locuples, that the wife should be inops, and that there should have been no dowry settled on her marriage. The law not having expressed the amount of property in respect of which the one was to be deemed wealthy and the other indigent, it was left to the discretion of the judge to decide what was the condition of the deceased and of the survivor (a)

In order to entitle the party to this succession, it was further necessary ut matrimonium sit indotatum. The dos which deprived the party of this claim must however have been of an amount sufficient for the support of the survivor. If it be insufficient for that purpose, it must be brought into the fourth claimed by the wife, so that the children can only be compelled to supply what is deficient. (b)

A widow who has a wealthy father was not considered to be in that indigence which was contemplated by the law. (c)

The question whether there be a state of indigence must be considered with reference to the time of the death of the deceased husband or wife. The survivor on whom a valuable succession should afterwards devolve is not deprived of the portion to which, by his condition at the time of the decease, he had become entitled. Neither can his subsequent poverty, to whatever misfortune it may be attributed, entitle him to it, if at the time of the death he was wealthy. (d)

The estate, to one fourth of which the survivor is entitled, is that which exists at the time of the death of the deceased after deducting his debts. (e)

The survivor succeeds not by the title of heir but by

(a) Menoch. de Arbitr. jud. quæst. lib. 2, Cas. 65. Stryk. Diss 4, c. 1, n. 18, 19, 20, 21. Forster, de Success. lib. 9, c. 4, n. 4. Gudelin, de Jure Noviss. lib. 2, c. 16.

(b) Stryk. n. 22. Berlich. p. 3, concl. 26, n. 18.

(e) Stryk. ib. n. 25. Barry, de Success. lib. 18, tit. 4, n. 14.

virtue of this special provision of the law. His fourth is not subject to be diminished by any legacies which the deceased may have bequeathed, neither does the survivor take any increased interest in the estate which may have accrued by the death of any heir or legatee. (a)

The paraphernalia of the wife, her dowry, any legacy which may have been bequeathed to her by her husband, and the amount of that dos, must be brought into account in computing the one fourth. (b)

The bequest by the husband to the wife, unless it be equal in amount to her one fourth, will not bar her title to that which is required to complete the one fourth, unless it has been expressly left to her, and she has accepted it in satisfaction of that claim. (c)

If a stranger, during the lifetime of the husband, should make a bequest to the wife which was not equal to her one fourth, but was sufficient for her support, she could neither succeed to her husband nor claim the difference between the amount of the bequest and her fourth of her husband's estate. It has been considered, that it was not competent for her to renounce this bequest, and thus entitle herself to claim the fourth; but Strykius expresses his doubt of the correctness of that opinion. (d)

The deduction of the bequest from the one fourth takes place only when the wife succeeds to the fourth of the property absolutely. If she has to take with children she is entitled only to a fourth of the usufruct, (e) and in that case she is not bound to deduct the bequest from it, but this Novell is wholly silent on this subject, and the 53rd Novell, which requires that the bequest should be brought into account, speaks only of the fourth of the absolute property. (ƒ)

(a) Stryk. Diss. 4, c. 1, n. 26, et seq.

(b) Stryk. ib. n. 32, et seq. Barry, de Success. lib. 18, tit. 4. Forster, de Success. lib. 9, c. 8, n. 2, et seq.

(c) Stryk. ib. n. 33.

(d) Barry, de Success. lib. 18, tit. 4, n. 15. Stryk. ib. n. 34.

(e) Novell, 117, c. 5.

(f) Stryk. ib. n. 35.

According to the 117th Novell, the fourth of the widow, whatever may have been the wealth of the husband, could not exceed centum libras aurei. (a)

By the 53rd Novell, c. 6, the absolute property in this fourth was given to the wife, notwithstanding there were children of the marriage. The 117th Novell also, if there were only three children, allowed the wife to take the fourth. But if there were more than three children, she only took a share with the children. In the latter case however she took only the usufruct, and not the absolute property in that share, and on her death the principal reverted to the children. If there were no children, she succeeded to the absolute property in the one fourth. It is to be observed, that although there should be children, yet if they were not her own children, but those of the husband by a former wife, she would take the absolute property in the fourth. (b)

The limitation of the widow's interest to the usufruct in one fourth in the event of there being more than three children, also took effect if there were grandchildren. They succeed to the rights of children when the latter are dead. But as grandchildren the issue of different deceased children succeed by representation, if there were ten grandchildren, the issue of three children, the widow would take her fourth, because the grandchildren taking by representation, would be accounted only as three; but if the ten grandchildren were the issue of only one child, then as they would take per capita, the widow would only take a share with them, that is one eleventh. (c)

If there be no children, the widow succeeds to the one fourth. When the succession devolves on ascendants or collaterals, she takes this fourth absolutely, and not merely the usufruct, but it seems if there are more than

(a) Stryk. Diss. 4, c. 1, n. 35.

