Errors in name or description. were conjunct both as to the matter and the words, according to the rule of the civil law, by which, in such conjunct rights, the survivor takes the whole.1 A legacy may be effectually bequeathed in any words which express the desire of the testator that it should be paid. An error in the name of the legatee will not vitiate the legacy, if his description is otherwise sufficient to fix his identity. So also a mistake in the description of the thing bequeathed, or a false inductive clause added to a legacy, will not make it void. But if any one bequeath a specific thing, describing it as "my diamond ring," or "my set of Sevres china," and nothing answering the description can be found among the effects of the deceased, the legacy is null. The general rule of law is that a legacy implies dilectus decease of personæ, and so is personal to the legatee. From the nature legatee. of a mortis causa bequest it only becomes effectual at the testator's death, and must necessarily fall by the predecease of the legatee. As a consequence of this rule, it is, in the ordinary case, indispensable to mention other persons intended to be favoured failing the legatee, when it is meant that the legacy shall not lapse by his predecease; and this is usually done by a clause of conditional institution or substitution. Legacy falls by pre Legacies pure and Whether a legacy has vested in a legatee so as to be disconditional. posable as his property, depends upon the particular terms of the bequest, which may or may not contain conditions qualifying the nature of the right and affecting the term of payment. Whatever may be the nature of the legacy, no right to it can belong to the legatee or be transmitted from him to his representatives, if he die before the testator. If the legacy be pure and simple, so as not to depend on any condition for its validity, the right to it vests in the legatee, and will transmit to his representatives by his surviving the testator, even though it should not be payable till a future period and the legatee should die before the term. When the legacy is conditional, so that its efficacy depends upon an event or contingency, and the legatee, though he should survive 1 See Barbour, 6th Feb. 1835, 13 Sh. 422; Tulloch, 23d Nov. 1838, 1 D. 94. 2 I. 2. 20. § 29, 30, 31. the testator, dies before the condition is fulfilled, he acquires no right to the legacy. It is a condition rendering a legacy contingent if it is made payable on a future event which may never happen. All legacies for payment of which no term is prescribed, and which are not conditional, ought to be paid immediately after the succession is accepted by the heir. In the Roman law the phrase dies cedit, when applied to a legacy, means that the period of vesting has arrived; and dies venit means that the time has come when the legacy may be demanded.1 The estate of the testator is primarily liable for his debts, and if he die insolvent the legacies are not due :—Bona intelliguntur cujusque, quæ deducto ære alieno supersunt.2 Legacies may be revoked by the testator either expressly Revocation of legacies. in a will or codicil, or tacitly by disposing otherwise of the thing bequeathed. A bequest to a debtor of a debt due by him is revoked, if the debtor is afterwards compelled to pay it in the testator's lifetime. So if the testator, after bequeathing a thing, should sell it or make a gift of it to another person, this would annul the legacy. A legacy is also annulled when it is transferred to a second legatee in room of the first, and this holds good even though the second legatee should die before the testator. If the thing bequeathed should perish in the lifetime of the testator, or even after his death and before delivery, without the fault of the heir, the legacy would be ineffectual; but if the loss was occasioned by the fault of the heir, he could be compelled to make it good.3 II.-ENGLISH LAW. Statute of By the English Statute of Wills, 1 Vict. c. 26, s. 33, "where Direction in any person, being a child or other issue of the testator to whom any real or personal estate shall be devised or bequeathed, for any estate or interest not determinable at or before the death of such person, shall die in the lifetime of the testator leaving peti possit."-D. 50. 16. 213. 2 D. 50. 16. 39. 3 I. 2. 20. 16. 1 "Cedere diem signficat, incipere deberi pecuniam. Venire diem significat, eum diem venisse, quo pecunia This is an exception to the general rule. issue, and any such issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will." Under this enactment the issue do not take directly in their own. right under an implied substitution, but the legacy is given to the deceased legatee absolutely, as though he had survived the testator; "and it is therefore disposable by the will of the legatee."1 Apart from this special regulation, it is a general rule of the law of England that unless the legatee survive the testator the legacy lapses, and this holds even where the legacy is given to the legatee "and his executors, administrators, and assigns." But it appears to be established that where the bequest is "to A or his heirs," or "to A or his personal representatives," the word "or," generally speaking, implies a substitution, so as to prevent the bequest from lapsing.2 Rules of Scottish law III.