beritage defcends. Where the deceafed is himself the youngest, the fucceffion goes to the immediate elder brother, as being the least deviation from this rule. If there are no brothers german, the fifters german fucceed equally; then brothers confanguinean, in the fame order as brothers german; and failing them, fifters confanguinean equally. Next, the father fucceeds. After him, his brothers and fifters, according to the rules already explained; then the grandfather; failing him, his brothers and fifters; and fo upwards, as far back as propinquity can be proved. Though children fucceed to their mother, a mother cannot to her child; nor is there any fucceffion by our law through the mother of the deceased; infomuch that one brother only uterine, i. e. by the mother only, cannot fucceed to another, even in that eftate which flowed originally from their common brother. 4. In heritage there is a right of reprefentation, by which one fucceeds, not from any title in himself, but in the place, and as reprefenting fome of his deceased afcendants. Thus, where one leaves a younger fon, and a grandchild by his eldeft, the granchild, though farther removed in degree from the deceased than his uncle, excludes him, as coming in place of his father the eldeft fon. Hence arifes the diftinction between fucceffion in capita, where the divifion is made into as many equal parts as there are capita or heits, which is the cafe of heirs portioners; and fucceflion in ftirpe, where the remoter heirs draw no more among them than the fhare belonging to their afcendant or ftirps, whom they reprefent; an example of which may be figured in the cafe of one who leaves behind him a daughter alive, and two grand-daughters by a daughter deceafed. In which cafe the two grand-daughters would fucced equally to that half which would have be longed to their mother had the been alive. 5. In the fucceffion of heirs portioners, indivifible rights, e. g. titles of dignity, fall to the eldest fifter. A fingle right of fuperiority goes alfo to the eldeft; for it hardly admits a divifion, and the condition of the vaffal ought not to be made worfe by multiplying fuperiors upon him. Where there are more fuch rights, the eldeft may perhaps have her election of the beft; but the younger fifters are entitled to a recompence, in fo far as the divifions are unequal; at leaft where the fuperiority yields a conftant yearly rent. The principal feat of the family falls to the eldeft, with the garden and orchard belonging to it, without recompence to the younger fifters; but all other houses are divided amongst them, together with the lands on which they are built, as parts and pertinents of thefe lands. A præcipuum, however, is due only in cafe of fucceffion of heirs portioners ab inteftato; and therefore there is no place for it where the fucceffion is taken under a deed. 6. Those heritable rights, to which the deceased did himself fucceed as heir to his father or other ancestor, get fometimes the name of heritage in a ftrict fenfe, in oppofition to the feuda nova, or feus of conqueft, which he had acquired by fingular titles, and which defcend, not to his heir of line, but of conqueft. This diftinction obtains only where two or more brothers or uncles, or their iffue, are next in fucceffion; in which cafe, the immediate younger brother, as heir of line, fucceeds to the proper heritage, because that defcends; whereas the conqueft afcends to the immediate elder brother. It has no place in female fucceffion, which the law divides equally among the heirs portioners. Where the deceased was the younger brother, the immediate elder brother is heir both of line and of conqueft. An estate difponed by a father to his eldest fon, is not conqueft in the fon's perfon, but heritage; because the fon would have fucceeded to it, though there had been no difpofition. The heir of conqueft fucceeds to all rights affecting lands, which require feifin to perfect them. But teinds go to the heir of line; because they are merely a burden on the fruits, not on the land. Tacks do not fall under conqueft, because they are complete rights without feifin; nor personal bonds taken to heirs fecluding executors. 7. The heir of line is entitled to the succession, not only of fubjects properly heritable, but to that fort of moveables called heirship, which is the beft of certain kinds. This doctrine has been probably introduced, that the heir might not have an houfe and eftate to fucceed to, quite dismantled by the executor. In that fort which goes by pairs or dozens, the beft pair or dozen is the heirship. There is no heirship in fungibles, or things eftimated by quantity; as grain, hay, current money, &c. To entitle an heir to this privilege, the deceafed muft have been either, 1. A prelate: 2. A baron, i. e, who stood infeft at his death in lands, though not erected into a barony; or even in a right of annual rent: Or, 3. A burgefs; not an honorary one, but a trading burgess of a royal borough, or at least one entitled to enter burgess in the right of his ancestor. Nor the heir of conqueft, nor of tailzie, has right to heirship moveables. 