personalties of the community and may alienate the whole. If the real property is only partly converted for a certain amount, the husband cannot alienate it without the consent of his wife; he may, however, mortgage it without her consent; but only to the extent of the portion rendered movable. The stipulation by which consorts agree that each shall pay separately his or her personal debts binds them when the community is dissolved, to refund respectively debts which are proved to have been paid by the community. A wife may stipulate that in case of renunciation of the community she shall take back a whole or a part of what she brought into it, either at the time or during the marriage.

In

Préciput by Agreement.- This stipulation by which the surviving consort is authorized to take, before any partition, a certain sum or a certain quantity of personal effects in kind, takes effect in favor of the surviving wife only when she has accepted the community; unless in the marriage contract such right has been reserved to her even in the event of renunciation. default of such reservations, the préciput can only be taken out of the divisible bulk of the community, and not out of the private property of the predeceased consort. Préciput is not regarded as a benefit subject to the formalities of gifts inter vivos, but as a marriage agreement. When the community is dissolved by death the préciput (benefits stipulated by will or by law in favor of one of several co-heirs, or a benefit stipulated by marriage settlement in favor of the surviving husband or wife), may be at once claimed.

Consorts by their marriage contract may establish a general community (à titre universel) of their real and personal property, present and future, or of all their present property only; or of all their future property only. They may enter into such agreements as they please, provided they do not infringe upon the law. Community by agreement is subject to the rules of legal community in all cases where there is no express or implied derogation of the law.

When the consorts, without subjecting themselves to the dotal system, stipulate that there shall be no community or that they shall remain separate as to property, such stipulation does not give the wife the right to administer her property, nor to receive the fruits thereof, which are deemed to be brought by her to her husband for household expenses. The husband retains the management of the real and personal property of the wife. When the consorts stipulate by the marriage contract that they should be separate as to property, the wife retains the entire management of both her real and personal property and the free use of her revenues. They both contribute to the household expenses. The wife cannot alienate her real property without the special consent of her husband, or on his refusal, without being judicially authorized.

Dowry.-Dowry under the French Code, as generally understood, is the property which the wife brings to her husband to defray expenses incident to marriage. Under the dotal system all that she settles, or that which is settled upon her in the marriage contract, is dotal, unless there is a stipulation to the contrary. A settlement in general terms of all the property of the wife does not include property that may accrue to her. A dowry can neither be settled nor increased during marriage. The husband has the sole control of the dotal property during marriage. If the marriage is dissolved by the death of the wife, the interest and fruits of the dowry to be returned go for the benefit of her heirs from the day of the dissolution. If it is dissolved by the death of the husband, the wife has the option of demanding the interest of the dowry during the year of mourning (l'an du deuil), or of claiming maintenance during the same period at the expense of her husband's succession; but in both cases her lodgings during the year and her mourning

must be supplied to her by the succession, and without being deducted from interest due to her.

Paraphernalia.-All the wife's property that has not been settled in dowry is her paraphernalia. If all her property should consist of such, and if there is no clause in the marriage contract that she shall share the expenses incident to marriage, the wife must contribute one-third of her income. The wife has the use of her paraphernalia, but cannot dispose of it without authority of her husband or judicial authority. I have endeavored to give you a general outline on the subject, leaving it for you at your leisure to examine it more fully in detail. You will find the French law in respect to the legal status of husband and wife, in all their relations as such, the most full and complete law extant.

By the Laws of Holland, lawfully contracted marriages, so far as they are not avoided by a special antenuptial contract, have relation either to the person or the goods of the parties. The wife becomes by marriage, as it were, a minor; and the husband her curator or guardian; she has no power to appear in courtis not capable of herself to enter into any contract without the knowledge or consent of her husband, so as to bind her to others, except so far as she may clearly appear thereby to have derived an advantage or profit, or that she, with the knowledge of her husband, has carried on trade openly. By this power of her husband over her she is bound and liable for all debts and engagements contracted by her husband, even without her knowledge, and equally with him during the marriage and after his death, for one-half thereof, except the obligation arises from some crime on the husband's part; the husband may at his pleasure alienate or incumber the wife's property, without her consent thereto. If, however, the husband make such a manifest misuse of the marital power as is likely to bring the wife to poverty, the law affords her the means of checking him. The usual step in such a case is a petition that the husband's person and property may be placed under curatorship.

