Illegitimate children in a question of succession.

Parts of a testament of moveable

ceased him, shall not leave any brother or sister-german or consanguinean, nor any descendant of a brother or sistergerman or consanguinean, but shall leave brothers and sisters uterine, or a brother or sister uterine, or any descendant of a brother or sister uterine, such brothers and sisters uterine and such descendants in place of their predeceasing parent shall have right to one-half of his moveable estate." Thus, if an intestate has no heirs, either in the descending line or in the collateral line (which does not include brothers and sisters uterine, but which includes brothers and sisters consanguinean and their descendants), but if he is survived by a father and mother and brothers and sisters uterine, the father, as his next-of-kin in the ascending line, takes the whole estate to the exclusion of mother and brothers and sisters uterine. But if he dies predeceased by father and mother, and by all his brothers and sisters, german and consanguinean, and their descendants, then his brothers and sisters uterine take one-half of his free moveable estate, and the other half goes to his next-of-kin in the ascending line. The brothers and the sisters uterine of an intestate have no right of succession to his heritable estate. An illegitimate child has no right of succession ab intestato to the estate of his or her parent, nor has the parent of an illegitimate child any right of succession ab intestato to the estate of the latter, Bell's Prin. § 2063. The lawful issue of a parent, who is himself illegitimate, succeed to his estate according to the rules already noted, and such parent has the same right of succession to the estate of his lawful issue as a parent who was not born illegitimate has to the estate of his children. But if an illegitimate child dies without lawful issue and intestate, his estate, heritable and moveable, falls to the Crown as ultimus hæres.

The rules of intestate succession having been explained, the parts of a testament of moveable estate (when it is

estate.

desired to create no trust), may now be considered. a testament generally consists of these parts :

I. NARRATIVE OR INDUCTIVE CLAUSE.

II. DISPOSITIVE CLAUSE.

III. APPOINTMENT OF AN EXECUTOR.

IV. PAYMENT OF LEGACIES.

V. RESERVATION OF LIFERENT BY TESTATOR.

VI. CLAUSE DISPENSING WITH DELIVERY.

VII. REGISTRATION CLAUSE.

VIII. TESTING-CLAUSE.

Such

The ordinary form of a disposition and settlement of Form of dismoveables is in these terms :

position and settlement of moveables.

clause.

I, A, for the favour and affection I have and bear to the per- I. Narrative sons after named, and for certain other good causes and considera- or inductive tions, Do HEREBY, with and under the burdens and reservations clause. after specified, GIVE, GRANT, ASSIGN, and DISPONE to and in favour II. Dispositive of B, his heirs, executors, and assignees whomsoever, ALL and SUNDRY the whole moveable estate, of whatever kind and denomination, or wherever situated, at present belonging and addebted, or which shall belong and be owing to me at the time of my death; together with the whole writs, titles, vouchers, and instructions of my said estate, and all that has followed, or may be competent to follow thereon: And further, I do hereby NOMINATE and APPOINT III. Nominathe said B to be my sole executor and universal legatory, with full tion of execupower to him to intromit with the whole estate hereby conveyed, to give up inventories thereof, and to confirm the same; BUT DECLARING ALWAYS that the said B and his foresaids shall be BOUND and

tor.

OBLIGED, as by acceptation hereof they BIND and OBLIGE themselves, IV. Payment to make payment, out of my said moveable estate, of all my just of legacies. and lawful debts, deathbed and funeral expenses, and of any gifts and legacies I may think proper to leave, and particularly of the legacies following-viz.: (here specify the legacies, &c., and then say)— RESERVING ALWAYS to myself my own liferent of the premises, with v. Reservafull power to me to alter, innovate, or revoke these presents, in tion of liferent whole or in part, at any time in my life: BUT DECLARING that, in by testator. so far as these presents shall not be altered or revoked, the same dispensing shall be valid and effectual, though found lying in my own custody, with delivery. or in the custody of any other person for my behoof, undelivered at the time of my death, with the delivery whereof I hereby dispense

VI. Clause

for ever: AND I CONSENT to the registration hereof for preserva- VII. Clause of tion. IN WITNESS WHEREOF, &c.

See Juridical Styles, vol. ii. 574.

registration. VIII. Testingclause.

I. Narrative or inductive clause.

clause.

I. NARRATIVE OR INDUCTIVE CLAUSE.-This clause sets forth the name of the testator.

II. Dispositive II. DISPOSITIVE CLAUSE.- -The testator may, in this clause, make over either the whole of his moveable estate or a certain part of it.

III. Appointment of an executor.

tor receives no

instructions as to division of estate.

III. APPOINTMENT OF AN EXECUTOR.—In this part of the deed, the testator appoints an executor, or executors, with When execu- power to intromit with his whole moveable estate. If the executor receives no instructions as to how he is to dispose of the estate, and there is no disposition of the estate to him,—in other words, if the testator has simply named a person to be his executor, he has to divide it according to the rules of intestate succession. Prior to 1855, executors-nominate were entitled as such to retain onethird of the dead's part of a testator's estate, but this right was abolished by the Intestate Moveable Succession Act, 1855, § 8.