8. As to fucceffion by deftination, no proprietor can settle any heritable eftate, in the proper form of a teftament; not even bonds fecluding executors, though these are not heritable ex fua natura: But, where a teftament is in part drawn up in the ftyle of a deed inter vivos, fuch part of it may contain a fettlement of heritage, though executors fhould be named in the teftamentary part. The common method of fettling the fucceffion of heritage is by difpofition, contract of marriage, or fimple procuratory of refignation: and, though a difpofition settling heritage should have neither precept nor procuratory, it founds an action against the heir of line to complete his titles to the eftate; and thereafter diveft himself in favour of the difponee. The appellation of TAILZIE, OF ENTAIL, is chiefly used in the cafe of a land eftate, which is fettled on a long feries of heirs fubftituted one after another. The perfon firft called in the tailzie is the inftitute; the reft, the heirs tailzie, or substitutes. 9. Tailzies, when confidered in relation to their feveral degrees of force, are either, 1. Simple deftinations: 2. Tailzies'with prohibitory clauses: 3. Tailzies with prohibitory, refolutive, and irritant claufes. That is a fimple deftination, where the perfons called to the fucceffion are fubftituted one after another without any reftraint laid on the exercife exercise of their property. The heirs, therefore, fucceeding to fuch eftate, are abfolute fiars, and confequently may alter the deftination at pleasure. 10. In tailzies with claufes prohibitory, g. declaring that it shall not be lawful to the heirs to contract debts or alien the lands in prejudice of the fucceffion, none of the heirs can alien gratuitously. But the members of entail may contract debts which will be effectual to the creditors, or may difpofe of the estate for onerous causes. In both these forts, the maker himself may alter the tailzie, except, 1. Where it has been granted for an onerous caufe, as in mutual tailzies; or, 2. Where the maker is expressly disabled, as well as the inftitute or the heirs. 11. Where a tailzie is guarded with irritant and refolutive clauses, the estate entailed cannot be carried off by the debt or deed of any of the heirs fucceeding thereto, in prejudice of the fubftitutes. By ftatutes 1685, c. 22, the entail must be registered in a special register established for that purpose; and the irritant and refolutive clauLes must be inferted, not only in the procuratories, precepts, and feifins, by which the tailzies are first conftituted, but in all the after conveyances thereof; otherwise they can have no force against fingular fucceffors. But a tailzie, even without these requifites, is effectual against the heir of the granter, or against the inftitute who accepts of it. It has been found, that an entail, though completed by infeftment before the act 1685, was ineffectual, because not recorded in terms of the act. 12. An heir of entail has full power over the entailed eftate, except in so far as he is exprefsly fettered. By 10 George III. c. 51, heirs of entail are entitled (notwithstanding any reftrictions in the deed of entail) to improve their eftates by granting leafes, building farm-houses, draining, inclofing, and excambing, under certain limitations, and to claim repayment of three-4ths of the expense from the next heir of entail.-This act extends to all tailzies, whether made prior or pofterior to 1685, 13. An heir, who counteracts the directors of the tailzie, by alienating any part of the estate, charging it with debt, &c. is faid to contravene. It is not the fimple contracting of debt that infers contravention; the lands entailed must be actually adjudged upon the debt contracted. 