When not limited or excluded by a previous marriage contract, the law is that community of goods takes place immediately on the completion of the marriage, since it is an established rule in the States of Holland, that man and wife have no separate property, and so binding is this that the community once introduced by marriage can in nowise be done away with; nor does it make any difference whether it be the first or second marriage of the parties. Is this reasonable when there are children by the former marriage? Vide Bynkershoek Quant Jur. Lib. 2, cap. 2. There are two cases wherein this community does not take place by marriage. (1) In clandestine marriage of minors. (2) In marriages between parties who have eloped. This community extends to every thing possessed by the parties ou either side at the time of marriage, or acquired by them during marriage, whether by inheritance, legacy, donation, or otherwise, and no profit of any kind is excepted. You will notice that the French law does not go so far as this. Property which after the death of the present possessor, goes to the eldest in descent of the family; also goods affected with a trust, and the like. As the parties enjoy alike the profit or gain during marriage, so are they also equally affected by all the losses and charges of the property on either side, among which are to be reckoned the debts, not only those contracted during marriage but also those with which either of the parties was affected before marriage.

The consequences of the community of goods thus established are as follows: (1) The goods of both parties brought into community at the marriage, as well as those acquired, are during the marriage common. (2) This property, during marriage, is under the control and disposition of the husband. (3) All debts

contracted before the marriage are common, and must be paid out of the common estate. (4) At the death of either of the parties this community of goods ceases ipso jure. (5) The common goods of the husband and wife are then divided into two parts, the one half assigned to the survivors and the other half given over; also those with which either of the parties to the heirs of the deceased party.

Effect of English Marriage. By the English law, husband and wife are constituted one person; the very being and legal existence of a woman is in many respects suspended during her marriage; and she is under his complete control and protection and cover, and was therefore called in the law French of the times a feme-covert, fæmina viro co-operta is said to be covert-baron or under the protection and influence of her husband, her baron or lord; and her marriage condition is called her coverture.

Out of the union of husband and wife spring almost all the legal rights, duties and disabilities that either of them acquire by marriage. According to the common law a man cannot grant any thing to his wife or enter into any covenant with her, since such an act would suppose her separate existence. As a general thing compacts made between husband and wife before marriage are valid by their intermarriage. A man may, however, covenant with others, as trustees for his wife; and a husband may convey to trustees for her benefit. A woman may act as agent for her husband, as that implies no separation from, but rather as his representative. By the common law of Eugland the husband acquires all the personal property belonging to the wife at the time of the marriage, or which may accrue to her during its subsistence, except her paraphernalia, and such property as may be settled for her separate use. He is also entitled to all her chattels, real or leasehold interests, and to her choses in action-such as debts due to the wife on bond or otherwise, these are so far excepted that they do not in general become the husband's until he reduces them into possession. If he dies before this is done, they remain to the wife, and if she dies before this is done, they form part of her estate. The husband is also entitled to the management and to the rents and profits of the wife's freehold estates during her marriage. After his wife's death he may enjoy for his life, lands of the wife of which they were seized in her right, for an estate of inheritance, if issue of the marriage is born capable of inheriting the property. When the husband seeks in a court of equity the benefit of any of his wife's property, and when no other adequate provision has been made for her, the court will order part of such property to be settled upon the wife for her separate use. M. Paterson's Compendium, p. 297. As to the rights of property acquired by the wife on her husband's death, the law of England allows them to stand on a very precarious footing. The widow's dower right in her husband's estate, was once a very valuable provision, but it has now dwindled into insignificance. Under the act 3 and 4 Will. IV, which applies to all marriages contracted after the first of Jan., 1834, dower cannot be claimed: First, where the estate of the husband has been disposed of by him either in his life-time or by will. Second, a simple devise of real estate subject to dower, by the husband to the wife, will bar the dower, unless a contrary intention be expressed, and Third, any declaration by the husband, either by deed or will, that the wife shall not have dower, will defeat her claim. If the husband happen to die intestate, the statute of distributions (22 and 23 Car. II, ch. 10) gives to the widow one-third of his personal property when he leaves issue living, and one-half when there is none; but this is a mere chance or hope of succession, which may be defeated by the husband's will.

