SECTION III. LAW O F FRANCE. I. Coutume of Paris.-Except in fiefs there was no distinction founded on primogeniture or difference of sex. The privileges conferred on the eldest son.-Succession distinguished as being in the direct descending, ascending, and collateral lines.-Rules applicable to all these species of succession. Seisin of heir.-Rule applicable to succession in the direct descending line.-Equal division of the succession.-Preferences to either of the children not admitted.-Succession in the ascending line.— Rules in case there are biens propres.-Succession amongst collaterals.— Biens propres.-Moveables and acquéts.-No preference given to the double line. II. Normandy, coutume of.—Succession to biens propres in the direct and collateral lines.-Preference of males.-Primogeniture.-Succession to biens acquets and moveables. III. Code civil.-Rejects the distinction between biens propres and acquets, and the rule paterna paternis, materna maternis.—Representation, to what extent admitted in the descending line.-Natural children.-Ascending line. Collaterals.-Husband and wife. In France, previously to the introduction of the Code Napoleon, the succession ab intestato was either that of the civil law, le droit écrit, or it was regulated in some provinces by particular coutumes. (a) These coutumes were abolished by the Code Napoleon, which established one law of succession for the whole of the French empire. But the coutume of Paris is still retained in St. Lucia and Lower Canada, and forms therefore a subject of the present inquiry. The order of succession was in some degree affected by the nature of the property which might be the subject of it. In the descent of immoveable property held in fief or franc aleu noble, the eldest son enjoyed the droit (a) Pothier, Tr. des Success. Pocquet de Livonniere, Regles du Droit François, liv. 3, c. 1. Le Brun, des Success. Duplessis sur la Coutume de Paris, Tr. des Success. liv. 1. Ferriere sur la Coutume de Paris. d'aînesse and preciput, and received a larger share than his coheirs. He was not however entitled to the privileges incident to the succession to this species of property, unless the deceased had held it as a feud. It was not enough that he had a charge on it. A rent charge on it was not that species of feudal property to which the droit d'aînesse was annexed. (a) The elder son could claim this privilege only by his title as heir, and therefore had no right to it if he did not accept the succession. (b) Neither was he liable to a greater extent than his other brothers to pay the debts of the intestate. (c) It was confined to the eldest son. If he renounced the succession, the second son could not claim it. (d) It could not be claimed by the daughters. It was not in the power of the father to deprive his eldest son of this right, nor could he diminish it by any disposition, either by donation inter vivos, or by will. The father and mother could not in purchasing a feud stipulate for its equal distribution amongst their children. But if the children derived it from the gift of a third person, the latter might make such a stipulation, because he might make his gift on such terms as he pleased. He might therefore settle it so that it should devolve on the younger sons, and utterly deprive the elder of the droit d'ainesse. (e) It was allowed amongst des roturiers as well as nobles. The children of the elder son, whether males or females, represented their parent, and by such representation succeeded to the droit d'ainesse, to the same extent as he would have taken if he had been living. (f) The eldest son had the same privileges in lands of that (a) Pothier, Tr. des Success. c. 2, § 2. (c) Pothier, ib. § 5. (e) Argou, ib. (b) Ib. (d) Pothier, ib. 2 Argou, liv. 2, c. 25. (f) Ib. species of allodial (franc aleu) property described as noble. This right was not allowed to interfere with the legitime of the other children, and if the rest of the property was not sufficient to give them their legitime, the elder took the property the subject of the droit d'ainesse charged with their legitime. (a) Subject to this exception the children of the deceased were called equally, without distinction of sex or degree, to the succession of all the intestate's property, immoveable and moveable. (b) “Les enfans heritiers d'un defunt, viennent également à la succession d'iceluy défunt; fors et excepté des heritages tenus en fief, ou franc aleu noble, selon la limitation mentionnée au titre des fiefs." (c) The succession is either the direct or collateral. Succession in the direct line is that of descendants and ascendants. There are some rules applicable to the order of succession in the direct and collateral line, and whether it be that of the direct descending or direct ascending line. There are also rules peculiar to each of these orders of succession. It was a fundamental principle of the law whether the succession was that of the direct line or collateral, that "le mort saisit le vif, son hoir plus proche et habile à lui succeder." (d) The import of this rule was that the property and possession of the estate of the deceased passed from him to his heir without any actual or corporeal possession of it taken by the latter. He was seised par la disposition of the coutume. The possession which the heir acquires by the death of the ancestor is precisely that which was held by the ancestor himself, and thus the heir continues the possession. commenced by his ancestor. The heir presumptive is (a) 2 Argou, liv. 2, c. 25. (b) Cugnet. tit. 12, art. 66. (c) Cout. Paris, art. 302. 1 Dupless. p. 194 and p. 207. (d) Art. 318. seised, although he should be ignorant that the succession has devolved on him, or be absent, or an infant, idiot, &c. And he is so completely seised, that he may sustain the complaint en cas de saisine et de nouvelleté, a remedy not competent unless the person had in fact the seisin. Another consequence of this rule is, that the legatees must demand their legacies from the presumptive heir as being seised of the estate from the moment of the ancestor's death. It follows also that if one of the children die after the death of his father without having assumed the quality of heir, or without having renounced the succession, he is deemed heir in every case in which it would be most advantageous to him to sustain that character. His share in the succession to his father's estate does not survive to the other children who are heirs, but it is divided amongst them as a collateral succession. The proximity of the heir and his ability to succeed are two essential conditions required by the coutume. The proximity is considered with reference to the time of the decease. The proximity does not transfer the succession in cases where representation is admitted, or where the succession regards biens propres, or in the collateral succession to fiefs or biens nobles, in which the male excludes the female in equal degree, or where the succession has been renounced by a nearer relation, for in the latter case it passes to the relation who is of the next degree. Aliens who were not naturalized were incapable of succeeding to the property of the deceased, either by virtue of his will or on his intestacy, but it belonged to the crown by the droit d'aubaine. The children of such aliens, if they were born and resided in France, were admitted to the succession. (a) Illegitimate children were excluded from the succes sion to the property as well of the reputed mother as of the reputed father. (a) Another rule which in some measure qualifies that of le mort saisit le vif is, that the assumption of the quality of heir is the voluntary act of him whom the law calls to the succession: "Il ne se porte héritier qui ne veut," and he is therefore not only left at liberty to renounce the succession, but before he incurs the obligations of heir, he must do some act to demonstrate his intention to take the succession. (b) He cannot be both heir and legatee or heir and donee by act inter vivos if he be heir in the direct line. But if he be heir in the collateral line he may be also a donee by act inter vivos. (c) Where one of several heirs renounces, his share accrues to the survivors. (d) The rules peculiar to succession in the direct descending line are, that the same person cannot be both heir and donee by act inter vivos. (e) An equal division of the property among the children is so much the object of the coutume that it cannot be defeated by the father or mother. (ƒ) They cannot by donation inter vivos, or by testament or mortis causâ disposition, or in any other manner, give to one of their children coming to the succession any exclusive or greater benefit than is given by them to the others: "Père et mère ne peuveut par donation faite entre-vifs, par testament et ordonnance de derniere volonté, ou autrement en maniere quelconque, avantager leurs enfans, venans à leurs successions, l'un plus que l'autre." (g) It will have been observed that the article 302 uses (a) Pothier, Tr. des Success. c. 1, § 3. Argou, liv. 1, c. 10. (b) Art. 316, 317. (e) Art. 301. (c) Art. 300, 301. (g) Cout. Paris, art. 303. 1 Dupless. p. 203, 207, 208, and 212. |