the executors, concluding for declarator of his right, an order on the executors to account, and (on his completing his title and disponing) to deliver or pay over his share." THE CHANGES EFFECTED BY LEGISLATION DURING THE LAST CENTURY. 74. General View.-There remains only to notice under this head the changes which have been effected by statute on the law of succession since the publication of the above works. (ƒ) The first in order is the Act 18 Vict. c. 23 entitled "An Act to alter in certain respects the Law of Intestate Moveable Succession in Scotland," and which came into operation on 25th May, 1855. The changes introduced by this Act may be summarised as follows: It admits the doctrine of representation amongst descendants and the brothers and sisters of an intestate and their descendants. For example, if an intestate leave two children and two grandchildren-issue of a predeceasing son or daughter, the grandchildren will take the share of the succession which their parent would have taken if in life. The rule extends to the descendants of brothers and sisters of the intestate, but not further. Heirs-at-law taking by representation are entitled to collate or mass the heritable with the moveable estate to the effect of claiming a share of the common fund. And the other issue of the predeceaser are not precluded by the heir refusing to collate from claiming the difference between the value of the heritage and the share their parent would have taken on collation. Where an intestate without issue is survived by his father and by collateral relations, the father is entitled to one-half of the succession preferably to such relatives. Failing the father, the mother is similarly entitled to one-third of the succession. Failing brothers and sisters german or consanguinean and their descendants, collateral uterine relatives take one-half of the succession. (f) The whole of the Statutes in question will be found in an ap pendix, with explanatory and illustrative notes. In each of the last three cases the division is of the free moveable estate on which the intestate might have tested. The former rights of relatives of a wife predeceasing her husband to a share of the goods in communion are taken away, as well as the wife's right to bequeath part of such goods. The rule as to marriages dissolved within a year and day is abolished. Executors nominate are deprived of all right to any part of the succession in their character as such. By the Conjugal Rights Act, which was passed on 6th August, 1861, and came into operation 1st November following, a wife deserted by her husband is enabled to take steps to secure for her own behoof, exclusive of his legal rights, property acquired by her own industry, or by succession. Terce is also made claimable from burgage property. The Act 33 Vict. c. 14, passed on 12th May, 1870, removes certain disabilities formerly attaching to aliens in the matter of holding and dealing with heritable property in Scotland. The Act 33 & 34 Vict. c. 35, passed on 1st August, 1870, makes rents and other periodical payments accruing from day to day apportionable in respect of time. The right to heirship moveables is abolished by section 160 of 31 & 32 Vict. c. 101 as regards all successions opening after 31st Dec. 1868. The distinction between heritage and conquest is abolished by section 37 of 37 & 38 Vict. c. 94 as regards successions opening after 1st October, 1874. The Act 40 & 41 Vict. c. 29, passed on 2nd August, 1877, excludes the jus mariti and right of administration of husbands from wages and earnings of their wives in businesses, &c., carried on under their own name, and it limits the former's liability for the latter's antenuptial debts to the amount of the estate received through the latter. Under 43 & 44 Vict. c. 26, passed on 26th August, 1880, a married woman is enabled to effect a policy of assurance on the life either of herself or her husband for her separate use, and a husband may effect a policy of assurance on his own life, in trust for the benefit of his wife or children, or both, and if the assurance has been in force for two years it is unchallengeable by creditors of the husband. But the greatest changes on the law of succession since the passing of the Intestacy Act of 1855 are made by the Act 44 & 45 Vict. c. 21, which came into operation on 18th July, 1881. These changes may be briefly stated as follows: (1.) As regards marriages contracted after the passing of the Act The wife's personal estate is vested in herself, and is not subject to the jus mariti of the husband, provided the husband had at the time of the marriage his domicile in Scotland. The income from such estate is payable on the wife's own receipt, but she cannot assign the prospective income or dispose of such estate without her husband's consent. Her estate, if clearly distinguishable, cannot be attached for the husband's debts. The Act does not abridge or exclude the power of settlement by antenuptial contract. (2.) As regards marriages contracted before the passing of the Act The rents of the wife's heritable property are separate estate in her person. The Act does not apply where the