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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Thomas Hog of Newliston, Esq. v. Rebecca Lashley or Hog, and Thomas Lashley, her Husband [1792] UKHL 3_Paton_247 (07 April 1792) URL: http://www.bailii.org/uk/cases/UKHL/1792/3_Paton_247.html Cite as: [1792] UKHL 3_Paton_247 |
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Page: 247↓
(1792) 3 Paton 247
CASES DECIDED IN THE HOUSE OF LORDS, UPON APPEAL FROM THE COURTS OF SCOTLAND.
[M. 8193.]
No. 56
House of Lords,
Subject_Legitim — Lex Domicilii — Discharge of Legitim — How it Operates — Homologation — Child's Share of Goods in Communion — Heritable or Moveable — Government Annuities — French Funds. —
A Scotsman by birth left his country early in life, and settled in London, and married an English lady there. He acquired a large fortune, and purchased the estate of Newliston in Scotland, to which he sometime thereafter retired, and died there. By will the appellant was left the whole heritable and moveable estate. The eldest daughter, the respondent, was married to Dr. Lashley, and, on her marriage, it was proposed to give her £2000 as her fortune. A correspondence was entered into, by which £700 of this sum was paid them on bond, and further correspondence was entered into in regard to the balance when the father died. The younger children had all discharged their father for their shares of the legitim. But the respondent claimed her legitim, and also a share of the goods in communion, as due at her mother's death, and she raised an action against the appellant, her brother, concluding for payment. Held, 1. That she was not
Page: 248↓
barred from homologation or acquiescence. 2. That the claim of legitim was not excluded by Mr. Hog's last settlement. 3. That as the marriage articles did not bind his fortune, so they could not preclude the mother, had she survived, from claiming her legal share. 4. That the renunciation of their shares by the younger children operated in favour of the respondent, Mrs. Lashley or Hog. 5. That the personal succession must be regulated by the lex domicilii, which was Scotland, and therefore included the funds both in England and elsewhere; and that the Government annuities were moveable.
Robert Hog, afterwards of Newliston, was a native of Scotland, and left that country early in youth, and settled in London as a merchant, where he married an English lady, Miss Rachel Missing, and acquired a considerable fortune in business, besides obtaining £3000 with his wife.
1760.
On his marriage with Miss Rachel Missing, a contract of marriage was entered into, whereby the wife's portion was to be vested in lands in England, for behoof of them in liferent and their children equally in fee. He afterwards purchased the estate of Newliston, near Edinburgh, at £18,000, to which place he soon afterwards retired. This marriage was dissolved by the death of Mrs. Hog in 1760, leaving three sons and three daughters.
Rebecca, the respondent, and eldest daughter, married Dr. Thomas Lashley, then a student of medicine at college, and a native of Barbadoes. The marriage, in consequence of having been gone into without the knowledge and consent of the father, created displeasure, and induced them to retire to Barbadoes. On this the father proposed to give his daughter £2000 of portion. They went to that island accordingly, but nothing more than £700 was paid, for which Dr. Lashley granted his bond; and some letters passed between the parties as to the remainder of his wife's fortune, in which expressions were used on the part of the son-in-law that indicated an acknowledgment that the £2000 was to be all the fortune or claim he could expect, with the exception of one letter, which expressed larger views, and hinted at a claim of a more extensive nature. On the part of Mr. Hog, his letters in reply, gave him to understand that the £2000 was to be all, and to make his daughter equal with “my other family.” These propositions came to nothing; but, in 1771, Mr. Hog gave directions to pay Mrs. Lashley £65 per annum, being the interest of the £1300, the balance of the £2000, after deducting the £700 paid. He
Page: 249↓
Mar 19, 1789.
His eldest son, the appellant, was, by general settlement in his favour, left the whole heritable and moveable estate, subject to payment of his debts, and of these provisions. His personal estate was considerable, and chiefly vested in a banking concern in London, and part in English and French stock or funds, which was to go, with the landed estate in Scotland, to the appellant. All the daughters, except Mrs. Lashley, had, on their marriage, accepted their provisions, in full of all they could claim and demand, on account of their legitim, and discharged their father accordingly. So had Alexander and Rodger, the younger sons, on receiving certain sums in full; but no discharge had been granted by Mrs, Lashley or husband. After their father's death, the latter rejected the legal provisions referred to; and raised the present action, setting forth, that at her mother's death Mrs Lashley, by the law of Scotland, was entitled to a proportion of the goods in communion, being a third, called dead's part, falling to her as one of her mother's next of kin; and that, at her father's death, she was entitled to one half of the whole personal estate of the deceased as legitim—her other brothers and sisters having accepted of the provision made by their father, and renounced and discharged their several claims of provision. Both claims she estimated at £30,000, or £15,000 each.
The defences stated were, 1. That both claims were barred by the bonds of provision granted to them, and their acceptance and homologation thereof, declared by their several letters produced in Court. 2. It was also excluded by the father's deed of settlement. 3. That the claim of legitim could not extend over the deceased's property in England and France; and, 4. That she could not avail herself of, or derive any benefit from the discharges and renunciations granted by the other younger children, so as to claim the whole legitim, but only a third thereof, there being two other younger children alive at the death of Mr. Hog, who would have received an equal share of said legitim but for their discharges and renunciation in favour of their father, granted on receiving sums in lieu thereof.
