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SCOTTISH_HoL_JURY_COURT

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(1796) 3 Paton 448

CASES DECIDED IN THE HOUSE OF LORDS, UPON APPEAL FROM THE COURTS OF SCOTLAND.

No. 84

Edward Ommanney of Bloomsbury Square, in the County of Middlesex, and John Page, trustees of Sir Charles Douglas, Bart., Appellants

v.

Mrs. Lydia Mariana Douglas or Bingham, and Richard Bingham, her Husband, residing at Gosport, and their Attorney, Respondents

House of Lords, 15th March 1796.

Subject_Will — Condition Contra Libertatem Matrimonii — Domicile. —

(1). A Scotchman by birth, residing in England, executed a will in the English form, leaving the residue of his estate to his younger children, equally among them. The respondent, his eldest daughter, having formed an attachment to a person whom she was on the eve of marrying against her father's will, he executed a codicil, declaring that if she were so married to that person, she should not be entitled to her share of the residue of his estate. They were married. Held, that this was a condition contra libertatem matrimonii, and not to be regarded. (2). Sir Charles Douglas, the testator, had left Scotland at 12 years of age, and entered the navy. He had been all his life in various services, and latterly in the British navy. He had a house at Gossport, where he most commonly resided when at home. He owned two houses at Edinburgh, and sometimes visited Scotland. The last time he staid ten months with his sister at Olive Bank. Having thereafter received the command of the fleet at Halifax, before leaving, he took a hurried visit to his sister and children in Scotland, where, two days after his arrival, he died of a fit of apoplexy. The question was, Whether England or Scotland was to be held his domicile, as applicable to the rights under his will? Held, reversing the judgment of the Court of Session, that England was the domicile of the deceased, and consequently, that the first interlocutor regarding the condition contained in the deceased's codicil, fell to be reversed, as the law of England, and not of Scotland fell to be applied, and that the condition in the codicil was not unlawful, but to be taken as a revocation of his former bequest to his daughter.

The late Sir Charles Douglas, then residing in England, executed a will in the English form, bequeathing his whole real and personal estate to the appellants, as trustees for the purpose of providing provisions to his wife, and to his eldest son, and the residue to be divided equally among his

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younger children, with £50 additional to the respondent, Lydia Mariana Douglas, his eldest daughter. His property consisted of £15,000 of stock in the public funds, and £2000 secured by a deed, executed by the executors of Mr. Cruikshanks, a gentleman in England, by which they declared they held a bond of Mr. Gavin of Langton, in Scotland, for £5000, in trust to the extent of £2000, for Sir Charles Douglas, and two flats of a house in the Canongate of Edinburgh.

His eldest daughter, the respondent, having displeased him in her matrimonial alliance, he, on the 11th October 1788, added a codicil or will, whereby setting forth the cause of displeasure, and the share left her by the above settlement, he declares, that “if my said daughter Lydia Mariana Douglas hath already married the said Richard Bingham, son of the said John Moody Bingham, then, and in such case or event, I, the said Charles Douglas, do hereby declare my will and intention to be, that my said daughter Lydia Mariana Douglas, or such her husband, his or her heirs, executors or administrators, shall not, at any time or times, after such marriage taking place, be entitled to the share intended to be given to her by my said will.” A disposition applicable to the Scotch property, was at same time executed in the Scotch form.

March 1789.

The parties got married in November thereafter, against the express prohibition of Sir Charles. He died in March thereafter, without ever seeing or being reconciled to his daughter, and without revoking the codicil.

The daughter and her husband instituted the present action of reduction in Scotland, calling for production of the two last deeds, that the same might be reduced.

The chief ground insisted on in the first branch of the case was, that the condition as to her marriage being contra libertatem matrimonii, and such as Sir Charles could not legally impose, was of no binding effect in law, to deprive her of her share of the residue of the deceased's estate.

