WILLS OF PERSONALTY BY BRITISH SUBJECTS. 24 & 25 VICTORIÆ, CAP. 114. An Act to Amend the Law with respect to Wills of Personal 24 & 25 Vict. Be it enacted by, &c., as follows: c. 114, s. 1. Wills made out of the kingdom to be admitted if 1. Every will and other testamentary instrument made out of the United Kingdom by a British subject (whatever may be the domicile of such person at the time of making the same or at the time of his or her death) shall as regards personal estate made accord- be held to be well executed for the purpose of being admitted ing to the law in England and Ireland to probate, and in Scotland to conof the place where made. firmation, if the same be made according to the forms required either by the law of the place where the same was made or by the law of the place where such person was domiciled when the same was made, or by the laws then in force in that part of her Majesty's dominions where he had his domicile of origin (a). (a) Before this act, a will must have been executed according to the law of the country where the testator was domiciled at the time of his death (1 Wms. Exors. 366). And a will so executed, though not falling within sect. 1, will still be good under sect. 4. As to what documents an English Court will look in construing a French will, see Re Cliffe, 1892, 2 Ch. 229. A will in English form made in France by a British subject is well executed according to French law, and will therefore be admitted to probate in England under the first condition in this section (Re Lacroix, 2 P. D. 94; see Milnes v. Foden, 15 P. D. 105); but the act was held not to apply to the case of a naturalized alien where the letters of naturalization excepted the rights of a native born British subject out of the British dominions (Re Carlo Gatti, 39 L. T. 639). When a British subject dies abroad after the passing of this act, leaving a will executed in England, in accordance with the law of England, upon motion for probate it is not necessary to consider whether he had or had not acquired a foreign domicil (Re Rippon, 3 Sw. & Tr. 177). With regard to domicile it has been held, independently of this act, that a will in execution of a power is valid if made in accordance with the law of the testator's domicile at the date of the will (Re Alexander, 29 L. J. Prob. 93; see Milnes v. Foden, 15 P. D. 107); or at the date of his death (D'Huart v. Harkness, 34 Beav. 324). See also note to sect. 10 of Wills Act, ante, p. 411. A will in execution of a power may be entitled to probate under this act, and yet by reason of its not being executed in accordance with the Wills Act (sect. 9) may be invalid as a testamentary exercise of the power (Re Kirwan, 25 Ch. D. 373). This act does not extend to the case of a will in English form executed abroad by an alien; and in spite of the Naturalization Act, 1870, such a will cannot be admitted to probate, even where the testator's domicile of origin was English (Bloxam v. Favre, 9 P. Div. 130). In determining what papers are testamentary under this act the court will have regard to the law of one country only (Pechell v. Hilderley, L. R. 1 P. & M. 673). Probate is conclusive that an instrument is testamentary, but does not determine the validity of the dispositions contained in it (Whicker v. Hume, 7 H. L. C. 124). It seems, therefore, that this act leaves the extent of the power of testamentary disposition over personal property in England to be determined by the law of the testator's domicile at his death, except in cases within sect. 3 (4 Davidson, Conv. 349, n.) In the case of a will of English leaseholds, questions as to the validity of the gifts are determined according to English law (Freke v. Carbery, 16 Eq. 461; see Duncan v. Lawson, 41 Ch. D. 394); but so far as regards the formality of execution, there seems to be no reason why such a will should not fall within this section. See further as to this statute, Sugd. R. P. Stat. 398 et seq.; Hayes & Jarm. Wills, 539 et seq., 7th ed. 24 & 25 Vict. c. 114, s. 1. 2. Every will and other testamentary instrument made within Wills made in the United Kingdom by any British subject (whatever may be to be admitted the kingdom the domicile of such person at the time of making the same or if made acat the time of his or her death) shall as regards personal estate cording to be held to be well executed, and shall be admitted in England local usage. and Ireland to probate, and in Scotland to confirmation, if the same be executed according to the forms required by the laws for the time being in force in that part of the United Kingdom where the same is made (b). (b) Sect. 2 applies as well to a naturalized British subject as to a British subject by birth (Re Gally, 1 P. D. 438). 3. No will or other testamentary instrument shall be held to Change of be revoked or to have become invalid, nor shall the construction domicile not thereof be altered, by reason of any subsequent change of domi- will. cile of the person making the same (c). (c) Probate was granted of a will made by a domiciled Scotchman who subsequently acquired an English domicile (Re Reid, L. R. 1 P. & M. 74). This section appears to mean not merely that the will is to remain a valid instrument, notwithstanding a change of domicile, but that as to property within the United Kingdom its operation is not to be curtailed (4 Davidson, Conv. 349, n.) to invalidate invalidate 4. Nothing in this act contained shall invalidate any will or Nothing in other testamentary instrument as regards personal estate which this act to would have been valid if this act had not been passed, except as wills othersuch will or other testamentary instrument may be revoked or wise made. altered by any subsequent will or testamentary instrument made valid by this act. 5. This act shall extend only to wills and other testamentary Extent of act. instruments made by persons who die after the passing of this act. 440 Wills and Domicile of British Subjects Abroad, &c. 24 & 25 Vict. c. 121, s. 1. No British subject dying in a foreign country to be deemed to have acquired a domicile unless resi dent there for one year immediately preceding his or her death, &c., and for all purposes of testate or WILLS AND DOMICILE OF BRITISH SUBJECTS 24 & 25 VICTORIÆ, CAP. 121. An Act to amend the Law in relation to the Wills and Domicile of British Subjects dying whilst resident abroad, and of Foreign Subjects dying whilst resident within her Majesty's Dominions. [6th August, 1861.] WHEREAS by reason of the present law of domicile the wills of British subjects dying whilst resident abroad are often defeated, and their personal property administered in a manner contrary to their expectations and belief; and it is desirable to amend such law, but the same cannot be effectually