LEGAL BURDENS AFFECTING THE RIGHT OF THE HEIR. 261. Terce.-Terce is a liferent given by law to a widow who has not accepted of a conventional provision in lieu of it of onethird of the heritable property in which her husband died infeft in fee, whether such property was acquired before or during the marriage.(a) If the property be already charged with terce to the widow of a former proprietor, the second terce is one-third of the two-thirds remaining unaffected by the first terce; but on the death of the first widow, the terce of the second widow becomes enlarged, as if the first had never existed.(b) The right to terce obtained by our most ancient customs, (c) but its origin is a matter of controversy.(d) According to one Institutional writer, (e) "terce is given to the wife to the effect that, if it happen her husband to decease before her, she may the more easily be married with another man." Another (ƒ) assigns the custom "to the natural right a wife has to a reasonable settlement out of the husband's estate in case of her survivorship, as she ought not to be left destitute, though the husband neglect to provide for her;" while another says,(g) " the custom arose from an obligation upon the husband to provide for his wife. . . . The terce keepeth always proportionable, and maketh the wife sharer of the industry and fortune of the man, and therefore more careful over it." Whatever the origin of the right, however, it is certain that it obtained in our law from early times. It vests by survivance, and cannot be defeated by any act of the husband to which the wife has not assented.(h) The right is excluded (i)— 1. By the wife's acceptance of a special provision in lieu of it. 3. By a clause of exclusion in an entail.(j) 4. Where the marriage is dissolved on the ground of the wife's adultery; but not where dissolved for the husband's adultery.(k) 5. Where the marriage is dissolved within year and day without a living child being born of it, unless the contrary be pro vided in a marriage contract.() Doubts have been expressed by some writers as to whether the terce is not now due, although the marriage had not subsisted for a year and day, in respect of the provisions of the Intestacy Act of 1855. That Act provides that "where a marriage shall be dissolved before the lapse of a year and day from its date by the death of one of the spouses, the whole rights of the survivor, and of the representatives of the predeceaser shall be the same as if the marriage had subsisted for the period aforesaid."(m) But it will be observed that the express object of that Act is "to alter the law of intestate moveable succession," and the language of it is not strictly applicable to heritable rights. The above quoted provision respecting the "whole rights of the survivor," on the “death of one of the spouses" might be construed as applicable to the right of terce; but it cannot be construed to apply to the right of courtesy, as courtesy arises by the mere fact of a viable child and heir being born of the marriage, and it does not appear to be essential that the child and heir be born during the marriage, if it be legitimated per subsequens matrimonium.(n) If therefore the Act cannot be interpreted to apply to the right of courtesy, it was plainly not intended that it should apply to the right of terce. 262. From what Subjects Terce due. Terce is in general due from all heritable subjects and rights in which the husband died infeft,(o) irrespective of tenure. (p) The husband's infeftment is both the measure and the security of the right, and so every right which excludes the husband's sasine is preferable to it.(q) Debts made real on the estate exclude it, and so will the exercise of a power to burden, if infeftment has followed; whatever burdens affect the husband's sasine, affect also the terce, and (k) M'Laren, § 158. (1) Ersk. 2, 9, 51; Stair, 2, 6, 17. (m) 18 Vict. c. 23, § 7; M'Laren, § 157; Bell's Lect. p. 795; Bell's Com. 2, 56. (n) Crawford's Trs. v. Hart, 1802, M. 12,698; Fraser, 1, 638. (0) Ersk. 2, 9, 45; Stair, 2, 6, 16. (p) 24 & 25 Vict. c. 86, § 12. (q) Bell's Prin. § 1598; Bell's Lect. p. 798. no debt which does not constitute a real burden on the terce lands affects it.(r) Conquest heritage was subject to terce.(s) The right also extends to heritable securities, excluding executors, if the husband was infeft(t); servitudes attaching to the estate(u); estates vested in trustees, and infeft for behoof of the husband, whether under a deed of trust, or an ex facie absolute disposition, qualified by an unrecorded back letter(v); estates vested in the husband in liferent, and his children in fee; also property settled intuitu mortis, under reservation of a power to alter; but not where the husband is vested by a mortis causa deed in a liferent, even though coupled with a general power of disposal, as a right of that nature does not amount to beneficial fee.(w) Shootings are subject to terce.