father's moveables, and which they cannot demand till his deathbut as their mother's share of the society-goods that, upon the dissolution of the marriage by her death, descends to her children in the way of succession.(z) Where the husband predeceases, neither widow nor children can claim a right in any part of the heirship moveables,(a) as goods falling under the communion, because those are truly appurtenances of the heritable rights which belong to the heir. But where the wife happens to die before the husband, her next-of-kin are entitled to a share of the whole moveables, without deducting any part as heirship, because heirship is a certain share of the moveable estate at the precise time of the death of the husband; and, therefore, while he is alive, he can have no heirship."(b)

61. What Debts affect the whole Executry, and what only the Dead's Part.1-"Nothing can be accounted executry but what is free, after satisfying all the debts due, by the deceased; and therefore these must be deducted before any testament can be divided. (c) As the husband has the unlimited power of administration during his life, the debts contracted by him must be preferable to the rights both of the widow, the children, and the next-of-kin; they therefore affect the whole goods in communion; (d) and, so far as they go, diminish the jus relicta(e) and legitim,(ƒ) as well as the dead's part.(g) Where the husband, in his marriagecontract, provides the widow in a particular part of the moveables, she becomes the husband's creditor, and, in that character, is preferable pari passu with his other personal creditors on the moveable estate, if it be not sufficient for the payment of all the debts.(h) If it be more than sufficient for that purpose, she is

(z) See note (y). From the passing of the Intestacy Act, 1855, to the passing of the Married Women's Property Act, 1881 (App.), the wife's children or other representatives could claim no part of any moveable estate acquired or succeeded to by her, with the trifling exceptions made by the Conjugal Rights Acts. See § 90.

(a) Heirship moveables abolished, § 237.

(b) See note (z). Also table, § 130, under the heading of this section.

(c) In the Intestacy Act, 1855, "moveable estate" is defined as the free moveable estate on which the

deceased might have tested-i.e., the dead's part.

(d) This term not now applicable, § 89.

(e) See §§ 91-98.
(f) See §§ 100-113.
(g) See § 114.

(h) This seems too broadly stated. To give the wife a preference, the provision in her favour will require to be in some way secured, and no preference can be created over corporeal moveables, of which the possession is retained by the husband M'Laren, 1, 418.

entitled both to her special provision and her jus relictæ, if she has not accepted the first in full satisfaction of the last conformably to the rule already laid down. Donations to the wife, and obligations of provision to children, delivered to them by the granter in liege poustie, whether by marriage-contract or in separate bonds, must, like other debts due by the deceased, come off the whole head of the executry. The funeral charges of the deceased, the widow's mournings, and the alimony due to her from the day of her husband's death till the first moiety of her jointure be payable, affect also the whole executry; for though those debts are never contracted till after his death, yet, because by the necessity of nature, that expense must be incurred by all men, it is therefore in the judgment of law the husband's proper debt; but legacies or gratuitous obligations granted by him on death-bed, because they cannot hurt the legitim or jus relicta, affect only his dead's part. The share of the goods in communion() which, on the wife's predecease, falls to her next-of-kin,(k) cannot be affected by any debt contracted by the husband after her death; because the right of that share accrues ipso jure to the wife's executors by the division consequent upon her death, after which the husband hath no power over it. But the wife's funeral charges are considered as her own proper debt, and so fall wholly on her executors or next-of-kin, who are entitled to her share, and they will affect her paraphernalia() as well as other executry. Personal bonds due to the husband, because they are by 1661, c. 32, moveable in respect of succession, (m) and heritable as to the widow, must therefore increase the legitim and dead's part, but not the jus relicta; and as she has no benefit from such bonds when due to the husband, neither can her share decrease by any personal bonds due by him, the burden of which falls altogether upon his children or next-of-kin. (n) These observations concerning the legitim, and jus relictæ, in questions with the widow, children, and next-of-kin, are not applicable to the case of a competition

(i) See note (d).

(k) See note (z).

(1) This right appears to have been abolished, or at least rendered nugatory, by the act which vests in the wife, as separate estate, her whole personal estate, § 119.

(m) When they do not exclude executors, § 83.

(n) Heritable bonds are now also moveable estate, except where executors are excluded in them. But however expressed, all such bonds are heritable as regards terce, jus relicta, and legitim, § 83. The same rule would probably now be held to apply to courtesy in the case of such bonds belonging to the wife, § 99.

with the creditors of the deceased. Let the estate falling under communion be ever so large, if there be heritable debts due by the deceased more than will exhaust it, the creditors in these can affect the whole executry for their payment."

