expressions, every idea of a mere temporary allowance to a child is removed. Mr. Hog himself certainly entertained the same idea, for in 1775, he executed formal bonds of provision in favour of Mrs. Lashley and his other daughters, in which he mentions 2000l. to be in full satisfaction of the legitim. In 1785, he made a further provision, also excluding the legitim.

It must be admitted, that if this were entirely the case of a Scotch succession, and no will, there would have been a division amongst the younger children, unless they had renounced. But in this case, the Appellant, Mr. Hog, proved the deed, which was executed in his favour by his father in 1787, as a will of personal property in England. Soon after the death of her father, Mrs. Lashley brought this action. In the Court below, several defences were set up by Mr. Hog, the Appellant.

First, it was contended, that Mrs. Lashley's claim to the legitim was wholly excluded by her acceptance of the provision made by her father; and that the facts and circumstances in this case amounted to a renunciation.

The second answer made to her demand was, that Mr. Hog, the father, had not left his property to be disposed of by the law, but that he had disposed of it by a rational deed inter vivos, which it was competent for him to do. These two defences, if either of them had prevailed, would have been an answer to the whole of Mrs. Lashley's demand.

But it was further contended below, by way of partial defence, that, as there was property in England, upon which the deed executed by Mr. Hog could operate as a will, that property must be excluded from the claim of legitim.

It was further insisted, that a renunciation by the other children had no effect to increase Mrs. Lashley's share of legitim, but only gave Mr. Hog, the father, a power to dispose of it.

Lastly, it was contended, that the property in the English funds would go to the heir, and not to the executor; for it was either affected by the will, which gave it to Mr. Hog, the Appellant; or, if the law of the domicil prevented the will from having its due operation, the same law must be resorted to, to show how it must descend; and that law in this case would carry it to the heir.

These were the points rested upon below; but I must admit they were all decided against us, and I am now to trouble your Lordships with arguments in support of them.

The first point is as to the effect of Mrs. Lashley's acceptance. The correspondence contained in the second and third pages of the Appellants' printed case, proves, by the uniform expressions, Mr. Hog's intention to give Mrs. Lashley the same, and no larger fortune, than he bestowed upon his other daughters; and also Mrs. L.'s intention to accept it as her fortune. Fortune is a word of a particular import, and is always used to signify the whole sum that a parent means to bestow upon a child.

The renunciation of various rights may be collected from facts and circumstances, as well as by deed, unless there be some express law to the contrary, which is not pretended to exist in this case. The other children of Mr. Hog were executing formal deeds of provision, and in them a clause of renunciation was inserted. She, not being with her father, did not execute such an instrument, and therefore there is no formal renunciation; but words are frequently used by Mrs. Lashley and her husband tantamount to it. In her bills drawn for 651. per annum, she mentions it as interest due to her, which proves she could not be speaking of a bounty or temporary provision. Mr. Hog having acquiesced in the statement of 2000l. as her fortune, if an action had been brought against him or his executors for that sum, they could not have defended themselves against such a demand. If so, the obligation must be mutual, and I contend, that Mrs. Lashley is debarred from her legitim, because she consents to accept of 2000l. as her fortune. But, supposing your Lordships to hold that there must be an express renunciation, then I contend,

Secondly, that by a rational deed executed inter vivos, in liege poustie, not upon death-bed, the father may exclude the legitim. Mr. Erskine (book iii. tit. 9. s. 16.) says, "that rational deeds granted by the father in relation to his moveable estate, if they be executed in the form of a disposition inter vivos, are sustained, though their effect should be suspended till his death." Is there any thing irrational in Mr. Hog's settlement? Erskine's position is supported and confirmed by adjudged

cases;

The case of Johnston v. Johnston, from Fountainhall, mentioned in Dict. of Dec. vol. i. tit. Legitim, p. 545.* To the same point is the case of Lady Balmain, in the same

* Lord Kames's Dictionary of Decisions is here referred to.

page, which was to this effect: A disposition by a husband to his wife of the stocking that should be upon his mains at the time of his decease, being objected to by his children as in prejudice of their legitim, being of a testamentary nature, revocable, as not having been a delivered evident; it was answered, that the form of the deed is per modum actus inter vivos, whereby a present right is conveyed, though suspended till the grantor's death, and being done in liege poustie, it cannot be reached by the law of deathbed, and there lies no other bar to the father's power of alienation.