By the Scottish law the husband becomes the curator

or guardian of his wife, and should be joined with her in deeds and law proceedings to which she is a party. Although she has control over her separate estate, yet her husband's consent is necessary to validate deeds granted by her. Her personal obligations are binding if they are in rem versum of the wife, or have special reference to her own property, or have been granted by her while carrying on trade on her own account, her husband being abroad, or when she is judicially separated from her husband. A married woman, without her husband's consent, may validly execute a settlement, or dispose of her separate estate by any deed which is not to take effect till her own death. Marriage by the Scottish law transfers to the husband all the personal property of the wife at the time of the marriage, or which may accrue to her during its subsistence, with the exception of personal bonds bearing interest, and her paraphernalia. The wife is proprietor of her real estate; but the husband is entitled to the administration and to the whole yearly rents and profits during the marriage. After the wife's death and there has been a living child born of the marriage, and the wife has left no heir to her heritage by a former marriage, the surviving husband has a life-rent right to the rents and profits of her heritable estate, which is called the curtesy. The rights of the spouse, at common law, may be modified by settlements before marriage, and any gift or bequest by a stranger to a married woman may be destined for her separate

use.

By the act of 25 and 26 Vict., ch. 84, amending the law regarding congugal rights in Scotland, some important changes have been made in relation to the property rights of married women.

1. When a married woman succeeds to property, or acquires a right to it by any other means than her own industry, neither the husband, his creditors, nor any one claiming through him, shall be entitled to such property, except on the condition of making therefrom a reasonable provision for the support and maintenance of the wife. This claim must be made before the husband or his assignees shall have obtained possession of the property, and before his creditors shall have attached it.

2. After a decree of separation, a mensa et thoro, obtained by the wife, all property which she may acquire, or may come to her, shall be considered as her own, and she may dispose of the same as if she were unmarried, and in case she die intestate, it will pass to her living representatives, and while so separated she is capable of entering into obligations and be liable for wrongs and injuries and be capable of suing and being sued, as if sole.

3. When a wife has been deserted by her husband she will be protected by the court in all property which she has acquired by her own industry or which she has succeeded to or may succeed to after desertion, against her husband or his creditors, or any one claiming through him.

On the death of the husband, the surviving wife, if she has no conventional provisions, has a right to the terce, which is a life-rent of a third of the heritable property in which the husband died infeft, including burgage subjects. She is also entitled to the jus relicta, which is a share of the free movable estate goods in communion, amounting to one-half, where there are no children of the marriage, or where the husband has left no children by a former marriage, and to onethird only where there are children. These legal provisions of the widow are not liable to be defeated arbitrarily at the pleasure of the husband, as the corresponding rights of the widow to dower and a share of the movables may be in England.

While the Roman law allowed great freedom to married women, as regards their proprietary powers, the law in modern times lays them under severe restric

tion. The Code Napoleon is much influenced by the principles of the Roman law as regards the powers of married women; but the Scottish law goes in the very opposite direction. The systems which are least indulgent to married women are invariably those which have followed the canon law. The doctrines of the English common law, as well as the Scottish, are largely borrowed from the Canonists. Recent legislation has very much softened the rigors of the common law in England; it has done much in America.

In the United States the common-law disability of a married woman to make contracts very generally prevails where no statute has changed the rule. Several of the States have provided for the protection of married women. Wherever such statutes exist the courts have given full effect to them. It is generally held that such statutes do not enlarge the general powers of the wife as to all contracts, but only as to such as affect her property or estate. She may now make bargains, carry on any trade or business, and perform labor and services on her own separate account as if she were unmarried; and the earnings and profits belong to her exclusively. She may sue and be sued in relation to her separate business as if she were a feme sole. Foster v. Conger, 61 Barb. 145. The tendency of legislation and the adjudication of the court is to extend the rights and powers of married women beyond those given by the common law. Ordinarily the husband is entitled to the personal services and earnings of the wife, unless it is earned in a business carried on upon her sole and separate account. The statutes in some of the States are broad enough to give the wife the earnings of her personal services in all cases and all the rights which she would have had uumarried, and her husband's creditors cannot reach them on their avails. Marshall v. Marshall, 2 Bush (Ky.), 415; Hoyt v. White, 46 N. H. 45; Oglesby v. Hall, 30 Ga. 386; Whiting v. Beckwith, 31 Conn. 596; Abbey v. Deyo, 44 N. Y. (5 Hand) 348. As a general rule in this country the wife's earnings belong to the husband and may be taken for his debts unless some statute gives them to the wife. The common law does not permit husband or wife to be a witness for or against the other in civil actions. In some of the States they have enacted special laws by which the wife or husband may sometimes be witnesses for or against each other, but it is generally held that statutes which merely declare that interest shall not disqualify, do not remove the common-law disabilities of husband and wife, which are founded on principles of public policy.