14. When the heirs of the last person specially called in a tailzie come to fucceed, the irritancies have no longer any perfon in favour of whom they can operate; and confequently the fee, which was before tailzied, becomes fimple and unlimited in the perfon of fuch heirs. By the late act 20th Gea. II. for abolishing ward holdings, the king may purchase lands within Scotland, not withstanding the strictest entail; and where the lands are in the hands of minors or fatuous perfons, his majefty may purchase them from the curators or guardians. And heirs of entail may fell to their vaffals the fuperiorities belonging to the entailed estate; but in all these cafes, the price is to be fettled in the fame manner that the lands or fuperiorities fold were fettled before the fale. 15. Rights, not only of land eftates, but of bonds, are fometimes granted to two or more perfons in conjunct fee. Where a right is fo grant ed to two ftrangers, without any special claute adjected to it, each of them has an equal interest in the fee, and the part of the deceafed defcends to his own heir. If the right be taken to the two jointly, and the longest liver and their heirs, the feveral shares of the conjunct fiars are affectable by their creditors during their lives: but, on the death of any one of them, the survivor has the fee of the whole, in fo far as the share of the prede. ceafed remains free, after payment of his debts. Where the right is taken to the two in conjunct fee, and to the heirs of one of them, he to whose heirs the right is taken is the only fiar; the right of the other refolves into a fimple liferent; yet where a father takes a right to himself and his fon jointly, and to his fon's heir, fuch right being gratuitous is not understood to strip the father of the fee, unless a contrary intention shall plainly appear from the tenor of the right. 16. Where a right is taken to a husband and wife, in conjunct fee and liferent, the husband, as the perfona dignior, is the only fiar: the wife's right refolves into a liferent, unless it be prefumable, from special circumstances, that the fee was intended to be in the wife. Where a right of moveables is taken to husband and wife, the heirs of both fucceed equally, according to the natural meaning of the words. 17. Heirs of provifion are those who fucceed to any fubject, in virtue of a provifion in the inves titure, or other deed of fettlement, 18. Though all provisions to children, by marriage contract conceived in the ordinary form, being merely rights of fucceffion, are postponed to every onerous debt of the granter, even to thofe contracted pofterior to the provifions; yet where a father executes a bond of provifion to a child actually exifting, whether fuch child be the heir of a marriage or not, a proper debt is thereby created, which, though it be without doubt gratuitous, is not only effectual against the father himself and his heirs, but is not reducible at the inftance even of his prior onerous creditors, if he was folvent at the time of granting it. 19. In marriage contracts, the conquest, or a cer tain part of it, is often provided to the iffue; by which is meant whatever real addition fhall be made to the father's eftate during the marriage by purchase or donation, Conqueft therefore must be free, i. e. what remains after payment of the father's debts. As in other provifions, fo in conqueft; the father is fill fiar, and may therefore dispose of it for onerous or rational caufes. Where heri table rights are provided to the heirs of a marriage, they fall to the eldest fon, for he is the heir at law in heritage. Where a fum of money is fo provided, the word heir is applied to the subject of the provision, and fo marks out the executor, who is the heir in moveables. When an heritable right is provided to the bairns (or issue) of a marriage, it is divided equally among the children, if no divifion be made by the father; for fuch defti, nation cuts off the exclufive right of the legal heir, No provifion granted to bairns, gives a special right of credit to any one child, as long as the father lives: the right is granted familie; fo that the whole muft indeed go to one or other of them, but the father has a power inherent in him, G 2 to to divide it among them, in fuch proportions as he thinks beft, yet so as none of them may be entirely excluded except in extraordinary cafes. 20. A clause of return is that, by which a fum. in a bond or other right is, in a certain event, limited to return to the granter himself, or his heirs.. 21. An heir, is in the judgment of law, eadem perfona cum defundo, and fo reprefents the deceased univerfally, not only in his rights, but in his debts: in the first view, he is faid to be heir active; in the fecond, paffive. 22. Before an heir can have an active title to his ancestor's rights, he must be entered by service and retour. He who is entitled to enter heir is, before his actual entry, called apparent heir. The bare right of apparency carries certain privileges with it. An apparent heir may defend his ancef. tor's titles against any third party who brings them under challenge. Tenants may fafely pay him their rents; and after they have once acknowledged him by payment, he may compel them to continue at; and the rents not uplifted by the apparent heir belong to his executors upon his death. 