CHAPTER XLIII.

RIGHTS RELATING TO SUCCESSION.

DCCCLVIII. [HAVING discussed Rights to specific things, and Obligations,] we now approach the consideration-What law ought to govern the Rights relating to Succession to property, [whether Testamento or ab Intestato (a).]

These rights grow out of a rule which is, in truth, highly artificial, though so generally incorporated into the Law of all civilized states as to appear natural-the rule that it is competent to a person to extend his power and will beyond the limits of his own existence, and to transfer after his death property to living persons. This will may be either express-that is, by being recorded in a testament (testatio mentis) (b), and then there is a testamentary succession the heir succeeds to the deceased; or it may be tacit then the law presumes what the intentions of the deceased were, and there is a succession ab intestato. The Roman law was philosophical in its conception and precise in its language on this subject: "Nihil est aliud hæreditas, "quàm successio in universum jus quod defunctus habuit" (c).

By a remarkable fiction it treated the hæreditas as a moral person-"Hæreditas enim non hæredis personam,

(a) Vide suprà, § xxx.

Savigny, R. R. viii. s. 366 (at p. 172 of edit. 1849, Berlin), s. 375.
Merlin, Rép. Héritier.

[Story, Conflict of Laws, chaps. xi. xii. and ss. 507-529 m.

Bar, §§ 107-114.]

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(b) Testamentum ex eo appellatur, quod testatio mentis sit."Inst. lib. ii. t. x.

(c) Dig. lib. 1. t. xvi. 24.

"sed defuncti sustinet" (d). And the countries whico have adopted this law as the basis of their jurisprudence have the adage, hæres sustinet personam defuncti (e).

DCCCLIX. [There are three chief] Questions. FirstWhat Forum has jurisdiction over the whole question of the succession ?--that of the situs? or that of the domicil?

Donellus examines this question, and concludes, “Ita "relinquitur omnino locus is unus, in quo controversia "hæreditatis tractanda sit, ubi scilicet qui convenitur "habet domicilium" (f). And again: "Nunquam alibi "de hæreditate agi posse, quam ubi possessor domicilium "habeat." That is, the petitio hæreditatis should be in the forum,-where the heir or representative of the deceased is; though the petitio rerum singularum―e.g. as to legacies of particular things-may be, perhaps, necessarily preferred before another forum (g).

DCCCLX. The second Question is-By what law shall

(d) Dig. lib. xli. t. i. 34, 61 ; et cf. lib. v. t. iii. 50. ["Hæreditas, etiam sine ullo corpore juris intellectum habet."]

(e) Massé, Droit Commerc. liv. iii. tit. iv. c. ii. num. 1354. (f) De Jure Civ. lib. xvii. c. xvii. 12.

[(g) As to jurisdiction in relation to the estates of deceased persons, see Preston v. Lord Melville, 8 Cl. & Fin. Rep. p. 1; Cook v. Gregson, 2 Drewry, Rep. p. 286; Enohin v. Wylie, 10 H. L. Cases, p. 1; Stirling-Maxwell v. Cartwright, L. R. 11 Ch. D. p. 522; Eames v. Hacon, L. R. 18 Ch. D. p. 437; In re Hawthorne, L. R. 23 Ch. D. p. 743; In re Klæbe, Kannreuter v. Geiselbrecht, L. R. 28 Ch. D. p. 175: Blackwood v. The Queen, L. R. 8 App. Ca. p. 82; Ewing v. Orr Ewing, L. R. 9 App. Ca. p. 34 and 10 App. Ca. p. 453; In re Trufort, Trafford v. Blanc, L. R. 36 Ch. D. p. 600. In the judgment in this last case it was said (per Stirling, J., at p. 611): "The rule . . . appears to be this, that although the parties claiming to be entitled to the estate of the deceased person may not be bound to resort to the tribunals of the country in which the deceased was domiciled, and although the courts of this country may be called upon to administer the estate of a deceased person domiciled abroad, and in such a case may be bound to ascertain, as best they can, who, according to the Law of the domicil, are entitled to that estate, yet where the title has been adjudicated upon by the courts of the domicil, such adjudication is binding upon, and must be followed by, the courts of this country." See, too, Story, ss. 507-529 m.]

the forum, so seized of the general subject, decide the points which arise, mutatis mutandis, in the matter of Testamentary succession, as in the matter of Obligation; namely, as to

(1) The legal capacity of the testator;

(2) The form of the testamentary instrument;

(3) The dispositions contained in it;

(4) The construction or interpretation of it;

(5) The currency in which legacies and shares [of the estate of a deceased person] are to be paid, and the amount of interest payable on legacies or shares.

[The third Question arises] in the case of succession ab intestato, and is-What law ought to govern the rights of parties to the property of the intestate?

Or, in the language of continental jurisprudence, are the statutes which govern the matter of succession personal or real?

