(A) ADMINISTRATION.

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RULE 62.1-The Court has jurisdiction to make a grant2 in respect of the personal property of a deceased person, if any personal property of the deceased either

(1) is locally situate in England at the time of his death, or

(2) has become locally situate in England at any time since his death,

and not otherwise.

The locality of the deceased's personal property under this Rule is not affected by his domicil at the time of his death.5

1 Tristram & Coote, Prob. Prac., 11th ed., pp. 355–357; Preston v. Melville, 1840, 8 Cl. & F. 1; Enohin v. Wylie, 1862, 10 H. L. C. 1; Attorney-General v. Bouwens, 1838, 4 M. & W. 171; In Goods of Tucker, 1864, 3 Sw. & Tr. 585; 34 L. J. P. & M. 29; In Goods of Coode, 1867, L. R. 1 P. & D. 449; AttorneyGeneral v. Hope, 1834, 1 C. M. & R. 530 ; 2 Cl. & F. 84. Compare In Goods of Fittock, 1863, 32 L. J. P. & M. 157; In Goods of Lord Howden, 1874, 43 L. J. P. & M. 26; In Goods of De la Saussaye, 1873, L. R. 3 P. & D. 42; In Goods of Harris, 1870, L. R. 2 P. & D. 83.

2 The grants made by the Court, whether grants of letters of administration or grants of probate, are of different kinds. Thus the Court may make a general grant of administration where the deceased dies without having made any will at all, or a grant of administration cum testamento annexo, as where a person dies having made a will and has not appointed an executor. So, again, the Court may admit the whole of a will to probate, or may admit part only of a testamentary document to probate and refuse it as to the rest, or may grant limited probate where the testator has limited the executor. See Walker & Elgood, 2nd ed., chaps. v. to xi. These and other distinctions should be borne in mind. They do not, however, unless specially referred to, concern the Rules in this Digest. When a grant is mentioned therein, what is meant is, unless the contrary be stated, a general grant applying, as far as the English courts can make it apply, to all the personal property of the deceased. As to the property which passes under an English grant, see chap. x., Rule 72, post. 3 As to meaning of "personal property," see Rule 61, p. 311, ante.

As contrasted with its being "constructively" or "fictitiously" situate in the country where the deceased dies domiciled, in accordance with the principle, mobilia sequuntur personam.

5 Attorney-General v. Hope, 1834, 1 C. M. & R. 530; 2 Cl. & F. 84; Fernandes' Executors Case, 1870, L. R. 5 Ch. 314; In Goods of Ewing, 1881, 6 P. D. 19; Laidlay v. Lord Advocate, 1890, 15 App. Cas. 468, 483.

Comment.

The Court has jurisdiction to make a grant whenever the deceased dies leaving any personal property whatever situate in England, even if it be no more than his clothes. Hence, whenever a person dies in England, the Court has almost of necessity jurisdiction; the Court, again, has jurisdiction when personal property of the deceased comes into England after the date of his death; the foundation, in short, of the jurisdiction of the Court is that there is personal property of any kind of the deceased to be distributed within its jurisdiction,1 i. e., in England. Nor, as regards the Court's jurisdiction, does it appear to make any difference that goods of the deceased which, at the time of his death or after his death, have been in England, have been subsequently removed; in such a case there would be a right of action against any person who wrongfully removed them. The exercise, however, of the Court's jurisdiction, is to a certain extent a matter of discretion.2

Where, on the other hand, there is not or has not been in England any personal property (using that term in its very widest sense) of the deceased's, the Court has no jurisdiction 3 to make a grant.

