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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. The statute intended to introduce to the extent it allows, the representation which Lord Stair, supra, says was excluded.

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. 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.


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.

ing to the

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 succeedhad he survived such Intestate, his Child, being the Heir in Heritage Intestate's 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

claiming out of Moveable Estate Difference be

of Heritage and Share

their Parent

by his not col- be such other Issue, the Share of the Moveable Estate of the Intestate lating from which might have been claimed by the Predeceaser upon Collation if he had survived the Intestate; and Daughters of the Predeceaser, tween Value being Heirs Portioners of the Intestate, shall be entitled to collate to the like Effect; and where, in the Case aforesaid, the Heir shall not collate, his Brothers and Sisters, and their Descendants in their Place, shall have Right to a Share of the Moveable Estate equal in Amount to the Excess in Value over the Value of the Heritage of such Share of the whole Estate, Heritable and Moveable, as their predeceasing Parent had he survived the Intestate would have taken on Collation.1 1 Bell, Pr., §§ 1911, 1911 A (9th edition).

would have taken on Collation.

Father to succeed to Extent

of One Half


3. Where any Person dying intestate shall predecease his Father without leaving Issue, his Father shall have Right to One Half of his when no Issue. Moveable Estate, in preference to any Brothers or Sisters or their Descendants who may have survived such Intestate.1

Where Father has prede

to succeed to

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But his father is not hereby constituted one of his next of kin. He is however entitled 66 qua father to be decerned executor of the intestate, and in case of his death his representative, e.g., his executor, is in the same position. If the office of executor is also claimed by one of the next of kin there will be a joint decerniture. Webster v. Shiress, 25 Oct. 1878,

6 R. 102; Muir, 3 Nov. 1876, 4 R. 74-Infra, sec. 4. Cf. the case of a surviving husband under the Married Women Property (Scotland) Act, 1881, § 6 (post p. 200).

This does not affect the father's common law right to the whole estate as nearest ascendant, where the intestate dies without issue or without leaving brothers and sisters or their descendants.

4. Where an Intestate dying without leaving Issue whose Father ceased, Mother has predeceased him shall be survived by his Mother,' she shall have Right to One Third of his Moveable Estate, in preference to his Brothers and Sisters or their Descendants, or other Next of Kin of such Intestate.2

Extent of

One Third.

Succession by
and Sisters

1 By the common law of Scotland the mother is not allowed to succeed to her own children, and all relations through her were excluded. Supra, p. 38; infra, sec. 5, note.

2 She is entitled to the office of executrix qua mother, or to a joint decerniture if it is claimed by the next of kin. She is not entitled to the office qua next of kin. Muir, 3 Nov. 1876, 4 R. 74. Supra, sec. 3.

5. Where an Intestate dying without leaving Issue, whose Father and Mother have both predeceased him, shall not leave any Brother or Sister german or consanguinean, nor any Descendant of a Brother or Sister german or consanguinean, but shall leave Brothers and Sisters uterine, or a Brother or Sister uterine, or any Descendant of a Brother or Sister uterine, such Brothers and Sisters uterine and such Descendants in place of their predeceasing Parent shall have Right to One Half of his Moveable Estate.

1 By the law of England, following the civil law, the relations on the mother's side share equally with the relations on the father's side; and relations nearer in blood exclude these more remote irrespective of whether they are connected through the mother or the father.

By the common law of Scotland all relations claiming through the mother of the intestate are excluded. The enactment in this section is the only relaxation of the rule. Supra, p. 38.

tatives to

6. Where a Wife shall predecease her Husband, the Next of Kin, On a Wife predeceasing Executors, or other Representatives of such Wife, whether testate or her Husband intestate, shall have no Right to any Share of the Goods in Com- her Represen munion, nor shall any Legacy or Bequest or Testamentary Disposition have no Claim thereof by such Wife affect or attach to the said Goods or any portion in communion. thereof.1

1 Supra, § 35, 54; Fraser, Husband and Wife, ii. p. 1528.

This section has no retrospective effect. Hence it does not apply when the dissolution of the marriage took place by the predecease of the wife prior to 25th May, 1855. Kennedy v. Bell, 2 Feb. 1864, 2 M. 587.

