son, the son must have been born after actual marriage between his father and mother; and this is a rule juris positivi, as indeed are all the laws which regulate succession to real property, this particular rule having been framed for the direct purpose of excluding, in the descent of land in England, the application of the rule of the civil and canon law, pater est quem nuptiae demonstrant,' by which the subsequent marriage between the father and mother was held to make the son *born before marriage legitimate; and this [*517] rule of descent, being a rule of positive law, annexed to the land itself, cannot be broken in upon or disturbed by the law of the country where the claimant was born. Therefore, in the case of Doe d. Birtwhistle v. Vardill, it was held, that a person born in Scotland of parents domiciled there, but not married till after his birth, though legitimate by the law of Scotland, could not take real estate in England as heir, the father having died intestate. And in Re Don's Estate, Kindersley, V.-C., held that the father of an ante natus born in Scotland, and legitimated by the subsequent marriage of his parents, could not, under the statute 3 & 4 Will. 4, c. 106, succeed to real estate whereof the son had died seised in England.*

The rule of descent just referred to is, then, one of a positive, inflexible nature, applying to and inherent in the land itself, which is the subject of descent,―of the same nature and character as that rule which prohibited the descent of land to any but those who were of the whole blood to the last taker,-or like the custom of gavelkind or borough English, which causes the land to descend in the one case to all the sons together, in the other to the younger son alone."

If, moreover, the parent be incapable of inheriting land himself, he has no heritable blood in him which he can transmit to his child, according to the maxim and old acknowledged rule of

1 D. 2. 4. 5.

22 Cl. & Fin. 571; s. c., 1 Scott N. R. 828; 6 Bing. N. C. 385 (37 E. C. L. R.); 5 B. & C. 438 (11 E. C. L. R.); explained per Lord Brougham, Fenton v. Livingstone, 3 Macq. Sc. App. Cas. 432; per Lord Cranworth, Id. 544. See also Shedden v. Patrick, L. R. 1 Sc. App. Cas. 470.

* See Countess of Dalhousie v. M'Dowall, 7 Cl. & Fin. 817; Munro v. Munro, Id. 842; Birtwhistle v. Vardill, Id. 895.

44 Drew. 194.

1 Scott N. R. 838.

[*518]

descent, qui doit inheriter al père *doit inheriter al fitz,he who would have been heir to the father shall be heir to the son; and therefore, if, in the case first above put, Doe d. Birtwhistle v. Vardill, the son had died, leaving a child, before the intestate, such child could not, according to the English law, have inherited under the circumstances; and if in Re Don's Estate there had been a son post natus, such son could not have inherited to his ante natus brother.

Formerly also the rule was that attainder so entirely corrupted the blood of the person attainted that not only could no person inherit from him, but no person could inherit through him: so that if there were grandfather, father, and son-three generations, and the father was attainted and the grandfather died seised of lands in fee, the attainted father being dead in the meantime, the grandson could not have inherited to the grandfather.2 Now, however, it is enacted by stat. 3 & 4 Will. 4, c. 106, s. 10, that when the person from whom the descent of any land is to be traced shall have had any relation who, having been attainted, shall have died before such descent shall have taken place, then such attainder shall not prevent any person from inheriting such land who would have been capable of inheriting the same by tracing his descent through such relation if he had not been attainted, unless such land shall have escheated in consequence of such attainder before the first day of January, 1834. This Act, however, by sec. 11, shall not extend to any descent which shall take place on the death of any person dying before that day.

[*519]

*There is likewise another rule of law immediately connected with, and similar in principle to, the preceding, which may be here properly mentioned, it is as follows:-Qui ex damnato coitu nascuntur inter liberos non computentur3—neither a bastard' nor any person not born in lawful wedlock can be, in the legal sense of the term, an heir; for a bastard is reckoned by the law

11 Scott N. R. 842.

2 Per Kindersley, V.-C., 27 L. J. Chanc. 102, 103; s. c., 4 Drew. 194. See further as to the former law upon the subject above adverted to, Kynnaird v. Leslie, L. R. 1 C. P. 389.

3 Co. Litt. 8 a.

"The strictly technical sense of the term 'bastard' is one who is not born in lawful wedlock :" per Kindersley, V.-C., 27 L. J. Chanc. 102. Glanville, lib. 7, c. 13; Shaw v. Gould, ante, p. 516.

to be nullius filius, and, being thus the son of nobody, he has no inheritable blood in him,' and, consequently, cannot take land by succession; and, if there be no other claimant than such illegitimate child (a circumstance, which, however, can rarely happen), the land shall escheat to the lord. Moreover, as a bastard cannot be heir himself, so neither can he have any heirs but those of his own body; for, as all collateral kindred consists in being derived from the same common ancestor, and, as a bastard has no legal ancestors, he can have no collateral kindred, and, consequently, can have no legal heirs, but such as claim by a lincal descent from himself; and, therefore, if a bastard purchases land, and dies seised thereof without issue and intestate, the land shall escheat to the lord of the fee.2

Under the stat. 3 & 4 Will. 4, c. 106, s. 2, descent is now to be traced from the purchaser, and under this section a son claiming by descent from an illegitimate father who was the purchaser, could not have transmitted the estate by descent, upon failure of his own issue, to his *heir ex parte materna. But this has been [*520] remedied by the stat. 22 & 23 Vict. c. 35, and in such a case, instead of escheating the land will descend, the descent being traced from the person last entitled to it as if he had purchased it. In Clarke v. Wright, a question arose involving an inquiry respecting the applicability of the maxim last cited, viz., whether a limitation of real estate in an antenuptial settlement to an illegitimate child of the woman, the settlor, was void by the stat. 27 Eliz. c. 4, as against a person claiming under a mortgage executed by the settlor and her husband subsequently to the marriage. The Court of Exchequer Chamber, affirming the judgment of the Court of Exchequer, held that the limitation was valid.

