their great-grand-children, &c., who succeed all in the same way."(y) 29. Collaterals. "If there be no descendants, then collaterals succeed, in which the first degree is brothers- and sisters-german,(z) for the whole blood excludes the half-blood, and brothers the sisters, and brothers (a) by the father's side exclude brothers by the mother's side; there being no succession with us by the mother's side. Failing descendants and brothers and sisters, whether german or consanguinean,(b) the succession ascends first to the defunct's own father, who excludes all his own brothers and sisters, the defunct's uncles and aunts; and failing them, (c) the father's brother (d) (observing the same rules formerly mentioned in the succession of brothers and sisters), and failing the father's brothers and sisters, (e) the grandfather, and after him his brothers and sisters the same way, according to the propinquity of blood: and so upwards as long as any propinquity can be proven, all which failing, the king succeeds as ultimus hæres.” (ƒ) 30. Right of Representation.-"It is to be observed that in heritage there is a right of representation whereby the descendants exclude still the collaterals, though the latter be nearer by many degrees to the stock or Communis Stipes; and thus the greatgrand-child of the eldest son secludes the second brother, because he comes in place of, and so represents the elder brother, his great-grandfather."(g) 31. Heirship Moveables.(h)-"The heir of line has right to the heirship moveables, and excludes all other heirs therein. Heirship moveables are the best of each kind of moveables, which is given to the heir because he is excluded from all other moveables.”(?) 32. Heir of Conquest.(k)—“ An heir of conquest is he who suc ceeds to the defunct in lands and other heritable rights to which the defunct did not himself suceeed as heir to his predecessors."() II. MOVEABLES. 33. Rules in Moveables.-"The same rules are observed in the succession of moveables that were formerly specified in the succession of heritage, except as to these particulars-viz., all of one degree succeed equally; (m) and so amongst brothers and sisters, the elder seclude not the younger, nor males the females, as in heritage; and in moveables there is no right of representation as in heritage;(n) and therefore, if there be a brother and two sisters alive, and a third sister's children, the brothers and sisters who are living will succeed equally, excluding the children of the sister who is dead."(o) 34. Jus Relicto.-"If a man be married, the wife has without paction a share in his moveables, of which he cannot defraud her by his testament, and this is called Jus Relicto ;(p) and if there be children, the law has provided a portion of the moveables for them, which is therefore called their legitim,(q) and of which their father cannot prejudge them by his testament; but there is no legitim due by the mother's death ;(r) nor have children who are forisfamiliat (that is to say, who are married,(s) and have renounced their portion natural), any legitim due to them. This legitim is also due only to the immediate children, but not to grand-children." (t) 35. Dead's Part.-"The remainder of the defunct's moveables, besides what is due to the relict and children, is called the dead's part;(u) and upon that only he can dispone. If a man have no wife nor bairns all is the dead's part, and may be disponed by him. If there be either wife or bairns, and not both, then the defunct's testament receives a bipartite division; but if there be both wife and bairns, then it receives a tripartite division."(v) 36. Collation.(w)-"The heir has no share in the moveables except he collate (and be content that the rest of the children share equally with him in all that he can succeed to as heir), or in case there be but one child, for then that child is both heir and executor without collation."(x) BANKTON INSTITUTES. 37. Estimate of his Work-In 1751-53,Lord Bankton published his three folio volumes titled “Institute of the Law of Scotland." The work is abnormally lengthy, and of a discursive and speculative nature. In treating of succession, he begins by explaining in detail how the law is founded on the presumed will of the dead party; that the term "heir" in a strict sense is applied to the successor in heritage, and executor to the successor in moveables; that the heir succeeds to the immoveable property, and the executor to the moveables; that the right of representation takes place only in heritage, (y) and that in heritage males exclude females in the same line of succession, but in moveables all in the same degree succeed alike ;(2) that in both heritage and moveable succession the whole blood excludes the half-blood in the same line of succession; that brothers and sisters are considered as descendants, (a) and therefore preferab to the lineal ascendant line; that the mother and her relations never succeed either in heritage or moveables, (b) but that one succeeds to his mother, and to such relations as she could succeed to; that in moveables any of the nearest-of-kin renouncing (c) makes way for the rest in the same (v) The husband and children have now indefeasable rights in the wife and mother's moveable estate on her death, §§ 99, 113. For rules in Erskine see § 57. (w) See §§ 120-123. (x) For rules in Erskine see §§ 63, 64; Bell § 73. (y) This