It is, however, under the law prior to 18th July, 1881, hardly correct to speak of a husband succeeding to the moveable property of his wife on her death. Rather was it that the moveable property of the wife was vested in and belonged to the husband jure mariti as his own property, and at the death of his wife neither her children nor her relatives had any claim thereto. Upon the death of a wife, survived by her husband, her next-of-kin, by the Intestate Moveable Succession Act of 1855(h), had no right to any share of the goods in communion. This, however, did not deprive her children, or her nearest heirs, of her paraphernalia, consisting of her dress, ornaments, and jewellery peculiar to a wife's person, and chest of drawers appropriated to a wife's clothes; which paraphernalia, on a wife's death, descended to her children or nearest heirs and did not fall under the jus mariti of the husband(). 2. Subsequent to 18th July, 1881. Since the passing of the Married Women's Property (Scotland) Act, 1881 "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." Likewise the children of any such woman shall have the same right to legitim out of the moveable estate of their deceased mother as they have out of the moveable estate of their deceased father. Consequently, where the jus mariti is excluded, the dead's part in the case of a woman's intestacy is now the same as that of a man's intestacy. 115. Who Succeeds to Dead's Part.-As a general rule the dead's part passes to the next-of-kin of the intestate, but the heir in heritage is not entitled to a share unless he collate.(k) The doctrine of collation being afterwards explained,(1) it is sufficient here only to remark that the heir in heritage is not entitled to a share of the dead's part unless he collate, or unless he succeeds alioqui successurus, or is the only child of the deceased. Where the wife and children, or the children merely, have (h) § 6. (i) See § 119. (k) Ersk. 3, 9, 19, and 3, 9, 3. renounced their legal provisions, they are still entitled to their share of the dead's part; but the widow takes no share of the dead's part(m), nor do the wife's children of a former marriage take any share of the husband's estate. (n) 116. Vesting of Dead's Part.-Formerly confirmation was necessary to vest the dead's part in the next-of-kin; but now, if children survive their parent and die without confirming as executors, their right has vested, and will transmit to their executors.(0) 117. Peculium is a fund excepted from the communion of goods, and consists of money or articles secured or gifted to the wife, and which thereafter remain her exclusive property.(p) The fund may be secured in either of the ways stated under jus mariti.(q) But in marriages contracted after 18th July, 1881, and where the husband had at the time of the marriage his domicile in Scotland, the distinction of peculium would seem to lose its importance, as the whole moveable or personal estate of the wife, whether acquired before or during the marriage, shall, by operation of law, be vested in the wife as her separate estate, and shall not be subject to the jus mariti. 118. Forisfamiliation takes place when a child has received something in satisfaction of the legitim, and discharged the legitim.(r) 119. Paraphernalia.-This is the term applied in the law of Scotland to the wife's dress and the ornaments proper to her person.(s) Such articles, where in keeping with the status of the wife, the law regards as peculiarly her property, to be descendible to her own heirs, and not to be attachable by the creditors of the husband. A chest of drawers or wardrobe appropriated to a wife's clothes was held to be paraphernal,(t) but not articles of household furniture, such as bedstead and bedding, table-linen, mirror, lady's work-table, dressing plate, tea-plate, &c.(u) Although paraphernalia were the property of the wife, they were not at her disposal inter vivos without her husband's (m) Ersk. 3, 9, 23. (r) Bell's Prin. §§ 1583, 1587. (s) Bell's Prin. § 1555. See (t) Cameron, 5th Feb. 1876. § 90 for definition of paraphernalia given by Lord Deas. (u) Bell's Prin. § 1557. Black, 24th November, 1803. consent, but she might bequeath them by will. Under the Married Women's Property (Scotland) Act, 1881, it may be doubted how far the distinction of paraphernalia now holds in marriages contracted after the passing of that Act, and where the husband had at the time of the marriage his domicile in Scotland, seeing that the whole moveable or personal estate of the wife, whether acquired before or during the marriage, is now vested in the wife as her separate estate, exclusive of the husband's jus mariti. But assuming that Act not to do away with the distinction of paraphernalia, it would seem that a married woman cannot inter vivos sell, dispose of, or pawn her paraphernalia without her husband's consent, the law apparently presuming that the husband has an interest in seeing his wife well-dressed and her jewellery protected. A question may arise under the Married Women's Property (Scotland) Act, 1881, in determining the amount payable to a husband as the equivalent of the jus relicta out of the moveable estate of his deceased wife whether paraphernalia is to be excluded from the moveable estate; but it would rather seem that as no distinction holds in the case of the husband's jewels, no such distinction would hold in the case of the wife's jewels; and paraphernalia in a question with the husband at his wife's death, would fall to be treated as part of her moveable estate. 120. Collation between Heirs and Personal Representatives.