If they were of the same sex, the presumption of survivorship which gives rise to succession according to the order of nature must be admitted, thus the younger is presumed to have survived the elder.

It is considered by Toullier that these rules are applicable not only to successions ab intestato, but to the institution of heirs by testament, to legacies, and donations. (a)

In the few cases which are reported to have been decided in England, it would seem to be the inclination of the courts not to adopt these presumptions.

Upon the death of General Stanwix and his daughter, the property was claimed by the brother of the daughter's mother, upon the presumption that she had survived her father. The question in this case was never judicially determined. (b) In Mr. Fearne's posthumous works there is a very elaborate discussion of the subject, in which his conclusion seems to be that the presumption of the daughter's survivorship could not be supported. This subject came before Sir William Wynne, as Judge of the Prerogative Court, in the case of Wright and Netherwood, 6th May, 1793, (c) upon a question respecting the implied revocation of a will by marriage, and a birth of a child. The father and child having perished together by shipwreck, the learned judge said, that with respect to the priority of death, it had always appeared to him more fair and reasonable in these unhappy cases to consider all the parties dying at the same instant of time, than to resort to any fanciful supposition of survivorship on account of the degrees of robustness. (d)

In another case it appeared, that in the month of January 1809, the testator, who was at that time a middle aged man, embarked with his son Francis on

Chabot. Tr. des

(a) Toull. des Success. n. 3, tit. 1, c. 1, n. 75, et seq. Success. art. 722. (b) The King v. Dr. Hay, 1 Bl. Rep. 640. (d) Ib.

(c) Lugg v. Lugg, 2 Salk. 593.

board the Calcutta, on a voyage to England. The ship sailed the same month, was lost on her homeward voyage, and all on board perished.

The master by his report stated that all persons on board perished, and he was therefore unable to state whether the said Francis survived his father or not.

The Master of the Rolls (Sir W. Grant) said, "There are many instances in which principles of law have been adopted from the civilians by our English courts of justice, but none that I know of in which they have adopted presumptions of fact from the rules of the civil law. In General Stanwix's case, I thought the stress of the argument to be in favour of the representatives of the father. There were three contingencies; either the daughter survived the father, or the father the daughter, or both perished at the same instant. In the first of these cases alone would the representatives of the daughter have been entitled, those of the father in either of the two last. There were, therefore, two chances to one in favour of the latter. In the present case I do not see what presumption is to be raised; and, since it is impossible you should demonstrate, I think that, if it were sent to an issue, you must fail for want of proof." (a)

A husband appoints his wife executrix and residuary legatee; he and his wife were drowned, but there was no direct evidence which of them had survived. A question arose, whether the next of kin of the wife as residuary legatee, or of the husband, were entitled to administration. The learned judge thus states the ground on which he decided in favour of the next of kin of the husband. (b) "The next of kin of the husband has the primâ facie right, but if there is a residuary legatee he would be entitled: there is no such person here, for the party claims derivatively from the resi

(a) Mason v. Mason, 1 Mer. 313.

(b) Taylor v. Diplock, 2 Phillimore's Rep. 261.

duary legatee. The burthen of proof lies on him to show that the deceased left a residuary legatee; the next of kin of the residuary legatee is to show that the wife survived her husband. The same was the rule in the civil law, as has been satisfactorily stated in argument; the proof of the wife surviving must be shown, otherwise the deceased left no residuary legatee. Upon the whole, I am not satisfied that proof is adduced that the wife survived. Taking it to be that both died together, the administration is due to the representatives of the husband. I assume that they both perished at the same moment, and therefore I shall grant the administration to the representatives of the husband. I am not deciding that the husband survived the wife."

The same principle was adopted in a subsequent case. (a)

(a) Colvin v. H. M. Proc. General, 1 Hagg. Rep. 92. Selwyn, 3 Hagg. Eccles. Rep. 748.

CHAPTER II.

SUCCESSION AB INTESTATO TO IMMOVEABLE AND
MOVEABLE PROPERTY.

In the following chapter those systems of jurisprudence are selected in which the order of succession is the same, whether the property is immoveable or moveable.

SECTION I.

SUCCESSION UNDER THE CIVIL LAW AND THE LAW

OF SPAIN.

I. The Civil Law, Novell 118.-Order in which the heirs are called.— Descendants. Representation.-Children born in wedlock.—In concubinatu.—Spurii.-Ascendants.-Collaterals.-Agnati. —Cognati.— Husband and wife.-Succession to each other.

II. The law of Spain.

ACCORDING to the civil law, the same order of succession was adopted with respect to real and personal property. It conferred no preference on account of primogeniture. It admitted females to an equal parti

cipation with males in the succession to real as well as personal property. (a)

The succession was not acquired until the heir had accepted it, whilst according to the law of France, le mort saisit le vif.

The order of succession established by the civil law holds a very prominent station in the several systems of jurisprudence which are here considered.

It is not necessary to advert to the order of succession established by the Twelve Tables. That which was introduced by the Emperor Justinian formed the law of succession now known and referred to as the succession according to the civil law. It admitted three classes of successors, descendants, ascendants, and collaterals. The descendants were first entitled, then ascendants, and lastly collaterals. It is expressed in the following terms: If a man die intestate, leaving a descendant of either sex or degree, such descendant, whether he derives his descent from the male or female line, or whether he is under power or not, is to be preferred to all ascendants and collaterals. And although the deceased was himself under paternal power, yet we ordain that his children of either sex, or any degree, shall be preferred in succession to the parents, under whose power the intestate died, in regard to those things which children do not acquire for their parents, according to our other laws; for we would maintain the laws in respect to the usufruct which is allowed to parents, so that if any of the descendants of the deceased should die, leaving sons or daughters, or other descendants, they shall succeed in the place of their own father, whether they are under his power or sui juris, and shall be entitled to the same

Voet, lib. 38, Perez. ad h. tit.

(a) Inst. lib. 3, tit. 1. Vinnius, ad h. lib. and tit. Dig. lib. 38, tit. 6, 9, 10, 16. Cod. lib. 6, tit. 14, 15, 16, 54, 55, 56, 57, 58, 59. Brunneman, ad h. lib. and tit. in Pand. and Cod. in Cod. Lauterbach, ad lib. 38, tit. 6, 9, 10, 16, in Pand. Success. c. 3, § 2.

tit. 18.

Pothier, Tr. des