the £10 in the defences, and expenses incurred, the pursuer wrote, on 5th January 1836: "If Mr Davidson will pay me one hundred guineas, with the expenses of litigation already incurred, I will discharge him from the suit ;" and in another letter of 15th January: "In answer to your note of yesterday, for the amount of the expenses incurred," "I have to say, that the expenses incurred up to this date amount to £22. 10s." The pursuer thus rejected an offer of £30 odds, and refused to take less than 100 guineas, and this before the calling of the summons in Court. The defender was therefore obliged to prepare for trial; and as the pursuer put him unnecessarily to expense, and rejected such a tender, and at the very last stage he chose to drop proceedings, the defender was fairly entitled to his expenses, both previous and subsequent to the tender.

The Court, without hearing the pursuer's counsel, "decern and ordain the defender to make payment to the pursuer of the agreed-on sum of £10 Sterling: Find the pursuer liable in expenses to the defender: Appoint an account," &c. Act. P. Robertson; James Rutherford, W.S., Agent.—Alt. D. M'Neill; James Marshall, S.S.C., Agent.-Jury Clerk.— [G.D.F.]

22d December 1836. SECOND DIVISION.-(J.D.M.)

No. 104. ANDREW BUCHANAN and MANDATORY, in room of MRS JEAN BUCHANAN and HUSBAND, Pursuers, v. G. and R. DENNISTOUN & COMPANY, and their Trustees, Defenders.

Jury Trial-Evidence-Mode of Proof-A mercantile company having been found liable under an obligation to guarantee a bill, on the ground of their not having given notice of a fall in the value of the stock of a partner, the obligant in the bill, at a particular date, in so far as the creditor might be able to instruct that payment would have been recovered from the principal debtor, had the notice been duly given; and the parties being at issue in regard to the value of the principal's estate at the date when such notice should have been given- The Court, with a view to a decision, held the case not fit for jury trial, but for a proof on commission.

Sequel of case reported Vol. VIII. p. 387, (29th May 1835). The Court having adhered to the judgment of the Lord Ordinary, which

"finds no ground in law on which it can be inferred that, in consequence merely of the said failure to implement their obligation, the said Company became directly and absolutely liable to pay to the pursuer the sum contained in the promissory-note, to which the said guarantee related, or interest thereon; but finds, that they did become liable to make payment to the pursuer of the said sum and interest, in so far as it may appear reasonable to believe that she would, in case of receiving due notice, in terms of the letter of the said 30th April (1821), have been able to secure payment thereof, either out of James Buchanan's share in the Company's stock or his other funds; but finds no sufficiently precise averments, or sufficient admissions in process, to enable the Lord Ordinary to decide on that subject."

The Lord Ordinary, to whom the cause was subsequently remitted, appointed a condescendence and answers to be put in.

Parties being at issue in regard to the value of Mr Buchanan's estate at the date when the notice of the fall in the value of his stock in the concern of Dennistoun and Company ought to have been given, the Lord

Ordinary remitted the cause to the jury roll. Against this interlocutor a reclaiming note was presented. On advising, their Lordships unanimously agreed in thinking the case unfit for trial by jury, and pronounced the following interlocutor:

"Find that the matters now in dispute between the parties are not proper for being tried by a jury, and therefore remit to the Lord Ordinary, with instructions to retransmit the case to his Court of Session roll; and in regard to such farther proof as may be offered on either side, to appoint the same to be taken by commission."

Lord Ordinary, Jeffrey.-Act. Dean of Faculty (Hope), Neaves; D. Cleghorn, W.S., Agent.-Alt. Ivory; R. Welsh, S.S.C., Agent. Mr Thomson, Clerk.-[J.D.M.]

23d December 1836.

FIRST DIVISION.-(G.D.F.)

No. 105.-DAME JANE CAMPBELL MUNRO & OTHERS, Executors and Trustees of the late Major-General Sir Thomas Munro, K. C.B., Raisers, v. SIR THOMAS MUNRO and CAMPBELL MUNRO, Claimants.

