plus relinquere, nec dotis, aut ante nuptias donationis nomine, seu mortis causâ habitâ donatione, conferre, nec inter vivos conscribendis donationibus, (quæ etsi constante matrimonio civili jure interdictæ sint, morte tamen donatoris ex certis causis confirmari solent,) quàm filio, vel filiæ, si unus, vel una extiterit. 66 Quòd si plures liberi fuerint: singulis æquas partes habentibus minimè plus quàm ad unumquemque eorum pervenerit ad eorum liceat vitricum novercamve transferri. Sin autem non æquis portionibus ad eosdem liberos memoratæ transierint facultates: tunc quoque non liceat plus eorum novercæ, vel vitrico, testamento relinquere, vel donare, seu dotis, vel ante nuptias donationis titulo conferre, quam filius, vel filia habet, cui minor portio ultimâ voluntate derelicta, vel data fuerit, aut donata: ita tamen, ut quarta pars quæ eisdem liberis debetur ex legibus nullo modo minuatur, nisi ex his causis quæ de inofficioso excludunt querelam . . . Sin verò plus quàm statutum est, (aliquid) novercæ, vel vitrico relictum, vel donatum, aut datum fuerit, id quod plus relictum, vel donatum, aut datum fuerit, tanquam non scriptum, neque derelictum, vel donatum, aut datum sit, ad personas deferri liberorum, et inter eas dividi jubemus: omni circumscriptione, si qua per interpositam personam, vel alio, quocumque modo, fuerit excogitata, cessante." (a) As the object of this provision is the protection of the children, it is considered that the deceased cannot deprive them of its benefit by expressly authorising the survivor to marry again, or even naming the person with whom such second marriage should take place. A contrary opinion has, however, been maintained by some jurists. (b) be deprived of it, if, by themselves or their guardians, they expressly, or even tacitly, consented to the second marriage; but that opinion also has been controverted. (a) When the penal consequences have once attached under the law hâc edictali, by an excess in the gift or bequest, the right acquired by the children of the first marriage cannot be defeated by the husband and wife revoking the gift, or by the survivor renouncing it, or by the insolvency of the donor, and the consequent inability of the children of the second marriage to receive payment of it. (b) The surviving parent, being about to enter upon a second marriage, is required by law to furnish to the children by the first marriage, as a preliminary step, an inventory of their rights in the property of the deceased parent. For this purpose, the surviving parent, with the next of kin to the children, as guardians thereto chosen, makes an act whereby the amount of this property is ascertained and declared. This is called vertigling, or verweeging. In this case the duty of the guardian is limited to the examination of this inventory; and for this purpose, he is bound to make a strict enquiry into the property in order to prevent the children being prejudiced by the valuation or statement; but when this is done, and the formal act completed, his duty in this respect ceases, for he has nothing to do with the order or disposition of the property itself. (c) (a) Voet, lib. 23, tit. 2, n. neus, Controv. lib. 3, c. 65. Fachi 138. Gayl. lib. 2, Obs 98, n. 10, 23. 33. Groenewegen, ad 1. 3, c. de Secund. Nupt. n. 5, et seq. Someren, de A. Wesel, ad Nov. Cons. Ultraject. art. 11, (b) Voet, ib. n. 113. Jure Nov. c. 11, § 2, n. 6. n. 92, et seq. ad n. 108. (c) Van der Keesel, Thes. Select. Thes. 142, 143, 144. SECTION III. EFFECT OF MARRIAGE ON THE PROPERTY OF THE HUSBAND AND WIFE, IN LOWER CANADA AND ST. LUCIA UNDER THE COUTUME OF PARIS, AND IN THE MAURITIUS UNDER THE CODE CIVIL. La communauté des biens under the coutume of Paris.-Le régime de la communauté under the Code Civil.—When it commenced.—Of what it consisted.-En actif, or the property which was subject to it.—En passif, or the debts, &c., with which it was chargeable.-The rights of the husband and wife in respect of the administration or alienation of the property, either in community, or which belonged to the wife, and was excluded from it. The dissolution of the community.-The rights of acceptance or renunciation. The continuance of the community.—Of the liquidation and division of the property.-The rights and liabilities thereon of the conjoints and their heirs.-Douaire.-Le régime dotal under the Code Civil.-Donations between husband and wife.