Lyndhurst and Devon concurred, and the interlocutor was affirmed. (a)

The child's renunciation of the legitime or his acceptance of a sum in satisfaction of it, has the same effect in regard to the younger children entitled to it, as the death of the renouncer, so that his share divides equally among the rest. (b) But a child renouncing the legitime is not cut off from his right to the father's dead's part, for to that he is entitled, not as a child in familiâ, but as next of kin to the father. (c) Where, therefore, there is but one younger child, this renunciation of the legitime has the effect of turning the whole of that right, to which he was entitled as the only younger child into dead's part, and consequently all the executry falls to the renouncer himself in the character of the father's next of kin, unless the heir is willing to collate the heritage with him. (d) But where a child renounces not only his legitime, but in general all interest of whatever sort in the executry, or all that he might claim by his father's death, such renunciation plainly imports a renunciation of the dead's part. (e)

(a) Judgment, Breadalbane v. Chandos, House of Lords, 16th Aug. 1836. Whilst this cause was pending in the House of Lords, the Marquis of Breadalbane filed a bill in the Court of Chancery in England against the Marquis and Marchioness of Chandos. Its object was to establish the existence of some presumed intention on the part of the late Marquis of Breadalbane to give the marriage portion in bar of his daughter's legitime, and some implied intention on the part of her Ladyship to accept it in discharge of that claim. After the judgment of the House of Lords had been pronounced, a motion was made before the Vice Chancellor to restrain the Marquis of Chandos from availing himself of the judgment of the Court of Session, thus affirmed by the House of Lords. The result of this motion, which involves some important points stated in the preceding pages, will be given in the Appendix.

(b) Stair, Feb. 17th, 1671, McGill, Dict. 8179. Fac. Coll. No. 186, June 7th, 1791, Hog, Dict. 8193.

(c) Gosf. July 19th, 1672, Chisholm, Dict. 8180.

(d) Falc. 2, 62, Martin, Feb. 22nd, 1749, Dict. 8167, Kilk. No. 4, v. Legitim. Fac. Coll. July 29th, 1768, Sinclair, &c. Dict. 8188.

(e) Fount, Dec. 4th, 1694, Fowbister, Dict. 8181. Clerk Home, 101,

The renunciation both of the legitime and the dead's part by a younger child operates in favour, not only of the younger children who continue in family with their father, but in favour of their descendants; so that the child renouncing cannot claim the office of executry in competition with any of those descendants, though he be truly a degree nearer in blood to the deceased than they are. (a)

Such a renunciation excludes, not only the renouncer, but his descendants, in competition with the descendants of the children who had not renounced, for they cannot in their father's right claim any subject to which he has expressly given up his claim. But the renouncer's children are not excluded in a question with collaterals, after all the other descendants of the deceased have failed; for where the father procures a renunciation of the legitime or executry from any child, his purpose is barely that his other children may have the benefit of it, without any intention that any of his own descendants, even the children of the renouncer himself, should be thereby excluded from their natural right, in competition with a collateral kinsman. (b)

When a wife in her marriage contract renounces her jus relicte by accepting a special provision in satisfaction or in full of it, such renunciation is not considered as a conveyance of her third to her husband, so as to increase the dead's part from one-third to two-thirds. It has the same effect as her death, so as to make the husband's testament divide in two, the one half legitime, and the other the dead's part. The wife's right is not of the nature of a debt, which may be transferred from the wife to the husband; it is a right of division, which

Campbell, July 21st, 1738, Dict. 9265. Fac. Coll. June 24th, 1785, Hepburn, Dict. 5056. Anderson, Nov. 22nd, 1743, Dict. 5054.

(a) Clerk Home, 101, sup.

(b) Campbell, Feb. 2nd, 1731, Dict. 9263; Dict. 2, p. 4. Kilk. No. 2. v. Legitim, Campbell, July 2nd, 1738, Dict. 8187. Ersk. b. 3, tit. 9, § 23.

takes no place till the dissolution of the marriage; and this right is extinguished by the predecease of the wife, because after her death she cannot be reckoned in the division, so it must also be extinguished by the renunciation. A widow who has renounced cannot concur in the division; and in every case where the widow cannot concur the legitime is the half of the executry. (a)

Confirmation is not necessary by the widow and children, to vest in them, or transmit to their next of kin, that share of the moveables which falls under the legitime and jus relictæ. It does not fall to them by succession, but in their proper right. (b)

The share of a child predeceasing is transmitted without confirmation to his issue. But although the jus relictæ, and legitime fall to the widow and children by way of division of the goods in communion, and consequently descend after their death, even without confirmation from them to their next of kin; yet these next of kin cannot establish properly in themselves the right of the widow and children, but by confirming executors to them. (c) And they must also confirm to the first deceased, if no other has confirmed before them, in order to carry his testament into execution, because till his testament is confirmed, the extent of his free executry, and consequently the shares of the widow and children, cannot be known. (d)

(a) Kaimes, 66. Nisbets, Jan. 18th, 1726. Dict, 8181. Fac. Coll. Jan. 7th, 1762, Jervey, Dict. 8170. Erskine, b. 3, tit. 9, § 20.

