1000000030

yel it is in praéliee lripartilc ; lWO lhirds remain \Vith lhe

fu rvi.ing father, as ir one third were due to him

propri,

n:llline,

and another as admiOlflrator of the legitime for

his' hildren ; the remainiog third, being the wife's Oure,

goes tO her chil.iren, whe:her of lhal or any former mar·

riage, for lhey are all equally her oex: of kin.

7. Bef",e a tellamenl can be divided, lhedeols o\Ving

bythe dece.fed are 10 bededuéled ; for all execulry mull

fre~,

As lhe hu(band has the full power of burdeo·

ing the goods in commuoiori, his debls affeél lhe \Vhole,

alld fo Idr.n lhe legilime and the OJare of lhe rerél, as

wtll as lhe dead's parto His funeral charges, and lhe

mouroiogs aod alimooy du: 10 lhe widow, are cooGdered

as his proper debls

but the legacies, or other gratuitous

righls, graoted by him 00dealhbed, affeél only the dead's

part. BDods bearinginteren, due by the deeeafed, can·

not dimioilb the reliél's{hare, becanft fuch bonds. wheo

due to lhe deeeafed, do nOl ioereafe it The fuoeral

charges of the wife predeeealing, fall wholly 00 her exe·

cutors \Vho have righl 10 her {hare, Where lhe deceafed

leaves no family, neither hu(band, wife, nor child, the

tenameot fuffers no divifion, but all is the dead's parto

The whole ilfue of the hu(band, not ooly by lhat

maniage which.lOas ddrolved by his dwh, bUl . y any

former marriage, has an equal ¡nteren in lhe legllime ;

othmvife the childreAof lhe firll marriage would be cut

OUt, as Ihey could 001 claim the legilime during lheir fa·

lher's life. BUl 00 legitime is due,

¡,

poo the dealh

of a mOlher,

Neither is it due tO graodchildreo, up'

00 the dealh of a graodfalher. Nor,

To children

forisfamilialed,

i ,

tOfuch as. by h.viog renouoced

lhe legitime, are 00

loo~er coofider~d

in fal.'lili."

.od

(o are excluderl from .oy fanher {hare of the move.ble

en.te

thao lhey

h.ve

already rectived.

As lhe right of I' gitime is aroogly fouoded in na·

ture, the

reouo~ialioo

of il is OOl lObe inferred by im·

plicatioo. Renunciation bya child of his claim of legi.

time has the (ame effeél as his dealh, in favour of lhe o·

ther childreo iotitled thereto; and conftqueotly the{hare

of the

r~nouocer

divides among the ren; but he do:soot

thereby lofe his right to the dead's part, if he does not

alfo renouoce his fhare in the father's executry. Nay,

his renunciation of the legitime, where he is the only

younger child, has theeffeél to convert lhewhole fubj eél

thereof ioto dead's part, which wdl therefore ¡all to the

. renouncer himfelf as next of kin, if the heir be nOt will

iog 'to collate lhe heritage Wilh him.

For preferl'ing an equ.lityamoog all thechildren,

who cootinue intided to the legitime, IVe have adopted

the Roman doélrine of

c.!/atio bon.rU1II ;

whereby the

child, who hasgOt a proviGon fromhls f.ther, is obliged

to eollate it wilh the otbers, aod impute il tow¿rds

IlIS

oIVn {hare of the legitime ; but if, from lhe deed of plO·

viGon, Ihe father fhall appear tO have iotended

prttcipuul/I

to lhe child, collation is excJuded.

child

is not bound to collate an heritabie fubjea pro\'lded 10

him, becaufe the legitime is oOt impaiaed by fucr l' ol'i.

fioo, As lhis collalioo takes place only

qu, lh",s a,

mong childrenwho are intillcrl to the

I~g;time ,

ti"

re1itl

is nOI bound 10 collate donallu s giren ha by hu 11IIf·

band, io order to

iocrea~

the legitime ; ar,don theo,her

94:1

part, the-children are nOl obliged to

e~lIate

their proviti.

oos, io order to increafe her filare,

11.

As ao heir iD heritage mun compleat his tides by

entry, fo

executor is not vened in the right of the

mJveable eaate of me deceafed withoUl confirmalion.

Confirmat~o

is a feoteoce of the Commilfary or Bilhop's

COurt, impowering an executor, ooe or more, upon ma·

king ioveotory of the moveables pertaioingto Ihe deceafed,

to recover, polTefs, aod admlnifter them, e ther io behalf

of themfelve" or of otbers ioterened therein. Tena·

ment, mufl be coofirmed io the commilTHiot where the

decealed had his principal dwelling houfe at his death,

he bad no fixed refideoce, or died io a foreign coun·

try, the confi rmation mua be at

Ed;nburgh,

as the

como

lIIune ¡orum;

~ut

if he weot abroad with an intention to

m uro,

the commilfariot within which he refided, before

he left Scotland, is the ooly proper court.

12.

Coofirmatioo proceeds upon ati ediél, which is af·

fixed on the door of the parifh.church where the decea–

fed dwelt. aod fmes tO intimate tO all concerned lhe day

of confirmation, which mua be oioe days at leaa after

publilhlng the ediél, In a competitioo for the office of

executor, the CommilTary prefers .

primo loco,

the pero

foo named to it by the deceafed himfelf, whofe nomioa·

1I0n he ralifies or confirml, without any previous decer–

oitme; this is called the coofirmation of a teílament·tena.

naotary. In default of an executor named by the de·

ceafed, univerf.1 Mponees are by the prefent praélice

preferred; after them, the nexl of kin ; then the reliél;

then creditors; and laftly, fpecial legatees . AII thefe

mult be decerned executors, by a fen'ence called a de·

cree·dative ; and if aflerwarrls they incline tOconGrm, the

Commilfary authorifes them to adminifler, upon their

m.k,ng inveotory, aod giviog fecurity to make the fub·

jetl ¡hmof forthcommg to all having Intereíl ; \Vhich is

c.lled Ihe confirmation of a teaament dative.

A creditor, whofe debtor's tenameot is already

cenfiraued, may fue the exeCUlor. who holds the office

for all conceroed, ,to make payment of hisdebt. Where

there is no confirmation, he h¡nifelf may apply for the

oflice, and confir01 as executor creditor; which intides

him10 fue for, and receive the f¡.bjeél coofirmed, for his

0100payment: And where one applies for a cenfirmation,

as exe utor creditor, every co·.reditor may apply tO be

conjoined wilh him in the oflice. As this kind of confir–

mation is fimp!ya form of diligence, credilors a'e ex·

empted from the neceffity of confirming more thao the

a–

mount of their debts.

A creditor, whofe debt has not been conflituted,

or his claim !l0t c10fed by decree, during lhe life of his

debtor, has no tide tOdemand diretlly the affice of exe·

cutor

qua

credilOr; but he may charge lhe next of kin

\\ho !fands otT, to confirm, Viho mun either renounce

within twenty days after the cbarge, or be liable for the

debl; and ir ,he next o! kin renouoces, the purruer m.y

connilll

hisdtbt, . nd obtain

decree

ccgnit;;nil cau!a,

agalnn Ihe

h"edital jacenl

of themoveables, upoo"hich

he may confirm as executor creditor to the deeeafed.

Whelc one is creditor, not

the deceafed. bU! tOhis

nex! of kin \Vho lI.nds otT from confir01iog. he m.y af·

(cél :he Oloveables o( the dec ared, by obtaining bimfelf

decern.:d