were partners in business. After the deed the effects of the co-partnery were never regularly delivered by inventory to the son. At a later date a submission was entered into with a daughter on the narrative that no settlement had been made upon her, and that she had not discharged her legitim. The submission was dropped. In an action by this daughter for legitim, it was held that "the voluntary and gratuitous disposition by David Millie, senior, in favour of his son, the defender, cannot be held as a bona fide alienation and transfer of his property, but a collusive transaction devised for the purpose of defeating the claim of legitim competent to the pursuer.

--

Ill. A father transfers bank stock to his son's name. The dividends, however, are credited as they fall due to the father's account. Held there was no bona fide alienation, and the sum represented by the stock was liable to legitim.2

The principle running through all the cases is that if the granter, in fact, continues to enjoy the benefit of the property after the alleged transfer, and has not made himself any poorer thereby, the transaction will be set aside.

Lord Eldon, in the leading case of Lashley v. Hog, says the enquiry is whether the subsequent profits accrued to the granter or grantee. "The receipts of the profits during the life of the person, is evidence of the ownership of that person in the subject matter which produces the profits."

The husband's power to defeat the jus relictae, may be summed up thus. He may defeat it by any inter vivos irrevocable deed. A revocable deed leaves the subject in his power till death. He may, in fact, defeat the right by any genuine inter vivos transfer, but not by the semblance of alienation without the reality.

How Jus Relictae may be discharged or renounced.

1. By ante-nuptial contract.—The right may be expressly renounced in an ante-nuptial contract of marriage, and such a renunciation is binding upon the widow, although her provision in the contract is vastly less than she would have received as

1 Millie v. M., 1803, M. 8215, aff., 1807, 5 Pat. 160.

2 Lashley v. Hog, 1804, 4 Pat. 581. 3 At p. 641.

jus relictae.

If she were a minor, the contract may be cut down on the ground of minority and lesion.1 And where the conventional provision is inadequate for the widow's bare support, it is thought she would be entitled to additional aliment if the estate is sufficient.2

Renunciation will not be Implied.-Unless jus relictae is expressly discharged, very clear indications of the intention to renounce it will be required. It may be covered by general words without being named, as where there is a discharge of "all legal rights," or the intention to exclude it may be otherwise clearly implied.3 But if the language is ambiguous the right to jus relictae will not be excluded.4

2. By post-nuptial Deed.—The wife may discharge her jus relictae, stante matrimonio, in a separate deed, a mutual settlement, or any other writing. Where a wife signed her husband's will, and the testing clause said that she did so "in token of her consent to and approval of the foregoing settlement," she was held to have validly renounced her jus relictae, though in the body of the deed she was not mentioned as a consenting party. But such discharge, if gratuitous or for a consideration grossly inadequate, may be revoked by her as a donation."

Ill.-Husband by his will gave his wife the life-rent of his whole estate. He directed his trustees "after the death of the survivor of me and my said wife, and with her consent and full approval (in token of which she has subscribed this deed)" to pay over a large number of legacies. Many of these legacies were to the wife's relatives. The wife signed the deed. It was held that although the jus relictae was not mentioned, it was clearly her intention to renounce it, and effect must be given to this intention.7

21.

3. By Acceptance of a Conventional Provision.-The Act,

1 Cooper v. C., 1888, 15 R. H.L.

2 See infra, "Aliment to indigent survivor."

3 Ersk. 3, 9, 16; Fr. ii. 1060; Durrant Steuart's Trs. v. Durrant Steuart, 1891, 18 R. 1114.

4 Keith's Trs. v. K., 1857, 19 D.

1681, c. 10, which provides that a widow who takes a conventional provision shall not be entitled to terce unless the husband's intention was clearly that she should have both, does not extend to jus relictae. Accordingly the widow may take both the provision under the deed, and also her jus relictae, unless she has renounced it, or a contrary intention appears on the face of the deed.

But where the husband leaves various testamentary writings, in some of which provisions are declared to be in full of jus relictae, whereas, in others, a provision is given without any such clause of exclusion, the Court will read the whole as one deed, and put the widow to her election.1

Deed inconsistent with intention that widow should take both provision and Jus Relictae. It is a settled rule that when the husband gives the widow a life-rent of his whole estate, heritable and moveable, and she accepts it, this is in full of jus relictae.2 But where there is intestacy as to the fee, she is not barred from claiming jus relictae by taking a liferent of whole estate.3

Where there is a total settlement. If the husband has made a settlement of his whole estate, or even of his whole moveable estate, it is plain that he did not mean the widow to take the provision in the deed, and her jus relictae in addition. For, as he has divided the whole moveables, there is no fund out of which the jus relictae is to come. This case has repeatedly arisen as to legitim, and the same principle applies to a widow claiming jus relictae.*

4. By electing after the husband's death to take the provisions in his settlement or other deed.-Where the widow's right is not barred by ante-nuptial contract or by an onerous contract made by her, stante matrimonio, and where it is further

1 Stewart v. Stephen, 1832, 11 S. 139.

2 Ersk. iii. 3, 30; Edward v. Cheyne, supra, see especially opinions of Lord Kinnear and Lord Craighill in C. of S., 11 R. 996; Riddel v. Dalton, 1781, M. 6457.