(b) Stat. 4 Geo. 4, c. 98, § 1. 1 Bell's Comm. (5th ed.) 142. See opinions of English Counsel, cited in Egerton, Nov. 27th, 1812, F. C. Craigie, June 12th, 1817, ib. Milligan, Feb. 9th, 1826, ib. Pultney, &c. Erskine, b. 1, tit. 6, § 13, n. 146. Somervill, Dec. 4th, 1744. Dict. 3902. Atkinson, &c. Dict. v. Serv. and Confirm. App. No. 3. Fac. Coll. July 27th, 1779, Sloan Laurie, Dict. 3918. Ib. Feb. 10th, 1784. Fraser, Dict. 3921, Ib. May 26, 1802, Alison, Dict. 3922. Erskine, b. 3, tit. 9, $30.

(c) Stair, b. 3, tit. 8, § 61. (d) Erskine, ib.

SECTION IV.

THE LAW BY WHICH LEGITIME, &c. IS GOVERNED.

The legitime or the analogous provision is governed as to its amount, and the persons entitled, and the property subject to it, by the lex loci rei sitæ when the property is immoveable, and by the law of the domicile when it is moveable.-Conditions or qualifications governed by the same law. Property situated in several countries, where the laws differ from each other in the conditions and qualifications to which this provision is subject.—Whether the law of the one country affects the right in the property situated in another country, where no such law prevails.-Consequence of one part of the property being situated in a country where the person is excluded, and another part situated in a country where no exclusion prevails.-Renunciation determined by the lex loci rei site in immoveables, and by the law of the domicile in moveables.

In ascertaining the nature and extent of the right of children or parents in the estate of the deceased, whether that right be legitime in its ordinary sense, or the reserve of a certain part of his property, recourse is had to the law of the country in which the property is situated, if it be immoveable, and to the law of his domicile, if it be moveable property from which it is claimed.

When the right consists of a certain portion of that which would belong to the children or parents in the succession, if the deceased had died intestate, it is obvious that the same law by which the interest in the succession is conferred, must also determine by whom the legitime may be demanded, and the portion to which they are entitled.

When it consists of the reserve of a certain portion of the whole or of some part of the estate to which the deceased was entitled at the time of his marriage, or of his death, and of which he is restrained from making

any disposition, it is governed by the law to which the disposition of the property is subject.

If it can be claimed by those only who sustain the character of heir, the law which governs the succession to that property must also determine by whom, and in what proportion it is taken.

"Jus

Whatever may be the distinctive character of this right, the liability to, or exemption of the property from it is a quality impressed on the property. ponitur rebus extra ullum actus à personâ peregendi interventum." (a) The law which confers that liability or exemption is a real law. It follows, therefore, from the principles which have been so frequently stated in preceding parts of this work, that the right is governed by the law of the situs of immoveable property, if the right be claimed from that species of property, and by the law of the domicile, if it be claimed from moveable property: "La légitime est un droit réel; et les lois qui la différent ou qui la règlent, sont des statuts réels, dans le vrai sens de ce terme. Ainsi, ce n'est ni à la loi du domicile du défunt, ni a celle de la naissance des legitimaires, qu'on doit s'arrêter pour cet objet : mais il faut considérer chaque coutume en particulier, et, sans faire attention aux autres, distraire des biens qu'elle régit, la portion légitimaire qu'elle a fixée. Il y a, dans le recueil de Papon, un arrêt qui nous apprend que cette vérité si simple a autrefois été combattue en justice, mais sans succès.—Le 3 Février, 1541, fut décidé par arrêt (au rapport de M. de l'Hôpital), que si le testateur, demeurant en pays de droit écrit, et ayant des biens en plusieurs provinces, tant coutumières que de droit écrit, par le testament institue l'un de ses enfans héritier universel, les autres prendront leur légitime et portions, telles que la disposition de chacun pays où les biens seront situés porte, soit de droit ou de coutume; savoir, en pays de droit écrit, selon la computation de

(a) Rodenburg, tit. 2, c. 2, n. 1.