The points of this cause are,

1st, Whether Mrs. Lashley is barred of her legitim by any act of hers?

2dly, Whether the deed executed by Mr. Hog is such as to entitle his son to defeat the legitim?

3dly, Whether the shares of the children renouncing accrue to the heir?

4thly, Whether the deed executed by Mr. Hog will be effectual as a will upon the property in England?

5thly, Whether the property in the English funds is to be considered as moveable or immoveable?

1st, Homologation, by the law of Scotland, is, where a party, by actual or presumed acceptance, releases or confirms a contract. But, in order to make such an act binding, it must appear that the party releasing or confirming did so with full knowledge of what he was doing. Now, in this case, the letters that have been produced do not even state that the legitim was at all a subject even of consideration. The sum of 2000l., so much spoken of, was merely a matter of bounty from the late Mr. Hog. The case did not admit of homologation; for Mrs. Lashley's legal claims were never even stated or taken notice of in the whole correspondence. The sum of 700l. was so far from being in part satisfaction of the legitim, that it was money lent, for which Mr. Hog took a bond, that he might at any time, even to the time of his death, have put in suit and enforced. If the 65l. was meant as the annual interest of Mrs. Lashley's fortune, it is strange that Mr. Hog should still talk of the 7007. as a debt, which he does in all his letters. As late as the year 1772 he speaks of the 65l. per annum as an annuity and bounty during pleasure. Erskine (book iii. tit. 9. s. 23.) expressly declares, that a virtual renunciation of the legitim will not do, in the following terms, after stating that it may be renounced by a child, even without satisfaction: "As this right of legitim is strongly founded in nature, the renunciation of it is not to be inferred by implication. It is not to be presumed either from the child's marriage, or his carrying on a trade by himself, or even his acceptance of a special provision from the father at his marriage, if he have not expressly accepted of the provision in full satisfaction of the legitim." This right, though it be not necessary, in order to decide this case, to discuss the nature of it, seems to me to partake more of the jus crediti than a right of succession; although that jus crediti may certainly be defeated in the lifetime of the father.

This brings me to the second point; namely, whether Mrs. Lashley's claim to the legitim is barred by any act of her father, Mr. Hog. I contend that the instrument produced, as far as the moveable property is concerned, is really a testament, and not a deed inter vivos. Now it is clear, from the authority of Mr. Erskine (book iii. tit. 9. s. 16.), that a husband, though he should be in liege poustie, cannot dispose of his movcables to the prejudice of the jus relicta, or right of legitim, by way of testament, or, indeed, by any revocable deed." The question, then, is, whether the deed in question falls under the description of a deed inter vivos? It is certainly good as to heritable estate; but when he comes to dispose of his personalty, it is a mere testament, for he appoints executors, &c. The cases quoted do not affect my argument, for those were cases of rational deeds inter vivos; but I insist upon this, as being a mere testament of personal property.

DLE

BOD

ILLUMEA

May 4th, 1792.

The Lord Advocate proceeded.

The third point is as to the effect of the renunciation by the other children of Mr. Hog; and I contend that the benefit of that renunciation does not tend to the profit either of the father, or of the heir, but tends to increase the legitim. It has been much argued here and below upon the policy and expediency of the measure. But after authorities so numerous, and of so much weight, and the variety of decisions in support of those authorities, it is impossible to recur to arguments of general policy. The renunciation of the legitim is not understood as a bargain between the father and the child renouncing; but the child, by anticipation, receives his legitim, and, therefore, it is but justice that those who remain should have their share. The authorities quoted in the case of the Respondent, p. 10., are all unanimous.

The first is the instructions given for the guidance of the commissaries as to the confirmation of testaments in 1606. Lord Stair, book iii. tit. 8. s. 46.

Lord Bankton, book iii. tit. 8. s. 15.

Erskine, book iii. tit. 9. s. 23.

These authorities all concur in establishing the rule, that a child's renunciation of the legitim has the same effect in regard to the younger children, as the death of the renouncer, so that his share divides equally among the rest.

This doctrine was admitted in its full extent, by all the judges in Scotland in this case, except one (Lord Dreghorn), who has argued on the contrary side upon principles of policy, and upon grounds of expediency, which are wholly inadmissible in this case.

The fourth point is, whether or not the will of Mr. Hog is to have an operation upon the property in England, notwithstanding the law of the domicil. In the case of Bruce v. Bruce, the House of Lords certainly did state an opinion upon the general point of the law of the domicil, in a case of intestate succession; but the same rule must apply to a case of testate succession. If it be admitted that moveables are supposed to be where the owner is domiciled, then the case is clearly with my client, because then the will can have no effect; for if this will were produced in Scotland, it could not defeat the legitim. Can a court of law, by a mere transmission into another country, give validity to an instrument which it could not have in the country where the party executing it resided?

