1830. DUNDAS V. DUNDAS. portion of it, conferred upon Wedderburn Dundas by the trust-deed, is or is not qualified by a certain condition? In order to ascertain the existence of that condition, the Claimants propose that the part of the deed which relates to the English property should be read; and it is surely no ground for opposing this demand, that in the English Courts the instrument would be held improbative. As the conveyance of the English property is only founded on in reference to the Scotch succession, it is obvious that, in determining whether it is admissible as an article of evidence, your Lordships must be guided solely by the rules of Scotch law. It will not be difficult to show that the authorities which have been referred to by the opposite Claimant, in support of the contrary position, are altogether inapplicable. The import of the case of Trotter v. Trotter seems to have been completely misunderstood. It is asked, with an air of triumph, Whether on the principles of that case your Lordships are "not bound to go to the Courts of that country where the objection "arises, and ascertain, not only whether it be a conveyance, but whether it affords evidence of an inten"tion to convey?" In the case of Trotter, however, your Lordships were clearly of opinion that, although the objection to the validity of the conveyance of the heritable property in Scotland originated solely in the Scotch law, yet, in so far as the English succession was concerned, the question, whether there was or was not an intention to convey, fell to be determined by the law of England. The cases of Dundas v. Dundas, and Henderson v. Melvill, relate entirely to the direct effect of informal deeds relating to heritable property. It was found by the House of Lords, reversing the judgments of the Court of Session, that a deed, revoking a disposition of heritage, must be executed with the same solemnities as the original disposition. But no question occurred in either of these cases, whether such a deed, having been executed in conformity with the ler loci, might not be admitted as evidence of the maker's intention, so as to qualify the right of the disponee laying claim to another part of the succession. As to the case of the Earl of Dalkeith v. Book, it might be sufficient to remark, that the decision is disapproved of by Lord Kames, in his Principles of Equity, and is contrary both to a previous decision in the case of Lady Sempill v. Cunningham, and to a later decision. in the case of Govan v. Boyd, where an obligation to convey an heritable property in Scotland, executed in America, according to the American forms, was sustained as effectual. Admitting, however, that the case was well decided, and that an ineffectual conveyance does not operate as an obligation to convey, still this would not affect the present question, for the Claimants do not maintain that the trust-deed imports a direct obligation upon the heir to convey the estate of Sansonseal, but merely that it indicates an intention to convey on the part of the late General Dundas. The case of Crawfurd against Coutts, has also been referred to by the opposite party, and a long extract is given from the speech of the late Lord Chancellor, which seems to be considered as decisive of the present question. The Claimants, however, must submit, that no opinion is there pronounced with regard to the law of Scotland. His Lordship indeed states, that, "if the English doctrines are to rule, this is nothing "like a case of election." And he afterwards proceeds to say, that" if a testator in this country, i. e. in Eng"land, was required to make his will of land sixty days 1830. DUNDAS v. DUNDAS 1830. DUNDAS V. DUNDAS. "before death, it would be quite competent for the "heir to say, this is a death-bed deed; I take the "benefit of the law, and I take the land under the benefit of the law: And he might also take personal "benefits under the will." It surely, however, will not be maintained, that because such is the law. of England the law of Scotland must necessarily be the same. In this particular point, there can be no doubt that a difference exists between the laws of the two countries. It was solemnly decided by the Court of Session, in the case of Cunningham against Gainer, and by the House of Lords, in the case of Ker against Wauchope, that a deed, though executed on death-bed, afforded good evidence of the testator's intention, and that the heir was not entitled to approbate and reprobate. The distinction between the law of Scotland and the law of England is, indeed, admitted by Lord Eldon in the passage immediately following that which has been quoted. His Lordship observes, "There may, how ever, be a considerable difference attending to the "distinction of character between an heir in England "and Scotland; and it is impossible not to see that "some cases have been decided in Scotland, which very nearly support the doctrine of approbate and "reprobate, as applied in this case." While the authorities, which are founded upon by the opposite party, thus fail in establishing the proposition for which he contends, viz. that the conveyance of the estate of Sansonseal is not admissible as evidence of General Dundas's intention to make such a conveyance, various cases may be referred to, on the part of the present Claimants, where deeds regarding real property, though improbative by the law of the place where the property was situated, and, therefore, ineffectual, have, nevertheless, been sustained as evidence of the maker's intention. In the English case of Brodie against Barry, a conveyance of Scotch heritage, not conformable to the solemnities required by the law of Scotland, was held by Sir William Grant to be admissible as evidence of the maker's intention, and sufficient to put the heir to his election. A judgment, proceeding on the same principle, was pronounced by this Court, in the case of Gibson against Clearihue. It appears from the session papers, that the deed under which the question arose, besides being inoperative, as the bequest of real property in Scotland not vested in the testator, was also improbative, having been drawn up in the English form, and not tested in terms of the statute 1681. Being probative, however, by the law of the country where it was executed, it was sustained as evidence of the testator's intention in regard to the Scotch heritage, so as to raise a case of approbate and reprobate under the foreign will. In the case of Martin against Martin, Stone and Foot, an English deed, containing a general devise of the whole real and personal estate belonging to the testator, though not executed according to the forms of Scotch law, was held to indicate an intention to convey certain Scotch adjudications, so as to prevent the heir-at-law from taking them up, without forfeiting the special provisions in his favour contained in the same deed. In the case also of Loudon v. Loudon, it appears from the notice contained in Bligh's report of the case of Ker v. Wauchope, that a deed executed in the West Indies, in the English form, was received as evidence of the testator's intention in regard to a Scotch heri 1830. DUNDAS ย DUNDAS. 1830. DUNDAS v. DUNDAS. table bond, and was held to raise a question of approbate and reprobate. The competency of founding on a deed, improbative by the law of the country where the property to which it relates is situated, as evidence of the maker's intention, was fully discussed in the case Jankouska or Grieve v. Anderson, of which there are two reports, one in the Faculty Collection, and the other in Morrison's Synopsis. The circumstances may be shortly stated:-Dr. Grieve, by a will executed in England in the English form, settled certain provisions upon his wife, Elizabeth Jankouska; he also devised his lands of Minidow in Scotland to trustees, with power to sell and invest the price in securities for her liferent use. As the devise of the Scotch heritage was ineffectual, being in the form of a bequest, and also improbative according to the rules of Scotch law, the widow restricted her claim to a right of terce. But this was disputed by her husband's heirs, on the ground that she was barred, under the Act 1681, c. 10, by accepting the special provisions contained in the English deed. On the part of the widow it was pleaded, "This case comes under the exception of "the statute of its being expressly provided in the "deed of settlement, that the widow shall have right "to both; for here it is expressly declared that, be"sides the provisions from the English and foreign "estate, the widow is to have right, not to the terce "alone, but to the total life-rent of the lands in Scot"land. Answered-The settlement of the Scotch "estate is funditus null and void, and is to be entirely "set out of the question. No argument, therefore, "can be drawn from the intention therein expressed; " and whatever may have been the testator's intention "with respect to it, he did not carry that intention |