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Dec. 2, 1790.
Dec. 24, 1790.
June 7, 1791.
Nov. 29, 1791.
Dec. 23, 1791.
By various interlocutors the Court found, 1. That the pursuer's were not barred by homologation, acquiescence, or acceptance on their part, and that the letters and correspondence adduced did not prove this. 2. That this claim of legitim was not excluded by Mr. Hog's last settlement. 3. That the marriage articles of Robert Hog with Miss Missing, as they did not bind the father's fortune, so could not preclude the mother, had she survived, from claiming her legal share. 4. “That the renunciation of their claim of legitim by the younger children operated in favour of the pursuer (Mrs. Rebecca Hog), and has the same effect as the natural death of the renouncers would have had; and as she is the only child who did not renounce, find her entitled to the whole legitim; being one half of that free personal estate belonging to her father at the time of his decease.” * 5. “That the succession must be regulated by the lex domicilii;” and, consequently, that this “claim of legitim extends to such personal effects in England or elsewhere, as well as in Scotland.” * 6. The Court hereafter found, on further advising a reclaiming petition, “that the government annuities in England fall under the pursuer's claim of legitim,” but remitted to hear further as to the government annuities in France. * 7. Also remit to hear parties further upon the pursuer's claim, in right of her mother, to a share of the goods in communion at the dissolution of the marriage.
An appeal was brought against those interlocutors as find, 1. That the letters and correspondence produced do not prove homologation and acquiescence sufficient to bar action. 2. That the respondent's claim of legitim is not excluded by the deed of settlement. 3. That the claim of legitim extends to personal estate in England or elsewhere, as well as in Scotland. 4. That the renunciation and discharge of the younger children operate in favour of the child not renouncing. 5. That the government annuities in England are moveable, and fall under the respondent's claim of legitim.
Pleaded (by Mr. Grant ) for the Appellant.— This case is brought under the consideration of your Lordships, in order to settle some points of very general importance in the law of Scotland.
_________________ Footnote _________________
* Vide Opinions of Judges of the Court of Session at the end of the case.
Page: 251↓
By that law, a person having neither wife nor child, may dispose of his property in what manner he pleases. In marriage, if there be no special contract to exclude it, a communion of moveables takes place between husband and wife. But if a man die, leaving a wife and children, one-third part of his personal property goes to his wife, which is called the jus relictæ; one-third part to the children, which is styled the legitim; and the remainder, called the dead's part, the owner may dispose of to whom he pleases. This right of legitim may be renounced, with or without a consideration; and upon such renunciation, the general doctrine seems to be, that the share of the child renouncing accrues to the other children, unless a contrary intention of the father has been manifested. From what has been said, it appears that the right of legitim goes to one half of whatever personal property the father dies possessed of, that is, not affected by the jus relictæ.
In this case, five points will arise.
1. What will be the effect of an implied renunciation, supposing it to exist in fact in this case? 2. Whether the right of the children to legitim may not be barred by a deed inter vivos, executed by the father in his lifetime. 3. Whether the share of a child renouncing does not accrue to the father, so as to enable him to dispose of it by will? 4. Whether, though the deed executed by Mr. Hog be ineffectual in Scotland, it will not operate as a will in England, so as to convey the personal property in that country, according to the deceased's intention? 5. If not on the ground that the lex domicilii is to prevail, then, whether the property in the English funds is not to be considered as immoveable property, and descendible to the heir, which would be the case of any fund in Scotland having a tractus futuri temporis?
If either of the two first points be decided for the appellant, it will render the consideration of all the latter ones unnecessary, as they both go to the whole question; but the latter questions only go to the quantum of the sum to which Mrs. Lashley will be entitled. Such are the questions arising out of the facts I am going to state to the House, (here Mr. Grant stated the facts.) The marriage of the late Mr. Hog was contracted in England, by parties resident in England and domiciled there; therefore there was no communion of goods between Mr. Hog and his wife;
Page: 252↓
At one period, since her marriage, it is clear that Mrs. Lashley had no idea of a right to legitim, for in her letter of 27th February 1771, she speaks of £65 being the interest at 5 per cent for the remaining £1300 of my fortune, which words certainly imply “all that she ever expected to receive from her father, or thought she had any right to;” and by such expressions, every idea of a mere temporary allowance to a child is removed. Mr. Hog himself certainly entertained the same idea, for, in 1775, he executed formal bonds of provision in favour of Mrs. Lashley and his other daughters, in which he mentions £2000 to be in full satisfaction of the legitim.
It must be admitted, that if this were entirely the case of a Scotch succession, and no will, there would have been a division amongst the younger children unless they had renounced. But in this case, the appellant, Mr. Hog proved the deed which was executed in his favour by his father in 1787 as a will of personal property in England. Soon after the death of her father, Mrs. Lashley brought this action. In the Court below, several defences were set up by Mr. Hog, the appellant.
First, it was contended that Mrs. Lashley's claim to the legitim was wholly excluded by her acceptance of the provision made by her father; and that the facts and circumstances in this case amounted to a renunciation.