Entail

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Heir-Trust-Deed-Election- Collation-Stat. 1681 -A testator, by a deed executed in England, which was incapable of carrying Scotch heritage, conveyed in trust to certain parties the residue of his real and personal property, wherever situated, to be, along with such part of the residue as shall not consist of real or heritable estates in Scotland," laid out in purchasing heritable property there, and, with any heritable estate the testator should die seized of in this country, entailed on his eldest son, and a series of heirs therein named; and in the event of failure of issue of the body, it was declared, that such estates in Scotland as I shall die seized of," were to be entailed on a nephew, and a series of heirs mentioned in the deed; and, after the execution of the deed, the testator invested money on heritable bonds-Held (in conformity with opinions of English counsel), (1.) That the heir was entitled to the free income of the heritable and moveable estate, whether invested in land or not, from twelve months after the father's death: (2.) That he could not, as heir-atlaw, competently take up in fee-simple the heritage in Scotland, and at the same time take benefit by the provisions of the trustdeed, which conferred certain benefits on him, but must be put to his election—with the alternative, if he should abide by the trust-deed, he should be bound to make up titles to, and convey to the trustees, at their expense, the Scotch heritage, for the purposes of the trust: (3.) That the trustees were not bound, by the terms of the trust-deed, to settle heritable bonds belonging to the testator on the heirs named in the destination of the trust-deed, but that they were entitled to uplift the same, and invest them in land, for the purpose of being entailed, in terms of the deed of trust.

The late Major-Gen. Sir Thomas Munro, H. E. I. C. S., died at Madras on 6th July 1827. He was by birth a Scotchman, but was resident in India at the time of his death. He had been married to Miss Jane Campbell in Scotland, in 1814, previous to which a contract of marriage was entered into between the parties. In December 1819, he executed a last will and settlement in London, just before leaving Britain for India, by which deed he conveyed his whole estates to his wife, and certain others as trustees, for the purposes therein mentioned, and appointed them his " executors of this my said last will and testament, and guardians of my said infant son, Thomas Munro, and of any child or children who may hereafter be born unto me:" the general object of the deed being to confirm the provisions contained in the marriage-con

tract, and to provide for the investment of the residue of his fortune in heritable property in Scotland, under the fetters of strict entail. The settlement, which was prepared and executed in England, was not conceived in the correct technical phraseology of a Scotch deed, and was not executed or attested in terms of the Act 1681. After certain bequests, the deed proceeded : "I, the said testator, Sir Thomas Munro, do, by this my last will and testament, give, leave, assign, dispone, devise and bequeath unto my executors herein-after named," "all the rest, residue and remainder of my estates, real and personal, lands and grounds, houses, tenements, and hereditaments, monies, and securities for money, both of an heritable and personal nature, goods, chattels and effects, shares and interests in the funds of Government, and in the stocks or funds of any public or other company or companies, of what nature or kind, or natures or kinds soever such real and personal estates and other premises may be, and wheresoever the same may be situate and existing, and howsoever described, with all the appurtenances thereunto belonging, and all the evidences, title-deeds, and muniments of title, of and relating to the same, to hold, receive, and take the same, real and personal estates and premises, appurtenances, and other matters, unto them, my said executors, and the survivors and survivor of them, his heirs, or executors or administrators, according to the nature of the property and estate, for ever, upon trust, nevertheless, to and for the use and benefit of my infant son, Thomas Munro, should he survive me, for the use of my said son; and such of my said residuary property as shall not consist of real or heritable estates in Scotland, to be laid out in the purchase of lands, and other real or heritable property or estates situate in Scotland, in the name of my said son Thomas Munro, and to be, together with such real or heritable estates in Scotland as I shall be seized or possessed of at the time of my decease, strictly entailed upon, and for and unto the use of my said son, and the heirs-male of his body lawfully to be begotten, and in case of failure of such heirs-male of the body of my said son, then upon and unto the heirs-female of the body of my said son, lawfully to be begotten."

