in these terms: "It is declared, that the contract of marriage between the late Mr. Roger Hog and his wife is not so conceived as to bar a claim to legal provisions, and that the said Mr. Hog is to be considered as having his domicil in Scotland at the time of his wife's death; and that the pursuer has therefore a claim in right of her mother, the wife of the said Mr. Roger Hog, who at the time of her death had his domicil in Scotland, to a share of the moveable estate of her father at the time of her mother's death And it is further declared, that such shares of the stock of the Bank of Scotland, standing in the name of the respondent Thomas Hog at the death of the said Roger Hog, as shall appear to have been transferred to the said Thomas Hog, under any agreement or understanding that he would invest the same in land after the death of the said Roger Hog; and also such shares, the dividends whereof shall appear, notwithstanding the transfer of the same to have been after such transfer ordinarily received for the account of, and applied for the use of, the said Roger Hog, ought to be considered as subject to the pursuer's claim of legitim: And it is therefore ordered and adjudged, that all such parts of the interlocutors complained of in the appeal as are inconsistent with those declarations be reversed; and in so far as they are agreeable thereto, the same shall be affirmed: And it is further ordered, that the cause be remitted back to the Court of Session in Scotland, to ascertain whether any, and which of the shares in the Bank of Scotland, agreeably to the declarations aforesaid, are subject to the pursuer's claim of legitim; and also to ascertain the interests of the pursuer in her father's estate at her mother's death and at his death, regard being had to this declaration: And it is further ordered and adjudged, that it is unnecessary to consider so much of the matter complained of in the cross appeal as relates to the domicil of the said

L

Roger Hog, touching which such declaration has been made, as is herein-before contained; and the said appeal also not having been presented in due time, it is further ordered and adjudged, that the same be dismissed this House." (s)

This appears to be in many respects the most important decision upon points of international law, connected with the subject of the present inquiry, which has been given in either country. Several of the questions discussed in this cause had not before been decided in the courts of England or of Scotland, particularly those in regard to the rights of the husband and wife under a marriage contracted under marriage articles, by parties then domiciled in one country, who afterwards removed into another country, where the rules of the law of succession were different. The opinions of the foreign jurists, which were conflicting opinions, were referred to as authorities by both parties.

On a review of the judgments ultimately pronounced in the different causes, it is difficult to challenge the decision given upon any of the points there decided, though persons of great eminence, when consulted as to some of the

($) In these cases of Hog and Lashley the following foreign jurists were referred to:

Voet, ad Pandectas, lib. 1. tit. 4. de Statutis, s. 11, 12.

lib. 23. tit. 2. s. 87.

lib. 28. tit. 3. s. 2. 12.

lib. 48. tit. 20. s. 7.

Vattel, lib. 2. c. 8. s. 109, 110, 111. 181.

Denisart voce Domicile, s. 3, 4.

Huber. Prælect. jur. civilis et hodierni, pars ii. lib. 1. tit. 3. s. 3. 13, 14.

lib. 3. s. 4. tit. 22, 23.

Rodenburg. tit. 1. c. 2. in fine, tit. 2. c. 2.

Christinæus, Leg. Mechlin. tit. 16. art. 39.

Grotius, lib. 2. c. 7. s. 3.

Puffendorf, lib. 4. c. 11. s. 1.

Peck. de Test. Conjug. lib. 4. C. 18.

points of law contained in the cause, were divided in opinion upon these at the time. (t)

(t) Sir William Grant, when consulted, at one time, gave his opinion, that in so far as not regulated by the marriage articles, the law of England, where the parties were domiciled at the time, ought to regulate the rights of husband and wife during the marriage, and at the dissolution thereof. There is no point which has been more discussed among foreign jurists than this, whether the matrimonial domicil, or the domicil at the time of the dissolution of the marriage (where the domicil has been changed) shall regulate the rights of the parties; and there is a great diversity of opinion among them upon this subject. In America this question has been much discussed, and a vast variety of learning has been brought out upon the subject. (See the point discussed, and the opinions of foreign jurists stated in Story's Commentaries on the Conflict of Laws, 143. et sequen.) The Supreme Court of Law of Louisiana, in the case of Saul v. his Creditors, 17 Martin's R. 571, 572., appears to have considered," that the vast mass of learning which the "research of counsel can furnish, leaves the subject as much involved "in obscurity and doubt, as it would be if one were called upon to "decide, without the knowledge of what others had thought and "written upon it." In this case of Saul v. his Creditors, the court held, "that where a couple had removed from Virginia (their matri"monial domicil) where no community exists, into Louisiana where a community does exist, the acquests and gains acquired after their "removal were to be governed by the law of community in Louisiana.” (Story's Comment. 153.)

