Macdonald v Macdonald's Executrix

A Scottish claim of legitim extends only to the deceased parent's movable estate. The law of the place where an asset is situated determines whether it is movable or immovable. The law of the deceased's domicile then governs succession to movables, while the law of the place governs succession to immovables.

Foreign land remains immovable even where local legislation vests it in personal representatives for administration or provides the same beneficial succession as for personal property. It therefore falls outside the legitim fund. Interests connected with land, such as mortgages and leaseholds, require separate classification under the law of their situation.

A domiciled Scotsman died leaving land in British Columbia, Manitoba and Saskatchewan. His will appointed his widow executrix and universal legatee. His daughter claimed legitim and contended that the Canadian land should be included in the fund because local law vested it in personal representatives and treated its devolution similarly to personal estate.

The Lord Ordinary allowed proof of Canadian law before answer. The Second Division, by a majority, recalled that interlocutor and held the daughter's averments irrelevant: 1931 SC 647. On appeal, the parties agreed a minute stating the relevant Canadian law and renounced further proof.

The central issue was whether the local rules governing administration and intestate devolution changed the land's immovable character so that its value entered the Scottish legitim fund.

1. Appeal dismissed unanimously. Lord Tomlin delivered the leading speech. Lord Warrington of Clyffe and Lord Thankerton concurred, and Lord Macmillan and Lord Wright were stated to concur. The Canadian land did not form part of the fund from which legitim was payable.
2. Per Lord Tomlin and Lord Thankerton, legitim is a legal right of succession confined to the movable estate of the deceased parent as it stood at death. It cannot extend to foreign assets which do not devolve under the law of the deceased's domicile.
3. Per Lord Tomlin and Lord Thankerton, the law of the place where an asset is situated determines its character as movable or immovable. Once that character is established, succession to movables is governed by the law of the domicile, while succession to immovables is governed by the law of their situation. The characterisation question is distinct from the question of who succeeds to the property.
4. Land is immovable by nature. Local provisions vesting land in personal representatives for administration, or making the beneficial devolution of real and personal estate coincide on intestacy, do not turn land into movable property. Each Canadian province retained freedom of testamentary disposition and continued to regulate succession to land by its own law. The appellant's reliance on the local rules of administration and intestate devolution was therefore misplaced.
5. Per Lord Tomlin and Lord Thankerton, mortgages, leaseholds and similar interests linked with land are not necessarily immovable by nature. Their character must be determined under the law of their situation. If classified as immovable, they devolve under that law and cannot be subjected to Scottish legitim.
6. Lord Tomlin doubted whether Marquis of Breadalbane's Trustees and Monteith v Monteith's Trustees had been correctly decided, because they may have proceeded on insufficient information about English law. Lord Thankerton agreed that fuller consideration of English law might produce a different result if the questions recurred. The underlying choice-of-law principle was not rejected.

The appeal was dismissed with costs.

1. House of Lords: Dismissed the daughter's appeal unanimously and affirmed the Second Division's rejection of her claim concerning the Canadian land.
2. Second Division of the Court of Session: By a majority, the Lord Justice-Clerk dissenting, recalled the Lord Ordinary's interlocutor and held the averments of Canadian law irrelevant: 1931 SC 647.
3. Lord Ordinary: Lord Murray allowed proof before answer concerning the law of British Columbia, Manitoba and Saskatchewan, limited to the landed estate: 1931 SC 647.