her life, and after her decease to her children equally to be divided between them during their lives, and after the decease of the survivor, to go to his nephew E. Walker and two nieces S. B. Walker and E. Walker equally between them. It was objected unsuccessfully that the gift to the nephews and nieces was void for remoteness. Malins V.-C. (at p. 213) is reported as saying: 'There is no objection to a gift to unborn children for life and then to an ascertained person, provided the vesting is not postponed... Property may be given by will or secured by settlement to an unborn person for life, or to several unborn persons successively for life, with remainders over, provided that the vesting of the remainders, or the ascertainment of those who are to take in remainder, be not postponed till after the death of such unborn person or persons.' This is the view taken by Professor Gray, and, as he points out, it has been generally adopted by the American Courts, with the exception of the Courts of North Carolina. It is also supported by Williams in the passage already quoted. It is not clear what view of the matter was taken by Fearne. He evidently leant towards the doctrine of a trust binding on the person having the life interest. 'In such cases,' he says, 'if the first taker does not acquire the whole legal interest, upon the delivery from the executors, where is the obstacle to considering him as acquiring only a right to the use or occupation, according to the limited duration of his interest therein; and that the executor should retain the absolute property in trust for him and the legatees over; so as to preserve the right of such ulterior legatees to the possession when their interests are to commence? Or if the whole legal interest be acquired from the executors, on their assent to the possession of the first taker; why may not he be considered as taking it in trust for the ulterior legatees, subject to his own anterior beneficial interest therein? Either of these constructions would clearly warrant the interposition of the Court, even in cases where the disposition was immediate and unattended with an express trust' (Contingent Remainders, P. 414). It must be admitted, on the other hand, that the balance of authority among modern text-writers is in favour of the doctrine which regards the ulterior interest as executory. Thus Jarman (Wills, 5th ed., vol. i, p. 838) says, 'No remainder can be limited in real and personal chattels; every future bequest of which, therefore, whether preceded by a partial gift or not, is in its nature executory,' reproducing the substance of Butler's note in Fearne (p. 401) which he cites as his authority. Preston takes the same view and is probably responsible for the currency which it has obtained. He says, 'On all future interests arising from dispositions of personal and chattel-real property, it is observable that they cannot, under any of the modes of gift which have been mentioned, give a remainder in the proper sense of the term. They give interests which are in the nature only of remainders. Even in those instances in which one limitation is to wait for effect, till the interest which passes by another limitation is determined; as, to A for life, and after his decease to B; B has no remainder properly so termed. The whole estate is in A, till his interest determines by his death' (Abstracts of Title, vol. ii, p. 144). Lewis, in the passage already quoted, takes the same view. The only case, however, in which the doctrine of the executory bequest has been adopted by the Courts with reference to personal chattels appears to be that of Re Tritton, ex parte Singleton (1889) 6 Mor. 250. In that case, the testator gave to his wife 'the right of possession and enjoyment' of all his pictures during her life (if she should so desire), and, subject to his wife's interest, he bequeathed all his said pictures to his son, H. J. Tritton, for his own absolute use and benefit. The son, during the widow's life, assigned his interest under his father's will and subsequently became bankrupt. The trustee in bankruptcy claimed, contending that the assignment was a bill of sale and void as not having been registered under the Bills of Sale Acts. Mr. Justice Wills held the son's interest to be executory, and not within the Bills of Sale Acts as being a chose in action. In giving judgment he said, 'It seems to me clear upon the authorities that you cannot have life estates and remainders out of personal chattels, and that the interest which this lady took is definite and it comes first, and entitles her to the enjoyment and possession of these things-that is, to the property in these things during her lifetime. It seems to me that the interest of the son was an executory bequest, which creates no present or vested interest, and which, if the mother survived him, would never come into operation.' According to the report, the only authorities in point which appear to have been cited by counsel were the passage in Jarman already referred to and Manning's case. As Professor Gray suggests (Rule against Perpetuities, § 86 a) the application of this doctrine to personal chattels is probably due to overlooking the distinction between chattels real and chattels personal. There is a legal presumption that a life estate is larger than any term of years, but there is no legal presumption that an interest for life in (say) a picture will last longer than the picture itself. The reason given by Banks C. J. for allowing future interests in heirlooms by the continuance of them' is equally applicable to all personal chattels of a permanent nature. · Moreover, a case which came before the Courts in 1883, Re Percy, Percy v. Percy (24 Ch. D. 616), appears directly opposed to the application of the doctrine of executory bequests to personal chattels. The testator, H. J. Percy, bequeathed £10,000 to his wife, 'afterwards the sum to go to the understated residuary legatee, Edward Josceline.' It was held that the testator having made an absolute gift to his wife, the Court could not give effect to a further disposition of the