arrived, and Pothier says he thinks it is most in accordance with the true meaning of the Novel.1 III.-COLLATERALS. Succession of collate rals. Brothers and sisters german. Nephews. Half brothers and sisters. As a general rule, collaterals who are nearest in the degree of kindred to the deceased are called together to his succession, and exclude those who are in degree more remote. This rule suffers limitations in the Roman law by the preference given to the full blood over the half blood, and by the right of representation, which in collateral succession is given to the children of brothers and sisters, but extends no further. 2 If a person dies leaving neither descendants nor ascendants, his brothers and sisters of the full blood succeed to his estate in equal shares. But if the intestate leaves brothers or sisters, and also nephews or nieces by a deceased brother or sister, these last will succeed, along with their uncles and aunts, to the share which their parent would have taken if alive. Among collaterals, however, as already explained, this privilege of representation does not extend beyond the sons and daughters of brothers and sisters. If the intestate's brothers and sisters are dead, and nephews alone succeed, it has been made a question how the estate is to be divided. Azo contends that it must be divided in capita, and Accursius in stirpes. Vinnius holds that when there are only nephews there is no representation, and consequently that each of them takes an equal share in his own right; and this is the rule of distribution adopted in England.3 On the failure of brothers and sisters by the whole blood, and their children, the brothers and sisters by the half blood 1 Pothier, Traité des Successions chap. 2, s. 2. Warn. Inst. 2. p. 150 note. 2 N. 118, ch. 3. 3 Vinn. Com. lib. 3, title 5, p. 539. Dr Harris, Justinian's Institutes, 3. 2. 4, p. 197, note. succeed, whether they are by the same father only or by the same mother. And if any of these brothers or sisters by the half blood have died leaving children, the right of representation is extended to them so as to enable them to succeed to the share which would have fallen to their parent if alive, just as in the case of children of brothers-german.1 tions nearest All the other relations of the deceased are called to the Other relasuccession according to their proximity in degree, the nearer in degree. being always preferred to the more remote; and if many are found in the same degree, whether on the father's side or on the mother's, the estate must be divided among them in equal shares, according to the number of persons.2 For particular reasons the Roman law gives a right of suc- Special cession to other persons besides relations. cases of succession. and wife. When one of two married persons dies without leaving any Husband relations, the survivor, whether husband or wife, is called to the succession under the edict of the prætor unde vir et uxor, which was confirmed by imperial constitutions.3 A widow who was poor and unprovided for had a right to share in the succession of her deceased husband. When he left more than three descendants the widow was entitled to participate with them per capita; and if there were only three or fewer descendants, or if other relations of the husband were called, her portion was fixed at a fourth of the estate. If she had children by the deceased, she had only the usufruct of her portion during her life, and was bound to preserve it for these children; but in all other cases she acquired her share in full property, and could dispose of it at her pleasure. 4 children. If a man had no lawful descendants or ascendants, he Natural might by will give his whole inheritance to his natural children-that is, those born of a concubine-or to their mother: but if he had lawful children, he could only leave one-twelfth to the natural children and their mother. If the father died intestate, without leaving a lawful wife or lawful issue, his 1 N. 118, ch. 3. 2 Ibid. 3 I. 3. 9. 6. D. 38. 11. C. 6. 18. Treasury ultimus heres. natural children and their mother were entitled to receive two unciæ, or one-sixth of the succession, and the remainder fell to the lawful heirs.1 On the failure of all heirs and successors, testamentary and legal, the succession devolved on the Treasury, under the burden of paying the debts of the deceased to the extent of the value of the estate. 1 N. 89, ch. 12, § 2 and 3, and ch. 15. De Fresquet, vol. ii. p. 41. CHAPTER VIII. OF INTESTATE SUCCESSION IN FRANCE, ENGLAND, AND SCOTLAND. 1.-FRENCH LAW. tion be tween real IN the modern law of France no distinction is made between No distincreal and personal estates in the matter of succession; there is no privilege of primogeniture, and no preference of males and personal over females; and many of the rules are similar to those in the Roman law. estates. testacy by Children and other descendants, of whatever degree, male Rules of inor female, exclude all other relations, whether ascendants or Civil Code. collaterals. If the intestate die without issue, survived by his father and mother, and brothers or sisters, or their descendants, one half of the succession goes to the parents equally between them, and the other half belongs to the brothers and sisters, and their descendants. If only one of the parents survive, his or her share is limited to a fourth, and the other persons mentioned succeed to three-fourths. If neither parent survive, the brothers and sisters, and their descendants, take the whole estate, to the exclusion of ascendants and other collaterals. When the intestate leaves no issue, and no brothers or sisters, or their descendants, the succession is divided into two equal portions between the ascendants of the paternal line and the ascendants of the maternal line. For further information on the rules of intestate succession in France, reference may be made to the Civil Code, articles 745-755. II. ENGLISH LAW. Descent to lands. Inheritance Descent traced from purchaser. By the law of England, as well as of Scotland, the rules of succession to lands are quite different from those which relate to personal property. In England, descent signifies the title by which a man acquires an estate in lands as the heirat-law of a person deceased, and the estate itself is called the inheritance. By the Inheritance Act, 3 & 4 William IV. c. 106, which applies to deaths occurring after 1st January 1834, the heir must trace his descent, not from the person last seised, but from the purchaser-that is to say, from the person who last acquired the land otherwise than by descent, or by any escheat, partition, or enclosure, making the land descendible as if acquired by descent.1 It often happens, however, that it is uncertain by whom an estate was originally purchased; and to obviate this difficulty the Act declares that the person last entitled to the land shall be considered to have been the purchaser, unless it be proved that he inherited it; and the same rule is applied at every step upward of the pedigree. Where there is a total failure of heirs of the purchaser, or of an ancestor held as such, the descent is traced from the person last entitled to the land, as if he had been the purchaser.3 Actual seisin is unnecessary in the purchaser, or the person to be deemed such.* 2 The rule, that in every case descent must be traced from the purchaser, though newly introduced by the Inheritance Act, is founded on a maxim peculiar to the English law, that none can claim as heir who is not of the blood of the purchaser. Respect is had to the origin of landed property, and the ancestor who acquired it by purchase, so that land which came by the father shall descend to the heirs on the part of the father, and land which came by the mother shall descend to the heirs on the part of the mother-paterna paternis et 1 Sect. 1. 2 Sect. 2. 22 & 23 Vict. c. 35, sect. 19. 4 Lord St Leonards's Practical Treatise on New Statutes relating to Property, 2d ed., p. 257. |