-Second marriages.Communauté conventionelle. — Conventions matrimonials. A COMMUNITY of property, une communauté des biens, between the husband and wife, formed a part of the customary law of France. It had prevailed there from so remote a period, that it is doubtful when it was first introduced, and from what source it was derived. According to some of the coutumes it was the necessary legal effect of the marriage, when there had been no ante-nuptial contract excluding it. According to others, it did not take place, unless the parties themselves adopted it by their ante-nuptial contract. In the coutume of Normandy it was not only declared not to exist, but it was not permitted to be introduced into a nuptial contract. In those provinces which were governed, not by their own coutumes, but by the civil law, le droit écrit, it had no existence, unless by the contract of the parties. There prevailed an important distinction, even amongst those coutumes which established the community. Thus, according to the coutumes of Anjou, Maine, Chartres, and Brittany, the community would not take place unless the husband and wife survived its celebration a year and a day. If either died before that period had elapsed, the community was deemed never to have had existence. But if they survived that period, the community had relation to and was deemed to have commenced from the moment of the celebration of the marriage. On the other hand, according to the coutumes of Paris, Orleans, Poitou, Berry, and other provinces, the community commenced from the moment of the celebration of the marriage, and its effect was not defeated by the shortness of the period the husband and wife may have survived their marriage. In consequence of the adoption of the civil law by some of the provinces of France, whilst others were governed by their own particular coutumes, the property, and the rights of the husband and wife in relation to it, were regulated by two different systems of law, one, le régime de la communauté, and the other le régime dotal. The Code Civil, when it abolished these coutumes, retained le régime de la communauté, and made it the common or general law of France. It would have been its only law, if those provinces which followed the civil law had not required that le régime dotal should also be retained. (a) The Code, in the rules which it has established, has selected for le régime de la communauté whatever was most valuable in the coutumes, and for le régime dotal, the most suitable provisions of the civil law. Le régime de la communauté, as it is established by the (a) Toullier, Le Droit Civil, liv. 3, tit. 5, du Contrat de Mar. &c. n. 7. Code, Art. 1391. Code Civil, is declared to be the common or universal law (le droit commun) of France. It prevails in every case in which the parties have not, by special stipulation or contract, derogated from or modified it. (a) The Code adopts, as a fundamental principle, that the law does not regulate the conjugal society in respect of the property of the husband and wife, except when they themselves have made no special stipulation respecting it. It leaves them therefore at liberty to make such agreements on their marriage as they may deem most conducive to their interests, provided they do not contravene the few restrictions to which it has subjected them. (b) It may be proper here to mention, as one of those restrictions, that the married parties can no longer stipulate in general terms that their conjugal society shall be regulated by one of the customs, laws, or local ordinances, which formerly governed the different parts of the French territory, and which the Code abrogates. (c) It permits them, however, to declare in general terms, that they intend to be married either sous le régime de la communauté, or sous le régime dotal. (d) If they adopt le régime de la communauté, their rights are governed by the rules which the code has established for that régime, in the same manner as if they had made no declaration. (e) If they married sous le régime dotal, they became subject to the regulations adopted by the code in relation to the latter régime. The simple stipulation that the wife settles property upon herself, or that it is settled upon her en dot, is not sufficient to subject such property to le régime dotal, if the marriage contract itself does not contain an express declaration in this respect. Neither have they placed themselves under that régime by the simple de (a) Art. 1393. (b) Art. 1387. (c) Art. 1390. (d) Art. 1391. (e) Art. 1392. |