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ever, must be left to the sound judicial discretion of Lordships; and when the question comes to be put, whether the interlocutor should be reversed, as to so much of that subject, your Lordships' opinion will be to be taken upon this point.

Your Lordships will observe that this leads me finally to say, that I have nothing to propose for a change of the interlocutor respecting the domicil of Mr. Hog. It will be for your Lordships to decide whether it is fit to adopt that proposition, that there should be a change of the interlocutor, as far as it is founded upon the notion that the marriage in England must decide the rights of the wife when she is transplanted to Scotland, and her husband's domicil is established there. But with respect to the domicil of the husband in the year 1760, it does not appear to me that there is any occasion to alter the interlocutor as to that part of it.

With respect to the price of the Kingston estate; with respect to the sum of 1000l. upon bond; with respect to the seven hundred pounds; and with respect to the provisions which have been made for Mrs. Lashley,-your Lordships will see that, if the interlocutors are to be altered at all, it will be an alteration rather in terms than in substance, an alteration which only clearly marks out how the collation is to operate, regard being had to whether it shall finally be more or fewer who shall be entitled to legitim; and with respect to the question upon the thirty-nine shares and the eighty-one shares, that it is fit for your Lordships to declare, as matter of law, the principles of evidence, and the rules which should obtain as to what shall, or what shall not, be taken to be inter vivos a sufficient disposition of the property, to render the property no longer capable of being considered as the moveable property of the testator at the time of his death; calling upon the Court of Session to act, upon that part of the case, upon that declaration, and to determine whether they can or cannot, upon the whole of the case, say that this property was not in the perfect enjoyment of Mr. Hog, and that the purpose of the transfer was not under an understanding, between the father and the son, that that property should be applied to the purchase of land, to be settled by entail in the same way as the estate at Newliston, of course giving their distinct attention, as they have been before called upon to do, to the thirty-nine and the eighty-one shares.

I hope your Lordships will allow me to state, that I have

thought it better to go through the case at great length, stating my opinion upon the different parts of it, than to draw out the judgment in form, before I knew whether your Lordships concurred with me in the opinion I have humbly stated. If it should be your Lordships' opinion so to do, it will not be difficult then to draw up the terms of such judgment as your Lordships may think proper to give upon the whole of the case; therefore, for the present, I shall content myself with saying what I have done, expressing, however, a wish that the noble and learned Lord who has given great attention to this case will be pleased to say how far he does or does not concur with me, because it will be very satisfactory to my mind, recollecting how long he has been in the knowledge of the law of that part of the island as well as this, if his Lordship should be of opinion that I have not mistaken the true view of this case; and, on the other hand, most thankfully shall I receive any information that may fall from the noble and learned Lord, that may tend to set me right, if, in any respect, I am mistaken in the principles I have laid down.

Earl of Rosslyn. I have the satisfaction entirely and absolutely to concur with the noble and learned Lord who has just sat down.

I am sorry to observe that, in the proceedings of the court below, there have occurred, in my opinion, several mistakes in point of law, particularly in that interlocutor which finds that the circumstance of the marriage being celebrated in England can decide upon the rights of succession that will arise to the wife and children of that marriage, in opposition to that law which, by the future events of the life of the party, may be the law of the land, to operate upon his property at the time of his death. I think there are many errors that have misled the judgment of the court upon this point.

In the first place, in this case there is an express contract, and I have no conception, in point of law, that a lawyer is in such case to entertain a metaphysical idea of an implied contract arising from the situation in which the parties place themselves by a civil act. My general idea of law is, that in all cases where the parties make an express contract, that excludes all consideration of an implied contract: an idea of an implied contract, in all cases where there is an express contract, is to me a solecism.

But, supposing there had been no legal contract, and you were to determine upon the situation of the parties upon the

mere fact of a marriage celebrated in a given place, they had no occasion to raise an implied contract: a man and a woman are united together; they take their chance of the future fortunes of each other, and particularly with regard to the wife, who can have no domicil separate from the domicil of her husband: she must follow the fortunes of her husband, wherever they happen to be placed, and must take her chance at the time when his fortune falls under the disposition of a particular law; therefore, in the general case, there is no foundation for that, (and I am sure my noble and learned friend will see the application of this observation in almost every case where that occurs,) that a metaphysical idea of an implied contract is a fallacious idea, substituting an imaginary idea, not applicable to the actual situation and relation of the parties.

With respect to the claim of the Appellant in right of the mother to that share of the estate which the law of Scotland gives under the name, not very properly applied, of jus relicte, I am of opinion, with the noble and learned Lord, that the interlocutor ought to be reversed.

