boyes v. Bedale, expressed his opinion that any claim under the Statute of Distributions would be dealt with in the same way.

 

Re Wright’s Trust (2), also a decision of Lord Hatherley when Vice-Chancellor, is not inconsistent with the opinion already given by me, and explains how the children of Leyon Goodmanborn while he was domiciled in England make no claim. They, like the children excluded by the Vice-Chancellor in Re Wright’s Trust, were born while their parents were domiciled in a country by the law of which no subsequent marriage of persons domiciled there could legitimate children born before their marriage. The exclusion of these children is therefore in accordance with the rule as to status already expressed by me.

 

The judgment in In re Wilson’s Trusts (3), affirmed by the House of Lords under the name of Shaw v. Gould (4), is not an authority on the question involved in this case. For there, by the law of England, the mother of the children had not been effectually divorced from her first husband, and her marriage with the father of the children was void and the children illegitimate. Boyes v. Bedale, though mentioned with approval by Vice-Chancellor Kindersley

 

(1) 1 H. & M. 798.

 

(2) 2 K. & J. 595.

 

(3) Law Rep. 1 Eq. 247.

 

(4) Ibid. 3 H. L. 55. [*296]

 

in In re Wilson’s Trusts (1), is really the only decision which supports the judgment of the Master of the Rolls, and Skottowe v. Young (2) is certainly a decision in favour of the Appellant. In that case the Vice-Chancellor Stuart held that children of a testator domiciled abroad, who were in exactly the same position as regards legitimacy as Hannah Pieret, were, under the legacy duty Acts, liable to pay duty at the rate of 1 per cent. only, that is, as children of the testator within the meaning of that Act. Moreover, though in Goodman v. Goodman (3) the point raised on this appeal is not mentioned in the judgment, the Vice-Chancellor Stuart, who decided that case, and the counsel who argued it, appear to have assumed that if Hannah Pieret was born after her father acquired a domicil in Holland, she was to be considered as a legitimate child according to the law of England, and entitled as such under the will of the testator in that case. There is therefore a conflict of decisions, and as, in my opinion, the decision in Boyes v. Bedale (4) is contrary to principle and erroneous, I think that we ought not to follow that case, and that Hannah Pieret is to be treated as a legitimate child of Leyon Goodman, and as such entitled to share in the personal estate as to which Rachel Goodman died intestate.

 

 

JAMES, L.J.:–

 

I concur in the judgment of Lord Justice Cotton, both in the conclusion and reasoning. According to my view, the question as to what is the English law as to an English child is entirely irrelevant. There is, of course, no doubt as to what the English law as to an English child is. We have in this country from all time refused to recognise legitimation of issue by the subsequent marriage of the parents, and possibly our peculiarity in this respect may deserve all that was said in its favour by Professor, afterwards Mr. Justice, Blackstone, the somewhat indiscriminate eulogist of every peculiarity and anomaly in our system of laws. But the question is, What is the rule which the English law adopts and applies to a non-English child? This is a question of international comity and international law. According to that law as

 

(1) Law Rep. 1 Eq. 247.

 

(2) Ibid. 11 Eq. 474.

 

(3) 3 Giff. 643.

 

(4) 1 H. & M. 798. [*297]

 

recognised, and that comity as practised, in all other civilized communities, the status of a person, his legitimacy or illegitimacy, is to be determined everywhere by the law of the country of his origin – the law under which he was born. It appears to me that it would require a great force of argument derived from legal principles, or great weight of authority clear and distinct, to justify us in holding that our country stands in this respect aloof in barbarous insularity from the rest of the civilized world. On principle, it appears to me that every consideration goes strongly to shew, at least, that we ought not so to stand. The family relation is at the foundation of all society, and it would appear almost an axiom that the family relation, once duly constituted by the law of any civilized country, should be respected and acknowledged by every other member of the great community of nations. England has been for centuries a country of hospitality and commerce. It has opened its shores to thousands of political refugees and religious exiles, fleeing from their enemies and persecutors. It has opened its ports to merchants of the whole world, and has by wise laws induced and encouraged them to settle in our marts. But would it not be shocking if such a man, seeking a home in this country, with his family of legitimated children, should find that the English hospitality was as bad as the worst form of the persecution from which he had escaped, by destroying his family ties, by declaring that the relation of father and child no longer existed, that his rights and duties and powers as a father had ceased, that the child of his parental affection and fond pride, whom he had taught to love, honour, and obey him, for whom he had toiled and saved, was to be thenceforth, in contemplation of the law of his new country, a fatherless bastard? Take the case of a foreigner resident abroad, with such a child. If that child were abducted from his guardianship and brought to this country, can any one doubt that the Courts of this country would recognise his paternal right and guardianship, and order the child to be delivered to any person authorized by him? But suppose, instead of sending, he were to come himself to this country in person, would it be possible to hold that he would lose his right to the guardianship of the child in this country because of the historical or mythical legend that the English barons and earls many centuries [*298] ago cried out in Latin, Nolumus leges Angli3Ú4 mutare? Can it be possible that a Dutch father, stepping on board a steamer at Rotterdam with his dear and lawful child, should on his arrival at the port of London find that the child had become a stranger in blood and in law, and a bastard, filius nullius?

 

It may be suggested that that would not apply to a mere transient visit or a temporary commorancy, during which the foreign character of the visitor and his family would be recognised, with all its incidents and consequences, but that it would only apply to a man electing to have a permanent English domicil. But what could, in that view, be more shocking than that a man, having such a family residing with him, perhaps for years, in this country as his lawful family, recognised as such by every Court in the kingdom, being minded at last to make this country his permanent domicil, should thereby bastardize his children; and that he could re-legitimate them by another change of domicil from London to Edinburgh? And why should we on principle think it right to lay down a rule leading to such results? I protest that I can see no principle, no reason, no ground for this, except an insular vanity, inducing us to think that our law is so good and so right, and every other system of law is naught, that we should reject every recognition of it as an unclean thing.

