were tendered to the other children, or to the Appellant herself, your Lordships observe the persons who drew those instruments thought there might be at least some colour of claim under their mother's decease; and that circumstance, that there might be that colour of claim, whilst it contains an intimation, upon the point at law, that at least it was doubted by the lawyers in Scotland whether this might not be supported, is also a material circumstance, in another respect, - that it contains a strong intimation as to what they believed to be the fact, with respect to the domicil of the father at the decease of the mother.*

Without entering, therefore, into a great variety of very nice cases, which might be put, and which might be all reasoned down, in my apprehension, to the single question,-which is the principle that you are to imply from the contract of marriage, whether is it to be considered that the rights of the wife must vary with the rights which attach upon her residence in different places, and that her rights to succeed to her husband must depend upon the domicil which he had at the time of her death, if she is dead, or the time of his death, if she survived him: or, on the other hand, that the locus contractus matrimonii is to regulate the distribution of the property, and, through all the changes in future life, her right is to remain. unaltered in a case in which there is no express contract at all? It does appear to me that the rule we have adopted in this country is the better rule; and therefore I shall presume upon that part of the case, in the application of that principle, to submit to your Lordships the propriety of altering the interlocutors, so far as they deny Mrs. Hog's right to transmit to her next of kin, she predeceasing her husband, the usual shares in the goods of that husband.

But this cannot be done without deciding a question of fact; because, if it be true that this gentleman was not domiciled in Scotland in 1760, then for the same reason it must follow that, if he was at that time domiciled in England, she could not claim, because she must be bound by the law of the place of his then residence; as in the case I put before of a change of residence from a place in the province of York to a place where the law of the province of Canterbury applies, it might be that her rights might change twenty different times during

* The discharges were according to the common form of such discharges in the law of Scotland; perhaps, on that account, little could be founded on this circumstance.

her life. I have little doubt that, without any suspicion of it, there are many persons who have different places of residence, who are changing their residences repeatedly (each of which they call their fixed place of residence); and whose property, if they happen to die without a written disposition of it by them, must be distributed according to the law in the province in which their decease takes place. So, in the case I put, I feel no difficulty in saying, that if I were to marry in London to-morrow and afterwards to go and be domiciled in Scotland, and then I were to come up to London again, and afterwards to go to Scotland again, as it appears to me, the principle must apply from time to time, according to the place of my residence, and not perhaps as I choose it should apply; but then it is entirely the consequence of my own act that it does so apply.

The question whether Mr. Hog had his domicil in Scotland in 1760 is, however, a question which your Lordships must decide before you can say, as I before stated, that there is any room for a decision in this case, founded upon the communion of goods. This point of the domicil is argued, with another point, under the cross appeal taken by Mr. Hog in this cause. I beg distinctly to state to your Lordships these two points, in order that the rule of this House, as to cross appeals, may be understood, not thinking, in my poor view of the case, that it is very important to the parties what the rule of the House is as to this point of the domicil; but because there is another question in this case which your Lordships may, perhaps, think deserves attention, with reference to whether you can alter the decision, and whether this cross appeal be rightly or wrongly presented to your Lordships' consideration.

The two points contained in that cross appeal are the question as to the domicil at the death of Mrs. Hog, which Thomas Hog contends, upon his cross appeal, ought to be held to be a domicil, not in Scotland, but in England; and the other is upon the expences of the confirmation in Scotland and the probate in England. It is insisted by Mr. Hog that those expences ought to be so thrown upon the personal estate that some share of those expences may fall upon those who are interested in the claim to the jus relicta and the legitim. The Court of Session seem to have thought otherwise. I will not take how it may upon myself to say be in the law of Scotland, that is a question your Lordships may decide; but in this country, I take it, it would be quite clear that the expences of

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confirming or of clothing yourself with that character which somebody must have, in order to deal and to transact with the personal estate (whoever may have a claim beneficially to enjoy the personal estate), would be a charge upon the whole fund. It would be in the nature of a debt upon the whole fund; and I should considerably doubt - and I beg my noble and learned friend's attention to this part of the case-I cannot help entertaining a doubt, whether that part of the case is rightly decided against Mr. Hog.

With respect to the question of domicil, it is of no importance whether this appeal was brought in time or not; because those who state to your Lordships that, under Mrs. Hog, they were entitled to claim in respect of the communion of goods, must make out, on their part, that Mr. Hog was domiciled in Scotland at the time the wife died. The question, therefore, whether Mr. Hog was domiciled in Scotland at the time Mrs. Hog died, is a question just as open to your Lordships, whether there is a cross appeal or not a cross appeal. That is the material question in this cause between the parties; and one should have had to lament that we could not get at a question of that kind in some cases that might have occurred, because the cross appeal did not come in time. Certainly in this case the question, though great and important, does not administer occasion for that feeling, because it seems to me impossible that those who contend for this community of goods can make out their title without satisfying your Lordships what was the residence at the time; and when they undertake to satisfy your Lordships that such was the residence at the time, they let in an opportunity for those contending with them to say that such was not the residence.

cause.