The second answer made to her demand was, that Mr. Hog the father, had not left his property to be disposed of by the law, but that he had disposed of it by a rational deed inter vivos, which it was competent for him to do. These two defences, if either of them had prevailed, would have been an answer to the whole of Mrs. Lashley's demand.
But it was further contended below, by way of partial defence, that as there was property in England, upon which the deed executed by Mr. Hog could operate as a will, that property must be excluded from the claim of legitim.
It was further insisted, that a renunciation by the other
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Lastly, It was contended, that the property in the English funds would go to the heir, and not to the executor; for it was either affected by the will, which gave it to Mr. Hog, the appellant; or if the law of the domicil prevented the will from having its due operation, the same law must be resorted to, to show how it must descend; and that law in this case would carry it to the heir.
These were the points rested upon below; but I must admit they were all decided against us, and I am now to trouble your Lordships with arguments in support of them.
The first point is, as to the effect of Mrs. Lashley's acceptance. The correspondence contained in the second and third pages of the appellant's printed case, proves, by the uniform expressions, Mr. Hog's intention to give Mrs. Lashley the same, and no larger fortune, than he bestowed upon his other daughters; and also Mrs. Lashley's intention to accept it as her fortune. Fortune is a word of particular import, and is always used to signify the whole sum that a parent means to bestow upon a child.
The renunciation of various rights may be collected from facts and circumstances as well as by deed, unless there be some express law to the contrary; which is not pretended to exist in this case. The other children of Mr. Hog's were executing formal deeds of provision, and in them, a clause of renunciation was inserted. She not being with her father, did not execute an instrument, and therefore, there is no formal renunciation; but words are frequently used by Mrs. Lashley and her husband tantamount to it. In her bills drawn for £65 per annum; she mentions it as interest due to her, which proves she could not be speaking of a bounty or temporary provision. Mr. Hog having acquiesced in the statement of £2000 as her fortune, if an action had been brought against him or his executors for that sum, they could not have defended themselves against such a demand. If so, the obligation must be mutual, and I contend, that Mrs. Lashley is debarred from her legitim, because she consents to accept of £2000 as her fortune. But, supposing your Lordships to hold that there must be an express renunciation, then I contend;
Secondly, that by a rational deed executed , not upon death-bed, the father may exclude the legitim. Mr. Erskine (Book III. tit. 9, § 16), says “That rational deeds granted by the father in relation to his moveable estate, if they be executed in the form of a disposition inter vivos, are sustained, though their effect should be suspended till his death.” Is there any thing irrational in all Hog's settlement?
Erskine's position is supported by adjudged cases; The case of Johnston v. Johnston from Fountainhall, mentioned in Kaimes' Dict. of Dec. vol. 1, tit. Legitim, p. 545.
To the same point is the case of Lady Balmain, in the same page, which was to this effect: A disposition by a husband to his wife of the stocking that should be upon his mains at the time of his decease, being objected to by his children, as in prejudice of their legitim, being of a testamentary nature revocable, as not having been a delivered evident; it was answered, that the form of the deed, is per modum actus inter vivos, whereby a present right is conveyed, though suspended till the grantor's death, and being done in liege poustie, it cannot be reached by the law of death-bed, and there lies no other bar to the father's power of alienation.
Vide ante.
These cases are in point, and no contrary determination has been stated, where the claim of the children has prevailed against a rational disposition of the father. Formerly, a man could not disappoint the heir as to the descent of real estate, but the power of disposal as to such property has increased, by merely using words of disposition instead of words of devising. If the shackles are thus taken off as to real estate, it is strange that they should still be continued upon personal property. To establish so absurd a principle, your Lordships will think it necessary to be furnished with a long chain of concurrent authorities, and even that will hardly he sufficient, in a matter so contrary to reason. In the law of Scotland, till lately, the lex loci rei sitæ was supposed to be the law that was to govern, and all the decisions are uniformly that way; but now, by a decision of your Lordships in Bruce v. Bruce, the rule of the lex domicilii has been established. Therefore, even if the decisions were against me, which I have shown they are not, your Lordships ought to decide for the appellant, upon the principle of removing, as much as possible, all restraints upon property, and the disposition of it.
Thirdly, As to the effect of the renunciation of the other
Page: 255↓
The fourth question is, how far the deed executed in Scotland by Mr. Hog will be effectual in England as a will, so as to bind the property in England? I am bound to admit, after the decision of the House in Bruce v. Bruce, that the lex domicilii is the rule of decision that must prevail, as to the disposition of property, where the party dies intestate. For it certainly would be extremely inconvenient that many different rules should prevail in the disposition of property belonging to the same individual. It would also be probably inconsistent with the intention of the proprietor, for where he dies intestate, it may be presumed that he approved of the law of domicil. But how is this rule to be preserved, where the property is in another country, and the law of the domicil can only extend to its own territories, so as not to be able to compel the foreign state, where the property actually lies, to enforce it? It is done in this way: the foreign state adopts the law of domicil, not as a rule binding upon them, but as the presumed will of the deceased; or they resort to a fiction, by saying that moveables have no situs, but are attached to the person of the owner. It is necessity only that obliges a court of justice to resort to either the
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I agree with the argument, that it would be impolitic in the commercial world that the lex loci should govern the disposition of property accidentally there, in a course of commerce. The opinion of Lord Hardwicke in Thorne v. Watkins, 2 Ves. 35, turns entirely upon the policy in a case of intestacy. But where a man makes a will, the question of policy does not arise.
