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At common law personal bonds are moveable; but when the term of payment of a bond is at a distant or uncertain date it is heritable ab initio, the presumption being that the creditor intended the loan as a permanent investment, or bonum stabile, as it was termed by the old writers.

Rights having a tractus futuri temporis, e.g. a liferent or an annuity, are heritable (Ersk. 2. 2. 6.). In Philp v. Corrie, 1765, 5 Br. Sup. 469, 908, Lord Pitfour explained that tractus futuri temporis applied only to payments at different periods, as an annuity; not to debts payable simul et semel, at whatever distance of time.

The quality of a bond is likewise affected by an obligation to pay annual rent or interest. If a bond is payable within a period that does not render it heritable as having a tractus futuri temporis, and does not contain a clause of interest, it is moveable. If interest is stipulated for, the principal still remains moveable until the term of payment mentioned in the bond (Dick . Ker, 1668, M. 3629; Meuse v. Executors of Craig, 1748, M. 5506), so that if the creditor dies ante eventum termini it is moveable. But if the creditor does not demand payment at the date of payment, the bond thereafter becomes heritable, because it is presumed he intended to treat it as a permanent investment. It was the payment of interest which gave it the heritable character, and so it did not assume that character until the date when the payment of interest commenced. Gray v. Walker, supra, note 1.

The object of the statute is to make all personal bonds moveable notwithstanding a clause of interest, save where it is otherwise stipulated, and in certain excepted cases.

The statute deals only with the case of bonds having a clause of interest and does not touch bonds having a tractus futuri temporis. These remain heritable.

6 I.e. in particular subjects, Ersk. 2. 2. 12; Fraser, Husband and Wife, i. p. 723; Hughson v. Hughson, 22 Nov. 1822, 21 F.C. 26, and in Bell's Illustrations, ii. p. 232.

7 They then become heritable by destination, and belong to the heir in omni eventu, although the creditor dies before the term of payment, Muir v. Muirs, 1687, M. 5524; Crawford v. Earl of Traquair, 1692, M. 5525. 8 See 31 and 32 Vict. c. 101. § 117, infra, p. 190.

A bond treated as heritable, simply because it contained a clause of interest, was deemed heritable in every respect. The heir of the creditor made up his title to it, after the term of payment, by a general service; the heir of the debtor, not the executor, was ultimately liable; it was attached by adjudication, not by arrestment; and was subject to the law of deathbed. Kames, Elucidations, p. 298; Duff on Deeds, p. 6; Ross v. Ross, 4 July, 1809. Hence when the Act declares that such bonds are to be treated as moveable it provides that they are to be confirmed by the

executor.

See 31 and 32 Vict. c. 101, § 117, infra, p. 190, note; and Hare, 25 Nov. 1889, 17 R. 105.

10 Quoad fiscum. By fiscus the Romans understood the crown-revenue; and by the word fisk in this statute is meant the Crown's right to the moveable estate of persons denounced rebels on letters of horning. It will be remembered that until the passing of the Act 20, Geo. II., c. 50, the casualties of single and liferent escheat were incurred by horning and denunciation for payment of a civil debt, and that it was by a gift of the escheat, from the Crown, that creditors obtained possession of their debtor's moveable estate. The evils of this system, which led to the passing of the

above enactment, were pointed out in a pamphlet by William Logan of Logan (published anonymously), Superiorities Display'd: Edinburgh, 1746, 8vo and in A Letter to an English Member of Parliament from a Gentleman in Scotland: London, 1746, 8vo, also ascribed to Logan. An attempt to vindicate the existing system was made in An Essay upon Feudal Holdings: London, 1747, 8vo, by Andrew MacDouall, Lord Bankton.

Heritable bonds do not fall under the single escheat. Clerk v. Stewart, 1629, 1 B. Sup. 298. The statute preserves the status quo as regards these. Its object was to enlarge the fund for younger children, not to add to the caducary revenue of the crown, or the estate available for creditors.

The

11 The case of Downie v. Downie's Trustees, supra, note, was a case as to jus relictae. The subject in dispute was a mortgage of the Glasgow WaterWorks Commissioners, dated 11 March, 1858, and payable 15 May, 1861, with interest, at 4°, until paid, payable half-yearly at Martinmas and Whitsunday. It bore that the loan might by agreement remain after maturity for a further period at a rate of interest to be agreed on. court held that this was a loan for a tract of time [but this statement is open to criticism, supra note 5], and bearing interest payable periodically before the arrival of the term of payment of the principal, and was the kind of bond to which the statute applies, and therefore heritable in a question regarding jus relictae.

In Gray v. Gordon, 1666, M. 3629, a bond was found heritable, quoad fiscum, the term of payment being distant and interest payable in the interim.

