Some of the rules of the custom of London, particularly those in regard to the accruer of the orphanage shares of children dying under age, are important, and may be worthy of consideration in any general revision of the law. Formerly the Court of Orphans had been accustomed to exercise a similar charge of the persons of their orphans, in respect to marriage, as is exercised by the Court of Chancery, in regard to the wards of that court. In the Court of Orphans marriage was discouraged till the orphans or wards should attain twenty-one years of age.

It appears to be uncertain, whether when a man marries an orphan, who dies under twenty-one, her orphanage share shall accrue to the other orphans, or go to her husband. In the case of Fouke and Lewen, M. 1682, it is said that if a man marries an orphan who dies under twenty-one, her orphanage part shall not survive to the other children, but shall go to the husband. (0) But in Merriweather and Hester, T. 5 G. 1. (p), it is said that if a man marries an orphan, yet till twenty-one his right is not so vested, as to prevent his wife's share from surviving, in case she died before twenty-one; and Blackstone says, that if the children of a freeman die under the age of twentyone, whether sole or married, their share shall survive to the other children. (q)

11. A wife divorced for adultery shall not have her customary share. (r) So where a freeman husband was attainted of felony, and pardoned on

(0) Fouke v. Lewen, M. 1682, 1 Vern. 88, 89.; 4 Burn's Eccles. Law, 444.

(p) Anon. Prec. Cha. 537.; 4 Burn's Eccles. Law, 444.

(9) 2 Blacks. Com. 518.

(r) Bunb. 16.; 4 Burn's Eccles. Law, 444. This refers to a divorce in the Ecclesiastical Courts; a divorce a vinculo matrimonii would change them to single persons.

condition of transportation, and the wife afterwards became entitled to some personal estate, as orphan to a freeman of London, this was decreed to belong to the wife as to a feme sole. (s)

12. If the daughter of a freeman marry in his lifetime without his consent, unless the father be reconciled to her before his death, she shall not have her orphanage share of his personal estate. (t)

13. A lease for years to attend the inheritance of a freeman, is not assets within the custom. (u) So, also, if a freeman have the trust of a term to attend an inheritance and dies, the trust of the term shall not be subject to the custom (); but a mortgage in fee shall be counted part of a freeman's personal estate, and subject to the custom. (y)

SECT. VII.

Of the Rules of Succession in Personal Estate by the Law of Scotland.

THERE is reason to conclude, that some of the rules of succession in personal estate in Scotland were not fixed till a period comparatively recent. It has been already seen, that in the opinion of Craig, maternal succession was not

(s) Newsome v. Bowyer, 3 P. Will. 37.; 4 Burn's Eccles. Law, 444. (t) 1 Foden v. Howlett, 1 Vern. 354.: sed contra, Cha. Cas. Finch, 248.; 4 Burn's Eccles. Law, 450.

(u) Tiffin v. Tiffin, 1 Vern. 2.; Dowse v. Percival, 1 Vern. 104.; 4 Burn's Eccles. Law, 451.

(a) 2 Freem. 66.; 4 Burn's Eccles. Law, 452.

(y) Thornbrough v. Baker, 1 Cha. Cas. 285.; 4 Burn's Eccles. Law, 452.

excluded in the law of Scotland (≈); and that Sir James Steuart was inclined to the same doctrine. (a)

In the Minor Practicks of Hope, it appears also, that his opinion did not coincide with the doctrines of the law, as these appear to be fixed in our day. He says (b): “In testaments, all those who are of a like degree are admitted to the office of executry; albeit some of them be germani, some of them uterini tantum, and some of them consanguinei tantum." (c) In this respect, he appears to have considered that the rules of the law of Scotland coincided with those of the law of England.