Fifthly, As to the property in the English funds. It is a clear principle of the law of Scotland, that annuities are considered as heritable, and descend to the heir; and therefore if the lex domicilii is to prevail, you must apply it to the whole of the property, which will exclude Mrs. Lashley from any share of that property which is in the English funds. It is true, that by the law of England, such property is considered as personal, but then that must be with reference to cases in England, the parties being English, and domiciled there. It does not seem to have been a question much agitated by writers on general law, what rule is in general to prevail, Whether the lex domicilii or lex loci, as to the point whether the property is to be considered moveable or immoveable. Pothier (vol. III. p. 528, § 85), in treating of the communion of goods between married persons, clearly states the point, and declares it to be settled that the law of domicil where the creditor resides, is the rule that is to prevail; and that decision seems to be agreeable to reason. If that rule prevails, then Mrs. Lashley cannot claim legitim in the English funds, because they were not the subject of legitim, but descend to the heir.
These are all the grounds of defence upon which a partial or total reversal of the judgment is prayed.
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April 30, 1792.
Mr. Anstruther spoke on same side.
Pleaded by the Lord Advocate (Dundas) for the Respondents.—I am to trouble the House in support of a judgment which, except upon one point of testate or intestate succession, was an unanimous one in the Court below. The points are five:
1. Homologation, by the law of Scotland, is, where a party by actual or presumed acceptance, releases or confirms a contract. But, in order to make such an act binding, it must appear that the party releasing or confirming, did so with full knowledge of what he was doing. Now, in this case, the letters that have been produced do not even state that the legitim was at all even a subject of consideration. The sum of £2000, so much spoken of, was merely a matter of bounty from the late Mr. Hog. The case did not admit of homologation, for Mrs. Lashley's legal claims were never even stated or taken notice of in the whole correspondence. The sum of £700 was so far from being in part satisfaction of the legitim, that it was money lent, for which Mr. Hog took a bond, that he might at any time, even to the time of his death, have put in suit and enforced. If the £65 was meant as the annual interest of Mrs. Lashley's fortune, it is strange that Mr. Hog should still talk of the £700 as a debt, which he does in all his letters. As late as the year 1772 he speaks of the £65 per annum as an annuity and bounty during pleasure. Erskine (Book III. tit. 9, § 23.) expressly declares, that a virtual renunciation of the legitim will not do, in the following terms, after stating that it may be renounced by a child, even without satisfaction: “As this right of legitim is strongly founded in nature, the renunciation of it is not to be inferred by implication. It is not to be presumed, either from the child's marriage, or his carrying on a trade by himself, or even his acceptance of a special provision from the father at his marriage, if he have not expressly accepted of the provision in full satisfaction of the legitim.”
This right, though it be not necessary, in order to decide the case, to discuss the nature of it, seems to me to partake more of the jus crediti than a right of succession; although that jus crediti may certainly be defeated in the lifetime of the father. This brings me to the second point; namely, Whether Mrs. Lashley's claim to the legitim is
Page: 258↓
4 th May 1792.
The third point is, as to the effect of the renunciation by the other children of Mr. Hog; and I contend that the benefit of that renunciation does not tend to the profit either of the father or of the heir, but tends to increase the legitim. It has been much argued here and below, upon the policy and expediency of the measure. But after authorities so numerous, and of so much weight, and the variety of decisions in support of those authorities, it is impossible to recur to arguments of general policy. The renunciation of the legitim is not understood as a bargain between the father and the child renouncing; but the child, by anticipation, receives his legitim, and therefore, it is but justice that those who remain should have their share. The authorities quoted in the case of the respondent, p. 10, are all unanimous.
The first is the instructions given for the guidance of the Commissaries as to the confirmation of testament in 1606, Lord Stair, Book iii. tit. 8, § 46. Lord Bankton, Book iii. tit. 8, § 15. Erskine, Book iii. tit. 9, § 23.
These authorities all concur in establishing the rule, that a child's renunciation of the legitim has the same effect in regard to the younger children, as the death of the renouncer, so that his share divides equally among the rest. This doctrine was admitted in its full extent by all the judges in Scotland in this case, except one (Lord Dreghorn), who has argued on the contrary side, upon principles of policy and
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The fourth point is, whether or not the will of Mr. Hog is to have an operation upon the property in England, notwithstanding the law of the domicile. In the case of Bruce v. Bruce, ( Vide ante p. 163,) the House of Lords certainly did state an opinion upon the general point of the law of domicile, in a case of intestate succession; but the same rule must apply to a case of testate succession. If it be admitted that moveables are supposed to be where the owner is domiciled, then the case is clearly with my client, because then the will can have no effect; for if this will were produced in Scotland, it could not defeat the legitim. Can a court of law, by a mere transmission into another country, give validity to an instrument which it could not have in the country where the party executing it resided?
