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full satisfaction of her "legitim" or "portion natural," and also that the provision "conceived in favour of" the children was to be in satisfaction of "all bairns' part of gear, legitim portion, natural executry and everything else they could ask or claim through the decease of" their father and mother.

Mrs. Campbell died in the lifetime of her father, leaving issue of the marriage five children, one of whom had since died. Dr. Hume died in March, 1857.

By his will (which was executed shortly before his death in the English form, and afterwards proved in the Prerogative Court of Canterbury) he constituted the eldest son of the marriage (who was also entitled under the settlement to certain entailed estates) his residuary legatee, and bequeathed a sum of 5,000l. to each of the younger children being daughters, and 6,000l. to the remaining younger child being a son.

The testator had not in his lifetime paid to the trustees of the settlement the sum of 4,000l. pursuant to his obligation, nor was any specific provision contained in the will for satisfying it. The question therefore arose, whether the above legacies were to be accepted by the legatees in full satisfaction of the testator's obligation under the settlement, or whether the sum of 4,000l. was still payable, and if so, whether it should be paid out of the residue or deducted from the legacies rateably.

The cause was brought on by way of motion for decree. It was stated that, according to the opinion of Scotch counsel, the obligation to pay the 4,000l. still subsisted in the nature of a debt against the testator's estate, and that the surviving trustee of the settlement ought to demand payment from the executors. As to the testator's intention, certain parol evidence was adduced to the effect that in giving instructions for a former will, he had expressly declared the legacies intended to be thereby given to his grandchildren to be in satisfaction of the obligation contained in the settlement.

Mr. Rolt and Mr. Pember, for the executors of the will.-The testator placed himself in loco parentis, and the presumption of law against double portions must take effect

Powys v. Mansfield, 3 Myl. & Cr. 359; s. c. 7 Law J. Rep. (N.S.) Chanc. 9. The legacies are in satisfaction of the covenant

Wathen v. Smith, 4 Madd. 325.

Williams on Executors, pp. 1177, 1179. Mr. Boyd Kinnear, for the residuary legatee.

Mr. Langley, for the surviving trustee of the settlement.

Mr. Giffard and Mr. Rawlinson, for the younger children, cited—

Chancey's case, 1 P. Wms. 408.
Pym v. Lockyer, 5 Myl. & Cr. 29;
s. c. 10 Law J. Rep. (N.s.) Chane.

153.

The legacies are not in satisfaction of the covenant. The testator was not in loco parentis towards the grandchildren. The settlement was expressed and intended to be a portion for his daughter, and in satisfaction of her legitim; the provision for her children was only derivative.

Mr. Pember, in reply.

WOOD, V.C.-If I had to determine this case with reference to the law of Scotland, it might present some difficulty, because, as was held in the case of Kippen v. Darley (1), before the House of Lords, by the law of that country there is no general antecedent presumption against double portions. But I am clearly of opinion, that this will is to be construed by the principles of English law, and I think there can be no doubt that the testator intended to place himself in loco parentis, as to the future. provisions for his grandchildren, both in the settlement and in the will. Accordingly, out of that relation the presumption of our law against double portions will arise. The case is in fact stronger than Powys v. Mansfield. I shall therefore declare that "the provisions made by the testator in favour of his grandchildren mentioned in the will are to be taken in satisfaction of the provisions made by the settlement of February 12th, 1834. Costs of all parties to come out of the fund."—I may add, that it is satisfactory to me to know that this decision is in accordance with the views and wishes of all the parties.

(1) 3 Macq. 203.

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Before the Divorce Act (20 & 21 Vict. c. 85.) an English marriage was indissoluble; and the decree of a foreign Court, purporting to dissolve such marriage, will be treated by an English Court as a nullity.

In an English instrument "children will be construed, unless otherwise explained by the context, to mean children lawfully begotten.

B, an Englishman, was married in England to H, an Englishwoman. S, a friend of H, with the concurrence of H, induced B, for a pecuniary consideration, to go to Scotland, and reside there for forty days, in order to give the Scotch Court jurisdiction to entertain a suit against him by H. for a divorce. The suit was instituted, and a decree of divorce, on the ground of adultery, was pronounced by the Scotch Court in 1846. Shortly afterwards, a marriage was solemnized in Scotland be tween S, who was domiciled in Scotland, and H; and three children of such marriage were born in Scotland during the life of B-Held, that the Scotch divorce was null and void, and consequently the marriage of S. and H. was invalid, and their children were illegitimate; that neither S. nor H. were justifiably ignorant of the subsistence of the prior marriage, notwithstanding the divorce, as an impediment to their marriage; and that even if either S. or H. had been so ignorant (in which case their children would have been legitimate according to the law of Scotland, notwithstanding the invalidity of the marriage), their children could not take under an English will either real estate devised to the children lawfully begotten of H, or personal estate bequeathed to the children of H.