Informations were ordered. The appellants, on the one hand, contended, That in disputing the legality of the condition prescribed by the testator, the respondents confounded two cases essentially different: When a father insists that his child shall marry a particular person, or a member of a particular family, he certainly exceeds the limits of that proper and lawful authority which every parent ought to possess. In the same manner, when a parent

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insists that a child shall not marry at all, he exceeds the bounds and limits of parental authority. But these cases do not apply to the present question, because, although a father be not entitled either to prevent his daughter from marrying, or oblige her to marry any particular person, it does not follow that he is not entitled to impose a negative to the daughter's choice, because such a power falls legitimately within the parental authority, of which it would be both highly inexpedient and dangerous to deprive a father. A father may have good reasons for withholding his consent; and if he can withhold his consent, it cannot be illegal, or contra bonos mores, or contra libertatem matrimonii, to declare that if she married Mr. Bingham, her share should go to her other brothers and sisters. The father has power to disinherit any of his children. And it is no answer to this to say, that the respondents would not have married, had they known of these conditions, because, in point of fact, they were duly warned that if they married, that they were acting in direct opposition to SirCharles' injunctions. In answer to this, it was stated by the respondents, that at first Sir Charles was agreeable to the match, but afterwards refused his consent. The match was in no view unsuitable; and the conditions in the settlement were therefore unreasonable. It was further contended, that the condition of marrying Richard Bingham, son of John Moody Bingham, did not apply to the circumstances which actually took place, as she had not married Richard son of John, but Richard son of Isaac Moody Bingham, and therefore the condition did not apply. The intention obviously was clear; but intention was not sufficient, because, applying the strict rule to such deeds of an unfavourable nature, which are strictissimi juris, the intention will not supply the want of suitable words, which must be express and positive. Here there was no more than a declaration in this codicil, of an intention to alter, if she were then or afterwards married to Mr. Bingham. The marriage took place thereafter, but he died without altering, and so without putting that intention into effect. But assuming the codicil to contain a sufficient alteration by itself, then as it was attendant on her marrying a particular person against his will, the condition ought to be held as void, contra libertatem matrimonii.

On report of the Lord Ordinary, the Court sustained the reasons of reduction, of the irritant condition contained in the codicil libelled, and found the pursuer entitled to her whole provisions, as originally destined for her, in the same

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way as if no such condition had ever been inserted, and as if she had married with his consent. ^*

It was at this stage that the point of Sir Charles Douglas' domicile suggested itself upon the question, whether his estate was to be adjudged by the law of England, or by the law of Scotland, and whether the above interlocutor could only affect the small portion of the estate in Scotland.

1741.

By the agreement of parties, it was arranged to discuss this point in the present case, as to the whole succession on the question. Whether England or Scotland was to be considered as the domicile of the late Sir Charles Douglas?

He was born in Scotland, being the younger son of Mr. Douglas of Finglassie, Fifeshire. When twelve years of age he entered into the British navy, where he remained on board ship, sailing from place to place, for seven years. Being paid off, he entered into the Dutch service, where he continued for several years, and had he died at this time, his

_________________ Footnote _________________

* Opinions of Judges:

Interlocutor 14 th February,1792.

Lord President Campbell.—“This is a condition contra libertatem matrimonii. The case of Hay v. Wood, (Mor. p. 2982), is not similar, as the bond was there considered to be merely gratuitous. The match is admitted to be suitable, and there is a good deal, likewise, in the objection to the words used, (John for Isaac); but as it is only a part of the description, which may be supplied by evidence, this objection might be got over. See case of Pitsligo, (ante vol. i. p. 482), and the case of Strathallen, in the House of Lords. The condition here is not against marrying in general, but only against marrying a certain person. It may be doubted if this be unlawful. See Voet, lib. 28, tit. 9, § 12. But it is not said that any notice of this condition was given to her, and, in fact, she had married Mr. Bingham before she was aware of the consequence. The condition, therefore, if enforced, will have a very penal and unjust effect against her. See Bankton, vol. i. p. 114, and Stair, 23d Feb. 1681, Hamilton, (p. 865 et Mor. p. 2970).