Competition

for the office of executordative.

If a person dies—(1) intestate, or (2) testate, but without the appointment of an executor, or (3) testate, but the executor nominated declines to act, an executor-dative can be appointed to distribute the estate. Claimants for the office of executor-dative are preferred in this order :(1) general disponees or legatees; (2) the next-of-kin; (3) descendants of the next-of-kin; (4) the widow; (5) creditors; and (6) special legatees. If fathers, mothers, or

brothers and sisters uterine are entitled under the Intestate Moveable Succession Act, 1855, to a share of an intestate's estate, they are entitled to be conjoined in the office of executors-dative with the next-of-kin, and they, if the nextof-kin do not desire appointment as executors-dative, are entitled to the office, Muir, 4 R. 74; Webster, 6 R. 102. In Muir, Lord President Inglis said: "I am of opinion (1) that the mother of a deceased may, in the absence of the next-of-kin be confirmed executrix-dative qua mother in con

sequence of the interest conferred upon her by the Moveable Succession Act, 1855; and (2) that it is conformable to well recognised practice that two parties, each of whom might be confirmed separately, should be confirmed jointly, though in different characters. The reason is that interest in the succession is the general ground of confirmation." For confirmation of executors, see

infra, p. 280.

IV. PAYMENT OF LEGACIES. -The chief purpose of a IV. Payment of legacies. testament of moveable estate is the disposal of the testator's Classes of estate by legacies. -(1) legacies. Legacies are of these classes :universal or residuary; (2) general; (3) special; (4) demonstrative; (5) the legatum liberationis; (6) the legatum rei aliena. A universal or residuary legacy is a (1.) Universal bequest of the whole free estate of the testator-i.e., his legacy. estate, minus debts, expenses, and other legacies. A gene- (2.) General ral legacy, or legatum quantitatis, is a bequest of so much moveable estate,-not of a special debt or particular article.

or residuary

legacy.

liberationis.

A special legacy, on the other hand, is the bequest of (3.) Special legacy. a special debt or a particular article. A demonstrative (4.) Demonlegacy is a bequest "of a sum of money payable out of or strative legacy. charged upon a particular subject or security, and is similar in its legal properties to a legacy of quantity," M‘Laren on Wills and Succession, vol. i. 388. The legatum libera- (5.) Legatum tionis is a bequest of a debt or debts due by the legatee to the testator; and it falls under the category of special legacies. The legatum rei aliena is a bequest (6.) Legatum of a subject not belonging to the testator. If the testator knew that the subject of bequest was not his property, his executor must buy it for the legatee; but if the testator wrongly believed it to be his, the legacy is ineffectual. The right of a legatee of a special legacy Rights of special legatee. is different from that of a legatee of a general legacy. The legatee of a special legacy has, on the testator's death, a right of action (to which the executor must

rei aliena.

Ademption of special legacies.

be made a party) against the possessor of the subject of the bequest; the legatee of a general legacy has only a personal right of action against the executor. Special legacies are preferable to general legacies or residuary legacies, but if the subject of a special legacy perishes before delivery, or if it is converted by the testator during his lifetime to other purposes, it is held to be revoked. Thus, in Anderson, 4 R. 1101, a lady bequeathed, by her testament, a depositreceipt containing a sum, and, after making her testament, she uplifted the deposit-receipt and invested the money contained in it on heritable property. The Court held that the legacy was special, and that it had been adeemed in consequence of the contents of the deposit-receipt having been uplifted, and otherwise invested during the testator's lifetime. See M'Laren on Wills and Successions, Verbal legacy, vol. i. 387 et seq., and Bell's Prin. §§ 1873-1878. A verbal how far good. legacy is valid to the extent of £8, 6s. 8d., but a verbal legacy to a greater amount can be proved by the oath of the executor when he is residuary legatee, Hannah's Legatees, M. 3837; and see Smiths, M. 6594, and Dickson on Evidence, § 631.

Vesting of legacies.

Clause declaring period of vesting.

It is often difficult to determine when the vesting of a legacy takes place, or, in other words, when the legatee has an indefeasible right to it, which he can transmit by inter vivos or mortis causa deed to others, or which transmits, in the event of his dying intestate, to his heirs. There is sometimes, in a testamentary writing, a clause declaring not only when legacies are payable but also when they vest. This clause, if clearly expressed, and not inconsistent with the purposes of the testament (see Croom's Trustees, 22 D. 45), puts the period of vesting beyond dispute. For determining the period of vesting, in the absence of such a clause, these (1.) Intention rules may be given :-(1.) The intention of the testator, as gathered from his testamentary writings, will determine the

Rules of vesting.

of testator.