Law 



x --i>tla 



Rnlcs ef 

 moveable 

 succession 

 ly law. 



Collation by 

 he heir. 



Succession 

 in move- 

 ables by 

 destination. 



Testament. 



Executors. 



Legacy. 



Who tan 

 test. 



Division of 

 a testament 

 in case of 

 a widow or 

 children; 



C80 L / 



to the immediate but to remote heirs, as soon as the suc- 

 cession opens to them, though the deed in dispute 

 should not appear hurtful to the immediate hen- of the 

 granter. But where it is consented to, or ratified by 

 the immediate heir, it is secured against all challenge 

 even from the remoter ; for such consent has the ef- 

 fect of a fictio brevis mantis, the dying person being 

 considered as disponing to the heir, and he to the 

 stranger in whose favour the deed was really granted. 



TITLE XI. Of Succession in Moveable Rights. 



1. In the succession of moveable rights, it is an uni- 

 versal rule that the next in degree to the deceased (or 

 next of kin) succeeds to the whole ; and if there are 

 two or more equally near, all of them succeed by equal 

 parts, without that prerogative which takes place in 

 heritage, of the eldest son over tile younger, or males 

 t>ver females. Neither does the right of representation 

 already explained, obtain in the succession of move- 

 ables, except in the single case of a 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 she is by one degree more remote from 

 the deceased than her uncle. Where the estate of a 

 person deceased consists partly of heritage and partly 

 of moveables, the heir in the heritage has no right to 

 the moveables if there are others as near in degree to 

 the deceased as himself. But where the heir in such 

 case finds it his interest to renounce his exclusive 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, must col- 

 late the moveables with him, so that the whole is thrown 

 into one mass, and divided equally among all of them. 

 This doctrine holds, not only in the line of descend- 

 ants, but of collaterals ; for it was introduced that the 

 heir might in no case fare worse than the other next of 

 kin. 



2. One may settle his moveable estate upon whom he 

 pleases, excluding the legal successor by a testament ; 

 which is a written declaration of what a person wills to 

 be done with his estate after his death. No testamen- 

 tary deed is effectual till the death of the testator, who 

 may therefore revoke it at pleasure or make a new one, 

 by which the first loses its force ; and hence testaments 

 are called last or latter wills. Testaments, in their strict 

 acceptation, must contain a nomination of executors, i. c. 

 of persons appointed to administer .the succession ac- 

 cording to the will of the deceased. 



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. Le- 

 gacies are not due till the granter's death ; and conse- 

 quently they can transmit no right to the executors 

 of the legatee in the event that the granter survives 

 liim. 



4. Minors after puberty can test without their cura- 

 tors ; wives without their husbands; and persons in- 

 terdicted without their interdictors ; but bastards can- 

 not test, except in the cases afterwards mentioned. 



5. If a person deceased leaves a widow, but no child, 

 his testament, or in other words the goods in commu- 

 nion, divide in two ; one half goes to the widow, the 

 other is the dead's part, i. c. the absolute property of the 

 deceased on which he could have tested, and which fall 

 to his next of kin if he died intestate. Where he leaves 

 children, one or more, but no widow, the children get 

 one half as their legitim ; the other part is the dead's 

 part, which falls alao to the children if the father has not 



tested npon it. If he leaves both widow and children, Law 

 the division is tripartite ; the wife takes, one-third by of Scotland, 

 herself; another falls as legitnn to the children, equally > "Y"* < ' 

 among them, or even to an only child, thouglr^ie should 

 succeed to the -heritage ; the remaining third is the 

 dead's part, Where the wife predeceases without child- in case of 

 ren, one half is retained by the husband, the other falls the wife ' 

 to her next of kin. Where she leaves children, the di- P rc<Jecea - 

 vision ought also to be bipartite by the common rules 

 of society, since no legitim is truly due on a mother's 

 death ; yet it is in practice tripartite ; two-thirds re- 

 main with the surviving father, as if one-third were 

 due to him proprio nomine, and another as admini- 

 strator of the legitim for his children ; the remaining 

 third being the wife's share, goes to her children, 

 whether of that or any former marriage ; for they are 

 all equally her next of kin. 



6. For preserving an equality among all the children Collation 

 who continue entitled to the legitim, we have adopted Bmon g the 

 the Roman doctrine of collalio bonorum ; whereby the ^fj 

 child who has got a provision from his father is obliged C ' 



to collate it with the others, and impute it towards his 

 own share of the legitim ; but if, from the deed of pro- 

 vision, the father shall appear to have intended it as a 

 prceciputim to the child, collation is excluded. A child 

 is not bound to collate an heritable subject provided to 

 him, because the legitim is not impaired by such provi- 

 sion. 



7. As an heir in heritage must complete his titles by Confirms 

 entry, so an executor is not vested in the right of the' tion - 

 moveable estate of the deceased without confirmation ; 



which therefore is called by some lawyers, though im- t 



properly, the additio hcereditatis in mobilibus. Confir- 

 mation is a sentence of the commissary or bishop's court, 

 empowering an executor, one or more, upon making 

 inventory of the moveables pertaining to the deceased, 

 to recover, possess, and administer them, either in be- 

 half of themselves or of others interested therein. 

 _ 8. The legitim and relict's share, because they are Legitim and 

 rights arising ex lege, in consequence of the commu- relict's part 

 nion of goods, and of the natural obligation upon fathers "i"? 511111 

 to give a certain portion of their estate to their issue, ntinL 

 operate ipso jure upon the father's death in favour of tion ; 

 the relict and children; ami consequently pass from 

 them, though they should die before confirmation, to 

 their next of kin : Whereas the dead's part, which falls but not the 

 to the children or other next of kin in the way of sue- dead's part, 

 cession, remains, if they should die before confirming, 

 in bouts of the first deceased ; and so does not descend 

 to their next of kin, but may be confirmed by the per- 

 son who, at the time of confirmation, is the next of kin 

 to the first deceased. Special assignations, though Special as- 

 neither intimated nor made public during the life of the si s n ^ tio1 

 granter, carry to the assignee the full right of the sub- ","5 need 

 jects assigned, without confirmation,; and so also spe- not be con. 

 cial legacies, as being also really assignations. firmed. 



9. The only passive title in moveables is vitious in- Passive 

 tromission, which may be defined an unwarrantable in- l ; tle of " 

 termeddling with the moveable estate of a person de- " u * mtro " 

 ceased without the order of law. This is not confined m 

 as the passive titles in heritage are, to the persons in- against 

 terested in the succession, but strikes against all intro- whom it 

 miners ; because even strangers, when attending on strikes, 

 dying persons, have frequent opportunities of inter- 

 meddling with moveables, which are more easily ab- p romwna t 

 stracted than heritage. The bare intermeddling infers act inferred, 

 this passive title, though the thing intermeddled with 

 should not be applied to any use by the intromitter. 

 Where an executor confirmed, intermeddles with more 

 than he has confirmed, he incurs a passive title ; fraud 