(b) Ib. n. 37.

(c) Carpz. p. 3, const. 12, def. 11, n. 9. Stryk. ib. n. 38.

three ascendants or collaterals to take, she will be restricted only to an equal share with them. (a)

It has been doubted by some jurists whether the husband being inops and the wife locuples, enjoys the same right of succession to the wife's property and can claim a fourth. (b) But by other jurists it is considered, and with great reason, that the husband is equally entitled. (c) II. The law of Spain adopts the order of succession ab intestato established by the civil law as to descendants, ascendants, and collaterals, and in respect of the husband and wife. (d)

SECTION II.

SUCCESSION AB INTESTATO BY THE LAW OF HOLLAND. The law of succession of North Holland and South Holland.-In Demerara, Berbice, Cape of Good Hope, and Ceylon.-Peculiar principles of the two laws. As distinguished from the civil law.-Descendants, ascendants, collaterals. The issue born in concubinatu on the same footing as other children born out of wedlock.-The succession of husband and wife to each other not recognized.

THE law of Holland, following the civil law, made no distinction between immoveable and moveable property as to the order in which persons succeeded to the estate of the intestate, and except as to the descent of feuds it conferred no preference on account of primogeniture, and it admitted females equally with males to the succession. (e)

(a) Barry, de Success. lib. 18, tit. 4, n. 11. Brunneman, Cod. lib. 6, tit. 18. Berlich. p. 3, conclus. 26, n. 30.

(b) Barry, de Success. lib. 18. Gudelin, de Jure Noviss. lib. 2, c. 16. (e) Gaill, lib. 2, obs. 98. Berlich. p. 3, conclus. 26, n. 28. Brunneman, ad Cod. lib. 6, tit. 18. Stryk. Diss. 4, c. 1, n. 42.

(d) L. 3, 8, 9, 10, 11, tit. 3, P. 6. L. 5, 7, tit. 20, lib. 10, Nov. Recop. L. 7, tit. 13, P. 6. Greg. Lopez, Gl. 1.

(e) Inst. lib. 2, tit. 1. Dig. lib. 38, tit. 16. Cod. lib. 6, tit. 55, 58. Novell, 118. Voet, lib. 38, tit. 18. Strykius, de Success. ab intestato. Van Leeuwen, Cens. For. part 1, lib. 3, c. 12, et seq. Van der Linden, b. 1, ch. 10. Vinnius, Com. in Inst. lib. 3, tit. 5, p. 541. Groeneweg. ad Dig. lib. 38, tit. 9, and ad Cod. lib. 6, tit. 58, et seq.

Two rules of succession prevailed from time immemorial in different parts of Holland, the one called the Jus Scabinium or Schependomsch Recht, or South Holland law, the other called the Jus Aesdominum or Aasdomsch Recht, or North Holland law. The latter was adopted in the northern and the former in the southern part of Holland.

These laws, whilst they recognized the three classes of descendants, ascendants, and collaterals, and followed the order in which the civil law called them to the succession, adopted two different principles. It was the fundamental principle of the law of North Holland that the nearest in blood was the nearest in succession. According to this principle it did not admit representation; the sons excluded the grandsons, and the latter excluded the great grandsons.

The principle of the South Holland and Zealand law of succession was, that the property should return to the source from which it was derived, according to the order of descendants, ascendants, or collaterals from whence it had come. If therefore there were no children of the deceased, both the parents succeeded, but if either of the parents had died in the lifetime of the intestate, neither the surviving parent nor any others related by him or her to the deceased were admitted to the inheritance or to a share of it, and the relations on the side of the deceased parent, although more remote, were preferred to them.

In 1580 it was deemed advisable to adopt one uniform order of succession for the whole of Holland by combining parts of both laws, and in that year the political ordinance was passed by the States General, and in 1594 an edict was passed, containing an interpretation of it on certain points. (a)

It was however considered that the political ordinance of 1580 had given too decided a preference to the Jus

(a) Pol. Ord. 1st April, 1580. Van Leeuwen, Cens. For. part 1, lib. 3, c. 16.