most sufficient to adopt the language of John Voet, in his classification of real and personal statutes. He reduces to the class of real statutes whatever regards inheritances. Quo pertinet jura successionum ab intestato; quonan ordine ad bona quæque ab intestato,. quisque in capita, vel stirpes, vel lineas, vel jura primogenitura admittendus sit; quâ ratione legitimi aut illegitimi, agnati, cognati vocentur ; quæque his sunt similia plura.1 Rodenburg is equally decisive. Jus rebus succedendi immobilibus semper a loco rei sita metiendum.2 Froland gives the rule in the most concise but energetic terms, attributing the language to Dumoulin: Mobilia sequuntur personam; immobilia situm.3 Dumoulin says: Aut statutum datur in rem; puta, bona decendentis veniant ad primo genitum; et tunc attenditur statutum loci, in quo sita sunt bona.* Bynkershoek in his bold and uncompromising manner asserts, that the rule is so well established, that no one dares to open his mouth against it. Immobilia enim deferri ex jure, quod obtinet in loco rei sitæ, adeo recepta hodie sententia est, ut nemo ausit contra hiscere,5

§ 483 b. Paul Voet says: Quid si circa successionem ab intestato, statutorum sit difformitas? Spectabitur loci statutum, ubi immobilia sita, non ubi testator moritur. Rodenburg speaking of laws, Col. and For. Law, Pt. 2, ch. 4, § 5, p. 151 to 156. — Since the preceding sheets were worked off, I have ascertained, that the case of Doe d. Birthwhistle v. Vardill, above cited, has been affirmed in the House of Lords. 1 Rob. R. (House of Lords) p. 627. The ground was, that by the law of England, no person could inherit lands as heir, who was not born after the marriage of his parents.

1 J. Voet, ad Pand. Lib. 1, tit. 4, P. 2, § 3, Tom. 1, p. 39; Id. Lib. 38, tit. 17, n. 34, Tom. 2, p. 596.

2 Rodenburg, De Div. Stat. P. 2, tit. 2, ch. 2, p. 59; 2 Boullenois, Appx. p. 54, 57. See also Henrys, Euvres, Tom. 2, Lib. 4, ch. 6, Quest. 105, Observ. Bretonnier, p. 613, 614, edit. 1771.

2 Froland, Mém. 1289.- I cannot find any such expressive language used by Dumoulin in the passage cited by Froland; and therefore conclude that it is his own concise statement of Dumoulin's opinion, in which he is certainly correct. The passage cited Molin. Opera, Tom. 2, p. 701, edit. 1681, Coutumes de Senlis, art. 140; Id. 747, Coutumes d'Auvergne, art. 4; Id. Consil. 53, p. 964; Id. Tom. 3, p. 554, Conclus. de Statut.

Molin. Oper. Com. in Col. Lib. 1, tit. 1, l. 1, Conclus. de Statut. p. 556, edit.

1681.

6

Bynkers. Quest. Privat. Jur. Lib. 1, ch. 16, p. 180; ante, § 381.

P. Voet, de Statut. § 9, ch. 1, n. 3, 4, p. 252, 253, edit. 1715; Id. p. 305, 306, 307, edit. 1661; ante, § 433, 475. Paul Voet gives a long list of authorities, supporting the doctrine, ut immobilia statutis loci regantur, ubi sita. P. Voet, § 9, ch. 1, n. 4, ubi supra.

which are purely real, (quæ quidem jure precipui merè realia sunt,) says: Cujusmodi appellamus ea, quæ de modo dividendarum ab intestato hæreditatum tractant, territorium non egredientia; conspirant enim eo vota fere omnium, bona ut dijudicentur suâ lege loci, in quo sita sunt vel esse intelliguntur.1 Burgundus, after remarking that there is a diversity of opinion upon this subject among jurists, some holding that the law of the situs of the property is to govern, some, that the law of the domicil of the intestate, and some few, that the law of the place, where the intestate happened to die, then asserts his own opinion. Bonorum duæ sunt species; alia enim mobilia sunt, alia immobilia; illa a personâ, hæc a situ cujusque provinciæ legem accipiunt; videlicet, ut nulla habita ratione originis, aut mortis, aut domicilii, tam hæredum, quam ipsius defuncti, dividantur secundum consuetudines locorum, ubi bona vel sunt, vel sita esse intelliguntur.2

