1859. June 9, 10, 15, 16, 17. July 15. Lord CHELMSFORD, L.C. Lord BROUGHAM. Lord CRANWORTH, Lord WENSLEYDALE. [1183] IN THE HOUSE OF LORDS. FENTON v. LIVINGSTONE. (5 Jurist, N. S. 1183-1190; S. C. 3 Macq. 497; 7 W. R. 671.) Held also, that though the son was legitimate in England by the rule of law that the marriage could not be declared void after the death of either of his parents, yet that rule is not binding out of England, and cannot operate to make the son legitimate in Scotland, where such a marriage is assumed to be incestuous, and to contract it a capital offence. The rule, that the lex loci contractus of a marriage establishes its validity, requires this qualification, viz, where the law of a country forbids marriage under any particular circumstances, the prohibition follows the subjects of that country wherever they may go. The lex loci rei sitæ governs exclusively the tenure, title, and descent of immoveable property. The comity of nations does not demand that a nation should recognise as valid every marriage which is valid lege loci contractus, and not prohibited by the common consent of Christianity. Each nation has a right to define and prohibit incest. It should not be assumed that if the claim had been to mobilia, the son of such a marriage would be entitled to succeed, where it was necessary to prove a valid marriage: per Lord CHELMSFORD, [The principal matter of this decision is now obsolete, and the dicta, so far as of general application to other questions of a like kind, are sufficiently cited and considered in the judgments of LUSH, L. J., (dissenting), and COTTON, L. J. in Re Goodman's Trusts, (1881) 17 Ch. Div. 266, 273, 287, 292, 50 L. J. Ch. 425, 44 L. T. 527.-F. P.] (1) See now 7 Edw. VII. c. 47. CHANCERY. BIRDSALL v. YORK AND OTHERS. (5 Jurist, N. S. 1237-1238.) J. N. gave to trustees all his real estates, in trust, after payment of debts, for the benefit of his wife and daughter for their lives; and in the event of his wife dying in the lifetime of the daughter, (which happened), then the testator directed the trustees, after the decease of the daughter, to convey the fee simple of the whole of the estates unto and equally between A., B., C., and D., share and share alike, or unto such of them as should be then living, and the issue of such of them as should be then dead leaving lawful issue, and to his, her, and their heirs, &c. But in case any one of them should happen to die in the lifetime of his wife or daughter leaving issue, such issue then living should be entitled equally among them to the share only which his, her, or their parent or parents would have been entitled to if living. J. N. died in 1834. A. died in 1840, leaving three children, X., Y., and Z., all of whom died in the lifetime of the testator's widow and daughter, and all of whom left children surviving, viz. X. four, Y. one, and Z. six children: Held, that the grandchildren of A. took his share of the property per capita, and not per stirpes. THIS was a special case stated for the opinion of the Court, under the provisions of the 13 & 14 Vict. c. 60; and it appeared that James Nicholson, by his will, dated the 21st November, 1828, gave, devised, and bequeathed unto Francis Cordeaux and the plaintiff Richard Birdsall all his real and personal estates, upon trust to pay his dobts, funeral and testamentary expenses; and after payment thereof to permit his wife Catherine Nicholson to receive and take the rents, issues, interest, dividends, and profits of the residue thereof, for the maintenance and support of his said wife and his daughter Alice Nicholson during their joint natural lives; and after the decease of his wife, in case she should die in the lifetime of his said daughter, then upon trust that the trustees should receive, pay, and apply the said rents, &c. of his real and personal estates unto and for the maintenance of his said daughter during her natural life, in such manner as they should consider most conducive to her comfort and support; and as to all and singular his said real estates, and the fee simple and inheritance thereof, and the principal monies to arise from his said personal estate, he thereby directed, that in case his said wife should survive his *said daughter, she should have the sole and absolute disposal thereof, as therein more particularly mentioned; and in case his said wife should survive his said daughter, but should not dispose of all or any part of the fee simple of his said real estate, or the principal of his said personal estate, in manner aforesaid, or in the event of his said wife dying in the lifetime of his said daughter, (which event happened), then, from and immediately after the decease of the survivor of them, his said wife and daughter, upon trust that the trustees or trustee for 1859. July 19. STUART, V.