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"The foundation of the Court's jurisdiction being personal 'property of a deceased to be distributed in this country, adminis"tration will not be granted in respect merely of property abroad. "It is a condition precedent to a grant that it should appear that "the deceased left personal property in this country." 4

"It is not," it has been laid down with reference to a particular case, "one of the functions of this Court to determine, as an ab"stract question, who is the proper representative of a deceased "person, and if the Courts of France insist upon such a declaration

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they are very unreasonable. The foundation of the jurisdiction "of this Court is, that there is personal property of the deceased "to be distributed within its jurisdiction. In this case the de"ceased had no property within this country, and the Court has "therefore no jurisdiction." 5

1 In Goods of Tucker, 1864, 3 Sw. & Tr. 585, 586. In Goods of Ewing, 1881, 6 P. D. 19.

3 See, for what may possibly be considered an exception to the rule that the Court has no jurisdiction where there is no personal property in England, p. 319, note 4, post, and compare Tristram & Coote, pp. 37-40. Notice generally the statements as to the local situation of personal property, pp. 318-322, post. 4 Walker & Elgood, 2nd ed., p. 32.

5 In Goods of Tucker, 1864, 3 Sw. & Tr. 585, 586, judgment of Sir J. P. Wilde.

Two points deserve special attention :

The prop

(1) As to "personal property" of the deceased. erty, the situation of which in England gives the Court jurisdiction, must be personal property as defined in Rule 61.1

The personal property, further, must be situate in England, in the character of personal property of the deceased, or at any rate of property to which the administrator under an English grant has a claim. The Court will not derive jurisdiction from the mere fact that property in a foreign country, which did belong to the deceased at the time of his death, but has there since his death become lawfully the property of another, comes into England.2

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(2) As to the "situation" of personal property. In most instances the situation of property, i. e., whether it is or is not situate in England, does not admit of doubt; but it sometimes happens that there is a real difficulty in affixing to property, especially where it consists of debts or other choses in action, its due local position. In the determination of the locality properly assignable to the different kinds of personalty which have been owned by a testator or intestate, the High Court is in the main guided by maxims (modified in some instances by statute) derived from the practice of those ecclesiastical tribunals whose jurisdiction in "matters and causes testamentary," to use a convenient expression taken from the Probate Act, 1857, has ultimately passed to the High Court. These maxims, as modified by statutory enactments, are based on two considerations: the first is, that property, so far as it consists of tangible things, must in general be held situate at the place where at a given moment it actually lies; the second is, that property may in some instances, and especially where it consists of debts or choses in action, be held to be situate at the place where it can be effectively dealt with. From these two considerations flows the following general maxim, viz., that whilst lands, and generally, though not invariably, goods, must be held situate at the place where they at a given moment actually lie, debts, choses in action, and claims of any kind must be held situate where the debtor or other person against whom a claim exists resides; or, in other words, debts or choses in action are generally to be looked upon as situate in the

1 See p. 311, ante.

2 See chap. x., Rule 72, post; chap. xvii., Rule 117, post; and chap. xxiii., Rule 140, post.

3 See pp. 71, 72, ante.

4 Under the Probate Act, 1857 (20 & 21 Vict. cap. 77), ss. 1, 3, 4, 23, taken together with the Judicature Act, 1873 (36 & 37 Vict. cap. 66), s. 16.

country where they are properly recoverable or can be enforced. Thus English leaseholds are situate in England; and so goods, lying in a warehouse in England, are to be held situate in England, and debts due from debtors resident in England are also to be held there situate; French lands, on the other hand, - goods in French warehouses, and, in general, debts due from debtors resident in France, are to be held situate in France.1

But the considerations on which our general maxim is grounded introduce some real or apparent exceptions to its operation.

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Any British ship, for example, belonging to a deceased person, which is registered at any port of the United Kingdom, is to be held, for some purposes at any rate, to be situate at that port: so goods on the high seas which are capable of being dealt with in England by means of bills of lading in this country are, wherever actually situate, to be held situate in England; and goods which at the death of the deceased owner are in transitu to this country, and arrive here after his death, are apparently to be held situate in England at his death.*

When bonds, again, or other securities, e. g., bills of exchange, forming part of the property of a deceased person, are in fact in England and are marketable securities in England, salable and transferable there by delivery only, without its being necessary to do any act out of England in order to render the transfer valid,

As to the locality of a simple contract debt, compare Hanson, 3rd ed., p. 159; Attorney-General v. Higgins, 1857, 2 H. & N. 339, 348; and AttorneyGeneral v. Bouwens, 1838, 4 M. & W. 171, 192, judgment of Abinger, C. B. "The locality of a mortgage debt is regulated by the same rules as apply to "other debts, and does not in any way depend upon the situation of the prop"erty comprised in the mortgage." Hanson, 3rd ed., p. 160. See, however, Walsh v. Reg. [1894] A. C. 144 ; Reg. v. Balby Road, 1853, 22 L. J. Q. B. 164 ; Attorney-General v. Sudeley, [1895] 2 Q. B. 526.