3 So held by Lord Kyllachy in a case as to jus relicti, Chalmers v. Grierson, 6th March, 1893 (not yet reported). And see Simon's Trs. v. Neilson, 1890, 18 R. 135.

4 Fr. ii. 1069, 1021; Bell's Prin. ii. 1591.

ELECTION INFERRED-MORA.

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clear from the husband's testamentary writings that he did not intend her to take both legal and conventional provisions, she is put to her election between these.

Election may be inferred from conduct.-The proper course is for the husband's trustees to obtain from the widow a discharge of her legal rights in consideration of her conventional provision. But when this has been omitted, her consent may be inferred from a course of conduct, clearly pointing to her having elected to take under the settlement.

Whether her acceptance be express or implied it may be repudiated by her, if she can show that she had not, a full and fair knowledge of her legal rights.1

Delay is no bar.-In such cases it is frequently pleaded that the action is barred by taciturnity and mora. Mere delay short of the forty years' prescription is not a bar, but only throws on the party against whom it is pleaded, the duty of explaining his inaction. Taciturnity is of no value as a plea, unless it can be shown that the party who lay by was in full knowledge of his right of action. It is only where the pursuer took no action for a long period during which he must have been in full knowledge of the facts, and can give no explanation of his inactivity, that effect may be given to these pleas. The circumstances must point distinctly to the right having been abandoned, and the plea of mora merges in that of acquiescence.2

Ill.-Thirty years after a father's death, a settlement by him was found in an old trunk. Legatees claimed against the father's representatives. It was held that they were not barred

by taciturnity and mora.3

Ill.-A widow who survived her husband for ten years, neither accepted her conventional provisions nor claimed her legal rights. Although repeatedly called on by the trustees to elect, she made no sign, and in an action of multiplepoinding to have the estate disposed of at the sight of the Court, she

1 Donaldson v. Tainsh's Trs., 1886, 13 R. 967; M'Fadyen v. M'F.'s Trs., 1882, 10 R. 285; Hope v. Dickson, 1833, 12 S. 222; see supra, sub Terce.

2 See opinion of Lord Deas in Robson v. Bywaters, 1870, 8 M. 757.

3 Seath v. Taylor, 1848, 10 D. 377.

declined to appear. The trustees consigned half-yearly in bank the annuity provided to her in the settlement. After the widow's death her representatives claimed her legal rights, but it was held she must be taken to have acquiesced in the action of the trustees, and accepted the conventional provision.1

Ill.-A widow was maintained during the eleven years of her viduity by her eldest son, who was her husband's executor, during which time she made no claim for jus relictae. Fifteen years after her death her representatives raised an action for it against the representatives of the son. It was held that the claim was not barred by mora and taciturnity.2

When Jus Relictae is discharged, how is estate divided ? -Discharge, stante matrimonio, makes the division at death bipartite as if the widow had predeceased. But if there is no discharge before the husband's death the division will be tripartite, if the children claim legitim, and the widow elect to take under the will. The sum, which would have fallen to her as jus relictae is credited to the executor.3

Effect of wife's election to take legal rights. In this case, the jus relictae will fall to be paid out of the residue which, by the will, would go to the residuary legatee, if this residue is sufficient. If the residue is insufficient, general legacies will contribute rateably, and in the last place, if necessary, special legacies will be resorted to to supply the deficiency.1

Husband must die domiciled in Scotland.-It has not been absolutely decided, but is probably law, that a widow is in no case entitled to jus relictae, unless her husband died domiciled in Scotland, although he was domiciled there at the date of the marriage.5

622.

Pringle's Executrices, 1870, 8 M.

2 MacKenzie v. M.'s Trs., 1873, 11 M. 681; and see Gourlay v. Wright, 1864, 2 M. 1284.

3 Fr. ii. 1070; Fisher v. Dixon,

1840, 2 D. 1139.

4 Tait's Trs. v. Lecs, 1886, 13 R. 1104.

5 See infra, “Effect of Change of Domicil."