to the con dition of collating the real not subject perty with the other next of kin, except on condition of collating the real estate, that is, bringing it into a mass with the personal estate, to form one common subject of division". It was determined however, that he was entitled to take his share without complying with that obligation. There the English law decided the question. estate, ac. cording to the law of Scotland. Intestate, domiciled having real estate in the real es tate charged ritable ry fund, "In Drummond v. Drummond, a person domiciled in England, in England, had real estate in Scotland; upon which he granted a heritable bond, to secure a debt contracted in Scotland, England. He died intestate, and the question was, by which of the estates this debt was to be borne. It was clear, that with a he- by the English law the personal estate was the primary fund for the payment of debts. It was equally clear, that by the bond, as the prima law of Scotland the real estate was the primary fund for the according payment of the heritable bond. Here was a direct conflictus legum. It was said for the heir, that the personal estate land; and must be distributed according to the law of England, and must bear all the burthens to which it is by that law subject. On the other hand it was said that the real estate must go according according to the law of Scotland, and bear all the burthens to which it is by that law subject. It was determined that the law of Scotland should prevail, and that the real estate must bear the burthen. to the law of Scot not exone rated by the personal estate, to the law of Eng land. Question, whether an of any "In the first case the disability of the heir did not follow him to England, and the personal estate was distributed as if both the domicil and the real estate had been in England. In the second the disability to claim exoneration out of the personalty did follow him into England, and the personal estate was distributed as if both the domicil and the real estate had been in Scotland. "Now what law is to determine, whether an instrument instrument of any given nature or form, is to be read against an heir at given na law, for the purpose of putting him to an election, by which the real estate may be affected. According to Lord Hardwicke, and the judges who have followed him, that is a ques ture or form is to be read against an heir, for the pur pose of election, as belonging Ersk. Inst. Law of Scotland, 701. (5th edition). As to the effect and nature of an heritable bond, see Bell's to the law Commentary on the Laws of Scotland, 206. of real pro perty, de- Hope's Minor Pract. 35. Ersk. Inst. 194, and by the sta lating de land. tion belonging to the law of real property, for they have de- termined cided it by a statute which regulates devises of land. Upon tute, reguthat principle, if the domicil were in Scotland, and the real vises of estate in England, an English will, imperfectly executed, Effect of ought not to be read in Scotland, for the purpose of putting that, where the heir to an election; and upon the same principle, if by inScotland the law of Scotland no will could be read against the heir, it would follow that a will of land, situated in Scotland, ought not to be read in England, to put the Scotch heir to estate in an election. the land is and where and is in Scotland, the England, and an will imper English fectly exeto the soundness of the principie, cuted. As quære. Analogy between a Scotland, devise in and a de vise of copyhold in England; the will operates as a declara tion of the previous surrender, in the lat use of a "Doubting much the soundness of that principle, I am glad that the case of Cunningham v. Gayner, relieves me from the necessity of deciding the question, as whichever law is applied to the decision of the present case, the result will be the same. As to the law of England, a will of land in Scotland must be held analogous to that of copyhold estate in England, and the will is equally to be read against the heir. It was said, a will of copyhold estate may have some effect here upon the copyhold: that is, if there is a previous surrender; but then the estate does not pass by the will, which operates only as a declaration of the use. In that respect there is no difference between a copyhold and land in Scotland; for if in Scotland there be a conveyance previously executed, according to the proper feudal forms, the party may by will declare the use and trust to which it shall If the law of Scotland is resorted to as the rule, the case alluded to determines that the English will may be read against the Scotch heir, for the purpose of putting him to an election; that too in the strongest case that could occur, for the will is stated to have been made on death-bed: liable therefore to the double objection; first, that a will cannot affect land; and secondly, that on death-bed no valid conveyance whatever could have been made; yet it was held, that as the heir took benefits under that will, it was not competent to him to dispute any part of its operation. "Upon the whole, therefore, the heir must make his election. The marital rights of the husband, who derives of deathno benefit from that will, cannot be affected by that election." enure. ter case, and of a previous convey ance, acthe proper cording to feudal form, in the former. against a Election Scotch by the law bed. A will destroyed or sup pressed, how established, a WHERE a will is suppressed or destroyed, relief may be had, if the property is real estate, in the Court of Chancery; and if personal estate, in the Ecclesiastical Court; but proof must be exhibited of the existence and contents of the will. The substance and effect however, under such circumstances, are usually all that can be expected to be proved; and where this is done, the will so withheld or destroyed will be established according to the effect substantiated in evidence. A very recent case at the Commons, was decided upon this ground. The testator made his will in August, 1813, and bequeathed his property to two of his illegitimate children, and appointed D. their guardian, and his own trustee and executor. The testator died in January 1814; D. went the morning after his decease to his house, and finding there the brother of the deceased, read the will to him. The brother being angry at finding that nothing was left to him, snatched the will out of D.'s hand, and destroyed it. The paper propounded, was an affidavit, purporting to contain the substance of the will. The Court, after hearing the evidence read, was of opinion that the facts of the case were fully proved, and pronounced for the substance of the will, as contained in the affidavit. * Hendy v. Hendy, Prerog. Court, 8th of February, 1815. FINIS. INDEX OF THE PRINCIPAL MATTERS IN THESE VOLUMES. The Roman numerals, I. and II. refer to the first and second volumes; 19. 76 where a feme co- tor, who is also residuary le- vert, executrix and residuary When it incapacitates from making a will 1. 28 What words include I. 453 AGE. 1. Progress of alienations in Grecian 1. Who may, and who may not be 71 3. His interest and authority in re- |