Imágenes de páginas

re-edited, and became to a considerable extent obsolete, and was neglected, although nominally retained as one of “the bukis of law of this Realm."

We are not in the present case dependent upon the Regiam Majestatem for the old law of Scotland, as it is substantially found in two admittedly authentic documents, the Leges Burgorum1 and certain fragments of Ancient Laws.2

relictae and of

§ 41. Jus relictae had its origin in the old German customs, Origin of jus probably influenced by Roman law.3 Legitim, on the other legitim. hand, appears to have had its foundation directly in the jurisprudence of Rome, which very jealously guarded the rights of children. They had an action querela inofficiosi testamenti for reduction of the undutiful testament, as it was termed, if they were not remembered to the extent required by law. So binding was its obligation regarded that one who violated the "officium pietatis" was looked upon as if he had been of unsound mind, color insaniae.

and legitim

cannot be

§ 42. Jus relictae and legitim belong absolutely to widow Jus relictae and children respectively, and cannot be disappointed except defeated. by ante-nuptial contract, or by special discharge. Both vest Christian world adopted the decretals of Gratian." Additional case of the Countess of Sutherland, chap. i. p. 2. See also ib. p. 24.

Keeping out of view the references to statutes, the alterations upon the text of Glanvil indicate approximately the date of the Regiam. Judging from these it would appear that it assumed its present form at a comparatively early date. Little, if any, use has been made in it of later English authors; it would seem as if the adapter of Glanvil was ignorant of Bracton, Britton, and Fleta.

1 C. 115 (p. 55, ed. Burgh Records Society).

2 C. 21 (ib. p. 170).

3 The laws of the Ripuarian Franks gave the wife one third of the "conquest" of the marriage. Leges Ripuariorum, tit. 37; Walter, Corpus Iuris Germanici Antiqui, vol. i. p. 175. See also The Capitularies, iv. 9; ib. vol. ii. p. 470. The Ripuarian is to a large extent a reproduction of the Salic law. Both are followed in the Leges Henrici Primi.

Married woman's legi

by mere survivance without confirmation, and widow and children take as creditors not as successors; probably upon the ground that the title accrued during the lifetime of the husband and father and became complete upon his death.2 The doctrine of communio bonorum explains the nature of the claim for jus relictae and legitim, but then it is contended, as has been already pointed out, that communio bonorum1 never really did exist, but was reared up merely to explain those very claims.

43. Whatever a married woman took as legitim, or as one tim passes to of the next of kin of her father or mother, or as a legatee,

husband; but

to take sub

stituted conventional provision.

she may elect passed at once to her husband in virtue of his jus mariti, and from him to his creditors if he was insolvent.5 If a married woman had the right to elect between legitim and a conventional provision, she was however entitled, without her husband's consent, and against the wishes of his creditors, to elect to take the latter, even although the jus mariti was excluded from it. This is still the law; but now 7 neither legitim nor provision vests in the husband ipso jure, although he must consent to the declaration of election.

1 Fisher v. Dixon, 16 June, 1840, 2 D. 1121, affd. H. L. 1843, 2 Bell App. Ca. 63; Fisher v. Dixon, 6 July, 1841, 3 D. 1181.

2 See per Lord Moncrieff in Stevenson v. Hamilton, 7 Dec. 1838, 1 D. 196. This is the principle suggested in England as regards the husband's curtesy. Co. Litt. 30 a.

3 Supra, § 7.

4 The Leges Henrici Primi seem to assume a community between husband and wife, "If a woman die without children, let her parents divide her share with her husband." lxx. 23.

5 Macdougal v. Wilson, 20 Feb. 1858, 20 D. 658.

Miller v. Birrell, 8 Nov. 1876, 4 R. 87; Learmonth v. Miller, 1875, L. R. 2 Sc. App. 438; Stevenson v. Hamilton, 7 Dec. 1838, 1 D. 181 ; Lowson v. Young, 15 July, 1854, 16 D. 1098; Macdougal v. Wilson, supra.

: Infra, §§ 89, 101, 104, 175.

between husband and wife.

§ 44. It is to be borne in mind that by the law of Scotland No succession there is no succession by affinity; husband and wife never succeed to each other, and in no sense can the wife be termed one of the heirs of the husband or the husband one of the heirs of the wife, nor can the relatives of the one succeed to those of the other. Thus what a widow takes jure relictae passes on her death, failing children, to her own next of kin as if her husband had never existed. Similarly what remains with the husband, after satisfaction of the wife's claims, passes to his own relations, to the entire exclusion of those of his wife.

ate estate

passes to her

§ 45. If by convention the jus mariti is excluded and the Wife's separ wife's property remains as a separate estate in her person, or is vested in trustees for her behoof, it passes on her death to her next of kin, to the absolute exclusion of the husband.2

The recent statute which excludes jus mariti provides for this case, as will be afterwards mentioned.

