REMIT TO VALUATORS.

219

Another way is to make a remit to Valuators.-These appear before the Sheriff, and depone to the justness of their valuation. The Sheriff then decerns her lot to pertain to the widow as her terce, and proceeds to the lands and kens her thereto, or grants a precept to a "Sheriff in that part" to do An instrument called an Instrument of Kenning, is in either case taken in the hands of a notary.1

So.

Lord Fraser says the modern practice is for the widow and the heir to enter into a submission to have their respective rights ascertained.

But this, it is believed, is also a matter of rare occurrence. It is natural that where there is considerable heritable estate, there should generally be either a will or a marriage-contract, by which the terce is excluded. terce is excluded. And in other cases an arrangement is usually made between the widow and the heir. Either the heir agrees that the widow shall live in the house, to take that as the simplest example, and to pay him twothirds of the rent, or he agrees to live in it and to pay her one-third. If it is let to a tenant the heir agrees to pay the widow one-third of the rent. If she sees that he does not let the rent fall into arrears she can lose little, because, as already explained, if the heir sells the house she can claim. terce from the purchaser.

No Infeftment Necessary. The widow's terce, like the husband's courtesy, requires no infeftment. So it was found that an Instrument of Kenning "needed not to be registrate as other seasines." 2

1 Jurid. Styles, i. 347.

2 Wamphray, 1669, 2 Br. Supp.

440; Menzies' Conveyancing, p.

672.

CHAPTER XX.

JUS RELICTAE AND JUS RELICTI.

ON the death of the husband, or on his being divorced, the wife is entitled at common law to one-third of his free moveable estate, if he leave lawful children of that or a previous marriage, or one-half, if no such child or children survive. And by the Married Women's Property Act, 1881, a corresponding right is given to a surviving husband.

The Act provides, section 6: "After the passing of this Act the husband of any woman who may die, domiciled in Scotland, shall take, by operation of law, the same share and interest in her moveable estate, which is taken by a widow in her deceased husband's moveable estate according to the law and practice of Scotland, and subject always to the same rules of law in relation to the nature and amount of such share and interest, and the exclusion, discharge, or satisfaction thereof, as the case may be." The case of divorce is not mentioned, but as the theory is that the innocent spouse shall take the same share in the estate of the guilty spouse as if the latter were naturally dead, there can be no doubt that the innocent husband who has divorced his wife can claim jus relicti.

It is now settled that this section applies where the marriage was contracted before the Act, and that the husband is entitled to his half or third of the whole moveable estate of the wife, whether she acquired it before or after the Act.1 And it applies to a wife's moveable estate from which the jus mariti has been excluded by ante-nuptial marriage-contract, provided that the contract leaves the wife absolute control of her estate. It may accordingly be assumed that the two rights are co-equal and co-extensive, and in the sequel where any point is men

1 Patersons R. H.L. 73.

v. Poë, 1883, 10

2 Fotheringham's Trs. v. F., 1889, 16 R. 873.

tioned as decided with regard to jus relictae, it will be equally true of jus relicti. The husband will not be decerned executordative to his wife before her next-of-kin, for the wife's right to jus relictae was never held to entitle her to be preferred to his next-of-kin in competition for the office of executor-dative.1

Nature of Right. It has been disputed if jus relictae is more fitly regarded as a right of succession or as a right of division. Stair and Erskine3 speak of it as a right of division of the property over which the husband had during the marriage the absolute right of disposal. The language of the older writers is coloured by the now antiquated theory of a communio bonorum of which the husband was the administrator. The Court,

in a recent case, found it unnecessary to determine the speculative nature of the right. For practical purposes it is probably sufficiently defined as a legal right, opening to the wife by the death of the husband, and not capable of being defeated by any testamentary or revocable deed. In one aspect it may be said to be a claim of debt against the husband's trustee or executor, which may be made effectual by action against him. But it is not a debt which can compete with onerous claims. If the estate was insolvent at the death there will be no jus relictae. The widow is a creditor among heirs, an heir among creditors, to use an old phrase as applicable to her as to persons having a spes successionis in obligatione.

