than by reason of such transfer would he held valid in her former country. The next § shows that on the point which has occurred the English authorities take the view just now expressed.

§ 53. Where the capacity of a woman to rerrarry depends on the validity of a divorce the jurisdiction for which is not deemed in England to have been internationally competent, the children of the remarriage will be deemed illegitimate in England;-notwithstanding that the remarriage is deemed to be valid in its locus actus and by the personal law of the new husband.

Re Wilson (1865), L. R. 1 Eq. 247, Kindersley; confirmed, sub nom. Shaw v. Gould (1868), L. R. 3 E. & I. A. 55, Cranworth, Chelmsford, Westbury, Colonsay.

§ 54. With regard to the legitimation of a child by the subsequent marriage of its parents, neither the place of its birth nor that where the marriage is contracted is important. But such legitimation cannot take place unless permitted by the personal law of the father at the date of the marriage.

Since the legitimated child must acquire the personal law of its father, its legitimation in despite of the personal law of the father at the time of the legitimation would be a contradiction.

Dalhousie v. McDouall (1840), 7 Cl. & F. 817; Munro v. Munro (1840), 7 Cl. & F. 842; both decided together by Cottenham and Brougham. In these cases the father's domicile was held not to have been changed between the date of the birth and that of the marriage, but in stating the point before the house Brougham made no mention of the domicile of the father at the former date, but only at the latter: p. 882. Then he quoted the opinion of certain of the Scotch judges appealed from, that "the condition of children previously born. . . must be determined by the law of the country where the parents were domiciled at the birth and the marriage. If the domicile was not the same for both parents at these two periods, we should hold that that of the father at the time of the marriage should give the rule. But as they were the same in this case, the question does not arise." And with reference to the opinion thus quoted he added immediately, "thus agreeing clearly upon the point of law with the majority of the learned judges, though they differed in point of fact:" p. 884. Finally, he described himself as "agreeing with almost the whole of them," the Scotch judges, " upon the question of law:" p. 893. Lord Brougham therefore would have supported a wider statement than has been ventured on in the §, namely one that legitimation by subsequent marriage depends only on the law of the father's domicile at the date of the marriage; but Lord Cottenham contented himself with "the proposition that the child of a Scotchman, though born in England, becomes legitimate for all civil purposes in Scotland by the subsequent marriage of the parents in England, if the domicile of the father was and continued throughout to be Scotch" p. 875. The subsequent marriage of Jewish parents in England does not make their children already born abroad legitimate, the Jewish law on legitimation not being recognised as a personal law. Levy v.

Solomon (1877), 25 W. R. 342. 10 A. C. 692, at p. 739

$55. Selle

See too The Lauderdale Peerage,

§ 55. Neither however can the legitimation of a child by the subsequent marriage of its parents take place unless it is also permitted by the personal law of the father at the date of the birth,

This was decided by Vicechancellor Wood, in Re Wright (1856), 2.K: & J. 595, not noticing the contrary opinion of Lord Brougham shown ander the last § and erroneously quoting Lord Cottenham as saying in Munro v. Munro that "the question in such cases must be, can the legitimization of the children be effected in the country in which the father is domiciled at their birth?" p. 614. The doctrine however was repeated by the same judge, as Lord Hatherley, in Udny v. Udny (1869), L. R. 1 S. & D. A. 447, and followed in Goodman v. Goodman (1862), 3 Giff. 643, Stuart; and it has since been again asserted in Re Grove, Vaucher v. Solicitor to Treasury, 40 Ch. D. 216, Cotton, Fry and Lopes (1888), affirming Stirling (1887).

Savigny's opinion is the same as that of the Scotch judges in Munro v. Munro and of Lord Brougham. He says: "legitimation by subsequent marriage is regulated according to the father's domicile at the time of the marriage, and in this respect the time. of the birth of the child is immaterial. It has indeed been asserted that this latter point of time must be regarded, because by his birth the child has already established a certain legal relation, which only obtains fuller effect by the subsequent marriage of the parents; and it is added that the father could arbitrarily elect before the marriage a domicile disadvantageous to the child. But we cannot speak at all of a right of such. children or of a violation of it, since it depends on the free will of the father not only whether he marries the mother at all, but even, if he contracts such a marriage, whether he will recognize the child. In both these cases the child obtains no right of legitimacy, for a true proof of filiation out of wedlock is impossible, and accordingly voluntary recognition, along with marriage and independently of it, can alone confer on the child the rights of legitimacy."

The following cases bear on the subject of legitimacy, but it is not possible to extract a rule from them. Strathmore Peerage (1821), 6 Paton 645. Eldon and Redesdale; Munro v. Saunders, or Rose v. Ross (1830), 6 Bligh N. R. 468, 4 Wils & Sh. 289, Eldon, Lyndhurst, Wynford. In Bligh's report of Rose v. Ross the date is incorrectly given as 1832, and the respondent is incorrectly named Rose in the title.

