duce of these shares, standing both in the name of the father and son, were received under such authorities by bankers who carried the whole to the account of the father; in short, they do allege that every act of ownership (independent of the circumstances of the apparent ownership created by the property standing in the name of the son) was exercised by the father during every period of his life, except as to what I have to observe with respect to the eighty-one shares which were transferred shortly before his death; and they say that that is very strongly confirmed by the date of the general disposition of the father, in which, as your Lordships observe, he attempts at least not only to give all the shares which were then purchased, either in his own name or the son's name, but attempts, by that instrument, to discharge even the thirty-nine shares from the obligation, which he supposed his son at that time to be under, respecting them.

In that view of the case, considering the proposition I have finally to make upon this subject, I think I should trespass too long upon your Lordships' time, if I were to go through all the detail of the circumstances in evidence in the cause; that view of the case creates the necessity of considering whether, if these shares were bonâ fide granted, at any period to be ascertained, to the son, the son must not be taken, in consequence of his subsequent transactions, to have become a trustee for his father; and, when the question is so put, whether the son must, in consequence of his subsequent transactions, be taken to have become a trustee for his father, I state again that which I apprehend would be clear in the law of England, that if you could show there was the appearance of an absolute gift, but that, at a time subsequent, the son had permitted the father, and particularly for a long course of years, to act with respect to the principal, or to the interest as if he was the owner of the principal, then the mere circumstance of the property standing in the son's name, would not determine that the property was not the property of the father.

Here I wish again to mark a distinction which is extremely important: that, although there may be a case in which the father of any cestui que trust may, upon the first formation of that trust, reserve what in Scotland they would call a life-rent, and we in England should call a life-interest; yet, the trustee who undertakes to prove that the cestui que trust had a limited interest fails in that proof, if the only evidence he

can offer is, that the father of the cestui que trust was in the constant habit of receiving the dividends; for the habit of receiving the dividends which Mr. Hog, the father, has taken, is evidence of the absolute ownership in the property which produces the dividends, unless the person who so pays the dividends shows that he pays the dividends in pursuance of a more limited obligation founded on some contract, which contract had been entered into when that practice of paying the dividends commenced.

I mention this the rather, because I observe that it has been stated in these cases, and very truly stated in these cases, that such has been supposed to be the power of the father, as to disappointing this claim of the legitim of the son, that in the case of Agnew v. Agnew*, tried in the Court of Session in Scotland, where a gentleman, having several children, some months, and but a few months before his death, made a disposition, not of all, but of a part, of his property to one of these children, this was found to be effectual. At the same time I do not lay much stress upon the circumstance that it was only a part of his property, for it was a considerable part of his property; and, in principle, I cannot think that it would make a material difference whether that part had been more or less considerable; but, a very few months before his death, he conveyed all the property, which he detailed, and enumerated in that detail, as a gift, being in liege poustie, to one of his sons, and he reserved as against the son his life rent in all the subjects he had so disposed of. His purpose seems to have been, if it was not avowed, it would be impossible to deny that it could be easily perceived; his purpose was to disappoint the legitim; that was his express intention; and, it was to make this conveyance to one favourite child, taking care, however, that he should not himself suffer by the act which he did, because he reserved to himself the life rent; and if a person has not the wish otherwise to dispose of the capital, having the life rent he is in pretty near as good a situation as if he had the capital at his own disposal. In the Court of Session in Scotland, that question was debated; it underwent great consideration before the judges of that court; and having undergone great consideration before men of great

* Agnew v. Agnew, 28th February, 1775. cisions.

Wallace's Posthumous De

eminence who then filled the court, they seem to have been much divided in opinion upon it.

I have no difficulty in the world in saying, that if the interest of the children in the legitim can be considered as at all analogous to the interest of a child in this country, under his father's covenant to leave him an equal share, a different rule would have been followed in this country. Such a covenant obliges the father to do nothing; because, if I agree to leave this noble Lord an equal share with the noble Lord that sits next to him, if I leave this noble Lord nothing, I am under no obligation to leave the other noble Lord any thing; and that leaves me at liberty, if I choose, to do so improvident an act as to throw my whole substance into the sea. But we have construed such a covenant as that, so as to make it an act which binds to some purpose; and we have said that a disposition of property under the circumstances I have mentioned, by a person leaving himself just as comfortably situated, with respect to that property, after such a covenant, as if he had never entered into that covenant, shall be considered as in truth, though not in letter, a fraud upon the covenant; and this will not be capable of being considered, according to our law, as that species of gift in the lifetime, which is to defeat the covenant to leave at the death.