In England, it is believed, more effect is given to those conditions than with us, yet a Court of Equity will relieve against too severe a condition, or hold it to be adjected in terrorem only, especially if it be of the nature of a subsequent or forfeiting clause. See A bridgment of Cases in Equity, p. 212, vol. ii.”

Lord Henderland.—“This is a condition contra libertatem matrimonii, and not to be regarded.”

Lord Eskgrove.—“Of the same opinion.”

Court found “That she has right to her provisions.”

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succession would have been regulated by the law of Holland. In 1754 he returned to the British service. In 1759 he married a Dutch lady. After this he remained sometimes in London, and sometimes in other parts of England, as suited the station of his ship. In 1763 he left the British service, and entered into that of Russia, where he remained for two years, his wife and family living at Amsterdam. In 1766 he left that service, and again entered the British service, having got the command of a frigate on the Scotch station, where he remained, chiefly at Leith, till 1769. His next station was Lapland. His family, on his leaving for that coast, going to Amsterdam. On his return to England, he was, in 1771, appointed commander of the St. Albans, and ordered to the Windward Island station. He married there a second time, and returned to Spithead station in 1772. He rented a house at Gosport from that period till 1774, having the command of a guard ship. His second wife gave birth to her first child here. He visited Scotland, where she was delivered of her second child. In 1775 he returned to England, with his wife and two children. He was then appointed to the command of the “Isis,” and sailed with her for Quebec, where he highly distinguished himself, and was in consequence, on his return, created a Baronet. From 1777 till 1779 he had the command of several ships. In August of this year, his wife died in Gosport, where for three years and a half she had resided during his absence. He was left with three young children, who were committed to the care of Mrs. Baillie, his sister, in Scotland. On the death of his second wife, his house in Gosport was given up; but in a year after, having married a third time a lady of Gosport, this house was again retaken, where his wife and family remained for three years, Sir Charles himself being sometimes absent on service. He sublet his house, furnished, at Gosport in 1783, on leaving for the Halifax station, to which he had been appointed. He returned in 1785, visited Scotland for a short time, returned to London, then visited Amsterdam, where his daughter, Mrs. Bingham was, and returned with her to England, contemplating a visit with her among his friends in Scotland. He wrote his sister in November 1786, on setting out on this visit:

“On Tuesday three hair trunks and a large round hat case, belonging to my ladies, went from the White Horse in Cripplegate, in the Edinburgh waggon; and yesterday, from the same place, and by a similar conveyance,
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were sent to the northward a large Dutch basket, with a lock hanging to it, two knife cases, and a middle sized square mahogany case, belonging to the same owners, with whom, and Charles of Venlo, (the son of his elder brother, who had died in the Dutch service), I set out on Saturday or Monday next, and shall not travel very fast. Be pleased to observe, that I do not engage to build my tabernacle in Scotland, and that, if it should sometime hence prove convenient to meto establish myself elsewhere, because of service or otherwise, I shall probably remove the whole of my family, considering, in such eventual case, my nephew aforesaid, as a very precious member thereof.”

He remained with his sister, Mrs. Baillie, at Olive Bank, for ten months. In 1789 he again got the command on the Halifax station, an appointment of three years' continuance. At this time his wife and family were in London. His house in Gosport still kept up, but let furnished, with all his pictures and furniture in it. Previous to setting out to his command, he took a hurried journey to Scotland, to visit his sister, and take leave of his children left under her care. Two days after his arrival in Edinburgh, he died suddenly of apoplexy.

Brunnemanni, Com. in Cod. L. 10, T. 38, L. Filios.