62. Legitim is not due to Children forisfamiliated. Effect of a Child's renouncing the Legitim." By a child forisfamiliated is to be understood one who, by having already received from his father his share of the legitim and discharged it, or by his renouncing it even without real satisfaction, is no longer accounted a child in the family, and is therefore excluded from any further share of it. As this right of legitim is strongly founded in nature, the renunciation of it is not to be inferred by implication.(o) It is not presumed, either from the child's marriage, or his carrying on a trade by himself, or even his acceptance of a special provision from the father at his marriage, if he have not expressly accepted of the provision in full satisfaction of the legitim. But as one, while he has neither wife nor child, has absolute power over his whole estate, he may, by marriage contract, settle provisions on his younger children to be procreated of the marriage in satisfaction of the legitim, which, though never accepted of by them, will effectually exclude their right to it. On this ground, a daughter was found excluded from the legitim, where the father had, in his marriage-contract, provided the whole conquest to the children of the marriage, notwithstanding her plea that he had, in the distribution of it among his children, given her the smallest share. A child's renunciation of the legitim,(p) or his acceptance of a sum in satisfaction of it, hath the same effect in regard of the younger children entitled to it as the death of the renouncer; so that his share divides equally among the rest. But a child renouncing the legitim is not cut off from his right to the father's dead's part; for to that he is entitled, not as a child in familia, but as next-ofkin to the father. Where, therefore, there is but one younger child, his renunciation of the legitim has the effect of turning the whole of that right to which he was entitled as the only younger child, into dead's part; and consequently all the executry

falls to the renouncer himself in the character of the father's nextof-kin, unless the heir be willing to collate the heritage with him. But where a child renounces not only his legitim, but, in general, all interest of whatever sort in the executry, or all that he might claim by his father's death, such renunciation plainly imports a renunciation also of the dead's part. The renunciation both of the legitim and dead's part by a younger child operates in favour not only of the younger children who continue in family with their father, but in favour of their descendants; so that the child renouncing cannot claim the office of executry in competition with any of those descendants, though he be truly a degree nearer in blood to the deceased than they. In like manner such renunciation excludes not only the renouncer himself, but his descendants, in competition with the descendants of the children who had not renounced; for they cannot, in their father's right, lay claim to any subject to which the father has expressly given up his claim; but the renouncer's children are not excluded in a question with collaterals, after all the other descendants of the deceased have failed; for where the father procures a renunciation of the legitim or executry from any child, his purpose is barely that his other children may have the benefit of it, without the least intention that any of his own descendants, even the children of the renouncer himself, should be thereby excluded from their natural right, in competition with a collateral kinsman."(q)

63. Collation among the Younger Children.-"For preserving an equality in the distribution of the legitim among the younger sons entitled to it, who have an equal interest in the father's moveable estate, we have adopted the doctrine of the Roman Law, which introduced a collatio,(r) by which the child who had already got a provision from the father was obliged to collate it with the other children, and impute it in his part of the legitim.(s) Every provision given by the father(t) to the child falls under collation: not only the tocher or other provisions granted in his or her marriage contract or in separate bonds; but all sums actually advanced by the father

(q) In this case the children take as next-of-kin, and, consequently, exclude collaterals who are in the second line of succession, § 129.

For rules in Stair see § 19; Mackenzie, § 34.

(r) Collatio bonorum inter liberos. (s) See §§ 111, 112.

(t) This doctrine will now apparently apply to the wife's separate personal estate, §§ 99, 113.

1

3, 9, 24.

to the child or for his behoof, though without any writing signed by the receiver obliging himself to account; which sums may be proved by his oath. But neither the expense of such education as is suitable to the child's quality or fortune, nor inconsiderable presents made to him by the father, suffer collation.”(u)

64. In what Cases it is Excluded.1-"Collation is excluded where it appears evidently to have been the granter's intention that the child should have the provision as a præcipuum over and above his share of the legitim. Thus, first, a clause in a bond of provision by a father that the child should, notwithstanding that provision, have at his death an equal share of his goods with his other children, is the clearest indication of his will that the provision should not be collated. Stair affirms that a clause declaring that the child shall continue a bairn in the house, implies also a prohibition to collate, and it was so adjudged. But a father's declaration in the bond of provision that the child is to continue in his family, and, consequently, to be entitled to a share of the legitim, seems to be but a slight evidence of his purpose that the child is not to collate, for collation is admitted only among those who are entitled to a legitim. Secondly, a child cannot be compelled to collate a bond of provision granted to him by his father on death-bed, contrary to the doctrine maintained by some writers; for if he were, the provision would be altogether frustraneous, since the child could not receive the least degree of benefit by it, though it be obvious that the father meant it as a gratification to him. It is true that the father cannot, by a death-bed deed, (v) diminish the legitim to the prejudice of any of his children, but he may dispose of his dead's part, etiam in articulo mortis ;(w) and if he can bequeath it to a stranger, much more to his own child. Upon a ground extremely similar, a legacy by a husband to his wife was presumed to have been granted wholly out of the dead's part, and so not imputable towards satisfying her jus relicta.(x) Where a land estate or an heritable right is provided to a younger

(u) This corresponds generally with the English law on the subject, $218.

(v) I.e., a testamentary deed, or Ideed to take effect after his death. Law of death-bed abolished by 34 & 35 Vict. c. 81.

(w) Although the wife's personal

estate is now vested in herself, it would seem that she cannot dispose of it without the consent of the husband or of the court, 44 & 45 Vict. c. 21 (App.).

(x) See $$ 95, 96, as to discharge or satisfaction of jus relictæ. 13, 9, 25.