1870 F. BARLOW strong indignation at the connexion so formed by James Skinner. After Colonel Skinner's death, James Skinner cohabited MUSSAMAT with the appellant, Fanny Barlow, another sister of his lawful wife, and the result of such illicit intercourse was a son, James Skinner the younger, also an appellant. James Skinner, the son of Colonel Skinner, died, having first executed a will, dated the 10th of November 1859, of which the following is a copy: "This is the last will and testament of me, James Skinner, a Major on the retired list of Her Majesty's Bengal Indian Army, and second son of the late Colonel James Skinner, C.B., Commandant of the 1st Irregular Cavalry. Firstly, I give, devise, and bequeath my share of the landed interests, devised to me by the last will and testament of my late father, Colonel James Skinner, dated Hansee, 10th May 1841, consisting of Altumga, zemindari, tika villages, indigo factories, houses, and other lands specified therein; also all and every sum and sums of money which may be due to me at the time of my decease; and also all other debts, or money, or bonds, or other securities to be equally divided between my daughter, Mrs. Sophia Eveline Orde, and my son James, and to their descendants in perpetuity, and a salary of one hundred (100) rupees per month to their respective mothers, Mrs. Sophia Elizabeth Skinner and Fanny Barlow alias Villactee Begum, which, on their demise, is to revert respectively to their children above named, viz., Mrs. Skinner's to my daughter Mrs. Orde, and Fanny Barlow's, alias Villactee Begum's, to my son James; and likewise, in case of the decease of the children without issue or descendants, their shares are to revert respectively to their mothers as above mentioned. And I request my executors will adopt measures to carry these my last wishes into effect, as also to pay for my son James's schooling and maintenance as long as he is a minor, and to invest the surplus of his share in the best Government loan that may then be open, and to be made over to him on his obtaining the age of maturity or twenty-one years. "As my son James is not educated or otherwise provided for, I leave and bequeath to him, and to his mother Fanny Barlow, v. SOPHIA EVELINE ORDE. v. SOPHIA EVELINE ORDE. 1870 alias Villactee Begum, the whole of the villages, landed proMUSSAMAT perty, &c., &c., &c., which have been purchased for the estate F. BARLOW since the late Colonel Skinner's demise, and in which I have a fifth share; also my house, out-offices, and other lands at Hansee; and on their demise the share of the one to devolve on the other if my son James may die without issue or descendants. Should I happen to die in debt, I ardently hope and beseech my executors to effect such arrangement and compromise with my creditors as will not prevent the above legacies from being carried into effect, otherwise to make a proportionate deduction from the share or income of each legatee. "The Isphihanne sword, with the golden scabbard, given to me by my late father, Colonel James Skinner, in 1839, I leave and bequeath to my son James; and on my demise should any of my personal property, such as my rifles, guns, pistols, watch, uniform, plate, &c., &c., &c., which may be then in my possession, and which my son James fancies and wishes to retain in memory of me, may be made over to him, and the remainder to be sold for the payment of my funeral and testamentary expenses. "I hereby constitute my brothers, Captain Hercules Skinner, now an unattached Captain on Her Majesty's Bengal Establishment, Thomas Skinner, Esquire, Colonel C. G. Barlow, Major Milne, commanding 21st Regiment Bengal Native Infantry, Messieurs Luckhmee Chund, Radha Kishon, and Gobind Doss, Seiths of Muttra, and our faithful and trustworthy agent Lalla Khealee Ram, to be my joint executors, and hereby revoking and making voidable former or other wills by me at any time heretofore made, I declare this to be my last will and testament, executed by me in bodily good health and in sound and disposing memory." Major James Skinner appears to have been indebted at the time of his decease to the amount of 70,000 rupees and upwards. On the 8th of October 1861, his wife and daughter made an application under Act XXVII of 1860, for a certificate of succession to Major James Skinner, and such application was opposed by the appellant, Fanny Barlow, on her own behalf, and on behalf of her illegitimate son James Skinner, and also by Major James Skinner's other illegitimate son, Stewart Skinner. On the 20th of December 1861, the Judge of the Civil Court of Meerut directed that the certificate should be granted to the respondent as the lawful daughter. On the 22nd of July 1862, the last-mentioned decision was confirmed by a judgment of the Sudder Dewanny Adawlut, North-Western Provinces. The appellant thereupon brought the present suit to have her own and her illegitimate son's rights declared. The final decision being wholly against her, she now appealed to the Privy Council. Sir R. Palmer, Q. C., and Mr. Leith, Q. C., for the appellants. Mr. Pontifex, Mr. Pritchard, and Mr. Nasmith for Mrs. Orde. For the appellants it was contended that there were no reasons for applying the strict rules of English law to the peculiar position of the family. Abraham v. Abraham (1) was cited. and on the subject of the arrears and accumulation S. M. Soorjeemoney Dossee v. Denobundoo Mullick (2) was referred to. The respondent, Alexander Skinner, supported the contention that illegitimacy was to be recognized. On behalf of Mrs. Orde the English law was relied on for the interpretation of the words, and Cooper v. Cooper (3) and Hawkins on Wills, page 80, were referred to. Their Lordships took time to consider their judgment, and on the 8th March their judgment was delivered by LORD WESTBURY.