transfer of his bank stock to his son, in order to prevent the possibility of its being attached, as mentioned in those letters; that the deponent believes there were no conditions annexed to the abovementioned transfer; and that Mr. Hog took it for granted that his son would fulfil what he knew to be his intentions, of vesting the money in land and entailing it in the same manner with the rest of the estate; depones that Mr. Hog told the deponent that he had executed a trust disposition, vesting his funds in Lord Henderland, Mr. Robert Mackintosh, and the deponent, to be laid out in the purchase of land, which was to be entailed in the same manner as the rest of his estate, but that afterwards he had acquired more confidence in his son, and had contented himself with taking the promise of his son that he would fulfil his intentions, and would consult with Lord Henderland, Mr. Mackintosh, and the deponent." And then, when Mr. Ramsay comes to the close of his other deposition, he states himself thus: "That, some time before Mr. Hog's death, he transferred a considerable number of shares of stock of the Bank of Scotland to his son, which the deponent believed to have become, from that hour, as much, and to all intents and purposes, the sole property of the son, as if the father had given him the value in cash out of his pocket; that he also believes this transfer, or the giving away in his own lifetime and with his own hand, was in consequence of the anonymous letters, and of some new opinions which prevailed, at that time, with regard to moveable property; and the deponent believes the only reason Mr. Hog had for keeping any shares in his own name was, merely to act as a Director of the Bank, in the event of his being again requested to accept of that office; depones that he has reason to think that if Mr. Hog had conceived that his English funds would not have been carried by the settlement he had made, he would also have transferred them to his son."

Now your Lordships will permit me to say, that I think it would have been utterly impossible for the Court of Chancery in this country, which is obliged either to content itself with certain depositions, or to take the means of making further enquiry, to have been contented with such depositions as these. I take them to be (I hope I am not mistaken in that circumstance) I take them to be the depositions of the same gentleman; but I confess those depositions surprised me very much; for when Mr. Ramsay, in his last deposition, says that he believes these shares to have become, to all intents and purposes, the sole pro

perty of the son as if his father had given him cash out of his pocket, and that his only reason for keeping any shares in his own name was to act as a Director of the Bank, in the event of his being again requested to accept of that office; and, that he has reason to think, that if Mr. Hog had conceived that his English funds would not have been carried by the settlement he had made, he would also have transferred them to his son ;" — one cannot help referring back to the former deposition of Mr. Ramsay; and with respect to the former deposition of Mr. Ramsay (your Lordships will recollect that the English funds and the Scotch funds were given by the same settlement for the same purposes) — Mr. Ramsay has expressly stated, that whatever might have been the opinion of the deceased with respect to the Pursuer's letters, and though that allegation had led him to place these funds in the name of his son, yet he says, that Mr. Hog the father himself told him that he contented himself with taking the promise of his son, that he the son would fulfil his intention. That is not all; but the promise which he takes is a promise not only generally that he would fulfil his intention, but it represents the son as promising his father that he would consult with others as to fulfilling his intention; and with whom would he consult? Why, that he would consult with Lord Henderland, Mr. Mackintosh, and Mr. Ramsay himself.

According to Mr. Ramsay's deposition, Mr. Hog had executed a trust disposition, vesting the funds in Lord Henderland, Mr. Robert Mackintosh, and the deponent, to be laid out in the purchase of lands, to be entailed, together with those English funds; which English funds, Mr. Hog had been advised, could not be touched by the law of Scotland as to this legitim, as was contended for many years, till otherwise decided in this House. And then the question is, whether the fair inference from the whole be not this, that this was a gift by the father to the son, not in this sense a gift by the father to the son, that it was to become the property of the son absolutely, but a gift of the father to the son for the purpose of the son laying out this property in the purchase of lands to be entailed in the same manner as his estate at Newliston : placing the property in hands in which it would be safe from the claim of legitim; as safe from the claim of legitim as those English funds were supposed to be. I state this, because it appears to me a question which deserves a great deal of consideration in this place, and would, I think, require great

consideration elsewhere, whether it be possible that a father in Scotland, the moment before he dies, can hand over to his son apparently that property, for the very purpose to which he could not devote it, by a trust disposition, either made whilst he was in liege poustie, or made after he was in liege poustie.