In the case of Kilpatrick, before Lord Kenyon, then Master of the Rolls, (Respondent's case, p. 7), the matter was viewed in this very light; and the only question was, whether the will was good by the law of Scotland? Whenever that point was ascertained, the decree proceeded according to that law.
In Dirleton's Doubts (Respondent's case, p. 8), it is said that “ testamenti factis ought, in all reason, to follow the person.”
Fifthly, as to the question, whether the money lodged in the 5 per cent, annuities is to be considered as moveable or immoveable? It is said, that if the law of domicile is to be resorted to on one point, namely, as to the testate or intestate succession, so it must on every other; and then it is insisted, that by the law of the domicile, this particular species of property would be considered as heritable, and consequently
Page: 260↓
This question occurred in the beginning of this century and again in 1735; and it was then solemnly decided, that the shares of the Bank of Scotland are not heritable; but simply moveable. The five per cent, annuities fall precisely within Mr. Erskine's description of that species of property which is not to be considered as having a tractus futuri temporis. See the whole passage from Book ii. tit. 2, § 6, quoted in Respondent's case, p. 8.
Besides, if there were any doubt upon the law of Scotland, this is a British debt, and the act 25 Geo. III. c. 32, § 7, declares it to be personal estate.
Mr. Solicitor General (afterwards Lord Eldon) on same side.
The clause of legitim, by the law of Scotland, is exactly similar to the orphan's share in the custom of London; and it is singular that there is hardly any question which has been agitated as the right of legitim, that has not also arisen with respect to that custom; and every decision upon it has been conformable to the decisions in Scotland.
The first point is, whether my clients, the respondents, are barred by any homologation or acceptance?
The legitim cannot be barred by an implied assent; and upon this point, without entering into a discussion of the law, I rely upon the fact. In the whole of the correspondence relied upon for the appellant, no contract appears for any precise sum to be given for the legitim; and even if a sum were mentioned, no terms are imposed, nor even hinted at, that have the smallest connection with legitim. The bond referred to by Mr. Hog, in his letter of September 1768, was reserved by him in his repositories to his last moments, and might have been put in suit at any time. When, in another place, he proposes the sum of £2000 as an equal share with his other daughters, he does not even state their renunciation of their claim of legitim, or his expectation
Page: 261↓
Mr. Solicitor General.—I do not admit it; for if a husband renounced his wife's share under the custom of London, and she survived her husband, I doubt very much whether she would be barred by that renunciation.
The second point is, whether Mrs. Lashley is barred by any act of her father, Mr. Hog. A great many acts might be done by a freeman of London, to defeat the custom; but if he did any act, which turned out to be a will, it was held to be a fraud upon the custom, and therefore void. So held in the case of Tomkyns v. Ladbroke, 2 Vezey, 561, where Lord Hardwicke said, that a freeman may, by act in his life, and even in extremis, give away any part of his personal estate, provided he divests himself of all property in it; though if he reserve to himself a power over it, that is considered as void. The act of the father was of a testamentary nature, and therefore must be judged to be an act in fraud of the custom; so in this case the deed executed by Mr. Hog was in fraud of the legitim, and therefore void. I cannot forbear to mention in this place, some other peculiarities in the custom of London, which apply to other parts of the cause. It appears that the custom attached upon property not locally situated within the city, so that the will of a freeman would no more operate upon it than if within the walls. 4 Burn, Eccles: Law, tit. Wills, p. 378.
In the year 1734 it became a question whether a composition with the wife for her customary part would accrue to the benefit of the father or the child? It was held that, in such case, it should be taken as if the wife were dead, so that the father would have one moiety and the children the other. 1 P. Wms. 644. In 2 Vez. 592, Lord Hardwicke enters into the history of the cases, and holds it to be settled that a composition with the wife, has the same effect as
Page: 262↓
In this case, it is argued, that as the father might easily have defeated the right of legitim, the mode he has adopted will do as well as any other, although the law of the country has said directly to the contrary. The question is, Has he done that act, which the law has required him to do, in order to defeat this right? Will this deed, coupled with the bond of provision, exclude the right of legitim? The bond alone will not do, because it remained in his bureau till the moment of his death; and as to the deed, no single judge in the court below had a doubt upon it. The deed, as to the personal estate, is merely in the form of a Scotch testament. A deed, with a power of revocation, vests a present interest, subject, however, to be defeated by the act of the donor; but a deed, to have no effect till the death of the donor, is very different. The cases quoted on this subject are not analogous to it. Johnstone's case, if it were analogous, is of doubtful authority. Lady Balmain's case is not applicable; and the last case upon the subject, of Henderson v. Henderson, is decisive against both the former.
The third question goes as to the extent of the legitim; and it seems that, in a case of intestate succession, Mrs. Lashley would be clearly entitled to legitim, both as to the English and Scotch effects. Taking it for granted that the case of Bruce v. Bruce in the House of Lords, has decided the point, that the law of domicile must be resorted to as the rule in a case of intestate succession, it seems to me to apply much stronger in a case of testate succession. If the lex loci is to govern in a case of the latter sort, is it to be the lex loci rei sitae at the time when the will is made, or at the time when the owner dies? If the law of the domicile is not to prevail, how many different laws are? For if it be not, the disposition of property must depend, not upon the will of the owner, but on the situation of the various persons in whose hands his effects may happen to be placed; nay, it may depend even upon their caprice or will, rather than upon that of the owner; for a creditor will have nothing to do, but to change his place of abode, and the will of the owner is again defeated.
