after his death, without making a reasonable provision to his wife in lieu of it.(f) Deeds to be effectual in defeating the right must be irrevocable, be inter vivos, and be executed in liege poustie.(g) The right will not be defeated by a deed directing money to be invested in land(h), and conversely the claim is not exigible out of the proceeds of lands sold by direction of the testator.(i) 95. How Jus Relicto Discharged. The exclusion of the jus relicta may be effected in either of two ways, termed discharge and satisfaction. The claim is said to be discharged when it is renounced inter vivos-e.g., in an antenuptial contract; and it is said to be satisfied when a reasonable testamentary provision is given by the husband in lieu of it.(k) The discharge may be either express or implied.() It is said to be express when granted in consideration of a provision in an antenuptial contract bearing to be in satisfaction of the jus relicta (m); and it is said to be constructive or implied where a suitable provision is given to the wife without making use of the expression jus relicta—e.g., by the acceptance by her of a provision under a contract or settlement disposing of the totality of the moveable estate,(n) or where such a provision is given in words signifying a discharge of the right. But the acceptance of a provision, however large, does not bar the right to claim jus relicta out of the husband's estate undisposed of(o); and this rule applies to provisions of every description.(p) A discharge of the right is implied when the wife is a party to a deed conferring on her a liferent of the husband's whole moveable estate (q); but not by the acceptance of a liferent of his heritage(r), nor of a liferent of a shop and household furniture, with an allowance for mournings (s); nor of the liferent of his dwelling-house, and an absolute right to the furniture therein(t); nor of a conventional provision by her in ignorance of her legal rights, or of her husband's true state of affairs.(u) 96. How Jus Relictæ Satisfied. The jus relicta may be satisfied by the acceptance of an equivalent mortis causa provision in place of it, the renunciation of the right being a condition of the gift, as by a testamentary provision bearing expressly to be in lieu of the jus relicta; or by a provision given as part of a universal settlement, (v) but not by an annuity, unless it is declared to be in satisfaction of the jus relicta(w). In the latter case the widow has the right to elect between the jus relicta and the conventional provision.(x) 97. Effect of Discharge of Jus Relicta Inter Vivos.-The right is extinguished leaving the whole free moveable succession to be divided between the children entitled to legitim and the husband's representatives.(y) 98. Effect of Provision in Satisfaction of Jus relicta.The effect of a testamentary provision in satisfaction of the jus relicta after the husband's death operates exclusively in favour of the fund burdened with the provision, usually the residue; or, if that be undisposed of, of the husband's legal representatives.(2) It has no effect, therefore, upon the legitim,-as a general rule all beneficial interests lapsing by the operation of approbate and reprobate will either fall into residue, or result to the legal representatives. (a) 99. Right of Husband on Wife's Death. Formerly the moveable estate of the wife, with trifling exceptions, fell to the husband on the celebration of the marriage in virtue of his jus mariti; but by the Married Women's Property Act, 1881, the jus mariti is practically abolished, enabling the wife to hold her moveable estate, as regards at least the right to it, independently of her husband. And by 6 of that Act it is provided that, from and after the passing of that 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 (v) Stewart, 29th Nov. 1832, 11 Sh. 139; Keith's Trs. supra. In Keith's case a distinction is drawn between a marriage-contract provision and testamentary provisions by the husband. (w) Howden, 18th May, 1821,1 S. 18. (x) Baroness de Blonay, 17th July, 1863, 1 Macp. 1147. (y) M'Laren, § 281. (z) Campbell's Trs. 15th July, 1862, 24 D. 1321. (a) M'Laren, §§ 781, 942. 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."(b) 100. Legitim out of Father's Estate. (c)-Legitim is a claim or debt, (d) accruing by law to the living children of a father dying domiciled in Scotland,(e) out of his free moveable estate,(ƒ) wherever situated.(g) Where the father dies, leaving children but no widow, one-half is legitim, and where he dies leaving a widow and child or children, one-third is legitim, unless the widow, in any of the modes before mentioned, has renounced her jus relicta, in which case the legitim will be one-half. 101. Father's Powers over Legitim.-The legitim cannot be defeated by the father under a will. He may, however, in his lifetime indirectly defeat it by alienating his moveables, or gratuitously giving these away, or converting them into heritable property. The deeds of alienation or of gift must, however, be absolute and irrevocable; be inter vivos and not mortis causa; and must not be granted with the intention of defeating the legitim.(h) The reservation of a liferent was found ineffectual to prevent the exclusion of legitim under a duly delivered and irrevocable inter vivos deed. (i) An absolute and irrevocable assignation of a farm lease and stocking duly intimated to the landlord and followed by possession was held sufficient to exclude legitim, although executed with the intention of preventing any claim to legitim on the part of some of his children.