of the goods in communion; and as to them confirmation was not necessary to vest the rights of the parties, as it formerly was in all other cases of succession in personal estate by the law of Scotland. (2) In England, in every case of succession in personal estate, a right accruing has become instantly vested, except in regard to the orphanage shares of children under age, according to the custom of London, which do not become vested in the minors, but go over to their brothers and sisters if they die under age. (k) 9. The rights of a widow to her jus relicta, and of children to their legitim, may be barred by reasonable provisions settled upon the wife and children in an ante-nuptial contract of marriage, with an express exclusion of the legal rights of the widow to her jus relictæ, and of the children to their legitim or other legal rights. The parties in such case are respectively only entitled to their conventional provisions; and, after satisfying such conventional provisions, the remainder of the personal estate is of the nature of dead's part; and the dead's part shall comprehend the shares of the party or parties so barred (). This power of barring the legal rights of a wife and children, by an ante-nuptial contract of marriage, must have rendered the operation of the law of reasonable partition among the widow and children much less extensive in its operation than it otherwise would have been. Clauses (i) Erskine, b. iii. tit. 9. s. 30. (k) Supra, p. 361. to this effect are of common style in contracts of marriage in Scotland. (m) When such clauses are introduced into an ante-nuptial contract of marriage in Scotland, the father can make a will, or testamentary disposition, of his whole personal estate, subject to his debts and obligations; and, amongst other obligations, to the conventional provisions given to his wife and children. 10. In every case of moveable succession, the person taking any part of the heritable estate of the same ancestor or relation, the succession to whose moveable estate is in question, as heir of line or heir alioqui successurus, is excluded from any portion of such personal estate, unless such person be the sole next of kin of that degree; but it is the privilege of every heir, if he shall see fit, to collate, or bring the heritage into general account with others in the same degree, and thus to receive his share of the mixed estate. If the heir be the sole next of kin, such heir shall take the whole personal estate also. This rule as to collation applies to collateral, as well as to direct succession. The collateral heir is excluded from the personal estate of his kinsman, if there be any other in equal degree, unless such heir collate the heritage. (n) This differs entirely from the rules of the province of Canterbury and those of the city of London; and it differs from those of the province of York in several particulars. (0) (m) 1 Juridical Styles, p. 6. (n) Erskine, b. iii. tit. 9. s. 3. While this treatise is in the press, important questions are under discussion (in the Anstruther and Breadalbane cases), whether the heir of line, or heir alioqui successurus, be called upon to collate more than what he takes exclusively in those characters. (0) Supra, p. 343. The disability of the heir in the last-mentioned province extends only to the succession in the personal estate of the father, and it has no place in regard to the succession to any other ancestor, or in collateral succession. The heir in that province has no power of collation, nor apparently of rejecting a succession devolving upon him by the law. It has been seen that in the province of Canterbury, and by the custom of London, the heir, taking the real estate, is entitled to his share of the personal estate, along with the other children. (p) 11. The right to legitim may be released by the express discharge of the child for an onerous consideration, or by the child's accepting a provision, having a condition annexed to it, of renouncing the legitim; and the discharge of legitim by a child has the same effect towards the other children's rights as if such child had never existed; and if all the children discharge, the effect upon the rights of the other parties, is as if no children had ever existed. (q) 12. For preserving an equality among the children in the distribution of the legitim, any child who shall have received a provision of personal estate from the father, not only by a tocher or other provision in his or her marriage contract, but by any sum of money actually advanced to this child, or for his or her behoof, shall collate the same with the other children, and impute it in part of the legitim. But the father may, by any bond or instrument, declare that such advances shall not affect the right to legitim; and the right to legitim (p) Supra, pp. 324. 357. (9) Erskine, b. iii. tit. 9. s. 23. shall not be diminished by any legacy of the father out of the dead's part; nor by any grant or settlement of real estate to a younger child; nor shall the expense of maintenance, education, apprenticeship, or the like, be deducted from the legitim. (r) Apparently, the rules in regard to the collation of personal estate among children in Scotland, in cases of provisions given to them, do not materially differ from the rules obtaining in England, in regard to the bringing the advancements of personal estate given to children into hotchpot. But the law of Scotland differs from the rules in the province of Canterbury and in the province of York, in regard to the advancements by means of real estate to younger children. In the two latter, as has been already seen, a younger child may be advanced by the father out of his real estate, and such advancements must be brought into hotchpot. (s) But in Scotland, a grant or settlement of real estate on a younger child is not to be brought into collation; and in this respect the law agrees with the rules upon this subject under the custom of London. (t) 13. In case a father die intestate, leaving a widow and children, although the children may have renounced their legal provisions of legitim, they are still entitled to their shares of the dead's part as the next of kin of the father; and in the dead's part the widow, in such case, takes no share. (u) (r) Stair, b. iii. tit. 8. s. 45.; Erskine, b. iii. tit. 9. s. 25.; Bell's Principles, 442, 443. (s) Supra, pp. 326. 344. (u) Erskine, b. iii. tit. 9. s. 23. (t) Supra, p. 357. In regard to this rule, there is this difference between the law of Scotland and the customary law in England, that the widow in England would take her own share by the custom, and would be further entitled to her share of the dead's part under the statutes of distribution. (x) 14. In every case of succession to personal estate, the same is divisible per capita to those who are next in degree of blood, or next in kin to the deceased according to the law of Scotland, and never per stirpes; and no right of representation is allowed in the succession to personal estate among descendants or collaterals, in competition with those who are nearer in degree. (y) It is singular that this very inequitable rule should subsist in full force in Scotland at this day. In this way immediate children surviving, exclude grandchildren by a child predeceased; and where there is no issue of the deceased, if there be brothers or sisters surviving, and children by brothers or sisters deceased, the latter would be entirely excluded. This rule applies not only to legitim, but to every other share of personal estate in Scotland, coming from any ancestor or other relation. In England, grandchildren also are excluded from the customary shares of their parents, according to the customs of the province of York and city of London; and in this respect these customs resemble the rules of the law of Scotland in regard to legitim. But according to the statutes of distribution (founded upon the 118th Novel of Justinian, c. 1.), representation is allowed in England among descendants to the remotest degree. Among collaterals, it (x) Supra, pp. 340. 355. (y) Erskine, b. iii. tit. 9. s. 2. |