Vesting of Jus Relictae.—Jus relictae vests ipso jure at the death of the husband, and transmits to the widow's representatives, although confirmation to the husband's estate has not been granted." But the widow has no active title until either she or some one else has taken out confirmation. She may retain her husband's goods which are in her hands for her third, but she cannot pursue his debtors for payment to her of one-third of the debts due by them. She is entitled in the general case to interest on her jus relictae from the death. Her claim is, however, limited to the interest which the

husband's funds actually yield, and may be met by the defence that they were in whole or part unproductive. E.g., if his capital was locked up in a business, or otherwise invested in such a way as to be incapable of realisation without delay, and yielding no interest, this would be a good plea in the mouth of the executors against a widow's claim for interest on her jus relictae.1

How Jus Relictae may be defeated.-The husband's estate is, during his lifetime, completely under his control, and he may squander it or give it away at his pleasure. He may also make his investments in such a form as to lessen the fund available for jus relictae.

Death-bed.—A curious question was raised by Lord Fraser on this branch of the law. The Act 34 & 35 Vict. c. 81, provides "that no deed, instrument, or writing, made by any person who shall die after the passing of this Act (16th August, 1871) shall be liable to challenge or reduction ex capite lecti." Lord Fraser suggests that these words do not cover every form of transaction formerly reducible as done on death-bed. E.g., if a man hand over a sum of money or lend out money on a heritable bond, would it be competent for the widow still to plead that the fund from which her jus relictae was payable could not thus be diminished ?2 Lord Fraser is of opinion that this is still within her right. But the better opinion seems to be that the words of the Act are sufficiently wide to abolish the whole law of death-bed. The preamble of the Act runs "Whereas it is expedient to abolish all challenges and reductions in Scotland ex capite lecti." In the Lauderdale Peerage Case the question was if a marriage on death-bed effected legitimation of children previously born. It was pleaded that the rights of the person who would have been the heir but for the alleged legitimation could not be prejudiced by any act on death-bed. Lord Watson says: "That is a very remarkable plea, because from the time when Sir Thomas Craig wrote his Jus Feudale, until it was abolished

1 M'Intyre v. M.'s Trs., 1865, 3 M. 1074.

2 Fr. ii. 1008, and ii. 1059.

3 Fraser is followed by the learned

editor of Bell's Principles. (Bell's Prin. ii. 1585.)

4 1885, 10 App. Ca. 692. But see Hay v. Coutts' Trs., 1890, 18 R. 244.

by Act of Parliament in 1871, the law of death-bed was according to all the authorities limited in its application to deeds, instruments, or writings, executed in lecto to the prejudice of the heir alioquin successurus." 1

Deeds in fraud of Jus Relictae.--It is now well settled that if the husband's deed be irrevocable, and completely divest him, it will not be reducible as in fraudem of jus relictae or legitim, although expressly declared to be for the purpose of diminishing those rights. The following statement of the law by Bell is approved of by Lord Fraser :

"Legitim" (and the proposition is equally true of jus relictae) "is diminished by every deed of the father inter vivos and in liege poustie disposing of his moveable funds, provided it be not fraudulently contrived in order to disappoint the children. without touching the father's own right during his life." 2

The fact that a husband has suddenly converted his moveable estate into heritage with a view to lessen the jus relictae is not fraudulent.3

Provided the transaction be real the Court will not enquire into the motive by which it was prompted. But there is a different class of cases in which an attempt is made to defeat the jus relictae or the cognate right of legitim by a simulate deed which does not, in fact, divest the granter. This is the only kind of deed which the Court will reduce as in fraudem of jus relictae.

Ill.-A father, anxious to exclude one of his sons from legitim, handed £1000, nearly the whole of his moveable. estate, to his eldest son. He took from this son three I.O.U.'s for £400, £300, and £300, respectively, in favour of his other children, excluding A. These I.O.U.'s the father retained in his possession till his death. In an action by A for legitim it

was held that the transaction was simulate and that the fund formed part of the personal estate of the father at the time of his death.4

Ill-Father conveyed his whole estate to his only son under burden of an annuity of £100 a-year. Father and son

1 At p. 754.

2 Bell's Prin. ii. 1584; Fr. ii. 1010. 3 Lashley v. Hog, 1804, 4 Pat. 581,

per Lord Eldon, at p. 623.

4 Buchanan v. B., 1876, 3 R. 556.