The deed then proceeded with a destination in favour of the second son and his heirs, and on their failure, to a series of other heirs. The will made provision for the maintenance of younger children, at the discretion of the executors, till they reached the age of twenty-one. It excluded the succession of heirsportioners; and in the event of failure of issue of his body, it was declared, that "such estates in Scotland as I shall die seized of, as aforesaid, and also such other estates there as shall be purchased, as aforesaid," were to be entailed on a nephew, John Munro, and his heirsmale and female, in a certain order, and on their failure, on the testator's brother Alexander, and his heirs. It was further provided:

"But in case my said son, and any other child or children who may be born unto me, shall predecease me, or die before attaining the age or ages of twenty-one years, or being a daughter or daughters, before attaining such age or ages, or before being married, then, and in such last-mentioned event, my will is, and I do direct that my said executors shall be and stand possessed of my said residuary, real and personal estates, upon trust, to and for the use of my said nephew, John Munro, and that such parts of my said residuary estates as shall not consist of real or heritable property in Scotland, shall be laid out in the purchase of lands and other real or heritable property and estates, situate in Scotland, aforesaid, in the name of the said John Munro, or, in the event of his decease, leaving issue, in the name of his heir-male, or heir-female herein after mentioned, as the case may be, and shall be, together with such real or heritable estates in Scotland as I shall be seized and possessed of at the time of my decease, strictly entailed upon, and for and unto, and unto the use and uses of the said John Munro, and the heirs-male of his

body, and on failure of such heirs-male, then upon and unto, and to and for the use of the heirs-female of his body, and in default of issue of the body of the said John Munro, then upon and for, and unto the use and uses of my said brother, Alexander Munro, and the heirs-male of his body, and on failure of such last mentioned heirs-male, then upon and unto the heirsfemale of the body of the said Alexander Munro, and in default of such issue of the said Alexander Munro, then upon and unto his right lawful heirs, and in the cases or events aforesaid of my said son, and such my future child and children, if any, predeceasing me, or dying before his or their age or ages of twenty-one years, or being a daughter or daughters before marriage, and of my said nephew, John Munro, dying, whether before or after me, without issue, previously to his or their becoming possessed of any beneficial interest in my said residuary estates, under and by virtue of this my last will and testament, by such purchase of land and heritable estates in Scotland, in his or their name or names, as aforesaid, then and in such last mentioned events, my mind and will are, and I do direct that my said executors shall be, and stand possessed of, and interested in my said residuary, real and personal estates, upon trust, to and for the use and benefit of my said brother, Alexander Munro, and that such part or parts of my said residuary estates as shall not consist of real or heritable estates in Scotland, shall be laid out in the purchase of lands, and other real or heritable property or estates in Scotland, in the name of the said Alexander Munro; or, in the event of his decease, leaving issue, in the name of his heir-male or heirfemale, as the case may be, and shall be, together with such real or heritable estates in Scotland as I shall be seized and possessed of at the time of my decease, strictly entailed upon, and to and for the use of the said Alexander Munro, and the heirs-male of his body; and on failure of such last-mentioned heirs-male, then upon and unto the heirs-female of the body of the said Alexander Munro; and on failure of issue of the said Alexander Munro, then upon, and unto his right lawful heirs."

It was provided by the marriage-contract, executed previous to the marriage between the testator and the raiser in 1814, that certain sums, amounting to £30,000, not falling under the last will and settlement (and which, by a minute lodged in the present process, were expressly stated not to be in any shape included in it, or subject to be affected by any judgment to be therein pronounced), were vested in trustees for the purposes therein mentioned, and by it Sir Thomas Munro bound and obliged himself to make payment to the child or children that might happen to be procreated of the marriage, and existing at the term of payment, of the sums following, namely: If there should be only one child, whether male or female, the sum of £10,000: If there should be two children, whether male or female, the sum of £20,000 Sterling; and if there should be three or more children, the sum of £30,000 Sterling. These provisions were declared to be subject to the liferent annuity settled therein on his wife, and to be payable at the first term of Whitsunday or Martinmas after her decease, should she survive the said Sir Thomas Munro, and to be, failing any appointment by any writing under the hand of the said Sir Thomas Munro, divided among the children of the marriage equally, share and share alike; and he thereby binds and obliges himself to aliment, entertain and educate the children of said marriage, suitably to their situation and rank in life, until the term of payment of the said sum of provisions thereby contracted in them, or until they be otherwise properly provided for. The testator, who died on 6th July 1827, was survived by his wife, the present raiser, and two sons, the claimantsthe one sixteen, the other eleven years of age. At his

