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eminent judge that "the maxim is directly applicable, non omnium quæ a majoribus nostris constituta fuerunt, ratio reddi potest." 1

§ 48. If the wife be the survivor of the spouses she is entitled to a liferent of one third of the heritage-formerly in which the husband was infeft at the date of the marriage,2 now in which he dies infeft, and whether acquired by succession or by singular title. This is called her Terce, or Dower, as Sir James Balfour terms it, and was given,

1 Per Inglis, L.P., in Lord Clinton v. Trefusis, 18 Dec. 1869, 8 M. at p. 372; Again in Watts v. Wilkin, supra.

2“Quhilk aucht and suld be, ane reasonable third part of all and haill the tenement of land quhilk the man or husband hes the time of the desponsatione or marriage," Skene, De Verborum Significatione, v. Dos. He founds on the Regiam Majestatem (ii. c. 13; Skene, c. 16), which agrees with Glanvil (vi. c. 1). See also Magna Charta, c. 7; Stubbs' Select Charters, p. 298. See supra, p. 13, note.

A Scotch contract of marriage of 1559 provides:-"Forder ye said Willm bindis and obleiss him, yat he sall na maner of way defraud ye said Elizabt of hir third of his fyve mark landis of Glanderstoun, nor nane oyr landis he is infeft in at yis present; bot yat sche may peacebillie broik ye same quhen yai sall happin to fall." Contract of Marriage between William Mure of Glanderstoun and Elizabeth Hamilton, aunt to Gavin, Commendator of Kilwinning, 3 July, 1559. Selections from the Family Papers preserved at Caldwell, i. p. 74 (Maitland Club).

Skene's phrase, "ane reasonable third part," is the ancient words of style: "Terce" is comparatively modern. See a lease by Jowana de Congiltoun, relict of William de Haliburtoun, of "tota sua racionabilis tercia pars" of certain lands to the Abbey of Melrose, dated 5 Feb., 144, Liber de Melros, ii. p. 567 (Bannatyne Club). In 1678 Helen Strachan, relict of George Rankin, was served "in a just and reasonable third" of certain lands. Collections for Aberdeen, iv. p. 36 (Spalding Club).

3 Terce is the douaire of the customary law of France, the dower of English laws; hence dowager; to be distinguished from dowry, the French dot, the Scots tocher. See post, § 113.

By the passing of the Act for the Amendment of the law of Dower (3 and 4 Wm. IV. c. 105), which came into operation on 1st January,

according to the quaint but probably not very accurate reason alleged by him, "to the effect that gif it happin hir husband to deceis befoir hir, scho may the mair easily be maryit with ane uther man."


§ 49. To entitle her to terce the marriage must, ac- Rules as to cording to the former law, have subsisted for year and day, or a living child must have been born of the marriage, but this condition does not now subsist.1 In recent times terce was not due from burgage property, but this was contrary to the ancient practice. The law was altered by statute in 1861.3 As the law still stands it is not demandable from superiorities, from leases, or from coal, which are important exceptions; but it may be claimed from securities on land constituted by infeftment, which still remain heritable as regards all rights of courtesy and terce by the husband or wife of the creditor. In England the

widow was entitled to occupy the principal messuage, unless it was a castle, for forty days after her husband's death.

1834, dower can be so easily defeated as almost now to cease to exist. See Thomas, in re Thomas v. Howell, L.R., 34 Ch. D. 166. In O'Rorke v. O'Rorke, 1885, 17 L.R. Ir. 153, the claim was allowed.

It still prevails in many of the States of the American Union, and in buying land in America it is always necessary to see whether the vendor is married, and, if so, to obtain the consent of his wife. It must there be set off to the widow by metes and bounds, just as in Scotland she is kenned to her terce. See Martindale, Treatise on the Examination of Titles to Real Estate, §§ 133, 58, 44; Boone, Manual of the Law of Real Property, § 52 et seqq. (1883).