done without the consent and concurrence of foreign states: be it therefore enacted by, &c., as follows: 1. Whenever her Majesty shall by convention with any foreign state agree that provisions to the effect of the enactments herein contained shall be applicable to the subjects of her Majesty and of such foreign state respectively, it shall be lawful for her Majesty by any order in council to direct, and it is hereby enacted, that from and after the publication of such order in the London Gazette no British subject resident at the time of his or her death in the foreign country named in such order shall be deemed under any circumstances to have acquired a domicile in such country unless such British subject shall have been resident in such country for one year immediately preceding his or her decease, and shall also have made and deposited in a public intestate suc- office of such foreign country (such office to be named in the order in council) a declaration in writing of his or her intention to become domiciled in such foreign country; and every British possessed at subject dying resident in such foreign country, but without having so resided and made such declaration as aforesaid, shall be deemed for all purposes of testate or intestate succession as to moveables to retain the domicile he or she possessed at the time of his or her going to reside in such foreign country as aforesaid (a). cession shall retain the domicile the time of going to reside in such foreign country. No foreign subject dying in Great Britain or Ireland to be (a) It is believed that no such convention has yet been agreed to. See further, as to the probable operation of the act, Hayes & Jarm. Wills, 540, 7th ed.; Sugd. R. P. Stat. 398. 2. After any such convention as aforesaid shall have been entered into by her Majesty with any foreign state it shall be lawful for her Majesty by order in council to direct, and from and after the publication of such order in the London Gazette a domicile it shall be and is hereby enacted, that no subject of any such 24 & 25 Vict. foreign country who at the time of his or her death shall be c. 121, s. 2. resident in any part of Great Britain or Ireland shall be deemed to deemed under any circumstances to have acquired a domicile have acquired therein, unless such foreign subject shall have been resident unless resiwithin Great Britain or Ireland for one year immediately pre- dent therein ceding his or her decease, and shall also have signed, and de- for one year immediately posited with her Majesty's secretary of state for the home preceding his department, a declaration in writing of his or her desire to or her death, become and be domiciled in England, Scotland or Ireland, and &c. that the law of the place of such domicile shall regulate his or her moveable succession. 3. This act shall not apply to any foreigners who may have Who this act obtained letters of naturalization in any part of her Majesty's shall not dominions. apply to. 4. Whenever a convention shall be made between her Ma- When and there their estates, the consuls of such foreign states may administer. jesty and any foreign state, whereby her Majesty's consuls or subjects of foreign states vice-consuls in such foreign state shall receive the same or the shall die in like powers and authorities as are hereinafter expressed, it shall her Majesty's be lawful for her Majesty by order in council to direct, and dominions, from and after the publication of such order in the London shall be no Gazette it shall be and is hereby enacted, that whenever any persons to subject of such foreign state shall die within the dominions of administer to her Majesty, and there shall be no person present at the time of such death who shall be rightfully entitled to administer to the estate of such deceased person, it shall be lawful for the consul, vice-consul, or consular agent of such foreign state within that part of her Majesty's dominions where such foreign subject shall die, to take possession and have the custody of the personal property of the deceased, and to apply the same in payment of his or her debts and funeral expenses, and to retain the surplus for the benefit of the persons entitled thereto; but such consul, vice-consul, or consular agent, shall immediately apply for and shall be entitled to obtain from the proper court letters of administration of the effects of such deceased person, limited in such manner and for such time as to such court shall seem fit (b). (b) As to administration of property in England belonging to a person domiciled out of this country, see 1 Wms. Exors. 436, 8th ed.; Re Dost Aly Khan (6 P. D. 6). c. 35, s. 1. APPORTIONMENT OF RENTS AND PERIODICAL 33 & 34 VICTORIÆ, CAP. 35. An Act for the better Apportionment of Rents and other [1st August, 1870.] 33 & 34 Vict. WHEREAS rents and some other periodical payments are not at common law apportionable (like interest on money lent) in respect of time, and for remedy of some of the mischiefs and inconveniences thereby arising divers statutes have been passed in the eleventh year of the reign of his late Majesty King George the Second (chapter nineteen), and in the session of Parliament holden in the fourth and fifth years of his late Majesty King William the Fourth (chapter twenty-two), and in the session of Parliament held in the sixth and seventh years of his late Majesty King William the Fourth (chapter seventyone), and in the session of Parliament held in the fourteenth and fifteenth years of her present Majesty (chapter twentyfive), and in the session of Parliament held in the twenty-third and twenty-fourth years of her present Majesty (chapter one hundred and fifty-four): And whereas it is expedient to make provision for the remedy of all such mischiefs and inconveniences: Be it therefore enacted as follows: 1. This act may be cited for all purposes as “The Apportionment Act, 1870." 2. From and after the passing of this act all rents, annuities, dividends, and other periodical payments in the nature of income (whether reserved or made payable under an instrument in writing or otherwise) shall, like interest on money lent, be considered as accruing from day to day, and shall be apportionable in respect of time accordingly (a). (a) As to questions of apportionment arising before 1st August, 1870, see the act 4 & 5 Will. 4, c. 22; Shelford's R. P. Stat. 8th ed., 542. The question frequently raised under the old law whether such a determination of the interest had occurred as would give rise to an apportionment (see Shipperdson v. Tower, 8 Jur. 485) cannot arise under the Act of 1870 Clive v. Clive, 7 Ch. 433). Where the event on which apportionment is claimed occurs after the passing of the act, the act applies whether the instrument comes into |