child he is not bound to collate it, for the subject of the legitim is not impaired by such provision, since the fund out of which the legitim is due does not arise from heritable rights. As this kind of collation is introduced, that equal justice may be done to all who have a right in the legitim, it does not affect the right of third parties. Hence a widow cannot be compelled to collate legacies or donations given to her by her husband, and thereby to increase the legitim, nor, on the other hand, are children in familia obliged to collate their provisions with the widow in order to increase the jus relicta." 65. The King Succeeds as ultimus hæres to Bastards.-This is the proper place for treating of the crown's right arising from the death of a bastard. It has been already explained who they are whom the law accounts bastards; (y) the effects of bastardy may be now considered. It is a settled rule in the law of Scotland that there is no succession by the mother, (2) and that all estates, whether heritable or moveable, (a) can, after the death of the owner, descend only to such as are related to him by the father. A bastard, his father being uncertain, can have no relations by the father, and, of course, no collateral heirs upon his death.(b) If he die without lawful issue, therefore, the king takes up his succession by the necessity of law, in the character of last heir.(c) Hence it appears that bastardy is a proper species of ultimus hæres, the crown succeeding because the bastard has no agnates to claim bis succession. The crown's right, too, is precisely the same in bastardy as in the other. It comprehends the universitas bonorum of the deceased. It cannot be hurt by a deed on death-bed. (d) The same methods 88. (y) See § 126. (z) See exceptions stated in §§ 87, (a) Under the Married Women's Property Act, 1881, the wife's moveable estate is vested in herself, and her husband and children have on her death indefeasible rights in it. She cannot dispose of it without the consent of her husband or the court. As regards moveable estate, there is a succession from the wife; and although the father of a bastard may be "uncertain," the mother is not so; the bastard is truly her child, and as such, would appear, under the new law, to be entitled to succeed to his mother's estate, and vice versa. (b) This is so as regards the father's estate, but the rule may not now apply as regards the mother's separate estate. (c) The mother would appear to be entitled to one-third of his moveable estate, on the principle of the Intestacy Act, 1855. (d) Law of death-bed abolished by 34 & 35 Vict. c. 81 (1871). 1 3, 10, 5. must be pursued by the king to make good his interest in the succession. On the other hand, the estate which accrues to the crown is in both cases subjected to the same diligence of creditors and to the same burdens; the widow, e.g., is entitled to her legal provisions of terce, and jus relicta in either case; for the donatary's is no better than a right of succession, since he is assignee by the king, whom the law looks upon as successor, and the legal provisions of widows cannot be hurt by any right of succession whether legal or testamentary. There is only one difference between the two. Creditors may confirm the moveable effects of one to whom the king hath succeeded as last heir. They cannot confirm a bastard's testament; because, as will be immediately explained, a bastard is incapable of making a testament. (e) In this case they must bring an action against the king's donatary, not indeed simply, but in so far as he hath received of the bastard's effects." 66. If the Bastard has Lawful Children, the Crown is Excluded. Whether Bastards can make a Testament.'"This right in the crown to the escheat of bastardy is excluded where the bastard has lawful children of his own body; for these children are the bastard's proper heirs, since they have a certain father, quem nuptiæ demonstrant, and to whom they may serve heirs in terms of the brief of inquest. Upon the death of the bastard's immediate issue, the children of that issue succeed by the same rule; but if these last shall die without lawful children, the king takes the succession as their ultimus hæres, upon the supposition that their immediate father has died before them, since they have no relation by the father, and the mother's line of succession is not regarded in the matter of succession.(f) Though the bastard should have no lawful issue, it is agreed by all that during his life, and while he is in liege poustie, he is absolute proprietor of his whole estate, and, as such, may sell or gift it by any deed inter vivos. He may even settle his heritable estate by a destination which is not to take effect till his death, in favour of any person he may think proper. The rule, therefore, that a bastard can have no heirs except those of his own body, must be limited to legal heirs, and is not to be extended to heirs of provision. Most of the commentators on the Roman Law affirm that bastards have the full power of making a (e) A bastard can make a testament, 6 Will. IV. c. 22. (ƒ) See note (a), § 65. testament: because there is neither any reason in the nature of things, nor any text in that law which disables them; and because they have committed no crime which ought to forfeit them of that natural right, as the Roman lawyer equitably argues in their behalf in a similar case. Craig seems to be of the opinion that this is also the law of Scotland, where he asserts that if a bastard die intestate and without lawful issue, the king succeeds to his moveable estate which clearly supposes that the bastard had a right to test. It must, however, be acknowledged that we have, by our later customs adopted the doctrine of some other states, that bastards who have no lawful issue are incapable of making a testament.