in Udny v. Udny, 1869, L. R., 1 S. & D. A. 447, and has been followed in Goodman v. Goodman, 1862, 3 Giff. 643, Stuart.

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.

§ 52. 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.

Skottome v. Young, 1871, L. R., 11 Eq. 474, Stuart.

§ 53. 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

*Syst. d. heut. Röm. rechts, § 380; Guthrie's translation, p. 250.

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.

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 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; and that when the word "children" occurs in an English will, the testator may be held to have tacitly intended the union of the same two conditions.

CHAPTER V.

SUCCESSION TO MOVABLES ON DEATH.

AFTER status, capacity, and family relations, the Italian code passes to the respective laws which govern movables and immovables in general. I prefer however to 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 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

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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 those countries of which the law has been derived from that of Rome more directly than has been the case with the English law on the subject, the movable property of a deceased person, like his immovable property, descends on the heirs appointed by his will or entitled by law as the case may be, and in some cases on his universal legatees, subject of course to the acceptance of such heirs or legatees. And these are liable personally for the debts of the deceased, though, if they have accepted the succession with benefit of inventory, only to the amount of the property received by them, to which amount they are also liable for the particular legacies bequeathed by the will; but the beneficial interest is theirs, subject to the satisfaction of the debts and particular legacies. The appointment of executors by a testator is exceptional, and the power of making it is usually limited, as for instance by Art. 1026 of the Code Napoleon, which permits seisin of movable property alone to be given to the executors, and of this for not more than a year and a day.

In the former, or English, system, only the beneficial interest in the surplus of personal property, remaining after payment of debts, is transmitted on death, whether in the case of testacy or of intestacy. The property itself passes by a public grant, made after the death, and implying no beneficial interest, though in the absence of an executor appointed by will it is usually made to some one beneficially interested. In the latter, or continental, system, the movable property is itself transmitted on death, whether in the case of testacy or of intestacy, and such transmission implies a beneficial interest, which is limited only by the debts and legacies to be satisfied out of it. This system, as will be perceived, is very similar to that which through successive legislative changes has come to exist in England for real property. The common origin of both systems is the ancient principle of Roman law, by which the heir continued, and in that sense represented, the person of the deceased, both as to his rights and as to his obligations. This principle has been modi

fied in England, for personal property, first by making a public grant necessary in all cases for the representation of a deceased person, and secondly by separating the beneficial interest in the representation from the representation itself; and the executor or administrator, called in England the personal representative, has thus come to be something very different from the complete continuator of the deceased's person. In the continental system, the principle has been modified only by the benefit of inventory, introduced by Justinian.

In working out the problems which arise for private international law out of these systems, the continental rule governs succession, whether testate or intestate, by the personal law of the deceased, this being extended by the Italian code, in accordance with the opinion of Savigny,* even to the immovable property of the deceased situate in other countries than his own. The principle which lies at the base of the English authorities is in substance an adaptation of the same rule to the English system with regard to succession in personal property, and may be stated thus:

§ 54. The law of a deceased person's last domicile governs the beneficial interest in the surplus of his personal property, after payment of his debts, funeral expenses, and expenses of administration, that is of getting in and distributing such property; and this, whether in the case of testacy or in that of intestacy.

And since no law can be so well expounded or applied as by the courts of the country where it is in force, the following corollary from the last is well established:

§ 55. Where the court of a deceased person's last domicile has had an opportunity of declaring who are entitled to the beneficial interest in his personal property, subject to payment of his debts, funeral expenses, and expenses of administration, its authority is regarded in England as final, whether the question arises on a claim to a grant of administration, on a claim to be heard as contradictor to a will propounded for probate, in the distribution of the English assets after payment of debts and the other expenses above mentioned, or in any other way.

* Syst. d. heut. Röm. rechts, § 376; Guthrie's translation, p. 227.