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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 19001. 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.
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REBECCA LASHLEY and Thomas LASHLEY;} Appellants ;
, her , William Thwaites and others, Assignees of
Alexander Hog, a bankrupt, deceased; and Respondents. Thomas Hog Esquire,
Notes of the Speech of the Lord Chancellor (Lord Eldon) at
moving the Judgment in this Cause (4th June 1802).*
This cause came before your Lordships by the appeal of Rebecca Lashley and her husband, Thomas Lashley, for his interest, complaining of an interlocutor pronounced by the Court of Session, in an action of multiple poinding, in which her brother, Thomas Hog, was pursuer. The circumstances of the case are these :
· Roger Hog, the father of the Appellant and of Thomas Hog, died in March, 1789. Soon after this event, an action was raised by the Appellants against the Respondent Thomas Hog, as heir to his father, as representing him on some one or other of the passive titles known in law, and as universal intromitter with his goods and gear; stating that he was indebted to the pursuer, Rebecca, in the sum of 15,0001., as her share of the goods in communion at her mother's death, as one of the next in kin of her mother (this part of the summons is at present under the consideration of your Lordships in another appeal); it states, also, that he was indebted to her in the further sum of 15,0001., as her share of the means and estate of her father at his death, together with interest on these two sums from the date when they ought to have been paid, till payment.
Thomas Hog's defences were, that the claims were barred by the rational and ample provisions made by the father in favour of the Appellent and his other younger children, which were accepted of by them.
Mrs. Lashley claimed as one of the six children of her mother; but she claimed the whole of the legitim at the death of her father, suggesting, or insisting, that all the other children had discharged their claims. In his defences, Mr. Hog put on record bis belief that the other children had renounced, but at the same time insisting that the benefit of such renunciations accrued to him; and he contended that Mrs. Lashley also had renounced her legitim ; he insisted on the points also in which Alexander Hog was interested ; viz., 66 that
* From my own notes taken at the time.
any claim of legitim was excluded by the trust deed of settlement executed by the father in liege poustie ; that the effects in England were not liable to any claim of legitim ; that, with regard to the effects in Scotland, the renunciations of the children must operate in his (Thomas's) favour; and that the father was domiciled in England at the time of his wife's death." These, as also the consequence of the father having invested a considerable part of his personal property in the name of his son, are the subject of argument in the other depending clause.
On the 2d of December, 1790, the Court pronounced an interlocutor, finding that Mrs. Lashley's claim of legitim was not barred by any thing done by her, and remitting to the Lord Ordinary to hear the parties upon the effect of the discharges of their legitim by the other children.
It is difficult to conceive, that Alexander and his assignees did not know of this decision.
On the 7th of May, 1792, the judgment, in an appeal by Thomas Hog from the decision of the Court of Session, was pronounced, affirming the interlocutors which settled that the renunciations of the other children operated in favour of the Appellant, Rebecca, but leaving unascertained what was the amount of the personal estate which was the subject of the claim. This involved questions of too great magnitude to receive an early decision; and, indeed, with regard to some of them, I may now observe that they are not very likely yet to be soon decided.
Mr. Hog bona fide understood that all the other children had renounced, and also that Mrs. Lashley herself had renounced. In consequence of the affirmance of these interlocutors, many of the questions, which were interesting to the other children, as well as to Mrs. Lashley, came to an end.
The assignees of Alexander now thought proper to make a claim, by saying that he (Alexander) was entitled to legitim as well as Mrs. Lashley, and in consequence they raised the the same kind of action, insisting that he had done no act in