J. C. 1870 in the Island of Jersey, and domiciled there, were entitled to the legal seisin (saisine légale) of the whole of the personal estate and LA CLOCHE effects of the Testator, or whether the Respondent, Thomas La Cloche, as the only Son, and by the law and custom of Jersey the sole heir of the Testator, was entitled to the legal seisin of the whole, pendente lite, or of two thirds of such personal estate, to the exclusion of the Appellants, as Executors of the Will of the Testator. v. LA CLOCHE The question arose under the following circumstances: Thomas La Cloche, by his Will in writing, bearing date the 2nd of October, 1862, after providing for payment of his debts and funeral expenses, and giving a few trifling legacies, gave and bequeathed all the rest of his personal property, of what nature or quality it might be, and in whatever place or country the same might be invested or placed on the day of his decease, to his Grandson, Thomas Philippe La Cloche, one of the Appellants; and he appointed the Appellants Executors of his Will. The Testator died in the Island of Jersey, on the 13th of October, 1864, without having in any way altered or revoked his Will, which was proved by the Appellants in the Ecclesiastical Court of the Island of Jersey, on the 20th of October, 1864. Nearly the whole of the personal estate of the Testator, amounting to upwards of £38,000, was invested at the time of his decease in Foreign securities, the scrip and other evidences of title appertaining to which were in the hands of Messrs. Mallet Frères & Co., Bankers, in Paris, with whom the Testator had, during his lifetime, deposited them. By the law and custom of the Island of Jersey, a Testator having a Wife and no children, may bequeath one-half of his personal estate, but if he has no Wife, but a child or children living at the time of his decease, he has a power of disposition by Will over one third only of his personal property, the other two thirds being vested by operation of law in such child or children. The Respondent, Thomas La Cloche, was the only child of the Testator, and the Appellant, Thomas Philippe La Cloche, was the Son of the Respondent, Thomas La Cloche. The Respondent was consequently advised, that as the only Son, and, by the law and custom of Jersey, sole heir of the Testator, he was entitled abso J. C. 1870 lutely to two thirds of the personal property of the Testator his Father, and that the Testator's Will, so far as it purported to dispose of these two thirds of his personal property, was void, and that LA CLOCHE upon an action being instituted for that purpose before the Royal Court of Jersey, the Court would reduce the Will of the Testator ad legitimum modum. Acting upon this advice, the Respondent, immediately after the Testator's decease, gave notice to Messrs. Mallet Frères & Co., with whom nearly the whole of the scrip and documents relating to the personal estate of the Testator were deposited, that, as the only Son, and by the law and custom of Jersey principal heir of the Testator, his Father, he claimed two thirds of his personal estate and effects, and that he claimed to be entitled to the seisin of such two thirds, to the exclusion of the Executors, the Appellants, inasmuch as the Will of the Testator was, by the law of Jersey, invalid as regarded the disposition by the Testator of such two thirds, and he likewise gave Messrs. Mallet Frères & Co. further notice, that he had commenced a suit in the Royal Court of the Island of Jersey, to have the Will of the Testator reduced ad legitimum modum, and that they were not to part with any portion of the personal estate of the Testator in their hands, nor with any of the scrip or documents appertaining to the same, to the Executors named in the Will, or either of them. In the month of October, 1864, the Respondent, as such Son and sole heir of the Testator, commenced a suit in the Royal Court of the Island of Jersey against all the parties interested in the Testator's Will, for the purpose of reducing it ad legitimum modum. The Appellants denied his title, but on the 20th of June, 1865, the inferior number of the Court declared his title as principal heir to be proved, and reduced the Will ad legitimum modum, and sent the parties before the Greffier to carry out the judgment. An account of the personal estate and effects of the Testator was accordingly made out before the Greffier of the Court, in accordance with the terms of the above judgment and the same divided into three lots, whereof the Respondent chose the first and second lots, and the parties were again sent before the Royal Court by the Greffier for the purpose of having his return confirmed. The inferior number of the Court, by its judgment of the 30th of May, V. LA CLOCHE. J. C. 1870 LA CLOCHE v. LA CLOCHE. 1867, decided to postpone the further consideration of that case until a final judgment should be given in the action. In consequence of the notice given by the Respondent to Messrs. Mallet Frères & Co. not to part with any portion of the personal estate of the Testator in their hands, or of the scrip or documents appertaining to the same, they refused to hand the scrip and other documents in their possession over to the Appellants, who applied for and claimed to be entitled to the same as Executors of the Will of the Testator. For the purpose of compelling Messrs. Mallet Frères & Co. to hand over the scrip and other documents to them, the Appellants (the suit by the Respondent to set aside his Father's Will being then pending before the Royal Court of Jersey) commenced an action against them before the First Chamber of the Civil Tribunal of the Seine, in France, to which the Respondent, claiming, as sole heir of the Testator his late Father, was, on his own application, made a party by that Court; and on the 24th of February, 1865, the French Court gave judgment in favour of the Appellants, and declared that as Executors they were entitled to receive all the personal estate of the Testator, and ordered Messrs. Mallet Frères & Co. to hand