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In the year 1734, it became a question, whether a composition with the wife for her customary part would accrue to the benefit of the father or the children. It was held, that, in such a case, it should be taken, as if the wife were dead; so that the father would have one moiety, and the children the other : 1 P. Wms. 644. In 2 Vez. 592, Lord Hardwicke enters into the history of the cases, and holds it to be settled, that a composition with the wife has the same effect as if she were dead. If, then, the father takes no peculiar or exclusive benefit by a composition with the wife, it should seem strange if a contrary rule prevailed on a composition with the children. But, from what is said in 4 Burn, tit. Wills, p. 376., the inference is, that the same rule prevails on a composition with the children.
In this case it is argued, that, as the father might easily have defeated the right of legitim, the mode he has adopted will do as well as any other, although the law of the country has said directly the contrary. The question is, has he done that act, which the law has required him to do, in order to defeat this right ? Will this deed, coupled with the bond of of provision, exclude the right of legitim? The bond alone will not do, because it remained in his bureau till the moment of his death: and as to the deed, no single judge in the Court below had a doubt
it. The deed, as to the personal estate, is merely in the form of a Scotch testament. A deed with a power of revocation vests a present interest, subject, however, to be defeated by the act of the donor. But a deed to have no effect, till the death of the donor, is
The cases quoted on this subject are not analogous to it. Johnstone's case, if it were analogous, is of doubtful authority. Lady Balmain's case is not applicable ; and the last case upon the subject, of Henderson v. Henderson, is decisive against both the former.
The third question goes as to the extent of the legitim; and it seems that, in a case of intestate succession, Mrs. Lashley would be clearly entitled to legitim, both as to the English and Scotch effects. Taking it for granted, that the case of Bruce v. Bruce, in the House of Lords, has decided the point, that the law of the domicil must be resorted to as the rule in a case of intestate succession, it seems to me to apply much stronger in a case of testate succession. If the lex loci is to govern in a case of the latter sort, is it to be the lex loci rei sitæ at the time when the will is made, or at the time when
the owner dies ? If the law of the domicil is not to prevail, how many
different laws are ? For if it be not, the disposition of property must depend, not upon the will of the owner, but on the situation of the various persons in whose hands his effects may happen to be placed: nay, it may depend even upon their caprice, or will, rather than upon that of the owner; for a creditor will have nothing to do, but to change his place of abode, and the will of the owner is again defeated.
But I contend that this cannot be the rule; for if a man makes a will, though he uses words which, in the country where the personal property happens to lie, would convey every thing, yet it will be restrained in its operation by the law of the domicil. In other terms, if a man in Scotland devises all his personal estate, and the law of the country only permits him to devise the half, neither would it convey more in England. The law of Scotland, upon this point, is clear and decisive: the passages have been read to you by the Lord Advocate, and they are all stated in the Respondents' case, p. 8. The law of England is no less plain upon the point, and is fully stated by Lord Hardwicke in Thorne v. Watkins, 2 Vez. 35. And in that case L. H. evidently meant to allude, either to a case of testate or intestate succession; for he speaks of probate or administration.
The case of Kilpatrick, at the Rolls, must carry great weight; for although the case was not argued at the bar with much pertinacity, yet Lord Kenyon considered the subject, and founded his decree upon the report of what the rule of the Scotch law was; and that was the case of a will.
In the case of the jus relictæ, as well as of the legitim, there is good reason for declaring, that the law of the domicil shall prevail ; for parties contracting matrimony may be reasonably supposed to have a view to those advantages and benefits, which the laws of their country, by virtue of that relation, entitle them to expect. There ought, then, to be the highest authority to say, that a man who is, and continues to be, domiciled in Scotland shall not be enabled, by placing his property in the English funds, to disappoint the reasonable expectations of his wife, who, by the law of his and her domi. cil, is entitled to one half of his personal estate, where there are no children ; or, if there be any, to defeat both her and them of their legal claims.
In the case of the custom of London, if a freeman of London had disposed of all his personal estate, it was only held
to mean, all he had a power to dispose of under the custom ; and it was held that that extended to property out of, as well as within, the jurisdiction ; for Lord Hardwicke says expressly, that debts due to a freeman any where are distributable according to the custom.
The fourth point is, as to the effect which the renunciation by the other children shall have. I contend that it is in the nature of a bargain made by the father with the child renouncing for the benefit of the other children. It is a contract that the child renouncing will not claim any part of the father's fortune; but it is not a contract that the father shall claim the renounced share, instead of the renouncer. It is unnecessary to argue this point as an abstract proposition, because it has been decided over and over again ; and therefore it is too late to argue upon the reason of the thing, or upon the policy or expediency of such a rule having been adopted.