§ 483 c. Boullenois treats the subject as so entirely free from doubt, as to require no comment or explanation.3 D'Argentré, as we have seen, resolutely maintains the same opinion. Sandius says: Contra tamen vulgo a doctoribus receptum est, statuta de bonis et successione intestati disponentia esse realia, nec egredi fines territorii. Atque ita fieri, ut secundum diversitatem statutorum diversimodè succedatur, non aliter, quam si per fictionem unius hominis diversa sunt patrimonia. Et immobilia sunt sub jurisdictione loci, in quo jacent. Statutum igitur Hollandiæ non extendit se ad res immobiles in Frisia situs; sed ista subjacent dispositione juris communis quod in Frisia obtinet.5

§ 483 d. And not to dwell upon a point, which, although not without controversy among foreign jurists, is generally established, we may quote the opinion of Huberus. His language is: Non potest heic omitti Quæstio frequens in foris hodiernis, a juris Romani tamen aliena terminis: Quia sæpe sit, ut diversum jus succedendi ab intestato in locis, ubi defunctus habuit domicilium, atque in iis locis, ubi bona sita sunt, obtineat, dubitatur, secundum utrius loci leges successio regenda sit. Communis et recta sententia est, in rebus immobilibus servandum esse jus loci, in quo bona 1 2 Rodenburg, De Divers. Statut. tit. 2, ch. 2, § 1, n. 1; 2 Boullenois, Appx. p. 14; Id. p. 74.

2

Burgundus, Tract. 1, n. 36, p. 38.

1 Boullenois, Observ. 20, p. 358; 2 Boullenois, Observ. 41, p. 383.

4 Ante, § 438.

Sand. Decis. Lib. 4, tit. 8, Defin. 7, p. 194.

sunt sita; quia cum partem ejusdem territorii faciant, diversæ jurisdictionis legibus adfici non possunt. Verum in mobilibus nihil esse causæ, cur aliud quam jus domicilii sequamur; quia res mobiles non habent affectionem versus territorium, sed ad personam patrisfamilias duntaxat; qui aliud quam, quod in loco domicilii obtinebat, voluisse videri non potest.1

§ 484. We have already had occasion to state, that in the interpretation of wills of immovable property, and of movable property, if the description of persons, who are to take, be by some general designation, such as "heirs," or "next of kin," "issue," or "children," the rule of the common law is, that they are to be ascertained by the lex domicilii, both in regard to immovable property, and to movable property, unless the context furnishes some clear guide for a different interpretation.2 The same rule will apply in cases of the descent and distribution of movable property ab intestato, for the reason already suggested; that it is deemed by fiction of law to be in the place of his domicil, and therefore to be distributable according to the lex domicilii; and consequently, who are the "issue," or "children," or " heirs,” or next of kin,” is a matter to be ascertained by that law. But in regard to immovable property a different rule prevails, founded upon the actual situs; and as the succession is to be according to the lex loci situs, the persons, who are to take by succession, can be ascertained only by reference to the same law.1

66

§ 484 a. Foreign jurists generally, although not universally, maintain the same doctrine; and accordingly hold that in cases of succession ab intestato we are to ascertain the persons who are to take the inheritance by the lex loci rei sita, whether the question respects legitimacy, or primogeniture, or right of representa

1 Huberus, Vol. 1, Lib. 3, De Success. n. (s), p. 278. See, also, 4 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 4, § 5, p. 150, 151, 152, 154, 155.

* Ante, § 479 a, 479 m, 479 n; 2 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 9, p. 855 to 858.

See Thorne v. Watkins, 2 Ves. 35; Brown v. Brown, or Gordon v. Brown, 3 Hagg. Eccl. R. 455, note; S. C. 4 Wilson & Shaw, 28; P. Voet, De Statut. § 3, ch. 1, n. 2, p. 100, edit. 1715; Id. p. 111, edit. 1661; Elliott v. Lord Minto, Madd. R. 16; Earl of Winchelsea v. Garety, 2 Keen, R. 293, 309, 310; ante, 479 ; post, § 490, § 529.