death, the testator, independent of real property, or money secured on real and heritable property in Scotland, was possessed of personal and other estate, amounting to a large sum. His whole residuary estate, including annuities (and exclusive of the £30,000 vested in the trustees under the m rriage-contract above mentioned), was condescended upon by the trustees as amounting, at 3d January 1834, to upwards of £147,932. 11s., and deducting therefrom the value of the real estate in Scotland, as after mentioned, there would remain about £128,432. 11s. as the amount of the rest of the residuary estate at the foresaid date. The testator died possessed of real property in Scotland, consisting partly of houses and partly of heritable bonds, these heritable investments having been made partly before and partly after the execution of the settlement. The houses were considered to be worth about £2600, and the sum on the heritable bonds amounted to £16,900; and after the death of the testator, there had accrued from the profits of the estate, and held by the executors, a sum exceeding £20,000. The raisers entered on their office of executors and trustees on the death of the testator, and they brought this action of multiplepoinding for the purpose of determining certain questions of difficulty. In the action the trustees and two sons appeared and claimed as follows:

1. Claim for Sir Thomas Munro.

(1.) In respect that the last will and settlement was not effectual to convey heritable property in Scotland, he claimed the whole heritage in unlimited fee, as heir, together with all the fruits and rents since the testator's death. (2.) He farther claimed that he should have his place in the entail, as the first disponee under it, to all the lands purchased in Scotland, in terms of the will, out of the residue, contending that he was so entitled, notwithstanding he insisted that he was entitled to the Scotch heritage in unlimited fee, arguing that, in the circumstances, there was, by the law of England, no case of election raised against him as heir, so as to put him on his election, either to allow the Scotch heritable property to be entailed along with the rest of the residuary estate, or, if he took the Scotch heritable property, to abandon all benefit under the will. At all events, he maintained that the doctrine of election could not be applied, since any entail made with the omission of the claimant's name as first called by it, would be an entail quite different from that which the deceased contemplated and enjoined. (3.) He further claimed, that the trustees should hold for him the whole funds and profits that accrued, or would accrue upon the residuary estate, as it stood at the date of the death, down to the date of the said residuary estate being invested in land and entailed upon him; and from the date of land being so purchased and entailed, he claimed right to the rents of the land: submitting, in support, that as the will contained no directions for accumulating the revenue during his minority, nor any directions for applying it in the purchase of land, that that revenue belonged to him as the party now holding right to enjoy the use of his father's estate. (4.) On the supposition of his claim to the Scotch heritage, without being put to his election, being repelled, then the provision in the will being,

that such of the testator's residuary estate "as shall not consist of real or heritable estates in Scotland," should be "laid out in the purchase of lands and other real or heritable property or estates situate in Scotland, in the name of my said son Thomas Munro, and shall be, together with such real or heritable estates in Scotland as I shall be seized or possessed of at the time of my decease, strictly entailed upon," &c., he maintained that the trustees were not entitled to realise the heritable property in Scotland, or heritable bonds, and with the proceeds to purchase land, and entail the same, but they were bound to entail the heritable bonds themselves, in respect that they formed a real and heritable estate in Scotland, which belonged to the deceased, and which, as he alleged, the testator, by the will, enjoined his executors not to realise, but to entail. (5.) On the supposition that the claims to the Scotch heritage, and to the revenue derived from the trustestate, while it remained uninvested in land, should be repelled, he claimed aliment out of the trust-funds from the time of the testator's decease up to the time when he should receive possession of the entailed estates. 2. Claim for Campbell Munro.

He claimed under the provision in the antenuptial contract and the settlement of the testator, to be ranked and preferred on the fund in medio for an adequate and suitable yearly allowance for his education, maintenance and support, until he attained the age of twentyone, and thereafter until the provision made in his favour by the marriage-contract should become payable.

3. Claim of the Trustees and Executors. (1.) They claimed the whole funds and estate of the deceased, wherever situated, in order that the same might be employed and invested in terms of the settlement. (2.) They maintained, that if Sir Thomas Munro insisted to have his place in the entail of the lands to be purchased with the residuary estate, he could not withdraw the real and heritable property in Scotland from the operation of the will, so as that it should not be included in the entail, but be taken by him in unlimited fee. Admitting that the will was not so executed as legally to affect such property in Scotland, they contended that still it was so expressed, that were Sir Thomas in a competent court in England claiming implement of the will, as respected the purchase of land, with the other residuary estate of his father, and entailing it upon him and the other parties there mentioned, he would be put upon his election, and be prevented from withdrawing the real property in Scotland from the operation of the will, and the entail to be executed by the trustees, and at the same time taking benefit under the will, so far as otherwise conceived in his favour. (3.) They farther claimed the whole interests, rents, and profits of the residuary estate, whether consisting only of personal estate and real estate out of Scotland: or together with these, also of real or heritable estate in Scotland, if it should be held that Sir Thomas must surrender the last to the purposes of the will, and took benefit thereby arising from the date of Sir Thomas Munro's death, till the majority of the present Sir Thomas Munro (or failing him, of his brother Campbell Munro)-to be laid out