But upon that being reversed, then comes a matter of great consideration with regard to property, the claim of legitim to the children. Now, I take it that I have never learned, or that I have forgotten, the laws of Scotland, or that the father has a full power to dispose of his personal property in any manner he pleases he may convert it all into land, and by that means the younger children will be defeated of their legitim; but then he must do the act himself; he must himself purchase the land, because the nature of the property that becomes the property, either of the right heir, or partly of the younger children, must be judged of at the time of the death of the father; therefore, according to my idea of the evidence in this case, but I do not mean to say it is not a matter open to enquiry, for I will not presume to know so much as some others may on this subject, - I should say that Mr. Hog's intention to have either his stock in the Scotch Bank, or the funds in England, laid out in land after his death, by any stipulated alienation of them from him to his son for that purpose, is totally void in point of law, and can have no effect with regard to the disposition that he might make of it: he might do the act in person; he might give a provision to a child in his lifetime, without any consideration what might be the state of his moveable property at the time of his death; and that, when actually given, could not be recalled. He might advance one

of his children into a certain situation in life; he might lay out his money expensively on his education; he could not be hindered from it; but he must actually give the money with which this would be done: he must divest himself of an interest in it, and he cannot retain that interest to the moment of his death consistently with law; therefore, the case of Agnew v. Agnew, I think, is totally wrong in law (I have no scruple to say so), and a bad decision. I should not be so moved by that decision, as to send this case back to the Court of Session for reconsideration; but when I am to pronounce upon a case where there are a great many papers, and a good deal of evidence which I have not examined with attention, I do not wish to apply the law in this case; but, as far as I know the evidence, and can judge of it, I think it clear that, as between Mr. Hog the father and Mr. Hog the son, there was a disposition and an understanding to reduce the claim of legitim, with a view to prevent the wife of the Appellant from having that claim which she would otherwise consider herself to be entitled to.

With regard to the debts contracted by the father, in consequence of the son's paying him the price of the estate he was entitled to by his mother, the son is fairly entitled, as a creditor, to stand upon the moveable estate of the father, and to receive the value of the estate at Kingston, and also the bond of 1000l., before any distribution of it can take place.

I think there is a mistake in the interlocutors of the Court of Session with regard to a trifling sum the expense of the probate in England and confirmation in Scotland: they are both sums of money laid out in order to acquire a legal title to that property which is to be distributed. Somebody must lay it out; and it is no matter whether the son or anybody else had done it but I think, that the rules of your Lordships' House in the case of appeals ought to be strictly adhered to; and this may be still more trifling in the result, because it may happen that the shares of that fund to be divided may come to be equal, which, I think, will very probably be the result of this case; but he certainly had a legal claim on the fund for those expenses.

On the motion of the Lord Chancellor, on 16th July, 1804, this judgment was pronounced:

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It is declared by the Lords, &c. That the contract of marriage between the late Mr. Roger Hog and his wife is not so conceived as to bar a claim to legal provisions ;

and that Mr. Hog is to be considered as having his domicil in Scotland at the time of his wife's death; and that the Pursuer has, therefore, a claim in right of her mother, the wife of the said Mr. Roger Hog, who, at the time of her death, had his domicil in Scotland, to a share of the moveable estate of her father at the time of her mother's death: And it is further declared, that such shares of the stock of the Bank of Scotland, standing in the name of the Respondent Thomas Hog at the death of the said Roger Hog, as shall appear to have been transferred to the said Thomas Hog, under any agreement or understanding that he would invest the same in land, after the death of the said Roger Hog, and also such shares, the dividends whereof shall appear, notwithstanding the transfer of the same, to have been after such transfer ordinarily received for the account of and applied for the use of, the said Roger Hog, ought to be considered as subject to the Pursuer's claim of legitim: And it is therefore ordered and adjudged, That all such parts of the interlocutors complained of in the said appeal as are inconsistent with these declarations, be, and the same are hereby reversed; and, in so far as they are agreeable thereto, the same be, and are hereby affirmed: And it is further ordered, That the cause be remitted back to the Court of Session in Scotland, to ascertain whether any, and which, of the shares in the Bank of Scotland, agreeably to the declarations aforesaid, are subject to the Pursuer's claim of legitim, and also to ascertain the interests of the Pursuer in her father's estate, at her mother's death and at his death, regard being had to this declaration: And it is further ordered and adjudged, That it is unnecessary to consider so much of the matters complained of in the cross appeal as relates to the domicil of the said Roger Hog, touching which such declaration hath been made as is herein-before contained: And, the said appeal also not having been presented in due time, it is further ordered and adjudged, That the same be, and is hereby dismissed this House.

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