George Hamilton and others (Plaintiffs par reprise and William Plenderleath, Esquire, (defendant in the Respondent. A devise made to a bâtard adultérin not competent by the French law, when The executors of a testator have no quality to make a reprise d'instance, if such BOWEN, JUSTICE, In this case which was argued in July last, and reheard in the present term, we are now to pronounce judgment. It is a case of very considerable importance, whether viewed in regard to the large amount of property at stake, or, to the somewhat novel and intricate questions which it gives rise to. The suit is technically entitled, an action en nullité de legs; but for the better understanding of the case, may be as well here to premise briefly some of the facts upon which the action is based, such as disclosed in the Plaintiff's declaration. it The late Major General Gabriel Christie, being seized and possessed of divers valuable lands, tenements and hereditaments in the Province of Lower Canada, and more particularly of the Fiefs and Seigniories of Repentigny, Lacole, Noyan, Sabrevois, Bleury and Delery, in the district of Montreal, made his last will and testament on the 13th May 1789, and died without revoking the same or any part thereof on the 20th January 1799. It is averred that at the time of making this will and at the period of his decease, Napier Christie Burton, the original Plaintiff in the suit, was the only son begotten in lawful marriage of the said Gabriel Christie with Sarah Christie, his wife; that there were likewise two daughters lawful issue of the said Gabriel and Sarah, namely Catherine Christie and Sarah Christie, both of whom were living at the time of the institution of this suit; that the said Gabriel Christie, in and by his last will and testament, bearing date the 13th May 1789, after ordering the payment of certain legacies therein mentioned, did give and bequeath the rest, residue and remainder of his personal estate, goods, chattels and effects whatsoever and wheresoever unto his eldest son Napier Christie Burton, the Plaintiff, and as to all and every his manors, messuages, lands, tenements, hereditaments and real estate whatsoever situate in Great Britain and North America, with the exception of his mill, lands and tenements at Chambly, which he devised in trust to be sold, he did give and bequeath the same to the use of the said Napier Christie Burton, and the heirs male of his body lawfully begotten or to be begotten, and for default of such issue to the use of the heirs male of the body of him the said Gabriel Christie lawfully begotten or to be begotten, and for default of such issue, to the use of his natural son James Christie, and the heirs male of his body lawfully begotten, and for default of such issue, to the use of his natural son Gabriel Plenderleath and the heirs male of his body lawfully begotten, and for default of such issue to the use of his natural son George Plenderleath and the heirs male of his body lawfully begotten; and for default of such issue, to the use of his natural son William Plenderleath, (the defendant,) and the heirs male of his body lawfully begotten; and for default of such issue, to the use of the Testator's brother, William Christie, and his heirs for ever. The declaration further avers that at the period of the institution of the suit, not only the testator's brother, William Christie, but also his natural sons, James Christie, Gabriel Plenderleath, and George Plenderleath had all departed this life. It then avers that inasmuch as there is no male issue of the lawful marriage of the said Plaintiff, nor any other male issue lawfully begotten of the body of him the said late Gabriel Christie, save and except the said Plaintiff, and inasmuch as the said James Christie, Gabriel and George Plenderleath had departed this life without lawful issue, he the Defendant in virtue of the said will and Testament, would, if the said will were in that respect good and valid (which the Plaintiff did not admit, but wholly denied,) be entitled to claim, demand and obtain the rest and residue of the property of the said late Gabriel Christie, situate in Lower Canada. It is then averred that the said William Christie, Brother of the Testator, departed this life before the 20th January 1799, without issue, and that by reason of all which premises an action had accrued to the Plaintiff to have the said will, in as far as the same regards the property of the said Gabriel Christie in Lower Canada, declared null and invalid, and the Plaintiff maintained and preserved in all his rights and previledges. The prayer of the declaration is, that, by the Judgment of the Court, it be declared and adjudged that at the time of the decease of the said late Gabriel Christie, he, the Plaintiff, was the lawful heir of the said Gabriel Christie for one half of all the property held en Fief, whereof the said Gabriel Christie died seized and possessed in this Province of Lower Canada, and for one third of all other property whereof the said late G. Christie died seized and possessed in the said Province, and that the bequest and devise thereof in the aforesaid will contained, of all the said property so situate in Lower Canada, to the natural children of the said late Gabriel Christie, and particularly to the said Defendant and to his heirs male, was at the time of such bequest and still is illegal, null, invalid, and of no effect, and that it be in consequence adjuged that the said Plaintiff is the owner and lawful proprietor of the said shares and portions above mentioned of the real and other property and estates situate in Lower Canada, whereof the said Gabriel Christie died seized and possessed. To this action which was returned into the Court of King's Bench at Montreal, so far back as the June term of the year 1834, the Defendant appeared and fyled several pleas, which containing allegations of facts, need not now be particularly noticed, the case having been ultimately dismissed in that Court, upon the preliminary hearing on the Defense au fonds en droit or general demurrer to the demand contained in the declaration as subsequently amended. The Plaintiff with this Declaration fyled Exhibits, the Exhibit No. 1, being the last will and testament of the late Gabriel Christie, Esqr. dated the 13th May 1789, the other, No. 2, being the Baptismal Certificate of the Plaintiff. This Court cannot but notice. en passant the extraordinary circumstance, that the will Exhibit No. 1, forms no part of the record sent up tho' originally duly fyled in the Cause in the Court below!! We however merely notice the fact as neither party has, in this Court, seen fit to alledge any diminution in the record. The Transcript of the proceedings shows that in the interval between June 1834, when the cause was entered and the 20th February 1836, the case was frequently inscribed on the Roll for hearing on the Demurrer and as frequently struck therefrom. In the mean time however, but where does not appear, the Plaintiff died for on the 20th February 1836, a motion to the following effect was made in the cause. 66 "Motion on the part of George Burton Hamilton, "of London, in that part of the United Kingdom of "Great Britain and Ireland called England, clerk, "William Henry King, of the same place, Esqr., and "Edmond Henry, of Laprairie de la Magdeleine, in "the district of Montreal, in the Province of Lower Canada, Executors of the last Will and Testament and "Codicil of the late Napier Christie Burton, the Plaintiff, deceased, whom they hereby declare to "have departed this life since the last proceedings, "that they may be permitted to resume the Suit com"menced in the name of the said Napier Christie "Burton, (reprenant l'instance,) and to follow up "the proceedings, (de procéder suivant les derniers. "erremens.") 66 This motion does not appear to have been objected to by the Defendant, tho' there was nothing put upon the record to establish the alledged death of the Plaintiff, no Burial Certificate, or probate of any last Will or Testament, or any document whatever to show the quality assumed by the reprenant l'instance. It is difficult for this Court to understand by what law the Executors of a Plaintiff's Will could stand before the Court as the legal representatives of the deceased in an action affecting the realty, the law being as well under the English as the French system that upon the demise of the Testator, the Heir is instantly seized of the real Estate of the deceased: "Le mort saisit le vif, capable de se dire et porter héritier du Défunt." But passing over these objections, for the present, which do not appear to have occupied the attention of either of the parties to the Suit, or, that of the Court, |