
    Monroe et al. v. Douglass.
    
      Lex loci rd sitse. — Foreign laws. — Estate-tail.
    The title to real estate, and the effect of -a devise or conveyance thereof, depend upon the lex loci rei sitae.
    
    Foreign laws must he proved as facts; otherwise, they will he presumed to he in accordance with our own.
    The words “heirs of the body,” in a testamentary settlement, give an estate-tail in real estate; and, as a general rule, their effect is not restricted, by the use of the word “ children,” in other clauses of the instrument Monroe v. Douglass, 4 Sandf. Ch. 126, affirmed.
    * Appeal from the general term of the Supreme Court, in the first district, where a decree of the assistant vice-chancellor of the first circuit, had been affirmed. (Reported in chancery, 4 Sandf. Ch. 126.)
    This was a bill in equity, filed in the late court of chancery, by James Monroe and wife, and the trustees of Mrs. Monroe, under a marriage settlement, against George Douglass, the defendant, to compel him to account for the proceeds of the real estate of his uncle, Sir Wil liam Douglass, of Castle Douglass, in Scotland, which had come into his hands; Mrs. Douglass claiming to share in such proceeds, and offering to confirm the sale of the real estate.
    On the 23d August 1790, Sir William Douglass made a testamentary settlement of his estate, real and personal, containing a residuary clause embracing the real estate, the proceeds of which was the subject of controversy in this suit, as follows:
    *“ And with regard to the remainder of- my said estate and effects, I hereby declare, that the same are only settled, on my said trustees, or their quorum, in trust, in order that the same may be equally divided among my three brothers, James, George and Samuel, and in case of the death of one or more of my said brothers, it is hereby declared, that the share or third part of him or them, so dying, shall descend to the heirs of his or their body. And in case of the death of either of my said brothers, without lawful children, then the remainder and residue of my said estate and effects, shall be divided among the survivors, and the heirs of their bodies; the children of my brother, so dying, always succeeding to the third part of the remainder of my said estate and effects, to which their father would have succeeded, had he been in life; only, in the event of either of my brothers dying without children lawfully procreated of his body, then and in that case, I leave an additional legacy of 1500Z. sterling to each of my nieces, Elizabeth and Margaret McHaffie. * * * And I further recommend to my said brothers, to settle their own estates, with what they may succeed to in virtue of this present settlement, in such a manner, as that the same may continue as long as possible in the male line.”
    
    Sir William Douglass died on the 20th September 1809; his brother, George Douglass, of New York, died in October 1799, after the execution of the settlement, leaving five children, of whom George Douglass, the defendant, was the eldest, and Mrs. Monroe, the plaintiff, was the youngest. ^Certain proceedings were had in the Court of Sessions, in Scotland, in an
    action of multiple-poinding, to determine the rights of the children of George Douglass, deceased, in the one-third part of the residuary estate of Sir William Douglass, in which it was determined, on the 1st March 1814, that the defendant was entitled to the entire third part of the said residuary estate. Mrs. Monroe, a minor, residing in the United States, then at war with Great .Britain, did not appear to that suit, nor authorize any appearance in her behalf.
    The defendant, after this decree, sold the one-third of the landed estates of Sir William Douglass, and received the proceeds thereof; and on a subsequent settlement of the personal estate, in 1839, it was found, that the proceeds of the real estate received by him exceeded his. share of the entire real and personal estate of his late uncle, Sir William Douglass, if one-third thereof was to be equally divided among the children of his father, George Douglass, deceased.
    *The assistant vice-chancellor dismissed the plaintiff's bill, holding that the defendant was entitled to an entire third of the estate, and was not liable to account therefor to the plaintiff, Mrs. Monroe. From this decree, an appeal was taken to the chancellor, and the cause having been transferred to the supreme court, the decree was there affirmed; whereupon, the present appeal was taken by the plaintiffs.
    
      Hül, for the appellants.
    
      Lord, for the respondents.
    
      
       This is a proceeding corresponding to our bill of interpleader.
    
   Foot, J.

The question between the parties in this cause is, whether the appellant, Mrs. Monroe, is entitled to a share of the real estate of her late uncle, Sir William Douglass, and this depends on the true construction of his testamentary settlement, the controlling efficacy of which both parties admit. As the real estate lay principally in Scotland, where Sir William was domiciled, and his settlement made, and as a judicial proceeding was had in that country, after his death, which has been supposed to affect materially the rights of the parties, the learned vice-chancellor in his opinion, and the counsel, on the argument before this court, have gone into a full examination of the laws of Scotland, which were supposed to apply to the present controversy.

Although the respondent, in his answer, has made frequent reference to the laws of Scotland, and alleged that by them he acquired a right to the real estate in question ; yet, neither he nor the appellants have set forth or claimed in their pleadings, or proved, that the laws of Scotland are different from our own, in .regard to the construction and legal effect of the testamentary settlement ; nor have they averred or proved the existence, in that *country, of any rule or principle of law, written or unwritten, relating to that subject, which, on comparison,- appears different from our own.

It is a well-settled rule, founded on reason and authority, that the lex fori, or, in other words, the laws of the country to whose courts a party appeals for redress, furnish, in all cases, primd facie, the rule of decision ; and if either party wishes the benefit of a different rule or law, as, for instance, the lex domicilii; lex loci contract'ds; or lex loci rei sitee; he must aver and prove it. The courts of a country are presumed to be acquainted only with their own laws; those of other countries are to be averred and proved, like other facts of which courts do not take judicial notice and the mode of proving them, whether they be written or unwritten, has been long established.

The testamentary settlement of Sir William Douglass, and the rights claimed by the parties in this suit, under it, must, therefore, be tested and determined by our own laws. Nothing appears on the record, nor was anything presented on the argument, showing their inapplicability or insufficiency to produce a. just result. On tire contrary, so far as any light, from any source, was furnished, the rules of construction of an instrument like the one under consideration, are the same in both countries; and for'that reason, probably, neither party thought it material to aver or prove the Scotch rules.

The words “heirs of his body,” used by the testator (for so he may be rightly called) in limiting his estate, have a clear, settled and technical meaning, and, beyond all doubt, give the real estate in controversy to the respondent in tail. The only question arising on the settlement is, whether the use of the word children,” in the different connections in which it occurs, in the subsequent parts of the clause, modifies and controls the well-established and technical meaning of the terms, “heirs of the body.” Tested by the rule confirmed and settled in the important case in the House of Lords, of Jes-son v. Wright (2 Bligh 1; see also a full extract *of the case in 2 Jarman’s Pow. 467-72), it appears quite clear, that it does not. That rule is, “that technical words shall ham their legal effect, unless, from subsequent inconsistent words, it is very clear, that the testator meant otherwise.” It is far from being clear, that the testator, in this case, meant otherwise; on the contrary, when the clause is read with the recommendation which immediately follows it’ the conclusion is satisfactory, that he intended the respondent should take an estate-tail in this real property, as his words strictly and technically import. This conclusion render, an examination of the other questions in the cause unnecessary.

Decree affirmed. 
      
       Hull v. Mitcheson, 64 N. Y. 639; Lawson v. Pinckney, 8 J. & Sp.187. The presumption' that the common law prevails in another country, only ap- ■ plies, however, to England, and to those states, which have derived the common law from her. Savage v. O'Neil, 44 N. Y. 298.
     