now altered, § 125. (2) Next-of-kin may now be in different degrees, §§ 84, 125. (a) Brothers and sisters are collaterals, § 129. (b) In moveables, mother, failing the father, takes one-third preferably to the brothers and sisters, and brothers- and sisters-uterine and their issue take one-half preferably to uncles or aunts, §§ 87, 88. (c) This applies to the renunciation by children of legitim. degree, and then, after explaining the lines and degrees of propinquity in order to succession, he gives the following:— 38. Special Rules of Succession in Heritage and Moveables. "From the observations hitherto made,1 it appears that the lineal succession with us, in both heritables and moveables, is:-(1.) The descendants in the remotest degree exclude ascendants and collaterals. (d) (2.) That brothers and sisters succeed next to descendants. (e) (3.) Failing those, and their issue lawful, the immediate ascendant succeeds. (4.) The immediate ascendant's collaterals. Thus, the father succeeds to his child, failing the child's descendants, and his brothers and sisters by the father and their issue ;(ƒ) and next to the father,(g) his brothers and sisters, the deceased's uncles and aunts, and their issue lawful; (h) and failing. those, the grandfather by the father, and after him the grandfather's brothers and sisters, and their issue succeed; and so backwards to the most antient predecessors, the collaterals of the immediate progenitor always barring the remoter predecessor and his collaterals. This is founded upon the same reason that brothers and sisters exclude the father()—viz., that it is presumed the right came from the father, and the same affection to continue to all his children. (5.) That the whole blood always excludes the half-blood in the same line of succession. Thus brothers- and sisters-german and their issue exclude brothers-consanguinean; but a brotherconsanguinean bars the father, or his brothers and sisters, though of the whole blood.(k) (6.) That the mother or any relations by her never succeed; so that there will be place for the king as last heir, in preference to one's mother, brothers- or sisters-uterine,() though children succeed to their mother, and such relations to whom she herself (d) Doctrine of representation applies, §§ 125, 245. (e) In moveables, father and mother take as in note (o), § 33, by Statute preferably to brothers and sisters. In heritage in the case of a middle brother dying, his younger brothers and their issue succeed first, and failing them, his elder brothers and their issue in inverse order, § 253. (f) See note (e). In both estates brothers- and sisters-consanguinean and their issue come after brothersand sisters-german and their issue, and before the father at common law, §§ 129, 259. (g) Brothers- and sisters-uterine and their issue take one-half of moveable estate preferably to his brothers, &c., as in text, § 129. (h) Uncles- and aunts-consanguinean come in here, § 129. (i) At common law. See exceptions in note (o), § 33. (k) See note (o), § 33, for exception in moveables. (1) See note (b), § 37. could succeed. Lastly, That there is no succession by affinity.(m) Thus, the husband and wife never succeed to one another, (n) and much less can the relations of the one succeed to the other, or his relations.(o) The case was otherwise in the civil law by which, failing blood relations, the husband succeeded to the wife, and, on the contrary: but the relations of the one never succeeded to the other. And if the wife survived and was indigent, she succeeded to a certain proportion of the deceased's effects, by the law of the Novels, even though the deceased left children. . . . The diversity between the law of succession in heritage1 and that of moveables with us is :-(1.) That in heritage, males bar females in the same line of succession, but not otherwise.(p) Thus sons exclude daughters: brothers exclude sisters; but sisters-german or consanguinean bar the father, and the collaterals to him. (2.) That in heritage, the right of primogeniture takes place among males; so that the eldest son and his issue exclude all the rest, and eldest brother the younger brothers, with the foresaid distinction as to a middle brother, that the succession divides between the heir of line and heir of conquest.(g) (3.) That in case of female succession in heritage, all of the same line(r) and the issue of the deceased inherit equally; thus, all the daughters succeed alike as heirs-portioners,(s) and all the sisters; first, german, and next, consanguinean. (4.) That in heritage there is place for the right of representation;(t) so that the great-grandchild of the eldest son will exclude the second son; and among the children of heirs-portioners, the eldest son succeeds in his mother's right, exclusive of the rest. But in moveables, as has been oft said, all of the same degree (u) and quality, male and female, come in alike. . . . The foresaid line (v) of succession takes place 2 (m) This rule does not now hold absolutely. See §§ 88, 99. (n) See note (m). (0) Brothers- and sisters-uterine and their issue now take one-half preferably to uncles- and aunts-german, §§ 88, 129. (p) Meaning not very clear: sons are in the first line, brothers in the second, and the father in the third. In the first and second lines, the doctrine of representation operates and enables a male to exclude a female 1 |