tract-unless given in satisfaction of the legal provisions, which would, in that case, be extinguished (w); postnuptial provisions to a wife, if reasonable and moderate(x); and bonds of provision to children, if delivered or payable before father's death(y); also, it would appear, if payable after death(); funeral expenses, and mournings to widow(a); and aliment till the next term after the husband's death(b); expenses connected with the birth of a posthumous child(c); and the expenses incurred by the executors, including confirmation, inventory duty, (d) &c. On the other hand, testamentary legacies and such claims form burdens upon the dead's part only.(e). 107. How Legitim Discharged.-By the express declaration. of parents in their antenuptial contract; or an individual member of a family may discharge by his own deed(ƒ); and this generally takes place in practice on the occasion of his or her marriage. A discharge of legitim, in order to be effectual, must be so conceived as to bar the claim. (g) It is not to be implied unless made in express terms(h); thus the receipt by a daughter on her marriage in English marriage articles for a sum from her father as "her portion or fortune," was held not to discharge the legitim(i), nor an acknowledgment by a daughter of sums conveyed to her on her marriage in part of her patrimony.(k) But legitim is constructively discharged where, in an antenuptial contract, the whole of the parents' moveable estate is settled upon the children of the marriage, or subject to a power of division, express or implied(); or upon the wife in liferent and the children of the marriage in fee(m); or even upon the wife in fee simple.(n) 108. How Legitim Satisfied.-By acceptance of a testamentary provision declared to be in lieu of legitim; or by acceptance of a provision in a general settlement disposing of the whole moveable estate;(0) or the right may be extinguished where the claimant is heir-at-law to his father and succeeds to the heritable estate;(p) or the right may be satisfied or compensated by advances to a child by the father during his lifetime on account of legitim. The children can elect between the legal claim of legitim and the conventional provision. (9) 109. Effect of Discharge of Legitim during Father's Life.If by all the children, such a discharge leaves the moveable estate on the father's death to be equally divided between the wife and his representatives; or, if the wife be already dead or have accepted a conventional provision in lieu of her jus relictæ, it converts the whole free moveable estate into dead's part(). But where only one or some of the children have discharged (whether by antenuptial contract or by the acceptance of a provision inter vivos), this has not the effect of increasing the dead's part, but of increasing the fund for division amongst the remaining children entitled to legitim.(s) Where a child has expressly discharged his claim of legitim during his father's life, he is said to be foris-familiated.(t) 110. Effect of Discharge of Legitim after Father's Death.— Whether by one or all of the children, operates as an assignation or discharge of the share or shares of legitim to the person entitled to the residuary right of succession.(u) 111. Advances by Father to Children. (v)—Application of the doctrine of collatio bonorum inter liberos.-This doctrine only arises between children who have claimed legitim, and it can have no place when legitim is renounced. The principle on which the rule of law rests was stated by the Lord Justice-Clerk in a recent case thus(w): "If a father during his lifetime make advances to one of his children on the ordinary footing of debtor and creditor, such advances must be repaid as ordinary debts whether legitim be claimed or no. But if the advance is made without any right reserved by the father to demand, or obligation on the recipient to (0) Wilson's Trs. 1st July, 1843, 15 Jur. 549. (p) Anstruther, 20th Jan. 1836, 14 Sh. 272; Fisher's Trs. 5th Dec. 1850, 13 D. 245. (q) M'Laren, § 263. (r) Ersk. 3, 9, 23. (s) Hog, 7th June, 1791, M. 8193; Panmure, 28th Feb. 1856, 18 D. 703. (t) See § 62. (u) Fisher, 6th April, 1843, 3 D. 1181. (v) For rules in Mackenzie's Inst. see § 36; in Erskine's, §§ 63, 64. See also rules in English Law, § 218. (w) Monteith, 28th June, 1882, 9 R. 982. repay the amount, such sums form no part of the father's moveable succession. He has parted with the money for good, and excepting in one event, the other children have no concern with it. If the recipient claim a share of legitim, then arises the equitable obligation which the term collation imports, that the sums received by the claimant during the father's lifetime shall be taken into computation that is, collated. But if the child renounce his right to claim legitim, the other children have no interest in these advances." In the same case it was held that tocher given to daughters in their marriage-contracts was not to be reckoned in ascertaining the amount of the fund from which legitim was payable, chiefly on the ground that the doctrine of collatio bonorum inter liberos applies only when more than one child claims legitim. All sums advanced by the father out of the fund from which legitim comes to any child, or for his or her behoof, must be collated and imputed as part of the legitim(x), though no written acknowledgment has been given(y); unless such sums shall appear to have been intended by the father as a prœcipuum(2); such cases yield to proof.