done by the bastard to make the mulier claim; nor could he claim, for the grandfather was still alive. The laches was in the grandson's life so that here the reason given for the law fails, viz., that it is unjust to treat a person all his life as legitimate, and bastardise him after his death; for here the antenatus never was treated as legitimate at all; he lived and died a bastard; yet his issue claiming through him, who had no inheritable blood, entered as heir to the common ancestor, and by dying seised, barred the lawful issue. Although, however, this consideration *somewhat contradicts the answer given by the learned Judges to the argument at the Bar, it yet furnishes another answer to that argument, by showing, that if it proves anything, it proves too much; since in the case of bastard eigné there is no question whatever of his right being excluded in the common case (of English marriage, birth, and domicile), unless where there has been an entry, and dying seised, without counter claim. The short observation made by the learned Judges on the cases of Shedden v. Patrick, and the Strathmore Peerage, appears hardly to be satisfactory. "These cases," it is said, "only decide that no one can inherit without the personal status of legitimacy; and do not show, what is alone in dispute, that such personal status is sufficient ground for claiming English real estate as heir." It appears that these cases establish somewhat more than the first of those positions, and, although they do not decide the second, they appear to give it much countenance. They show that the quality, whatever it is, that must be possessed by a claimant in order that he may take land or honours in Scotland, is given to, or withholden from him, according to the law, not of Scotland, where the real estate lies, but of the country where his birth and his father's marriage and domicile were. Whether that quality be called legitimacy or anything else is not material; nor is it material whether the quality is required in relation to the property by some positive statutory enactment of the country where it lies, or only by the common law of that country, or by some statute (like that of Merton) which declares what the common law always has been. The land in Scotland is impressed with a particular quality-that of being descendible to the antenati where the parents have *intermarried; it is of such a nature as not to descend upon the mulier puisne, but upon the bastard eigné; while in England it is of such a nature as to descend to the mulier, and not to the bastard. The one quality is as firmly fixed in the soil of Scotland as the other is in that BIRT WHISTLE 2. VARDILL. [ *953 ] [ *954 ] BIRTWHISTLE v. VARDILL. [ *955 ] of England. Then, what have the Courts and what has this House decided in those celebrated cases? That, notwithstanding the inherent descendible quality, and notwithstanding the general rule of the lex loci rei sita, so much relied on by the learned Judges, both below and here, through their whole argument, the law of the country where the property is must bend to the law of the domicile, marriage, and birth; and, because the latter law excludes antenati from legitimacy, they shall be excluded from the succession to which the former law calls them. The Scotch common law says, "Let the land go to the antenatus-such is its descendible quality." The English common law says, "Let the land not go to the antenatus." The question, and the only question, is, have we a right to look beyond the fact, or to ask any but one question, namely, whether a person is antenatus or postnatus? Whether his parents were married or not at his birth? Are we bound by the simple fact, or may we look to the view taken of it by the law of the foreign country to which the claimant and his parents belonged? The decided cases say, in the instance of Scotland, that we may and must look at the foreign law; that the subsequent marriage is immaterial for succession in Scotland, if it is immaterial for legitimation in the claimant's country; and the question is, whether, according to the principle of those decisions, it is possible to exclude all reference to the foreign law, where the same kind of question arises as to English succession. It is very *possible that the principle of the cases may be inapplicable. This may possibly be proved by argument; but it can hardly be said to have been proved by the only remark made on those cases in the statement of the learned Judges: and this scanty discussion of those cases is the more to be lamented, because, in deciding the present question below, the Court expressly referred to this House as the place where Shedden v. Patrick, and the Strathmore Peerage, would meet with ample attention as to their bearing upon this argument. The learned Judges have given no opinion upon the question whether or not a person legitimated by subsequent marriage in a country where that law prevails, is therefore legitimate all the world over: nor, perhaps, was it incumbent on them to argue this for the purpose of answering the question put to them by the House. They contend that the statute, or rather the common law recognised and declared by the statute, requires something beyond mere legitimacy to make an heir to English real estate. They agree with the Court below, that legitimacy alone is not sufficient; it must be as was there said (1), legitimacy sub modo,-legitimacy and being born in wedlock. Consequently, they appear plainly to admit, that a person may be legitimate for all other purposes, and yet incapable of taking land by descent-that we ought not to say "a man's eldest lawful son is his heir-at-law," but "his eldest lawful son if born in lawful wedlock." In another case, Munro v. Munro, which has been decided to-day, we held here, as it had been held in the Court below, that a party is entitled to take real estate by descent, as legitimate according to the law of the country where it lies, who is bastard by the law established in the country of the birth and marriage. In the Courts which administer that law (the law of England in the case. put), would the party be considered as bastard or as legitimate, when any right unconnected with real property was claimed? If bastard, then the same person is legitimate in one country and not in another, bastard where born, and legitimate where the parents are domiciled; though some of the Judges, with whom we agreed in that case, held this to be a solecism in law, considering it clear that the status must be everywhere the same. If legitimate, then it follows that the question of personal status depends on the law of foreign countries, and that this law is imported into