questions may yet arise under the old law, we shall here give a summary of the old as well as of the new law.

I. The Law prior to 1st August, 1870.

A certain proportion of rents current at the date of death and other termly payments formed moveable property. In determining the proportion held moveable, a distinction was taken between-1. the rights of the personal representatives of the proprietor of a feesimple estate in competition with the heir-at-law or heritable disponee; and 2. the rights of the personal representatives of a person whose interest was determined by his death (as a liferenter, heir of entail, or annuitant), in competition with the person succeeding to the reversion, whether of heritable or personal property.

In the first case, the rights of the parties were regulated by the common law; in the second, by the Apportionment Act() where the payments were made at termly periods, and by the common law where not so made.

1. In Questions with the Personal Representatives of FeeSimple Proprietors.- Fruits and current rents and interests were moveable and payable to the personal representatives only in so far as vested and unpaid at the proprietor's death. (a) The date of vesting, therefore, regulated the division, and in determining the time at which the vesting took place, the following distinctions were observed :—

(1) Arable Farms.-The rents were held by law to vest in the proprietor at the first term of Whitsunday (15th May), or Martinmas (11th Nov.), after the date of the tenant's entry.(b) These terms of payment were called legal, in contradistinction to any terms agreed upon by the contracting parties, called conventional. Rents conventionally postponed were held to be in bonis of the proprietor at the legal terms, and to transmit to his personal representatives, although, in such cases, payment could not be demanded from the tenant until the arrival of the terms stipulated.(c) Rents payable

by anticipation or forehand rents vested at the term of payment, and arrears of such rents, if payable in the proprietor's lifetime, fell to his personal representatives. (d)

(2) 4 Will IV. c. 22. (a) M'Laren, § 392. (b) Bell's Com. i. 18.

(c) Trotter, 26th Nov. 1839, 2 D. 140.

(d) Queensberry, 18th Feb. 1814.

(2) Grass Farms.-The first half-year's rent legally vested the moment possession began, and so with regard to subsequent rents.(e) Hence, where the proprietor survived Martinmas (entry being at the preceding Whitsunday), the whole year's rent went to his personal representatives, while, if he died before Martinmas, his personal representatives received only the half. Where grass farms were let from April to December, and the proprietor survived Whitsunday, but died before Martinmas, one-half of the year's rent went to his personal representatives.(f)

(3) House Rents were regulated by the same rules as the rents of grass farms.(g)

(4) Heritable Bonds.-Interests accruing at the legal terms were as rents due at these terms, the arrears only being moveable in cases where such bonds were considered heritable in succession. If conventional terms were stipulated the question was ruled as stated above with regard to conventional payments of rents.

(5) Subjects in Natural Possession of Proprietor.—The usufructory interest vested de die in diem.(h) Hence, whatever had been sown and unreaped by the proprietor formed part of the executry estate, and where the ground had been prepared, but not sown, the expense of labour fell to be borne by the heir. But natural grass() and second crop of hay went to the heir.(k)

In the case of a tenant, the rights of his heir and personal representatives were regulated by the same rules; but the latter paid a proportion of the rent corresponding to the part of the farm under crop.()

2. In Questions with the Personal Representatives of Persons whose interests were Determined by Death.-The profits of the current period of possession, if derived from termly payments, were divisible under the provisions of the Apportionment Act. (m) This Act is very verbose, but the gist of it is this, that all rents, annuities, dividends, and other periodical payments due at fixed

periods under any instrument made or taking effect after the passing of the Act should be so apportioned as, on the death of those entitled to them, to yield to their executors a proportion corresponding to the period that might have elapsed since the last term of payment. The Act, therefore, applied only to cases in which the interest of the person interested in rents and periodical payments was terminated by his death, or by the death of another person. It did not apply to dividends declared by joint stock companies subject to the Companies Clauses Consolidation Act, as not being due at fixed periods, nor to royalties payable on minerals at so much per ton, nor to any payments to be made at uncertain periods.

II. The Law since 1st August, 1870.

At this date the Act 33 & 34 Vict. c. 35 was passed, which introduced a very simple rule on this subject.

(1.) Rents and periodical payments accrue from day to day.— All rents, rent service, rent-charge, rent seck, tithes, and all periodical payments or renderings in lieu of, or in the nature of rent or tithe; annuities, salaries, and pensions; dividends, including all payments made by the name of dividend, bonus, or otherwise out of the revenue of trading or other public companies, whether divisible at fixed times or otherwise, and other periodical payments in the nature of income, are now, like interest on money lent, considered as accruing from day to day, and apportionable in respect of time accordingly. The Act has no application to the stipend of a parish minister.(n)

(2.) Apportioned part payable when next entire portion becomes due.-The apportioned part of any rent, annuity, dividend, or other payment is payable or recoverable in the case of a continuing rent, annuity, or other such payment, when the entire portion of which such apportioned part shall form part shall become due and payable, and not before; and in the case of a rent, annuity, or other such payment determined by re-entry, death, or otherwise, when the next entire portion of the same would have been payable if the same had not so determined, and not before.

