was deemed necessary to stop somewhere; and thus, amongst them, representation does not extend beyond brothers' and sisters' children. This was adopted in England from c. 3. of the same Novel of Justinian. (2)

15. In every case of intestate succession among collaterals, the kindred of the full blood shall exclude those of the half-blood in the same line of succession. (a)

Thus brothers and sisters german, and their issue, exclude brothers and sisters consanguinean and their issue ; but brothers or sisters consanguinean, and their issue, will bar the father, or his brothers and sisters, though of the full blood.

This, as has been already seen, totally differs from the rules of succession in England. In Scotland, kindred is to be deduced only through a father and paternal ancestors. But of the kindred through the father, some may be of the full blood, as brothers and sisters german; and some of the half-blood, as brothers and sisters consanguinean.

Upon this subject the doctrine, as laid down in Erskine, does not appear to go to the full extent of the present rule. He says (b)," Yet in questions between the full and the half-blood, representation is admitted even in moveables. Thus where one deceased leaves a sister consanguinean, or by the father only, and a nephew by a sister german, or full sister predeceased, the nephew, though more removed by one degree from his uncle than the sister by the half

(*) I have observed some recent cases of great hardship in Scotland, arising from the present state of this law as excluding brothers' and sisters' children where a brother or sister survived.

(a) Bankton, b. iii. tit. 4. s. 17. 28.; Erskine, b. iii. tit. 9. s. 2. 4. ; Bell's Principles, 672.

(b) B. iii. tit. 9. s. 2.

blood, shall take the whole movable succession, as representing his mother, who was sister to the deceased by the full blood." And for this he refers to the case of Gemmil, July 4. 1729, observed in Kames's Dict. II. p. 398.

With great respect for this learned author, the case to which he refers does not appear to be one of representation, but of a total exclusion of the half-blood in competition with the full blood in the same line of succession. Among those of different degrees of kindred, the right of representation would be excluded in all cases, as well in regard to the full blood as to the half-blood.

16. If the deceased have died intestate without a widow, or children, or other descendants, his personal estate shall go to those who are next in degree of blood, or nearest in kin to the deceased. (c)

Though this be laid down as a general rule by the institutional writers, it will be seen, in the sequel, that in regard to the succession in personal estate in Scotland, the degrees of kindred are reckoned very differently from those which are known in the civil or canon law, or in the law of England.

17. In reckoning such nearest in degree of blood, or next in kin, the mother of the deceased, and all the relations connected with the deceased through the mother only, are entirely excluded from the succession: thus, if a person deceased left only a mother, and maternal relations, the king would take the succession in preference to them. (d)

(c) Stair, b. iii. tit. 4. s. 24., tit. 8. s. 31.; Bankton, b. iii. tit. 4. s. 22.; Erskine, b. iii. tit. 9. s. 2.

(d) Erskine, b. iii. tit. 8. s. 9., tit. 9. s. 2.

It is singular that this rule of law should still obtain in Scotland, and it does not appear to have been so fixed from an early period. (e) It is said to have been taken from the laws of the Twelve Tables (f); but in adopting the rules of the civil law, it is matter of some surprise that these obsolete rules of succession were taken instead of the more equitable rules of the jus novissimum of the Roman law. In any alteration of the law it is scarcely possible that this can remain as at present.

18. Where the deceased shall die without wife or children, but shall leave a father, and brothers or sisters, or descendants of them, the brothers or sisters, or their descendants, shall take in preference to the father; and the father shall only take if there be no brothers or sisters of the deceased, or descendants of them. (g)'

This also is a singular rule, which has been adopted in Scotland in the law of succession; it appears to militate

(e) Supra, p. 363. It has been seen from the case of the Duchess of Suffolk (supra, p. 332.), that a similar rule for a short while prevailed in England.

(f) Bankton, b. iii. tit. 4. s. 20.

The law of the Twelve Tables is very obscure upon this subject. Tabula V., as restored by Jaques Godefroy, is in these terms: "Ast si intestato moritur, cui suus hæres nec escit, agnatus proximus familiam habeto: si agnatus nec escit, Gentilis familiam nancetor." (Terasson, Histoire de la Jurisprudence Romaine, 1750, p. 126.) An agnate, according to Terasson, differed from the agnate of the law of Scotland; he describes him as " descendu d'un même tronc masculin, et par des branches masculines." A cognate was any relation claiming through a female. The Gentiles were those of the same paternal race. (Heineccius, Antiq. Roman, 1. 3. tit. 2.)

The above law is certainly silent as to the mother.

(g) Bankton, b. iii. tit. 4. s. 18.; Erskine, b. iii. tit. 8. s. 9., and tit. 9. s. 2.; Bell's Principles, 672.

against the terms of that general rule (No. 16.), which gives the succession to the next in degree of blood, or nearest in kin. By the civil law the father is in the first degree, and a brother or sister in the second degree. Although by the canon law a father, as well as a brother and sister, are in the first degree, this would not exclude the father; under both laws the descendants of such brother and sister, of course, are more remote.

It has been seen that in this case the law of England gives the whole succession to the father. (h) Whether this rule of the English law be entirely equitable or not, may be matter of question.

19. In regard to the succession of remoter ascendants and their collaterals, where the deceased shall die without wife or children, and without brothers or sisters, or descendants of them, and without a father surviving, the rule is, that the collaterals of his father and their descendants shall take in the first place; and, failing them, that the remoter ascendants shall take. Thus uncles and aunts, and their descendants, are preferred to a grandfather; and so on in the ascending degrees and their collaterals. (i)

These rules also appear to be contrary to those of the civil and canon laws, and of the law of England. A grandfather, in the civil law, is nearer in degree than an uncle or aunt; by the canon law, they are equal, both being in the second degree. It has been seen that in England a grandfather has been preferred to an uncle or

(i) Erskine, b. iii. tit. 8. s. 9., and tit. 9. s. 2.; Bell's Principles, 672.

aunt, though this was not specially provided for in the statute. (4) The grandfather is clearly nearer in degree, both by the civil and canon law, than the descendants of an uncle or aunt.

The same observations apply to this rule in regard to the succession of remoter ascendants. Such succession, however, must be of very rare occurrence. (1)

20. The right of succession, which formerly was not vested before confirmation, is now (apparently) put upon a similar footing as it is in England: by a recent statute, the right of the next of kin to obtain confirmation does not expire with the death of the party first having such right, but in case of the death of such party is transmitted to his or her representatives.

Till the making of a recent statute, if any relation who, at the time of the death of a party, was one of his or her next of kin, or sole next of kin, should die without having reduced into possession what such next of kin was or were presumptively entitled to, or before a confirmation obtained in the proper consistorial court, the rights of the next of kin so dying were totally lost, and accrued to those

(k) Supra, p. 335.

(1) I see that rules of succession somewhat similar existed in the custom of Normandy; thus we see in the Coustumier:

“241. Père et mère, aïeul et aïeule, ou autre ascendant, tant qu'il y a aucun descendu de lui vivant, ne peut succéder à l'un de ses enfans. "242. Les pères et mères excluent les oncles et tantes à la succession de leurs enfans; et les oncles et tantes excluent l'aïeul et l'aïeule en la succession de leurs neveux et nièces : ainsi des autres.

"243. Les oncles et tantes excluent les cousins en la succession de leurs neveux et nièces. (La Coutume Reformée du Païs et Duché de Normandie. Rouen, 1694, p. 372.) But here the maternal succession was not excluded.