England as to the consequences of the marriage contract, although the lex loci contractus alone regulates the constitution of that contract. But which way soever we may hold as to these questions, the principles of the two decided cases referred to (Shedden v. Patrick, and the Strathmore Peerage) are quite consistent with that of the last-mentioned case decided to-day. Those principles are not so easily reconciled to the judgment at present before your Lordships. Having stated what occurs to me upon the arguments of the learned Judges, again expressing my high sense of the service which they have rendered by the great attention bestowed upon the subject, I rest satisfied with intimating my opinion upon the difficulties which still beset the question, and the anomalies likely to arise from the future application of the principles countenanced in the decision: and though I shall not move your Lordships to give judgment for the defendant in error, if my noble and learned friend should move it, I shall offer no opposition. THE LORD CHANCELLOR : My Lords, I was not in your Lordships' House when this case (1) 5 B. & C. 454. BIRTWHISTLE v. VARDILL. was first argued; but I was present at the argument when the learned Judges were in attendance, and I gave my attention to the opinion expressed by the LORD CHIEF JUSTICE, and I entirely concur in that opinion. I am extremely satisfied with the ground upon which the Judges put it, because they put the question on a ground which avoids the difficulty that seems to surround the task of interfering with those general principles peculiar to the law of England, principles that at first sight seem to be somewhat at variance with the decisions to which the Courts have come. Under these circumstances, as my noble and learned friend does not move the judgment, I move judgment for the defendant in error. Judgment accordingly. 1840. June 4. Aug. 11. Lord JACKSON v. JACKSON. (7 Clark & Finnelly, 977-994; S. C. West, 575.) Suspicious exercise of a power of appointment-Inquiry directed as to its due execution. A person being by his marriage settlement tenant for life of an estate in Ireland, held on lease for lives renewable for ever, with power of appointment to one or more of the children of the marriage, the estate in default of appointment to go to the first and other sons successively in tail male, -by deed poll, dated the 14th of January, 1804, appointed to his eldest son an estate in tail male; and by indenture of lease, executed four days after, the father and son, in consideration of 1,6007. to be applied in paying debts on the estate, and renewal fines then due, demised part of it for lives. By a deed dated December, 1807, the son, in consideration of debts paid for him by the father, and in discharge of the trust and confidence reposed in him, conveyed the estate and all his interest therein to the father and his heirs. The father, by his will made after the death of the eldest son without issue, devised the estate-charged thereby with certain legaciesto the use of his two surviving sons and their respective issue, in equal portions, as tenants in common: Held by the Lords (reversing a decree which established the will) that the execution of the lease for 1,6007. by the father and son so soon after the deed of appointment, and the circumstances appearing on those deeds and on the deed of reconveyance of 1807, raised such suspicions of the validity of the appointment as required the Court, before it could adjudicate on the father's title to dispose of the estate, to direct an inquiry whether that appointment was a bonâ fide execution of the power. The House, in remitting a cause for inquiry on a main question, will, to save delay and expense, direct inquiries on other questions consequential on the probable finding on the main question. By indenture of settlement, dated the 22nd of June, 1780, executed upon the marriage of William Marcus Jackson with Jane Devereux (the late father and mother of the appellant and firstnamed respondent), after reciting (amongst other things) that William Jackson (their grandfather) was seised of and entitled *to two several freehold interests, one in the lands of Moylish, and the other in the lands of Clonlara, both in the liberties of the city of Limerick, by virtue of two several leases for lives thereof respectively, with covenants for perpetual renewal; it was witnessed, that in consideration of the marriage, * W. Jackson conveyed unto William Holland and Edward Jones, and their heirs and assigns, the said lands of Moylish and Clonlara with their appurtenances, to hold the same during the lives in the said several leases named, and the lives of such other persons as should thereafter be added pursuant to the said covenants for renewal, to the use of the said W. M. Jackson and his assigns during his life, and after his decease (charged with a jointure for the said Jane) to the use of all and every or such one or more of the children of the marriage, [for such estates, not exceeding an estate in tail male, and in such shares, with or without power of revocation, as the said W. M. Jackson by deed or will should appoint; and in default of appointment,] to the use of the first son of the said W. M. Jackson by the said Jane, and of the heirs male of the body of such first son; with remainder to the use of the second and all and every other son and sons of the said W. M. Jackson *by the said Jane, severally and successively in tail male; with several remainders over. There was issue of the marriage four sons, namely, William Devereux Jackson (since deceased), the eldest; George (the appellant), the second; the respondent Robert, the third; and Thomas (since deceased), the fourth son; and no other issue. William Devereux, the eldest, attained his age of 21 years in January, 1804. W. M. Jackson executed a deed-poll, dated the 14th of January, 1804, whereby, after referring to the indenture of the 22nd of June, 1780, he, by virtue of the power thereby given to him, appointed, without power of revocation, the said lands of Moylish to W. D. Jackson, and to the heirs male of his body. By an indenture of lease dated the 18th of January, 1804, the father and son, in consideration of 1,600l., demised unto Nicholas Mahon, his heirs and assigns, part of the land of Moylish, for the lives of the several persons therein named, and the survivor of them, and for the lives and life of such other person or persons as should for ever thereafter be added to that demise pursuant to a covenant for perpetual renewal therein contained. And it was by this indenture agreed that so much of the 1,600l. as should JACKSON v. JACKSON. [ *978 ] [ *979 ] |