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Result of dis
solution of marriage
perfect at the end of a year it is easy to see that communio bonorum could only take effect as from the date of complete marriage, and the practice of hand-fasting in Scotland seems to explain this apparent peculiarity.
32. The law was, that if the marriage was dissolved by the death of either spouse within year and day without the birth of a child, it was not considered as a permanent marriage, and there was as far as possible restitutio in integrum upon both sides. All rights granted in consideration of the marriage became void, and things returned to the condition in which they stood before the marriage; the tocher returned to the wife or those from whom it came; and all the interest, either legal or conventional, arising to the wife in the husband's estate returned to the husband or his heirs; or, as put by Professor Forbes "all things done in contemplation thereof on either side, blow up, become void, and return to the same condition they were in before the marriage."2 Hence in marriage contracts it was the practice to provide that the arrangements thereby made were not to be affected by the death of either party within year and day.3 When Queen Mary was married to the Dauphin of France the contract provided that she should "joyra de ses droicts et assignaulx soit quil y ait enfans ou non."
1 For examples of claims for repayment of tocher, see Hector, Judicial Records of Renfrewshire, i. p. 44, ii. 183.
2 Institutes of the Law of Scotland, i. p. 67. See Balfour, Practicks, pp. 100, 112; Stair 1. 4. 19.
3"It being uncivil," as we are told by an old writer, "to suppose such a thing, so as in the body of the contract to provide against it, a Bond or Writ apart to this effect is more proper." Spotiswood, Introduction to the Stile of Writs, p. 203 (Edinburgh, 1708).
4 Acts of the Parliament of Scotland, ii. p. 512, a. provided that they should be "vngs et communs . . en tous biens
§ 33. This rule was abolished by statute in 1855, and is Abolition of now only of antiquarian interest.1
DIVISION OF THE CONJUGAL PROPERTY.
§ 34. Upon the dissolution of a marriage under the old law, after the lapse of year and day, or within that time a child had been born, a certain division of property took place. Under the present law a similar but not identical division takes place, irrespective of when the dissolution
Division of property upon
dissolution of marriage.
§ 35. (a). If the wife predeceased her husband a certain Predecease of portion nominally of the goods in communion, but in reality share of goods of the husband's moveable estate, fell to her testamentary munion. disponees if she died testate, or to her next of kin if she died intestate. This was known as the wife's share of the goods in communion. Its amount depended upon whether at the date of her death there were surviving children of the husband by that or any former marriage. If there were such children the wife's share of moveables was one third. If there were no such children it was one half.
If the wife died intestate her children by that or any succession. former marriage were of course her next of kin and took accordingly. If she had no children then her other next of kin succeeded as if she had never been married. Children, et choses esquelles communaulte peult estre et escheoir par les loys et statutz de France."
Appendix, p. 181.
118 Vict. c. 23 § 7. Notwithstanding this enactment, marriage contracts made for many years afterwards contained the old clause. Conveyancers evidently distrusted the protection of the Act; just as now the husband's jus mariti is excluded in such deeds as if the Married Women's Property Act did not exist.
by the common law of Scotland, have no claim against their mother's estate, so that the wife had absolute power of disposal of this portion of the goods in communion, and could disinherit them if she liked.
The wife's share of the goods in communion was on her death in the same position as separate estate, and passed as entirely away from the husband in the case of her intestacy, as if it had belonged to her before marriage, or as if she had succeeded to it from her father.
If the result of jus mariti ope rated hardly upon the wife, the effect of her death upon the husband's estate was often highly prejudicial. Although she had brought no property to him and contributed nothing but liability for her ante-nuptial debts, one half of all that he possessed might suddenly pass to his children or step-children or to his wife's relatives whom he had never seen or to some Institution of which he disapproved.
This is no longer law, having been abolished in 1855.1 In 1644 an exemption had been made in favour of ministers' libraries,2 but the Act was rescinded at the Restoration.