In New York (Laws 1869, ch. 887), in civil actions or proceedings a husband or wife is competent and compellable to give evidence for or against each other the same as other witnesses, except in actions for adultery, for criminal conversation or confidential communication between them. Southwick v. Southwick, 49 N. Y. (4 Sick.) 510. After a dissolution of the marriage by a divorce or by death, either party may be admitted as a witness, unless as to confidential communication made during marriage. Although the general rule seems clearly settled yet there are a few cases which seem opposed. After a divorce a woman is still incompetent to testify against her former husband in a matter between him and a third party. Having lived in illicit cohabitation does not render the one incompetent as a witness for or against the other. In case of bigamy the second wife is a competent witness. In criminal cases neither can be a witness for or against the other. A wife may act as agent for her husband or he as agent for his wife. A wife who leaves her husband without good cause cannot bind him to pay for necessaries furnished to her by a person who knows that they are living separate and apart. Neither is a husband liable for goods sold to the wife upon her separate credit as feme covert trader, who has never as

sumed to pay for such goods. The common-law liability of a husband civilly for the torts of his wife prevails very generally in this country, unless some statute has changed the rule. The courts will sanction a valid agreement of separation between husband and wife; and if the husband makes in such agreement a provision of a specified sum for the support of the wife and makes the payment accordingly, the wife cannot create any debts against him for such support. At common law a husband is entitled to the personal property and chose in action of his wife, and they are vested in him at her death whether reduced to possession or not, in virtue of his marital 'right, and not of his right to administration. The liability of the husband for the debts of his wife which were contracted before the marriage is a joint one, and it terminates on her death, unless enforced during coverture by a judgment or joint action against both.

The rigor of the common law has been very much softened with every advancing step made in the knowledge of the principles of the Roman law. Its principles have been found readily suitable in every age to the requirements of an advancing civilization. Led by their theory of natural law the jurisconsults of ancient times assumed the equality of the sexes as a principle of their Code of Equity. The codified jurisprudence of Justinian was a powerful solvent of those barbaric principles that inhered in the laws in relation to women throughout Europe. The legal status of woman was read rather by the light of the canon law. This was inevitable since the canon law nearly everywhere prevailed. In some of the French provinces married women obtained all the powers of dealing with property which Roman jurisprudence had allowed and the local law was largely followed by the Code Napoleon. Although the Scottish law, which shows such a scrupulous deference to the doctrines of the Roman jurisconsults, has been very slow in its progress in mitigating the disabilities of married women.

A reactionary movement is now taking place. The tendency of legislation is to give married women the power of acquiring, holding and managing their own property.

LIABILITY OF TAX COLLECTOR FOR FALSE

RETURN.

MICHIGAN SUPREME COURT, APRIL 21, 1880.

RAYNSFORD V. PHELPS.

A tax collector who held a warrant for taxes assessed upon land which was mortgaged to plaintiff made a false return that there were no goods upon such land to satisfy ho tax, whereby it became a lien on the lands to plaintiff's loss, he being obliged to redeem at the ta sale of the land. Held, that the tax collector was liable to plaintiff for the amount of such loss.

CTION for loss resulting from a false return by a tax collector. The opinion states the facts. Defendant had judgment on demurrer to a complaint below.

