Encyclopaedia Britannica; or, A dictionary of arts and sciences, compiled upon a new plan … > Volume 2, C-L

L
yet it is in pra&ice tripartite ; two thirds remain with the
furviving father, as if one third were due to him proprio
nomine, and another as adminiHrator of the legitime for
his children ; the remaining third, being the wife’s lhare,
goes to her children, whether of that or any former mar¬
riage, for they are all equally her next of kin.
7. Before a teftament can be divided, the debts owing
by the deceafed are to be deduced ; for all executry mu(t
be free. As the hulband has the full power of burden¬
ing the goods in qommunion, his debts affedt the whole,
and fo leffm the legitime and the lhare of the relift, as
well as the dead’s part. His funeral charges, and the
mournings and alimony due to the widow, are conGdered
as his proper debts ; but the legacies, or other gratuitous
rights, granted by him on deathbed, affeft only the dead’s
part. Bonds bearing intereft, due by the deceafed, can¬
not diminilh the relidl’s lhare, becaufe fuch bonds, when
due to the deceafed, do not increafe it The funeral
charges of the wife predeceafing, fall wholly on her exe¬
cutors who have right to her lhare. Where the deceafed
leaves no family, neither hulband, wife, nor child, the
telfament fufFers no diviGon, but all is the dead’s part.
8. The whole ilTue of the hufband, not only by that
marriage which was diflblved by his death, but by any
former marriage, has an equal intereft in the legitime ;
oxherwife the children of the firft marriage would be cut
out, as they could not claim the legitime during their fa¬
ther’s life. But no legitime is due, 1. Upon the death
of a mother. 2. Neither is it due to grandchildren, up¬
on the death of a grandfather. Nor, 3. To children
forisfamiliated, i. e. to luch as, by having renounced
the legitime, are no longer confidered as in famiiia, and
fo are excluded from any farther Glare of the moveable
eftate than they have already received.
9 As the right of legitime is ftrongly founded in na¬
ture, the renunciation of it is'not to be inferred by im¬
plication. Renunciation by a child of his claim of legi¬
time has the fame effedf as his death, in favour of the o-
ther children intitled thereto ; and confequently the Glare
of the renouncer divides among the reft ; but he does not
thereby lofe bis right to the dead’s part, if he doesaiot
alfo renounce his Glare in the father’s executry. Nay,
his renunciation of the legitime, where he is the only
younger child, has the effeA to convert the whole fubjedt
thereof into dead s part, which will therefore fall to rhe
renouncer bimfelf as next of kin, if the heir be not w.Jl-
ing to collate the heritage with him.
10 For preferring an equality among all the children,
who continue intitled to the legitime, we have adopted
the Roman dodfrine of coilatio bonorum; whereby the.
child, who has got a provifion from his father, is obliged
to collate it with the others, and impute it towards his
own Glare of the legitime ; but if, from the deed of pro-
viGon, the father Giall appear to have intended it as a
prttcipuum to the child, collation is excluded. A child
is not bound to collate an heritable fubjedl provided to
him, becaufe the legitime is not impaired by fuch pcovi-
fion. As this collation takes place only in queftions a-
niong children who are intiiled to the legitime, the reiidt
is not bound to collate donations given her by her huf-
bundj in order to increafe the legitime ; and on the other
A "W.
part, the children are not obliged to collate their provifi-
ons, in order to increafe her Glare.
11. As an heir in heritage muft compleat his titles by
entry, fo an executor is not veiled in the right of the
moveable eftate of the deceafed without confirmation.
Confirmation is a fentence of the Commiftary or Bifliop’s
court, impowering an executor, one or more, upon ma¬
king inventory of the moveables pertainingto the deceafed,
to recover, poflefs, and adminifter them, either in behalf
of themfelves, or of others interefted therein. Tefta*
ments muft be confirmed in the commiflariot where the
deceafed had his principal dwelling houfe at his death.
If he had no fixed refidence, or died in a foreign coun¬
try, the confirmation muft be at Edinburgh, as the com¬
mune Jorum ; but if he went abroad with an intention to
return, the commiflariot within which he refided, before
he left Scotland, is the only proper court.
12. Confirmation proceeds upon an ediil, which is af¬
fixed on the door of the parifh-church where the decea¬
fed dwelt, and ferves to intimate to all concerned the day
of confirmation, which muft be nine days at leaft after
publifiiing the editft. In a competition for the office of
executor, the Commiflary prefers, primo loco, the per-
fon named to it by the deceafed himfelf, whofe nomina¬
tion he ratifies or confirms, without any previous decer-
niture ; this is called the confirmation of a teftament-tefta-
msntary. In default of an executor named by the de¬
ceafed, univerfal difponees are by the prefent pra&ice
preferred; after them, the next of kin; then the relifl;
then creditors; and laftly, fpecial legatees All thefe
muft be decerned executors, by a femence called a de¬
cree-dative ; and if afterwards they incline to confirm, the
Commiflary authorifes them to adminifter, upon their
making inventory, and giving fecurity to make the fub-
jeA thereof forthcoming to all having intereft ; which is
called the confirmation of a teftament-dative.
13. A creditor, whofe debtor’s teftament is already
confirmed, may fue the executor, who holds the office
for all concerned, to make payment of his debt. Where,
there is no confirmation, he himfelf may apply for the
office, and confirm as executor creditor ; which intitles
him to fue for, and receive the fubjed confirmed, for his
own payment: And where one applies for a confirmation,
as executor-creditor, every co-.reditor may apply to be
conjoined with him in the office As this kind of confir¬
mation is limply a form of diligence, creditors a e ex¬
empted from the neceflity of confirming more than the a-
mount of their debts.
14 A creditor, whofe debt has not been conftituted,
or his claim not clofed by decree, during the life of his
debtor, has no title to demand diredly the office of exe¬
cutor creditor; but he may charge the next of kin
who Hands off, to confirm, who muft either renounce
within twenty days after the charge, or be liable for the
debt; and if the next of kin renounces, the purfuer may
conftitute his debt, and obtain a decree cognitionis caufa,
againft the hereditas jacent of the moveables, upon which
he may confirm . as executor creditor to the deccafei.
Where one is creditor, not to the deceafed, but to his
next of kin who Hands off from confirming, he mny af-
fuft the moveables of the deceafed, by obtaining himfelf
decerned