To secure ministers from losing their libraries in their lifetimes, it was enacted, that ministers' books shall not fall under the executry of their predeceasing wives. 1644, c. 19; but the Act was rescinded. Supra, p. 32.

on the Goods

7. Where a Marriage shall be dissolved before the Lapse of a Year Not to affect Rights of and Day from its Date, by the Death of One of the Spouses, the whole Spouses on Rights of the Survivor and of the Representatives of the Predeceaser Dissolution of shall be the same as if the Marriage had subsisted for the Period certain Cases. aforesaid.1

1 Supra, §§ 32, 34, 54.

Marriage in

Parliament of
1617, c. 14,

8. So much of an Act of the Parliament of Scotland passed in the Part of Act of Year One thousand six hundred and seventeen, and intituled Anent Executors, as allows Executors nominate to retain to their own Use a Third of the Dead's Part in accounting for the Moveable Estate of the Deceased, is hereby repealed, and Executors nominate shall, as such, have no Right to any Part of the said Estate.1

1 The Act 1617, c. 14, was corrective of the former law under which the nomination of an executor vested him with right to the whole moveable property of the deceased as an incident of his office. That statute limited this right to one-third of the estate after payment of debts. This third was looked upon as a commission or remuneration to the executor for his trouble. Grant . Murray, 28 Nov. 1849, 12 D. 201. It was decided in that case that the Act of 1617 was not in desuetude, and this judgment was affirmed by the House of Lords in 1852, 1 M'Q. 178; 1 Paterson App. Ca. 132. The modified right was extinguished by the present enactment.

9. The Words "Intestate Succession" shall mean and include Suc- Interpretation cession in Cases of partial as well as of total Intestacy; "Intestate » of Terms. shall mean and include every Person deceased who has left undisposed of by Will the whole or any Portion of the Moveable Estate on

which he might, if not subject to Incapacity, have tested : " Moveable Estate" shall mean and include the whole free Moveable Estate on which the Deceased, if not subject to Incapacity, might have tested, undisposed of by Will, and any Portion thereof so undisposed of.1

1I.e. The statute deals only with dead's part; jus relictae and legitim form no part of the intestate's estate, but belong to wife and children respectively in their own right. Supra, § 42. They do not admit representation. Supra, § 179.

The Bill as brought in contained a clause providing that the issue of a predeceasing child should represent such child in reference to legitim, but it was struck out in its passage through Parliament.

A Wife de

serted by her

Husband may

apply for an

which she

has or may acquire by her own Industry, or which she may succeed to.

No. V.

24 and 25 VICTORIA, C. 86.

An Act to amend the Law regarding Conjugal Rights in Scotland.1

[6th August, 1861.]

Whereas it is expedient to amend the Law of Scotland relating to Husband and Wife: Be it therefore 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:

1. A Wife deserted 2 by her Husband may, at any Time after such Desertion, apply by Petition to any Lord Ordinary of the Court of Order to pro- Session, or in the Time of Vacation to the Lord Ordinary on the Bills,3 tect Property for an Order to protect Property which she has acquired or may acquire by her own Industry after such Desertion, and Property which she has succeeded to or may succeed to or acquire Right to after such Desertion, against her Husband or his Creditors, or any Person claiming in or through his Right; and the Lord Ordinary shall appoint such Petition to be intimated in the Minute Book of the Court of Session, and to be served upon the Husband; and the Husband, or any Creditor of the Husband, or any other Person claiming in or through his Right, shall be entitled to lodge Answers to the said Petition, and if the Husband be furth of Scotland, the Petition shall be executed edictally against him on an Induciæ of Twentyone Days; and upon considering such Petition the Lord Ordinary shall require Evidence of such Desertion, and on being satisfied thereof pronounce an Interlocutor giving to the Wife Protection of her Property as aforesaid against the Husband and all Creditors or Persons claiming under or through him; and if Answers be lodged to the said Petition, the Lord Ordinary may, on considering the

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