wider application in heritage than in moveables. (e) In moveables the right is not admitted beyond brothers and sisters of the intestate and their descendants; but in heritage there is no such limitation-it extends universally among all heirs. The law comes into operation where a person predeceases the intestate, who, had he survived, would have been heir, in which case his sons and daughters represent him, and, in their legal order as stated below,(f) take that share which, if alive, each would have taken, to the exclusion of heirs in the line in which their parent stood.(g) Thus, if a person die intestate leaving sons and daughters, and a grandchild by a deceased eldest son, such grandchild, although a female, will, as representing her father, who would have succeeded had he. lived, take the heritage, to the exclusion of all her uncles and aunts. So, also, if there be daughters only, and a granddaughter by a deceased son, the youngest of the family, his daughter will exclude all her aunts; because she represents her father, who, had he lived, would have succeeded to the exclusion of his sisters. In like manner, if there be more grandchildren than one by the child predeceased, they take the heritage in the same way as children of the intestate would have done. 246. Succession of Males.-The male children are first in the order of succession in heritage; they, and their issue, succeed according to seniority; from eldest son to eldest son, and when the eldest son dies without leaving issue, the second son succeeds, and so on with the other sons.(h) 247. Succession of Females failing Males.-Failing males, the succession opens to females, of whatever marriage, in the same degree, called heirs-portioners, and who take, not in order of seniority, but all together, and each heir-portioner on her death intestate transmits her own share to her heir-at-law. (i) The eldest heir-portioner by legal succession has a preferable right to things of an indivisible nature, as offices, dignities, superiorities, the custody of family manuscripts, title-deeds, &c.(j); い ك Τ Ca la also to the principal country mansion-house, garden, yard, and offices, as a præcipuum without compensation to her sisters.(k) This right is distinct from the right of heirship moveables. The right to heirship moveables, which is now abolished,() came into operation in questions between the heir and next-of-kin, while the right of præcipuum arises only between heirsportioners. Any of the heirs-portioners may insist on having the succession divided by the Sheriff and a jury, under a brieve of division,(m) and in such division the eldest is entitled to the portion next the mansion-house; the others cast lots for their choice.(n) 248. Succession of Issue of deceased Females.-The issue of each daughter predeceasing the intestate take their mother's place, first sons in their order, then daughters equally. E.g., if the intestate had three daughters, A, B, C, and C had died before him, leaving grandsons and granddaughters, the eldest grandson, as his mother's heir-at-law, would succeed to her share of the intestate's heritage, to the exclusion of his brothers and sisters; or, in the same case, if C died, leaving daughters only, they would succeed as heirs-portioners to their mother's share of their grandfather's succession. Again, if all the three daughters had died before their father, and all had left issue, the division would be into three parts in the same manner as if the three had survived their father; the male issue of each daughter taking in their order of seniority, and, failing males, then females equally as heirsportioners.(o) 249. Mother of Intestate and her Relatives.-The mother of the intestate and her relatives never succeed in any contingency; even the mother's own estate, as will be afterwards noticed,(p) after vesting in her son or daughter, never ascends to the maternal line again.(q) 250. The Succession of a Husband where he Dies- of one-third of the property, called her terce, unless she 2. Survived by Wife, Sons and Daughters.-The eldest son If the eldest son have predeceased the intestate, leaving children, the law of representation comes into operation,(s) by which the intestate's grandson or granddaughters, as the case may be, would take the heritage, to the exclusion of his or their uncles and aunts. If the heir be also one of the next-of-kin, he has the privilege of asking that the heritage be massed with the moveable property, in order that he may get an equal share of the aggregate with the rest of the next-of-kin.(t) c he gets go 3. Survived by Wife and Sons but no Daughters.-Subject to the burden of terce, the sons will take one by one and their respective issue in the legal order stated below.(u) 4. Survived by Wife and Daughters but no Son.