(x) Terce is not due from leases or heritable estates possessed in a personal title(y); nor from teinds unless feudalised(); nor from the mansion-house, unless it be let, or there be more than one(a); nor from superiorities, either in relation to feu-duties or casualities, rights of reversion, patronage, coal, or other minerals. (b) But though a widow is not entitled to terce out of minerals, she is entitled to a supply for her own consumption. (c) 263. Service of Tercers.-Although terce vests, as already stated, by survivance of the wife, or on the dissolution of the marriage by the divorce of the husband, a service seems necessary to enable her to assign or transmit to her executors the fruits of it.(d) Without such service a tercer is entitled to receive the rents or fruits of the subjects, and her discharge to tenants will be valid to the extent of her interest; but she cannot, in that transition state, sue tenants for arrears of rent, (e) and her right to unrecovered arrears does not transmit to her representatives.(ƒ) 00252 The procedure in the service of tercers is regulated by the statute 1503, c. 77.(g) After service the widow has a pro indiviso usufructuary interest, and she may have it divided, if wished, by a process before the Sheriff, called "Kenning to the terce." Substantially, however, the widow's right is as real before as after division. (h) 264. Courtesy.-This is a liferent given by law to the surviving husband of the heritable property in which the wife died infeft. It is given in respect of the husband being the father of the wife's heir.(i) Like the correlative right of terce, the right of courtesy has come down to us from early times.(j) Craig says of it that it was introduced "to prevent the husband falling into poverty or contempt on his wife's death; "(k) but Erskine thinks "this reason inadequate, as the right reaches to the wife's whole heritage, and so exceeds the measure of an alimentary provision. (1) The conditions of the right are: 1. That a viable child shall have been born of the marriage.(m) 4. That the wife shall have died infeft of fee.(p) 265. From what Subject Courtesy due. From the whole heritable estate inherited by the wife as heir-of-line, or provision, or acquired by her from her ancestor in his lifetime perceptione hæreditatis, and in which she died infeft in fee, including burgage subjects and feu-duties(q); but not conquest heritage or estate which she acquired by singular title, unless she was alioquin successura.(r) The right attaches to entailed property, if not debarred by the entail.(rr) It is liable to be diminished by the (g) See Stair, 4, 3, 11; Her. Styles (h) See M'Laren, §§ 211, 218. (j) Reg. Mag. 2, 5, 8; Leg. Burg. (k) 2, 22, 40. (1) 2, 9, 52. (m) Ersk. 2, 9, 53; Robertson, 22nd Jan. 1883, 11 Sh. 297. (n) 1 Fraser, 638. (q) M'Laren, § 173, 174. (r) Stair, 2, 6, 19; Ersk. 2. 9, 54. (rr) Clinton, 18th Dec. 1869, 8 M.370 interest on heritable debts, and also by the interest (not the principal) of personal debt to the same extent to which the estate would be liable if it were in his possession as absolute proprietor.(s) 266. Vesting of Courtesy.-The right vests by survivance; but unlike the correlative right of terce, the surviving husband requires no title to enable him to continue his possession after the wife's death, or to assign or transmit to his executors the rents accruing during his lifetime.(t) He enjoys the usual rights and privileges of a liferenter.(u) He can be made to find caution where there is reasonable apprehension of injury to the estate by waste or dilapidation actually commenced.()uber. LEGAL RIGHTS OF HEIR BEFORE COMPLETING TITLE. 267. Right of Apparency.-Formerly, where a person possessed of heritage died intestate, the estate lay in abeyance, as it were, or in legal phraseology, in hæreditate jacenti of the ancestor, until the apparent heir made up a title for transmitting the estate from the ancestor to himself, or, as it was called, vesting the succession. (a) The heir was entitled to continue his ancestor's possession, and to pursue for, receive, and discharge the rents due from the estate before completing a title; and generally, he had all the active rights necessary to enable him to maintain possession, except that he could not remove tenants holding leases from the ancestor. (b) He might challenge and reduce all deeds executed on death bed alienating or affecting the estate to his prejudice ;(c) and he might also pursue a judicial ranking and sale of the estate, whether it were bankrupt or not.(d) With the exception of the subjects after mentioned, (e) possession without a title did not vest any estate in the heir, and if he died, the estate passed to the ancestor's next heir.(f) But, under an Act passed in 1874, (g) a personal right to land now vests in the apparent heir without service. (8) Ersk. 2, 9, 54; Bell's Prin. § 1607. (t) Stair, 2, 6, 19; M'Laren, § 175. (u) Ersk. 2, 9, 54. (v) Ersk. 2, 9, 59; Ralston v. Leitch, 1803; Hume, 293. (a) Ersk. 3, 8, 54; M'Laren's, § 177. (b) M'Laren, § 189. (c) Graham, 1799, M. 3186. (f) M'Laren, § 184. |