death Yea a Wife was found to have right to the expenses of Child-bed of a posthumus Child born after the next Term against the eldest Son though he was not Heir but having an universal Disposition of his Fathers means which was very considerable which Disposition was granted after the Posthumus Childs Conception November 10. 1671. Thomas Hastie and Barbara Ker his Mother contra William Hastie A Wife has also her Mournings if her quality require it out of her Husbands Executry November 12. 1664. Nicolas Murray Lady Craigaffie contra Cornelius Neilson July 7. 1675. Agnes Wilkie contra Christian Morison And likewise if the Wife predecease her Executours have the half or third of her Husbands Moveables the best of every kind being set aside as Heirship Moveables though there could be no Heir for the time the Husband being alive December 8. 1668. Agnes Guidlet contra George Nairn TITLE V. Obligations between Parents and Children 1. Obligations betwixt Parents and Children are Divine by the Law of Nature 2. The Power of Parents over their Children 3. In Infancy 4. In Minority 5. In Majority 6. Oeconomical Government 7. Provision of Children 8. Obligations of Children to their Parents 9. Aliment due to Parents 10. Obligations mutual of Children 11. Patria potestas amongst the Romans 12. Amongst other Nations especially as lawful Administrations 13. Forisfamiliation and Emancipation THAT there be Natural Obligations betwixt Parents and Children not proceeding from the consent of either Party or from the Constitution of any humane Law but from the obedience Man oweth to his Maker who hath Written this Law in the Hearts of Parents and Children as to their Interests and Duties with Capital Letters Is evident by the common consent of all the Nations of the World how Barbarous soever though evil custome hath put out the Eyes of Natural Light in other things yet in this the Rays of the Sun of Righteousness are so direct that their illumination cannot be extinguished These Obligations are so firm that in most things they cannot be taken off nor discharged by Men though Children would discharge their Parents of Natural Affection Education Provision c. Or Parents would free their Children of Reverence Obsequiousness and of Intertainment of Parents not able to Intertain themselves yet would these Obligations still be binding upon either These Obligations are placed in the Common Nature that Man hath with other Animals and so is given as an evident Instance of the Law of Nature l. 2. ff de justitia jure We shall then consider what these are And first What Interest the Parents have in the Persons of their Children Secondly In what they are Naturally bound-to to their Children Thirdly What interest the Children have in the Goods of Parents Fourthly What they Naturally do owe to their Parents Fifthly what they are bound in to each other 2. For the first ere we can distinctly know the power Parents have over their Children we must distinguish the Capacity and Ages of the Children whereof there are three Infancy or Pupilarity Minority or less Age and Majority or full Age So doth Aristotle distinguish Polit. 1. cap. ult Ethic. l. 4. cap. 3. l. 5. cap. 10. And after him Grotius de jure belli pacis l. 2. cap. 5. 3. Infancy is when the Children are without Discretion and then are wholly in the power of their Parents who not only may but must carry them whither and keep them where they will and must also breed and order them according to their capacities means and qualities And this is rather an Act of Dominion in the Parents the Children being then capable of no Obligation and therefore it cannot be received by them from the Parents as an Obligation as it may thereafter be done during the Childrens Minority wherein there is a Natural Levity for want of fixedness and experience while the Light of Reason is but drawing towards its Meridian clearness 4. It will not much be debated but the direction of Children in their Minority is naturally stated in their Parents But the greatest Question will remain of their full Age when the Children become able to govern themselves and their own Affairs And as to that it is the opinion of some that it standeth alone inpietate reverentia Steph. oeco.juris civilis cap. 7. and Vinnius partitionum l. 1. cap. 7. in principio sheweth that the Custome of Holland dissolveth the power of Fathers by the Childrens age of 25. 