law of its owner's domicile, embraced every question relating to the quality of either species of property. The application of this rule is obvious, when the property is either wholly moveable, or wholly immoveable. But it has been seen, that property corporeal, and incorporeal, which, by nature, or the constitution of some codes, is moveable, may, by its connection with immoveable property, receive from the law the quality of immoveable, or, according to the law of other countries, may still retain its quality of moveable.

Where moveable property is annexed to, or destined for the purposes of immoveable property, jurists concur in considering that it belongs to the law of the country in which such immoveable property is situated, to determine whether the moveable so annexed or destined shall retain its original quality, or become immoveable. The immoveable is the principal subject, and the moveable is the accessory. The former attracts to it, and confers its own quality on the latter; " quid si enim mobilia trahantur ab immobilibus, tamquam à dignioribus, vel ut majoris partis accessio? Immobilium lege regi debebunt." (a)

"Quid si perpetui usus gratiâ ex destinatione patrisfamilias in uno loco remanere debeant, id est fundi vel ædium usui perpetuo sint addicta? Pro immobilibus habebuntur, ut ibi esse videantur, ubi res principalis est sita, cujus sunt accessorium." (b)

When, indeed, the annexation actually takes place, the property may be said to become res soli, and to fall strictly within the rule which subjects it to the disposition of the lex loci rei sitæ. (c)

It is also applied when such annexation has not taken place, but the property is destined to, and employed

(a) P. Voet, de Mob. et Immob. c. 23, n. 1. Dig. lib. 18, tit. 1, de Contrah.empt. Arg. 1. 24. Tiraquell, de Retractu Gentilit. §1, gl.7, n.82, 1. 3. (b) P. Voet, ib. Dig. lib. 44, tit. 3, D. de Divers. et Tempor. Præscrip. (c) Argent. ad. Consuet. Brit. art. 218, gl. 1, n. 30.

on the immoveable property. Hertius, in laying down the rule, that the locus rei sita in moveables is not admitted, adds this qualification: "Si certo loco destinatæ non sunt: quoniam hæ non faciunt partem territorii, velut ad tempus in eo collocatæ." (a) Another jurist has still more explicitly excepted such property from the latter rule, for he says, "Notabilem patitur limitationem in mobilibus destinatis in certum locum, ut ibi perpetuò maneant; veluti sunt oves et animalia ad prædium certum destinata, ut ibi perpetuò sint, et agrum stercorent. In hisce enim successio fieri debet juxta statuta loci, in quo reperiuntur. Quia tunc mobilia bona ad instar immobilium, censentur esse de territorio et sub jurisdictione loci, ubi sunt sita." (b)

Hence, in determining whether certain fixtures, or other property moveable in its nature, but which has been placed on real estate, be part of the personal estate of the deceased, recourse must be had, not to the law of his domicile, but to that of the country in which the real property is situated.

It remains to be considered whether this rule is to be applied when the conflict regards the quality of incorporeal property.

The law of Scotland presents various incorporeal rights and interests which it treats as real, but which the law of England treats as personal property: thus, a bond excluding executors; a lease for a term of years; a debt secured by a mortgage on immoveable property, which by the law of England are moveable, are, by the law of Scotland, immoveable.

It will be observed, that these incorporeal rights are connected with, and confer an interest in immoveable property. It is then the exclusive province of the law which confers that interest to confer on it also its parti

(a) Hertius, vol. 1. sect. 4, § 26.

(b) Carpz. Def. For. part 3, Const. 12, Def. 15. 1 Boull. Tr. des Stat. tit. 2, c. 5, obs. 30, p. 481.

cular quality of moveable or immoveable. Hence, in determining whether these rights form part of the personal estate, recourse must be had to the law of the country where the immoveable property in which these interests are claimed is situated. J. Voet adopts this principle, when a conflict arises respecting the moveable or immoveable quality of rents or annuities issuing out of land: "Nec novum esse, ut quæ unâ in regione mobilia habentur, immobilium catalogo alibi adscripta inveniantur; annui, verbi gratiâ, reditus à provinciâ debiti, in Hollandia mobiles, immobiles Trajecti; arbores grandiores solo hærentes passim immobiles, mobiles tamen in Flandria habitæ. Quo posito, necesse fuerit, ut, quæ in domicilii loco mobilia habentur, immobilia verò illic ubi sunt, regantur lege loci, in quo verè sunt, magistratus lege loci, in quo verè ne ex comitate quidem permissuro ut quasi mobilia domicilii domini sequerentur jura." (a)

