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Crispin v. Doglioni, 1863, 3 S. & T. 96, Cresswell; 1866, L. R., 1 E. & I. A. 301, Chelmsford and Cranworth.

§ 56. By the law of the deceased's last domicile, in the preceding §, must be understood that law as it existed at the date of his death. A retrospective law, passed since the death, will be disregarded by the English court in all questions concerning the succession.

Lynch v. Provisional Government of Paraguay, 1871, L. R., 2 P. & M. 268, Penzance.

The more detailed international questions which arise in England on the matter of personal succession may conveniently be taken in the order of the proceedings in a particular case. First will come the rules as to the person to whom a grant of probate or administration is made, and those as to what wills are provable: both these operate at the same time in determining the grant, but the former are of more general application, because they comprise the case of intestacy as well as that of testacy. Next will come the rules as to what property passes by the grant of probate or administration, and, last, those which decide the questions that can arise in the administration of such property, taking the word administration in the second of the two senses contrasted on p. 88.

The Grant of Probate or Administration.

§ 57. Whatever the domicile or political nationality of the deceased, his personal property situate in England cannot be lawfully possessed, or if recoverable in England cannot be sued for, without an English grant of probate or administration.

Tourton v. Flower, 1735, 3 P. W. 369, Talbot. Price v. Dewhurst, 1838, 4 M. & C. 76, Cottenham; illustrating what is a necessary consequence of the §, that in the judicial administration of the personal estate of a deceased person, that is to say when the duty of the executors or administrators to administer is being carried out under the direction of a court-see the second sense of administration, p. 88-the court can take no notice of any will which has not been proved in England. Exp. Fernandes' Executors, 1870, L. R., 5 Ch. Ap. 314, Giffard, reversing Romilly.

In Huthwaite v. Phayre, 1840, 1 M. & Gr. 159, Tindal, Bosanquet, Coltman and Erskine allowed an administrator under an Irish grant to sue on a deed

which was assumed to have been bona notabilia in Ireland at the date of the death. But this was certainly an error: see Whyte v. Rose, under the next §. In Vauquelin v. Bonard, 1863, 15 C. B., N. S. 341; second count and 16th plea; it was held by Erle, Williams, and Keating that a universal successor, entitled under the law of a deceased person's domicile to sue in his own right for debts comprised in the succession, could sue for them in England in his own name, without an English grant. At the same time they were anxious to save the rule laid down in this §, only they seemed to think that their own holding applied to a peculiar case, instead of the case before them being the general one under continental law.

§ 58. And no grant from any foreign jurisdiction is necessary, to enable a suit for any personal property of the deceased to be maintained in England.

Whyte v. Rose, 1842, 3 Q. B. 496; Tindal, Abinger, Coltman, Maule, Parke, Alderson, Rolfe; reversing the same case, 1840, ib. 493, Denman, Littledale, Patteson, Coleridge.

§ 59. The leading maxim for determining the person to whom the English grant should be made cannot be better expressed than by the following quotation. "I have before acted on the general principle that where the court of the country of the domicile of the deceased makes a grant to a party, who then comes to this court and satisfies it that, by the proper authority of his own country, he has been authorized to administer the estate of the deceased, I ought, without further consideration, to grant power to that person to administer the English assets." Lord Penzance, in re Hill, 1870, L. R., 2 P. & M. 90.

The same judge is reported to have expressed the same maxim on another Voccasion as follows. "It is a general rule on which I have already acted that where a person dies domiciled in a foreign country, and the court of that country invests any body, no matter whom, with the right to administer the estate, this court ought to follow the grant simply, because it is the grant of a foreign court, without investigating the grounds on which it was made, and without reference to the principles on which grants are made in this country." Re Smith, 1868, 16 W. R. 1130, Wilde. But this mode of expressing the maxim is scarcely so accurate, for it will be seen that so long as power to administer is granted to the same person who has received it from the court of the domicile, it is not always necessary that he should receive it in the same form below, § 63. In support of the present §, see also re Rogerson, 1840, 2 Cur. 656, Jenner.

A converse rule to that of § 59, requiring that, where the deceased was domiciled in England, power to administer should be granted in the colonies to the person who had received such power in England, was laid down by the Privy

Council as early as 1762, in Burn v. Cole, Ambl. 415, Mansfield. In Browne v. Phillips, 1737, there cited, the Privy Council considered that the rule did not extend to the case where administration in the domicile had been granted to a creditor; and it may not be quite certain that lord Mansfield disapproved this limitation, though his own words in Burn v. Cole do not repeat it. He cited however with disapproval the reason given for the rule in Williams v. 1747, P. C., Lee, "that the plantations, being within the diocese of London, are subordinate to the prerogative of Canterbury;" "the better and more substantial reason for such a determination," he said, "is the residency."