-SCOTTISH LAW. In Scotland it has been repeatedly decided that wherever as to vesting a legacy is given, not merely to an individual, but also "to his and lapsing heirs and executors," it will not lapse by the legatee named of legacies. predeceasing the testator, but will belong to his heirs or next of kin in their own right as conditional institutes.3 It may also be observed that the Scotch law, while it adopts the general rule that a legacy to which heirs are not substituted lapses by the legatee dying before the testator, recognises an implied substitution of grandchildren or direct issue, founded on the principle of paterna pietas, in legacies or provisions by a father to a child, either singly or as one of a class, whether there be or be not an express substitution of another, failing the child, to the effect of passing the right to the issue of the child on his predeceasing the testator.* 1 Williams on Exec., p. 1098. 2 Williams on Exec., p.1085 and 1088. 3 More's Stair, vol. ii. p. 344, notes. 4 Dixon, 10th June 1836, 14 D. 938. CHAPTER VII. OF ROMAN INTESTATE SUCCESSION. defined. AN intestate is one who dies without a will, or who leaves a Intestacy will which is not valid. The law appoints the person or persons who are to succeed to his property, according to certain rules, which mainly depend upon their proximity in blood to the deceased. ship. Relationship between two persons arises either from the Relationone being descended from the other, which makes the connection between ascendants and descendants, or from their being both descended from the same common ancestor, which makes the connection between collaterals. All blood relations are either descendants or ascendants or collaterals. Consanguinity is distinguished by two lines, the direct and the collateral. The degrees of direct consanguinity are reckoned by counting the number of descents between the ancestor and the descendant. Thus father and son are related in the first degree, grandfather and grandson in the second degree. The degrees of collateral consanguinity are differently reckoned in the civil and in the canon law. The civil law reckons the number of descents between the persons on both sides from the common ancestor. By this rule brothers are in the second degree and cousins-german in the fourth. But the canon law counts the number of descents between the common ancestor and the two persons on one side only, and, if they are not equally near, on the side of the one who is most distant from the common ancestor. Thus by the canon Full blood and half blood. Intestate succession before Justinian. Rules by Gentiles. law brothers stand related to each other in the first degree, and an uncle and nephew in the second degree. Among collateral kindred it is necessary to distinguish between the whole blood and the half blood. Persons are connected by full blood who are descended of the same father and mother. The nearest are brothers and sisters german. The half blood may be either consanguinean or uterine; the first are persons descended of the same father but not of the same mother, and the second are persons descended of the same mother but not of the same father. In regulating succession, the Roman law takes no account of the nature or origin of the property left by the deceased, and in particular it makes no distinction between real and personal estates, which by the modern law of succession in this country are governed by totally different rules. Under the decemviral law, succession ab intestato was based on the patria potestas, or the ancient constitution of the Roman family. Hence there were three classes called to succeed. In the first order were the sui heredes, that is, children or grandchildren under the power of the father whose succession had opened. Daughters under power succeeded like males, and took an equal part. Adopted children were under power, and the wife if in manu. The sui heredes were so called because they belonged to the defunct by the paternal power. Failing sui heredes, the succession belonged to the nearest agnates, who excluded the more remote. Agnates are relations by males; they are those who would have been all subjected to the same power if the common head were still alive. The sister is agnate of her brother when both are born of the same father. Beyond this the right of succession was stopped for women under the decemviral law. In the third place, failing agnates the succession devolved on the gentiles, who inherited together. According to Cicero, the gentiles must bear the same name, such as Scipio, Brutus, and the like. They must be descended from free persons, not from slaves. They must not pass by adoption into another family. If they do so, they take the name of the gens to which they have emigrated, and remain |