SWAINE v. KENNERLEY. 1 Vesey and Beames, 469. ren' in a gitimate the date of "JAMES SWAINE, by his will, dated the 24th of Under the description August, 1796, devised his real estates to John Kent and of childSamuel Kennerley, their heirs and assigns, upon trust, by will, illemortgage or sale to raise the sum of 21007. and lay out the children, same in their own names, in the purchase of freehold lands, existing at &c. and settle the same to the use of all and every the child the will, and children of the testator's late son, Thomas Swaine deceased, equally to be divided between or amongst them, hold as tenants in common and not as joint tenants, and to the respective heirs of the body or bodies of all and every such child and children issuing. to not enti tled, unless the will itproved by self to be intended; and evi dence can bereceived who had "The testator's son, Thomas Swaine, left three children, only for the purpose of of whom the plaintiff only was legitimate; the other two, collecting, Thomas and John Swaine, being born before marriage. acquired The bill prayed a declaration, that the plaintiff was entitled the reputa as tenant in tail in equity, to the whole 21007., &c. All the children. children were living at the date of the will. tion of An only legitimate son therefore held entitled as devisee. MACKINTOSH . TOWNSEND. 16 Vezey Jun. 330. "WILLIAM MACKINTOSH, by his will, dated 5th be laid out Legacy to in land in Scotland, of 5000l. should be invested, in trust, with the magistrates established April, 1797, amongst other things, directed that the interest of Inverness for the time being, and that the interest of such not being statute, 9 Geo. 2. c. 36. within the sum should be appropriated for the education of five boys, in succession, to be selected from the descendants of different families named; and the said sum of 50007., as soon as might be expedient, was to be invested in lands, in the country. By a codicil, dated April, 1798, at sea, the testator gave some directions in the selection of boys for education, as to the preference of the families. "By another codicil, dated in London, June 10, 1800, he gave 50007.in trust with the magistrates of Inverness, added to the 50007. in the first part of his will, intended there for the education of certain boys, the interest of which two sums, making in all 10,000.,' he directed to be paid to Mrs. Rae, during her natural life, and after her decease, that sum was to be vested in lands, for the education of boys, as above.' He then directed, that the interest of whatever sums of money might appear above the legacies, should be appropriated to the education of boys, during the life of Mrs. Rae, directing the 10,000%., after her death, to be finally, and for ever secured on lands, for the education of boys, as formerly directed. "By two other codicils, the testator revoked the bequest, in favour of Mrs. Rae, and directed that the 10,0007. should, immediately upon his own death, be appropriated for the education of boys, as before described; and he appointed the plaintiff his residuary legatee. "The LORD CHANCELLOR, in delivering his judgment on this case, observed, that upon examining the case of Oliphant o. Hendrie, in the register book, there appeared to be nothing special in it. The testator gave a sum of money, to be laid out in heritable securities in Scotland, for charitable purposes; and Lord Thurlow's decree was, that the legacy was good. This was a direct decision upon the point, and if he had more doubt upon it that authority bound him to determine that this was a good bequest." 1 Bro. C. C. 571. 513 BRODIE v. BARRY. Vesey and Beames, vol. 2. p. 127. law of he gatee of property in put to elec tion. married interest of his marital "ALEXANDER BRODIE by his will, dated the 9th Heir at of August, 1810, duly attested for devising freehold estates, ritable pro perty in devised and bequeathed to trustees, their heirs, executors, Scotland, &c. all his freehold, leasehold, copyhold, and other estates, be whatever and wheresoever situate, in England, Scotland and personal elsewhere, and all his personal estate whatsoever and where- England, soever, upon trust to carry on his works for three and years; out of the produce, dividends and interest, as well as the Being a rents of his estates, in the first place to pay salaries to the woman, the managers of his works, and the surplus to divide equally her hus among his nephews and nieces, who should be living at the band, by time of his decease, share and share alike; and at the expiration of the said term of three years, to sell and dispose of all his freehold and copyhold messuages, &c.; and the money to arise from such sale to form a distributable fund, and be payable, as after-mentioned in any codicil: and as to all the residue of his estate, not consisting in money, upon trust to consolidate it into one gross sum, and subject to, and in default of appointment, to pay it equally among all his nephews and nieces, share and share alike; as to the shares of three nieces, being married, for their separate use for life, with remainder to their respective children, and for want of children to sink into the residue. "The testator died on the 6th of January, 