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heritable succession that question can only be raised in the court of the situation of the estate.(g)

85. Who are Full Blood Relations.-Full blood relations are persons born or descended of the same father and mother.(r) In the Intestacy Act, 1855, they are styled german relations.

86. Who are Consanguinean Relations.-These are persons descended from the same father, but not the same mother, and are sometimes styled half-blood consanguinean.(s) Among descendants, no distinction obtains between these and the full blood; but among collaterals, these half blood succeed after the full blood, there being a total exclusion of the half blood in competition with the full blood in the same degree of succession (t)-e.g., if an intestate leave a brother consanguinean and a nephew by a brothergerman, the nephew, though more remote by one degree, will take the succession. Consanguinean relationship is reckoned to extend as far as the evidence of propinquity can reach.(u)

87. Who are Uterine Relations.-These are persons descended from the same mother, but not the same father, and are sometimes styled half-blood uterine.(v) Formerly there was no succession by such persons to the full blood; nor was any relationship recognised between the consanguinean and the uterine, or succession ab intestato of the one to the other, or even, in the case of uterine relations, to one another. (w) But, by the Intestate Moveable Succession Act, 1855,(x) it is provided that where an intestate, dying without leaving issue, whose father and mother have both predeceased him, shall not leave any brother or sister-german or consanguinean, nor any descendant of a brother or sister-german or consanguinean, but shall leave brothers and sisters-uterine, or a brother or sister-uterine, or any descendant of a brother or sisteruterine, such brothers and sisters-uterine, and such descendants in place of their predeceasing parent, shall have right to one half of his moveable estate. By the Married Women's Property Act, 1881, the moveable estate of a wife is vested in herself, and, on her death intestate, her children, in addition to taking legitim, take the residue of the estate, under deduction of a share to the

(q) M'Laren, § 38.

(r) Bell's Prin. § 1651. Mitchell,

14th Dec. 1872, 10 S. L. R. 149.

(s) Bell's Prin. § 1654.

(t) Ibid. § 1653.

(u) Bell's Prin. § 1652; Ersk. 3,9,2.

(v) Bell's Prin. § 1654.

(w) Ersk. 3, 8, 8; Bell's Prin. § 1654.

(x) 18 Vict. c. 23.

husband; and it would seem that her children of whatever marriage can succeed to her and to each other.

88. Who are Maternal Relations.-Formerly there was no succession by affinity or relationship by marriage (y): thus a husband and wife never succeeded to each other, nor could the separate relations of the one succeed to those of the other, but important amendments of the law have been introduced of late years. By the Act 18 Vict. c. 23, "where an intestate, dying without leaving issue, whose father has predeceased him, shall be survived by his mother, she shall have right to one-third of his moveable estate, in preference to his brothers and sisters or their descendants, or other next-of-kin of such intestate."

The same Act, as noticed in the previous section, also gives to the uterine collaterals of the intestate right to one-half of his moveable estate if all his german or consanguinean collaterals be dead.

Another change in the law has been introduced by the Married Women's Property (Scotland) Act, 1881, by which after the passing of that Act the husband of any woman who may die domiciled in Scotland shall take by operation of law the same share and interest in her moveable estate which is taken by a widow in her deceased husband's moveable estate, according to the law and practice of Scotland, and subject always to the same rules of law in relation to the nature and amount of such share and interest, and the exclusion, discharge, or satisfaction thereof, as the case may be.

Barring these statutory exceptions, the principle still remains that affinity or relationship by marriage gives no right to a share of an intestate's estate. So if A have a son and daughter, B and C, and they both predecease him, the former survived by a wife and the latter by a husband, neither of such wife nor husband has any legal claim on the estate of A.

89. Goods in Communion, or Communio Bonorum. -This phrase is generally made use of by the Institutional writers as denoting the moveable property belonging in common to both spouses, of which the husband during the subsistence of the marriage has the uncontrolled management, but in which, upon his death, the widow and children have certain indefeasible rights.

In the ancient law of Scotland no mention is made of this

(y) Ersk. 3, 8, 9, and 3, 9, 2.

doctrine, and there is no evidence of the word communio being known in Scottish legal nomenclature until the seventeenth century.(2)

The doctrine is stated by Lord Stair thus(a):-" By our custom, without any voluntary contract, there arises betwixt husband and wife a communion of all moveables, except the habiliments and ornaments of the wife's body. . . . The husband hath the full and sole administration of all moveable goods belonging to or accrescing to the wife during the marriage. . . . From this communion of goods it follows also that there is a communion of debts whereby the husband is liable for the wife's debts. . . . And after the dissolution of the marriage" the goods in communion suffer a division.

Professor Erskine says(b):—“ A man and woman, by entering into marriage, are joined in the strictest society or copartnery, which necessarily draws after it a communication of their mutual civil interests (as far as necessary for preserving the society) styled in our law the communion of goods. . . . The husband has the sole right of administering the society goods. . . . He can sell, and even gift at his pleasure, the wife's whole moveable subjects by any deed that is to take effect during the marriage, and the creditors may attach them as his for their payment. So that marriage carries all the character of a legal assignation by the wife in favour of her husband of her whole moveable estate," subject to the debts contracted by the wife before the marriage, for which the husband becomes responsible.