C. G. & W. W. Hyde, for plaintiff in error. Simonds & Fletcher, for defendant in error. COOLEY, J. It was decided in Royoming v. Goodchild, 2 W. Bl. 906, that a public officer having minis terial duties to perform, in which a private individual has a special and direct interest, is liable to such individual for any injury sustained by him in consequence of the failure to perform such duties. It was an officer connected with the postal service who was held liable in that case, and the decision is followed in this country. Teal v. Filton, 1N. Y. 537; S. C., in error, 12 How. 284. Election officers have been held liable on the same ground (Ashby v. White, Lord Raym. 938; 1

Salk. 19; Lincoln v. Hapgood, 11 Mass. 350; Jeffries v. Ankeny, 11 Ohio, 372); and so have commissioners of highways (Hover v. Barkhoof, 44 N. Y. 113; Hathaway v. Hinton, 1 Jones [N. C.] 243); and so have inspectors of provisions (Hayes v. Porter, 22 Me. 371 Mickerson v. Thompson, 33 Me. 433; Tardes v. Bozant, 1 La. Ann. 199); and so have tax and other officers (Army v. Supervisors, 11 Wall. 136; Tracy v. Swartwout, 10 Pet. 80; Brown v. Lester, 21 Miss. 392; Bolan v. Williamson, 1 Brev. 181). It is immaterial that the duty is one primarily imposed on public grounds, and therefore primarily a duty owing to the public. The right of action springs from the fact that the private individual receives a special and peculiar injury from the neglect in performance, which it was in part the purpose of the law to protect him against.

It is also immaterial that a failure in performance is made by the law a penal offense. Hayes v. Porter, 22 Me. 371. The exceptions are of those cases in which the functions of the office are judicial, or partake of the judicial. Sage v. Laurain, 19 Mich. 137; Goelchens v. Mattheroson, 61 N. Y. 420; Bevard v. Hoffman, 18 Md. 479; Harrington v. Commissioners, etc., 2 McCord, 400. But even in these cases the officer is responsible if he acts maliciously. Gordon v. Farran, 2 Doug. (Mich.) 411; Bennett v. Fulmer, 49 Penn. 82, 157; Gregory v. Brooks, 37 Conn. 365; Stichfadden v. Lipprick, 49 Ill. 286.

The principle is as familiar as it is sound. It is nevertheless insisted that the present case is not within it. Tax collectors, it is truly said, are chosen because the machinery of government must be kept in motion, and to that end it is essential that the public revenue should be collected. They are chosen, therefore, and their duties imposed on public grounds, not on private. If through any negligence on the collector's part, the State loses a portion of its dues, the officer is responsible to the State for the loss; but it is denied that he owes any duty to individuals, except to abstain, as every citizen must, from committing trespasses on their rights. The question of negligence, in the performance of public duties, must always concern the public good.

But conceding that the law creates the office of collector in order that public revenues may be collected, it does not follow that it leaves that officer at liberty to disregard private interests in their collection. When the law prescribes who shall be liable for the payment of taxes, and whose property may be levied upon therefor, it at the same time, by implication, forbids the officer to seize upon the property of others, or by act or omission, make the tax a charge upon such property. The implied prohibition creates a duty in favor of the person whose property is the subject of it, and he is at liberty to buy and sell in reliance upon the duty being performed. He has a right to understand that the officer is commissioned by the law to act only with due respect to the rights of individuals, and that if he acts otherwise and causes special injury, he disobeys his commission, and is not within the protection the commission might otherwise give.

The plaintiff owned a mortgage on lands on which a tax was assessed for the year 1874. A warrant was issued for the collection of this tax, and was placed in the hands of defendant for service. The plaintiff's case is that during the life of this warrant, and while the defendant held it, there was personal property upon the land, belonging to one French, who had purchased the equity of redemption after the first Monday of May, and before the first Monday of December, of that year, from which it was the duty of defendant, under the express provisions of the statute, to make collection. Comp. Laws, § 1006. Instead of performing this duty he falsely made return of no goods, whereby the tax became established as a lien upon the land, and the land was sold for its satisfaction. Mean

time, the plaintiff had foreclosed his mortgage and became owner of the lands, and was compelled to redeem from the tax sale.

Is the plaintiff wronged by this false return? We think he is. It was his legal right that the goods of French should be sold to satisfy the tax, and the law always intends that legal rights shall be respected. Moreover, he alone suffered injury from the false return. The public suffered nothing, for the lien on the land remained and was enforced, and the only injurious consequence of the misfeasance in public office was that the tax was collected from one man, when the command of the law was that it should be collected from another.