As to jus relictae see also Gray v. Walker, supra, note 1; Meuse v. Executors of Craig, supra, note ; Philp v. Corrie, 1765, M. 5772, 5 Br. Sup. 469, 903, 908; Storrar v. Creditors of Lidster, 1773, 5 Br. Sup. 469. 12 Such bonds will not fall to a surviving husband jure relicti, 44 and 45 Vict. c. 21, § 6, infra, p. 200; supra, § 97.

No. III.

1681, c. 10 (c. 12, ED. THOMSON).

Act concerning Wives' Terces.1

Our Soveraigne Lord Considering that sometimes through the ignorance, and inadvertencie of some Writers and Nottars,2 Clauses are insert in contracts of Marriage, containing provisions by Husbands in favours of their Wives, without mentioning the terce that is due to her by Law, or expressing the provision to be granted in satisfaction of the terce; whereby occasion is given to Relicts to claim a terce out of their Husbands estates by and attour the provision conceived in their favours contrary to the meaning and intention of the parties contracters. For Remeed whereof, the Kings Majesty, with advice and consent of the Estates of Parliament, Statutes and Ordains, That in time coming where there shall be a particular provision, granted by an Husband in favours of his Wife, either in a contract of Marriage, or some other writ,3 before or after the marriage; That the Wife shall be thereby secluded from a terce out of any lands or annual-rents be

longing to her Husband, unless it be expressly provided in the contract of Marriage, or other Writ containing the said provision, that the Wife shall have right to a terce, by and attour the particular provision, conceived in her favours: But prejudice alwaies to the Lords of Session, to determine as to Contracts of Marriage, or provisions already made, according to the former Law and Custom.

1 Supra, § 114. Ersk. 2. 9. 45; 3. 9. 16; Stair, 2. 6. 17; Fraser, Husband and Wife, ii., 1113. As to the passing of the statute see Craigleith v. Prestongrange, 1681, M. 15845; and per Lord Loughborough in Lowthian v. Ross, 1797, 3 Pat. App. at p. 628.

The provisions of the statute were discussed in Jankouska v. Anderson, 1791, M. 6457 and 15868; Ross v. Aglianby [reported as Lowthian v. Ross, in the House of Lords], 1797, M. 4631 and 15874, 3 Paton, App. Ca., 621. 2 They are also blamed, 1672, c. 19.

3 That is some deed of a conventional character, not a unilateral deed, as for example a testamentary deed. Lowthian. Ross, supra.

No. IV.

18 VICTORIA, c. 23.

An Act to alter in certain respects the Law of Intestate Moveable
Succession in Scotland.1

[25th May, 1855.]

Be it enacted by the Queen's most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same, as follows: 2

in

the Succession

1. In all Cases of Intestate Moveable Succession 3 in Scotland accruing The Issue of a after the passing of this Act, where any Person who, had he survived Next of Kin Predeceasing the Intestate, would have been among his Next of Kin, shall have pre- shall come i deceased such Intestate, the lawful Child or Children of such Person their Parent in so predeceasing shall come in the Place of such Person, and the Issue to an Intestate. of any such Child or Children, or of any Descendant of such Child or Children, who may in like Manner have predeceased the Intestate, shall come in the Place of his or their Parent predeceasing, and shall respectively have Right to the Share of the Moveable Estate of the Intestate to which the Parent of such Child or Children or of such Issue, if he had survived the Intestate, would have been entitled :7 Provided always, that no Representation shall be admitted among Collaterals after Brothers and Sisters Descendants, and that the Surviving Next of Kin of the Intestate claiming the Office of Executor shall have exclusive Right thereto, in preference to the Children or other Descendants of any predeceasing Next of Kin, but that such

M

Children or Descendants shall be entitled to Confirmation when no Next of Kin shall Compete for said Office.10

1Supra, § 54. The hardship of the common law was pointed out by the Law Amendment Society of Glasgow in 1851.

2 This is a remedial statute, and to be construed in reference to the mischief intended to be remedied. Turner v. Couper, 27 Nov. 1869, 8 M. 222. "The succession in moveables from the intestate belongeth to the nearest of kin, who are the defunct's whole agnates, male or female, being the kinsmen, of the defunct's father's side of the nearest degree, without primogeniture, or right of representation; and therein those joined to the defunct by both bloods, do exclude the agnates by one blood." (Stair, 3. 8, 31.)

The object of this part of the statute was to take away the hardship which arose when, of several persons who would have been all equally next of kin of an intestate one or more had predeceased the intestate leaving children, who, as the law stood before the passing of the Act, were excluded from the succession, as they could not take with surviving next of kin. Turner v. Couper, supra.

"We are always hearing it said that the statute introduced the representation of heritage into moveable succession. That is the shorthand way in which popularly the statute is described. But the statute does no such thing." Per Lord Kinloch, Ib., at p. 225. This is too strongly put. statute intended to introduce to the extent it allows, the representation which Lord Stair, supra, says was excluded.

The

In England grandchildren were also formerly excluded from the customary shares of their parents, according to the customs of the province of York and city of London.