23. As an heir is, by his entry, fubjected univerfally to his ancestor's debts, apparent heirs have therefore a year (annus deliberandi) allowed to them from the anceftor's decease to deliberate whether they will enter or not; till the expiration of which, though they may be charged by creditors to enter, they cannot be fued in any procefs founded upon such charge. 24. All fervices proceed on brieves from the chancery, which are called brieves of inquest, and have been long known in Scotland. The judge to whom the brief is directed, is required to try the matter by an inqueft of 15 fworn men. The inqueft, if they find the claim verified, muft declare the claimant heir to the deceased, by a verdict of fervice, which the judge muft atteft, and return the brief, with the fervice proceeding on it, to the chancery; from which an extract is obtained, called the retour of the service. I 25. The fervice of heirs is either general or fpecial A general fervice vefts the heir in the right of all heritable fubjects, which either do not require feifin, or which have not been perfected by feifin in the perfon of the ancestor. A public right, therefore, according to the feudal law, though followed by feitin, having no legal effects till it be confirmed by the fuperior, muft, as a perfonal right, be carried by a general fervice. A Special fervice, followed by feifin, vefts the heir in the right of the fpecial fubjects in which the anceftor died infeft. 26. If an heir, doubtful whether the eftate of his ancestor be fufficient for clearing his debts, ihall, at any time within the annus deliberandi, ex hibit upon oath a full inventory of all his anceftor's heritable fubjects, to the clerk of the fhire where the lands iie; or, if there is no heritage requiring feifin, to the clerk of the fhire where he died; and if, after the fame is fubfcribed by the sheriff or theriff depute, the clerk, and himself, and registered in the theriff's books, the extract thereof shall be regittered within 40 days after expiration of the annus deliberandi in the general re. gifter appointed for that purpofe his fubfequent entry will fubject him no farther than to the value of fuch inventory. If the inventory be given up and registered within the time prescribed, the heir may serve on it, even after the year."- 27. Creditors are not obliged to acquiefce in the value of the estate given up by the heir; but, if they be real creditors, may bring the eftate to a public fale in order to difcover its true value; fince an eftate is always worth what can be got for it. 28. Practice has introduced an anomalous fort of entry, without the interpofition of an inqueft, by the fole confent of the fuperior; who, if he be fatisfied that the perfon applying to him is the next heir, grants him a precept (called of clare conftat, from the firft words of its recital), commanding his bailie to infeft him in the fubjects that belonged to his ancestor. Of the fame nature is the entry by HASP AND STAPLE, commonly used in burgage tenements of houses; by which the bailie, without calling an inqueft, cognofces or declares a perfon heir, upon evidence brought before himfelf; and at the fame time infefts him in the fubject, by the fymbol of the hasp and staple of the door. Charges given by creditors to apparent heirs to enter, ftand in the place of an actual entry, fo as to fupport the creditor's diligence. See SECT. XII. 2. one; fince it has no relation to any special fub29. A general fervice cannot include a special ject, and carries only that clafs of rights on which feifin has not proceeded; but a fpecia! fervice implies a general one of the fame kind or character, and confequently carries even fuch rights as have not been perfected by feifin. Service is not required to establish the heir's right in titles of honour, or offices of the highest dignity; for thefe defcend jure fanguinis. 30. An heir, by immixing with his ancestor's eftate without entry, fubjects himself to his debts, as if he had entered; or, in our law phrase, incurs a paffive title. The only paffive title by which an apparent heir becomes liable univerfaliy for all his ancestor's debts, is"geflio pro hærede, or his behaving as none but an heir has right to do. Behaviour as heir is inferred from the apparent heir's intromiffion, after the death of the ancestor, with any part of the lands or other heritable fubjects belonging to the deceased, to which he him. felf might have completed an active title by entry. 