But I contend that this cannot be the rule; for if a man makes a will, though he uses words which, in the country
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The case of Kilpatrick at the Rolls, must carry great weight, for although the case was not argued at the bar with much pertinacity, yet Lord Kenyon considered the subject, and founded his decree upon the report of what the rule of the Scotch law was, and that was the case of a will.
In the case of the jus relictae, as well as of the legitim, there is good reason for declaring that the law of the domicile shall prevail; for parties contracting matrimony may be reasonably supposed to have a view to these advantages and benefits which the laws of their country, by virtue of that relation, entitle them to expect. There ought, then, to be the highest authority to say, that a man who is, and continues to be domiciled in Scotland, shall not be enabled, by placing his property in the English funds, to disappoint the reasonable expectations of his wife, who by the law of his and her domicile, is entitled to one half of his personal estate where there is no children: or, if there be any, to defeat both her and them of their legal claims.
The fourth point is, as to the effect which the renunciation by the other children shall have. I contend that it is in the nature of a bargain made by the father with the child renouncing, for the benefit of the other children. It is a contract that the child renouncing shall not claim any part of the father's fortune; but it is not a contract that the father shall claim the renounced share, instead of the renouncer. It is unnecessary to argue this point as an abstract proposition, because it has been decided over and over again; and therefore it is too late to argue upon the reason of the thing, or upon the policy or expediency of such a rule having been adopted.
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Fifthly, As to the question, whether the property of the late Mr. Hog in the English funds is to be considered as moveable or immoveable property? it has been assumed, in argument, that if these funds were in Scotland, they would be deemed heritable property; but that is a position which I absolutely deny. Rights of this nature, which are deemed to be heritable by the law of Scotland, are such as carry a yearly profit, without relation to any capital sum or stock. But your Lordships know that the five per cent. annuities depend upon the capital stock; for it is in respect of his capital stock, that the holder of it is entitled to an annuity. If he propose to transfer it, he does not transfer an annuity, but the stock. The legislature has expressly declared that his fund shall be considered as personal, and shall go to the executor. Shall a different rule prevail in Scotland, from what the wisdom of parliament has pointed out? Shall they go to the Scotch executor, as trustee for the heir at law, and to the English executor, for the benefit of the next of kin, under the statute of distributions? Upon this point the authority of Mr. Erskine (Book ii. tit. 2, § 8,) is express, where he says, that “the shares of the proprietors in any public company or corporation constituted either by statute or patent are considered as moveable.” *
7 th May 1792.
Mr. Grant heard in reply.
The
Ordered and adjudged that the interlocutors be affirmed.
Counsel: For Appellant,
T. Erskine,
W. Grant,
J. Anstruther.
For Respondents,
Sir J. Scott,
Lord Advocate Dundas,.
Alex. Wight,
Wm. Adam,
John Clerk.
_________________ Footnote _________________
* Opinions of Judges of Court of Session— Vide p. 250.
Lord President Campbell .—“This is a claim of legitim out of English effects. Questions which concern the laws of different countries, and where, in case of variance, a general rule must be laid down, are always of importance, and often of nice discussion.Many points have been settled concerning the constitution of obligations in foreign countries, prescription of rights, limitation of actions, foreign decrees, the operation of foreign statutes, &c. though as to this last, there is still some confusion as to the effect of the English bankrupt statutes here.
The general question about intestate succession seems likewise to be now understood and at rest. The determinations of Lord Hardwicke are founded upon principles of law, upon expediency, and upon the authority of writers in general law; and the English courts having adopted his rule of lex domicilii, which was agreeable to our practice 40 years ago, and to the authorities of some of our best writers. Though departed from in some recent cases, we ought now, without hesitation, to return to the decision in the case of Brown of Braid, and to hold that rule as established in time coming.
In the cases of Elsherson v. Davidson, and M'Lean v. Henderson, the Court was misled, by supposing that the determinations in England stood in favour of the res sitae. This was owing to some mistaken idea about Lord Banff's succession, where a short and hasty opinion had been given by Sir Dudley Ryder, pointing at the res sitae as the rule, but the truth is, that Lord Banff, who was a seaman, had no fixed domicile, and died in Lisbon, leaving a furnished house in London, and his money in the funds, so that although he was a Scots peer, and had some real estate in Scotland, yet there was more ground for considering England than Scotland as his locus domicilii. See Session Papers, vol. 59. No. 68.
The circumstances of Lord Dacre's case are not known. See Voet. lib. tit. 4, part 2, § 8 and 11. Lib. i. tit. 8, § 30. Lib. v. tit. 2, § 47. Lib. xxviii. tit. 1, § 44.—Vinnius, Select Quest. lib. ii. tit. 19. Christeneus, p. 812.—Vattel, lib. ii. c. 8, § iii. Rodenburg, de Jure Conjugum, p. 20. See also case of Mrs. Morris against Wright, Session Papers, vol. 51, No. 124. It was by that time discovered that the decisions of the English Courts were not, as supposed in the case of Elsherson, vol. 34, No. 81, (Session Pap.); but the Court thought they could not well retract. The case, however, of Morris was appealed, and afterwards settled between the parties.