(v)-Where the property of an intestate dying domiciled in Scotland consists partly of heritage and partly of moveables, the heir in heritage, provided he succeeds by disposition of the law, has no share of the moveable estate if there be another or others as near in degree to the deceased as himself, unless he chose to collate-i.e., throw the heritage, or, in the case of an heir of entail, the value of his life interest in the estate, into the common stock or executry, and take an equal share of the aggregate with the legal representatives. This is a privilege which the heir can exercise when he finds it to be for his interest, but in a question with creditors he may be compelled by them to collate when his doing so would increase the value of his interest in the succession.(w) The doctrine of collation applies to collaterals as well as to descendants.(x) (v) Ersk. 3, 9, 3; M'Laren, § 292; 1 Bell's Com. 5th Ed. 100; Prin. § 1910. For rules in Mackenzie's Inst. see § 36; in Erskine's, § 54. (w) 1 Bell's Com. 5th Ed. 104. (a) Ersk. 3, 9, 3. 121. Subjects of Collation are, on the one hand, the whole of the free heritable succession,(y) including leases, even though they exclude assignees,(z) and also heritage situated in any other country to which the heir so claiming succeeded as heir under the law of such country(a); and, on the other, the whole of the free moveable succession upon which the heir has a claim-i.e., dead's part or legitim, or both, as the case may be.(b) 122. Mode of Collating Heritage. By the heir and personal representatives completing their respective titles, and dividing the aggregate heritable and moveable succession, (c) the data of value being taken as at the date of the opening of the succession.(d) The heir may, in his option, retain the heritage if he communicates to the personal representatives the value of it, or of his interest in it after deducting any debts and provisions affecting it. (e) The fact of the collation will not alter the character of the property from heritable to moveable, except where it is sold.(ƒ) Where the heritable estate is heavily burdened, and the heir conveys in forma specifica, the debts and provisions which affect it will form a burden upon the common fund.(g) 123. What Heirs Entitled to Collate.-The right belongs only to the heir of line or the heir-at-law. (h) Formerly, the heirat-law was not entitled to collate unless he was next-of-kin(i); but now, by the Moveable Succession Act, where B, a person predeceasing his ancestor A, would have been heir, B's child being B's own heir-at-law is entitled to collate, and if B's child refuses to collate, the brothers and sisters of B's child and their descendants in their place, shall have right to a share of the moveable estate equal in amount to the excess in value over the value of the heritage of such share of the whole estate, heritable and moveable, as their predeceasing parent, had he survived the intestate, would have taken on collation.(k) Heirs-portioners succeed equally to the heritable as well as the moveable estates, and this is practically collation, although the division is not generally assigned to the operation of that doctrine, but to the law of equal distribution in (y) Pollock, 1667, M. 5402. (z) Fisher, 5th Dec. 1850, 13 D. 245. (a) Dundas, 14th Jan. 1829; 1 Jur. 7, M'Laren, § 295. (b) M'Laren, § 296. (d) Fisher's Trs. supra. (e) Fisher's Trs. supra (f) Hodge,22nd Nov.1879,7 R.259. (g) M'Laren, §§ 309-14. (h) Bell's Prin. § 1911. (i) Ersk. 3, 8, 77. the female line.(1) But when the heirs-portioners are not the sole next-of-kin, the doctrine applies.(m) An heir alioqui successurus is not entitled without collating to a share of the moveables- (1.) Though the heritage should be given to him as a gift by way of testamentary settlement, or by deed inter vivos.(n) (2.) Though the heritage be situated abroad.(o) (3.) Though he should succeed under a deed of entail(p); and in the case of female heir of entail she must collate with those who are next-of-kin but not heirs-portioners(q): all that an heir of entail is bound to communicate are the rents falling to himself, or the value of his life interest.() But an heir who is one of the next-of-kin, or a child of one of the next-of-kin, in order to enable him to claim a share of the moveables, is not obliged to collate heritage which is not his by disposition of the law. (s) Hence he is not bound to collate(1.) Where he takes heritage from a stranger.(t) (2.) Where he takes as heir of provision, not being heir alioqui successurus-e.g., a younger son is not bound to collate his provision with the dead's part or legitim.(u) (3.) Heritable and moveable successions derived from different sources-e.g., where the last heir died in apparency and the title of the heir-at-law was made up by service to a remoter ancestor.(v) (4.) Where he is heir of entail and not heir alioqui successurus.(w) (5.) An heir-at-law who is also sole next-of-kin is not bound to collate with the widow. (a) There is also no obligation to collate heritage coming from the mother in order to entitle her heir to participate in the moveable estate of the father, nor vice versa.(y) 124. Division of Rents, &c., between Heir and Executor.The law on this subject was altered in the year 1870; but, as (1) Rickart, 1720, M. 2378. (m) Balfour, 1793, 3 Pat. 300. (n) Fisher, 19th Nov. 1844, 7 D. 129. (0) Dundas, supra. (t) Spalding, 11th Dec. 1812; Hume, 119. (u) Buccleuch, 1677, M. 2369. (v) Russell, 7th June, 1822, 1 Sh. N. E. 435. Estates now vest in heir (p) Breadalbane, 16th Aug. 1836, by survivance, see § 267. |