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transactions between the father and the son were transactions which, in point of fact, were intended between the father and the son to disappoint this claim of legitim: for a great many circumstances will, in such a case, be circumstances admissible as evidence, which circumstances would not be admissible as evidence, if it were a dry question under the act 1696, whether there was or not a trust as between the person alleged to be the truster, and the person contending that he was in truth the cestui que trust.

Under all these circumstances, therefore, I conceive the true question, with respect to the thirty-nine shares, will be this: how many of these thirty-nine shares (attending to the date. which the circumstance gives with respect to the transaction relating to the directorship) — how many of the thirty-nine shares will really fall under the effect of that transaction; and, with respect to those which would not fall under that transaction, as well as with respect to those which did fall under that transaction, whether the subsequent dealings between the father and the son do, or do not, amount to evidence that, in the subsequent life of the father and the son, these shares were considered as the property of the father, at least to the extent and the purpose of the father's receiving from time to time, (and I mean for himself beneficially receiving, and receiving as his own property,) the interest, dividends, and produce of those shares. If it should turn out, upon an accurate examination of the fact, that he did receive eo modo et eo intuitu, and that the son permitted him to receive eo modo et eo intuitu, it will be to be determined what is the effect of that subsequent dealing with respect, first, to the shares which qualified him to act as a director, and with respect to which the oath was taken; and secondly, with respect to those shares which are not professed to have been transferred for that purpose.

In some points of view in which I have taken the liberty of representing this case to the thirty-nine shares, this case does not appear to me to have been very fully examined into; and I am more anxious to state it in this way, because, in a subsequent case of Millie v. Millie *, it seems to me to be admitted, by the Court of Session, that though the father may ostensibly part with his property and allow it to stand as the property of the son, yet, if in truth,

*Millie v. Millie, 7th June, 1803, affirmed on appeal.

after he has so parted with that property, he really and substantially remains the owner of it, that will not defeat the legitim; and I am the more anxious so to state it, because, comparing the notes in the case of Millie v. Millie, containing the opinions of the judges, to which we look upon these occasions, I observe that the case of Agnew v. Agnew, to which I have before alluded, is a case not only extremely doubted of by very high authority in the Court of Session. But I presume there must be some inaccuracy; for, in the case of Hog v. Lashley, the opinion seems to represent that of Agnew v. Agnew as establishing a doctrine which should govern the decision in this case. The very same authority, if those notes in Millie v. Millie are accurate, is made to state that to be a decision with which the decision in Millie v. Millie would not agree; but whether Agnew v. Agnew is to stand or not, for the reasons I before mentioned, as it seems to me, it cannot govern where, upon the examination of facts, there is nothing to prove a limited interest (the conveyance being absolute), but the mere circumstance of receiving dividends after that conveyance had been made.

Having said thus much as to the thirty-nine shares, the eighty-one shares fall certainly under a different consideration; and the eighty-one shares cannot be affected by considerations suggested by any of the doctrines to which I have been alluding, without attending to the circumstances of dealing that took place as to the thirty-nine shares, and that took place as to the eighty-one shares, before these eighty-one shares were transferred in the manner I am about to mention by Mr. Hog the father to Mr. Hog the son.

It appears clearly by the instrument of the date to which I have before referred, that these shares were intended by the father to have been laid out in land; that Mr. Hog intended that these eighty-one shares should have been vested by trustees in the purchase of lands, to be subject to the same species of entail as the estate of Newliston.

Between the date of that deed and his death, and so shortly before his death that no dividends were received between the date of the transfer and the death, he transferred them apparently absolutely to Mr. Hog the son; this must have been either to give them to Mr. Hog the son absolutely, or to give them to Mr. Hog the son under a confidence, and an understanding, that he, Hog the son, was to make the same disposition of them as the trustees were empowered and required

to make of them by the deed of disposition which the father had before made.

I believe there can be no doubt, that if the father intended absolutely to give them to the son, whilst he was in liege poustie, it was competent for him to do so; and if there were nothing more in this case than the mere circumstance of his having made the gift to the son, so soon after having intended to give so large a portion of his property to trustees, to be laid out in land to be settled upon that very son, however much your Lordships might suspect about that transaction, suspicion will not do as a ground of judgment, as it was competent for the father to alter his purpose, and by that act he sufficiently proved that he had altered his purpose; that that which he had a power to give away he had effectually given away; and you would have had nothing for the mind to address itself to, in order to consider whether this was really and absolutely a gift or not, excepting this circumstance, that in times past, that stock which had stood in the name of the son had in truth been dealt with by the father as his own, though it did stand in the name of the son; and you would have had to put the question to yourselves whether you could safely, in judgment, conjecture that he meant to deal with the eightyone shares as he had dealt with the other shares; that is, that though he placed them in the name of his son, he meant to deal with them as if they were his own property. I humbly submit my opinion to your Lordships, that whatever you might have suspected, out of a court of justice, it would be much too strong to suspect, in a court of justice, that that, which was upon the face of it a gift, was not intended to be a gift, before you had seen any other transaction consequent upon it which authorised you to say so; that because the thirtynine shares were so dealt with, if they were so dealt with, therefore the eighty-one shares ought to be so dealt with, and therefore they ought to be considered as the father's. But to explain myself upon this subject - and I wish to do this in the presence of my noble and learned friend, who sits near me--I do conceive that in this country, after the transfer of those eightyone shares, if they had been shares in the Bank of England, if a day had come in which the son had received a dividend for the father's use - that one single receipt of the dividend for the father's use would have been evidence upon which you would have been authorised to say, that the receipt of the dividend