by them in land, and entailed in terms of the will, subject only to deduction of such sums as should be necessary for the aliment and education of Sir Thomas Munro and his brother. In support of this claim, the trustees stated, that though the settlement contained no express direction to accumulate, yet it was necessarily inferred from other clauses. In particular, 1st, it was directed that the trust should continue, and that the trustees should hold the estate till the majority of the heir, till which time all the funds received by them must be considered as parts of one estate; and, 2d, from the clause before quoted, providing for the investment of the funds, in case of the predecease of both the testator's sons in minority, on the testator's nephew, John Munro. In reference to that clause they argued, that all the estate held or acquired by the trustees during the whole period of their management, till they fall to be divested in favour of one or other of the devisees ultimately interested, was to be massed and invested by the trustees for behoof of the party ultimately entitled to get a transfer from the trustees at the termination of the trust. It was maintained that such interpretation was clear, in case of John Munro's succession, and ought equally to be so in that of Sir Thomas.

The Lord Ordinary, after the record was closed and hearing parties, appointed a case to be prepared for English counsel, in regard to the points of English law raised in the record. The opinions of Mr Bickersteth (now Lord Langdale, master of the rolls), and Mr Pemberton, were accordingly taken. The following were the queries:

"1. Whether the will would be held sufficient, by the law of England, to pass real property situated in England, or monies so secured on real property, as to constitute real estate there? 2. If it should be held not sufficient for that purpose, what are the particular grounds on which it would be considered in England insufficient for that purpose?

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3. If the will be not sufficient-or, on the supposition that, through any defect of form or otherwise, it had not been sufficient to pass real property in England, does it so express the testator's intention, that it would put the heir to his election in any competent court in England, whether of law or equity, if he had claimed the English real property, as well as his place in the entail, to be executed of lands to be purchased, in terms of the will, with the remainder of the residuary estate? "4. The last will and settlement of Sir Thomas Munro being ineffectual by the law of Scotland to pass real or heritable property in Scotland, in respect of its not being executed with due solemnities, according to the forms required for that purpose, but the words of the deed being otherwise sufficient, and the meaning of Sir Thomas to pass such real or heritable property being, as is maintained, quite clear,-Whether, on the supposition of the question having arisen for trial in England, the heir would have been put to his election, if he claimed the real or heritable property in Scotland, as not subject to the will, and also his place in the entail of the lands to be purchased by the trustees, in terms of the said will, with the remainder of the residuary trust-estate?

"5. Whether, in the event of its being established by the present Sir Thomas Munro, that his father died possessed of real property in India or in England, that circumstance would affect the answers to the previous queries, and whether, in that case, Sir Thomas Munro,-either on the ground that the will would then be sufficiently satisfied, without reference to the Scotch real property, or on any other ground,-would not be put to his election?

"6. Assuming that, in the case supposed in the immediately

preceding query, Sir Thomas Munro would not be put to his election, whether houses, or houses and grounds situated at Calcutta, are real property?

"7. Holding that Sir Thomas Munro would be put to his election, whether, by the law of England, the trustees, in executing the trusts of the will, would, according to the sound construction thereof, be entitled to realise the heritable bonds for money secured on land in Scotland (such heritable bonds being, according to the Scotch law, real and heritable property), and to purchase land with the proceeds, and entail the land so purchased? Or, whether, in so far as the residuary estate consists of such real and heritable property in Scotland, they would be, in terms of the provisions of the will, bound to take the heritable bonds as they stand, and entail these bonds upon Sir Thomas Munro, and the other heirs pointed out by the will?