3

It may be proper to add one remark, although not strictly connected with the maxim which has given rise to the preceding observations, viz., that there is a manifest distinction between. the right of succession to real property in this country being dependent on the law of England respecting legitimacy, and the fact of a marriage contracted according to the lex loci being con

1 See the argument, Stevenson's Heirs v. Sullivant, 5 Wheaton (U. S.) R. 226, 227; Id. 262 note.

22 Com. by Broom & Hadley 398; Co. Litt. 3 b; Finch Law 117, 118. 36 H. & N. 849; s. c., 5 Id. 401.

sidered as valid by our tribunals: for, after an examination of the cases below referred to, there could be no doubt but that marriage, which is a personal contract, when entered into according to the rites of the country, the lex loci, where the parties are domiciled and the marriage celebrated, would be considered and treated as a perfect and complete marriage throughout the whole of Christendom. It does not, however, therefore follow, that, with [*521] the *adoption of the marriage contract, the foreign law adopts also all the conclusions and consequences which hold good in the country where the marriage was celebrated; as, for instance, its retrospective operation in legitimatizing the ante natus. Hence, although the right of inheritance does not follow the law of the domicile of the parties, but that of the country where the land lies, yet, with respect to personal property, which has no locality, and is of an ambulatory nature, it is part of the law of England that this description of property should be distributed according to the jus domicilii. "It is a clear proposition," observed Lord Loughborough, "not only of the law of England, but of every country in the world where law has the semblance of science, that personal property has no locality. The meaning of that is, not that personal property has no visible locality, but that it is subject to that law which governs the person of the owner, both with respect to the disposition of it, and with respect to the transmission of it,

1 Dalrymple v. Dalrymple, 2 Hagg. Cons. R. 54; Shaw v. Gould, L. R. 3 H. L. 55; per Abbott, C. J., Lacon v. Higgins, 3 Stark. 183 (3 E. C. L. R.) ; Kent v. Burgess, 11 Sim. 361; Catherwood v. Caslon, 13 M. & W. 261; Reg. v. Millis, and Re Don's Estate, ante, pp. 505, 507; Connelly a Connelly, 7 Moore P. C. C. 438.

By stat. 4 Geo. 4, c. 91, marriages performed by a minister of the Church of England in the chapel of any British embassy or factory, or in the ambassador's house, or by an authorized person within the British lines, are declared to be valid. See Lloyd v. Petitjean, 2 Curt. 251.

The marriage of an officer celebrated by a chaplain of the British army within the lines of the army when serving abroad, is valid under the 9 Geo. 4, c. 91, although such an army is not serving in a country in a state of actual hostility, and though no authority for the marriage was previously obtained from the officer's superior in command: The Waldegrave Peerage, 4 Cl. & Fin. 649.

21 Scott N. R. 839.

3 Per Abbott, C. J., 5 B. C. 451, 452 (11 E. C. L. R.); per Holroyd and Bayley, JJ., Id. 454.

either by succession, or by the act of the party; it follows the law of the person. The owner in any country may dispose of his personal property. If he dies, it is not the law of the country in [*522] which the property is, but the law of the country of which he was a subject, that will regulate the succession.' Mobilia sequunter personam, is the maxim of our own as of the Roman Law. The personal estate of a testator accompanies him wherever he may reside and become domiciled, so that he acquires the right of disposing of and dealing with it, according to the law of his domicile.3

NEMO EST HÆRES VIVENTIS.

(Co. Litt. 22 b.)

No one can be heir during the life of his ancestor.

By law, no inheritance can vest, nor can any person be the actual complete heir of another, till the ancestor is dead; before the happening of this event he is called heir-apparent, or heir-presumptive, and his claim which can only be to an estate remaining in the ancestor at the time of his death, and of which he has made no testamentary disposition, may be defeated by the superior title of an alienee in the ancestor's lifetime, or of a devisee under his will. Therefore, if an estate be made to A. for life, remainder to the heirs of B.; now, if A. dies before B., the remainder is at an end; for, during B.'s life, he has no heir; but, if B. dies first, the remainder then *immediately vests in his heir, who will be entitled to the land on the death of A.5

[*523]

1 Sill v. Worswick, 1 H. Bla. 690; per Lord Wensleydale, Fenton v. Livingstone, 3 Macq. Sc. App. Cas. 547; per Lord Brougham, Bane v. Whitehaven and Furness Junction R. C., 3 H. L. Cas. 19; Doglioni v. Crispin, L. R. 1 H.

L. 301.

2

3

Story Conf. of Laws, 3d ed., 638, 639.

Doglioni v. Crispin, L. R. 1 H. L. 301; Bremer v. Freeman, 10 Moo. P. C. C. 306; Hodgson v. De Beauchesne, 12 Id. 285; Crookenden v. Fuller, 29 L. J., P. M. & A. 1 ; s. c., 1 Swab. & Tr. 441; Anderson v. Lanerwille, 9 Id.

325.

2 Bla. Com., by Stewart 231; Co. Litt. 8 a.

S. C.,

9

Per Patteson, J., Doe d. Winter v. Perratt, 7 Scott N. R. 23, 24; Cl. & Fin. 606; per Littledale, J., 5 B. & C. 59; 2 Com. by Broom & Hadley 211.