(k) But see case of Buchanan,(l) where a donation was held to be simulate, and not to effect the legitim fund. 102. When Legitim Vests.-At common law by the child's mere survivance of the father.(m) The right vests at the father's death, even where the widow has a liferent of the whole estate (b) See § 90; also Notes on the Act in Appendix. (c) M'Laren, § 244; Bell's Prin. § 1582; Ersk. 3, 9, 15. See also Note (c) to § 94. (d) Fisher, 6th July, 1841, 3 D. 1181. (e) Lashley, 12th July, 1804, 4 Pat. 581. (f) Breadalbane's Trs. 11th March, 1843, 15 Jur. 389. (g) Ersk. 3, 9, 15-21. (k) Skinner, 22nd Oct. 1872. under an antenuptial contract.(n) The claim is regulated by the law of the domicile at the dissolution of the marriage.(o) The children can only recover from the deceased's debtors through the medium of the executors.(p) They may recover legitim even after the lapse of twenty years from the date of vesting(q) with interest from that date.(r) A claimant of legitim may confirm as an executor-creditor.(s) Formerly a husband was entitled to claim his wife's legitim without her consent if she had no adverse interest; but see the effect of recent legislation in marriages contracted after 18th July, 1881,(t) vesting in the wife, exclusive of her husband's jus mariti, any moveable or personal property she may acquire before or during marriage. 103. To Whom Payable.-All the father's children alive at his death, of whatever marriage,(u) including posthumous children,(v) or, at least, to such of them as have not renounced or been forisfamiliated.(w) Illegitimate children are not entitled to legitim, as such children in the eye of the law have no father.(x) But children legitimated by the subsequent marriage of the parents are legitimate for all purposes. (y) The 'right does not transmit to grandchildren, as the law of representation in moveable property, which exists only by force of the statute of 1855, does not apply to legitim; but, once vested by survivance, the claims of children surviving the father pass to their representatives. (2) If there be only one child, legitim is due though such child succeeds to the heritage. (a) An eldest son succeeding to heritage takes no share of legitim if he succeeds to such heritage as heir-at-law of the intestate; but if he succeeds to heritage from a stranger and not alioqui successuru, he is entitled to a share of legitim with the rest. (b) The receipt of legitim by children does not deprive them of their share of what is called "the dead's in the capacity of next-of-kin.(c) (n) Fisher's Trustees, 19th Nov. 1844, 7 D. 129. (0) Kennedy, 2nd Feb. 1864. (p) Bell's Lect. p. 1049. (4) Gourlay, 23rd June, 1864; 2 Macph. 1284. (r) Sime, 1st March, 1804. (s) Ersk. 3, 9, 30. (t) 44 & 45 Vict. c. 21. (u) Henderson, 1634; Mor. 8164. part (v) Jervey, 1762; Mor. 8170. (x) Ersk. 1, 6, 51. (y) Aikman, 3 Macq. App. 854. (z) M'Murray, 17th July, 1852, 14 D. 1048. (a) Howden, 1821, 1, Sh. 14. (b) Breadalbane, 26th May, 1842, 4 D. 1259. (c) Ersk. 3, 9, 17. 104. How Excluded or Diminished. (d)—Legitim cannot be excluded or diminished by any testamentary deed of the father, even where the child is a bankrupt, (e) a pupil or an idiot,(ƒ) or where he misbehaves ;(g) and it cannot be affected by any testamentary bequest, donation, or trust conveyance to another child, and still less to a stranger. (h) But the father may diminish legitim by bona fide alienations inter vivos, (i) by conversion of moveable estate into heritable,(k) or by lending upon heritable security.(1) The legitim was not excluded by a provision in an English marriage contract declared to be a daughter's "portion or fortune,"(m) and it is not diminished by loss incurred by the executor after realisation through the fault of those employed by him.(n) 105. From what Subjects Legitim Payable.(o)—Out of the whole free moveable estate possessed by the father at the time of his death, including succession to which he was entitled, assignable debts, &c.,(p) and also personal bonds, not excluding executors, which are moveable as regards legitim and "dead's part," although heritable after the term of payment as regards the jus relicta and jus mariti, (q) also life policies, although effected on the life of the wife and not payable at the husband's death.(r) But see the effect of the Married Women's Policies of Assurance (Scotland) Act, 1880.(s) 106. Data for Determining Amount of Legitim.-The sworn valuation, made for the purpose of settling the inventory duty, is the proper datum for fixing the amount of the general succession, and the amount of the legitim (subject to division per capita) is determined by deducting from this aggregate fund all the debts for which the father's personal representatives are liable(t)-e.g. provisions to wife (u) and children(v)-under an antenuptial con (d) See note (c), § 94. (e) Allan, 1762; Mor. 8208. (i) Wilson's Trs. 1856, 18 D. 1096. (k) Ersk. 3,9,16; Bell's Prin.§ 1584. (1) Pringle's Trs. 15th March, 1872, 10 Macp. 621; see, also, Titles to Land Consolidation Act, 1868, § 117. (m) Breadalbane, 30th Jan. 1836, 14 D. 309. (n) Dalhousie, 26th March, 1868, 6 Macp. 659. (0) See Note (c), § 94. (p) Breadalbane's Trs. 26th May, 1842, 4 D. 1259; M'Murray, supra. (q) 1661, c. 32. (r) Pringle's Trs. supra. (t) M'Laren, §§ 247-48. 226. (v) Dickson, 1678; M. 3944. |