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whose case resembled that of the child in In re Wright's Trust would be regarded as legitimate; see also the judgment of Cotton, L.J., in In re Goodman's Trusts, 17 Ch. D., at p. 291. This case is important, because the facts clearly shew that the exact point must have been apprehended by the foreign advocates whose opinion was taken. I am afraid that no definite argument can be drawn from the interesting case, to which I shall have to refer later, of In ve Grove, 40 Ch. D. 217, as to the law of Geneva on the point, as it does not appear on what grounds, or on what view of domicil or nationality, or on what finding of fact, if any, the decree of legitimation, mentioned as granted by the Council of Geneva, was based.
In In ve Wright's Trust the facts were that a widower, domiciled in England, migrated to France under circumstances which did not involve a change of domicil, and there cohabited with a Frenchwoman, who bore him a daughter. Subsequently the man's domicil became French, and after this change, he married the mother of the child in the English form at the British Embassy, and (some years later) in French form, with recognition of the child. It is only fair to the Vice-Chancellor to say that he was not satisfied that at the time the parents were married there was that recognition of the child which is required by the French law. This circumstance does not seem, however, to be the main ground of his decision. The question was, whether the daughter could take with the children by the father's first marriage under a bequest to the father's.
children." It is extremely difficult, in the compass of a short article, to deal satisfactorily with this long judgment, the logical train of which is not convincing, and which contains much matter the relevance of which (I speak with respect) is not easy to see. With the Questions de Droit before him, the Vice-Chancellor misses the passage which was really significant; with Munro v. Munro before him, he
fails to notice the dicta of the Scotch judges and of Lord Brougham, and the references in the argument to Boullenois, which would have put him upon the track of relevant matter. As the result of his researches in French law, he comes to the conclusion, (which may be correct, for reasons already indicated by me, but not observed upon by the Vice-Chancellor), that the French Courts would have held the child in question illegitimate (p. 613).
The Vice-Chancellor, in allowing himself to attach so much importance to the fiction of a matrimonial contract before the conception of the antenatus, did not sufficiently appreciate the force of the extract from Pothier which he quotes (p. 604), or of the Scotch case of Kerr v. Martin, 1840, 2 D. 752, which had been cited to him. The fiction seems to be discarded by modern Scotch writers, and the law is stated to be based on views of expediency and morality. I also venture to think that the effect of Lloyd v. Lloyd, already referred to, is not correctly given by the Vice-Chancellor, that Doe v. Vardill, 7 Cl. & F. 895, does not throw any light on the question, and that Shedden v. Patrick, 1 Macq. 612, so far as it has any bearing on the point at all, is an authority which inclines against the rationale of the doctrine of legitimatio per subsequens matrimonium which found favour with the Vice-Chancellor. It is worth mentioning that the Vice-Chancellor, at the end of his judgment, adds some arguments which read like a forecast of his decision, seven years later, in Boyes v. Bedale, 1 H. & M.798, since thoroughly discredited by Skottowe v. Young, 11 Eq. 474, In re Goodman's Trusts, 17 Ch. D. 266, and In re Andros, 24 Ch. D. 637, and In re Grey's Trust, 1892, 3 Ch. 88.
