place is where the specialty lies, shall commit the administration; and if the ordinary of another diocese grant it, the administration is void: and therefore the case was, a merchant in Ireland was bound in an obligation of forty pounds to one J. S. in London, and the obligation was made in Ireland, but remained always in London, and the merchant died intestate in the county of Bedford in England, and a bishop of Ireland did commit the administration to one, and the archbishop of Canterbury committed it to the wife of the intestate, who had the obligation; in this case, the last administration was adjudged good: and it was there held, that the administration shall be granted by the ordinary of the place, where the specialty doth lie at the time of the death of the intestate, and not by the ordinary of the place where the debt began ⚫.

One by will made in England, devises an annuity in trust for his wife out of lands in Ireland; the testator and his wife and the trustees residing in England, the annuity shall be paid in England, and the estate bear the charge of the return. So if one in England gives by will a legacy out of land in Ireland, the legacy shall be paid in England, and in English money. So where a charge was made on an Irish estate, but the settlement and will being made in England, and all parties living here, the money was decreed to be paid into court with English interest, and without deducting the charge of the return from Irelanda.

If a person die intestate having personal property in England and abroad, distribution must be according to the law of that country where he was resident when he died, of which further mention is made hereafter'.—An intestate died at Jersey, and at the time of his death there was owing him 500%. bond debt in London. A bill was brought for a distribution of the 500l. according to the statute of Car. II.; and the question was, Whether it shall be distributable according to the laws of England, it being found in the province of Canter

Shep. Touch. 443.

P Wallis v. Brightwell, 2 P. Will. 88.

↑ Phipps v. Earl of Anglesea, 1 P. Will. 696.

r See post.

bury, or according to the laws of Jersey, where the intestate resided at the time of his death. Held to be distributable according to the laws of Jerseys. So with respect to administration, if a person come from Jamaica, reside and die in England, and administration be granted here, the Judge of Probate in the plantations is bound thereby, and if applied to for administration must grant it to the same person to whom granted here. - One Williams resided and died intestate in England; administration was granted in England to his widow, in Jamaica to his sisters and their husbands. Application by the widow to the judge in Jamaica, for administration, and refused. On appeal to the king in council, the sentence was reversed. Lord Chief Justice Lee, who then attended in council, gave his reasons, that the plantations being within the diocese of London, and subordinate to the prerogative of Canterbury, were therefore bound by the probate of that court: but lord Mansfield has since said, the better and more substantial reason for such determination is the residency (6).

t

Pipon v. Pipon, Amb. Rep.

t Burn v. Cole alias Allin, Amb. Rep. 415.

(6) The personal property of an intestate, wherever situate, must be distributed according to the law of the country where his domicil was, and such is primâ facie the place of his residence, but that may be rebutted or supported by circumstances; for although the locality of the party's abode at the time of his death determines the rule of distribution, yet it must be a stationary, not an occasional residence, in order that the municipal institutions may attach on the property. Sir Charles Douglas's case, 5 Ves. 758. Brodie v. Barry, 2 Ves. & Bea. 131. 1 Woodd. 385. In respect to a domicil acquired in the East Indies, or in any of the colonial possessions, it is not to be distinguished from an English domicil, for those territories and islands are all, in the politic sense of the word, a part of the mother country, and the personal estate of an intestate domiciled in any of them is distributable according to the law of England, exactly the same as if the party had resided and died in England.

In

In case a person has bona notabilia both in the province of York and Canterbury, administration must be taken out before both metropolitans, if within the jurisdiction of each there are bona notabilia in divers dioceses; or else if in either of the provinces, the goods lay in one diocese, then administration must be taken out before the particular bishops in

