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ready noticed in regard to the distribution of the dead's part by the customs of those places. (n)

It now differs in an important way from the rules of distribution by the customs of the province of York and city of London, as controlled by the statutes of distribution; in these, as it has been already seen, the widow not only takes her pars rationabilis under the custom, but her distributive share of the deadman's part under the statutes. (0)

3. If he die leaving only a wife, and no child or children, the division becomes bipartite; one moiety of the free personal estate, in such case, being jus relicta, shall go to the widow; the other is dead's part, subject as before to the will or testamentary disposition of the father, if he made such; or if he made none, to go to his next of kin, according to the law of Scotland. (p)

4. If he die, leaving only a child or children, and no wife, the division (subject to what may belong to those entitled in right of the predeceasing wife) shall also be bipartite; the child, or children, taking one moiety as legitim; the other, being dead's part, subject to the will or testamentary disposition of the father; and if he have made no will or testamentary disposition, then to go to such child or children as his next of kin. (q)

5. If the marriage be dissolved by the death of the wife, the share which would have formed her jus relicta, if she had survived, shall go

(n) Supra, p. 340.
(p) Erskine, b. iii. tit. 9, s. 19.

(0) Ibid. p. 355.

(9) Ibid. b. iii. tit. 9. s. 19.

in such way as she may have directed by any will or testamentary disposition made by her, in relation to this share of the goods in communion, which she is empowered to make during the subsistence of the marriage without the husband's concurrence or consent (r); and in case of her death intestate, her said share shall descend as her absolute property to her children by her last or any former marriage; and if she have left no children, then to her other next of kin. (s)

In regard to the power of a wife to make a will during the subsistence of the marriage, the law of Scotland differs entirely from the law of England, as well the general law, as the local and customary law, of that country.

I see no limitation to this testing power of the wife: she could execute it to the prejudice of her children, or of them, and in favour of strangers.

any

No legitim is due to children at the death of their mother out of her share of the goods in communion. Thus the whole is in the nature of dead's part in the mother, and entirely subject to her testing power. (†)

If the children or any of them shall be under age at the death of the mother, and if there be no will of hers to the contrary, the shares of such minor children shall remain with their father as administrator for them. (u)

The father is entitled to such administration for their

behoof till they respectively attain to twenty-one years of age; but this power of administration cannot extend to the shares of children of the wife by a former marriage. (x) It has rarely happened that any question has been made in

(r) Erskine, b. i. tit. 6. s. 28.

(t) Ibid. b.iii. tit. 9. s. 21.

(s) Ibid. b. iii. tit. 9. s. 21.

(u) That is, administrator in the sense of the civil law, or manager. (x) Erskine, b. iii. tit. 9. s. 21.

the courts of law in Scotland in regard to this right of administration in the father, or the obligations to which this would subject him in regard to his children. It did occur, however, in the case of Lashley v. Hog, already stated (y); but various questions which might have arisen, upon that subject in that case, were settled extra-judicially, and by way of compromise between the parties.

It seldom occurs that any great succession falls to the collateral relations, as the next of kin, of a deceasing wife, for her share of the goods in communion. But cases

might be suggested where the present rule of law in Scotland would be attended with strange consequences: a wealthy capitalist might marry a person of inferior condition without a contract; or a person from England might fix his domicil in Scotland, without any provision, by ante-nuptial contract, in regard to the rights of a wife according to the law of the latter country; if in such case the wife should predecease the husband, her next of kin would be entitled to the half of the personal estate, or goods in communion, and would take the same from the surviving husband. (2)

There is an intricacy in the law in regard to the succession in heirship moveables (a), which may be here noticed. Where the husband predeceases, neither the widow nor younger children can claim a right in any part of the heirship moveables, because these then belong to the heir.

(y) Supra, p. 144.

(z) Some years ago, a case of this kind, from Scotland, which was under consideration at the legacy-duty office in London, excited the surprise of the then intelligent comptroller, Mr. Campbell; he had not been aware that such a rule of law existed. The next of kin of the wife resided in Ireland, and upon her death, took half the personal estate of the husband living in Scotland. There was no lawsuit as to this; it was settled by the opinions of counsel.

(a) Similar to heir-looms in England. Supra, p. 309.

But where the wife predeceases the husband, her next of kin are entitled to a share of the whole moveables, without deducting any part as heirship, because heirship is a certain share of the moveable estate at the time of the death of the husband; and, therefore, while he is alive, he can have no heirship. (b)

6. There is no succession in the law of Scotland by affinity thus a husband and wife never succeed to the personal estate of each other, nor can the separate relations of the one succeed to those of the other. On the dissolution of a marriage, each takes that share of the goods in communion to which he or she is entitled; and the respective shares of the parties thus taken, in case of intestacy, devolve to their respective nearest in blood, or next in kin, according to the law of Scotland. (c)

It has been already seen, that very different rules upon this subject exist in the province of Canterbury, as well as in the province of York and city of London. (d) In England, upon the death of a wife, the whole of the personal estate, which had fallen under the marital rights of the husband, remains with him as his own. On the death of the husband, the wife has certain rights under the statutes in the province of Canterbury; and her customary rights, as well as her statutory rights, in the province of York and city of London. The rights thus vested in the wife by the death of the husband, in case of intestacy, devolve to her next of kin, whether her children or other relations. And there, as in Scotland, no kindred is to be deduced by affinity; and no part of the personal estate to

(b) Erskine, b. iii. tit. 9. s. 21. (d) Supra, p. 317.

(c) Bankton, b. iii. tit. 4. s. 28.

which the wife has succeeded shall go to the next of kindred of the husband, except in regard to his children or descendants, who are also the children or descendants of the wife. (e)

7. Legitim is due only to children existing at the time of the father's death, and not to grandchildren, or other remoter descendants: thus, upon the death of a father leaving a wife, and only grandchildren or other remoter descendants, the division of the goods in communion shall be bipartite, one half to the wife, the other half dead's part; and if in such case there be no wife, the whole shall be dead's part. (ƒ)

In this respect the rules of the law of Scotland appear to agree with the rules in England, in the province of York, and in the city of London, in regard to the customary and orphanage shares of children, and the division of the personal estate, where there are no children, but only grandchildren or remoter descendants. (g) In all of these the rules of distribution are less equitable than those which obtain in the province of Canterbury, and which allow the right of representation in every case of descendants of different degrees entitled to share. (h)

8. The rights of a widow to her jus relictæ, and of a child to legitim, were always vested on the death of the husband and father; these did not fall to them as rights of succession, but belonged to them of their proper right, as their respective shares

(e) Supra, p. 335.
(g) Supra, p. 347. 360.

(ƒ) Erskine, b. iii. tit. 9. s. 17 (h) Supra, p. 321.

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