In 1862, the case of Goodman v. Goodman (3 Giff. 643) was decided by Stuart, V.C., but neither it nor In re Goodman's Trusts (14 Ch. D. 619, 17 Ch. D. 266) can be regarded as a satisfactory authority for the proposition of law which In re Wright's Trust purports to decide, because the children were not represented. In 1869, the Scotch case of Udny v. Udny (L.R. 1 H.L. Sc. 441), was decided by the House of Lords, and Lord Hatherley (then Lord Chancellor) took occasion, at p. 448, to reiterate, obiter, the conclusion which he had arrived at, as Vice-Chancellor, in Re Wright's Trust. The other Lords, (Chelmsford, Westbury, and Colonsay), said nothing upon the point. In In re Goodman's Trusts, 1881, the C.A. (Cotton and James, L.J., Lush, L.J., diss.) reversed Jessel, M.R., deciding that the child born after the change in the father's domicil, but before his marriage, whose contention had prevailed with Stuart, V.C., was entitled to share under the Statute of Distributions with her sister born after the marriage in the distribution of the estate of a domiciled Englishwoman. The Court disapproved of a dictum of Wood, V.-C., in Boyes v. Bedale. In In re Andros, 24 Ch. D. 637 (1883), Kay, J., in deciding that a gift in an English will to the children of a person domiciled in Guernsey, was to be taken as made to his legitimate children as ascertained by the law of his domicil, and that an antenatus, legitimated by the subsequent marriage of his parents, could take, declined to follow Boyes v. Bedale. Our point did not arise, but in the course of his judgment Kay, J., took occasion to observe : "It must now be treated as settled that any person legitimate according to the law of the domicil of his father at his birth is legitimate everywhere within the range of International Law for the purpose of succeeding to personal property." This is qualified by In re Grove. Later the learned Judge, in language of some ambiguity, said: “The law, as I understand it, is that a bequest of personalty in an English will to the children of a foreigner means to his legitimate children, and that by International Law, as recognised in this country, those children are legitimate whose legitimacy is established by the law of the father's domicil.” In In re Grove, 40 Ch. D. 216 (1887, Cotton, Fry and Lopes, L.JJ., affirming Stirling, J.), the question turned on the domicil of a Genevese who had married and died in England. Cotton and Lopes, L.JJ., held that the man was domiciled in England at the date of the birth of the child, and à fortiori at the date of the marriage of the parents. Fry, L.J., held that the father had not lost his Genevese domicil at the date of the birth, but had exchanged it for an English domicil before the marriage. All were agreed that the marriage of a domiciled Englishman could not be held to legitimate antenati, whatever the domicil of the father at the date of the birth had been. “ In the absence of authority,” said Cotton, L.J., at p. 232, “ the incidents and effects of a marriage must, in my opinion, depend on the domicil of the parties at the time of the marriage.” Taking“ domicil of the parties” to mean, quoad our point, “ domicil of the husband," I venture to suggest that both Scotch and foreign jurists would agree that this is correct, but it does not seem quite consistent with other statements in the same judgment, e.g., " What is really necessary, I think, is that the father should, at the time of the birth, be domiciled in a country allowing legitimation, so as to give to the child the capacity of being made legitimate by a subsequent marriage ” (p. 232), and, “In my opinion, the domicil at birth must give a capacity to the child of being made legitimate, but then the domicil at the time of the marriage, which gives the status, must be domicil in a country which attributes to marriage that effect” (p. 233). Fry, L.J., while professing to agree generally with the law laid down by Cotton, L.J., added, rather ambiguously, “At birth the child took the domicil of its mother, and it took the status of illegitimacy, according to the law of the domicil of its mother, and it took also the capacity to change that status of illegitimacy for one of legitimacy, provided that, according to the law of the domicil of the father, the subsequent marriage would work legitimation."
It hardly needs to be stated that it is a public evil that the same person should be regarded as legitimate in one civilised country and illegitimate in another. It is perhaps a greater scandal when a British subject is held legitimate in one part of the Empire and illegitimate in another. In his judgment in In re Goodman's Trusts, James, L.J., devotes some very energetic observations to this aspect of the question. It is, of course, impossible always and altogether to avoid these evils, so long as communities differ on the
forbidden degrees " and the extent of each other's jurisdiction in divorce.
The case, however, of a marriage recognised on all hands as having been validly performed between competent contracting parties is different, and the denial of legitimacy to some, while it is conceded to others, of a group of antenati, all of whom are legitimate by the personal law of their father—as in the Goodman case-does not seem to be justified on any ground of morality or jealousy of jurisdiction. When the domicil of the husband at the date of the marriage is proved to be not English, the English Courts forth with discard the characteristic rules of English law as to the incidents and effects of marriage, and proceed to apply other rules. Antecedently, one would have said that the only logical course to take was to enquire what consequences the law of the husband's domicil attached to his marriage, so far, at all events, as status of persons and rights in movables were concerned. Such a rule seems to be justified by considerations of good sense and international comity. But for In re Wright's Trust, and the other cases referred to, one could say that it was the rule of the English Courts. If the law laid down in In re Wright's Trust and incidentally approved in the other cases is correct, it seems that in the case of the marriage of a domiciled foreigner the law to be