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of the kindred who were next in the order of succession, and who obtained possession, or took confirmation. But by the act 1690, c. 26. special assignations, neither intimated nor made public during the life of the grantor, were declared to be sufficient without confirmation; and the courts extended this to special legacies (Jan. 1729. Gordon), though formerly neither such assignations nor legacies took the subject out of the executry of the deceased till confirmation was obtained. This rule never extended to legitim or jus relicta, which were held to belong to the parties of their proper right, and in case of their death went to their own next of kin. A partial confirmation, however, was held to vest the whole executry in the persons confirmed, so as to be transmitted to their representatives. And the confirmation of an executor nominate, being a trust for the next of kin, had the effect of establishing their right to the subjects confirmed as effectually as if they themselves had confirmed them. (m)
But the rules of law upon this subject, which were often attended with great injustice, are (or were meant to be) done away by the act of the 6 G. IV. c. 98., by which it is enacted, “ that in all cases of intestate succession, where any person or persons who, at the period of the death of the intestate, being next of kin, shall die before confirmation be expede, the right of such next of kin shall transmit to his or her representatives, so that confirmation may and shall be granted to such representatives in the same manner as confirmation might have been granted to such next of kin, immediately upon the death of such intestate.”
This act of parliament was intended to place the law in Scotland as to the vesting of personal estate upon the same footing upon which it has always been in England.
(m) Erskine, b. iii. tit. 9. s. 30.
ON THE LAW OF PERSONAL SUCCESSION. [CHAP. X.
It is to be regretted that some doubts are entertained as to the efficacy of this most just statute, owing to the conciseness of its terms (Stair by Brodie,597. in notis). (n) It has been said that before confirmation nothing was vested in the next of kin, and that thus nothing could be transmitted to his or her representatives. But the right to obtain confirmation was vested in the party dying, and the statute meant to transmit such right to his or her next of kin. (0)
In the law of Scotland there is no express rule to restrain the executor-dative from making distribution at any time after confirmation obtained, as there is in the English statute of distribution. But as he is not entittled to pay debts, without decree till after the expiration of six months (Gardener and Pearson, 28th November, 1816, Fac. Coll.), à fortiori, he should not till then distribute the estate to the next of kindred. (p)
(n) I cannot mention this work, without adding my humble meed of praise to the great labour and research which the editor has applied to the illustration of the antient and modern law of Scotland.
(0) See also 1 Bell's Comment. 142.; and Erskine by Ovory, 894. in notis. If any doubt exist upon this most important point, should it not be instantly removed?
(p) There would be a great hardship in a strict enforcing of the law, that no executor could pay a debt but upon decree, as throwing great expense upon the estate of the deceased : the rule seems now to be much relaxed in practice.
AFTER having considered this important subject at some length in the preceding treatise, the whole may be concluded with a few miscellaneous remarks. There
appears to be no room to doubt, that it would be highly advantageous, in many obvious respects, if one code were established for the succession in personal or moveable estate, in every part of the realm. The present state of the law is ill adapted to existing circumstances, and frequently gives rise to litigation upon questions of great difficulty and intricacy. It has tended to retard that unreserved communication between the different parts of the kingdom, which would, in a high degree, be most beneficial to all.
If the time be not yet come for the establishment of one uniform system, something might, perhaps, be done to remove those inconveniences in the law of personal succession, which are the most prominent in both countries. Even this would necessarily lead to a wide field of legislation, and ought not to be entered upon without the fullest and most mature consideration. (a)
It is owing to the rules of the law of Scotland, in regard
(a) The commissions of inquiry in both countries, for an examination into the state of their respective municipal laws, have already done much good : a similar mode of inquiry, in regard to matters of international law, might also tend to produce results highly beneficial.
to personal succession, that the chief inconveniences of an international kind have already arisen, and may be expected to arise in future. In the preceding pages we have shewn upon what points the principal questions connected with this subject have originated. Some of the most important of these may be briefly resumed here.
1. The limitation upon the power of a husband and father in Scotland of making a will, or testamentary disposition, of personal estate in that country, appears to require regulation and revision.
In England the power of the husband and father to dispose of his whole personal estate by his last will, grew up, by lapse of time, in the province of Canterbury, as an alteration of the ancient common law. This power was specially extended, by different statutes, to Ireland, to Wales, to the province and city of York, and to the city of London. This appears to have been consonant to the views and feelings of the country; and it has not been attended with any serious inconveniences.
May not the same power be with propriety extended to Scotland ? It is obvious, that, but for this power, ation of the local customs in England, in regard to the succession in personal estate, must ere now have become intolerable.
2. The succession of ascendants and collaterals in Scotland also requires regulation and revision: so (we have seen) their own writers admitted more than a century and
In regard to the father, it appears to be contrary to their own general rule of preferring “the nearest in blood," that brothers and sisters and their descendants should exclude him; that uncles and aunts and their descendants should
(6) Supra, p. 2.
exclude a grandfather; and so on, in the higher degrees of ascendants.
In regard to the mother, the rule that she can claim nothing in the succession of her child, appears to be both cruel and absurd. If a person were dying without issue, leaving a mother, every natural feeling would prompt him to leave to this mother a competent part of his substance: but the law upon this subject is opposed to every such natural feeling.
To what extent a mother should take, in competition with her own children and their descendants, may be matter for consideration : in England the statutes have regulated this apparently in an equitable way, by giving a third in such case to the mother.
3. The total exclusion of maternal relations from the succession, in any case, appears to require revision.
The succession of maternal relations is one deserving of much consideration: perhaps it is too much to put them precisely on the same footing, in all cases, with relations on the father's side (as is done in England); but it appears to be manifest that they ought not to be entirely excluded.
4. The total exclusion of representation in every case in Scotland, in regard to the succession in personal estate, appears also to be most inequitable. Why should not representation be admitted among descendants to the remotest degree; and among collaterals to a limited and reasonable extent? This is the rule of the civil law, and it is the same under the statutes in England.
5. The rights of the executors, or nearest in kin of a wife predeceasing her husband in Scotland, also appear to require revision. Great inconveniences might occur from the state of the law upon this subject, as it now is.
We have little to direct us in regard to the precise nature of the obligations which a father might incur to his children, in regard to their interests in the personal estate
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