The rule laid down by P. Voet, and which is recognised by Huber, is founded on this principle: "Vel enim talium redituum nomine sunt affecta immobilia, id est super immobilibus sunt constituti, et immobilibus erunt adscribendi, adeòque statutum loci situs spectabitur, vel immobilia affecta non sunt illis reditibus, tumque mobilibus poterunt accenseri, atque adeò statutum loci personæ, cujus illi sunt reditus, inspici debebit." (b)

It has been followed by the decisions of the courts of Scotland and England.

The late General Ross was domiciled in England, and in 1795 he executed two deeds of settlement of his whole fortune. One of these deeds was in the Scotch form, but it was defective in the necessary solemnities, and could not have effect by the law of Scotland. The

(a) J. Voet, lib. 1, tit. 5, n. 11.

(b) P. Voet, de Stat. sect. 9, c. 1, n. 13. Huber, de Conflict. Leg. lib. 1, tit. 3, D. 15. Zoes. ad Pand. lib. 28, tit. 1, n. 52. Froland, Mem. tom. 2,

other was a last will and testament in the English form. General Ross lent sums of money to persons resident in Scotland, partly on simple personal bonds, partly on heritable bonds, which were followed by infeftment, and the remainder on Scotch personal bonds, taken to himself, his heirs and assignees, with clauses excluding executors. On the death of General Ross, his eldest son, as his heir, made his claim to the bonds excluding executors, as part of the heritable estate. In the proceedings instituted for, the purpose of deciding this claim, Lord Meadowbank pronounced an interlocutor, (a) finding that these bonds were heritable by the law of Scotland, and could only be effectually transmitted in the manner required by that law.

Against this interlocutor a reclaiming petition was filed, and it was afterwards reversed. (b) The question was then brought under the review of the whole court, and it was decided that the quality of these bonds must be determined according to the law of Scotland.

The judges, in delivering their opinions, held it to be clear" that if General Ross had been domiciled in Scotland, there could be no question that the bonds would have been considered as heritable, and not capable of being carried by a testament, and that the doubt in this case arose solely from that gentleman being domiciled in England. That there was a general distinction between personal and real property; and there could be no doubt that the question-Who is to take up the personal property? must be decided by the lex loci domicilii, but that this was altogether different from the question, by the law of what country the nature of a property, the character of which was disputed, should be determined? which they thought must be decided by the law of the country where the subject itself is situated. Thus, if a person dies in England with a

(a) 1st Dec. 1807.

(b) 9th March, 1808.

landed estate in Scotland, the heirs will be entitled to heirship moveables, if any such belonged to him in Scotland, although by the law of England, they might be held to be part of his moveable estate. In like manner, negro slaves are considered as moveable property by the Scotch law, yet they would go with a Jamaica estate, being considered as real by the law of that country. That, in short, the question-What forms a personal estate? is altogether different from the question-To whom does the personal estate devolve? and to their lordships it appeared that the question, whether the subject be personal or not, ought to be decided by the lex loci rei sita, and therefore that bonds with clauses excluding executors, being heritable by the law of Scotland, could not be carried by an English testament." (a)

A similar decision was pronounced by Sir William Grant, as Master of the Rolls, in a case where the testator having heritable bonds affecting lands in Scotland, had by his will bequeathed all his property of every description, to trustees, upon certain trusts therein mentioned. The testator had also by his will expressly directed “that all his property and securities for money in Scotland should be considered as personal estate," and pass to his trustees, as far as he could by his will affect the same, as if the same had been his personal estate in England, and that all his estate and interest therein, of what nature or kind soever, should pass to, and vest in, his said trustees, their heirs, executors, administrators, and assigns. It was held that the bond was subject to the disposition of the law of Scotland, and could not pass as personal property under the will. (b)

This decision is not in any degree affected by that which

(a) July 4th, 1809, Ross's Fac. Coll. Nov. 22d. 1832, Newland's Executors, Fac. Coll.

(b) Johnstone v. Baker, 4 Madd. Rep. 474, note.