DCCCLXI. With respect to the Law generally, applicable both to testamentary succession and to succession ab intestato, the jurisprudence of states admits of a threefold division.

i. The jurisprudence which submits the universitas juris (both moveable and immoveable property) of the succession to the Law of the last Domicil of the deceased. This is in accordance with the opinion of Savigny, and with the decisions of the superior tribunals of Germany.

ii. The directly opposite jurisprudence, which submits. the property to the Law of the Place where it happens to be: which admits the possibility, therefore, of different laws being applied to different portions of the property, and which lays down no principle as to debts and credits, leaving them to be practically dealt with in each case, according to the best expedient which can be devised. This jurisprudence is founded upon the strict feudal law of territorial sovereignty.

iii. The intermediate system of jurisprudence which subjects the personalty to the Law of the Domicil of the

deceased-the realty to the Law of the Situs. This is the jurisprudence of England, France (h), and the United States of America.

DCCCLXII. Such is the outline of the jurisprudence of the principal States upon the general question of Succession. We have now to consider separately the five points which have been just mentioned, as arising out of Testamentary succession.

DCCCLXIII. (1) As to the legal capacity of the testator. Upon this matter the reader is referred to what has been already said upon the general question of the capacity of the foreigner, both as to contracting a marriage (1) and as to acquiring or alienating property (j); and to the chapter on personal and real statutes (k).

But the answer to this question may be generally stated thus: The Law of the actual Domicil of the testator at the time of making his testament governs the question of his legal capacity to do the act (7).

DCCCLXIV. (2) As to the form (m) of the testament. The jurisprudence of the continent wisely, justly, and philosophically allows an option (n) to the testator to adopt either

(a) The form required by the lex loci actús; or

(h) Falix, liv. i. tit. ii. s. 61, and the authors there cited.

(i) Suprà, chap. xviii. §§ cccxcv. et seq.

(j) Suprà, § ccclxxxv. B. and chap. xxviii.

(k) Suprà, chap. xvi.

(1) Story, s. 465.

(m) “De même, la validité d'un testament quant à la forme ne peut être jugée que par le juge du domicile, dont la sentence, rendue dans les formes, doit être reconnue partout. Mais sans toucher à la validité du testament en lui-même, les dispositions qu'il renferme peuvent être constées devant le juge du lieu où les biens sont situés, parce qu'on ne peut disposer de ces biens que conformément aux lois du pays."-Vattel, liv. ii. chap. vii. § 85.

(n) The object of the Law, as Savigny truly says, is to favour and facilitate, not to thwart, the act of the party. "There can be no doubt," he adds, "that it is facultative, and so allows a choice. This, too, is generally acknowledged. (Dieses ist denn auch meist anerkannt worden.)"-Savigny, R. R. viii. s. 381, in fine.

(B) The form required by the lex domicilii.

The adoption of either form is, as jurists say, facultative, not imperative, though the general maxim be locus regit actum (o).

England (p) and the North American United States (pp) used unwisely, arbitrarily, and unphilosophically to compel the testator to adopt the form prescribed by the lex domicilii.

DCCCLXIV.A. Now, however, the English Law has been altered and amended by [what is commonly known as "Lord Kingsdown's] Act," 24 & 25 Vict. c. 114, entitled "An Act to amend the Law with respect to Wills of "Personal Estate made by British Subjects," passed on the 6th August, 1861 (q).

(0) Rocco, lib. iii. cap. iii. p. 305: "Ond'è che possiamo dirittamente giudicare quanto erronea sia la sentenza di quegli autori, i quali, come essenziale alla validità di ogni atto, chiedono l' adempimento esclusivo delle forme del luogo ove esso è celebrato."

Felix, s. 83: "Nous tenons pour valable l'acte passé à l'étranger suivant les formes prescrites dans la patrie." Cf. Code Civil, arts. 999 and 1317. Yet the Cour de Cassation held that it could not pronounce for the validity of a will made in France, but not according to French Law, on the ground that comity required the strict application of the maxim, locus regit actum.-Fœlix, p. 85, note (a).

(p) Vide suprà, §§ cccxliv cccxlvi.

Croker v. Marquis of Hertford, 4 Moore, P. C. Rep. p. 339. Bremer v. Freeman, 10 Ib. p. 306. [Vide suprà, § cccxlvi.] [(pp) Story, s. 468.]

(q) Vide suprà, § cccxlviii. On moving the second reading of this Bill on April 22, 1861, Lord Kingsdown made the following reference to the remarks in a former edition of this treatise :

"But I will refer your lordships to treatises of learned men, in which the authorities are collected and discussed, and in which the authors of those treatises have come to the conclusion which I have represented to be the law." He then quoted Mr. Burge, and proceeded: "Dr. Phillimore, who has published his valuable work on International Law much more recently, and has examined, I believe, the works of all the eminent writers on the subject up to the present time, including some distinguished foreign jurists still living, thus sums up the result of his inquiries.”

He then cited § dccclxiv. of the first edition of this work.-Hans. Parl. Deb. vol. clxii. column 871.