These cases are in point, and no contrary determination has been stated, where the claim of the children has prevailed against a rational disposition of the father. Formerly a man could not disappoint the heir as to the descent of real estate, but the power of disposal as to such property has increased, by merely using words of disposition instead of words of devising. If the shackles are thus taken off as to real estate, it is strange that they should still be continued upon personal property. To establish so absurd a principle, your Lordships will think it necessary to be furnished with a long chain of concurrent authorities, and even that will hardly be sufficient in a matter so contrary to reason. In the law of Scotland till lately, the lex loci rei sita was supposed to be the law that was to govern, and all the decisions are uniformly that way; but now, by a decision of your Lordships, in Bruce v. Bruce *, the rule of the lex domicilii has been established. Therefore, even if the decisions were against me, which I have shown they are not, your Lordships ought to decide for the appellant, upon the principle of removing as much as possible all restraints upon property, and the disposition of it.

Thirdly, as to the effect of the renunciation of the other children. When a father advances a fortune to one child, that child and the father are the only parties to the contract, and the other children have no right to interfere. If any advantage results from that agreement, the father ought to have the benefit of it, and he ought also to have the power disposing. I admit it is laid down in general, that the share renounced goes to the other children wholly, and not to the heir; but all the cases decided on that point are where the father dies intestate, and where that is the case, he is presumed

of

not to have chosen to exercise the right he acquired. From making no disposition, it is evident he meant to benefit the other younger children; and whether a child shall or shall not be barred of legitim is entirely a question of intention; for even where a father makes a provision for a child, he may exempt such child from the necessity of collating such provision. The only case material upon the subject, is that of Henderson against Henderson (Dict. of Dec. vol. i. p. 545.), and that is apparently against me. But in that case there was no renunciation, and therefore I contend that there is no case in which a child has renounced, and the father has made a will acting upon that renounced share, to be found against me.

The fourth question is, how far the deed executed in Scotland by Mr. Hog will be effectual in England as a will, so as to bind the property in England. I am bound to admit after the decision of this house in Bruce v. Bruce, that the lex domicilii is the rule of decision that must prevail as to the disposition of property where the party dies intestate. For it certainly would be extremely inconvenient that many different rules should prevail in the disposition of property belonging to the same individual. It would also be probably inconsistent with the intention of the proprietor, for where he dies intestate, it may be presumed that he approved of the law of his domicil. But how is this rule to be preserved where the property is in another country, and the law of the domicil can only extend to its own territories, so as not to be able to compel the foreign state, where the property actually lies, to enforce it? It is done in this way: the foreign state adopts the law of the domicil, not as a rule binding upon them, but as the presumed will of the deceased; or they resort to a fiction, by saying that moveables have no situs, but are attached to the person of the owner. It is necessity only that obliges a court of justice to resort to either the one or the other of these means. But the case is very different where a disposition is made, which would be effectual to transfer property in England, if the property be actually there. For, supposing a man has made a disposition effectual by the law of the country where the property happens to be, what reason or necessity is there to resort either to the presumption of implied will, or to the fiction? The law of Scotland does not deny to the owner the power of disposition, but only the form in which it is conceived: now, that is a mere local regulation, and ought not to bind the courts of any other country.

I agree with the argument, that it would be impolitic in the commercial world, that the lex loci should govern the disposition of property accidentally there in a course of commerce. The opinion of Lord Hardwicke, in Thorne v. Watkins, 2 Ves. 35.*, turns entirely upon the policy in a case of intestacy. But where a man makes a will, the question of policy does not arise.

Fifthly, as to the property in the English funds. It is a clear principle of the law of Scotland, that annuities are considered as heritable, and descend to the heir; and therefore, if the lex domicilii is to prevail, you must apply it to the whole of the property, which will exclude Mrs. Lashley from any share of that property which is in the English funds. It is true, that by the law of England, such property is considered as personal; but then that must be with reference to cases in England, the parties being English, and domiciled there. It does not seem to have been a question much agitated by writers on general law, what rule is in general to prevail, whether the lex domicilii or the lex loci, as to the point whether the property is to be considered as moveable or immoveable. Pothier (vol. iii. p. 528. s. 85.), in treating of the communion of goods between married persons, clearly states the point, and declares it to be settled, that the law of the domicil where the creditor resides, is the rule that is to prevail, and that decision seems to be agreeable to reason. If that rule prevails, then Mrs. Lashley cannot claim legitim in the English funds, because they are not the subject of legitim, but descend to the heir.

These are all the grounds of defence upon which a partial or total reversal of the judgment is prayed.

April 30th, 1792.

Adjourned.

Mr. Anstruther spoke on same side with Mr. Grant, and took precisely the same grounds, and therefore it was not thought necessary to report his arguments.

Lord Advocate + on the side of the Respondents.

I am to trouble the House in support of a judgment which, except upon the point of testate or intestate succession, was an unanimous one in the Court below.

*Supra, p. 109.

† Robert Dundas, afterwards Lord Chief Baron.