126. Bastardy, or Children Born out of Wedlock.(w)— Illegitimate children do not succeed at common law even to their own father and mother, because succession is through the father only, and an illegitimate child has no lawful father.(x) But now under the Married Women's Property Act of 1881,(y) such children may be held as having a right to succeed to their own mother. The law of the domicile of the father at the time of his marriage determines the legitimacy of all persons claiming right to a succession, whether real or personal, testate(z) or intestate.(a) A child legitimated in Scotland by the subsequent marriage of its parents is legitimated in that country for all purposes, and stands on an equality with children born in wedlock; but such a child will not succeed to any heritable or real estate forming part of the succession of a domiciled Scotsman which may be situated in countries-e.g., in England-where the law of legitimation per subsequens matrimonium does not obtain; the succession to such heritable or real estate being governed by the lex loci.(b) Where, again, a child is born in a country where his parents are domiciled, and where the law of legitimation by subsequent marriage is unknown, such child is deemed illegitimate in Scotland.(c) There is no succession from an illegitimate person, except in the case of his leaving lawful issue. If he leave neither wife (who would be entitled to her legal rights), nor children, his moveable estate on his death, failing disposition by will, will fall to the Crown.(d) But by royal letters of legitimation those who would have succeeded if the intestate had been legitimate, may acquire a right to his succession as if lawful heirs.(e) At common law, bastards could not make a will to the prejudice of the Crown; but this disability was removed by the 6 & 7 Will. IV. c. 22, which enacts that it shall be lawful to bastards or natural children domiciled in Scotland to dispose of their moveable estates by testament or last will, in like manner as other persons belonging to that country may do." (w) See §§ 65, 66, for rules in Erskine's Inst. (x) Ersk. 3, 10, 5, & 1, 6, 51; Bell's Prin. § 2063. (y) § 7. (z) Munro, 10th Aug. 1840; 1 Rob. 492; Udny, 3rd June, 1869, 7 M. (H. L.) 89. (a) Dalhousie, 16 Sh. 6, 10th Aug. 1840; 1 Rob. 475. (b) M'Laren, § 39; Paterson's Comp. § 841. (c) Aikman, 21 D. 757, 12th March, 1861; 3 Macq. 854. (d) Bell's Prin. § 2063. 127. Aliens are persons born beyond the dominions of the British Crown, of parents who are not themselves natural born subjects.(f) Children of British parents, (g) or of a father,(h) or of a mother(i) who is a natural born subject, though born out of the allegiance of the Crown, have all the rights of natural born subjects, so also has any woman married to a natural born subject or person naturalised. (k) Formerly the rights of aliens were regulated by the above Act, under which, generally speaking, aliens might obtain privileges nearly equal to natural born subjects, by obtaining a certificate of naturalisation from the Secretary of State. But now by the Act 33 & 34 Vict. c. 14, aliens are enabled to acquire, hold, dispose of and transmit heritable and moveable property situated within the United Kingdom, in the same way and with the same rights of succession as natural born subjects. The Act does not, however, qualify aliens to hold public offices, or to exercise any franchise, nor to be owners of a British ship(); neither does it confer any right or privilege as a British subject except as above stated. The Act is not retrospective.(m) The following are the provisions of the Act as regards the natural status of women and children(n) : (1.) A married woman shall be deemed to be a subject of the State of which her husband is for the time being a subject. (2.) A widow, being a natural born British subject, who has become an alien by, or in consequence of, her marriage, shall be deemed to be a statutory alien, and may as such at any time during widowhood obtain a certificate of re-admission to British nationality, in manner provided by the Act. (3.) Where the father, being a British subject, or the mother, being a British subject and a widow, becomes an alien in pursuance of the Act, every child of such father or mother who, during infancy, has become resident in the country where the father or mother is naturalised, and has according to the laws of such country become naturalised therein, shall be deemed to be the subject of the State of which the father or mother has become a subject, and