If there are children they, of course, are the nearest in blood of father and mother respectively, and take accordingly, but failing children the nearest of kin of the deceased spouse, however remote the relationship, will take, and if no relative can be traced the Crown will succeed as ultimus haeres, to the entire exclusion of the surviving spouse. The later law of Rome was more favourable to the wife, for it allowed her to come in preferably to the Treasury, but still only after all the kith and kin of the husband.*


1 Inglis v. Inglis, 28 Jan. 1869, 7 M. 435; Smith v. Brown, 18 July, 1890.

2 See Bertram's Trustees v. Matheson's Trustee, 10 March, 1888, 15 R. 572.

3 Stewart's Answers to Dirleton's Doubts, p. 205.

4 In early Roman law, under which the personal position of women was not so favourable, the widow ranked as one of the next of kin of her husband. She took as filia familiae. See Laboulaye, Recherches, p. 31.

own next of kin.

By the common law succession never ascends to the mother and her relatives. Even the mother's own estate,

after vesting in her son or daughter, never ascends to

the maternal line again.

This was altered in 18551 to a certain extent as regards moveable estate, but is still the law as regards heritage.


Marriage does not affect fee of heritable estate.


§ 46. Marriage does not affect the fee of the heritable property of either spouse. Both spouses may, subject to the liferents to be immediately mentioned, dispose of it absolutely by will. If they die intestate neither succeeds to the other, and the heritage of each, subject to these liferents, descends to his or her heir of line. The husband cannot succeed to the wife, or the wife to the husband, except under deed, that is as disponee or heir of provision. The eldest son of the marriage is the heir of line of both spouses if neither had a son by a former marriage. If there was, that son, or the eldest of such sons, will be the heir of his parent. Failing issue the succession to each spouse passes to the collateral and then to the ascending line, just as if the married pair had remained single.

§ 47. As the husband, in virtue of his marital rights is entitled to the rents of his wife's heritage during the marriage, so upon her death he still enjoys the liferent of that estate if he survive. This is called his courtesy-" an gentill and favorable ordinance or constitution," says Sir John Skene.2 It stands now as it was in his days, and

118 Vict. c. 23, § 4. Appendix, p. 180.


Courtesy, or, as it is spelt in England, "curtesy," is the Latin curialitas, and is evidently from curtis. Blackstone says that the reference in this case is to curtis, as the court of the feudal lord whose

as it had done for centuries before, untouched by the hand of the legislator.1

It is subject to these conditions:-(1) That there has been a living child of the marriage-cujus clamor auditus fuerit, or "heard brayant," to use an old phrase; 2 (2) that there is no heir of the wife by a former marriage; (3) that the land has come to the wife by succession; and (4) that she died infeft. Of these rules it has been remarked by an tenant the husband became. This explanation is not altogether satisfactory; but, after issue had, the husband alone did homage for his wife's land during her lifetime. See Coke Litt. 30 a.; 66 b.

The mund of a widow in certain cases under the Leges Longobardicae reverted to the curtis regis, and a wife could in certain events place herself in the curtis regis. Liber Papiensis [Edictum Rotharis], 182, 183, Pertz, Monumenta Germania Historica, Leg. t. iv. pp. 333, 335; Walter, Corpus Iuris Germanici Antiqui, t. i. p. 714, et seq.

Courtesy still confers the parliamentary franchise, 2 and 3 Gul. IV., c. 64, § 8; 31 and 32 Vict., c. 48, § 14.

1 Regiam Majestatem, ii. c. 53 (ed. Innes), c. 58 (ed. Skene); Glanvil, vii. c. 18. It is still in force in many of the States of the American Union. In some the rule of the common law which requires the birth of issue has been abolished, and curtesy attaches on the survivance of the husband to lands in which the wife died seized. Martindale, Treatise on the Examination of Titles to Real Estate, § 133 (1885).

2 Skene, De Verborum Significatione, s.v. curialitas; Fountainhall, i. p. 207; M. 5804. It is a translation of Regiam Majestatem, ii.

c. 58.

"Nam dicunt E. vel A. quotquot nascuntur ab Eva"

is one of the reasons alleged, Bracton, de Legibus Angliæ, 5. 5. 30, § 8 (Rolls Series, VI. p. 458); A Philologicall Commentary by E. L. [i.e. Edward Lisle], p. 52, London, 1652. The Regiam Majestatem, and Glanvil, ut supra, next add that the child must have been "auditum vel brayantem inter quatuor parietes." Curiously, a similar condition is found in the Leges Alamannorum, c. 92, which is more intelligible; the child must have been able to open its eyes and to see the roof and the four walls. Walter, Corpus Iuris Germanici Antiqui, i. p. 228 (Berlin, 1824).

3 As to the case of a wife who takes by singular title but is alioquin successura see Watts v. Wilkin, 19 Nov. 1885, 13 R. 218.

* As to the extent of courtesy, see Lord Clinton v. Trefusis, 18 Dec. 1869; 8 M. 370.

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