2 See 27 & 28 Vict. cap. 56, ss. 4, 5.

3 Hanson, 3rd ed., 160; Attorney-General v. Hope, 1834, 1 C. M. & R. 530. Hanson, 3rd ed., p. 162; Attorney-General v. Pratt, 1874, L. R. 9 Ex. 140; Wyckoff's Case, 1862, 3 Sw. & Tr. 20; 32 L. J. P. & M. 214.

Under this head may be brought the exceptional cases in which the Court, though there is no property of the deceased strictly situate in England, will make a grant on the ground that he has left personal property in a foreign country, e. g., money at a bank in Canada, which would be remitted to England by the banker, on a personal representative being constituted in England. The money is in this case virtually in transitu.

For a probable application of a similar principle to ships and cargoes which, though in fact in England, are destined to return to the country, e. g., New York, where their owner dies domiciled, see Story, ss. 519, 520, from which it would seem that such ships and cargoes should be treated as situate in New York at the time of the owner's death.

not only the bonds or bills themselves, but also, what is a different matter, the debts or money due upon such bonds or bills, are to be held situate in England, and this though the debts or money are owing from foreigners out of England.1 The reason manifestly is that the bonds or bills, though they may from one point of view be looked upon as mere evidence of debts which, being due from persons resident abroad, should be considered situate in a foreign country, are in reality chattels of which the representative of the deceased owner can obtain the full value in England, and this without doing any act in a foreign country. Such bonds differ essentially from any foreign stock which cannot be fully transferred by the representative of the deceased without doing some act in a foreign country. The certificates or other documents, if any, held by the owner of such stock, may be in England, but they are mere evidence of a debt due from a foreign government, or, in other words, from a debtor not resident in England, and this debt, i. e., the stock, must apparently be held situate out of England.2

Owing to the view held by the ecclesiastical tribunals that a debt due on a deed or other specialty was to be considered as situate, not where the debtor resided, but at the place where the deed itself was situate, and the modification of this doctrine by a statutory enactment, the rules as to the situation of such a debt are anomalous. A debt due on a deed situate in England from a debtor resident abroad,5 and also a debt due on a deed situate abroad from a debtor resident in England, must each be held situate in England. A debt due on a deed situate abroad from a debtor resident abroad is, like any other debt due from such debtor, to be held situate out of England."

It was, further, long ago "established by law that judgment "debts were assets, for the purposes of jurisdiction, where the judg"ment is recorded; "8 and this rule, though it sounds technical, is in substantial conformity with the principle regulating the locality

1 Attorney-General v. Bouwens, 1838, 4 M. & W. 171.

2 Compare Attorney-General v. Bouwens, 1838, 4 M. & W. 171, 192, 193, with Attorney-General v. Dimond, 1831, 1 C. & J. 356; Attorney-General v. Hope, 1834, 1 C. M. & R. 530. But see Stern v. Reg. 1896, 12 Times L. R. 134.

8 See Commissioner of Stamps v. Hope, [1891] A. C. 476; Gurney v. Rawlins, 1836, 2 M. & W. 87.

4 See Revenue Act, 1862 (25 & 26 Vict. cap. 22), s. 39.

5 Commissioner of Stamps v. Hope, [1891] A. C. 476.

6 Revenue Act, 1862 (25 & 26 Vict. cap. 22), s. 39.

7 See pp. 318, 319, ante.

8 Attorney-General v. Bouwens, 1838, 4 M. & W. 171, 191, judgment of Abinger, C. B.