* Doe d. Birthwhistle v. Vardill, 5 Barn. & Cresw. 438; S. C. 9 Bligh. R. 32; ante, § 364 to § 366, § 426 to § 429, § 483; 4 Burge, Comm. on Col. and For. Law, ch. 4, § 5, p. 150 to p. 156; Id. ch. 15, § 4, p. 722 to p. 734; Elliott v. Lord Minto, 6 Madd. R. 16; Earl of Winchelsea v. Garety, 2 Keen, R. 293, 309, 310; post, § 529.

tion, or proximity of blood, or next of kin. John Voet is very full and explicit on this subject. He says: Positâ ergo varietate, si quæras, cujus loci leges in repræsentatione observandæ sint? respondendum videtur eodem modo, quo supra in principali quæstione de successione; puta, mobilium intuitu spectandas esse leges domicilii defuncti, immobilium respectu leges cujusque loci, in quo illa sita sunt: eo quod jus repræsentationis omnino ad jus successionis intestatæ pertinet, imo successorem facit eum tanquam ex fictione legis proximum, qui vere atque naturaliter defuncto proximus non est.1

§ 485. But these general principles still leave behind them, even in the common law, some very embarrassing difficulties; and in the complex systems of foreign law the difficulties are greatly multiplied. Sir William Grant adverted to this subject in an important case, and said: "Where land and personal property are situated in different countries, and governed by different laws, and a question arises upon the combined effect of those laws, it is often very difficult to determine what portion of each law is to enter into the decision of the question. It is not easy to say, how much is to be considered as depending on the law of real property, which must be taken from the country, where the land lies, and how much upon the law of personal property, which must be taken from the law of the domicil, and to blend both together, so as to form a rule applicable to the mixed question, which neither law separately furnishes sufficient materials to decide." 2

§ 486. Two cases of a curious nature were on the same occasion mentioned by Sir William Grant, as illustrative of his remarks, which cannot be better stated than in his own language. "I have argued, (said he,) in the House of Lords, cases, in which difficulties of that kind occurred. Two of the most remarkable were those of Balfour v. Scott, and Drummond v. Drummond.*

1 J. Voet, ad Pand. Tom. 2, Lib. 38, tit. 17, n. 35, p. 597. See Id. Lib. 38, tit. 18, n. 84, p. 639, where he adds: Denique prætermittendum non est, in eo, an jus primogenituræ admittendum sit, necne; immobilium quidem intuitu spectandam esse legem loci, in quo sita sunt; mobilium vero respectu consuetudinem domicilii defuncti.

Brodie v. Barry, 2 Ves. & Beames, R. 130, 131.

See Robertson on Successions, p. 202 to 207; 4 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 15, § 4, p. 731; 6 Brown, Parl. R. 601, by Tomlins.

4

6 Brown, Parl. R. (Tomlin's edit.) p. 601; 4 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 15, § 4, p. 729.

In the former, a person domiciled in England died intestate, leaving real estate in Scotland. The heir was one of the next of kin ; and claimed a share of the personal estate. To this claim, it was objected that, by the law of Scotland, the heir cannot share in the personal property with the other next of kin, except on condition of collating the real estate; that is, bringing it into a mass with the personal estate, to form one common subject of division. It was determined, however, that he was entitled to take his share without complying with that obligation. There the English law decided the question." 1

§ 487. He then added: "In Drummond v. Drummond, a person, domiciled in England, had real estate in Scotland; upon which he granted a heritable bond, to secure a debt contracted in · England. He died intestate; and the question was, by which of the estates this debt was to be borne. It was clear, that by the English law the personal estate was the primary fund for the payment of debts. It was equally clear, that by the law of Scotland the real estate was the primary fund for the payment of the heritable bond. Here was a direct conflictus legum. It was said for the heir, that the personal estate must be distributed according to the law of England, and must bear all the burdens, to which it is by that law subject. On the other hand, it was said, that the real estate must go according to the law of Scotland; and bear all the burdens to which it is by that law subject. It was determined, that the law of Scotland should prevail; and that the real estate must bear the burden." 2

§ 488. In conclusion he said: "In the first case, the 'disability of the heir did not follow him to England; and the personal estate was distributed, as if both the domicil and the real estate had been in England. In the second, the disability to claim exoneration out of the personalty did follow him into England; and the personal estate was distributed, as if both the domicil and the real estate had been in Scotland." 3

§ 489. Another illustration is furnished by the very case then in judgment before Sir William Grant, which turned upon the 1 Brodie v. Barry, 2 Ves. & Beam. 130, 131.

Brodie v. Barry, 2 Ves. & Beam. 130, 131. See, also, Drummond v. Drummond, 6 Brown, Parl. R. (Tomlin's edit.) p. 601; post, § 529; Robertson on Successions, p. 209, 214; 4 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 15, § 4, p. 722 to p. 734.

Brodie v. Barry, 2 Ves. & Beam. p. 132; ante, § 266; post, § 529.