1 The law was altered in 1855, by 18 Vict. c. 23; Post, § 55.

2 This is apparent from the Leges Burgorum, cc. 23, 24. Post, § 69.

3 The Conjugal Rights Amendment Act, 1861, 24 and 25 Vict. c. 86,

§ 11; Post, § 69, Appendix, p. 186.

4 31 and 32 Vict. c. 101, § 117. Appendix, p. 190. The old customary law of France was the same as to incorporeal rights deemed immoveable. Pothier, Traité du Douaire, § 22 et seqq.


Lesser terce.

Kenning to the terce.

Power of testamentary dis

gards heritage and move


This was called her quarantine, and was at one time the law of Scotland.1

§ 50. It may happen that a proprietor succeeds to land burdened with terce and dies before it is extinguished. In this case, if he leaves a widow, she takes only one third of the two thirds. This is called the Lesser Terce, but on the death of the first widow the right of the second is enlarged to the full third if she is then alive.

51. A surviving husband requires no proceedings to invest him in his courtesy. Not so a widow. To render her right effectual certain legal proceedings are required. First she must be served to her terce by a Brief from Chancery. By this her right is vested. Next, in order to give her specific possession, the property must be apportioned between the widow and the heir. This is called Kenning to the Terce. The same rule prevailed in England as regards dower.

§ 52. Children, as has been explained, have no legal claim position as re- to any part of the heritable property of their parents, who can dispose of their own as each thinks proper. To use the language employed of moveable estate, it is all dead's part. If a married man-and the same now applies to a married woman-dies possessed of £20,000, of which £10,000 is invested in Railway or other Stocks and £10,000 on Bonds and Dispositions in Security, then on his death his children can claim a half or a third, as the case may be, of the Stocks and can set aside any testamentary deed disposing of them. They cannot claim any part of the Bonds, and their

1 See the Leges Burgorum, c. 24; and cf. Statuta Alexandri, c. 22; Statuta Roberti, III. c. 20; Magna Charta, c. 7 (Stubbs' Select Charters, p. 298).

parent can absolutely bequeath every copper of their amount to any person or for any purpose as if the children did not exist.1


A shipowner's children have an absolute right to onethird or one-half, as the case may be, of all his shipping property, but if he owns land and growing timber, a loch, a coalpit, or a store, he may do with these as he pleases. heir to a peerage has not a word to say if his father gives every acre of the family estates to the youngest son, or leaves them to trustees for clothing the Hottentots or teaching phrenology; but the father cannot bequeath his wardrobe to his valet except subject to his children's right to a share.2

1 1 Although Bonds and Dispositions in Security are by 31 and 32 Vict. c. 101, § 117, made moveable quoad succession, they are not so in a question of Legitim. (See last clause of the above section of the Act), Appendix, p. 191.

2 Although the heir has no claim if the land is put past him, he formerly had a claim as heir to a certain portion of the moveables called "heirship moveables," which could not be defeated, even although the land was settled upon another. This was abolished in 1868. 31 and 32 Vict. c. 101, § 160, Appendix, p. 193.


Statutory modification

of common law.

Wife's share of goods in communion abolished.

Rule as to year and day abolished.




§ 53. The common law rights of husband, wife, and children during marriage and upon its dissolution having been stated, the statutory. modifications of that law shall now be traced in the order of time.


54. This statute made several important changes on the common law, but for the present purpose only the following require to be noticed.

1. By § 6 the right of a predeceasing wife's representatives to a share of the goods in communion was abolished, as regards marriages dissolved after the date of the Act. If the wife died prior to that time the old rule holds.2

As the law now stands, therefore, the death of the wife does not affect the moveable property of the surviving husband. 2. By sec. 7 the dissolution of a marriage before the lapse 118 Vict. c. 23, Appendix, p. 177. Popularly known as Dunlop's Act, having been carried through Parliament by Mr. Murray Dunlop, M.P. for Greenock. Since the passing of this statute it should be noted that the legal meaning of nearest-of-kin is no longer equivalent to legal heirs in mobilibus, Hood v. Murray, 1889, L.R. 14 App. Ca. 124.

2 Kennedy v. Bell, 2 Feb. 1864, 2 M. 587.

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