husband had, previous to its date, by irrevocable deed, made a reasonable provision for his wife; nor in other cases, except that the jus mariti and right of administration are excluded from all estate and income acquired by the wife after its date. Persons married before date of Act may come under its provisions by deed. The husband of a woman dying after the passing of the Act takes the same share in her moveable estate which was previously taken by a widow in her deceased husband's moveable estate, and subject to the same rules of law as to amount, exclusion, discharge, or satisfaction thereof. The children of a woman so dying take legitim in the same way, and subject to the same conditions. The Act does not affect contracts made, or to be made, between persons before or during marriage, or the law as to donations between man and wife, or the wife's non-liability to diligence, or her rights under the Act 40 & 41 Vict. c. 29, above referred to. INTESTATE SUCCESSION IN MOVEABLE ESTATE. DEFINITIONS AND GENERAL RULES. 75. Meaning of Succession.-Succession is the right which transmits to the living the property of a person deceased. It is of two kinds heritable as distinguished from moveable; and is transmissible in two forms-testate as distinguished from intestate succession. : 76. Heritable and Moveable.-Every species of property, and every right a man can hold, falls to be classified under either of these two heads. As a general rule, the former comprehends land, houses, and all those things which are parts of either; and the latter, all those things which are capable of being transported from one place to another. The distinctions, which are in some instances purely artificial, are more particularly referred to hereafter.(a) Here, it is sufficient to observe that the distinction. between heritable and moveable property is of the essence of legal succession; the rules which regulate succession to the one being entirely different from the rules which regulate succession to the other kind of property. Besides that, as a general rule, heritable property goes to the heir-at-law, whilst moveable property goes to the next-of-kin. 77. Testate and Intestate Succession.-Succession is called testate where the deceased made a valid testamentary disposition of his property intestate where the privilege to make such a deed was neglected by the deceased,-in which case the law supplies his omission, and distributes his property according to fixed rules. It is with this latter form of succession only that we here chiefly concern ourselves. Intestacy has been aptly described by a high authority thus:-"A person dies intestate who either executed no will, or whose will is void, or whose will, though valid at its execution, was avoided subsequently, or is of no effect for want of an heir."(b) 78. Who may Execute a Valid Testamentary Deed.Generally, every person of sound mind, and not subject to any (a) §§ 83, 235. (b) Justinian, Inst. 3, 1. legal incapacity, may make a valid disposition of his property. Legal incapacity attaches to— (1.) Pupils-i.e., females under twelve, and males under fourteen years of age. All such are legally incapable of granting any deed.(c) (2.) Minors-i.e., persons above pupillarity, but under twenty-one years of age. These can bequeath moveable property without the consent of their curators, (d) but they cannot convey heritable property mortis causa even with such consent.(e) (3.) Married women. Under the older law, and, indeed, until the passing of the Moveable Succession Act, 1855, a married woman was held entitled to make a disposition mortis causa of her share of the goods in communion as well as of her heritable estate,(f) but by that Act she was rendered incapable of making a valid will of moveable estate,(g) except of such property as she might hold exclusive of her husband's legal rights, or over which a disposing power was given to her by the deed through which the property had been derived.(h) The law stood thus down to the year 1861, when the Legislature began to pass a series of Acts increasing the rights and powers of administration of married women in relation to moveable property. By the first two of these Acts, viz. :-The Conjugal Rights Amendment Act,(i) which came into operation on 1st November, 1861; and the Conjugal Rights Amendment Act,(k) which came into operation on 7th July, 1874; it is provided (1) that a wife deserted by her husband may apply to the Court for an order to protect moveable property which she has acquired or may acquire by her own industry, or by succession, and that on such order being obtained, such property not having previously been taken possession of by the husband or attached by his creditors, shall belong to her as if unmarried, and the order shall have the effect of a decree of separation a mensa et thoro in regard to the property, rights, and obligations of the husband and of the wife; (2) that where a decree of separation a mensa et thoro is obtained by the wife, her moveable property shall belong to her exclusive of the jus (c) Ersk. 1, 7, 1. (d) Ersk. 1, 7, 33; Fraser, 381. (g) Macdougal, 1858, 20 D. 658. (i) 24 & 25 Vict. c. 86. |