5. Whatsoever may arise from the Custome of Nations whereby the power of Parents over their Children in their full Age is much diminished yet by the Original and pure Law of Nature not only the Tutory and Protection of Childrens Infancy with the Cure and direction of their Minority is in their Parents But there is also an oeconomick Authority in the Father of the Family over all his Children and Descendants remaining in his Family whom he hath not Elocat by Marriage which is also a Natural Bond unto other Families whereby the Females do naturally change their Families and become under the power of another Family 6. This is the only Natural Authority and Government which had in it self all Authority Publick Private Civil and Criminal till by Humane Constitution and Divine Approbation most of that power is now devolved into Magistracy This Power was not only before Magistracy but even thereafter remained with subordination thereto in most Nations as Caesar de bello Gallico lib. 2. Writes that among the Gauls and Belgae Parents had the power of Life and Death The like power had the Romans anciently l. in suis haredibus 11. ff de liberis posthumis l. libertati 10. Cod. de patria potestate Aristotle testifieth the like of the Persians lib. 8. Ethic. cap. 12. And by the Judicial Law Deut. 21. vers 18. The rebellious son who obejed not the voice of his Father and Mother was to be brought forth before the Elders of that place and stoned to death without other proof than the parents testimony So that the sentence was the Parents though the execution was to be publick Such Authority was that of the Patriarchs Abraham Isaac and Jacob who with Divine Approbation made War Peace and Confederacys which are the publick and proper Rights of Magistracy and Governed their own Families without any Authority derived from any other And though Jacobs Family arose to that greatness that in it were many Families yet he remained the Father and Prince of them all so that the several subordinat Families had their subordinat Authority over their Wives and Children and so their Children were bound in Obedience to them but with the exception of their Superior Parents to whom the first Obedience was due This Native Authority reacheth all Children whether procreat of lawful Marriage or not so that they be truely known to be Children because the same Foundation and common Principles and Duties are in both though they have not the same Interest
cleared from that Power and Authority their Parents have over them of which we have spoken For unto Authority or power to Command Subjection or Obedience answers as the Correlate so that as the Parental Power was most in the Infancy of the Children and least after their forisfamiliation so are the duties of Obedience proportional but after Emancipation these duties are so far diminished that little remaineth except the Natural Reverence Tenderness and Obsequiousness that Children do still owe to their Parents in due order which though it hath no civil remeeds yet it remains a Natural Obligation to observe the Parents commands throughout their Posterity as in that Nottour Example of the Rehabites Jer. 35. is clear where they observed their Fathers Commands in a free thing though inconvenient viz. To drink no Wine to build no houses c. and for their Obedience the Lord promises There should not be wanting a man of them to stand before the Lord for ever But while they are in the Family they are not only under the oeconomick Government of their Parents in so far as is not devolved to the Magistrat but specially they are bound to abide with their Parents and to imploy their Service for their Parents and the use of the Family whereunto their Parents may compel them by their own proper Authority and Parents have Action against all others who shall hinder them to keep their Children with them or lead them whether and imploy them as they please 9. The Obligation of Aliment and Relief to Parents in necessity is due both by the Law of Nature and hath in it also that Remuneratory Obliligation whereby Children ought to retribute to and recompence their Parents for their Education and Intertainment and though it be said 2 Cor. 12 14. That Children ought not to lay up for the Parents but the Parents for the Children yet it is to be understood of that care foresight and Providence that Parents ought to have not only to provide things necessar for themselves but for their Children also after them which being an ordinary duty ought to be in their thought and consideration and is not incumbent to the Children it being but rare and unexpected that Parents necessities put them to expect relief from their Children or else it is to be taken comparatively that parents are rather to lay up for the Children then Children for the Parents Solons Law made the Children infamous who did not Aliment their Parents And Cicero in his Oration de responsis aruspicum parentibus nos primum natura constituit debitores quos non alere nefarium est In these Natural Obligations of Aliment betwixt Parents and Children the Order of Nature must be observed that the nearest are first to be preferred and the Paternal Line before the Maternal as being in an other Family for even the distinction of Families and union thereof in the Paternal power is natural as