not a British subject. (4.) Where the father, or the mother being a widow, has (f) Bell's Prin. § 2134. (g) 7 Anne, c. 5. (h) 4 Geo. II. c. 21, § 1. (i) 7 & 8 Vict. c. 66, § 3. (k) 7 & 8 Vict. c. 66, § 16. obtained a certificate of re-admission to British nationality, every child of such father or mother, who, during infancy has become resident in the British dominions with such father or mother, shall be deemed to have resumed the position of a British subject to all intents. (5.) Where the father, or the mother, being a widow, has obtained a certificate of naturalisation in the United Kingdom, every child of such father or mother, who, during infancy, has become resident with such father or mother in any part of the United Kingdom, shall be deemed to be a naturalised British subject. GENERAL RULES IN PERSONAL ESTATE UNDER INTESTACY. 128. General Rules.-The following summary will show the mode of distribution in the several cases which usually occur in practice : I. On Death of Husband survived by Wife and Child or Children. One-third to wife as jus relicta.(o) One-third to surviving child or children, of whatever marriage,(p) not forisfamiliated, (q) as legitim.(r) Issue of any predeceasing child or children do not take legitim,(s) nor does the heir-at-law in heritage, nor heir under entail,(t) unless he collates his heritage or life interest in estate. If heir sole next-of-kin, he is not bound to collate with widow.(u) Doctrine of collation extends to collaterals.(v) Rest, being dead's part, (w) to child or children of whatever marriage, equally, as next-of-kin. Issue collectively of any predeceasing child taking an equal share with each of living children. (a) Above rules as to collation also obtain. II. On Death of Husband survived by Wife, but no Child. One-half to wife as jus relicta-cannot take more.(y) The other half (being whole free moveable estate in sense of Intestacy Act) thus: If father alive, one-half (one-fourth of whole) to him (2); rest to brothers- and sisters-german equally(a), issue of any deceased taking parents' share (b); failing these, brothers- and sisters-consanguinean and their issue take.(c) Failing all collaterals, father takes at common law (d); failing him, brothers- or sisters-uterine, or their issue, take one-half.(e) Failing all these, whole to next-of-kin in order stated below. If father dead, but mother alive, one-third of second half to her (f); rest same as in case of father surviving. III. On Death of Husband, predeceased by Wife, leaving Child or Children. One-half to surviving child or children as legitim.(g) See notes under No. I. as to legitim. Rest to children as next-of-kin.(h) Issue collectively of any predeceasing child taking its parents' share.(?) See notes under No. I. IV. On Death of Husband, predeceased by Wife and Children ; or a Person Dying Unmarried, Whole dead's part: if father alive, one-half to him (k); if dead, but mother alive, one-third to her (1); if both dead, whole to brothers or sisters, or other next-of-kin in same degree of relationship equally,(m) with representation among descendants and collaterals in competition with those nearer in degree.(n) See notes under No. II. (z) 18 Vict. c. 23, § 3. (a) Ersk. 3, 8, 9, and 3, 9, 2. (b) 18 Vict. c. 23; Bell's Lect. 797. (c) Ersk. 3, 9, 2, and 3, 9, 4; Bankton, 3, 4, 17, and 25. (d) Ersk. 3, 8, 9, and 3, 9, 2. (e) 18 Vict. c. 23, § 5. V. On Death of Wife, survived by Husband and Child or 1. Law previous to 18th July, 1881. Whole to husband.(o) But any personal property of wife held exclusive of husband's legal rights, fell to her own children of whatever marriage,(p) with representation as above (q); and, failing children, to her own next-of-kin.(r) Order as in No. II. 2. Law after 18th July, 1881, where wife possessed of One-third to husband.(s) One-third to surviving children of whatever marriage, equally, as legitim.(t) Rest to children equally, with representation of any deceased child as before.(u) The division in this case being subject to the same rules of law as in the case of the husband's estate. See No. I. VI. On Death of Wife, survived by Husband but no Child. 1. Law previous to 18th July, 1881. Whole to husband. (v) But any personal estate held by wife, exclusive of her husband's legal rights, fell to her own. next-of-kin.(w) Mode of division same as case of second half under No. II. 2. Law after 18th July, 1881, where wife possessed of separate personal estate. One-half to husband.(x) Rest to wife's own next-of-kin.(y) Mode of division same as |