is thus obliged to collate the heritage with the other next-of-kin, in order to have the benefit of the moveable succession.(u) Where, therefore, in the case of daughters only, the heritable estate is settled on the eldest by an entail or destination, she is entitled, upon her father's death, to her just share of the moveables, with the other daughters, without collating that estate; for she succeeds to the heritage by the provision of the father, who had full power over it; and that provision can in no degree affect the moveable estate, which, by the legal succession, descends equally to her and her younger sisters.(v) 55. Who can make a Testament? No Testament can be made in prejudice of the jus relicta or legitim."—"All who are capable of consent may make a testament; (w)... but there are few who have so absolute a power over their estate that they can test upon the whole of it. Where a person has either wife or child, a certain portion of his moveable estate hath from our earliest times fallen upon his death to the widow, and a certain portion to the bairns or younger children, of which, therefore, he cannot dispose by will. The share belonging to the widow is called jus relicta,(x) and that which falls to the children is sometimes, from the Roman Law, styled the legitim,(y) or the portion given them by the law, and sometimes their portion natural or bairn's part of gear. . . . From hence it appears that the rights thus arising to the wife and children are truly rights of division of a common subject;(z) for so soon as the communion which is formed by the marriage ceaseth by its dissolution, the society goods fall to be divided. It is true that the interest of the wife in those goods, as well as that of the children, lies dormant during the husband's life, who, therefore, in (u) The legal heir, even where he does not actually take ab intestato must collate every subject wherein he is heir alioqui successurus; however, he may take it if he wishes to collate. In the case of an heir of entail, he is bound to communicate only the value of his life interest; but in the case of a fee-simple heir, it would appear that he must convey the heritage, and not merely account for its value, Edition 1871, p. 991. (v) This is correct where the heirs13, 9, 15. portioners are sole next-of-kin; but where they are not so, the eldest heir-portioner succeeding as heir of entail must collate, Edition 1871, p. 991. For rules in Mackenzie, § 36; Bell, § 73. (w) See § 78. (z) These rights appear to be rights merely of debt against the husband's executors, § 89. 23, 9, 16. consequence of his superiority over the wife, and of his right of administrating for his children, can not only alienate them for a valuable consideration, but make a present of them to whom he will, provided the deed be not granted in fraudem of those legal rights."(a).. 56. Legitim is due only out of the Estate belonging to the Father at his death.(6) To whom is it due ?_"No legitim can be claimed by children but out of the moveable estate belonging to their father at the time of his death, so that there is no room for it upon a mother's death (c) though she should survive her husband, not even out of that part of the goods in communion which she had received jure relicta upon her husband's death, for her share of these became, upon the division, her own absolute property.(d) Secondly, Children who are forisfamiliated [i.e., those who, by having already received from their father their share of the legitim and discharged it, or by their renouncing it without real satisfaction, are no longer accounted children in the family] are not entitled to legitim.(e) It is due to immediate children only, and not to grandchildren or remoter descendants, either because the law considers the legitim as a right so personal to the child himself that, unless he claim it during his lifetime, it falls by his death; or because a presumtio juris et de jure arises, from the immediate father not claiming it, that he had renounced it before his death. upon receiving his just share of the effects of his father.(f) All the husband's children, of whatever marriage they may have been procreated, are equally entitled to a legitim on their father's death; for as children have no such claim on the death of their mother, (g) the children of former marriages would be entirely cut off if they were not entitled to a legitim equally with the children of that marriage which was dissolved by the father's death."(h) 57. Dead's Part." What remains over the jus relicto and the children's legitim is the absolute property of the deceased, of which he has the free disposal, even to a stranger, not only in liege poustie, but by testament etiam in articulo mortis; and it is called the dead's part, because the deceased had full power over it.(i) Where a person has neither wife nor child, all his moveable estate is dead's part, and consequently may be devised by testament.() This dead's part, if it was not disposed of by will, was, by our ancient law (St. Gul. c. 22) committed to the care of the bishop of the diocese, or ordinary, who began about that time to be looked upon as the legal trustee of the moveables of deceased persons. The bishop, in the exercise of that trust, sometimes applied them to pious uses, and sometimes retained them to himself, to the exclusion of the next-of-kin, even when the deceased died in pupillarity, and so was incapable of making a will, or of discovering any purpose concerning his succession. () To put a stop to such illegal and oppressive practices, it was enacted by 1540, c. 120, that where one died so young that he was not capable of testing, his moveable estate should go to his next-a-kin; and this Act was soon extended by custom, with universal approbation to the case of persons of full age dying intestate."