Scottish Court of Session Decisions

The late Colonel Norman Macalister, a Scotsman, Governor of Penang, or Prince of Wales' Island, in the straits of Malacca, died in 1810, during a voyage from Penang to China. He executed at Penang a holograph testament, which was ineffectual to carry heritable estate, according to the law of England. He was possessed of a considerable estate, both heritable and moveable, and a portion of it consisted of houses and lands in the island of Penang. His executors acting under the testament sold this property; and having raised a multiplepoinding here, for the purpose of extricating the various interests of parties concerned in the succession, three claimants competed for the proceeds of the Penang houses and lands.

It appeared, that by a royal charter, and letters patent, dated in 1807, a court of judicature had been granted to Penang, which was established there in 1808.

The late Alexander Macalister of Strathaird, and afterwards his trustees, maintained, that as he was heir-at-law in heritage, by the law of England, and as the testament was ineffectual to carry heritage according. to that law, which extended to all British colonies, the property fell to him on the death of his brother. Governor Macalister, and the executors must pay over its proceeds or surrogate to him, being truly trust-holders thereof for his behoof.

The late General Keith Macalister, and afterwards his trustees, maintained, that as he was the residuary legatee under the will, the proceeds of the Penang property must fall to him, because the law of England did not prevail at Penang, except in so modified a form that the will was effectual to carry the Penang property. In support of this plea, they averred that Penang was a recent acquisition of the East India Company, from the King of Queda, and that it was ceded to the Company on such conditions as did not amount to an absolute conveyance of it in property; that the island was uninhabited when so acquired, and had since been inhabited by a mixed population of Malays, Chinese, Hindoos, Siamese, Portuguese, &c., besides British; that the British population had always been very insignificant in point of numbers; and that, both in conveyances inter vivos, and in succession after a party's death, there was no distinction between heritable and moveable property, or, at least, if any such were now beginning to be recognised, it was only among the British, and had been introduced since the time when Governor Macalister died; that it was only a modified form of the English law which prevailed in Penang, and that a will like that of Governor Macalister's was sufficient to convey Penang heritage, a fact sufficiently proved by the circumstance that the executors had sold it under the will, and it was on the proceeds so realized that parties were competing.

The trustees of Mrs Frances Macalister, a natural daughter of Governor Macalister, concurred with General Macalister's trustees, in maintaining that the will was effectual to carry the Penang property, but contended that, under a special clause in the will, conveying lands, that property was expressly destined to Mrs Frances Macalister.

After cases were lodged, and the opinions of counsel in India had been obtained, General Macalister's trustees made averments as to the history and actual condition of the usages and laws of Penang, in regard to which the Court allowed them to condescend on “what they aver and offer to prove to be the local customs, and usage, and law of the settlement of Penang, as bearing on this case,” A proof was afterwards allowed, and, being followed by cases on the import of the proof, the Court directed the papers and proof to be laid before the Attorney-General and Sir Edward Sugden, “for their opinion, whether the lands and the houses in Penang, which belonged to the testator Governor Macalister, were or were not effectually passed by his will.”

The following opinion was returned:—“We are of opinion, that the lands and houses in Penang, which belonged to the testator Governor Macalister, did not effectually pass by his will.”

The Court preferred the trustees of Alexander Macalister of Strathaird, the heir-at-law by the law of England, in terms of the opinion.