and a married woman can destine her heritable estate, subject to the right of her husband's courtesy, to any one. If claims of terce, jus relicta, and legitim out of his estate, have been barred either by provisions in an antenuptial contract or otherwise, a married man can test on his whole estate, heritable or moveable, as he chooses; and a married woman can do the same if claims of courtesy, jus relicti, and legitim out of her estate have been barred. cannot test; moveable A pupil cannot test; a minor can test on his moveable A pupil estate, not on estate which is heritable ex suâ naturâ. a minor can on The succession in moveables is governed by the of the domicile of the deceased person, Ersk. 3, 9, seq.; the succession in heritage is governed by the 2 law estate. succession is the lex domicilii. succession. rei sita. able estate next-of-kin. heir in The moveable estate of a person who dies unmarried, Rule-moveor the dead's part of the estate of a person who is survived descends to by both spouse and children, or by spouse, or by children, descends, ab intestato, to the next-of-kin of the deceased. If the deceased died possessed of heritage as well as move- Collation by ables, and if his heir in heritage is one of his next-of-kin, heritage. the heir can take the heritage, in which case he is entitled to no share of the moveables; or he can throw the heritage into the common stock, in which case he and the other nextof-kin are entitled to an equal share of the heritable and moveable estate. The right of representation in moveable Provisions of succession was introduced, and the right of collation Moveable was extended, by the provisions of the Intestate able Succession Act, 1855 (18 Vict. c. 23), which was passed on 25th May, 1855. In the Act, the words Interpretation "intestate succession" mean succession in cases of partial Intestate Succession Move- Act. clause of Act. as well as of total intestacy; the word "intestate means every person deceased, who has left, undisposed of by will, the whole or any portion of the moveable estate on which he might, if not subject to incapacity, have tested; and the words "moveable estate" mean the whole free moveable estate on which the deceased, if not subject to incapacity, might have tested, undisposed of by will, and any portion thereof so undisposed of. A reference to the (1.) The issue provisions may now be made. The Act provides :—(1.) “In ing next-of-kin all cases of intestate moveable succession in Scotland, accruof their parent ing after the passing of this Act, where any person, who, had in the succes- he survived the intestate, would have been among his next of a predeceas come in place sion to an intestate. of-kin, shall have predeceased such intestate, the lawful child or children of such person so predeceasing shall come in the place of such person, and the issue of any such child or children, or of any descendant of such child or children who may in like manner have predeceased the intestate, shall come in the place of his or their parent predeceasing, and shall respectively have right to the share of the moveable estate of the intestate to which the parent of such child or children, or of such issue, if he had survived the intestate, would have been entitled; provided always that no representation shall be admitted among collaterals after brothers' and sisters' descendants, and that the surviving next-of-kin of the intestate claiming the office of executor shall have exclusive right thereto, in preference to the children or other descendants of any predeceasing next-of-kin, but that such children or descendants shall be entitled to confirmation when no next-of-kin shall compete for said office," § 1. Prior to this Act there was no representation in moveables; there always has been representation in heritage. To illustrate the doctrine of representation in moveables, a case may be stated. Thus, if A dies intestate, survived by a widow, two children, and two grandchildren by a child who predeceased him, and possessed of free moveable estate, the estate will be divided in this way:--One-third, as jus relicta, falls to the widow; one-third, as legitim, goes to the children of the intestate (there being no representation as regards the legitim fund); and the remaining one-third, which is dead's part, and which A could have bequeathed to relatives or strangers, can be demanded as follows:-onethird of it by each of the two children, and the remaining one-third by the grandchildren, in virtue of the representation introduced by the Act. Again, suppose that A, an unmarried man, dies intestate, and that he is survived by two brothers, and by a son of a sister who predeceased him, and possessed of moveable estate. If the two brothers and sister had all survived him, they, as his nearest-of-kin, would each have been entitled to one-third of his free moveable estate. Prior to 1855 the nephew would have taken nothing, but now he and the two brothers of the intestate each take one-third of the free estate. The representation introduced by the Act applies only to cases Act only applies where where some of the next-of-kin of the intestate die and some of the leave issue. Accordingly, where all the nearest relations of have prethe intestate are nephews and nieces, they, as his next-of- left issue. kin, and in their own right, take his estate per capita, and not per stirpes as representatives of their deceased parents, Turner, 8 Macph. 222. In the case of Ormiston, Collaterals in 1 Macph. 