legacy over to another. But the doctrine in question is based on the assumption that the first taker acquires the absolute property and that it shifts over on his or her death; and, if it is to be accepted as correct, then, in cases in which there is an ulterior disposition, it can make no possible difference whether the first gift is absolute or expressly limited to the first taker for life. On the whole, a survey of the cases appears to lead to the conclusion that the doctrine of the modern textbooks that all ulterior interests in personalty are executory is erroneous, and that in the case of a gift of personal chattels to A for life and then to B, in a will (and, perhaps, in a deed also), A is to be regarded as a usufructuary and the property vests at once in B. DAVID T. OLIVER. DOMICILE IN COUNTRIES GRANTING EXTERRITORIAL PRIVILEGES TO FOREIGNERS. CAN (AN a person acquire a domicile in a place where, by virtue of capitulations, treaties, law, or usage, he enjoys exemption from the operation of the ordinary local laws? In its broadest aspect this question involves a consideration of the domicile of diplomatic agents and their suites. It is proposed, however, to limit the present discussion to the acquisition of domicile in countries such as Turkey and China, where citizens or subjects of certain states are governed by their own national law. The power to acquire a domicile in such countries was denied by Mr. Justice Chitty in the much-discussed case of Tootal's Trusts1. A contrary view is taken by Judge Wilfley in a case recently decided by the United States Court for China 2. The increasing number of persons of British and American nationality permanently residing in the Orient makes the question one of considerable practical importance. The English view, it is submitted, is based on erroneous conceptions of domicile and exterritoriality. It is supported by the authority of a single case, has been vigorously attacked, and may yet be repudiated by Courts not bound by the precedent. In the case of The Indian Chief Lord Stowell considered the question of the acquisition of a commercial domicile in the East, and held that the national character of a person engaged in trade in the Orient under the protection of a European association or factory was determined by the character of the association or factory. The case was one relating to enemy character as determined by residence and protection, and did not involve the question of ordinary domicile. Stress was laid on the strong presumption against the acquisition of a domicile in non-Christian and barbarous countries, but there is nothing in the language of Lord Stowell showing that he meant to exclude altogether the possibility of the acquisition of such a domicile. During the rule of the East India Company in India the English courts were frequently called upon to decide whether persons of 1 (1883) 23 Ch. D. 532; 11 Clunet, Jour. de dr. int. privé (1884), 85. 2 In re Allen's Will. United States Court for China, Shanghai Term, August 16, 1907. Pamphlet. (Not officially reported.) (1800) 3 C. Rob. Adm. 12. Cp. The Danous (1802) 4 C. Rob. Adm. 255, note b. British nationality in the service of the Company could acquire a domicile in India. As early as 1790 it was determined that a person whose domicile of origin was Scotland, and who had been an officer in the army of the Company, might be considered as having obtained an Indian, or, as it was termed, an Anglo-Indian domicile. This Anglo-Indian domicile continued even while the person was in his domicile of origin on leave, because he remained subject to the orders of the Company, and might be called upon to return to India 2. The cases admit that a person though remaining in the service of the Company might, by returning to England or Scotland on leave, regain his domicile of origin 3. But such a person could not obtain a domicile of choice in a foreign country, such domicile being inconsistent with his duties to the Company 4. The doctrine of Anglo-Indian domicile was extended to cases of persons not in the service of the Company who had gone to India for the purpose of carrying on their private business, Vice-Chancellor Kindersley rightly observing that there was no distinction between the two classes of cases 5. The doctrine was held not to apply to the case of persons in the service of the British Crown who were ordered to India, on the ground that their residence in India lacked the permanency that characterized service in the East India Company ". The distinction appears to be a sound one, and, if correct, supports the contention of Sir William Rattigan in favour of an Indian domicile for persons in the present East Indian Civil Service. After the establishment of direct British rule in India, the cases on Anglo-Indian domicile ceased to be of practical importance, except as to persons who had obtained such a domicile prior to that time. The doctrine has been declared an anomalous one", and has been sought to be explained by the peculiar political position of the East India Company. Says Turner L. J. in one of the leading cases 9: 'The government of the East India Company was in a high degree, if not wholly, a separate and independent government, foreign to the government of this country, and it may well have been thought that persons who had covenanted obligations with such a government for services abroad could not reasonably be considered to have 2 1 Bruce v. Bruce (1790) a B. & P. 229; Forbes v. Forbes (1854) 23 L. J. (Ch.) 724; Hepburn v. Skerting (1861) 9 W. R. 764. 2 Munroe v. Douglas (1820) 5 Madd. 379; Craigie v. Lewin (1843) 3 Curt. 435. 3 Attorney-General v. Pottinger (1861) 6 H. & N. 733. ♦ Hodgson v. de Beauchesne (1858) 12 Moo. P. C. 285. 5 Attorney-General v. Fitzgerald (1856) 25 L. J. (Ch.) 743; Cockrell v. Cockrell (1856) 25 L. J. (Ch.) 730; Allardice v. Onslow (1864) 33 L. J. (Ch.) 434; Commissioners of Inland Revenue v. Gordon's Executors, 12 Sess. Cas. 657. Attorney-General v. Napier (1851) 6 Exch. 217. 7 Private International Law, p. 39. Cp. Ex parte Cunningham (1884) 13 Q. B. D. 418; and often. |