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Scottish Court of Session Decisions >>
Helen Henderson v John M'Lean and Others. [1778] Mor 4615 (13 January 1778)
URL: http://www.bailii.org/scot/cases/ScotCS/1778/Mor1104615-111.html Cite as:
[1778] Mor 4615
A Scotsman in India executed a settlement, bequeathing his whole estate to his father, a brother, and sister. Found, that his widow had no claim against the legatees for a third of the moveables as her jus relictæ.
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John M'Lean, a captain of artillery in the East India Company's service, having been mortally wounded in an engagement at Tingarecotta, in the Mogul's country, immediately before his death, executed a will, by which he bequeathed his whole estate to his father, a brother, and sister, in certain proportions. The will was proved, in common form, in the Mayor's court of Madrass. The executors recovered the funds, which were all in India, and remitted them to the legatees in Scotland. Afterwards, Helen Henderson, M'Lean's widow brought an action against the legatees, claiming a third part of the defunct's moveables, as her jus relictæ.
The same point was argued in this cause that was argued in the above, Whether the law of the defunct's domicil, or of the place where the effects were situated, regulates the succession in these effects?
A separate plea maintained for the pursuer was, that supposing the lex loci regulates the succession of moveables, no lex loci is here ascertained to exclude the law of Scotland. It was said, that the law of England does not extend to the Company's territory on the Corromandel coast; but, although the English law reached the territory of Madrass, Tingarecotta, where M'Lean died, being in the Mogul's country, the succession to such personal effects as he had with him there, would be regulated by the law of that country, if it were known. As it is not, and the effects are now in the hands of the legatees residing in Scotland, the Court has jurisdiction over them; and the widow's claim to her jus relictæ, by the law of Scotland, ought to be sustained.
Answered for the legatees; The effects were recovered, and the legatees are in possession by authority of the law of the place where the effects were situated at the time of the defunct's death; and, therefore, no claim of succession to them, on the law of this country, can be sustained against the legatees. Had they been brought here, without authority, it is not the law of Scotland, but of the country where they were at the time of the defunct's death, that would regulate the succession to them.
The British residing in the East Indies, whether in a civil or military capacity, are under the law of England; and every question as to their persons or effects, must be governed by that law, as received in the English courts there.
Captain M'Lean died upon an expedition into an enemy's country. The law of it could not regulate his succession while in the British camp.
The Court found, ‘That the pursuer has no claim to a jus relictæ out of the estate and effects of the said Captain M'Lean, conveyed by the said will.
For the Pursuer, M'Conochie, Blair.Alt. Crosbie, Solicitor-General, Rae.
Fol. Dic. v. 3. p. 223. Fac. Col. No 2. p. 4.