"8. Whether, where a last will and settlement is conceived in the terms of the one in question, as respects the trusts, for laying out the testator's residuary estate in the purchase of lands, and entailing the same,-the fruits, profits and rents arising from the estate till the majority of the heir, if lands shall not be purchased till that date, or the fruits and profits till the date of the purchase of lands, and the rents of the lands thereafter till the majority of the heir, or any part or portion thereof, would, according to the law of England, fall under the operation of these trusts, or whether they would belong to the heir as his own exclusive property, and would go to his executors?

"9. If the said fruits, profits and rents shall be held to fall under the operation of the will,-Whether, and to what extent, the same would be subject to the burden of providing for the suitable maintenance and education of Sir Thomas Munro and Campbell Munro, reference being had, in answering this query, both to the contract of marriage and to the last will and settlement? And whether, and to what extent, any burden of this nature would be affected as respects Sir Thomas Munro, supposing him to be entitled to take the real and heritable property in Scotland, and at the same time to have the benefit of the will, in so far as it may contain provisions in his favour?"

The opinion returned was to this effect:

"1. and 2. The will of Sir Thomas Munro would be held sufficient to pass real estates in England, or monies subject to be laid out on real estates, so as to bear the character of real estates.

"3. If the will had not been sufficient to pass real estates, the question, whether it could be read for the purpose of putting the heir-at-law to his election, would have depended upon the reason for which it was held insufficient. If its insufficiency had arisen from the want of the solemnities required by the Statute of Frauds, then it could not have been looked at by a court of justice as expressing any intention with respect to real estates, and therefore could not have been read against the heir to raise a case of election. But if the testator had assumed to devise estates which were entailed upon his son, or estates which he might thereafter purchase, then, though the will would have been inoperative to pass such estates, it still, if well executed, might have been read to raise a case of election against the heir. The will, as it stands, sufficiently indicates an intention to pass such real estates in England as belonged to the testator when he made it, and none other.

"4. If this question had arisen for decision in England, the will would have been read for the purpose of putting the Scotch heir to his election.-Brodie v. Barry, 2 Ves. and R. 127. "5. The circumstance here alluded to would not in any degree affect the answers to the previous queries.

"6 Houses and grounds situated at Calcutta are now decided to be real property.—Freeman v. Fairlie (not yet reported). "7. We have no property in England analogous to heritable bonds; and if an English Court were called upon to decide this question, it would refer to Scotland for information as to the subject, in order to collect the testator's intention. It appears to us that the intention requires that the heritable bonds should be converted, and the proceeds laid out in land, and we think such intention sufficiently apparent to enable a court of justice

to act upon it, though in opposition to some particular expressions in the will.

"8. According to the law of England, Sir Thomas Munro would be entitled to the rent of the estates in Scotland from the time of his father's death, and to the income of the remainder of the heritable and personal property, whether actually invested in land or not, from the expiration of twelve months from that time.-Sitwell v. Bernard, 6 Ves. 520.

“9. By the will, the estates are expressly charged with the maintenance of the younger son of the testator during his minority. This is a performance of the obligation which the testator contracted by his marriage-settlement, as far as it goes. If Lady Munro should live beyond the period when Campbell Munro attains twenty-one, any further claim which he may have must depend upon the marriage-contract, the effect of which must be determined by the law of Scotland."

Some doubts being entertained how far the above queries and opinion exhausted the various questions, an additional joint case was submitted for the opinion of Mr Pemberton and Sir William Follet-the circumstance of the testator having acquired the heritable property in Scotland subsequent to the making of the settlement, by funds belonging to him previous to its date, and that those who were left in the management of such personal funds had general powers from the testator to expend them on heritage or heritable securities in this country, not having been very prominently put in the view of the counsel previously consulted. In the additional case it was put to counsel,

"1. Whether it is to be understood that, if the heir had, in any competent court in England, claimed English real property, as well as his place in the entail of lands directed to be purchased, he would, under the terms of the will, have been put to his election, only to the extent of the real estate belonging to the testator at the time the will was made; and would have been held entitled to take all real estate of subsequent acquisition, and, at the same time, to have his place in the entail of all the lands which might in that view come to be entailed, in fulfilment of the instructions of the testator to that effect?