These were two petitions relating to two sums of 1,8937. and 8281. consols, transferred into court under the Trustee Relief Act, the former sum representing a moiety of the residuary personal estate of John NEW SERIES, 35.-CHANO.

Wilson, and the latter representing the produce of part of his real estate sold under a power of sale in his will.

John Wilson, a domiciled Englishman, by his will, dated the 27th of February, 1832, gave a moiety of his residuary personal estate in trust for his greatniece, Elizabeth Hickson, for life, and after her death in trust for her children or issue as she should appoint, and in default of appointment in trust for "all and every the children and child of his great-niece" at twenty-one or marriage in equal shares ; and in case she should not have any child or issue who under the trusts therein before declared should become entitled to the said moiety, then in trust for the testator's nephew, Ambrose Moore, his executors, administrators and assigns. And the testator devised his real estate to the use of trustees during the life of Elizabeth Hickson for her separate use; with remainder to the use of trustees for the term of 500 years, upon trusts for raising portions for the younger children of Elizabeth Hickson; with remainder to the use of the first and other sons of the body of Elizabeth Hickson "lawfully begotten or to be begotten" successively in tail; with remainder to the use of the daughters of the body of Elizabeth Hickson lawfully begotten, as tenants in common in tail; with remainder to the use of Ambrose Moore for life; with remainder to the use of the first and other sons of Ambrose Moore successively in tail, with divers remainders over.

The testator died in October, 1835.

On the 10th of June, 1828, Elizabeth Hickson, who was then an infant of the age of sixteen, and lived with her step-father at Stenson, in Derbyshire, was married at Manchester to Thomas Buxton, who also lived at Stenson. Immediately after the marriage ceremony, she was separated from her husband, and never lived with him afterwards. Buxton was convicted of procuring the marriage by fraud and conspiracy, and sentenced to three years' imprisonment.

In 1830 a bill was introduced in the House of Lords to have the marriage declared null and void; but as it appeared that Elizabeth Buxton had consented to the marriage, the bill was withdrawn.

In 1838 a separation deed was executed between Thomas and Elizabeth Buxton, by

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which an annuity of 651., and the interest of 9001. during their joint lives, and the principal sum of 9007. on the death of Elizabeth Buxton, were secured to Thomas Buxton.

In June, 1844, Elizabeth Buxton commenced a suit against her husband, in the Court of Arches, for a divorce a mensa et thoro, on the ground of adultery. This led to negotiations between Thomas Buxton and his wife's friends, especially a Mr. John Shaw, who desired to marry her, and for that purpose to have her divorced from Buxton, which resulted in an agreement, dated the 14th of November, 1844, and signed by Shaw and one Cantrell, as agent for Buxton, to the following effect: Buxton was to go Scotland, for the nominal purpose of collecting agricultural statistics for one Bull, a friend of Shaw, and remain there until a summons of divorce should be served upon him, receiving 401. for his expenses, and 57. a week more if he should have to stay more than eight weeks. In case he should be divorced, he was to receive 250l. upon the death of his wife's mother, with interest in the mean time from the date of the divorce; the 2507. and interest to be forfeited in case Buxton should at any time give information which should be prejudicial to the divorce; the 9007. vested in the trustees of the separation deed was to be paid to trustees to be applied for the benefit of Buxton and his family; Buxton was to retain his annuity of 657., and if he fulfilled the conditions of the agreement he was not to pay any legal expenses. The English divorce suit was thereupon discontinued.

In November, 1844, Buxton went to Scotland. In January, 1845, a summons in an action of divorce, issued by the Court of Session in Scotland at the suit of Elizabeth Buxton, was served upon him, and in February, 1845, he returned England.

to

On the 27th of February, 1845, Ambrose Moore, who was the uncle of Elizabeth Buxton, sent to her and her mother a written message, to the effect that the divorce could not be obtained but by collusion and perjury; that as it would involve perjury and bigamy, the law would consequently be put in force in both these respects; and that his object was to warn them in time of the consequences.

The Scotch divorce suit proceeded for some time, but was ultimately abandoned.

