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entered into; and that contract, which they there entered into, will travel with them, though the custom will not follow them. The contract will attach upon the property after the death of the parties. The meaning of the parties was, that it should so attach upon the property after death; and there can be no reason in the world why the parties should not say, by express contract, that the locus contractus matrimonii should decide. They may do so if they please, in a written agreement, which shall describe what shall be the share of the wife in the property of her husband, when he is dead.

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It seems to me, also, that that case was recognised to be very good law in a subsequent case, Freemoult v. Dedire, in. Peere Williams's Reports.* The result of the case may stated to show this, that it was the opinion of the Court, at that day, that, where the marriage had been had in Holland, the distribution in this country, if the party died domiciled in this country, would be certainly according to the law of Holland, if you showed there were articles saying the distribution should be according to the law of Holland. But they seem to have refused, in that case, to make the distribution according to the law of Holland, because it had not been proved as a fact in the cause, what was the law of Holland, which those articles had stipulated between the parties should furnish the rule of distribution.

Your Lordships have already gone the length of deciding, in the former stages of this cause, that, with respect to the children's shares upon the death of the father, it is the locus domicilii, at the death of the father, that must decide what they are to take. In this case, the marriage was had in England. Some of the children were, I believe, born in England; and Mr. Hog having altered his domicil, and dying domiciled in Scotland, your Lordships held, that, because they were the children of a father domiciled in Scotland, notwithstanding that was not the locus contractus matrimonii, the law of Scotland must decide upon the rights of those children. I believe it would be next to impossible to say, that there is any distinction to be made between the legitim of the children, as taking by such succession, and the jus relicta of the widow as taking by the same. It would be absolutely impossible, if the wife survived the husband, that you should say, that, though the marriage was in England, the children of that marriage should

* 1 P. Wms. 429.

take according to the law of Scotland, where the man was domiciled; but that the wife should take according to the law of England, where the man was married. Unless you could say, in the case of the wife surviving the husband, that her interest was to be decided by the law of England, where the marriage was had, although the right of the children, who, in a sort, derived their title under that marriage, depended on the law of Scotland, that is, that the surviving wife took according to the locus contractus matrimonii, and the children according to the locus domicilii, it would be difficult to distinguish between what the wife takes in the character of wife, if she happens to die in the lifetime of her husband, and what she takes in the same character, and under the same title, if she happens to survive the husband. It seems to me, therefore, when a distinction is taken between the legitim and the jus relictæ, in the manner in which it has been taken in this case, that the distinction is not substantial enough to be acted upon. A vast number of ingenious difficulties have been stated upon this subject, which may deserve a great deal of consideration; but one may here lay out of consideration all those cases upon which it has been asked,-What are to be the consequences if a man marries in one place and goes immediately to dwell in another? If any persons were to go into Scotland, get married at Gretna Green, or any where else, and come back to England; or if they came from Scotland and were married in England; in the one case, if the parties returned immediately, and became domiciled in England; or, in the other case, if the parties returned, and became domiciled in Scotland; in both these cases the place of marriage is a mere incident in the form of the contract, and would not alter the law, which says, that the place where the parties bona fide reside, and that I shall call the bond fide residence of the husband, will decide upon the rights both of the wife and the children.

But it is said, that, if there be no express contract when the marriage is entered into, there must be an implied contract, and it is assumed that that implied contract is this, that the distribution which the law would make of the property of the husband, if he were to die eo instansti that the marriage was celebrated, is the distribution which must be made of the property of the husband dying intestate at any distance of time from the period when the marriage was contracted, and under all the circumstances of mutation and change which might have taken

It appears to me, that those who say, that there is such an implied contract, beg the whole question, because the question is, whether the implied contract is not precisely the contrary. This being a contract attaching upon property in consequence of its being personal estate, whether the true implied contract must not be taken to be that the condition of the wife, in respect to her expectations, should change as the condition of the husband changes, with reference to the law of the country in which they are resident.

Cases of great hardship may be put with respect to Scotch and English ladies. They tell you, with reference to a marriage in England, the moment the husband contracts that marriage, all the debts due to the wife, and property in the wife, attach to him; but that in the case of a marriage in Scotland, with respect to all debts due to the wife, the husband must take the trouble of taking his hat off, to request the payment of that money from those from whom it is due to her, before he vests a right to it in himself. But, really, the difference is not very considerable, because, although it be that the husband, if he happens to die, without having done any act to stamp the character of his own peculiar ownership upon the property of his wife, is taken to have chosen to let it go to the wife, because he chooses to forbear to take that which previously to the connection was hers; yet, on the other hand, there is nothing more clear, than that the law supposes he may receive it when he pleases; for a man cannot, without evidence, be supposed to forego that which he takes in right of his wife: he may assign it for valuable considerations, or he may make it his own to all intents and purposes; and the moment he chooses so to make it his own, he may assign it to persons in trust for the wife, who may have, in this country, the special equity of claiming to have some provision made out of it for herself.