31. This paffive title is excluded, if the heir's intromifiion be by order of law; or if it be found. ed on fingular titles, and not as heir to the deceafed. But an apparent heir's purchafing any right to his ancestor's eftate, otherwife than at public roup (auction), or his poffeffing it in virtue of the ancestor, to whom he himfelf may fucceed of rights fettled in the perfon of any near relation as heir, otherwife than upon purchase by public fale, is deemed behaviour as heir. intromiffion is fmall, unless an intention to defraud 32. Behaviour as heir is also excluded, where the the ancestor's creditors be prefumable from the circumstances attending it. curred by the apparent heir's accepting a gratui33. Another paffive title in heritage, may be intous right from the ancestor, to any part of the eftate to which he himself might have fucceeded the right be onerous, there is no paffive title; if as heir; and it is called præceptio hæreditatis. If the confideration paid for it does not amount to its full full value, the creditors of the deceafed may reduce it in fo far as it is gratuitous, but ftill it infers no paffive title. 34. The heir incurring this paffive title is no farther liable, than if he had, at the time of his acceptance, entered heir to the granter, and fo. fubjected himself to the debts that were then chargeable against him; but with the pofterior debts he has nothing to do, not even with those contracted between the date of the right and the infeftment taken upon it, and he is therefore called fucceffor titulo lucrativo poft contractum debitum. 35. Neither of these paffive titles takes place, unless the fubject intermeddled with or difponed be fuch as the intromitter or receiver would fucceed to as heir. In this alfo, thefe two paffive titles agree, that the intromiflion in both must be after the death of the anceftor; for there can be no termini babiles of a paffive title, while the anceftor is alive. But in the following refpect they differ: Geftio pro hærede, being a vicious paffive title, founded upon a quasi delict, cannot be ob jected against the delinquent's heir, if procefs has not been litiscontefted while the delinquent himself was alive; whereas the fucceffor titula lucrativo is, by the acceptance of the difpofition, understood to have entered into a tacit contract with the granter's creditors, by which he undertakes the burden of their debts; and all actions founded on contract are transmissible against heirs. 36. An apparent heir, who is cited by the anceftor's creditor in a procefs for payment, if he offers any peremptory defence against the debt, incurs a paflive title; for he can have no interest to object against it, but in the character of heir... 37. By the principles of the feudal law, an heir, when he is to complete his titles by fpecial fervice, muft neceffarily pass over his immediate anceftor, e. g. his father, if he was not infeft; and serve heir to that ancestor who was laft veff and feifed in the right, and in whole bæreditas jacens the right must remain, till a title be connected thereto from him. As this bore hard upon creditors who might think themselves fecure in contracting with aperfon whom they saw for fome time in the poffeflion of an eftate, and from thence concluded that it was legallyvefted in him, it is therefore provided, by act 1695, that every person, paffing over his immediate anceftor, who had been three years in poffeffion, and ferving heir to one more remote, fhall be liable for the debts and deeds of the perfon interjected, to the value of the estate to which he is ferved. 38. Our law, from its jealousy of the weakness of mankind while under ficknefs, and of the importunity of friends on that occafion, has declared that all deeds affecting heritage, if they be granted by a perfon on deathbed (i. e. after contracting that ficknefs which ends in death), to the danger of the heir, are ineffectual, except where the debts of the granter have laid him under a neceffity to alien his lands. As this law of deathbed is founded folely in the privilege of the heir, deathbed deeds, when confented to by the heir, are not reducible. The term properly opposed to deathbed is lege pouftie, by which is understood a state of health; and it gets the name, because persons in health have the legitima poteftas, or lawful power, of difpofing of their property at pleasure. 