(a) Advances for the purchase of a commission in the army,(b) or advances for which no obligation for debt is taken,(c) or advances entered in the father's books as gifts, (d) or advances for setting a child up in trade, or for a settlement in life, or for a marriage portion, must be imputed to legitim, (e) and accounted for with interest by the child from the day he received the advance; (f) and so, also, it would appear, must unpaid provisions constituted by antenuptial contract, and not declared to be in satisfaction of legitim. (g) But neither aliment, nor the expense of education, nor inconsiderable presents, nor remuneration for services performed or yet to be executed, (h) nor, generally, money received in loan requires to be collated.() The right to require collation of advances pertains exclusively to the claimants of legitim ;(k) and such claimants are not bound to collate with the widow.(l) 112. Power of Election between Legitim and Conventional Provisions. By the doctrine of approbate and reprobate,(m) children have the option of either accepting conventional provisions, or rejecting them and claiming their legitim.(n) An election made in ignorance of the party's legal rights, or in circumstances not admitting of deliberation, may be recalled.(o) An election made by a minor is reducible on the ground of minority and lesion.(p) A husband is not entitled to elect for his wife, g) nor can creditors control the wife's right of election unless she renounce a larger interest which would have gone to them for a smaller interest secured to herself. (r) The rights of grandchildren under a settlement will not be prejudiced by the children's repudiation of it-thus, where A provides a liferent interest of a subject to B, his son, and the fee to C and D, his grandchildren, the rejection of the liferent provision by B does not affect C and D's right to the fee.(s) So where a father was given the liferent of a fund of which his children were fiars, and he claimed legitim instead, it was held that the income of the fund during the father's life was payable to those whose interests were prejudiced by the payment of the legitim, but that the capital was a separate estate in the children which was not affected by their father's repudiation of the settlement(t). It is not necessary that the gift to the children be separate in form in such a case; if it is substantially a separate and independent interest, the law will protect it, and will not involve the children in the consequences of the parent's election to claim legitim(u). 113. Legitim out of Mother's Estate.-Formerly no legitim was payable out of the mother's estate, but by the Married Women's Property Act, 1881, from and after the passing of that Act "the children of any woman who may die domiciled in Scotland shall have the same right of legitim in regard to her moveable estate, which they have according to the law and practice of (m) Bell's Prin. § 1938; Ersk. 3, 3, 49; Macfarlane, 20th July, 1882, 19 S. L. R. 850. (n) Jack, 21st January, 1879, 16 S. L. R. 326. (0) M'Laren, § 926. (p) Telford, 12th May, 1835, 13 Sh. 735. (q) Buckingham, 15th Dec. 1843, 6 D. 250. (r) Lowson, 15th July, 1854, 16 D. 1098. (s) Fisher, 1st July, 1833, 6 W. & S. 431, & 10 Sh. 55. (t) Jack's Trustees, 21st Jan. 1879, supra; Fisher v. Dixon, 6 W. and S. 431. (u) Snody's Trustees, 9th Feb. 1883, 20 S. L. R. 392, Scotland in regard to the moveable estate of their deceased father, subject always to the same rules of law in relation to the character and extent of the said right, and to the exclusion, discharge, or satisfaction thereof, as the case may be." 114. Dead's Part (v)-Is that portion of a person's free moveable estate which he or she can validly dispose of by settlement, and which, failing disposal, falls to children or other personal representatives. The amount of the dead's part varies according to circumstances. I. In the Case of a Man Dying. (1.) Survived by wife and child or children, one-third (w) ... ... is dead's part. Special provisions in a contract of marriage may, however, increase or diminish the dead's part; or the same consequence may result from renunciations or discharges of their legal rights by the wife or children. (a) Where valid renunciations or discharges of their legal rights have been granted by ... ... ... the whole(b) is dead's part. (2.) Wife but not the children (3.) Children but not the wife As before observed, (e) where the renunciation, forisfamiliation, or discharge during the father's life is by some of the children only, the legitim thereby set free accrues to the other children, and even to the heir if he be the only other child, and does not fall into the dead's part. II. In the Case of a Woman Dying. 1. Previous to 18th July, 1881. is dead's part,and in the first (a) $$ 95, 96, 104, 107, 108. (d) Bell's Prin. § 1590. (f) 18 Vict. c. 23, § 6. |