for the father's use proved that the property which produced that dividend was the father's property; and in that case it would not have been competent for the son to have said, if he had put it on no other evidence than this, that because this was a payment of a dividend only, in the life-time of the father, therefore the interest of the father was, in the intendment of law in such circumstances, to be taken to be only an interest during the father's life. I conceive, on the contrary, that the receipt in such circumstances would prove property in the principal, because it proved property in the interest; and that that limited sort of interest could not have been contended for on behalf of the son. But it happened in this case that the father died before any interest was received; and it will be for your Lordships to say, attending to the circumstances and transactions between these parties previously, whether there was here any thing more than a transfer of the principal by the father to the son.

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But there is something more in this case, which has reference to this law of legitim, a consideration so important, in the view I take of the case, that I should have had to lament that it had not been taken into view, with reference to the fact I am now about to mention, in every place in which it could be fully and truly considered what would be the effect of such a circumstance upon the law of legitim? And it seems to me to come distinctly to this; that if the deed of disposition which had devoted this property to be laid out, after the death of Mr. Hog the father, in the purchase of lands at Newliston, could not take effect, the question then is, whether the transaction I am about to state would do so, provided the evidence proves that such was the nature of that transaction; whether he who, by this disposition, had intended that these funds should be laid out in land, could, by saying, I will not permit my disposition to take effect, but I will give this money in my life-time to my son, nevertheless, with an understanding, and with a confidence, that he shall lay out the property in the purchase of lands at Newliston as I have directed money to be laid out in that neighbourhood; whether a gift, connected with such an understanding and confidence as that, would or would not be sufficient to deprive the younger children of their title to the legitim. If it would, it appears to me that the case of Millie v. Millie, which was afterwards decided, will deserve a great deal of consideration, because that is neither more nor less than saying this; that in

one shape, after an ostensible transfer, you may hold over your property pretty nearly in an absolute dominion; and that in the other case, after such transfer, you cannot hold dominion over it, but subject to the claim of legitim. In the case of Millie v. Millie it was held, that the parent going ou of partnership, but still leaving the firm to go on in the name of the son, it being understood between the father and the son that the father had an interest, that this did not disappoint the legitim. It does appear to me, upon the principles of the case of Millie v. Millie, to deserve a great deal of consideration indeed, whether, if the gift of eighty-one shares to the son was a gift for the purpose of being laid out in land to be settled, after his death, by the son to whom he had given it in his life-time; and, if that was the purpose, whether he meant to retain power over it. If it was his purpose to lay it out after his death, it does not exclude the idea that he was to enjoy it, as he had heretofore enjoyed it, during his life. The question then will be, whether by a gift under such an understanding as that, the legitim may be defeated.

The proof of the facts, upon this part of the case, depends upon the evidence of Mr. Ramsay, the banker of old Mr. Hog, who seems to have been much in the knowledge of the intentions of this gentleman, and who, in that deposition, gives his account of this circumstance, with which I think it would be quite impossible in this country that any court of justice could be satisfied. I will read to your Lordships both parts of Mr. Ramsay's deposition. In the first instance, when he is examined as to the interrogatory which relates to this matter, "Do you know that, shortly before his death, Mr. Roger Hog executed a transfer in favour of Mr. Thomas Hog, and what shares did he so transfer? Do you know the terms upon which this transfer was made or the cause of making it ?"— he depones that, a short time before Mr. Hog's death, he told the deponent that he had received some anonymous letters of a very scurrilous nature, and which he supposed to have come from the Pursuer. The Pursuer is the party who is claiming, in right of his wife, this legitim, and there can be no doubt that if Mr. Hog had received a letter of a scurrilous nature, he was fully at liberty to disappoint that claim of legitim; but, whatever was his purpose, he could not execute that purpose except in the way in which the law would allow him to execute it.

Then Mr. Ramsay goes on to say,

"That he had made a

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