McCormick v Garnett
| Jurisdiction | England & Wales |
| Judgment Date | 02 May 1854 |
| Date | 02 May 1854 |
| Court | High Court of Chancery |
English Reports Citation: 43 E.R. 877
BEFORE THE LORDS JUSTICES.
[278] m'cormick v. garnett. Before the Lords Justices. May 2, 1854. Where a husband and wife are domiciled in Scotland, in which country a wife has no equity to a settlement, the Court here will order payment of the wife's legacy to an assignee of the husband. A question of foreign law, being one of fact, must be decided in each cause on evidence adduced in it, and not by a decision or on evidence adduced in another case, although similarly circumstanced. This was a petition of appeal from a decree of the Vice-Chancellor Stuart. The suit was one for the administration of the estate of a testator named William M'Cormick, who by his will bequeathed a legacy in the following words :-" I bequeath to Mary Macdonald, wife of John Macdonald, of Ben Nevis, North Britain, distiller, JE500 sterling." The legatee and her husband were both domiciled in Scotland, and the husband had assigned the legacy. The accounts of debts and legacies having been taken, the cause was heard on further directions before the Vice-Chancellor, on the 28th of February 1854, when the legatee and her husband and the assignee appeared without petition, and asked that the legacy might be ordered to be paid to the assignee. The Vice-Chancellor directed that a sum of Bank annuities, equal in value to one moiety of the sum due for principal and interest, in respect of the legacy, should be carried over to a separate account, intituled " The Account of Mary Macdonald and her Children," and directed the dividends to be paid to her on her sole receipt, and for her separate use, during her life or until further order, with liberty to apply on her death, and he directed that the other moiety, after deducting thereout the debt of 200, in respect of which the set-off was claimed by the executors, should be paid to William Macdonald. [279] The husband and wife and assignee, who were not parties to the suit, appealed, having obtained leave for that purpose. In support of the appeal an 878 rk thompson's trusts 5 deo. it &a.m affidavit was filed of there having been no settlement, or agreement for a settlement, of the fund in question. An opinion was also produced of a Scotch advocate (which was stated to have been acted on in another cause, but was not verified in this), to the effect that, according to Scotch law, an assignee, in such circumstances, was absolutely entitled to the whole fund. Mr. Craig and Mr...
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