-C. [ 1237 ] [ *1238 ] Why were defendants, f twenty-one c. -f the child him sur ee murrage Lo settlement, or er share if any under the will The Mid Thomas Pomfret York f whom were defendants, under the age of twenty-one years, and the Let in the year 1855 under the age of twenty-one Frans Creta died in June, 1835, and the plain: |:ཀྱིས པ ས པ ས བ ས 1:|: :ར Le trustee and executor surviving. All the testator's funeral and testamentary expenses and debts had been long since paid. The personal estate of the testator at the time of his death was of very small value, and was retained and applied by his widow; and the real estate of which he died seised consisted of certain freehold houses situate in the parish of Hardingstone, Northamptonshire. On the 26th May, 1859, a special guardian was appointed for the infant defendants. The questions for the opinion of the Court, in consequence of the difficulties which had arisen upon the construction of the will, were first, who, in the events that had happened, were now beneficially entitled, and in what share, to the real estate of the testator under the trusts declared by his will; and, secondly, how were the costs of and incidental to this special case to be raised and paid. Hallett appeared for the only child of John York, the son, and submitted that [the three children of John York took per stirpes, or, as between themselves, one-third each of the property, and that the children of each child took the several third parts per capita. He referred to Wythe v. Thurlston (1), Davenport v. Hanbury (2)]. Roxburgh, for the children of Thomas Pomfret York and the children of William York, contended that [there was nothing. in the will to indicate that the children of John York were to tako per stirpes, and the remoter issue per capita, and therefore he submitted that the eleven grandchildren were the "issue then living," and that they were entitled to have the parent's share of the property divided equally amongst them; and he cited Hockley v. Mawbey (3), Thompson v. Beasley (4), and some early cases]. J. Pearson appeared for the defendants Elizabeth York, Elinor Leighton, and Mary Charlton; and Surrage, for the plaintiff; but they took no part in the argument. Hallett, in reply. referred to the case of Butler v. Stratton (5). And see also [Dowding v. Smith (6)]. Sir J. STUART, V.-C., said that in his opinion the words. "their parent or parents" were confined to the four persons named in the will, and that the property was distributable among the grandchildren of John York the elder, who was entitled to one-fourth, per capita, and not per stirpes. The declaration would be, that the three defendants, sisters of the (1) Amb. 555. (2) 3 R. R. 91 (3 Ves. 257). (4) 106 R. R. 272 (3 Drew. 7). (6) 52 R. R. 215 (3 Beav. 541). BIRDSALL v. YORK. dw, and the molhildren of John York, the berber, were entitled the property in fe in fourths; and teably by the entire estate, as etor and cent; the rents and profits thereof t T De appled in lipaldarion there f in the first instance. This was a motion in behalf of the plaintif to vary the chief car's ortidate. The suit was instituted for the purpse facing a declaration that a verbal agreement, entered into between the plaintif and the defendant, constituted a partnership between them, that such partnership ought to be disse lved, and that the usual accrunts ought to be taken. On the Learing of the cause, it appeared that the defendant, a baker, entered into a verbal agreement with the plaintiff, a carpenter, that the defendant should obtain a demise of a certain piece of land at Stepney, on which should be erected seven houses; that the defendant should find all the money that might be required for the purpose of, and that the plaintiff should superintend the erection of, the buildings. A lease of the property was made to the defendant alone. The houses were erected under the superintendence of the plaintiff, and the defendant found all the money necessary, and he contended that, under the circumstances, no partnership existed between him and the plaintiff. The plaintiff, on the other hand, submitted that a partnership had been entered into, and he asked that the property should be ordered to be sold, and that the proceeds, after repaying the defendant the sums which he had advanced, should be divided equally between them. Sir J. STUART, V.-C., held that a partnership had been properly constituted, and made a decree for dissolving it, with costs, to be paid by the defendant; for a sale of the property; and for the usual accounts. On the 12th May, 1859, the property was offered for sale by public auction, and it was bought by the defendant for 1,2051. The chief clerk, in taking the accounts, (1) Under the Partnership Act, 1890, s. 24 (3), interest at 5 per cent. is now payable on advances by partners beyond agreed capital, subject to any express or implied agreement between the partners to the contrary.-O. A. S. |