Even in the time of Stair, the whole rules of succession in moveables do not appear to have been clearly fixed; when treating of the succession of a father, in certain cases, he says (d): "As to the third degree of succession in moveables, failing descendants, and brothers and sisters, and their descendants, the question is whether the father surviving will exclude his own brother, or if there be any place for ascendants in the succession of moveables. Such cases occur rarely, and I have not observed it debated or decided. It is but of late that the like case hath fallen in the succession of heirs and heritable rights (e), wherein our custom hath, according to the course of the law of nature, found the father to be heir to his son, and not the fatherbrother, or any of his descendants; and in that we have differed from the custom of England. And there is no reason why, if the question should occur, that the like should not be done in moveables." It appears here, as if we saw

(z) Supra, p. 67., on the doctrine of paterna paternis, materna maternis. (a) Ibid.

(b) Hope's Minor Practicks, tit. 3. s. 16.

(c) This is noticed as an error, in Spottiswoode's notes to this passage of the Minor Practicks.

(d) Stair, b. iii. tit. 8. s. 32.

(e) He alludes to the case of Burnet contra Mauld, noticed b. iii. t. 4. s. 35.

in this the origin of the rule, by which certain classes of collaterals are preferred to ascendants in the law of succession to personal estate in Scotland. At that time the rule had not been clearly ascertained.

In later writers I have not observed that the rules of law have been made matter of any doubt or question. The following rules of succession appear to be assented to by all the writers of the present day:

1. Upon a marriage, if there be no conventional provisions to the contrary, the personal estate of the married pair becomes goods in communion, remaining under the sole management and control of the husband by his jus mariti (ƒ), subject to his power of disposition of the whole by acts or deeds inter vivos, made in liege poustie, provided these be not made or granted in fraudem of the legal rights of a wife and children; but his power of disposing of the personal estate in case of his death, by will or disposition mortis causâ, is limited to his own share thereof, termed the dead's part. (g)

If the marriage have not subsisted for a year and day, or produced a living child, it is not considered as a permanent marriage, and there is a restitution, as nearly as possible, to the state in which matters were before marriage; and the personal property then existing is to be restored to those to whom it originally belonged, the surviving party, and the representatives of the party deceasing. (h)

If a deed or disposition of a father be made fraudulently, or in order to disappoint the rights of children, without

(f) Erskine, b. i. tit. 6. s. 12.
(g) Ibid., b. iii. tit. 9. s. 18.
(h) Ibid. b. i. tit. 6. s. 38.

touching the father's own right during his life, this will be ineffectual, and will not disappoint the children of their claims of legitim. (i)

The same principles would apply to the case of deeds made fraudulently or in order to disappoint the rights of a widow.

If a person be not in a state of liege poustie, or have contracted a sickness which ends in death, he loses the legitima potestas of disposing of the goods in communion. All gratuitous deeds, therefore, executed by him after that period, tending to diminish the rights of the widow and children, are void, though they should not be fraudulent. Certain of his acts and deeds may also be challenged after his death by his heir on the head of death-bed (k), even though these regard moveables or personal estate. The following are of this nature: -1. A disposition of heirship moveables. 2. An assignation of a moveable bond, secluding executors. 3. An alienation of any part of the conquest during a marriage, which, though moveable, may have been provided to the heir. 4. Bonds granted, or assignations executed of moveable debts, where the personal estate of the grantor is not sufficient for satisfying his own personal debts, as these would be raising charges against the heir. (1)

It has been seen that the father in England has the power of disposing of the whole personal estate by will.

(i) Hog v. Lashley, supra, p. 127. Millie v. Millie, Fac. Coll. 17th June, 1803; House of Lords, 18th March, 1807.

(k) The law of death-bed in Scotland has relation chiefly to real estate : all deeds granted to the prejudice of the heir after the grantor hath contracted the sickness of which he dies, may be set aside by the heir, ex capite lecti, unless, after executing such deeds, the grantor has gone to kirk or market unsupported, or shall have lived sixty days after the execution thereof. (Erskine, b. iii. tit. 8. s. 96, 97.)

(1) Erskine, b. iii. tit. 8. s. 98. tit. 9. s. 16.