(m) 58. Division where one leaves a Widow and Children.2 "If one, upon his death, leave a widow and no children, the goods in communion(n) divide into two equal parts; of which one goes to the widow, and the other is dead's part. The words used in the language of our law for expressing this, are, that the testament(o) of the deceased divides in two; which, however, is improper; because nothing ought to be denominated a testament but what may, at least, be the subject of a testament; in which sense it is the dead's part only which deserves that name, as that alone can be tested upon. If the deceased has left children, one or more, but no widow, the testament is also bipartite; for the children get one half as legitim, the other half is dead's part, which, if it be not actually tested upon, goes also to the children in the character of next-of-kin. If he leave both widow and children, though all his children should have been of a former marriage, the division is tripartite; the widow takes one-third by herself, another third goes to the children equally among them as legitim, and the remaining third is the dead's part. Nay, if he leave a widow, and but one child, who succeeds to his heritage, still the society-goods divide in three, because such only child is entitled to a legitim. Though the proper subject which falls to the heir is the heritage, the moveables being the fund intended by the law for providing the younger children, yet the heir's right of legal succession to his father's heritage cannot preclude him from his natural right, as the only child, to his father's moveable estate. Neither is the circumstance of his being an only child a reason for enlarging the widow's share from a third to a half."(p) 59. Where the Wife has renounced her jus relicto.1-"When a wife, in her marriage contract, renounces her jus relictæ,(q) by the acceptation of a special provision in satisfaction or in full of it, such renunciation is considered, not as a conveyance of her third to her husband, so as to increase the dead's part from one-third to two-thirds. It has the same effect as her death, so as to make the husband's testament divide in two-the one half legitim and the other the dead's part. The reason is, the wife's right is not of the nature of a debt, which may be transferred by the wife to the husband, it is a right of division which takes no place till the dissolution of the marriage ;(7) and as this right is extinguished by the pre-decease of the wife, because after her death she cannot be reckoned in the division, it must be also extinguished by her renunciation. A widow who has renounced cannot concur in the (p) See Table under heading of this séction, § 130. For rules in Stair see § 19; Mackenzie, § 34; Bell, § 72. (q) See §§ 95-98. (r) This reasoning controverted by Dr. Fraser, see § 89. 1 3, 9, 20. E division; and in every case where the widow cannot concur, the legitim is the half of the executry.”(s) 60. Division where Wife predeceases.-"Upon the dissolution of a marriage by the pre-decease of the wife without issue, the goods falling under communion(t) divide in two: the one half is retained by the surviving husband, who was one of the socii, and who, standing the marriage, had the absolute management of the whole; the other half, being the share falling to the wife, the other partner, upon the division of the society-goods, descends, as her absolute property, to her next-of-kin. (u) A bipartite division ought also to be made in a testament where the predeceasing wife leaves issue of the marriage; for it is certain there is no room for a proper tripartite division, except in the case of a legitim, and that is neither due to children out of the mother's effects, nor out of those of the father so long as he is alive.(v) Even in that case, however, the society-goods (w) are, by our practice, divided in three, in the same way as on the predecease of the father leaving issue. (a) Two thirds therefore remain with the surviving father, as if one of the thirds were due to him proprio nomine, and another as legitim, to the administration of which he is entitled for the behoof of his children; the remaining third, being the wife's share, divides in capita among her children, whether of that or any former marriage, for all her children are equally her next-of-kin.(y) The children of the last marriage appear entitled, if they are of perfect age, to insist against the surviving father for the present payment of their several proportions of the share falling to their deceased mother; for it falls to them, not as legitim-which is due only out of their (s) Where the renunciation is made after the husband's death, this does not increase the legitim but the dead's part, § 98. (t) See note (r). The wife's moveable estate does not now fall under the jus mariti. And on her death it is divisible like the husband's moveable estate, § 90. (u) This right of the wife's next-ofkin was taken away by the Intestacy Act, 1855, see § 74. But see note (v) below. (v) The wife's personal estate is 13, 9, now vested in herself, and on her death is subject to a claim by the husband corresponding to the jus relictae, § 99, and to a claim by the children for legitim, § 113. (w) This term not now applicable, $ 89. (x) See note (t). (y) The wife's whole personal estate now divisible thus:- One-third to husband, one-third to children as legitim, and one-third to them as next-of-kin, §§ 114, 99, 113. 21. |