ABSTRACT
Difficulties arose in the 19th century in respect of succession by legitimated persons. There were two reasons for this: first, the caution to be expected of the English courts in respect of a concept that had not, at that time, been accepted by domestic law and, secondly, because of the different rules that existed on intestacy in respect of real and personal property. Thus, in Birtwhistle v Vardill,55 after some hesitation, the House of Lords ruled that a child legitimated under the law of Scotland could not succeed under intestate succession as heir to real estate in England, even though the father was domiciled in Scotland at the time both of the birth and the subsequent marriage. However, the case was confined to intestate succession of real estate by the majority of the Court of Appeal in Re Goodman’s Trusts,56 who allowed a child legitimated under Dutch law to succeed to personal property. This more liberal approach was continued in Re Grey’s Trusts,57 where Stirling J confined the rule in Birtwhistle v Vardill to cases of intestate succession to real estate and so allowed a child legitimated under the Roman Dutch law of the Cape of Good Hope to succeed to real property by will.