The respondents argued upon the maxim, that there was a presumption for the domicilium originis, unless the contrary be proved, and the party has permanently fixed his domicile elsewhere, “Originem in eo habere prerogativam præ domicilio, quod pro origine, presumatur, donec probetur contrarium alibi constitutum esse domicilium, qua accedens naturale præsertim præsumatur in eodem statu, perstare.” From the above detail of Sir Charles' changeful life, it was clear either that he had returned to his original domicile previous to his death, or, that having a domicile nowhere, it must in law be held to be in his native country. The appellants, on the other hand, contended that the forum originis was gone on entering the Dutch service, and marrying in Holland. It was again gone on leaving that service, and establishing himself in Russia. That his residence for the most part after that was at Gosport, where he took a house, furnished it, and where he always resided when at home with his family.

Dec. 17, 1793.

Of this date, the Court found, “In respect Sir Charles Douglas was born in Scotland, and occasionally had a domicile there, that he died in Scotland, where some of his children were boarded, and that he had not at the time a domicile any where else: The Lords find his succession

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falls to be regulated by the law of Scotland.” ^* To this, on reclaiming petition, they adhered.

Against these interlocutors the present appeal was brought.

Pleaded for the Appellants.—1st, The reasons stated by the Court of Session for holding Sir Charles' domicile to be in Scotland, are, 1st, That he was born there; 2d, That he occasionally had a domicile there; and 3d, that he died there, where some of his family resided. In regard to the first, undoubtedly the forum originis of Sir Charles was in Scotland. Had he been a wanderer over the world, without wife, family, household, permanent relation or residence of any sort, the forum originis must still subsist. But nothing can be more clear and settled, than that the forum originis must give way to a subsequent domestic establishment. Sir Charles had formed permanent relations. He had arrived at distinction and honours by a regular course of service in the British navy; had been three times married, had children, household establishments, and considerable property; so that Sir Charles cannot be viewed to have been a wanderer, without any permanent habitation. His house at Gosport was his home, where he had resided for nearly twelve years, either by himself or family, and which was possessed up to his death, although let out furnished. In the second place, he had no occasional domicile in Scotland. For forty-eight years he had only visited Scotland four times, On the third occasion he had staid ten months, but this was not sufficient; and is entirely explained away by the letter to

_________________ Footnote _________________

* Opinions of Judges:

Lord President Campbell.—“This is a question upon a will, and whether the law of England or Scotland is to be the rule. The original question was not understood to depend on any municipal rule of the law of Scotland, but was decided upon a general principle of law. (Vide first interlocutor). As to the question now stated, it cannot be said that Sir Charles Douglas had a fixed domicile any where at the period recently before his death. But Scotland was the place of his nativity, where he lived till twelve years of age, where he occasionally resided afterwards, where a part of his family also resided, and where he died; and as it is admitted that he had then no actual home, or fixed establishment elsewhere, the question is, Whether the above circumstances are not sufficient to constitute a domicile in Scotland ? I think that they are sufficient to hold that his domicile was in Scotland. Vide the case of Lorimer v. Mortimer, 1st Feb. 1770”—Vide President Campbell's Session Papers, 72.

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Mrs. Bailie. On the fourth visit he died, but the mere circumstance of these temporary visits, attended as they were by no fact which showed an intention on the part of Sir Charles to take up there his final residence, is insufficient. And his death there cannot, in the next place, form any ground by itself, the more especially as he at the time had a domicile elsewhere, because at that moment he was tenant of a house in Gosport, where his furniture and pictures remained, and which was at the time of his death his home, and England, therefore, his domicile.

II. But whatever be the decision on this point, still the law of Scotland as to the other point cannot stand. The testator had a power to make his will and to alter it. He had power to disinherit any particular child; and, in like manner, he had power of bequeathing the daughter's share in such terms as that, if she should marry a particular person, she should get nothing, and her share devolve on her brothers and sisters. Such a condition is not a restraint on marriage, and consequently neither illegal, nor contra bonos mores. It may be a hard condition, but there may be urgent reasons inducing the father, in the due exercise of his parental power, for imposing it. If good in the case of a stranger, it ought, for this reason, to be good where a parent imposes it; and the cases referred to, relate either to the father imposing a condition that his daughter should marry a particular person, with consent of his trustees.