“2. Would the answer to the preceding query be at all varied or altered, and if so, to what effect, either, 1st, Upon the supposition that any real property in England, acquired by Sir Thomas Munro after he made the former will, was acquired by personal funds belonging to him prior to its date, and which those in the management of them had authority to lay out on real property in England, or to vest on real securities in England; or, 2d, Upon the supposition that any real property in England, acquired by Sir Thomas Munro after the will was made, was acquired by personal funds, also acquired after that date, but which those in the management of them had authority to lay out on real property, or to vest on real securities in England; or, 3d, Upon the supposition that any real property in England, acquired by Sir Thomas Munro after the will was made, was acquired by personal funds, also acquired after that date, and without those in the management of them having had authority from Sir Thomas to alter their character, by laying them out on real property, or vesting them on real securities, and without their acts having been subsequently approved of by him?

"3. The will of Sir Thomas Munro being ineffectual by the law of Scotland to pass real or heritable property in Scotland, in respect of its not being executed with due solemnities, according to the form required for that purpose, but assuming the words of the deed to be such, that, according to the law of Scotland, they would, if used in a duly executed Scotch deed (which, however, it may be observed, requires, in its other clauses, to be framed in peculiar terms, in order to carry real estate, and is subject to peculiar rules of construction), be held sufficient not only to pass real or heritable property in Scotland, but to indicate an intention, on the part of the maker of the deed, to pass

all property of that description, either belonging to him at its date, or which he should subsequently acquire, and be possessed of whether, on the supposition of the question having arisen for trial in England, the heir, if he claimed the real or heritable property in Scotland as not subject to the will executed by Sir Thomas Munro in England, and also his place in the entail, would, under that will, have been put to his election in regard to the whole of such real or heritable property in Scotland, whether belonging to the testator at the date of the will or afterwards acquired, or only in regard to that part of it which belonged to him when he made the will?

"4. Would the answer to the preceding query be at all varied or altered, and if so, to what effect, either, 1st, upon the supposition that the heritable or real property in Scotland, acquired by Sir Thomas Munro after he made the foresaid will, was acquired by personal funds belonging to him prior to its date, and which those in the management of them had authority to lay out on real or heritable property in Scotland, or to vest in real securities in Scotland; or, 2d, upon the supposition that the real or heritable property in Scotland, acquired after the will was made, was acquired by personal funds also acquired after that date, but which those in the management of them had authority to lay out on real property, or to vest in real securities; or 3d, upon the supposition that the real or heritable property in Scotland, acquired by Sir Thomas Munro after the will was made, was acquired by personal funds, also acquired after that date, without those in the management of them having had authority from Sir Thomas to alter their character, by laying them out on real or heritable property, or vesting them on real securities, and without their acts having been subsequently approved of by him: Would it in any degree affect the answer to the preceding query, that in any or all of these cases the particular investment in real property had or had not been specially intimated and made known to Sir Thomas Munro ?"

The following opinion was returned:

"1. That if the heir had, in any competent Court in England, claimed English real property, as well as his place in the entail of lands directed to be purchased, he would, under the terms of the will, have been put to his election only to the extent of the real estate in England belonging to the testator at the time when the will was made, and would have been held entitled to take all real property of subsequent acquisition, and, at the same time, to have his place in the entail of all the lands which might in that view come to be entailed in fulfilment of the intentions of the testator to that effect.

"2. The answer to the preceding query would be in no respect varied upon any of the suppositions here suggested.

"3. Assuming the words of the deed in question (which, with respect to Scotch estates, contains very different expressions from those which are to be found applicable to English property) to be such as, in a deed duly executed, would be held sufficient to indicate an intention on the part of the maker of the deed to pass all real or heritable property in Scotland, either belonging to him at its date or subsequently acquired. The heir, if the question had arisen in England, would, if he claimed the real or heritable property in Scotland as not subject to the will executed by Sir Thomas Munro in England, and also his place in the entail, have been put to his election in regard to the whole of such real or heritable property in Scotland, whether belonging to the testator at the date of the will, or afterwards acquired.

"4. None of the circumstances here suggested would in any respect have varied the answer to the preceding query."

The Lord Ordinary having ordered cases on the whole cause (taking into view the above opinions) they were boxed for the Division.

At advising,

Lord Balgray.-The intention is quite clear and distinct, I think. Sir Thomas did not conceive that he was acquiring a right of an heritable nature, in investing the money in Scotland in heritable bonds.