I refer to this case of Agnew v. Agnew for the purpose of saying, with great deference and great respect, that I should wish rather to reserve what would be my opinion upon such a case as that, if it found its way to this House, than to say, at this moment, that I should accede to its doctrine. But if the doctrine of that case is the doctrine which ought to be abided by, it seems to me quite incapable of being applied to the present case, as to the thirty-nine shares or the eighty-one shares; because there is a vast difference, in point of fact, between a case in which the person who receives the dividends with an express contract, capable of being produced to show that he receives them by virtue of a limited interest, and a case in which he receives the dividends exactly as the absolute owner would do, there being no contract produceable to show that it was intended between the parties, that he should have but a limited interest.

There can be no doubt, if I should lay out twenty thousand pounds in stock to-morrow, in the name of one of your Lordships, though it might be a possible thing you should pay me the dividends for my life, in consequence of an understanding between

you and me, that I should have the dividends during my life, and you the capital upon my death; yet I conceive, if I were to die, and there was no evidence produceable but the single evidence that my money had been laid out, and that you from time to time had given me the produce of the purchase, that that would be quite sufficient evidence to satisfy a court of justice that, as a trustee for me during my life, you remained a trustee for those who represented me after my death; and it is incumbent upon those who have once acted as if they were not the owners of the property, to show under some contract of which they can give evidence, that the inference is to be different from the receipt of the dividends in the one case, to what it would be from the receipt of the dividends in the other case. This is a case in which it must be made out satisfactorily, either that Mr. Hog, the father, had parted with all interest in the thirty-nine shares and the eighty-one shares; or on the other hand, in which the judgment of law will be either that he had never parted with any interest in them; or if he had ever parted with any interest in them, then the judgment of law will be from the receipt of the subsequent dividends, during such a period as he shall appear to have acted with those subsequent dividends, that he had absolutely re-acquired a subsequent interest in the property.

There are some topics addressed to the consideration of your Lordships extremely well worthy of attention, as evidence upon the fact whether Mr. Hog, the father, did or did not receive those dividends; because, it does not necessarily follow that because the dividends come into my coffers, that, therefore, in looking at the whole of the transaction which takes place between you and me, I ought to be said in law to receive the dividends; and it has, therefore, been urged that Mr. Hog, when he received these dividends, in truth, in a shape paid them out again to the Respondent; because they say that he had come to an understanding or an agreement with the Respondent that he would pay him an annuity of five hundred pounds; and that, having engaged to pay him such annuity of five hundred pounds, it was natural enough that the father, when he made him a present of these thirty-nine shares, should say you must take the produce of the thirty-nine shares as pro tanto payment of that annuity from time to time as the produce arises; and, therefore, if that produce was brought to the account of Mansfield, Ramsay, and Company, in the name of the father, yet the payments which were made out of that

fund, in discharge of the annuity, carried back the dividends again to the son.

:

That may all be very good argument, but it will require a great deal of consideration, before you can say it will be convincing argument. The natural quality of such a transaction as that would be this: if the thirty-nine shares were in the name of the son, and the son received an annuity from his father, the son, who would be permitted to receive the interest and dividends of the thirty-nine shares, would carry them forward as pro tanto in discharge of the annuity. But it seems possible, and perhaps rational, to admit of a perfectly different consideration if your Lordships perceive that these dividends are carried in a mass into the same drawers of the bankers' house which contain that which is undeniably the property of the father; if they are placed in a congeries, in which the one is incapable of being distinguished from the other, there can be no doubt in point of law they would, to many purposes, be the property of the father; and till they became severed by actual payment out again of the annuity, all which were so carried into this mass would be the property of the father, liable to all that could act upon the property of the father. Therefore, these were certainly permitted, for a period at least, by the son to be laid hold of by the bankers of the father, as the property of the father; and when looking to see what is the true intent and meaning of all this, you must look at all the other circumstances in the case; and if you find the father advancing the expences of the transfer; if you find the father advancing the subscriptions for those shares put into the name of the son; if you find the father estimating his property, and, in that estimate of property, attributing to himself the ownership of this property: these are all circumstances which must be considered when you are determining whether the dividends on these shares were taken into the coffers of the father's bankers, in consequence of any agreement or understanding between the father and the son, that they should be be paid out again in discharge of this annuity.

It is contended here, that it does not signify at all what had been entered in the father's book with respect to the estimate of his property; but that is, perhaps, a proposition much more easily laid down than assented to, when the allegation here is not the mere question between the father, who was the truster, and the son the trustee a question to which all the rules of evidence about trusts will naturally apply; but whether the