 

But it is not merely on principle, but on authority, to my mind conclusive, that this question ought to be determined in favour of the Appellant. I will not go through the roll of authorities which the Lord Justice Cotton has cited. But I content myself with the one case of Doe v. Vardill (1). In that case we have the careful and elaborate judgment of the Judges summoned to advise the House of Lords. And in that judgment, or advice, there are two distinct propositions clearly and distinctly enunciated. The first was that the claimant was for all purposes and to all intents legitimate. The second was that such legitimacy did not necessarily, and did not in fact in that case, include heirship to English land. The first proposition was accepted by the law lords without any doubt or question; the second was questioned. After further reference to the Judges and further hearing, the case was at last determined in accordance with the second

 

(1) 2 Cl. & F. 571; 7 Cl. & F. 895. [*299]

 

proposition. But the first proposition has never been really questioned. No doubt it may be said that the only decision was against the heirship in that case. But the weight of such an authority, particularly of advice tendered by the assembled Judges to the House of Lords, is not affected by that consideration. It is the ratio decidendi, the rules, maxims, and principles of law which are to be found there by which we are to guide ourselves. In fact, as is well known, the House has frequently put hypothetical states of fact, and abstract questions of law, for the advice and opinion of the Judges, of which I recollect one notable instance in the D’Este Case (1). What the assembled Judges said in Doe v. Vardill, and what the Lords held, was, that the case of heirship to English land was a peculiar exception to the rights incident to that character and status of legitimacy, which was admitted by both Judges and Lords to be the true character and status of the claimant. It was only an additional instance of the many anomalies which at that time affected the descent of land. Legitimate relationship in the first degree was of no avail if the claimant were an alien, or if he were of the half-blood, or in the direct ascending line, which, pace Professor Blackstone, were precious absurdities in the English law of real property. But in this particular case, the exception is, at all events, plausible. The English heirship, the descent of English land, required not only that the man should be legitimate, but as it were porphyro-genitus,born legitimate within the narrowest pale of English legitimacy. Heirship is an incident of land, depending on local law, the law of the country, the county, the manor, and even of the particular property itself, the forma doni. Kinship is an incident of the person, and universal. It appears to me that a statement of the law so given, and so accepted nearly fifty years ago, which has been adopted without question by jurists as a correct statement of English adhesion to the universal law and comity of nations, is not to be questioned at this time by any tribunal short of the House of Lords, and I should humbly think not by them. There is only one authority to the contrary, the case of Boyes v. Bedale (2), on which I will say a few words. The decision there was on the ground that, in an Englishman’s will, the children of a nephew

 

(1) Sussex Peerage Case, 11 Cl. & F. 85.

 

(2) 1 H. & M. 798. [*300]

 

must mean children who would be lawful children it they were English children. That seems to me a violent presumption. It was an accident in that case that the testator was an Englishman. But supposing it had been the will of a Frenchman, dying domiciled in England, and made in favour of his French relations and their children, or of his own children, there being children legitimate and legitimated, what would have been said of such a presumption and such a construction? In that case, by way of obiter dictum, the learned Judge goes on to say that the same construction would be applied to kindred under the Statute of Distributions. This point was never argued and never considered, I believe, by counsel, and must, I think, have been hastily uttered by the Vice-Chancellor at the close of an oral judgment. It must be borne in mind that the Statute of Distributions is not a statute for Englishmen only, but for all persons, whether English or not, dying intestate and domiciled in England, and not for any Englishman dying domiciled abroad. And it was to provide for what was thought an equitable distribution of the assets, as to which a man had, through inadvertence, not expressed his testamentary intentions. And, as the law applies universally to persons of all countries, races, and religions whatsoever, the proper law to be applied in determining kindred is the universal law, the international law, adopted by the comity of states. The child of a man would be his child so ascertained and so determined, and, in the next degree, the lawful child of his brother or sister would be his nephew or niece.

 

The real importance of the case of Dalrymple v. Dalrymple (1) has not been sufficiently appreciated. There must have been hundreds of cases in which a Scotchman or a foreigner with legitimated children, or other kindred, elected to domicile himself for business, or health, or pleasure, in London or elsewhere in England. Can it be doubted that the English Court of Probate, of whose conception of the law the case of Dalrymple v. Dalrymple is an authoritative exponent, would, without question, have admitted the right of some child or next of kin to take out administration. And if such right had ever been questioned, would not the fact of such a question, viz., whether a man by changing his domicil had

 

(1) 2 Hagg. Const. 54. [*301]

 

bastardized his child, have created a sensation which would have vibrated throughout the civilized world, wherever there was a writer on international law and comity? The fact that no such case is to be found shews the universal consensus of all persons conversant with the Court of Probate’s administration (the appropriate Court in that behalf) that no such question in fact existed.

 

That consensus goes back not only to the year in which the judgment in Dalrymple v. Dalrymple (1) was pronounced, 1811, but to the furthest limit to which the knowledge and experience of the learned Judge who pronounced it extended. Moreover, if such a question had ever been raised in the distribution of assets by the Court of Chancery, the Chief Baron Alexander must, in his long experience in that Court, have been aware of it, and would not have omitted to refer to it in the advice which, on behalf of the Judges, he tendered to the House of Lords.

 

The appeal was accordingly allowed.

 

(1) 2 Hagg. Const. 58.