sine ullo corpore, juris intellectum habet, ac juris magis quam corporis possessio est, universitatem quandam ac jus successionis, non res singulares demonstrans." (a)

Sometimes it is used to express the right to the succession, as well as the subject of that right: "Sumitur pro ipso jure hæreditario, quo hæreditas alicujus dicitur propria." (b)

The property of the deceased is transmitted either by the act of the law, or by his own act; his heirs are instituted or named by the law, or by himself; the heirs and the succession are ab intestato, or by testament.

When the deceased has made no will, or if his will be not duly executed, or if it have been revoked, or if the person instituted by him as his heir renounce the inheritance, he is said to have died intestate, and the succession to his property devolves on those whom the law has called to it.

The succession in the case of intestacy is described as the disposition of the law in contradistinction to that of man, when the succession is derived from a testament.

The former prevails, unless there is a disposition by testament: "Provisio hominis facit cessare provisionem legis." (c)

He who would claim under any other disposition than that made by the law, must prove that there has been a disposition made by the deceased. The presumption is, not that the deceased has made a will, but that he has died intestate, and thus the claimant of his estate has only to prove his relationship to the deceased: "Respondemus præsumptionem esse, aliquem intestato decessisse, et hinc sufficerit probasse, se proximum agnatum esse. Huic enim lex ipsa defert successionem. Ille vero qui cesserit, dispositionem hominis adesse, hoc probare debebit, quia successio intestata juris est, et sic ab onere

(a) Voet, lib. 28, tit. 1, n. 1.

(b) Lauterb. Coll. Pand. tom. 2, lib. 28, tit. 1, § 3.
(c) Cod. lib. 5, tit. 14, 1. 11.

probandi liberat; testata vero facti est, et quidem non simplicis, sed admodum solemnis; solemnitas vero accessisse negotio non præsumitur, ut hinc probatione indigeat." (a)

It is intended to treat first of the succession ab intestato, and then of succession by testament.

In the civil law, and in the jurisprudence of Holland, Spain, and France, and in some of the states of America, there is no distinction between immoveable and moveable proverty, considered as a subject of succession, and with reference to those on whom it devolves. The systems of jurisprudence in which the law of succession to moveable and immoveable property is the same, will therefore be first considered.

In treating of succession by the law of England, and of those colonies which adopt that law, it will be necessary to bestow a separate consideration on the succession to immoveable property, because the law of succession to the one species of property is perfectly different from that by which the other is governed.

As the succession opens by the death of the testator or intestate, that event may not admit of direct proof. And when the right of an individual to the succession depends on his having survived another, it may be also matter of doubt from the circumstances under which both parties died, which of them survived the other. In these cases there are certain presumptions adopted by the law for the purpose of solving these doubts. These presumptions, as they are to be applied to succession ab intestato as well as by testament, will form the first subject of consideration.

The inquiry into succession by testament will be preceded by a view of that restriction on the testamentary

(a) Mascard. de Prob. concl. 930, n. 1, et seq. c. 46. F. Barry, de Success. 1. 18, c. ult. c. 1, n. 3. Menoch. de Præsumt. lib. 4, Ultim. Volunt. lib. 2, tit. 1.

P. Greg.

Fachin, contr. 46, 1. 6,
Tholosan. 1. 45, Synt.

præs. 1.

Mantic. de Conject.

power which obliges a parent to reserve a certain portion of his fortune for his children called légitime.

The succession by testament will then be considered. It will be found that in the forms and solemnities of the testament no distinction was made by the civil law, or by the jurisprudence of Holland, Spain, and France, between the testamentary disposition of immoveable and that of moveable property, whilst in the law of England, and other systems of jurisprudence, there is in this respect an important distinction. Hence a similar arrangement will be followed in treating of the succession by testament to property immoveable as well as moveable, and then of immoveable as distinguished from moveable property,

In pursuing this arrangement, the law which governs the succession to immoveable and moveable property, the title to légitime and its amount, and the forms and solemnities required for the testamentary disposition of moveable and immoveable property, will necessarily be considered.

The rights, obligations, and liabilities of those who are called by the law or by the testator to the succession, will form the remaining subjects of inquiry.

SECTION I.

OPENING OF SUCCESSION.

I. By death.-Effect of absence in affording the presumption of death.— Doctrine of the civil law and of the codes founded on it.-The former law of France. The rules established by the Code Civil.-Doctrine of the law of England.

II. Presumptions respecting survivorship when two persons have perished at the same time, and under circumstances which afford no proof which of them first died.-To what extent the sex, age, bodily strength, &c., may afford these presumptions.-The rule adopted by the civil law, and by other systems of jurisprudence, in the succession ab intestato by descendants.-Ascendants.-Collaterals.-Survivorship of mother and infant of which she was delivered.-Husband and wife. Survivorship of testator, devisee, or legatee.—In cases of substitutions, fideicommissa, donations.-Decisions of the Parliament of Paris.-Rules adopted by the Code Civil.-The cases decided in England.

I. THE succession opens by the death of the ancestor. (a) The absence of the person whose succession is claimed may render it uncertain whether he be in existence or dead. But even if his death be known, another difficulty may arise in the title to succession, where the death of the person who was entitled to succeed takes place at the same time with that of the person to whom he was entitled to succeed, and under such circumstances as to exclude all proof which of the two survived the other. In both these cases, if there be no actual proof of the death, or of the person who died first, the law adopts certain presumptions, by means of which it adjudicates as if the absent person were proved to be dead,

(a) Dig. lib. 10, tit. 2, 1. 2; lib. 18, tit. 4, 1. 1; lib. 29, tit. 2, 1. 13, § 1. Cod. lib. 8, tit. 51, 1. 4.

and the one or the other of the two persons is deemed the survivor, and the rights of succession take effect, as if there had been proof that he had survived the other.

There are two subjects of inquiry: 1st, What is the duration of the absence which affords the presumption of death; and, 2ndly, The presumptions made by the law that one of two persons survived the other, where there is no actual proof by which the fact can be determined.

"An

The absence of the person did not in the civil law, or in the codes founded on it, alone afford the presumption of his death. He who claimed an estate on account of a man's death was always held to prove it. An absentee was always reputed living until his death had been proved, or until one hundred years had elapsed since his birth. (a) "Non aliter actionem finiri concedimus, nisi centum annorum curricula excesserint." (b) ususfructus nomine actio municipibus dari debeat, quæsitum est; periculum enim esse videbatur, ne perpetuus fieret: quia neque morte, nec facile capitis diminutione periturus est: quâ ratione proprietas inutilis esset futura, semper abscedente usufructu. Sed tamen placuit dandam esse actionem. Unde sequens dubitatio est, quousque tuendi essent in eo usufructu municipes? Et placuit, centum annis tuendos esse municipes; quia is finis vitæ longævi hominis est." (c)

But even under these systems of jurisprudence the absence of the person for a much shorter period afforded such presumption of his death as to enable the heir to obtain the possession of the estate, and to make a division of it, on giving adequate security to restore it, if the party should be still alive. (d)

(a) 2 Ferriere, 359. 2 Pigeau, 2. Denisart, verb. Absence.

(b) Cod. lib. 1, tit. 2, 1. 23.

(c) Dig. lib. 7, tit. 1, 1. 56.

Sassman v. Aime, 9 Martin's Rep. 264.

Merlin, Quæst. de Droit, tit. Absent.

(d) Joh. Papon, lib. 15, tit. 7, in Append. art. 1, 4. Choppin. ad Leg.