With reference to the question whether Scotland was or was not the residence of Mr. Hog at the time of Mrs. Hog's death, that depends upon a very minute attention to all the circumstances which are disclosed as matter of evidence in this With respect to the mind and intention of the party upon that part of the case, I shall not give your Lordships the trouble of going through an accurate statement of the whole of the evidence, because I have not perceived in your Lordships' House, from the beginning of this cause to the end of it, any tendency to doubt, in the mind of any one of your Lordships, whether those interlocutors that have declared him to be domiciled in Scotland at the time of the death of his wife, were or were not well founded. It seems to me that the

whole of the passages which are to be collected from the letters, and which have been relied upon at the bar, amount to no more than such as would entitle your Lordships to represent this matter thus: This gentleman had originally come from Scotland to make his fortune in England; he seems to have been a very sensible and a very industrious man; he had succeeded in trade to a great extent; but throughout his whole life he seems to have been influenced by a determination to spend as much of his life, and particularly the latter days of that life, as he could in his native country. He meant to take there his summa rerum, he meant that his establishment should be there, and he was acting upon that intention when he went there. It is always a very nice question, if you are called upon to decide it immediately after a change of residence, whether that change of residence has actually operated a change of the testator's domicil; but we have not such difficulty in the present case. It is admitted that Mr. Hog was domiciled in Scotland at the time of his own death. Upon the whole, I see no reason to doubt that he was domiciled in Scotland at the death of his wife.

In regard to the other point taken under the cross appeal, the expences of the confirmation in Scotland and of the probate in England, there are two questions which will occur. The first will be whether it has been decided upon a right principle, that is, whether the expence of confirmation in Scotland and probate in England has been thrown upon the right fund; and if it has not, whether, considering the time when this appeal was brought here, subject to a protest made at the bar, you can consider, with reference to the consequences of that protest, that the appeal has been brought at such time as that your Lordships can give relief upon that part of the case.

The rest of this case calls for your Lordships to apply your consideration to a very important branch of the law of Scotland, and the facts of the case which give rise to the consideration of that important question of law will require a very minute and accurate detail. It is the question, what is the amount of the legitim? In order to determine that question, your Lordships are to decide whose property the various shares in the bank stock, which at one time were undoubtedly the property of old Mr. Hog, were to be taken to be at his death; and there are minor questions, and questions with respect to the money arising from the sale of the Kingston

estate, a question as to a debt of 1000l. out of what fund that debt is to be paid, and the question with respect to bringing into contribution what has been advanced to the children. These all fall under another distinct head; and, as I am sure I shall not be able so accurately to detail all the circumstances which relate to the state of facts upon which these questions are to be decided, as it seems expedient they should be detailed, or to bring before your Lordships' consideration the points of law which are to be applied to the decision of these questions in such a way as I should wish to do, if I were to call for your Lordships' further attention upon that part of this case to-night, I should hope your Lordships will not think it improper, if I were here to leave this statement of what I shall humbly propose to your Lordships, meaning to proceed with what remains of the case in the course of to-morrow afternoon. Adjourned.

July 10th, 1804.

Lord Chancellor. I adjourned the consideration to the present day, of the question as to the amount of the funds out of which the legitim is to be paid. That question subdivides itself into several.

The first and most important one is most extremely important, not merely with reference to the parties in this cause, but with reference to the general law of Scotland upon the subject. It is, whether certain shares of the stock of the Bank of Scotland, which are admitted to have stood in the name of the Respondent, Mr. Thomas Hog, were or were not the father's moveable property at the time of his death.

Another question is, whether the Respondent was a creditor on his father's fund for 2500l., which your Lordships recollect was the value of the estate at Kingston, which, under an appointment made by the mother, was conveyed to the respondent, Thomas Hog; and also the sum of 1000l. which he received with his wife and lent to his father, who granted him a bond for it.

A third question is slightly touched upon; which is, whether the respondent was entitled to the deduction of the expence incurred by him in obtaining confirmation in Scotland, and probate in England, of his father's will.

A fourth was, whether the sums paid by Roger Hog, in his lifetime, are to be considered as forming a part of Mrs. Lashley's share in calculating what is due to her.