In the case of Kilpatrick, before Lord Kenyon, then Master of the Rolls (Respondent's case, p. 7.)*, the matter was viewed in this very light; and the only question was, whether the will was good by the law of Scotland? Whenever that point was ascertained, the decree proceeded according to that law.

In Dirleton's Doubts (Respondent's case, p. 8.), it is said that "testamenti factio ought, in all reason, to follow the person."

Lord Kames (same page) puts a case as to the jus relictæ, and concludes with an observation equally applicable to this point. "At any rate, the jus relictæ must have its effect as to his moveables in Scotland; and it would be a little strange to say that his transient effects should be withdrawn, for no better reason than that they happen accidentally to be in a foreign country, where the jus relicta does not obtain." Nor does this doctrine at all militate against the truth of the position, that when a person follows property into a foreign country, in any process, he must conform to the modes pointed out in that country where the debtor resides.

Fifthly, as to the question, whether the money lodged in the Five per cent. Annuities is to be considered as moveable or immoveable: It is said, that if the law of the domicil is to be resorted to on one point, namely, as to the testate or intestate

* Supra, p. 116.

succession, so it must on every other; and then it is insisted, that, by the law of the domicil, this particular species of property would be considered as heritable, and, consequently, must descend to the heir. But we contend, that if these funds had been locally situated in Scotland, they would still have been deemed moveable.

There are, by the law of Scotland, certain particular rights, having a tractus futuri temporis, and carrying a yearly profit to the creditor, without relation to any capital sum or stock, that are heritable. But the funds in question have not a tractus futuri temporis within the meaning of this law; for, in order to make such a subject heritable, it must be a substantive right, without relation to any capital sum or stock.

This question occurred in the beginning of this century, and again in 1735; and it was then solemnly decided, that the shares of the Bank of Scotland are not heritable, but simply moveable. The Five per Cent. Annuities fall precisely within Mr. Erskine's description of that species of property which is not to be considered as having a tractus futuri temporis. See the whole passage from book ii. tit. 2. s. 6., quoted in Respondents' case, p. 8.

Besides, if there were any doubt upon the law of Scotland, this is a British debt, and the act of 25 Geo. III. c. 32. s. 7. declares it to be personal estate.

Mr. Solicitor-General*, on the same side, after stating the five points that had been made in the cause, proceeded thus:— The claim of legitim by the law of Scotland is exactly similar to the orphan's share in the custom of London; and it is singular, that there is hardly any question which has been agitated as to the right of legitim, that has not also arisen with respect to that custom; and every decision upon it has been conformable to the decisions in Scotland.

The first point is, whether my clients, the Respondents, are barred by any homologation or acceptance.

The legitim cannot be barred by an implied assent: and, upon this point, without entering into a discussion of the law, I rely upon the fact. In the whole of the correspondence relied upon for the Appellant, no contract appears for any precise sum to be given for the legitim; and even if a sum were mentioned, no terms are imposed, nor even hinted at, that have the smallest connection with legitim.

* Sir John Scott, afterwards Lord Eldon.

The bond referred to by Mr. Hog, in his letter of September, 1768, was reserved by him in his repositories to his last moments, and might have been put in suit at any time. When, in another place, he proposes the sum of 2000l. as an equal share with his other daughters; he does not even state their renunciation of their claim of legitim, or his expectation that Mrs. Lashley would do the same. In another letter, Mr. Hog speaks of his bounty to Mrs. L.; and, so late as 1772, he says, he will continue his bounty so long as her behaviour merits it. In one of the deeds of provision, also, he recites that 700. was due by Mr. L. upon bond; so that he himself never considered it as an advance in satisfaction of the legitim. Indeed, the idea of giving up the legitim never was the subject of consideration with any of these parties.

The Lord Chancellor* asked, whether it was admitted that the husband after marriage might renounce the wife's share of legitim.

Mr. Solicitor General.-I do not admit it; for if a husband renounced his wife's share under the custom of London, and she survived her husband, I doubt very much whether she would be barred by that renunciation.

The second point is, whether Mrs. L. is barred by any act of her father, Mr. Hog. A great many acts might be done by a freeman of London to defeat the custom: but if he did any act, which turned out to be a will, it was held to be a fraud upon the custom, and, therefore, void. So held in the case of Tomkyns v. Ladbroke, 2 Vezey, 561., where Lord Hardwicke said, that a freeman may by act in his life, and even in extremis, give away any parts of his personal estate, provided he divests himself of all property in it; though, if he reserve to himself a power over it, that is considered as void. The act of the father was of a testamentary nature, and, therefore, must be judged to be an act in fraud of the custom. So, in this case, the deed executed by Mr. Hog was in fraud of the legitim, and, therefore, void. I cannot forbear to mention in this place some other peculiarities in the custom of London, which apply to other parts of the cause. It appears that the custom attached upon property not locally situated within the city, so that the will of a freeman would no more operate upon it than if within the walls: 4 Burn, Eccles. Law, tit. Wills, p. 378.

* Lord Thurlow.