§ 60. The rule of § 59 applies in favour of one who has received in the domicile a grant de bonis non, as well as to one who has received an original grant.

Re Hill, 1870, L. R., 2 P. & M. 89, Penzance.

§ 61. And it has been applied in favour of one who in the domicile had been appointed judicial administrator, pending a suit to determine which of two wills was valid.

Viesca v. d'Aramburu, 1839, 2 Cur. 277, Jenner.

§ 62. Also in favour of one who in the domicile has been appointed provisional executor, during the incapacity of the executor named by the will; and the grant of administration was then limited to such time as the authority of the provisional executor should continue in the domicile.

Re Steigerwald, 1864, 10 Jur., N. S. 159, Wilde.

§ 63. Where in the testator's domicile probate has been granted to one as executor according to the tenour, the case being such that according to English practice he would only have been entitled to administration with the will annexed, the grant to the foreign executor will only be administration with the will annexed.

Re Read, 1828, 1 Hagg. Eccl. 474; re Mackenzie, 1856, Deane 17, Dodson; re Cosnahan, 1866, L. R., 1 P. & M. 183, Wilde; re Earl, 1867, L. R., 1 P. & M. 450, Wilde.

§ 64. "From and after the date aforesaid" [12th November, 1858] "it shall be competent to include in the inventory of the personal estate and effects of any person who shall have died domi

ciled in Scotland any personal estate or effects of the deceased situated in England or in Ireland, or in both provided that the person applying for confirmation shall satisfy the commissary, and that the commissary shall by his interlocutor find, that the deceased died domiciled in Scotland, which interlocutor shall be conclusive evidence of the fact of domicile: provided also that the value of such personal estate and effects situated in England or Ireland respectively shall be separately stated in such inventory, and such inventory shall be impressed with a stamp corresponding to the entire value of the estate and effects included therein, wheresoever situated within the United Kingdom." Confirmation and probate act 1858; st. 21 & 22 Vict., c. 56; s. 9.

"From and after the date aforesaid, when any confirmation of the executor of a person who shall in manner aforesaid be found to have died domiciled in Scotland, which includes besides the personal estate situated in Scotland also personal estate situated in England, shall be produced in the principal court of probate in England, and a copy thereof deposited with the registrar, together with a certified copy of the interlocutor of the commissary finding that such deceased person died domiciled in Scotland, such confirmation shall be sealed with the seal of the said court and returned to the person producing the same, and shall thereafter have the like force and effect in England as if a probate or letters of administration, as the case may be, had been granted by the said court of probate." Ib., s. 12.

This legislation provides, in fact, for a new form of English grant and proof, and therefore does not affect the necessity of an English grant for possession or suit in England, or the necessity of an English proof before a court of administration in England can take notice of a will, as laid down under § 57.

Sect. 13 of the same act is identical with s. 12, putting Ireland for England, and s. 14 makes a corresponding provision for giving efficacy in Scotland to probates and letters of administration granted in England or Ireland to the executors or administrators of persons who died domiciled in the latter countries respectively.

§ 65. Where the deceased died domiciled abroad, and no one

has been authorized to administer his personal estate by any court of his domicile, either because such authorization was unnecessary by the law of that country or otherwise, the English court makes the grant:

First, to the executors, if any, appointed by the will or appearing from its tenour.

And where the will of a testator who died domiciled abroad contains a general appointment of executors, the English court ought to grant probate of it to the executors so appointed without enquiring whether the will operates on any personal property in England, just as it would do in the case of the will of an English testator.

Lord Chelmsford, in Enohin v. Wylie, 1862, 10 H. L. 1, p. 23. Lord Westbury, in the same case, p. 14, referred to the further circumstance that the will had been authenticated by the executors in the proper court of the domicile ; but the proposition does not seem to need that qualification.

§ 66. But where a testator appoints by the same will different executors for his English and foreign property, it may reasonably be assumed that those appointed for the latter will not be entitled to any probate in England.

In re Winter, cited under § 72, Sir C. Cresswell said: "I find that when a testator has left general executors and a limited executor, the practice has been to grant probate to each of them according to the terms of his appointment. I do not quite see the principle upon which that practice has obtained." With deference, the practice seems sound, and it leads to the conclusion that no probate could be granted to an executor specially appointed for property not within the jurisdiction.

§ 67. And an executor appointed by the will, but whose executorship has expired by the law of the testator's last domicile, is not entitled to any grant in England.

Laneuville v. Anderson, 1860, 2 S. & T. 24, Cresswell.

§ 68. In the case of foreign wills not expressly appointing executors, the English practice is to grant probate to one named as heir, as executor according to the tenour, but only to grant administration with the will annexed to a universal legatee.

Re Oliphant, 1860, 30 L. J., N. S., P. & M. 82, Cresswell.