Page:The English Reports v4 1901.pdf/17
ents, Hamilton and M'Dougall and Sir J. Scott, insisted, that they were not only entitled to the capital of the funds after the death of the Appellants, and the survivor of them, but that they were entitled to the profits during the lives of the Appellants; upon the ground that the Appellants having reprobated the deed so far as it contemplated the disposal of land in Scotland, should take no benefit under that deed.
Upon these respective statements of claims, the Lord Ordinary, having heard Counsel, pronounced an interlocutor, by which, after reciting, to the effect before stated, the substance of the deeds dated the 14th of October, 1790, the 5th of November, 1803, with the writing or signed declaration of the same date, and the principal deed in question of the 19th of March, 1804; and after finding as facts the signature and execution of these several instruments, the action brought by the Appellants, and the consequent reduction of the deed made on death-bed, in so far as it related to the whole of the heritable subjects, expressed to be conveyed by it, which were descendible to the Appellants as heirs alioqui successurae, under the titles thereof. which stood in the person of John, Duke of Roxburgh; the in-[7]-terlocutor proceeds to find, "that the Appellants having thus challenged and reduced the death-bad deed, in so far as it affected the heritage, cannot avail themselves of that died, by claiming the life-rent of the moveables under it:" and finally, it is found and declared,
That although by the terms of the settlement, the residuary legatees are entitled to claim the residue of the effects vested in the trustees, after the death of Ladies Essex and Mary Ker, (the Appellants,) and the survivor of them; yet, that the life-rent of these subjects does not belong to the Ladies Ker as the Duke's executors, he having appointed the trustees his executors, and having appointed the whole residue of his fortune to be paid at a certain period to the residuary legatees, and therefore, the Ladies Ker can have no legal claim to the life-rent of these effects, except by this settlement, (the trust-deed of the 19th of March, 1804,) which they cannot approbate and reprobate; therefore, repels the claim of Ladies Essex and Mary Ker, to the life-rent of the subjects in medio, and decerns; but before further answer as to the claim of the residuary legatees, appoints them to be heard on the question, Whether by the terms of the Duke's settlement, as the residue is declared not to be payable until after the death of his sisters, they are entitled to demand payment thereof immediately?
Against this interlocutor the Appellants gave in a representation, by which, in addition to their former arguments, they contended, that John, Duke of Roxburgh, was domiciled in England; and that [8] his moveable succession must, therefore be regulated by the law of England; which, as they represented, acknowledged no such principle as that applied to the case by the Lord Ordinary. Upon considering this representation, with answers, his Lordship pronounced the following interlocutor.
The Lord Ordinary having considered the representation, and the answers thereto, together with the whole process, in respect that the plea now maintained, as drawn from the English law, which it is said does not admit of the doctrine of approbate and reprobate, does not apply to this case, supposing the fact as to the law of England to be as there stated; seeing that John, Duke of Roxburgh, being a Scottish nobleman, and his whole landed property being in Scotland, and that being the place of his residence for the greater part of the year, his domicile must be held to have been in Scotland, notwithstanding his having, during the sitting of Parliament, an occasional residence in London, where he died; and in respect the pursuers only claim the life-rent in question of the residue of the Duke's fortune, by virtue of the deed of 1804, which they have actually challenged, and set aside in part, refuses the representation, and adheres to the interlocutor complained of.
The Appellants submitted these interlocutors to the review of the first division of the Court. But the Court adhered to the interlocutor of the Lord Ordinary. By another petition to the same division, the Appellants reclaimed against the in-[9]-terlocutor of the Court; but the prayer was refused, and the Court adhered to their former interlocutor. Against these several interlocutors, the present appeal was presented.
For the Appellants—Mr. Wetherell and Mr. Abercrombie. The doctrine of approbate and reprobate is not clear in application or principle. It has been treated as a result of homologation; as where a party has adopted an instrument and taken some benefit under it, he cannot afterwards question its validity; he must co-operate,
3