Sayfadaki görseller

of a predeceasing mother. But unpleasant family disputes have arisen, and must arise in the present state of the law, upon this subject. We have seen that the rule of law, according to which the collateral relations of a wife, predeceasing without children, carry off the half of the goods in communion from a surviving husband, might be attended with strange consequences.

6. There appears to be no reason, why a person of illegitimate birth should in Scotland be unable to dispose of his personal estate by will or testamentary disposition, as he may so dispose of it according to the law of England. The habilitation of a bastard, by letters of legitimation from the King, is so easily obtained, that the present state of the law may be said only to affect the poor and the unwary.

But it is not in Scotland only, that alterations may be made with advantage to the public, on the law of personal succession. There are also various matters, which appear to require consideration and revision in the law of England, as connected with this subject.

1. It has been seen that it was well understood, that the statutes of distribution were originally penned with little correctness. (c) The decisions of the Courts have, in addition to, and in explanation of these statutes, established rules, which, in the province of Canterbury, perhaps, could not be very materially improved. But there is reason to doubt whether some of these rules, upon a revision of them, might not still be put upon a more equitable footing. I allude to the succession of the father, in total exclusion of the nearest classes of collaterals; the succession of maternal relations, as upon the same footing, in all cases, with that of the relations on the father's side; and the '

want of distinction,

(c) Supra, p. 36.

in any case, between the relations of the full and those of the half-blood.

2. But the great incongruity in England is, that the law of personal succession is placed upon a different footing in the different parts of that country.

It would be much more convenient, if the whole of England were put under the same rules of succession, instead of having, as at present, one system for the greater part of the province of Canterbury; another for the province of York; a third for the city of London; and other rules for the principality of Wales. It is true, that the universal power of disposing of personal estate by will, has tended to lessen the mischiefs arising from the present state of the law of England in this respect ; but great anomalies still prevail, and, from time to time, form the subject of litigation and discussion. There can be no sound reason why these should not all be blended into one equitable common system.

In every partial alteration that may be adopted in either country, it will be highly expedient to keep in view, that it should have a tendency rather to advance than to retard that period, which sooner or later must arrive, when the rules of the law of personal succession shall be the same in every part of the empire. (d)

(d) It would have led into much too wide a field, to have attempted any inquiry in regard to the rules of the law of personal succession, established in the different dependencies and colonies of the British empire. These are of prodigious extent and variety. It is worthy of remark, that the French, when establishing their code, extended its operation, not only over the whole of France, but over every colony and dependency of the French Empire.



No. 1.

Thomas Hog, Esquire



Esquire, her Husband

:} Respondents.

Notes of what passed in the House of Lords, at the hearing

of the Cause on the 20th and 30th of April, and the 4th and 7th of May, 1792.

(Taken by James Allan Park, Esq. Barrister at Law.)

MR. GRANT * for the Appellant.

This case is brought under the consideration of your Lordships, in order to settle some points of very general importance in the law of Scotland.

By that law, a person having neither wife nor child may dispose of his property in what manner he pleases. In marriage, if there be no special contract to exclude it, a communion of moveables takes place between husband and wife. But if a man die, leaving a wife and children, one third part of his personal property goes to the wife, which is called the jus relictæ ; one third part to the children, which is styled the legitim; and the remainder, called the dead's part, the owner may dispose of to whom he pleases. This right of legitim may be renounced, with or without a consideration; and, upon such renunciation, the general doctrine seems to be, that the share of the child renouncing accrues to the other children, unless a contrary intention of the father has been manifested. From

Afterwards Sir William Grant.

с с 4

what has been said, it appears that the right of legitim goes to one half of whatever personal property the father dies possessed of, that is not affected by the jus relicta.

In this case five points will arise:

1st, What will be the effect of an implied renunciation, supposing it to exist in fact in this case ?

2dly, whether the right of the children to legitim may not be barred by a deed inter vivos, executed by the father in his lifetime ?

3dly, Whether the share of a child renouncing does not accrue to the father, so as to enable him to dispose of it by will ?

4thly, Whether, though the deed executed by Mr. Hog be ineffectual in Scotland, it will not operate as a will in England, so as to convey the personal property in that country, according to the deceased's intention ?

5thly, If not, on the ground that the lex domicilii is to prevail, then, whether the property in the English funds is not to be considered as inmoveable property, and descendible to the heir, which would be the case of any fund in Scotland having a tractus futuri temporis ?

If either of the two first points be decided for the appellant, it will render the consideration of all the latter ones unnecessary, as they both go to the whole question : but the latter questions only go to the quantum of the sum to which Mrs. Lashley will be entitled. Such are the questions arising out of the facts I am going to state to the House.

[Here Mr. Grant stated the facts from the printed case.]

The marriage of the late Mr. Hog was contracted in England, by parties resident in England, and domiciled there; therefore there was no communion of goods between Mr. Hog and his wife, because a settlement was executed upon

the marriage, having a respect to English property and to a marriage in England. It further appears, that all the children were born in England; at their birth, therefore, no right to legitim could attach, but, if it ever attached at all, it must have been subsequent to their birth.

At one period since her marriage, it is clear that Mrs. Lashley had no idea of a right to legitim, for in her letter of 27th February 1771, she speaks of 651., being the interest at five per cent. for the remaining 13001. of my fortune, which words certainly imply all that she ever expected to receive from her father, or thought she had any right to;" and by such

« ÖncekiDevam »