1811, without issue, not having made any appointment, and leaving the defendant, Charles Brodie, his grand-nephew, heir at law, and customary heir by the law of England, and the defendant, 2 L VOL. II. right not affected. As to the reason of the distinc tion be. tween con expressed, with refer ence to Betty Cock, one of his married nieces, mentioned in the wi heiress by the law of Scotland, of all his heritable property in that country. The bill was filed by his other surviving nephews and nieces, submitting, that though the testator intended to dispose of all his real estate in Scotland, and all such his estate there as by the law of that country descends to the heir, comprised under the description of heritable property, yet the will not being conformable to the solemnities required by the law of Scotland, and therefore not passing such real estate and heritable property, the defendant, Betty Cock, ought not to be permitted to take such heritable property, in opposition to the will, and also a share of the other `real and personal estate, as one of the nieces of the testator, but ought to be put to her election, and praying, that she may be decreed to elect accordingly. "The answers submitted, whether the defendants, Brodie and Cock, ought to be put to their election; and as to the defendant David Cock, taking no interest under the will, the property being given to the separate use of his wife, whe ther he could be called upon to make such election as to the estate for life, to which he is entitled by the law of Scotland in the heritable property, descending in his wife. "THE MASTER OF THE ROLLS. "If it were now necessary to discuss the principles upon which the doctrine of election depends, it might be difficult to reconcile to those principles, or to each other, some of the ditions im- decisions which have taken place on this subject. I do not plied and understand why a will, though not executed so as to pass real estate, should not be read for the purpose of diselection, as covering in it an implied condition concerning real estate, applied to freehold annexed to a gift of personal property, as it is admitted it must be read when such condition is expressly annexed to against the such gift. For, if by a sound construction such condition heir, is rightly inferred from the whole instrument, the effect seems to be the same as if it were expressed in words. And then if it be rightly decided, that a will defectively executed, and copy holdestates quære. a Boughton v. Boughton, 2 Vez. 12. 8 Vez. 481. Sheddon v. Goodrich, Distinc the want is not to be read against the freehold heir, I have been sometimes inclined to doubt whether any will ought to be read against the copyhold heir; a will, however executed, being as inoperative for the conveyance of copyhold estate, as a will defectively executed is for the conveyance of freehold estate. "It is true, however, that a court of equity does for cer- tion as to tain specified purposes look at a will of copyhold estate, to supplying discover the intention, and will supply the want of a sur- of surrenrender, in order to effectuate the intention so discovered, tain cases but has never attempted to supply the want of the statutory to support formalities in the execution of a will of freehold estate. copyhold We cannot therefore reason conclusively from the one case refusing to to the other. But whatever may be the foundation of the distinction, it is established; and what is now to be considered is, whether it be applicable to the decision of the case freehold. now before the court. der in cer a devise of estate, and aid a defective execu tion of a devise of Real property regulated by the law of the country where the land lies: property the domi cil. "This is, or is not, a case of election according as the English will is, or is not to be read against the Scotch heir, Where land and personal property are situated in different countries, governed by different laws, and a question arises upon the combined effect of those laws, it is often very dif- personal ficult to determine what portion of each law is to enter into by that of the decision of the question. It is not easy to say how much is to be considered as depending on the law of real property, which must be taken from the country where the land lies, and how much upon the law of personal property, which must be taken from the country of the domicil, and to blend both together, so as to form a rule, applicable to the mixed question, which neither law separately furnishes sufficient materials to decide. domiciled real estate "I have argued in the House of Lords cases in which Intestate difficulties of that kind occurred. Two of the most re- inEngland, markable were those of Balfour v. Scott', and Drummond leaving v. Drummond. In the former a person domiciled in Eng- in Scotland, the land, died intestate, leaving real estates in Scotland. The heir being heir was one of the next of kin, and claimed a share of the one of the personal estate. To this claim it was objected, that by the Jaw of Scotland, the heir cannot share in the personal pro ⚫ Stated in Somerville v. Lord Somerville, 5 Vez. 750. next of kin, enti share ac cording to the law of England, tled to |