...

Professor Bell says (c):-"The communio bonorum comprehends . . generally the whole personal estate, with two exceptions: (1) of such effects as have been given to the wife expressly excluding the jus mariti; and (2) of paraphernalia, in regard to which the jus mariti is by implication excluded."

Of late years the origin, nature, and extent of the communio bonorum have been the subject of much criticism, and although the phrase has been frequently employed by the Court in determining the mutual rights of married persons, (d) there now appears to be a general concurrence of opinion that since the passing of the Moveable Succession Act, 1855, which took away the right of

(*) 1 Fraser, 656.

(a) Stair, 1, 4, 13 et seq.
(b) Ersk. 1, 6, 12.
(c) Bell's Com. 1, 678.

(d) Muirhead, 6th Dec. 1867; Smith, 5th June, 1869; Fraser, 21st June, 1872; Thomson & Others, 9th July, 1879.

the wife to transmit to her representative any share of the united moveable estate, it is inapplicable to the existing state of matters.

In Muirhead's case,(e) Lord Curriehill said :-" We must guard against being misled by the manner in which the expression communio bonorum is occasionally made use of, from which an idea appears to have arisen that these words denote a kind of partnership capital, of which the husband is merely the administrator for behoof of his wife and children as well as of himself. Unquestionably the wife and children may have ultimate interests of very great importance in the effects belonging to the head of the family, but during the marriage he is absolute proprietor of the whole moveable estate with unlimited powers of administration. It is not until his death that any division of the property takes place, and that which then forms the subject of division is his executry estate, one-third of which belongs to the widow jure relictæ."

Dr. (now Lord) Fraser, in his able work on the "Domestic Relations," traces the law on the subject through all its modifications from early times, and contends that "the doctrine has been condemned as a fiction, illusory-a mere name." Commenting on the theory held by several institutional writers that the communio is composed of three partners,-the wife, the husband, and the children," Dr. Fraser says :-"The jus relicta and legitim are in all respects the same: that they are mere casual contingent rights. during the subsistence of the marriage, existing then only in hope, and coming into proper rights merely at its dissolution: they are not rights of division of a fund already held in common, but rights of debt against the husband's executors, constituting the widow and the children creditors, whose rights come into being by the husband's death, and secondary creditors too, for all other debts must be paid before them." (f)

In Fraser's case,(g) the Lord President said:-"All we know of the communio bonorum is that when the husband predeceases the wife, the wife is entitled, jure relicta, to one-third, or one-half of the husband's moveable estate, or of his free executry; and until the law was altered by a recent statute, that when the wife predeceased the husband and left no children, the next-of-kin of the wife were entitled to claim one-half of that moveable estate, or, as it was called, the goods in communion. That right of the executors of

(e) 6th Dec. 1867, 6 Macp. 95. (f) Fraser, 1, 671, and cases there cited.

(g) 21st June, 1872, 10 Macp.

837.

the wife has been abolished by the Statute, whether she dies testate or intestate; and therefore the only practical result of the communio bonorum, if indeed it be a result of that at all, is the jus relictœ.”

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In the same case Lord Kinloch said: "It is in vain to say that during the subsistence of the marriage, a society or partnership, or anything resembling it, exists between the spouses. The whole belongs to the husband. To call any part of the effects the wife's own during the marriage is a legal solecism. But as soon as the marriage is dissolved by the death of either party, there arises, or at least arose until the recent Statute, a right to both to share in the moveable estate, which previously were exclusively the husband's. When the wife predeceases without children existing, she had till the recent Statute a right to transmit one-half to her legal representatives. When the husband predeceases, she had and still has a right to one-half as jus relicta. These two rights include the whole of any participation in the moveable estate ever competent to the spouses by our law. It is to the effect of comprehending these rights, and to no other effect whatever, that the phrase communio bonorum can ever be legitimately employed. If indicating anything more, the phrase has been illegitimately used. It has been reasonably suggested that the phrase came to be employed as a supposed philosophic exponent of the rights arising at dissolution; and that so far from a communio bonorum giving rise to the rights emerging at dissolution, it was the existence of these rights which brought the phrase communio bonorum into use. At all events nothing else was ever legally comprehended under that name except the two rights referred to. Communio bonorum in the law of Scotland means these two rights and nothing more."

It would thus appear that the communio bonorum is a legal fiction originally introduced into the law of Scotland to account for two rights the jus relicta, if the wife survived her husband, and the right of the wife's next-of-kin to one-half of the moveable estate, if she predeceased him.

The latter right having been abolished by the Moveable Succession Act, 1855, the former-the jus relicta-now alone remains. Whether this right of jus relicta can be strictly held to account, even in part, for the introduction into our law of the doctrine of communio bonorum, is a question now of no practical importance. It may be doubted if the right can be regarded even as a result of the doctrine, unless the right of legitim be likewise so regarded, seeing both rights arise in the same manner, and are subject to

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