Fifthly, as to the question, whether the property of the late Mr. Hog in the English funds is to be considered as moveable or immoveable property; it has been assumed, in argument, that if these funds were in Scotland, they would be deemed heritable property; but that is a position which I absolutely deny. Rights of this nature, which are deemed to be heritable by the law of Scotland, are such as carry a yearly profit, without relation to any capital sum or stock. But your Lordships know that the Five per Cent. Annuities depend upon the capital stock; for it is in respect of his capital stock that the holder of it is entitled to an annuity. If he propose to transfer it, he does not transfer an annuity, but the stock. The legislature has expressly declared that his fund shall be considered as personal, and shall go to the executor. Shall a different rule prevail in Scotland, from what the wisdom of Parliament has pointed out ?
Shall they go to the Scotch executor as trustee for the heir at law, and to the English executor for the benefit of the next of kin under the statute of distributions ? Upon this point the authority of Mr. Erskine (book ii. tit. 2. s. s.) is express, where he says, that “ the shares of proprietors in any public company or corporation, constituted either by statute or patent, are considered as moveable.”
May 7th, 1792. Mr. Grant, in reply: - One great question is, whether the legitim has not been renounced. Renunciation of a right may in many cases be inferred from circumstances. It is, indeed, said that nothing but an express renunciation will do in the special instance of legitim. In this case, Mr. Hog's intention is clearly manifested from his correspondence, that Mrs. Lashley was to expect nothing but 20001. The letters on the other hand state 13001. to be the remainder of her fortune. Remainder is a relative term, and can only have a reference to a whole. The term fortune must mean something which the father intends to advance, in satisfaction of every other expectation from her father.
With respect to the question, whether the deed executed by the late Mr. Hog would, in its operation, defeat the legitim, it is admitted to be law, that, by a rational deed inter vivos, it may be defeated. An attempt, however, is made to distinguish that case from this, by saying that this is a testament; but the words used are not words of a testamentary nature, but words of disposition ; and although there be a nomination of executor, yet that was unnecessary, as Mr. Hog's right would be complete without it. Even though there were a clause of revocation, still it would not be a testament : such a clause was, indeed, useless ; for while it remained undelivered in custody of the donor, it was necessarily revocable. The case of Henderson v. Henderson is the only thing against us on this point : and with respect to it I can only observe, that, although it was decided long before Erskine wrote, he did not think it of sufficient weight to induce him to alter the doctrine advanced by him in the passage I formerly alluded to.
The cases on the custom of London do not apply to this point. There are personal and local customs : those of London were of the former kind, and were attached to the person of the freeman ; the latter description applies to the legitim. So by the custom of York, a person, though bound by the custom as to property locally situated within the province, might dispose of property lying without the province.
The inconvenience of different laws operating upon one man's property would not arise from my argument; for, as it seems to me, if a man has in general a power of disposition, all foreign states ought to adopt it to its utmost extent. Every man who makes a will means to dispose of all he can; and though it may not be a good disposition as to the whole, in his own country, yet every other country ought to receive it as binding, jure gentium. As to Lord Hardwicke's opinion in Thorne v. Watkins, that foreigners would be discouraged from lodging money
in the British funds if, at their death, it was to be distributed differently from the laws of their own country, I should rather think it would operate as an encouragement, that they would have a full power of disposition free from the shackles and restraints of their own local regulations.
With regard to the operation of the will upon the English funds, I conceive, clearly, if it were a Scotch fund, it would descend to the heir; for there is no capital stock which a creditor would have a right to demand : all that he could insist upon would be the payment of an annuity from government. The particular fund is not even redeemable at the will of the debtor; for the act of parliament states a certain time, within which they shall not be redeemable; so that there is a period, during which there only exists a right to receive an annuity. It has been said, that the statute has made this personal estate : but has not the same statute declared it to be devisable? If you rely upon it as declaring it personalty, I also contend that it enabled Mr. Hog to devise it. Does not that act, then, operate as a repeal of the general law of legitim, as much as the act of parliament which enabled freemen of London to make a will was a repeal of the custom ?
Lord Chancellor. — Supposing no act of parliament had passed to enable a freeman of London to make a will, your argument goes the length of contending, that this statute, creating the Five per Cent. Annuities, would have been a virtual repeal of the custom as to money in those funds.
Mr. Grant. — I certainly must so contend. As to the effect of the renunciation of the other children, I can find no case which has been decided where the father has died testate. And it is a little singular that, although every judge below admitted that the reasonableness was all on the side of the Appellant, they have decided against him, without any precedent in support of their judgment. It is admitted that the children have no claim over it during their father's life; and it seems very immaterial to them whether the diminution of the legitim be occasioned by the father's spending it, or advancing a child. The Lord Chancellor moved to affirm the judgment.*
* According to the then usual practice, in a case of affirmance, nothing was said by his Lordship upon this occasion.