(g) This is said by some to proceed ex defectu natalium; though it is hard to discover a reason why a disability to test should be one of the consequences of illegitimacy. Where the bastard has lawful issue, he has without doubt the full facto testamenti, as the Roman law expresses it, and may consequently make a testament, not only in favour of that issue, but of strangers. In such case the king has no interest to object, since he is excluded from all right, even to the moveable succession by the bastard's children, who are both heirs and executors to the deceased, whether he died testate or intestate. As a consequence of this, the bastard must also have a power of naming tutors to his lawful issue. It has been observed that the issue of an intermarriage between an adulterer and the adulteress, after the dissolution of the former marriage by divorce, are not, in the opinion of Stair, bastards, notwithstanding the Act 1600, c. 20. If this opinion be well founded, the Crown's right here explained cannot take place to their prejudice; for, as they are not bastards, they have the power of testing; and upon their death their legal heirs, though not of their own body, will take the succession." 67. Legitimation of Bastards." Bastards are sometimes legitimated by the sovereign. Legitimation, in the proper sense of the word, and in that of the Roman law, entitled the person legitimated to all the rights of lawfully begotten children. . . . The bastard is not entitled, in consequence of this sort of legitimation, to a bairn's part of gear, nor to any share of the father's succession.(h) Yet, where the right of third parties is not affected, the king may (g) See note (e). be entitled to succeed to his mother's separate moveable estate, § 126. (h) But the bastard appears now to effectually renounce any right competent to himself in favour of the bastard or any other, since he himself is the only sufferer by such renunciation. Though, therefore, he is by law entitled to the bastard's succession, he may, by letters of legitimation, enable that person to succeed ab intestato to the bastard who would have been his heir, had the bastard been procreated in lawful marriage." BELL'S PRINCIPLES. We shall only notice further that eminently practical work, the "Principles of the Law of Scotland," by Professor George Joseph Bell, which was published in 1829. Bell was born in 1770, called to the Bar in 1791, appointed Professor of Scots Law in 1822, and one of the clerks of the Court of Session in 1833. He died in 1843. He was one of the greatest commercial lawyers of his time, and has left behind him, in addition to his "Principles," commentaries of the law and other works, which have become, and are likely to remain, standard works in our law. We extract the following lucid statement of the law from the Principles, Edition 1829: 68. Law of Descent and Consanguinity as applicable to Succession generally.'-"The law of succession naturally contemplates the domestic society as possessed of a common stock, divisible either equally or in certain proportions among the children.(i) The ancient Roman Law of Succession was not very different from this; and the Justinian Law of Succession was settled upon similar views. The modern law of succession, influenced by the feudal system, is, in regard to land, arranged on the principle of primogeniture, while moveables are disposed of nearly on the principles of the Roman jurisprudence.(k) In both courses of succession there is perpetual reference to the lines of consanguinity, of which there are three:-1. Descent; 2. Collateral; 3. Ascent. The first and the last are called lineal, in contradistinction to the second; and have vinculum personarum ab eodem stipite descendentium, as all descending in a direct line from one common ancestor. (i) This was formerly so in moveable estate, but not in heritage; and in moveables the idea of a common stock has been affected by the Married Women's Property Act, 1881, see § 89. (k) In equal shares to the next-ofkin or legal representatives, §§ 84, 125, 129. 1 §§ 495-502. 1. Lineal Descent includes issue immediate and remote, each generation forming a degree of descent. 2. Lineal Ascent comprehends immediate parents and ancestry in the direct line, as high as evidence can reach. 3. Collateral Kindred also descend from one common ancestor with the deceased, but not, as in lineal succession, from each other. And here it is necessary to distinguish (1.) the full from the half-blood; (2.) in half-blood, the consanguinean from the uterine. Full blood, or germain, is of persons born or descended of the same father and mother. Half-blood is either-(1.) Consanguinean; of persons born or descended of the same father, but not of the same mother; or, (2.) Uterine; of persons born or descended of the same mother, but not of the same father. Law recognises no relationship between the consanguinean and the uterine; and there is no succession ab intestato of the one to the other (). Relationship of full or of half-blood is not [as in the books of the Feus] stopt at the seventh degree; but is reckoned in Scotland to extend as far as the evidence of propinquity will reach. 69. Law of Succession in Land ab Intestato.1-In succession to land, the Law of Scotland avoids partition (except where females succeed), and prefers males. But there is a difference in respect to the male to be preferred, between lands descending from an ancestor, and lands acquired by the deceased.(m) Hence the former is distinguished as Heritage, the latter under the name of Conquest. 70. Law of Succession in Heritage.2-This doctrine will appear the more clearly by taking, first, the descent of the father's estate; afterwards the mother's. I. Father's estate. This descends in succession in the three several lines already stated. 1. Rules of Lineal Descent.-Referring to the explanation of consanguinity already given, the rules are: (1) This rule has been modified by the Act of 1855; uterine collaterals take one half of the moveable estate where the deceased left neither issue, parents, nor collaterals german or consanguinean, § 87. 1 § 504. (m) This distinction between heritage and conquest was abolished by 37 & 38 Vict. c. 94, § 37, as to all successions opening after 1st October, 1874. 2 S$ 505-523. |