39. The two extremes being proved, of the granter's ficknels immediately before figning, and of his death following it, though at the greatest dif. tance of time, did, by our former law, found a prefumption that the deed was granted on deathbed, which could not have been elided but by a pofitive proof of the granter's conyalefence; but now the allegation of deathbed is alfo excluded, by his having lived 60 days after figning the deed. The legal evidence of convalefence is the granter's having been, after the date of the deed, at kirk OR market unsupported; for a proof of either will fecure the deed from challenge. The going to kirk or market must be performed when the people are met together in the church or churchyard for any public meeting, civil or ecclefiaftical, or in the market-place at the time of public market. No other proof of convalefcence is receivable, becaufe at kirk and market there are always prefent unfufpected witneffes whom we can hardly be fure of in any other cafe. 40. The privilege of fetting afide deeds ex capite lei, is competent to all heirs, not to heirs of line only, but of conqueft, tailzie, or provision; not only to the immediate, but to remoter heirs, as foon as the fucceffion opens to them. But where it is confented to or ratified by the immediate heir, it is fecured against all challenge, even from the remoter. 41. The law of deathbed ftrikes against difpofitions of every fubject to which the heir would have fucceeded, or from which he would have had any benefit, had it not been fo difponed. Deathbed deeds, granted in confequence of a full or proper obligation in liege pouftie, are not fubject to reduction; but, where the antecedent obligation is merely natural, they are reducible. By ftronger reafon, the deceased cannot, by a deed merely voluntary, alter the nature of his estate on deathbed to make the prejudice of his heir, fo as from heritable to make it moveable; but if he should, in liege pouftie, exclude his apparent heir, by an irrevocable deed containing referved faculties, the heir cannot be heard to quarrel the exercise of thefe faculties on deathbed. 42. In a competition between the creditors of the deceased and of the heir, our law (act 1661) has juftly preferred the creditors of the deceased, as every man's estate ought to be liable, in the first place, for his own debt. But this preference is, by the ftatute, limited to the cafe where the creditors of the deceafed have ufed diligence against their debtor's eftate, within three years from his death; and therefore the heir's creditors may, after that period, affect it for their own pay. ment. All difpofitions by an heir, of the ances tor's eftate, within a year after his death, are null, in fo far as they are hurtful to the creditors of the anceftor. This takes place, though thefe creditors fhould have used no diligence, and even where the difpofitions are granted after the year: It is thought they are ineffectual against the creditors of the deceafed who have used diligence within the three years. SECT. XXI. OF SUCCESSION in MOVEABLES. 1. IN the fucceffion of moveable rights, it is an univerfal rule, that the next in degree to the de ceafed ceased (or next of kin) succeeds to the whole; and if there are two or more equally near, all of them fucceed by equal parts, without that prerogative which takes place in heritage, of the eldeft fon over the younger, or of males over females. Neither does the right of representation (explained, SECT. XX. § 4.) obtain in the fucceffion of move ables, except in the fingle cafe of competition between the full blood and the half blood; for a niece by the full blood will be preferred before a brother by the half blood, though the is by one degree more remote from the deceased than her uncle. Where the estate of a perfon deceased confifts partly of heritage, and partly of moveables, the heir in the heritage has no fhare of the moveables, if there are others as near in degree to the deceased as himself; but where the heir, in fuch cafe, finds it his intereft to renounce his exclufive claim to the heritage, and betake himself to his right as one of the next of kin, he may collate or communicate the heritage with the others, who in their turn muft collate the moveables with him; fo that the whole is thrown into one mafs, and divided equally among all of them. This doctrine holds, not only in the line of defcendants, but of collaterals; for it was introduced, that the heir might in no cafe be worse than the other next of kin. 2. One may fettle his moveable estate upon whom he pleafes, excluding the legal fucceffor by a teftament; which is a written declaration of what a perfon wills to be done with his moveable eftate after his death. No teftamentary deed is effectual till the death of the teftator; who may therefore revoke it at pleasure, or make a new one, by which the first lofes its force, according to the rule, voluntas teftatoris eft ambulatoria ufque ad mortem, and hence teftaments are called aft or latter