(3.) Rents, &c., when due, recovered by heir, &c.; from whom apportioned part recovered by executors, &c.-" All persons and their respective heirs, executors, administrators, and assigns, and also the executors, administrators, and assigns respectively of persons

(n) Latta, 30th Nov. 1877, 5 R. 266.

whose interests determine with their own deaths, shall have such or the same remedies at law and in equity for recovering such apportioned parts as aforesaid when payable (allowing proportionate parts of all just allowances), as they respectively would have had for recovering such entire portions as aforesaid, if entitled thereto respectively; provided that persons liable to pay rents reserved out of, or charged on lands or other hereditaments of any tenure, and the same lands, or other hereditaments, shall not be resorted to for any such apportioned part forming part of an entire or continuing rent as aforesaid, specifically, but the entire or continuing rent, including such apportioned part, shall be recovered and received by the heir or other person, who, if the rent had not been apportionable under this Act, or otherwise, would have been entitled to such entire or continuing rent, and such apportioned part shall be recoverable from such heir or other person by the executors or other parties entitled under this Act to the same, by action at law or suit in equity." See question as to "just allowances" under this section in special case Learmonth and Sinclair's Trs. 23rd Jan. 1878.

(4.) Exemptions from operation of Apportionment Act.— Nothing in the Act 33 & 34 Vict. c. 35 shall render apportionable any annual sums made payable in policies of assurance of any description; nor shall the provisions of the Act extend to any case in which it is, or shall be expressly stipulated, that no apportionment shall take place.

125. Representation or Division, per Capita and Per Stirpes. (0) Per capita means by heads, or that the parties shall share equally; and per stirpes means by families, or that the children of each child deceased shall collectively take the share of such child by representation.

In every case of succession in moveable estate, where the nextof-kin-other than in the case of the succession of children of the intestate, whose claim of legitim would alter the result of the division—are all equal in degree, whether nearer or more remote ; the free succession,-i.e., the whole moveable estate after payment of debts, including the jus relicta and legitim,—if any, is divisible per capita, without distinction of age or sex, without any preference of males over females, and without any advantage

(0) See rules in English law, § 216.

accruing to the elder over the younger.(p) So if, at the time of the intestate's death, none of his children are dead, or if some have died and left no issue, the surviving children take per capita. Again, if, for instance, the intestate had three children, A, B, and C, and they all predeceased him-A leaving two children, B three children, and C four children-these children, being all in the same degree of relationship to the intestate, would take per capita, or each one-ninth part of his estate. The same rule applies to great-grandchildren, where children and grandchildren have all predeceased the intestate. But where some only of the nextof-kin have predeceased their parent, leaving issue, such issue represent their own parent, and take his or her share.(q) Thus, if the intestate had three brothers, A, B, and C, of whom A had died before the intestate, leaving issue, the estate would be divided into three equal parts, of which B and C would take one part each,―i.e., per capita,—and the remaining third part would be divided equally among the children of A, who would take their share per stirpes-i.e., as representatives standing in his place. But this principle of representation is not admitted beyond the descendants of the intestate and of his collaterals-i.e., it is admitted among lineal descendants of the intestate, and among his brothers and sisters (including consanguinean and uterine),() and their descendants. The succession by brothers and sisters is partly affected by the survivance of the intestate's father and mother,--the intestate's father receiving one-half of the moveable estate,(s) and the intestate's mother (where the father has predeceased the intestate), receiving one-third of the moveable estate,(t) in preference to the intestate's brothers and sisters or other descendants. The succession of brothers- and sisters-uterine, and of their descendants in their predeceasing parent's place, is limited to one-half of the moveable estate of the intestate, and emerges. only where the intestate leaves no issue, nor father, nor mother, nor any brothers, or sisters-german or consanguinean, nor any descendant of such brothers or sisters. (u) Where a person directed his estate to be divided "between my surviving brothers and sisters and the lawful issue of those who may be deceased, share and share alike," it was held that the division must be per stirpes. (v)

(p) Bell's Prin. § 1861; Ersk. 3, 9, 2; Turner, 27th Nov. 1869, 8 Macp. 222.

(q) 18 Vict. c. 23, § 1.

(r) 18 Vict. c. 23, § 5.

(s) 18 Vict. c. 23, § 3.

(t) 18 Vict. c. 23, § 4.

(u) 18 Vict. c. 23, § 5.

(v) Laing, 18th Nov. 1879, 7 R.

244.

टील

242