But the true question is, whether it is not of necessity that the husband and wife, or the one of them, and if the one of them, which of them, is to determine in what manner, and in what place, the husband is to struggle for the means of provision for himself and his family whilst he lives, and for all the means of provision for the family he shall leave behind him after he is dead. And when you say that, both in England and in Scotland (about which there can be no doubt), it is competent for the husband to spend every shilling of the property, to alien bona fide every shilling of the property;

what does that amount to but this, that the husband, if he pleases, has it in his power to make it of as little consequence to both his wife and children in what country they resided at his death, as if they were in no country at all? The true point seems to be this,-whether there is any thing irrational in saying that as the husband, during the whole of his life, has the absolute disposition over the property; that as to him the policy of the law has given the direction of the family as to the place of residence; that as he has therefore this species of command over his own actions, and over the actions of the family, and property which is his own, and which is to remain his own, or to become that of his family, according to his will; why should it be thought an unreasonable thing that, where there is no express contract, the implied contract shall be taken to be, that the wife is to look to the law of the country where the husband dies, for the rights she is to enjoy, in case the husband thinks proper to die intestate?

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This has been the principle which, it seems to me, has been adopted, as far as we can collect what has been the principle adopted, in cases in those parts of the island with which we are best acquainted; and, not being aware that there has been any decision which will countervail this, thinking that it squares infinitely better with those principles upon which your Lordships have already decided in this case, it does appear to me, attending to the different sentiments to be found in the text writers upon the subject, that it is more consonant to our own laws, and more consonant to the general principle, to say that the implied contract is, that the rights of the wife shall shift with the change of residence of the wife, that change of residence being accomplished by the will of the husband, whom, by the marriage contract, in this instance, she is bound to obey.

Is there any inconvenience in this? None in the world; because it is an equally acknowledged principle, that, though the custom of the place may not follow the parties to this contract, which places them in the relation of husband and wife and children, yet it is undeniable law, that they may contract under hand and seal that the custom of the place shall follow them. Whether it will be convenient, in ninety-nine cases out of a hundred, that there should be such a convention and such a contract; or whether it will not be mightily inconvenient to the affairs of families to form such a contract or convention; is a question which persons viewing it may think

very differently about; but if there be any inconvenience in the circumstance of such a convention not being formed upon the marriage, it is an inconvenience neither of a higher nor less nature than any other which attaches upon that relation which is to be left to the providence of parties when they enter into that relation; but which can be met by the providence of parties when they enter into that relation, and to which inconvenience they expose themselves if they do not think proper at the time to provide against it.

It may be said, in this case, and truly may be said, in ninetynine cases out of a hundred of a similar sort, if they arise, that this is a surprise upon the parties. The true answer to that is, that I believe the parties never thought of it; when they entered into this marriage they entered into no contract by which this lady was to take one penny of the husband's property; but they entered into a contract by which she was to have somewhat more than two thirds of her own property converted into land, with a power to her to give this to any of her children that deserved best of her: they could not but have considered that Mr. Hog must die somewhere, that he was likely to die in England; but there is no stipulation that she shall have one shilling left to her: she takes her chance, under the effect of the marriage, whether she shall or shall not receive any thing, even upon the casualty of the husband dying intestate. If he had thought proper to lay out all his money upon land, and had taken the caution to lay it out in the name of a trustee, instead of in his own name, she would not have had what the Scotch called terce, and we call dower; on the other hand, if Mr. Hog had that which it appears he had for a great number of years, a very strong inclination and a fixed purpose to reside in Scotland, where he was born, and to die there, one should think, if he thought proper to attend to this subject with caution, he would have asked what would be the state of his wife if he did die there. But the truth is, that parties do not think upon this subject when they enter into these contracts; they get a bit of a settlement made, and very portant interests remain unattended to.

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But I think it appears that this claim could not be matter of much surprise, when your Lordships come to see how this matter was regarded by men of business in Scotland; because, though this lady died in 1760, and though Mr. Hog unquestionably became afterwards a domiciled Scotchman, having realised property in land in that country, whenever provisions

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