Pleaded for the Respondents.—1. Having reference to the whole history and career of Sir Charles Douglas' life, it is clearly established that he must be considered as domiciled in Scotland at the time of his death. He was born and educated there. His constant residence there, except in so far as this was interrupted by his professional pursuits, which were of a nature not likely to constitute a domicile elsewhere. The case of a sailor or soldier in the service of their country, is different from that of merchants, seeking their fortune in another country. The former are only absent on temporary service, and must be held to be domiciled in the country to which they originally belonged. They are in the same category with ambassadors, &c., who never lose their original domicile, although resident in foreign courts. Accordingly, Sir Charles had his domicile in his native country. There was no final determination taken to abandon that country; his duty led him away into active scenes, but he always kept it in view. The house at Gosport

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was only taken when he took the guardship command, just to serve him, just in the same way as he took lodgings in Leith, when he was on the Scotch station, but he was then attached to his ship, and ready to be called away. He had, moreover, on frequent occasions, stated his desire to lay his bones in Scotland, among his ancestors. 2. In regard to the alteration of her father's will, there could be nothing more firmly established in the law of Scotland, that such conditions and restraints on marriage are void, and of no effect in depriving the daughter of her share in the deceased's succession. Besides, the condition strictly, does not apply, because she has not married Richard Bingham son of John Moody Bingham, but Richard son of Isaac Moody Bingham, which, though a critical objection, yet in the circumstances of this case, should be strictly interpreted.

Lord Chancellor Loughbourgh.

“ My Lords,

The question now to be determined by your Lordships is peculiarly interesting, and every argument of compassion, everything which tends to call forth the higher sentiments and feelings, press upon your Lordships for every possible favour to the respondents; for it is more than probable that the resentment of the father, on account of this lady's rash conduct, would, under the real circumstances of the case, as they afterwards appeared, have been softened and appeased, and that his known good nature would have induced him to pardon her indiscretion, and to annul the codicil to his will, if, to the great loss of his country, as well as his family, he had not been carried off suddenly and unexpectedly. But nothing can be so dangerous as for a court of justice to suffer itself to be led away by compassion, instead of being guided by the general rules laid down as the law of the land; and of applying, in the cases before it, that law biased by passion, or warped by personal consideration.

In the present case, there are two interlocutors brought under our review, in their natures essentially different from each other.

The first is on a question of pure Scotch law, by which the Court of Session have declared that the codicil executed by Sir Charles Douglas can have no effect, as being at variance with the law of Scotland. But when this question was before them, unfortunately the Court overlooked another and previous question, which, therefore, forms the subject of their second interlocutor, and that is, Whether Sir George Douglas was domiciled in this country, or in Scotland? The question here alluded to, has no reference to the particular law of Scotland, it must be decided on principles of general law; because, it is now admitted, not merely in both parts of Great

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Britain, but in all, at least most of the civilized countries in Europe, that it is the place of a man's domicile which must give the rule for the distribution of his personal property.

Formerly, there seems to have existed in the courts of Scotland, and in other parts of Europe, a kind of controversy in regard to the locality of personal property, as if its distribution was dependent upon this consideration. But the determination of your Lordships, which have been acquiesced in and followed in Scotland, have now settled it as law, that the distribution of an intestate's personal estate, or the construction or effect of a will, must be governed by the law of the place where the intestate, or the testator, had his last domicile. If, then, it shall be decided, in the present case, that Sir Charles Douglas died a domiciled Englishman, it is immaterial (as to these parties) whether the judgment of the Court of Session be right or wrong on the other question, which depends upon the law of Scotland.