In the present case, the difficulty arises from this, that there was a will, and if the case of intestate succession turns upon presumed will, it may be thought that express will should prevail, especially as moveable effects have in certain respects a local situation, though in others they are said to follow the person, and it may be thought somewhat strong to deny effect to a will formally executed, upon account of a municipal rule in another country, where the testor lived, but not in the country where the effects are, and where execution upon the will is desired, upon which last principle the Court of Session seems to have gone in case of a bastard, and in the case of a nuncupative will, Dict. vol. i. p. 320.
But, notwithstanding these observations, it would rather seem, that questions concerning succession in general, in the case of moveable or personal effects, should rather depend upon the lex domicilii than that of rei sitae. Moveable goods may be transiently in another place than that of the donor's residence; but it cannot be his meaning that they should remain fixed there any longer than till he has an opportunity of bringing them home, so that whether he dies testate or intestate as to such effects, he cannot be supposed to regulate himself by any other law than that of his own country, in the transmission of them to his successors after death.
The case is still clearer as to nomina debitorum, which are jura incorporalia attached to his person, and in their nature scarcely admitting of a fixed situation.
Every right and interest of the creditor ought to be regulated by his own law. The jus exigendi is in him, and that right he is entitled to convey by the forms of his own law, and likewise to transmit to his successors a lestato vel ab intestato in the manner which his law directs, though with respect to the debtor, when either the creditor, or his heirs or assigns, have occasion to take measures for recovering their money, they must go to the forum to which he belongs, and of course must be subject to the forms and solemnities of that law.
The present question is, to whom the effects belong, not in what manner they are to be recovered; and it may even be doubted whethere the late Mr. Hog made any will in prejudice of the claim. He made a settlement, conveying to his eldest son all and sundry debts and sums of money, &c. belonging to him at his death, which should not be otherwise disposed of. This is a sweeping clause, carrying every residue, but not interfering with special rights. It is similar to the case of Sir L. Dundas' general settlement, which was not found to reach an estate formerly settled by him.
Mr. Hog's children had, by the law of this country, a certain right in his personal effects, which became completely vested immediately upon his death, without any other form or title. This right he could not take from them by any testamentary provision, and although there can be little doubt that he meant to deprive his daughter, Mrs. Lashley, of her legitim if he could, yet the mere residuary conveyance to his eldest son is not even a proof of his intention, and, at any rate, if not within his power, must be set aside. The right to legitim attaches upon all the personal effects wherever situated, the law making no distinction. The will, at the same time, has its effect, with that exception, and therefore it may be proved in Doctor's Commons, but the executor under the will is nevertheless liable to account to those having interest according to their legal rights, and if it should become necessary to apply to a judge in England to enforce that obligation, the judge ought to inquire what rights his family, and others concerned, have, according to the law of Mr. Hog's country. He will sustain the deed, if formal according to the law of Scotland, though not precisely according to the law of England; but he must take the whole of Scotland together, and not divide it into parts.
Sometimes it may be difficult to discover where a person's residence is, as in the case of Lord Banff. But this being discovered, the other consequences follow.
The most difficult case is that of a testament in Scotland, bequeathing heirship moveables, or bonds secluding executors in England, or mortgage there. As to the two first, there seems to be little doubt that the heir would take them, as entitled to do so by the law of Scotland. As to the third, the doubt is, whether it is real or personal? It is real with us, and personal in England.”
Lord Eskgrove .—“Right of legitim is a legal and effectual right in suo genere. It may indeed be defeated in different ways. The father, no doubt may dispone his estate, or lay it out in a different manner. But quoad the legitim every man dies intestate, and he cannot hurt that claim.”
Lord Hendekland .—“The question is, whether you will extend a municipal usage in Scotland to effects in England, in opposition to the will of the defunct. To say that the testament has no effect in England, is a begging of the question. Lord Hardwicke's decision founded on expediency.”
Lord Rockville .—“I think the law of the domicile must be the rule. It may be said that the law of deathbed may be got the better of by not leaving matters to the operation of it”
Lord Dreghorn .—“I have long been satisfied that the lex domicilii was the rule, and that, where there were different domiciles, the law of the nativity is to be preferred. It would be inextricable if one's succession were to go as the effects happen to be scattered over different countries. As to the case where there is a will, I think it makes no difference. No good reason for distinction. As to effects in England.—Statutes have effect, and do go beyond the territory, unless there be something contra bonos mores, or repugnant to the principles of morality or religion, as in case of Negro. Suppose the crown was demanding the moveables in England, in opposition to the brother uterine, the judge in England may hesitate to do so, because it is against the rule of natural justice.”
Lord Swinton .—“I am clear that the lex domicilii is the rule.”
Lord Dunsinnan .—“When he placed his money in the funds he did not mean to withdraw it from the law of his own country, or to alter his right.”
Lord Ankerville .—“The legal provisions introduced to supply want of special ones. But if the effects are disposed of by a regular deed, this ought to prevail.”