-The question in this appeal depends on the construction and legal effect of the will of Colonel James Skinner, who was an officer in the service of the East India Company. (1) 9 Moore's I. A., 195. (2) 6 Moore's I, A., 526. (3) 1 K. & J., 658. 1870 MUSSAMAT F. BARLOW v. SOPHIA EVELINE ORDE. Colonel Skinner died in the month of December 1841, and at the time of his death, he was resident and domiciled in the Delhi territory, which then formed part of the North-Western Provinces of India, but which, after the mutiny, was placed under the administration of the Punjab Government. The construction and effect of the will, therefore, must depend on the law of the domicile, if that can be ascertained. At the time of the Colonel's death there was no lex loci of the province in which he was domiciled, and the law applicable to the succession of any individual depended on his personal status, which, again, mainly depended on his religion. Thus the succession of a Hindu would, as a general rule, fall to be regulated by Hindu law, and of a Mahomedan by Mahomedan law, and of an East Indian Christian by English law; but in every case, for the purpose of determining the status personalis, regard was to be had to the mode of life and habits of the individual, and to the usages of the class or family to which he belonged. If no specific rule could be ascertained to be applicable to the case, then the Judges administering justice in the province were to act according to justice, equity, and good conscience. Such is the substance of the Regulations as explained in the case of Abraham v. Abraham (1) which were made by the East India Company for defining the jurisdiction of the Courts of the Province in which Colonel Skinner was domiciled, and which were in force at the time of his decease. There is little evidence from which the personal status of Colonel Skinner may be ascertained, beyond that which is afforded by the will. It is stated, and there is proof, that he was illegitimate, being probably the child of a native woman by a European father. As a commander of a Corps of Irregular Light Horse, he acquired great distinction in the military service of the East India Company, and, in consideration of his services, he obtained grants of large landed estates, situate partly in the North-Western Provinces and partly in the territory of Delhi. (1) 9 Moore's I. A., 195. 1870 F. BARLOW v. SOPHIA EVELINE ORDE. The form of a renewed grant of some of these estates made to Colonel Skinner by the Marquis of Hastings when Governor- MUSSAMAT General, may be material to be noticed. The grant was made to the Colonel in " Altumga," to take effect from the beginning of the year 1226, Fuslee era (1819), and contained this special form of limitation, viz. :-" To Colonel Skinner and his heirs after him, "or to such persons as he may devise by his last will and testa"ment, or by any other valid instrument, with their heirs, in "the proportions in which he may devise the same to them "respectively, so that each holding and enjoying his own share, "shall conform himself to the dispositions of the said will.” Had the grant been simply to the Colonel and his heirs in "Altumga," the grant would have come to an end on the death of the Colonel without leaving lawful issue, and the superadded special power of testamentary disposition, therefore, is regarded as an indication that the grantee was conscious that he was not likely to leave lawful issue, and, therefore, obtained the grant of a power of disposition. This argument, however, is not of much weight. Colonel Skinner does not appear to have been ever married, but he seems to have kept several native women as part of his family, with whom he cohabited, and by whom he had several children. There is nothing to indicate the religious belief or profession of the Colonel or of his family, or what were their habits or usages. His origin is unknown; being illegitimate, he belonged to no family, and all that can be collected is, that he was probably a soldier of fortune, who rose by his courage and military skill to a certain rank and distinction in the Service of the East India Company. It is impossible, under these circumstances, to affirm that any particular law is applicable to the construction of the Colonel's will or the regulation of his succession. Any questions that may arise respecting them must, therefore, be determined by the principles of natural justice. In English law there is a technical rule of construction, that under a testamentary gift to children as a class, illegitimate children, although recognized by a testator in his life-time, can 2 |