In viewing the life of the late Sir Charles Douglas, your Lordships will find it a life of bustle and adventure. The scenes of activity in which he was almost constantly engaged, and in the course of which he distinguished himself so remarkably for courage and good conduct, afforded him but little opportunity to settle long in any particular place. Independent of the services he rendered to this country, your lordships will find him in the employment of two courts, the allies of Britain, Holland and Russia. In the Empress's service he was entrusted with a very high command, which did not continue, however, for any great length of time; but, in the service of Holland, he continued for a much longer period,—three or four years—and it has been argued that he acquired a domicile in each of these countries; a question which I am not now called upon to discuss. At his return home, in both cases, he was employed in our own service, and your Lordships will perceive that he was much employed, and in various parts of the world; that he was exceedingly active at all times; and that, when at home on shore, he was so eagerly engaged in the course and pursuit of his profession, that he did not settle anywhere, so as to strike root very deeply, which at first sight makes it difficult to say where he was domiciled. But, upon a more minute investigation of the circumstances in his life, I cannot approve of the judgment of the Court of Session; and I shall now examine into the reasons on which the judgment is founded, for the purpose of showing on what grounds I am not satisfied, in doing which, I shall take the inverse order in which these reasons are stated in the interlocutor.

By this arrangement, then, the first circumstance is, that he died in Scotland, where some of his children were boarded. This, however, of some of his children being boarded in Scotland, is not mentioned as the ratio decidendi, but is thrown in along with the circumstances of his death. On that circumstance, however, no stress can be laid; for nothing is more clear, than that residence, purely temporary,

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has no effect whatever in the creation of a domicile. Precisely of this kind was the residence of Sir Charles Douglas in Scotland at the period of his death. He had been appointed to the command on a foreign station, and went down to Scotland to take leave of such of his children as happened to be there, with all the hurry which was the necessary consequence of a speedy and immediate return. When he set out for Scotland, he was actually appointed. He had, therefore, so very short a time to continue, that it is impossible to say or imagine that he had the remotest thought of settling or remaining in Scotland, at the time when unfortunately his life was closed. The time he had to spend in Scotland at that period was limited, his stay was circumscribed, an immediate return was indispensably requisite; and, lastly, the object he had in view in this journey to Scotland was definable, and is defined. He was there, therefore, without idea or intention to remain, and consequently his last visit to Scotland, and unexpected death, can have no influence on the point of his domicile.

The next circumstance is, that occasionally he had a domicile in Scotland. But this is rather an inaccuracy, for when had he a domicile in Scotland? That is, at what period was he fixed and settled there for life, or, as the word has been explained, for a perpetuity, meaning a continuation of time, or with an intention to remain? Unless it can be shown that he had been settled in Scotland with such an animus, he can never be said to have had a domicile in that country. For there is no such thing as an occasional domicile. It is the general habit and tenor of a man's life which must be looked to; and in no case is it possible for a man to be so situated as to admit the idea of anything like two domiciles for the purpose of succession, unless his time were so arranged as to be equally and statedly divided betwixt two countries, in each of which his residence had exactly the same appearance of permanency as in the other, —a case which could hardly occur, for some shade of difference would in general appear, giving a clearer character of permanency, or established settlement to one of the situations than to the other. But, if such a case as I have now supposed, were brought before us, there might be some difficulty in coming to the true conclusion. It is sufficient, however, here to say, that such is by no means the present case.

The last, or rather the first consideration in the interlocutor is, That Sir Charles Douglas was born in Scotland. This may be insisted upon, as affording some little degree of argument; but the judges in Scotland were all agreed in opinion that birth is the slightest circumstance in the formation of the domicile of a person who has arrived at the years of Sir Charles Douglas. If it could be made out that in no part of his life the person made choice of any country as the site of his domicile, his birth would undoubtedly fix it in the place of his nativity. But, where a man's conduct and general habits

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have settled him elsewhere, his having been born in another country becomes of no consideration, and cannot have the smallest effect in regard to his domicile.