over to them all such portions thereof as might be in their hands. From this judgment the Respondent appealed to the Imperial Court of Paris, and on the 29th of November, 1865, the French Court of appeal reversed the decision of the Court below, and ordered Messrs. Mallet Frères & Co. to retain the scrip and other documents in their hands belonging to the personal estate of the Testator until further ordered, and to administer them in the meantime for the account of whoever might be ultimately declared entitled thereto. In consequence of the judgment of the Imperial Court of Paris, the Appellants, on the 7th of September, 1866, commenced the action in the Royal Court of Jersey, the subject of this appeal, against the Respondent for the purpose of having it declared that they, as Executors of the Will of the Testator, were, by the law and custom of the Island of Jersey, entitled to the actual seisin (la saisine légale) of the whole of his personal estate and effects. The Respondent having taken several preliminary objections, which were decided against him, pleaded that he was the only Son and sole heir of Thomas La Cloche, deceased, that as such he was J. C. 1870 LA CLOCHE. entitled by law to the possession and ownership of two thirds at least of the personal estate of the deceased-a right of which the deceased had no power to deprive him—that by the rule of LA CLOCHE law "le mort saisit le vif," he was, in such capacity, seised from the moment of the death of the deceased of the entirety of the succession, and could not be held to disseise himself of any part of such succession until there was a definite judgment, whether a valid Will of the deceased existed or not; that the question of annulling the Will of the deceased was still pending before the Court in the action in which the Appellants, the Respondent in his capacity of sole heir of the deceased, and the residuary legatee were parties; and although the Court had decided that the Will of the deceased could not be annulled in its entirety, but ought only to be reduced ad legitimum modum, the question of the validity of the Will was not yet decided, the Appellants themselves having appealed from such decision; that supposing even that such judgment of the Court should be maintained on appeal, it would evidently be contrary to the principles of law that the heir should be bound to disseise himself of the portion which belonged to him of right, in order to deliver it to those who had no other rights but such as they derived from the Testator, in proportion to his testamentary powers; and the Respondent pleaded, that the question of the saisine of the personal estate of the deceased could not be decided until the result of the suit for annulling the Will was known; that he must remain seised of the entirety of the personal estate until completion of the suit, and that, under the supposition the most favourable to the Executors, they could be entitled to the possession of a third only of the succession. Upon this plea the inferior number of the Royal Court gave judgment on the 13th of October, 1866, that the Appellants, as Executors of the Will of Thomas La Cloche, the Testator, were entitled to the seisin of the whole of the personal estate of the Testator, and that they had a preference over the principal heir to the effects, scrip, and documents belonging to the estate. Against this decision the Respondent, Thomas La Cloche, appealed to the superior number of the Royal Court, and, by its judgment of the 27th of October, 1868, that Court reversed the decision of the inferior number of the 13th of October, 1866, and condemned the J. C. 1870 LA CLOCHE v. LA CLOCHE. Appellants in the costs (except as to those of the rehearing), which were ordered to be paid by the parties in equal shares. Against this decision the Appellants instituted the present appeal. At the hearing of the appeal the Appellants produced extracts of cases from the Records of the Royal Court to shew that the heir of a Testator, where such Testator appoints Executors, had not any original seisin of the Testator's estate, either in whole or in part; and in their case they insisted, from these precedents, that it appeared, that the course of proceeding in the Island in regard to the administration of a Testator's estate had for centuries been based upon the view and practice contended for by them. Sir R. Palmer, Q.C., and Mr. F. C. J. Millar, for the Appellants The question in this case is almost one of first impression. There are no reported decisions of the Royal Court as to the Law of Jersey on the question of the rights of Executors in respect of a Testator's personal estate. The general law is to be gathered from the Text-writers on the Coutume de Normandie, which is the foundation of the law and practice prevailing in the Island, and the Reports of the Commissioners for inquiring into the Law of Jersey in the years 1847 and 1861. The Commissioners in their Report of 1861, p. xx, say, a "Testator may appoint an Executor, who, after proof of the Will in the Ecclesiastical Court (which must be made within a year and a day of the Testator's death), takes the place of the principal heir with reference to the personal estate." Terrien, in his Commentary on the Coutume de Normandie, Liv. VI., ch. 7, p. 217 [Paris Ed. 1578], lays it down, that the Executors are entitled to possession of the entirety of the Testator's personal estate for a year and a day, and until the duties of administration shall have been accomplished. Godefroy, Comms. on the Coutume réformée of Normandy, Tom. ii. Art. 430 [Ed. 1684], tit. " de Testamens,” pp. 146–147, is to the same effect. Pothier, par Bugnet, Traité des Successions, Vol. viii. p. 281, Art. II. §§ 212, 213, 214, § 222, p. 287 [Ed. 1861]. All these authorities support this view of the law; while the practice, as we maintain and shew by the precedents produced from the Records of the Court, prove conclusively the position for which we are contending. By the law, as well as the custom in Jersey, an Executor who has in due |