The time of the acquisition was not discussed in the case of Lashley v. Hog. But it enters largely into the consideration of the foreign jurists (Story, 144.), and in this respect the American decision differs from ours; Mrs. Lashley's claims attached to the whole succession, whether acquired before or after the change of domicil. The point is curious, and has thus been decided differently in the two countries. It might lead to intricacy of inquiry to be obliged to trace the state of the property at the time of the change of domicil; but this might be done. In the case of Lashley v. Hog there must have been similar difficulty in tracing the state of the property at the dissolution of the marriage.

I regret that I have not yet seen this case of Saul v. his Creditors, at large. I could not find in London a copy of the book containing it (17 Martin's Rep.) From the reference made to it by Kent and Story, appears to have been treated with great learning and research. From the notes of Lord Eldon's speech it does not appear that the

it

What appears to have weighed with the House of Lords was, that there must have been innumerable cases of married persons changing their domicil from one country to the other, or from the province of York to the province of Canterbury, et vice versa; yet that no question had ever occurred in regard to the law which was to regulate the succession in such cases; that the law of the domicil had, in these, by tacit consent, been allowed to rule universally; and that to lay down a contrary rule must be attended with strange consequences, and much inconvenience.

That part of the judgment of the Court of Session, by which the ordinary expences of confirmation and probate were found not to be a burden on the general estate of Roger Hog, was considered by Lord Eldon to have been totally erroneous. It was impossible in England to have got access to the funds in that country, except through a probate or administration granted by the proper Ecclesiastical Court; but, as these funds formed part of the legitim, there was no ground why those entitled to the legitim should not bear their due proportion of that necessary expence; and this could not be arranged otherwise than by taking such expences off the præcipuum of the whole estate; but, by reason of the irregularity in bringing the cross appeal too late, the House of Lords felt itself obliged to affirm this part of the judgment.

The following points appear to have been decided in these causes: 1st, That the succession in personal estate of every description, wherever situated, was to be regulated by the law of the domicil; 2d, That personal estate, though situated in a country where there was an unlimited power of giving by will, could not be carried by an instrument of that nature, executed by a person having his

foreign jurists were much under consideration when the cause of Lashley v. Hog was decided.

domicil in Scotland, to the prejudice of the claims of his wife and children; 3d, That the discharges by the children of their legitim operated not in favour of the father, but in favour of the children who did not discharge; 4th, That conveyances inter viv by the father, of part of his personal estate of which he continued to receive the dividends, did not bar the claims for legitim on such part of his estate; 5th, That a conveyance of personal estate to his eldest son, upon trust or confidence that it should be laid out in the purchase of land after the father's death, did not bar the claims of legitim of the younger children; 6th, That parties married in England, where they had their domicil, by removing to Scotland, and fixing their domicil in that country, changed their own rights and the rights of their children, and subjected these to the rules of succession of the law of Scotland; 7th, That the father's estate was accountable to his children, as in right of their mother, for one third of the goods in communion at the mother's death, the whole having remained with the father undivided. (u)

It must be admitted that this case was, in a popular view, one of very considerable hardship towards the testator. Up to the time of Mr. Hog's death, the lex loci rei site was universally admitted by lawyers in Scotland to regulate in personal succession. While residing in Scotland, and carrying on an extensive business in England, he could have had no idea, that he was incurring a debt to his children as in right of their mother; and, when settling rational and competent provisions upon his other children, and taking their discharges, that he was acquiring such a

(u) Various questions might have been raised, under this branch of the judgment, in regard to the interests or profits to be accounted for by the father after the death of the mother. Upon inquiry, I found that, after the last judgment of the House of Lords, the parties had entered into a compromise in regard to all ulterior matters.