Lord Hailes .—“Our own judgments not yet altered by the House of Lords.”
Lord Justice Clerk .—“Upon reconsidering the case of intestate succession, am now of opinion that the lex domicilii is the rule. This founded on reason. Fiction of all the effects being here, is founded upon his presumed will, and a fortiori ought to give effect to his declared will. Doubt therefore as to testate succession where will regulates. It is in the power of father to disappoint legitim.”Judgment.—“Find that the claim of legitim reaches to the English effects as well as the Scotch, notwithstanding the will.”
Interlocutor November 1791.
Lord President Campbell .—“First point. The question is properly stated in Ans. p. 11, &c. Parties do not differ upon the point, what is the municipal law of succession in England, and what it is in Scotland; but singly upon this, whether the law of the one country or that of the other should be the rule, where the domicile is in the one country and the effects in the other?Neither is there now any difference, at least there ought to be none, in the case of intestate succession; for it is now fixed as a rule of general law with regard to personal estate, that the lex domicilii must prevail. It only remains, therefore, to be fixed whether the general rule takes place in opposition to a will, when the law of the domicile either denies or abridges the power of testing, and when the law is otherwise in loco rei sitae, or vice versa, where the power of testing is affected by the law of the loci rei sitae, but not by that of the domicile.
In the last case, it seems to be admitted that the restraints imposed by the law of the res sitae cannot operate. Thus, if an Englishman happens to have effects in Scotland at his death, his own residence being in England, the restraints in Scotland arising from legitim, &c. will produce no effect to the prejudice of his right of testing in his own country, even with respect to his effects in Scotland.
This reduces the question to a narrow compass, for it seems to lay out of the question the lex rei sitae as having any effect in questions of succession, whether a testato vel ab intestato; and the petitioner, aware of his difficulty, endeavours also to lay out of the question the lex domicilii, and to set up the power of a will as supereminent against both.
What then if the law of both countries agreed in imposing the restraint? Some of the effects in this case are said to have been in the French funds at Mr. Hog's death; and it is believed the law of France is the same with the law of Scotland as to the legitim. The petitioner's (Mr. Hog) argument goes to this, that the will in his favour is to carry these French effects, and the legitim is to be defeated, though it be the law both of Scotland and France. The absurdity of this is obvious, and there is no way of getting out of the dilemma except by making choice of one or other of the two laws, where they are different, or by following them both, where they are at one in determining whether the will is to be controlled or not, and to what extent, or, in other words, to establish some general rule of the law of nations, to decide for the will or against it, according to circumstances; for it would be strange to maintain that no law shall control a will, whether it be of the one country or the other, or of both, where the domicilium and the res sitae happen to be different.
All the foreign authorities, including the English, are at one upon the subject. Those of Scotland have wandered, but as it is a question of general law, opposed to municipal law, it is impossible we can have a rule in Scotland different from that which obtains in other countries.
Neither did our ancestors make any distinction between moveable effects situated within Scotland, and elsewhere. The communio bonorum between husband and wife operates as a general copartnery without limitation of place, and the interest which arises in the children upon the father's death, which they cannot be deprived of by any testamentary deed, is equally without limitation. It is an universitas. The question is, to whom the effects belong? and this being found out, the rights of parties must be regulated accordingly. The testament being null as to the legitim, it no longer stands in the way.
Second point. The argument upon this head in the answers, p. 92, &c., and likewise in the memorial drawn by Mr. Blair, is unanswerable, (namely, that the renunciation of their claims by the other younger children of the deceased Mr. Hog operates in favour of Mrs. Lashley, his surviving daughter;) and even if there was any doubt upon the principle, the point is now so fixed by uniform authority, that it would be a dangerous precedent to throw it loose.”
Judgment—“Adhere, except as to article of the 3 per cent, annuities, as to which order memorials.”
Interlocutor 23d December 1791.
Question, Whether the Government Annuities were Heritable, in a Question about the Claim of Legitim?
Lord President Campbell .—“The act itself, by which they (the government annuities) were established, declares them to be personal estate, which seems to be decisive of the question. It gives them a certain quality which must attach upon them throughout.The statute does not mean either to establish legitim in England, or to take it away in Scotland, nor does it inquire into the consequences of the fund being personal. This is left to the common operations of the law. The loan was, in its original nature, personal, being money lent to government, and when it was found expedient to make a certain arrangement with respect to the duration of that loan, and of repayment of the debt, it would have been unjust had any change of its nature taken place, and accordingly this is expressly guarded against as one of the fundamental conditions of the transaction itself, by which these annuities are created.
The case of the transferable bonds issued by Douglas, Heron and Company, under the sanction of an act of parliament, which declared them personal though heritably secured, is extremely similar. It has never been held that these were personal in the case of legitim, as well as to every interest and purpose whatever.
As to the French annuities, the circumstances of them are not sufficiently explained by either party, and perhaps they ought not to be presumed to stand upon a different footing, unless it is clearly made out. At same time, from the French law, they seem rather to be held as immoveable.”
Judgment—“Found the government annuities moveable, and falling under the legitim. Remit to Ordinary as to French funds.”
Vide Lord President Campbell's Session Papers, vol. lxiii.