Upon the case of Sir Charles Douglas, my opinion is, that he fixed himself in this part of the United Kingdom. I have no hesitation in declaring it as my further opinion, that it does not detract from the idea of his being domiciled in England, that his professional habits and conveniency, joined to his hopes of preferment, induced him to fix and settle here in preference to Scotland. As I have already observed, Sir Charles Douglas could not be much at home; but when he had any leisure, any opportunity of living on shore, where was it most likely, where most expedient that he should be found? At a great seaport, certainly; at Gosport, or in its neighbourhood, and it appears to me, that an officer so eager about his profession, and of so much naval ingenuity as Sir Charles Douglas possessed, (for it is well known that he was the author of some great improvements), would have chosen any other situation. Sir Charles Douglas was a public man, and one may therefore speak of him. I will then take it upon me to say, that his mind and inclinations were so attached to his profession, and his zeal and ingenuity for the improvement of the navy so great, that I am convinced he could not have been at rest for any great length of time in any situation, but where he had an opportunity of showing, and putting these in practice.

I have mentioned the probability that Sir Charles Douglas would take up his residence in this country; and, as a matter of fact, he was domiciled at Gosport, that is, his family and establishment were there for seven years successively, from the year 1776, even when service called him personally to another quarter. At one period he had a guardship at the Medway. Still, however, his house and home continued at Gosport; and the general habits of life, and his conduct throughout, all tend to confirm the proposition, that his domicile was by choice in England, and consequently that he must be considered as an Englishman.

I shall not detain your Lordships with a discussion of the effect of the visit to his sister in 1786; but content myself with observing, that during the whole space of time which he remained in Scotland he had no house of his own—was never master of a family; and that, previous to his departure for Scotland, he guards his sister against entertaining any idea that it was his intention to be more than a visitor, or to take up any settled residence in Scotland.

Your Lordships will at once see, that it is a very material circumstance, and takes away much of the favour of the case from the respondents, that a man, considering himself an inhabitant of a particular country, and, acting upon that idea, has made a regular settlement of his affairs, agreeably to the laws of that country; and yet that he should be disappointed in his intention, and the disposition he had made be defeated, on the idea and supposition that his succession

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must be governed by the law of another country where he happened to be born; and that such his settlement, not being agreeable to this latter law, shall be considered as good for nothing; that he shall be held as a person who has died intestste, leaving it to that law to make a will for him. In the case of Sir Charles Douglas, this hardship is particularly apparent; for, if we look to the will which he executed, and the subsequent codicil, it is impossible to conceive that he considered himself in the character of a Scotchman, having his property subject to the rules established by the law of Scotland. The opposite conclusion presents itself with irresistible force. His will is an English will, in every sense of the word; and it is therefore an obvious conclusion, that, in his opinion, the law of England was to dispose of his property.

But, it is urged, that he also made a will, or disposition in the Scotch form, of his property in Scotland. He did so, and he was well advised when he did so, because that property being heritable, could only be disposed of by those forms prescribed by the law of Scotland. But what was the object of this disposition? It was to direct, that his whole property in Scotland should be sold, that it might be converted into personal property, and distributed and disposed of in the same manner as his property in England. Under these circumstances, it is impossible to conceive that Sir Charles Douglas had the most distant idea that his will would be set aside by his children, because, by the law of Scotland, they are entitled to legitim; or, by his wife, who probably had no settlement by covenant, because she, by the same law, might claim her thirds. It appears, on the contrary, to be very evident, that Sir Charles Douglas, looking to the laws of this country as the only medium by which his intention was to be carried into effect, never dreamed of these claims; and the hardship would rather be, that his disposition should not take effect in consequence of his long residence in England. In my opinion, therefore, your Lordships ought to declare that the succession of Sir Charles Douglas must be regulated by the law of England.