wills. Teftaments, in their ftrict acceptation, must contain a nomination of executors, i, e. of perfons appointed to adminifter the fucceffion according to the will of the deceased; yet nothing hinders one from making a fettlement of move ables, in favour of an univerfal legatee, though he fhould not have appointed executors; and on the other part, a teftament where executors are appointed is valid, though the perfon who is to have the right of fucceffion fhould not be named. In this laft cafe, if the executor nominated be a ftranger, i. e. one who has no legal intereft in the moveable eftate, he is merely a trustee, accountable to the next of kin; but he may retain a third of the dead's part (explained in 6) for his trouble in executing the teftament; in payment of which, legacies, if any be left to him, must be imputed. The heir, if he be named executor, has right to the third as a ftranger; but if one be named who has an interest in the legal fucceffion, he has no allowance, unless fuch intereft be less than a third. Nuncupative or verbal testaments are not, by the law of Scotland, effectual for fupporting the nomination of an executor, let the fubject of the fucceffion be ever fo fmall; but verbal legacies, not exceeding 1ool. Scots, are fuftained; and even where they are granted for more, they are inef fectual only as to the excefs. 3. A LEGACY is a donation by the deceased, to be paid by the executor to the legatee. It may be granted either in the testament or in a separate writing. Legacies are not due till the granter's death; and confequently they can transmit no right to the executors of the legatee, in the event that the granter furvives him. A cafe occurred fome years ago, where a teftator left a legacy payable when the legatee arrived at a certain age. The legatee survived the teftator, but died before the legacy was payable. It was found, chiefly upon the authority of the Roman law, that the legacy vefted in the legatee a morte teftatoris, and upon his decease was due to the legatee's next of kin. 4. Legacies, where they are general, i. e. of a certain fum of money indefinitely, give the lega tee no right in any one debt or fubject; he can only infift in a perfonal action against the execu tor, for payment out of the teftator's effects. A special legacy, i. e. of a particular debt due to the deceafed, or of a particular subject belonging to him, is of the nature of an aflignation, by which the property of the fpecial debt or subject vests, upon the teftator's death, in the legatee, who can therefore directly fue the debtor or poffeffor; yet, as no legacy can be claimed till the debts are paid, the executor must be cited in such process, that it may be known, whether there are free effects fufficient for answering the legacy. Where there is not enough for payment of all the legacies, each of the general legatees must suffer a propor tional abatement; but a special legatee gets his legacy entire, though there should be nothing over for payment of the reft; and, on the contrary, be has no claim, if the debt or subject bequeathed should perish, whatever the extent of the free executry may be. 5. Minors, after puberty, can teft without their curators, wives without their husbands, and perfons interdicted without their interdictors: but baftards cannot teft, except in the cases afterwards fet forth; SECT. XXII. 3. As a certain share of the goods, falling under the communion that is confequent on marriage, belongs, upon the hufband's decease, to his widow, jure relice, and a certain fhare to the children, called the legitime, portion natural, or bairn's part of gear; one who has a wife or children, though he be the abfolute administrator of all these goods during his life, and confequently may alien them by a deed inter viyos, in liege pouftie, even gratuitoufly, if no fraudulent intention to disappoint the wife or children fhall appear, yet cannot impair their shares gratuitoufly on death-bed; nor can he dispose of his moveables to their prejudice by teftament, though it should be made in liege pouftie; fince teftaments do not operate till the death of the teftator, at which period the divifion of the goods in communion has its full effect in favour of the widow and children. 6. If a perfon deceased leaves a widow, but no child, his teftament, or, in other words, the goods in communion, divide in two; one half goes to the widow; the other is the dead's part, i. e. the abfolute property of the deceased, on which he can teft, and which falls to his next of kin, if he dies inteftate. Where he leaves children, one or more, but no widow, the children get one half as their LEGITIME: the other half is the dead's parti |