-Subject to the burden of terce, the daughters will take not seriatim, as in the case of males, but equally as heirs-portioners; and, if any have predeceased the intestate, the issue of the predeceaser will take the share which would have fallen to their mother.(v) 5. Survived by Wife without Children.—The wife takes her terce, but nothing more, the residue of the heritage goes to the husband's heir-at-law-males in their order, and then females in the same degree equally.(w) 6. Predeceased by Wife leaving Children.-Where the wife has predeceased her husband, the right to terce is not claimable. by any person on her behalf, but is extinguished by her (r) See §§ 261, 263. (8) § 245. (t) See §§ 120-23. (u) § 259. (v) See §§ 26, 48. 14 death, and if no prior terce is claimable, the heir-at-law takes the whole heritage freed of terce. 7. Predeceased by Wife without Children.-The heir-at-law takes the whole heritage in manner explained above. 251. The Succession of a Wife where she dies possessed of heritable property in her own right 1. Survived by Husband and Child or Children.-If father of the heir-at-law, the husband is entitled to a liferent of the property called his right of courtesy. (a) Subject to such liferent, the eldest son or the daughters, according to the rules already explained, take up the succession. 2. Survived by Husband without Children.-The husband is not entitled to a right of courtesy, and the wife's heritage therefore goes to her own heir-at-law. (y) 3. Predeceased by Husband leaving Children.—The males take in the order already explained, and failing males, the females take equally.(2) 4. Predeceased by Husband without Children.-The property descends to her own heir-at-law in the manner hereafter explained. (a) 252. Where Intestate is Survived by Grandchildren only. -If the children of the intestate have all predeceased him, by the law of representation the children of the eldest son, whether male or female, exclude all the other grandchildren, and the children of a younger son even exclude all the grandchildren of daughters; males taking first, then females in the same degree equally.(b) he 253. Where Intestate is Survived by Brothers- or Sistersgerman only. If the intestate be survived by no descendant of his own, either male or female, the succession opens to the collateral relations by the full blood. (c) The general rule in this line is that the succession, in the first place, descends as far as possible, and then gradually ascends. So, among brothers and sisters of the intestate, his immediate younger brother succeeds first, or if he be dead, but have left children, these children are entitled to succeed by the law of representation, first, sons in their order, and then daughters equally, as formerly explained. (d) If the immediate younger brother have died without leaving children, the succession devolves upon the next younger brother or his issue, in the order already stated, (e) and so on through the whole line of brothers. If the intestate were the youngest of the sons, the succession would be in inverse order, the immediate elder brother or his issue in the said order, would take first; after them the next elder brother or his issue in the said order, and so on upwards in the ascending line. If the intestate had no brothers, or all his brothers had predeceased him without leaving issue, the succession would devolve upon his sisters, who would all take equally as in the case of daughters succeeding to a father, and the issue of any deceased. sister would take the share which would have fallen to their mother.(ƒ) 254. Where the Intestate is Survived by Brothers- or Sisters-consanguinean only.-Where there are no brothers or sisters by the full blood, or any issue of them, then brothers or sisters consanguinean-i.e., by the same father but not the same mother, or their issue, succeed, and the rules of preference as to age and sex are the same with those applicable to relations by the full blood. But the full blood always excludes the half blood. So, if the intestate left a sister by the full blood, and a brother by the same father but a different mother, the sister would be preferred. If the consanguinean relations are issue of a former marriage, the youngest brother succeeds first, and gradually upwards; if, of a subsequent marriage, the eldest succeeds first and gradually downwards.(g) 255. Where the Intestate is Survived by Brothers- or Sisters-uterine only.-Brothers- or sisters-uterine-i.e., of the same mother but not the same father, never succeed in any event to their full blood or consanguinean relations, nor vice versa.(h) In certain cases, this rule operates very harshly and unjustly. For instance, where a mother vested in a heritable estate has been twice married, and leaves a son by each marriage, if the son of the first marriage takes up the estate and dies without issue, the heir (d) § 245. (e) § 246. (ƒ) §§ 26, 48. (. |