fact, a domicil in India, or in any of the colonies, is, in legal effect, a domicil in the province of Canterbury, and consequently adininistration must be granted by the metropolitan of that province. A distinction, however, has been drawn by the House of Lords (and which Lord Eldon has characterized as very refined, 2 Jac. & Walk. 546,) between a person, a Scotsman, for instance, who goes out to the East Indies in a king's regiment, and dies there in the king's service; and one of the same nation who goes out, and dies in the service of the East India Company. In the former case the original domicil of the party will not be changed, and his effects will be distributable according to the law of Scotland; but in the latter the domicilium originis is abandoned, and a subsequent Indian domicil being acquired, distribution of his estate must be made in consonance with the law of England. Bruce v. Bruce, 2 Bos. & Pul. 229. n. S. C. 7 Bro. P. C. 230. The distinction seems to be founded on this principle, that a servant of his majesty, like an ambassador, cannot be supposed to take up a permanent residence in, or to go to the country to which he is ordered animo morandi; his change of residence is merely temporary, in obedience to, and in compliance with, the commands he may receive; and he is liable to be recalled at any period. But a servant of the company goes out with the fixed and settled purpose of remaining there; he enjoys the privileges of the place; he may mean to return when he has realized a fortune, but if he dies in the interval, it cannot be maintained that he has not abdicated his original Scottish domicil. See on this subject Somerville v. Somerville, 5 Ves. 787. Bempde v. Johnstone, 3 Ves. 199. Munroe v. Douglas, 5 Madd. 379. In a recent case, where a native of England domiciled in Guernsey, died intestate, leaving a widow and infant children, and the widow was appointed guardian of the children by the royal court of Guernsey, and sold the property of the intestate, and invested the produce in the English funds, and afterwards came to England with her children, and was domiciled there, a

whose several dioceses the goods are ". Or if the deceased had goods in the jurisdiction of one metropolitan, lying in divers dioceses, and in the other, but in one diocese; then administration must be taken out before the archbishop who has jurisdiction over the divers dioceses, and before the particular bishop of the diocese ".—The granting of administration of the goods of every bishop, although he hath not goods but in his own jurisdiction, doth belong to the archbishop *.

There are certain peculiar ecclesiastical jurisdictions, where, by prescription or composition or other special title, the granting administration of the goods of such as dwell and die within those places, doth appertain to the judge of that peculiar y.— There is the court of peculiars, which is a branch of, and annexed to the court of arches. It has a jurisdiction over all those parishes dispersed throughout the province of Canterbury, in the midst of other dioceses, which are exempt from the ordinary's jurisdiction, and subject to the metropolitan only .- Where one dies possessed of goods in the diocese of an archbishop, and in a peculiar of the same diocese, there shall be several administrations, and the archbishop shall have no prerogative, because the peculiar was first derived out of his jurisdiction". But where one dies possessed of goods in several peculiars within the some diocese, in that case administration shall not be granted by the bishop

u Went. Off. Exc. 46.

w Ibid.

x 4 Inst. 335.

y Swinb. 427.

z 3 Black. Com. 65.
Gibson, 472. Cro. Eliz. 719.

a

question arose on the death of some of the children under age, whether the shares of their property became distributable according to the law of England or of Guernsey, and it was held that the law of England was to govern the succession; the domicil of the children being (according to the opinion of foreign jurists, our own law being silent on the subject) to follow the domicil of the surviving parent, where no fraudulent intention in the removal can be imputed. Potinger v. Wightman, 3 Meriv. 67.

of the diocese, but by the metropolitan; insomuch as they are exempt from ordinary jurisdiction ↳ (7).

By the statute 4 Ann. c. 16. sect. 26. The power of granting probates of wills, and letters of administration, of the goods of persons entitled to wages for work done in her majesty's yards and docks, is declared to be in the ordinary of the diocese, or such other persons to whom the ordinary power of probates of wills or granting of administration do belong, where such persons shall die; and the wages due to such persons shall not be taken to be bona notabilia, to found the jurisdiction of the prerogative court.

The prerogative is grounded upon this reasonable foundation; that, as bishops were formerly themselves the administrators to all intestates in their own diocese, and as the present administrators are in effect no other than their officers or substitutes; it was impossible for the bishops, or those who acted under them, to collect any goods of the deceased, other than such as lay within their own dioceses, beyond which their episcopal authority doth not extend. And it would be extremely troublesome, if as many administrations were to be granted, as there are dioceses within which the deceased had bona notabilia, besides the uncertainty which creditors and legatees would be at, in case different administrators were appointed, to ascertain the fund out of which their demands are to be paid. A prerogative is therefore very prudently vested in the metropolitan of each province, to make, in such cases, one administration serve for all c. It has been decreed that administrations committed by b Gibson, 472. Swinb. 440.

c2 Black. Com. 509.

(7) In a late case probate in the court of the archdeacon of Sudbury, to whom the bishop granted full power to prove the wills of all persons deceased within the archdeaconry, was held good, the testator having died within the archdeaconry, although he was possessed of a term of years in lands lying within another archdeaconry in the same diocese, on the ground that the appointment of the bishop armed the archdeacon with episcopal authority. Rex v. Yonge, 5 Mau. & Selw. 119.