Should your Lordships be of this opinion, it is then unnecessary to enter into the other question, because your judgment attaches on all the property, wherever situated, and Sir Charles Douglas' executors will be authorised to act as his personal representatives and executors in Scotland, under the authority of the Court of Session; the effect of which will be, that the respondent, Mrs. Bingham, unfortunately will, by means of the codicil, lose the benefit which was intended for her by the will of her father. At the same time, it may not be improper to say a few words on the other question, even though it shall be declared that Sir Charles had his domicile in this country; in which opinion, the noble and learned Lord (Lord Thurlow), who attended most of the pleadings, perfectly agrees with me; while, at the same time, he entertains, as I do, a very great degree

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of doubt, whether, by the law of Scotland, the first interlocutor of the Court of Session can possibly be supported.

I have looked with care into the text writers on the Scotch law, without being able to discover any positive declaration, or opinion, different from what is to be met with in the law of this country.

Stair treats only of bonds of provision, which are materially different from deeds of a testamentary nature; for the former constituted the provision a debt against the estate, subject, no doubt, to a certain condition, the legal validity of which depended upon its object and tendency. If it be a general restraint, it is said to be contra libertatem matrimonii, and, on that account, null. If it forces the grantee to marry a particular person, it is then termed contra pietatem; the father has exceeded his authority, and for this reason the provision is sustained, while the condition is rejected.

Erskine speaks of bonds with a condition, impossible to be performed, in which case he lays it down, that the debt is constituted; while the condition being impossible, the bond is taken as a pure bond. Or if the condition be such as the father ought not to impose, the debt in this case is likewise sustained, without regard to the condition, because it is an improper one.

Then, as for their cases, there are several where the consent of particular persons, such as trustees, was declared to be necessary previous to marriage; but there is not a single case, in which it has been found, that a father might not impose upon his child a reasonable condition. I shall just add, on the subject of these bonds of provision, that they do not require delivery, but are perfectly valid, and the provisions contained in them become an existing debt, if found in the father's repositories at his death.

But there is no affinity betwixt these cases and the present. A father, in Scotland, can disinherit his child; and certainly he can, with at least equal propriety, impose upon such child a condition in itself neither unreasonable nor improper. But, in fact, this is not properly the case of a condition, but rather that of a revocation of the bequest in a will by a subsequent codicil. The question then to be considered is, Whether the legacy revoked by the codicil has been and ought to be forfeited? The legacy, given by Sir Charles in his will, is recalled if his daughter had married, or should marry, the respondent, or any of his brothers; that is, the legacy continues in force, but the codicil revokes it sub modo, if a certain event had happened, or should happen; and there could be nothing unreasonable in this.

The event had happened; and on the death of Sir Charles, his will was found to contain the legacy to his daughter, but the codicil was found to revoke it. There is no affinity betwixt this, and those cases in which the Court of Session has annulled the condition annexed to the gift, or existing debt.

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I feel much diffidence, however, in delivering this opinion. But the reversal of the interlocutor, on the legality of the condition, does not depend upon it. It is the declaration that Sir Charles Douglas was a domiciled Englishman which governs the case; that depends upon principles of general law; and the reversal of the first interlocutor is a necessary consequence of the reversal of the second.”

On the motion of the Lord Chancellor, this judgment was pronounced, (18th March, 1796).

It is ordered and adjudged, that the said interlocutors of the 17th December 1793 and the 17th February 1794, complained of in the said appeal, be, and the same are hereby reversed; and it is hereby declared that the succession to the property of Sir Charles Douglas be regulated by the law of England: And it is further ordered and adjudged, that the interlocutor of the 17th of February 1792, also complained of in the said appeal, be, and the same is hereby reversed.

Counsel: For Appellants, Wm. Grant, Thomas Macdonald.
For Respondents, Sir J. Scott, Wm Battiner.

1796