* Syst. § 380, Guthrie 250.

§ 56. A child whose legitimacy has been acquired through the subsequent marriage of its father, domiciled abroad, ranks as a child under the British legacy and succession duty acts.

Skottowe v. Young (1871), L. R. 11 Eq. 474, Stuart.

See the same principle applied to the statute of distributions and to the construction of wills of personalty in § 126, which might equally well have been placed here, but it was desirable to notice the point both here and in connection with personal successions.

§ 57. But if a child born in a country politically foreign be legitimated by the subsequent marriage of its parents, it will not thereby be naturalized under st. 4 Geo. 2, c. 21, although its father was a natural-born British subject; because the benefit of that act is expressly limited to children whose fathers were natural-born subjects at the time of their birth, and at the time of its birth the child was not only an alien but filius nullius, and in legal understanding had no natural-born subject for its father. Shedden v. Patrick (1854), 1 Macq. 535, Cranworth, Brougham, St. Leonards.

§ 58. Where there has been no marriage at all between the parents, a foreign law entitling illegitimate children to succeed, as such, leaves them strangers in blood within the English Succession Duty Act.

Atkinson v. Anderson (1882), 21 Ch. D. 100, Hall.

There is a curious case of Re Ullee, the Nawab Nazim of Bengal's infants (1885), 53 L. T. (N. S.) 711, Chitty; 54 L. T. (N. S.) 286, Baggallay, Bowen and Fry. The Nawab Nazim, a Mahometan British subject, domiciled in British India, and who had at least one wife living in that country, went in England through a ceremony of marriage according to Mahometan rites with a Christian Englishwoman who did not know that he had any other wife. The issue of that union were treated by the British Government of India as being children of the Nawab Nazim, and it seems that this could not have been otherwise, whatever opinion was entertained about the effect of the marriage ceremony, because the father had recognised them and, as Mr. Justice Chitty said, "that the Mahommedan law allows recognition to establish legitimacy is clear from the authorities referred to by Mr. Macnaghten in his argument." The status of the children in England was discussed, but it was not necessary to determine it. Had it been so, Mr. (later Lord) Macnaghten's argument in favour of their legitimacy, which was in effect that the personal law of the father ought to be as efficacious in the case of legitimation by acknowledgment as in that of legitimation by subsequent marriage, appears to be conclusive, and Mr. Justice Chitty evidently leant to that opinion. If in similar circumstances it should become important to determine the effect of the ceremony as constituting a valid Mahometan marriage, the first question would be whether the woman intended such a marriage, and if she did it might be argued, in accordance with the principle of § 26, p. 63 and having regard to the man's Indian domicile,,

that he might marry with the forms of his own law where the ler loci actus supplied no applicable form. See § 34a, p. 69. But a marriage of a Moslem Indian celebrated before a registrar in England will be assumed to be a Christian marriage. See Ex parte Mir Anwareddin (u.s.).

It must be observed, with regard to the doctrines on legitimation quoted in this section even from English authorities, that they do not determine the right of succeeding to real property in England. We shall see in due place that the right of inheriting English land is held to be limited by the condition of having been born in wedlock, in addition to that of being legitimate.

§ 58a. The question whether a child is a bastard depends entirely on the law of the domicile of the parents at the time of the birth: and the fact that the child is born abroad is immaterial as regards status-R. v. Humphreys, [1914] 3 K. B. 123, Bankes and Lush, JJ., Avory, J.,. dissenting. So too the liability of a father to maintain his son is determined solely by the law of the father's domicile-Coldringham Parish Council v. Smith, [1918] L. J. Newsp., p. 181, Sutton, J.

CHAPTER V.

SUCCESSION TO MOVABLES ON DEATH.

AFTER status, capacity, and family relations, I pass to the remaining cases in which property is considered in special connection with a person, in order to exhaust the applications of the personal law while on the subject of it; and of such applications the most important, after those connected with marriage, are those connected with death. These must for English practice be limited to movables, because for that branch of our subject English land is in no case subjected to the personal law but always to the lex situs.

In England, and in those countries and colonies of which the law is derived from that of England, the personal or movable property of a deceased person can only be possessed under a grant from public authority, usually judicial. Such grant is, in England, in one of three forms:

(1) Probate of a will, granted to the persons, one or more, appointed in such will as executors;

(2) Administration with the will annexed, where no executor is appointed by the will;

(3) Administration, where the deceased left no will.

The executors or administrators have to realize the personal property of the deceased, pay his debts, and distribute the surplus among those who may be entitled under the will, or by law in case of intestacy. These duties are classed together under the name of administration, which term has therefore two meanings: it is used in opposition to probate, to express a certain description of public grant, and it is used to express that course of dealing with the property granted which is expected from the grantee, whatever was the kind of grant..

In cases where the deceased person died after the Land Transfer Act, 1897, 60 & 61 Vict. c. 65, came into operation, on 1st January, 1898, the real or immovable property also vests in the executor or administrator in the same way as personal property.