If there is no wrong without a remedy, then it would seem that this action should be supported, for the defendant is the only wrong-doer. It may be suggested that the plaintiff might have a cause of action against French for money paid to his use, but this is not clear. The statute does not make the purchaser of land, under such circumstances, personally liable; it only renders his property subject to seizure during the life of the tax warrant. Payment by defendant did not release the property of French, for it was released by the neglect of the officer which is complained of in this suit. The general rule is that taxes can only be enforced by means of the statutory remedies. Crapo v. Stetson, 8 Metc. 393; Shaw v. Pichett, 26 Vt. 482; Camden v. Allen, 26 N. J. 399, Packard v. Tisdale, 50 Me. 376; Carondelet v. Picott, 38 Mo. 125. But whether or not the rule applies here is immaterial, as this action, in either case, is well grounded in common law principles.

The judgment must be reversed, with costs, and the cause remanded, with leave to defendant to withdraw his demurrer and plead, on payment of the costs of demurrer.

(The other justices concur.)

BEQUEST OF BONDS DOES NOT INCLUDE OVERDUE COUPONS.

NEW YORK COURT OF COMMON PLEAS, SEPTEMBER 16, 1880.

MCGRATH V. VAN STAVOREN.

A testator gave to his niece specified railway bonds; held, that interest coupons on the bonds, due at the time of testator's death, did not pass to the niece.

THIS action was brought by Emma H. McGrath and others against Emma Van Stavoren and others for the construction of some of the clauses of the will of George W. Van Stavoren, who died in 1861. To his niece the plaintiff named, testator, gave two $1,000 Erie Railway bonds, on which, at the time of his death, there were undetached interest coupons due to the amount of $280. The plaintiffs claimed that this sum belonged to the legatee. The court gave judgment for the defendants.

DALY, C. J. The coupons attached to the bond were due and payable at the time of the death of the testator and did not pass with the bond to the legatee, but form a part of the coupons of the estate. De Gendre v. Kent, L. R., 4 Eq. 283-5; Wright v. Tucker, 1 Johns. & Hem. 266; Brundap v. Brundap, 60 N. Y. 544, 551; Lock v. Venables, 27 Beav. 598; In re Rogers, 1 Drew & Small. 338; Paton v. Shephard, 10 Sim. 186; Earp's Will, 1 Parsons' Eq. (Penn.) 453, 464-5; Spear v. Hart, 3 Robertson, 420.

"Specific legacies," says Williams, are considered as separated from the general estate, and appropriated at the time of the testator's death, and consequently, from that period, whatever proceeds accrue upon

them, and nothing more or less, belongs to the legatee." 2 Williams on Executors (4th Am. ed.), 1221. And it is equally an established rule that the bequest of a bond or other security does not pass the interest which has accrued and is payable on the security, unless there is something super-added to the bequest to show that such was the intention. Roberts v. Kuffin, 2 Atk. 112; Gibbon v. Gibbon, 13 C. B. (4 J. Scott) 217, per Maule, J.; 1 Roper on Legacies (2d Am. ed.), 285; Floyd on Wills, 227-8.

The cases suggested-of a bond with coupons attached, given mortis causa (Walsh v. Sexton, 55 Barb. 251), or the bequest of a promissory note (Willard, J., in Tifft v. Porter, 8 N. Y. 516) - are not analogous. The gift mortis causa of a bond, with coupons attached which were then due and payable, shows by the delivery of the bond with the coupons the intention that the donee is to have both the bond and the interest that is due on the coupons. But no such intent is inferable by the bequest of a bond in a will, where nothing is said about interest which is then due upon coupons attached to the bond or which may become due at the time of the testator's death, and in the case of a promissory note drawing interest, the interest is payable, together with the principal, when the note becomes due, and necessarily passes, as incident of the note, by the transfer of a note to another.

CONFLICT OF LAW-LEGITIMACY OF CHILDREN BORN ABROAD.

ENGLISH HIGH COURT OF JUSTICE, CHANCERY DIVISION, JUNE 12, 1880.

Re GOODMAN'S TRUSTS, 43 L. T. Rep. (N. S.) 14. A child, illegitimate according to English law, but who has been, according to the laws of its domicile and of its parents' domicile, legitimized by a post-natal marriage, cannot take under the statute of distributions as one of the next of kin of an intestate dying domiciled in England. The word "children," in the statute of distributions means children according to the English law.

PETITION for payment out of court.

This was a petition for the distribution amongst the next of kin of Rachel Goodman, who died domiciled in England in 1878, of a lapsed share of residue paid into court by her executors under the Trustee Relief Act.