§ 36. (b). If the husband died first, leaving a widow and a child or children by that or any former marriage of his, his free moveable estate suffered a tripartite division; one thirdthe pars rationabilis of the English law-belonged to the widow, termed her jus relictae; one third belonged to the children as legitim or bairn's part of gear, even though such children were of a former marriage; the remaining one third was known as dead's part-in England, deadman's partand was subject to the testamentary disposition of the husband, or, if he made none, it fell to his next of kin, who, of course, were his children. All therefore of his moveable 118 Vict. c. 23 § 6. Appendix, p. 181.
2 Act 1644, c. 19.
estate that a man could dispose of, if survived by wife
and children, was one third.
§ 37. (c). If the husband left a widow but no children, the Widow and no division was, and is, bipartite: one half being jus relictae, and
the other half dead's part.
§ 38. (d). If the wife predeceased, and the husband was Children and survived by a child or children, the division on his death was, and is, bipartite, one half being legitim and the other half dead's part.
§39. The rules stated in paragraphs (b), (c), and (d) are still Present law.
the law, and have been the law of Scotland from the earliest times, and were at one time the law of England. They apply only in the case of Scotch succession, that is, when the husband was domiciled in Scotland at the time of his death. If he was domiciled elsewhere, the succession to his moveable estate will be regulated by the law of the place.1
ment of the
§40. "When anyone being indisposed wishes to make a oldest statewill, if he be not involved in debt, all his moveables should law by Glanvil. be divided into three equal parts of which one belongs to the heir, another to his wife, and the third is reserved to himself. Of this third he has the free power of disposing: but if he dies without leaving a wife, the half is reserved to him." This is the law as stated by Ranulf de Glanvil, the oldest writer on English law, and whose work is the founda
1 Nisbett v. Nisbett's Trustees, 24 Feb. 1835, 13 S. 517; Newlands . Chalmers' Trustees, 22 Nov. 1832, 11 S. 65; Kennedy v. Bell, 2 Feb. 1864, 2 M. 587. Infra, p. 200.
2 De Legibus et Consuetudinibus Angliae, vii. c. 5. The germ of the statement appears in the Secular Dooms of Canute, c. 71 (Ancient Laws and Institutes of England, vol. i. p. 413; Stubbs' Select Charters, p. 74, ed. 1884). By the laws ascribed to Henry I. (lxx. 22), a widow was entitled to her dower and dowry (dos et maritacio), her Morninggift, and one-third of the conquest (de omni collaboracione sua preter
Rule of the
Genesis of the Regiam Majestatem.
tion of the well-known Regiam Majestatem. The text of this passage in the two treatises is identical in certain MSS.1 In some of those of the Regiam "children" 2 is substituted for "heir," which makes the law exactly what it now is. It is curious that while in England Glanvil's work is accepted as of the highest value, in Scotland the Regiam Majestatem is not what is technically known as an "authority," and has been by some regarded as little short of a forgery, yet it accurately states the law of Scotland in many particulars. In the present case Glanvil's rule ceased to be the general law of England shortly after he wrote, although it remained in force in various parts of that country until a recent date. Without entering upon a discussion of that quaestio vexata, the origin of the Regiam Majestatem, it may be remarked, in passing, that Glanvil's treatise, at one time, fairly represented the law of Scotland. It seems to have been revised by a scholiast of the thirteenth century to bring it down to his own date, and into harmony with the special customs of Scotland, where it became known as Regiam Majestatem. This was probably again revised in the next century, and was then accepted as of authority, but was not subsequently vestes et lectum suum) Ancient Laws and Institutes of England, vol. i. p. 575. This is almost a reproduction of the laws of the Ripuarian Franks, tit. 37. See infra, p. 35. She had in addition under the latter 50 solidi of dowry and her Morning-gift.
1 See Regiam Majestatem, ii. c. 37 (ed. Skene), c. 30 (ed. Innes), Acts of the Parliaments of Scotland, i. p. 615.
2 Skene's translation reads "bairns." In the Burgh laws it is "the third parte of all the gudes and geir perteines to the sonnes and dochters lawfully begotten."
3 This was Lord Hailes' opinion: "Supposing Regiam Majestatem to have been copied from Glanville, where-ever its tenor is similar to that of Regiam Potestatem, this will derogate from the antiquity, but not from the authority of Regiam Majestatem.
"The Scottish legislature might imperceptibly adopt the composition of a private man, drawn up from the law of England, as the whole