My humble opinion upon that is, that it would be absolute destruction to the law of Scotland, as far as it relates to this claim of legitim, if that could be done. The course, therefore, I should propose to take, would be to come to some declaration of the principle which we conceive to be the principle of law that should govern in this case of legitim; and then to call upon the Court of Session to apply the facts as they are proved before them, or make such examination as may be necessary, in order to enable them to ascertain the fund to which the principle is to be applied, and to apply that principle of law so to be laid down in your Lordships' judgment. And it does seem to me, it should not fall short of this, that the receipt of the profits, during the life of the person, is evidence of the ownership of that person in the subject matter which produces the profits; to state that, without prejudice to what ought to be the determination in such a case as Agnew v. Agnew, if such a case should ever arise again. Your Lordships will at least go the length with me, guarding it against any such case as that to which I have referred, of stating, that if any number of shares were placed in the name of the son, under an understanding that the son was to execute the purposes contained in that trust deed, such a disposition as that would not be sufficient to defeat a claim of legitim. When it is said, in this case, that that was no more than the declaration of the father, it will be open to the Court of Session to consider what weight is due to this observation, where the question is, whether the father and the son are together acting a part in order to defeat third persons whether the declaration of

each must not be evidence. I think it must be evidence as between third persons and a father and son, who are both to be considered as one adverse party to those third persons. When I say I think it would, I am only stating the opinion which I at this moment entertain, and it will be open to those who have to reconsider this case, whether I am right or wrong in the opinion I at this moment entertain upon this point. In this way of considering the question your Lordships will, in point of fact, have settled some material points both on the

law of evidence and the law of legitim, as far as the law of legitim is affected by a transaction of this kind.

The other questions which arise here are of minor consideration. The first is with respect to the Respondent, Thomas Hog, being a creditor for the value of the estate which his father had purchased in this country, which became his by the appointment of his mother, which was afterwards. sold, and the father received the money. It is very difficult to suppose, that in the course of so many years of the lives of both spent after that transaction took place, that, somehow or other, it was not very well understood between them that the father was not a debtor to the son for that sum of money; but we must not take that for granted. The transaction clearly constituted the son a creditor on the father; and unless it can be shown, far beyond what appears upon conjecture or supposition, that that relation of creditor and debtor was made to cease and discontinue by some satisfaction or some agreement, we must act upon the fact as it originally was, for we are not authorised to say that the nature of it was changed, unless that change be distinctly proved. It appears to me, therefore, that this appeal is groundless, so far as it quarrels with the Court of Session, in considering Thomas Hog as a creditor for that sum of money.

I am also of opinion that regard must be had to the sums which were received as provisions for Mrs. Lashley, and the annuity paid to her. And it will be observed by your Lordships that the effect of the decree is, that they shall be brought into collation. This decree or interlocutor supposes that more than one younger child should be entitled to the legitim; but if there be a well-grounded apprehension, as from what has passed in this House there may be (I say no more than that there may be), that only one child will be entitled to legitim,— if your Lordships gathered, in the words of the interlocutor, that that collation is only to be with respect to the legitim. whoever shall finally receive the legitim will receive the benefit of that collation; if more than one receive the legitim, more than one will receive the benefit of the collation; if only one turns out finally to be entitled to the legitim, the collation cannot prejudice the estate of that child, because it would then be collation only to itself; for, as I read the books, the collation is between those who are entitled to the legitim.

There is another circumstance of a debt of seven hundred pounds, that, as a debt, will fall to be so dealt with. There

will be no difficulty then in providing for the differences between the parties, in reference to these smaller considerations I have now been stating to your Lordships.

I would beg your Lordships' particular attention to that part of the case (though it is not a matter of very considerable value), which relates to the claim with reference to the expenses of confirmation in Scotland, and of the probate in England. I can have no manner of doubt, that, if a person die in England, as may happen in some parts of England to be the case, where a wife or a child have a claim against his property as wife or child, or where a part of his property may be undisposed of by his will, and where the wife, therefore, as wife, will take a share in the undisposed part, and the child take a share in the undisposed part; yet, inasmuch as no part of his property can be touched, but either wrongfully or rightfully; and as it ought not to be touched wrongfully, but ought to be administered rightfully-as no part of his property can be touched, if he has made a will, but by his executor; or, if he has made no will, but by his administrator the expense of clothing the individual who is to act as such with the character that is to enable him to act as such, is an expense for the benefit of the whole estate, however distributed; and therefore, as it seems to me, that expense should fall proportionably upon the whole estate. Whether that which respects confirmation in Scotland falls under the same principle, I, perhaps, am not so competent to judge, but I should conceive that it would. The question then is, whether, in stating my own opinion to your Lordships, I should state that these interlocutors are right or wrong; and I do say that the inclination of my opinion as to both is that they are wrong.

Then this circumstance occurs, and your Lordships must deal with it, regard being had to the circumstance that the cross appeal in this cause, which raises two points, the one not necessary to be raised by the cross appeal as I had occasion to observe yesterday in the question about domicil, because that was necessarily included in the discussion and argument upon the other appeal; and the other in respect of the expenses of the probate and confirmation, which is raised by the cross appeal; but unless your Lordships choose to relax your general rule, this matter is not properly before you ;- how far you may choose to relax your rule is a matter of infinitely greater consequence to the House than a question of such a value as this can be to the parties now litigating at your Lordships' bar,

the difficulty will be where you are to stop. This, how