The question raised by the petition was, whether a respondent, Mrs. Pieret, who was illegitimate according to the law of England, but claimed to be legitimate and therefore one of the next of kin, on the ground that she had been legitimized according to the law of Holland by her parents' post-natal marriage, could take a share in the distribution of the fund.

The facts were as follows: The testatrix died in 1878, having bequeathed a third part of her residuary personal estate to a niece who had died during the testatrix's life-time. At the date of the death of the testatrix her sole relatives were the children of her two deceased brothers, Isaac and Leyon Goodman; of Isaac there were four children living, and the children of Leyon had formed the subject of a special inquiry directed in a suit of Goodman v. Goodman, 3 Gif. 643. That suit was a suit for the administration of the estate of Henry Goodman, the father of the present testatrix, who by his will bequeathed a share of his residue to the "children of Leyon Goodman."

By the chief clerk's certificate in Goodman v. Goodman, it was found that Leyon Goodman had three children by Charlotte Smith, born respectively in 1815, 1818, and 1820, in London, and that in 1820 he left England with the intention of permanently residing

abroad, and went to Amsterdam, whither he was followed by Charlotte Smith and the three children, and that he resided there until 1826, and from that date until that of his death in 1832, he resided in Brussels; that whilst at Amsterdam he had by Charlotte Smith another child born in 1821 (afterward Mrs. Pieret), and that after her birth in 1822 he married Charlotte Smith at Amsterdam, and by the act of register of marriage it was declared that the parents intended to legitimize all the children before mentioned, and that after such marriage there was a fifth child born (afterward Mrs. Denis). It was also set forth that by the evidence taken the four children born before the marriage were, according to the law of Holland, legitimate. By an order of Stuart, V. C., made July, 1862, in Goodman v. Goodman, the chief clerk's certificate was confirmed, and it was declared that, it appearing that Leyon Goodman was domiciled in Holland at the time of the birth of Madamo Pieret, she was entitled to an equal share with her sister, Mrs. Denis, in the legacy bequeathed by the will of John Goodman to the children of Leyon Goodman.

Mrs. Pieret now claimed to share with the four children of Isaac Goodman, according to the statute of distributions, in the lapsed share bequeathed by Rachel Goodman's will, and the amount was paid into court by the trustees of her will.

JESSEL, M. R., said that he agreed with the view taken by Kindersley, V. C., in Re Wilson's Trusts, L. R., 1 Eq. 247; 13 L. T. Rep. 576, as to Goodman v. Goodman, 3 Gif. 643; 6 L. T. Rep. (N. S.) 641, which was only a decision that Leyon Goodman was domiciled in the Netherlands, and continued: But then there is the case of Boyes v. Bedale, 1 H. & M. 79; 10 L. T. Rep. (N. S.) 131, which came before Lord Hatherley when vice-chancellor. It was decided in that case that the child or children of a person domiciled in England must mean the children according to English law, as distinguished from the children born before marriage and which were not legitimate according to English law. But the vice-chancellor said more than that. This is what he said: "I take it that the language of the statute of distributions would be dealt with in the same way. If an intestate dies domiciled in England, the division of his property is governed throughout by English law, and no person could take by representation under that statute, unless legitimate by the law of England." That is no doubt only a dictum, but it is a dictum entitled to very great respect. If I had any doubt upon this subject in this case I should follow the dictum, but I feel myself no doubt whatever. The words of the [statute under which these parties must come are "brother's and sister's children." When an intestate dies without children you go to the next of kin, but you must not carry in representation beyond brother and sister, and consequently this lady must prove herself to be a brother or sister to take at all, and the question is, whether the word does not mean exactly what Wood, V. C., said— children according to the law of England. I think that that is the meaning. Then I have in addition to that the authority of Kindersley, V. C., in Re Wilson's Trusts, where he entirely agrees with Boyes v. Bedale, and decides accordingly. He says: "Now the will being a will made in England by an Englishman domiciled in England, must be construed according to the law of England. Every term in it must receive that interpretation which belongs to it according to English law. What is the interpretation which the law of England gives to the term children?' Undoubtedly children lawfully begotten, ex justis nuptiis procreatos, unless indeed there be something in the context which satisfies the court that the testator meant to use the expression in a different sense." Therefore he quite agrees that under the particular