If the term of payment be during the father's life, or on the occurrence of an event which may happen during his life, such as majority or marriage, the children are entitled to a preference. if their provisions have been secured by infeftment, and to rank as creditors if they have only a personal obligation for them ; but if the provision be payable after the father's death, it only gives a spes successionis, and does not found a right to rank as creditors. These provisions, like those for the wife, must be reasonable in the circumstances of the parties. (Fraser, ut sup.; Jeffrey v. Campbell, May 24, 1825.)

275. It is not unusual, where there is heritable property, to appropriate certain lands to the wife in liferent, along with a jointure-house; and these provisions, called a locality, if accepted by her, will be held to come in lieu of terce; but no express provision made for the husband will exclude the courtesy unless it be specially renounced. (Bell's Prin. 1948.)

276. In place of having certain specific lands set apart to her, the wife is very commonly secured in an annuity by infeftment. This provision is called a jointure. (Bell's Prin. 1947.)

277. The subject of special destinations in family deeds is one of the most vexed and intricate in our law ; and any rules that have been laid down can at best serve as mere indications of what is the true construction, in any given case. These rules are briefly :

(1.) The intention of the maker of the deed, as gathered from the deed itself, giving to technical words their technical signification, is to receive effect. (Ersk. iii. 8. 34.)

(2.) In feudal and quasi-feudal subjects, as the fee can only be in one person, it is generally presumed to be in the husband. So destinations to the husband and wife in conjunct fee, or in conjunct fee and liferent, or to husband and wife simply, though there be a destination to heirs, mean that the wife is merely liferented, that the husband is fiar, and that the children have merely a spes successionis, which cannot be defeated gratuitously

E

if the destination occur in an ante-nuptial contract. (Ersk. iii. 8. 36; Bell's Lect. vol. ii. 777, and cases there noted.)

(3.) But where the property destined was originally the wife's own, the law would, even under such destinations as are mentioned in the second rule, hold her to be the fiar, unless the deed in terms contradicted this, or it was shown that they were given as tocher. (Myles v. Calman and Others, Feb. 12, 1857, 19 D. 408.) In that case, the Lord President (Colonsay) remarked that the meaning of such destinations, where the property came for the wife, was, that in the event of the wife's survivance she was to have both the liferent and fee.

(4.) Again, if a power of disposal is reserved to either spouse, the fee necessarily is where that power is located; and so the party whose heirs are favoured by the destination will, in the absence of a contrary intention in the deed, be deemed the fiar. (Bell's Lect. ii. 778.)

(5.) If the destination be to the spouses in conjunct fee and liferent, and the survivor, and their heirs, without any further specification, the survivor is presumed to be the fiar. But where the destination is specifically to the heirs of the marriage, the fee is held to be in the husband, though predeceasing, as the heirs of the marriage are his heirs. (Ib.) (6.) These rules do not apply to moveables, as in regard to them division is to be presumed. The only rule we can lay down is, that the words of the destination are to be literally construed.

278. It is by marriage contracts, also, that conjunct rights in parents and children are usually constituted. The general rule in these cases is, that where the right is taken to the father in liferent, and to the children that may be born of the marriage in fee, the father is fiar, the children having merely a right of succession, which is defeasible by the father's creditors. But if the right be to the father "for his liferent use allenarly,” and to his children, even though the contract be ante-nuptial and the

children unborn, the father's right will be limited to a fiduciary fee for the children's behoof, and will not be affected by the father's debts. (Bell's Prin. 1956; Fraser, 1440 et seq.) But if the destination be to the father in liferent, and to a child or children nominatim in fee, the father has only a liferent, and the child is either absolute fiar or fiduciary for himself and the other children. (Spence, March 25, 1829; 3 W. and S. 380.)

279. Where the destination is to "husband and wife in conjunct fee and liferent, and children in fee," the meaning is, that the spouses shall each have a joint liferent and a possible fee while they both live, it being uncertain which will survive. (Ersk. iii. 3. 30, and 8. 38; Fraser, ut sup.)

CHAPTER II.

OF PARENT AND CHILD.