The Act was intended to make the rule of the law of Scotland similar, to a certain extent, to that of the English Statute of Distributions, 22 and 23, Car. II. c. 10. That statute is founded upon the 118th Novel of Justinian (published in 543), and amended by the 127th Novel; and allows representation amongst descendants to the remotest degree. Among collaterals representation does not extend beyond brothers' and sisters' children.

3 See the interpretation clause, sec. 9, infra, p. 181.

4 The Act therefore is not retrospective. incidentally have a retrospective effect. 9 M. 232.

See note to sec. 6. But it may Ewart v. Cottom, 6 Dec. 1870,

5 These words limit the scope of the statute to this particular case. It does not apply to every case of intestate succession, but only to those cases where any person who, had he survived the intestate, would have been among his next of kin. Turner v. Couper, 27 Nov. 1869, 8 M. 222.

Therefore where the nearest surviving relatives of an intestate are his nephews and nieces, the intestate succession falls to be divided among them in their own right as his next of kin per capita, and not as representatives of their deceased parents per stirpes. Ib.

6 Next of kin and nearest of kin were formerly synonymous. Bell, Pr. § 1861. In the common law of Scotland, next of kin and heirs in mobilibus meant one and the same thing. See 1661, c. 32, supra, p. 173. Cf. 31 and 32 Vict. c. 101, § 117, infra, p. 100.

The term "next of kin," as here used in the present statute, denotes those persons who would have been the legal heirs of the intestate under the old law; but it is no longer equivalent to legal heirs in mobilibus, inasmuch as it does not include all the members of that class. Per Lord Watson in Hood v. Murray (otherwise Gregory's Trustees), 1889, L. R. 14 App. Ca. 124,

reversing the Court of Session, 14 R. 368, and overruling Haldane's Trustees v. Murphy, 15 Dec. 1881, 9 R. 269. In its legal sense the expression is still applicable to those members of the class who would have been the sole heirs before the passing of the Act, and are now preferably entitled to administer the succession of the intestate. Ib.

As used in a testamentary or other deed the words may apply to a hypothetical and not to the legal class. It is a matter of interpretation. The expressions "nearest heirs and successors," and my own "nearest of kindred" have been construed as different from "next of kin" in its legal sense, because there was something to show that such was the testator's meaning. Nimmo v. Murray's Trustees, 3 June, 1864, 2 M. 1144; Maxwell v. Maxwell, 24 Dec. 1864, 3 M. 318; Connell v. Grierson, 14 Feb. 1867, 5 M. 379; Young's Trustees v. James, 10 Dec. 1880, 8 R. 242. Elphinstone, Interpretation of Deeds, p. 304.

7 The statute applies only to the case where there are certain persons who, at the death of the intestate, stand in the relation of the next of kin, and another person or persons who would have stood in the same relation with them has or have predeceased. Per Inglis, L. P., in Turner v. Couper, 27 Nov. 1869, 8 M. at p. 224. Hence where the nearest surviving relations of an intestate are his nephews and nieces, the intestate succession falls to be divided amongst them in their own right, as his next of kin per capita, and not as representatives of their deceased parents per stirpes. Ib.

Where the statutory distribution prevails, a grand-daughter of a deceased sister of an intestate will take equally with his surviving brother. Nimmo v. Murray's Trustees, supra, note 6.

Under a legacy to the executors of a person deceased, who were his sons, the children of sons who died prior to the death of the person who bequeathed the legacy are entitled to participate along with the surviving Ewart v. Cottom, 6 Dec. 1870, 9 M. 232.

sons.

8 I.e., not brothers and sisters merely, but other collaterals related through a common ancestor. Representation is, however, limited to the descendants of brothers and sisters, and is not to take place amongst the descendants of collaterals more remote. Hence cousins german of an intestate are entitled to succeed as collaterals, but children of a predeceas ing cousin german cannot claim. Ormiston v. Broad, 11 Nov. 1862, 1 M. 10. See Robertson, Treatise on Personal Succession, p. 333 (Edinburgh, 1836).

9 The daughter of a brother of an intestate, i.e., his niece, is not properly described as one of the next of kin, when a brother of the intestate survives. Dowie v. Barclay, 18 March, 1871, 9 M. 726.

10 If the next of kin hang back and do not claim the office, it is competent to the representatives of a deceased next of kin to come forward and be confirmed. Ormiston v. Broad, supra, note 8; Dowie v. Barclay, supra,

note 9.

It is not, however, correct to describe such a representative as one of the next of kin.

2. Where the Person predeceasing would have been the Heir in Issue of predeceasing Heritage of an Intestate leaving Heritable as well as Moveable Estate Heir succeed. had he survived such Intestate, his Child, being the Heir in Heritage Intestate's ing to the of such Intestate, shall be entitled to collate the Heritage to the Effect Heritage may of claiming for himself alone, if there be no other Issue of the Pre- other Issue deceaser, or for himself and the other Issue of the Predeceaser, if there

collate, but

not excluded

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