In September, 1845, Buxton again went to Scotland, and in the following November a new suit was commenced by Mrs. Buxton, in the Court of Session. The summons was served on Buxton in Scotland, and he soon afterwards returned to England. In January, 1846, he put in his defence to the action, admitting a residence in Scotland of more than forty days, but asserting that the domicil of the parties was in England, and denying the jurisdiction of the Court, and also denying the adultery. In the same month Elizabeth Buxton took the oath De calumnia, required by the Scotch Court, “that there had been no concert or collusion between her and the defender or his friends and agents in raising the action, in order to obtain a divorce against him, and that she did not know, believe or suspect that there had been any concert or agreement between any other person on her behalf and the defender, or any other person on his behalf, with the view or for the purpose of obtaining such divorce." In February, 1846, the Lord Ordinary overruled the plea to the jurisdiction. Evidence was then taken at Derby by commission on the charge of adultery, and on the 20th of March, 1846, the Court of Session made a decree dissolving the marriage, on the ground of adultery, with costs.

After the decree of divorce the 9007, was paid to the trustees named in the agreement of the 14th of November, 1844, and all the costs of the divorce suits were paid by Shaw.

On the 17th of June, 1846, Shaw, who had gone to live in Edinburgh in 1845, and Elizabeth Buxton went through the ceremony of marriage in Edinburgh, and they thenceforward lived together there as man and wife until the death of Shaw. They had three children, all born in Edinburgh, viz., Elizabeth Mary, born on the 21st of March, 1847, Rosa Jane, born on the 4th of May, 1848, and John Horatio Wilson, born on the 31st of December, 1850. Thomas Buxton, after his return from Scotland in November, 1845, lived in England until his death, which took place in January, 1852. John Shaw was admitted to the Scotch bar in 1847, and practised as an advocate until his death, which took place

in September, 1852. Elizabeth Shaw or Buxton died in July, 1863, without having professed to exercise the power of appointment given to her by the will of John Wilson.

Ambrose Moore had one son, John Wilson Moore, and four daughters. John Wilson Moore, by his marriage settlement, in 1860, barred his estate tail in the testator's real estate and the 8287. consols, and re-settled both the land and the consols.

The first petition was presented by the three children of John and Elizabeth Shaw, praying that the dividends of the 1,8937. consols might be applied for their maintenance, and that the dividends of the 8281. consols might be applied for the maintenance of John Horatio Wilson Shaw. The second petition was presented by Ambrose Moore and his daughters, denying the legitimacy of the children of John and Elizabeth Shaw, and praying for a transfer to Ambrose Moore of the 1,893/. consols, and for payment to him for his life of the dividends on the 8287. consols.

The Shaws, in support of their petition, produced an opinion of two Scotch advocates, in answer to the following questions:

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Assuming, first, that Buxton's going to Scotland was procured by the lady's friends, and, among others, the said John Shaw, but without the lady's privity; secondly, that it was so obtained, but with the lady's privity and approbation,

"1. Would the divorce and second marriage of Mr. and Mrs. Shaw be held good, and the children of that marriage legitimate, for all purposes according to the law of Scotland, unless and until the decree of divorce were set aside in an action of reduction?

"2. According to the law of Scotland, could reduction of the decree of divorce, on the ground of want of jurisdiction or of collusion, or on other ground, be now obtained? and what would be the effect of such reduction on the status of the children, or on their rights to a legacy bequeathed to the children of Mrs. Shaw?"

The opinion was as follows:

"1. We are of opinion that the divorce and second marriage would be valid, and the children legitimate for all purposes, according to the law of Scotland, until the

decree of divorce were reduced; and we are further of opinion that, although the assumptions on which this query is put were proved to be facts, these would not be relevant grounds of reduction of the decree of divorce.

"2. According to the law of Scotland, reduction of the decree of divorce would not be pronounced after a year and a day from the date of that decree, on the ground of want of jurisdiction, or of collusion, or any other ground, suggested to us by the facts of this case.

As

"The second part of this query raises a question of a very peculiar character. we understand the query, it proceeds upon the assumption that the decree of reduction has been pronounced, and upon that assumption we are of opinion that the children are legitimate. The law of Scotland, from considerations of expediency and humanity, adopts the rule of the Canon law which recognized the legitimacy of children born of a putative marriage; that is, a marriage regular and solemn in point of form, but null in law because of the existence of an impediment, such as the prior existing marriage of one of the parties, both or either of the parties being ignorant of the subsistence of that prior marriage. If either of the parties be justifiably ignorant of the impediment, the children are legitimate, and it is, in our opinion, a justifiable error, if both or either of the parties should have married on the faith of a decree of divorce and have children, although the decree should thereafter be reduced. In such a case the children of such marriage would, in our opinion, be legitimate according to the law of Scotland. In this case the plea to the jurisdiction of the Court was taken and repelled, and the judgment of Lord Wood was in accordance with the law of Scotland as understood by Scottish lawyers at the time when such judgment was pronounced. The correctness of that judgment may now be doubted in consequence of the decision of the House of Lords in Pitt v. Pitt (1). But in the present question of legitimacy the law would, we are of opinion, be held to have been rightly delivered by Lord Wood, and the decree of divorce would be