I. LEGITIMACY.

280. Legitimacy is the personal status which results from birth in lawful wedlock.

281. But though this is the usual, it is not the exclusive ground on which legitimacy is secured. From views of expediency, public policy, and humanity, all the legal privileges of the status are extended to certain cases where no marriage was entered into. (Sec. 283 et seq.)

282. The case of a posthumous child can scarcely be regarded as an exception to the general rule; for he, at all events, was conceived in wedlock.

283. If a child be born beyond ten months after the marriage is dissolved, he will scarcely be legitimate. Neither will the rule, that "he is the father whom the marriage points out,"

necessarily decide the case in which a child is born within six months after the marriage is contracted, though it will lay the onus of proof on the party who impugns the legitimacy. But unless the paternity is impossible or disproved, the child, as in the case of bastards, will be legitimated by the subsequent marriage of his presumed parents. (Fraser, Parent and Child, 1 et seq.)

284. The presumption in favour of legitimacy which is raised by the marriage, will be invalidated by proof of physical impossibility, whether grounded on the impotency or the absence of the reputed father. Very strong evidence to the effect that no sexual intercourse took place between the husband and wife, will have the same effect, even where it does not amount to proof of impossibility. (5 Clark and Finn. 229; Nicholas on Bastardy, 181; Sandy v. Sandy, July 4, 1823; Fraser, 5; Montgomery, 1881, 8 R. 403.) Where a man knowingly marries a woman advanced in pregnancy, there arises a presumption very hard to rebut, that he is the father of the child. (Gardner, 1876, 3 R. 695; 1877, 4 R. H. L. 56. [(Reid, 1879, 6 R. 659.)]

285. The period of possible gestation, though of extreme importance both in questions as to legitimacy and as to the paternity of bastard children, is so much disputed amongst medical men, that the courts have been unable to determine it with any degree of accuracy. It is generally admitted that the ordinary period is ten lunar months, forty weeks, or 280 days (equal to nine calendar months and a week); and the presumption will tend to become adverse to the alleged legitimacy or paternity, in proportion to the extent to which the period assigned for the gestation falls short of or exceeds this period. (Beck, Med. Juris. 356; Taylor, Med. Juris. 611; Fraser, 11 et seq.) [A possible gestation of 305 days has been sustained. (Cook, 1880, 8 R. 217.)]

286. A putative marriage is one in which both or either of the parties believing that they could marry entered into the

contract, while there was an unknown impediment arising from relationship, previous marriage, or the like, which prevented a valid marriage. In this case the children would probably be held to be legitimate, though the marriage itself is null. (Brymer r. Riddell, 1811; Bell's Report of Putative Marriage; Lord Jeffrey in Kerr v. Martin, Mar. 6, 1840.) Lord Fraser holds that the children of such a marriage, where even only one of the spouses is in bona fide, are legitimate; but that such a marriage would not have the effect of legitimating issue born before it was entered into. The spouse in bona fide has his or her legal provisions. The spouse in mala fide has no parental power over, or right of succession to, the children. But to this effect it would seem to be necessary that the marriage be entered into publicly and after proclamation of banns. (H. and W. i. 151 et seq.; P. and C. 28.)

287. All children conceived after the impediment has come to the knowledge of both parties will be illegitimate. (Fraser, 29.)

288. It is the opinion of some that a child born of a woman from a rape perpetrated on her would be legitimate, but there is no authority on the point in the law of Scotland. (Ib. 30.)

289. Bastards may be legitimated in two ways: 1st, By the subsequent marriage of their parents; and 2nd, By letters of legitimation from the Crown.

290. Legitimation by subsequent marriage, which is not admitted in England, was borrowed from the later Roman practice, into which it was introduced by Constantine, at the instigation, it is supposed, of the Christian clergy, and from considerations of morality and expediency. It certainly tends to encourage the conversion of a relation which was injurious, into one which is beneficial to society; and it has the further advantage of preventing those unseemly disorders which must arise in families where the elder-born children of the same parents are left under the stain of bastardy, whilst the younger enjoy the