material in this case, which is as to the amount of that property which is to be considered as subject to the legitim; and that question chiefly respects several shares of the stock of the Bank of Scotland; and the true question upon that will be this, whether the property in the stock of the Bank of Scotland was, at the death of Mr. Roger Hog, to be considered (for the purposes with reference to which his children can claim) as the property of Mr. Roger Hog, whatever might be the apparent ownership of it; or whether, on the other hand, it was to be considered as property with reference to which he had, to all intents and purposes connected with the question of legitim, divested himself of all ownership, and had bona fide, out and out, given that property to his son Thomas Hog in his lifetime. It cannot be denied, in any way of stating the question, that the claim of legitim attaches only on that which is the moveable property of the father at his death, and, therefore, ceased to be the property of the father at his death; the children can claim only against that which was the property of the father at his death, subject always to the consideration of what acts can be said to put an end to the property of the father previous to his death, regard being had to the principles of the law as these respect fraud upon fair claims, attending to the nature of those claims.

The first question, therefore, is, whether, under the circumstances, Mrs. Lashley has any claim under her mother?

The next question is, what is the amount of the property to which she has a claim? That depends also upon the question, what claims Mr. Thomas Hog has, and what right Mr. Thomas Hog has to call upon Mr. and Mrs. Lashley to bring into division or into collation those sums of money and those provisions which have been advanced by the father to Mr. Lashley or to Mrs. Lashley during the lifetime of the father. When these claims are settled, it will, of course, be ascertained what is the amount of that property upon which this claim of legitim attaches.

With respect to the first of these questions, it certainly is an extremely important question, which, it appears to me, has been hitherto unprejudiced by any direct decision, but, as it seems to me, by no means unaffected by the establishment of principles which have application to it: it is this, whether, when a person marries in one country, and on that marriage a contract is entered into, but which contract, in the terms of it, has no relation whatever to the personal property of the hus

band, such as it is at the time of the marriage, such as it shall be subsequent to the time of the marriage, or such as it may be at the death of the husband; whether, because, in fact, the marriage took place in England, whatever may be the change of domicil of the husband subsequent to the marriage, and whatever shall be said to be in law the place of his domicil at the time of his death; the administration of his estate in that place where he dies domiciled is to be an administration, as far as it respects his wife, with reference, not to the law of the place where he died domiciled, but to the law of the place where the marriage was had; and then stating that, whatever might have been her claims if she had been married in the place where her husband died, let her husband die domiciled where he may, she neither has nor can have any other rights than those which she would have had if the husband had died domiciled in the place where the marriage was entered into.

This question comes to be important, because your Lordships will observe that there is a great difference, particularly in this case, which is the case of a predeceasing wife, between the claims of her children, and what would be the claims of her children, if the rights of the mother are to be determined upon by the law of Scotland, or by the law of England. Under the law of England, I need not state to your Lordships that, where the wife predeceases the husband, and there has been no convention or provision upon her marriage; when she dies, instead of any body representing her, having any claim as against the husband, her husband has a title to be her universal representative against any children she had, and all other persons in the world. The law of Scotland is not so, because that law recognises what is called the communion of goods in the married state, and by virtue of that law the wife has certain interests, if she predeceases the husband; she and her husband being considered as entitled, in communion and society, in the personal estate, and the society and communion expiring by the dissolution of the marriage: in consequence of her death, the property comes to be severed, and her children, as her children, have a right to a part of the property of the husband, as representing her, against the husband himself. The proportion, in the case of the wife dying after her husband, seems to be pretty much the same as in the law of England: if he predeceases her in England, dying intestate, leaving children, your Lordships know her share is one third, and the children have the other two thirds; if there are no children, her propor

tion is a moiety; and the next of kin, not standing in the condition of children, take the other moiety. So, in the law of Scotland, her right is different, in respect to the proportion or extent of her claim, in respect of her husband's dying with children, or without children. I think, if he dies with children, she is entitled to a third, and to a moiety if he dies without children.