10, there was a competition between cousins- the Act. german and the descendants of cousins-german about the succession to moveable property of an intestate, and it was decided that the expression "collaterals," in section 1 of the Act, means collateral relations of the intestate, that the cousins-german, who were the next-of-kin of the intestate, were collaterals under the section, and that they, to the exclusion of the descendants of predeceasing cousins-german, were entitled to the estate of the intestate. If a testator, dying after 1855, leaves by testament moveable estate to his "nearest heirs and successors," Nimmo, 2 Macph. 1144, or to his "heirs and executors," Maxwell, 3 Macph. 318; or to his "relations," Williamson, 4 Macph. 66; or to his next-of-kin deceased and the sense of (2.) Issue of predeceasing heir succeed ing to the intestate's collate, but other issue not excluded by ing from claiming out of moveable estate difference between value of heritage and share their "executors," Ewart, 9 Macph. 232, his heirs in mobilibus, according to the Intestate Moveable Succession Act, will take his estate. But if a testator, dying after 1855, leaves estate to his "nearest-in-kin," the issue of a predeceasing next-of-kin are excluded, Young's Trustees, 8 R. 242; but not if that expression is followed by qualifying words indicative of heirs ab intestato, Tronsons, 12 R. 155; and see Hogg, 14 R. 887. (2.) Section 2 of the Act is in these terms: "Where the person predeceasing would have been the heir in heritage of an intestate leaving heritage may heritable as well as moveable estate had he survived such intestate, his child, being the heir in heritage of such inteshis not collat- tate, shall be entitled to collate the heritage to the effect. of claiming for himself alone, if there be no other issue of the predeceaser, or for himself and the other issue of the predeceaser, if there be such other issue, the share of the moveable estate of the intestate which might have been parent would claimed by the predeceaser upon collation if he had survived the intestate; and daughters of the predeceaser, being heirs-portioners of the intestate, shall be entitled to collate to the like effect; and where, in the case aforesaid, the heir shall not collate, his brothers and sisters, and their descendants in their place, shall have right to a share of the moveable estate, equal in amount to the excess in value over the value of the heritage of such share of the whole estate, heritable and moveable, as their predeceasing parent, had he survived the intestate, would have taken on collation." To illustrate the last part of this section a case may be stated. Suppose A dies intestate, possessed of a heritable property of the value of £1000, and of free moveable property of the value of £3000, and survived by two sisters, B and C, and a nephew D and a niece E, the children of a brother F who predeceased him. Had F survived A, he would have been heir to the heritage, and would have been entitled to collate the heritage with the moveable estate. Had he collated, he and his sisters B and C would each have taken on collation. succeed to half when no mother (4.) Where father has pre father deceased and there is no have taken £1333, 6s. 8d. F having predeceased A, D is heir to the heritage, and if he refuses to collate for himself and E, E can claim out of A's moveable estate £133, 6s. 8d.-i.e., the difference between the value of the heritage and the share her father F would have taken by collation. (3.) By section 3 of the Act it is pro- (3.) Father to vided: "Where any person dying intestate shall predecease extent of onehis father without leaving issue, his father shall have right issue. to one-half of his moveable estate, in preference to any brothers or sisters or their descendants who may have survived such intestate." Thus, if a person dies intestate, survived by his wife and a father and a sister, his free moveable estate is divided in this way: one-half, as jus relicta, goes to his widow, one-fourth to his father, and one-fourth to his sister. Prior to 1855 the father would have received nothing, and the sister would have taken one-half as dead's part. (4.) The Act gives the of an intestate, who leaves no issue and whose has predeceased him, a right of succession. Section 4 issue, mother provides: "Where an intestate dying without leaving tent of oneissue whose father has predeceased him shall be survived by his mother, she shall have right to one-third of hist moveable estate, in preference to his brothers and sisters or their descendants, or other next-of-kin of such intestate." (5.) Although brothers and sisters consanguinean of an (5.) Brothers intestate succeeded to his moveable estate prior to 1855 uterine and as they succeed now, on the failure of the brothers sisters-german and their descendants, brothers and uterine, like the mother, of an intestate had, prior to no right of succession. Now the Act, if there is a of brothers or sisters-german or consanguinean and their guinean, and descendants, and if both the father and the mother of the ants are dead. intestate have predeceased him, gives the brothers and sisters uterine of the intestate one-half of the succession. Section 5 enacts that "where an intestate dying without leaving issue, whose father and mother have both prede succeeds to ex third. and sisters their de and scendants sucsisters half if father, ceed to one mother, 1855, brothers and sisters german, failure and consan their descend |