(1) 4 Macqueen, 627.

regarded as a sufficient ground for recognizing the legitimacy of the children, and this even although the marriage between John Shaw and Elizabeth Hickson were held to be null."

Upon the opening of the first petition,

Sir H. Cairns, for Ambrose Moore, objected to the admission of the opinion of the Scotch advocates as evidence of the law of Scotland, except on oath.

[KINDERSLEY, V.C. said that he never remembered such an objection being taken, but as the law of Scotland was a fact in the case, the respondent was entitled to have that fact proved on oath.]

It was then arranged that the hearing of the petitions should go on, and that an affidavit should be procured from the advocates, verifying their opinion. This affidavit was subsequently procured.

Mr. Anderson and Mr. Archibald Smith, for the Shaws.-The question in this case, viz. whether the petitioners are the children of the testator's great-niece, being a question of the personal status of the petitioners, must be decided according to the law of the country of their domicil. Thus a child born before marriage, and legitimated according to the law of his own country by the subsequent marriage of his parents, is legitimate in this country, though not entitled to inherit real estate.

Doe d. Birtwhistle v. Vardill, 2 Cl. &
F. 571; 7 Ibid. 895.

Re Don's Estate, 4 Drew. 194; s. c.
27 Law J. Rep. (N.S.) Chanc. 98.
In re Wright's Trusts, 2 Kay & J. 595;
s. c. 25 Law J. Rep. (N.S.) Chanc.
621.

Goodman v. Goodman, 3 Giff. 643. The principle laid down in Boyes v. Bedale (2), that in construing an English instrument "children" must mean children who, if domiciled in England, would be legitimate according to English law, cannot be maintained, and is contrary to the decision in Goodman V. Goodman. The domicil of the petitioners is Scotch, Scotland being the country in which their parents were married, in which they were conceived and born, and in which, at the

(2) 1 Hem. & M. 798; s. c. 33 Law J. Rep. (N.S.) Chanc. 283.

time of their birth, both their parents were domiciled

Dalhousie v. M'Douall, 7 Cl. & F. 817.
Munro v. Munro, Ibid. 842.

The question of the validity of the marriage of the petitioners' parents must be tried by the law of Scotland, being the lex loci contractus

Dalrymple v. Dalrymple, 2 Hagg. Cons.
Rep. 54.

Scrimshire v. Scrimshire, Ibid. 395. Consequently, the question upon which that validity depends, namely, whether the previous marriage was dissolved, must also be tried by the law of Scotland. By that law, a marriage, wherever solemnized, may be dissolved by the Scotch Court

Fergusson's Consistorial Decisions, 23, 168, 209, 226, 257, 336.

Warrender v. Warrender, 2 Cl. & F. 488.

Lolley's case (3) only decided that a Scotch divorce from an English marriage does not enable the parties to marry again in England. The general principle supposed to be established by that case, that an English marriage is indissoluble, was not admitted in Conway v. Beasley (4), Warrender v. Warrender and Geils v. Geils (5). In Dolphin v. Robins (6) the validity of the divorce in Scotland was not the question. In Pitt v. Pitt the only question was whether the wife, who was the defender in the divorce suit, had acquired, through her husband, a Scotch domicil. In Tovey v. Lindsay (7) there was no final decision, the defender having died before the case could be tried.

The divorce was not obtained by collusion. To constitute collusion there must be agreement between the parties that one should commit an act constituting a ground for a divorce

Bishop on Marriage and Divorce,
s. 29. (4th ed.)

Crewe v. Crewe, 3 Hagg. Ec. 123.
Harris v. Harris, 31 Law J. Rep.
(N.S.) Pr. M. & A. 160.
Gethin v. Gethin, Ibid. 43.

(3) Russ. & Ry. 237. (4) 3 Hagg. Ec. 639. (5) 1 Macqueen, 255.

(6) 7 H.L. Cas. 390; s. c. 3 Macqueen, 563; 29 Law J. Rep. (N.S.) Pr. M. & A. 11. (7) 1 Dow. 136.

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