In order, therefore, to state this question to your Lordships, we must consider, first, what would be the case supposing the wife had died after the husband; and see how far the principles we shall establish to regulate that case, will apply to the case of the wife predeceasing her husband. When it was stated, at the bar here, that the locus contractus matrimonii must govern, one's attention was naturally called to the consideration of all the difficulties that presented themselves, as consequential upon that way of stating the proposition. I am ready to admit, there are considerable difficulties upon any state of the proposition; and yet, to a mind informed as that of an English lawyer is, as he is informed by his habits, I own it appears to me one of the most extraordinary propositions I had ever heard, notwithstanding the passages that are found in text writers upon the subject, that it could be maintained, as an universal proposition at least, that the locus contractus matrimonii was to govern. is, no doubt, one question, what is an universal proposition to be acted upon in England, Scotland, or any where else, as a principle of sound law, to be adopted every where. And another thing to say, what is to be considered as being the law of England upon the point. When one recollects what has been the universal practice in regard to the administration, in this country, of the effects of intestates, under all the circumstances which have obtained, under all the changes and mutations of instruments which parties make in their lifetimes, I believe it never occurred to any persons who have sat in those courts, in which they administer the estates and effects of intestates, to think of the question, where was the party married? in order to decide what was the share a wife was to take of her husband's personalty.

It

This is very familiar to us in this country, because your Lordships know very well that the distribution of the personal estate of intestates is in different proportions in different parts of England where a person's estate, for instance, is to be distributed as the personal estate of an individual living in that district in which the custom of the province of York obtains,

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the wife is there entitled to five ninths; and if the locus contractus matrimonii is to determine upon her rights, where there is no domicile in the province, I believe I should state a doctrine that would extremely surprise all those inhabitants of London, who have transplanted themselves from the parts to which I am now alluding, if I were to tell them, if they happened to die domiciled in the province of Canterbury, where the wife's share is one third, that it was not the circumstance of being themselves domiciled within the province of Canterbury, which was to regulate this; but that the circumstance that the marriage had been had in that part of this kingdom on which the custom of the province of York attaches, was to decide upon it; and that it was to decide upon it with no communication, and no agreement between the parties at the time of the marriage. Upon this doctrine the result would be, that if a man domiciled within the province of Canterbury should, in taking a journey northward, marry a lady within the province of York, though they went immediately home, and resided during the rest of their lives within the province of Canterbury, the wife would be entitled to five ninths of the personal estate.

Taking it the other way, we know there are persons who come from that part of the world to which the custom of the province of York extends: they happen, perhaps, not to think much about these things; in advanced life they are likely to go home again, and they take their chance. They are husband and wife, in this respect as in all others, for better and for worse; and I should conceive it to be quite clear law (though it seems to have puzzled some very learned persons in the statement of these cases), that a man might come from a particular part of the north of England and marry in the north of England, where, if he had died before he accomplished his purpose of taking his journey, his lady would unquestionably receive five ninths of the personal estate: if he came up to London to better his fortune (as we north country people are apt to do), and died in London, his wife would take her one third according to the custom of the province of Canterbury; and if in his old age he had retired to the land of his nativity, and died intestate, the lady there, who, in the first instance, would have been entitled to five ninths, who had by the course of events lost that right, and become entitled in the second instance to only one third, when her husband returned again to the province of York, dying in the place in which he was born and married, would be restored again to the five ninths; her condition

as a wife and her right as a wife being altered from time to time exactly as her person followed her husband's person from one place of domicil into another place of domicil, till it was at last decided, by his death, where he left his residence in this world. I take that to be quite clear law.

I think it was as long ago as 1704, unless I mistake the import of the case, that, as amongst French people, the law of England had decided this; for, in the case of Foubert v. Turst, in Brown's Parliamentary Cases, 38., this case occurred: - A French lady and gentleman married at Paris; and, having married there, there was a written agreement, by which certain sums of money were disposed of; and, with respect to the other property which the parties had or should acquire, that was by this agreement, according to the construction put upon it in our courts, to go according to the custom of Paris. After the marriage was had, the lady and gentleman thought London was a better place to reside in than Paris, and came here. They lived here some years: at length the wife died, and the question arose upon her death, how the property was to be distributed. It first came on in the Court of Chancery. The Lord Chancellor was of opinion, that it was not the intent of that agreement to attach, under all the circumstances, the rule which the custom of Paris afforded as to the distribution of the property; and he held that, the parties being domiciled in this country, the law of this country must decide the right to his share in his wife's property. That was afterwards reversed in this House. But upon what principle was it afterwards reversed in this House? Why, upon a principle which showed what the conception of this House was as to the law, if there had been no rule for the application of that principle; for it is distinctly admitted, in the printed reasons, by the counsel on both sides, but especially in the printed reasons by the gentleman who was of counsel for the husband, that, though the parties married at Paris, the custom of Paris would not follow them; and the ground upon which the Lord Chancellor's decree was taken to be wrong was this (and an extremely clear ground it is), that there the parties had in Paris come to a written agreement, the true construction of which written agreement was, that, wherever the parties died, the custom of Paris should regulate the distribution; therefore, said this House, it is not the regard which the law here administering property has to the custom of Paris, but the rule is founded in the contract which the parties themselves had