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With reference to this part of the case, I believe I shall be founded upon the authorities which are stated in the text writers on the law of Scotland, and the decisions of the Courts of Scotland, if I represent to your Lordships that legitim can be claimed only out of the moveable property belonging to the father at his death. This claim of the children to the legitim is a claim which leaves the father an unlimited power of disposition during his life; for it seems, that though the claim of legitim cannot be defeated by any deed executed on death-bed, or by any deed of a testamentary kind which is to take effect at the father's death, yet it does not interfere at all with the father's right of administration while he is living and in health. Thus he may disappoint his younger children in various ways; he may disappoint them by converting moveable property into heritable property; he may contract debts if he thinks proper, which debts would be a charge upon it; he may spend his estate in the most improvi dent manner in which he chooses to spend it; and he may give it away, if he thinks proper. Provided he makes the disposition in time, all these acts which he may do are to be considered certainly with reference to the question of the amount of the legitim. Your Lordships are still to determine whether the claim of legitim is capable of being considered as a right of property, as a jus crediti, or only as that which the children are to obtain under the hope and expectation of what the father may think proper to leave at his death.

The question therefore is substantially, what was his fair moveable property at his death; and that question will fall to be determined, regard being had to this consideration, that if an heir or disponee has a mere nominal interest in the property, that is, if he is in the nature of a trustee for the father, it will be not less the property of the father because it is ostensibly (if it be but ostensibly) the property of another.

The law of England furnishes a class of cases that seems to have some, though perhaps not a perfectly strict and correct analogy to the nature of the claim with reference to which I am now speaking; for it will be familiar to some of your Lordships that it is not an unusual thing for a parent, when he gives away his child in marriage, to enter into a covenant that he will leave that child a share of his property, equal to that which any other child at his death shall derive from him. Your Lordships perceive that when that sort of obligation is entered into by a parent he leaves to himself as complete,

and indeed a more complete, power of administration than the father has under the general law of Scotland; because, in addition to those acts which the Scotch parent is capable of performing, and which I have enumerated to your Lordships, the English parent having bound himself under that obligation, is at liberty not only to spend every shilling of his fortune, but he may give away every shilling of that property, provided he does give it away the day before his death.

I apprehend, however, that there can be no manner of doubt that if an English parent, having entered into such an obligation, were to transfer to any one of his children, by an instrument, upon the face of it the most absolute and complete that could be conceived in terms, any part of that property, yet, if it appeared that subsequent to that gift the parent himself, from time to time, enjoyed the interest, dividend, or produce of that property, as it might yield, according to its nature, interest, dividend or produce, that the receipt of the income of it would be complete evidence that the gift was a trust for the father; and that if the father died under such circumstances, the child with whom he had entered into such a covenant as I have stated, that he would leave to that child as much as any other child should derive from him at his death, would have a right to say that that property was part of the father's property, and would have a right to claim upon the footing of considering it as part of the father's property.

I wish to mark, in this part of the case, very distinctly the doctrine which I have now presumed to state to your Lordships, for another purpose, which is this: that, although perhaps secretly between the father and the son, there might be an intention that the son, in such a case, should only pay during the life of the father the interest and produce of that property which had been so transferred to him, and that the son himself should take the property at the death of the father; yet if that agreement was not capable of being evidenced by testimony admissible for that purpose, if the inference of law was to be collected from the mere fact, that the father was permitted during that time to receive the interest, dividend, or produce of that property, the inference in law would not be that the father was entitled to that interest or property for the limited term of his life, but there being no special agreement capable of being proved that that limitation was intended to be put upon his enjoyment, the evidence which proved that

he ate of the fruits of the tree would be testimony in our Courts of Justice that he was the absolute owner of the tree which produced that fruit. And we should not hear it said, in a question between his children, that the father meant in such a transaction, where there was nothing to show his meaning but this enjoyment of the produce of the property, that it was meant between the father and the son, to whom the ostensible transfer had been made, that the father was to have only a limited interest in it; that the property was given away from the moment of time the gift was made, and that the son was to be in the nature of a reversioner. There must be an express contract, I apprehend, before our law would admit that such was the nature of the intention of the parties to that transaction.

But I go a great deal further than that; because it has, I conceive, been settled by repeated decisions in this country, that if a father, upon the marriage of his child, enters into a covenant that he will leave that child as much as he gives to any other child descended from him, after he has entered into that engagement, the law allows him, if he thinks proper, to give away his property as improvidently as he pleases; but an interest of this sort would hardly be worth having if the law did not impose for the protection of that interest this guard upon the parent: that he shall not enjoy his property as beneficially himself, having given it away, or nearly as beneficially, as he would enjoy it if he had not given it away; and it would be competent for him at any moment to defeat the obligation he meant to enter into, to make an equal distribution among his children, if he could before his death say I will give the whole of my property to one child, and that child shall give me the whole produce of that property during my life; and he may contend, after my death, that, because I had given it on a day antecedent to my death, it was given in such a way as to prevent the operation of my covenant with respect to that property. I take it to have been decided in our Courts of Justice repeatedly, that that cannot be done. I have stated what I conceive to be the views of the law of England upon the subject, that due attention may be given, at least to the principles which have governed our decisions in this part of the island, upon a subject which seems to me to come the nearest to the subject of the right which falls under consideration, a question resulting out of the circumstances which I am now about to

state.

I

Mr. Hog, the father of Mr. Thomas Hog, appears to have been, in the course of his life, in the habit of purchasing at different periods, I think from the year 1772 till a very late period of his life, various shares of stock in the Bank of Scotland; and it appears that, in point of fact, between the year 1772 and the time of his death, he had become the owner at least of a hundred and forty-four shares of the stock of that bank. When say he became the owner of a hundred and forty-four shares, I mean that he had purchased a hundred and forty-four shares, some of which stood in his own name, and some in the name of his son. I do not presume to state to your Lordships, that if it can be contended they were a fair purchase in the name of his son and nothing more, that there the son is a trustee for his father; for the inference of the law would be that it is, prima facie, a gift to his son; and therefore in the question relative to these shares of bank stock, it must be admitted that Mr. Hog, the respondent, has a right to the benefit of the principle, which is, that prima facie what is bought in his name is given to him. So it would be in our law at the death of the father, having in the course of his life bought this number of shares, some standing in his own name, some standing in his son's name, some originally purchased in his son's name, some occasionally transferred into his son's name, some re-transferred into his son's name which had been transferred from his son's name into his own.

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It has been made a material question between these parties, how many of these shares of stock belonged to the father of the parties who are now contending at your Lordships' bar; Mr. Hog, the respondent, insisted that there were only twentyfour shares which belonged to the father at the time of his death; that thirty-nine shares had been given to him some time before the period of his father's death; and that eightyone shares had been given to him at a period very recent before Mr. Hog the father's death at a period so recent before Mr. Hog's death, that, between the date of that transfer and the date of Mr. Hog's death, there had been no dividend payable on eighty-one shares; so that no evidence could arise, from the fact of the application of the dividends, what was the purpose of the transfer so made as to these eighty-one shares; and, therefore, if that transfer cannot be connected with any other circumstances, it should seem clear that, as this was a transfer made whilst the father was in liege poustie, and a transfer made of property, which he had a clear right to giveaway

if he thought proper to give it away; if there were no other evidence attaching upon these eighty-one shares, with a view to show who the true owner was, it would be prima facie evidence of a gift out and out to the son, and to be considered as his property.

It appears that in the year 1787, Mr. Hog, the father, had made a testamentary disposition, and by that he had conveyed to the respondent his whole personal estate for the purpose of being vested in landed property, which landed property he meant to be settled in the same manner and according to the same course of entail as that which he had before purchased, namely, the Newliston estate; but from these he excepted thirty-nine shares of stock of the Bank of Scotland, having by this disposition expressly given all shares or stock in the Company of the Bank of Scotland, and all stock in the public funds which should belong to him at the time of his decease, exclusive of thirty-nine shares of stock of the Bank of Scotland which were transferred, as he says, some time ago to the said Thomas Hog, and which he professes it is not his meaning or intention should fall under this conveyance, but that those thirty-nine shares should remain with his son as his own right and property, notwithstanding any obligation granted by him to his father concerning the same, of which obligation, or any other in regard of the said thirty-nine shares, the son was thereby acquitted and discharged. Thus the purpose of the father clearly was, at the time he made this testamentary disposition, to give to his son an interest which your Lordships have determined he could not give, as against the other children, on account of this claim of legitim, by giving to his son these shares of bank stock for the purpose of being laid out by his son in land, to be entailed in the same manner as the estate of Newliston; but either recollecting or conceiving that with respect to the thirty-nine shares, or misconceiving that with respect to the thirty-nine shares, his son had at some period of his life come under the obligation to him by which he had declared himself in effect to be but a trustee to his father, he excludes the terms of the trust so created by his testamentary disposition of thirty-nine shares; and he attempts by this testamentary disposition, in effect, to cancel and discharge the obligation, rightly conceiving or misconceiving, in making that disposition, that, by the obligation which his son had come under, he acknowledged himself to be trustee of those thirty-nine shares for his father.

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