before is said From the same ground Parents must first Aliment their Children in the Family and amongst them that are Emancipat the Males are preferable to the Females passing by Marriage into other Families 10. As to the Natural Obligation of Children amongst themselves there is no doubt but that there Naturally lye greater Obligations upon them each to other than the common Obligations betwixt man and man which are not only greater in the measures and degrees as to love them assist them support them and supply their necessities the more by how 〈◊〉 degree of Blood they are bound to them than others which is commonly acknowledged by all But the Romans and many other Nations have acknowledged the Natural Obligations of Brothers and Sisters to 〈◊〉 each other though our Custome hath not Authorized the same unless the Brother were Heir to the Father in a competent Estate and the remanent Children not at all provided in which case the Lords modified Aliment to them January 24. 1663. the Children of Wedderlie contra his Heir Aliment was also found due by a Brother to a Sister of a second Marriage who had a Portion to be payed at the age of fourteen and no Annualrent or Aliment in the mean time though they had a Mother on Life 〈◊〉 11. 1663. Catharin Frazer contra Hugh Frazer The like found due by an Heir Male to Heirs of Line till their Marriage seing their Portions bore no Annualrent January 8. 1663. Lady Otter contra Laird of Otter November 12. 1664. Daughters of Balmanno contra Heir-male thereof It is also an Natural Obligation upon Children or Kinsfolk descending from one common Stock to defend and have the Tuition of the Pupilarity of that Race which is incumbent ordinarily to the next degree in that same Family and this is the natural rise of Tutors of which in the next Title 11. The Romans did no more diminish the Conjugal Interests and Obligations competent by Nature as is before shown then they have exceeded the Law of Nature in the interests betwixt Parents and Children for thereby the Parents power is so great that no Nation hath the like Institut de patria potestate § 2. it being almost Dominical and the Children as Servants l. placet 99. ff de acquirenda haered the Father had also the power of Life and Death l. ult Cod. de patria potestate l. 〈◊〉 11. ff de liberis posthumis They had power also to sell their Children unto Servitude This was the ancient Roman Law whereof the austerity was by little and little corrected by the recent Law so that both in Servants and Children it was taken off and this power 〈◊〉 to cases of extream necessity l. 2. Cod. de patribus qui filios Children were permitted also to have Goods of their own which were called peculia in which they were as free and had all their Rights and Actions competent as others but with these Restrictions whereby the Right of the Father in the Goods of the Children was much abaited For in the peculia which the Son acquired by Arms or liberal Arts the Father had no power which was called peculium castrense vel quasi castrense l. 2. ff ad 〈◊〉 Maced of other Goods which befell the Children or were acquired and came not from the Father which were therefore called Adventitious the Father had the Usufruct and Administration but not the Property or Power of Alienation l. 2. Cod. de bonis maternis only in 〈◊〉 〈◊〉 which came from the Father he had full Right and Property and all permitted but to the Son was to make use of and mannage it for the Fathers Advantage In these peculia Children were as Fathers of Families by recent Law l. 1. filius familias 39. ff de oblig yea even the ususruct ceased in Goods given or left to the Children excluding the Parents nov 117. in principio 2. Next where any thing was given or left to both 〈◊〉 3. When the Goods came by the Fathers fault as when he did unjustly Divorce with
to do what he will not Restraint is exercised by Imprisonment and Captivity or in the hinderance of the use of things necessar for Life as Meat Drink Sleep c. Constraint is exercised by Beating Wounding or the like Force upon the Body or the fear of it whereby any thing is extorted 5. Though Liberty be the most precious Right yet it is not absolute but limited First by the Will of God and our Obediential Obligations to him and to men by his Ordinance and so though man hath power of his own person yet hath he no power of his own Life or his Members to dispose of them at his pleasure either by taking away of his Life or Amputation or hurting of any Member by himself or by giving power to any other so to do unless it be necessary for preserving the whole but he is naturally oblieged to God to maintain his Life so likewise men may be restrained or constrained by others without Incroachment upon the Law of Liberty in the pursuance of other Obediential Obligations as a Husband hath power to restrain his Wife from her Liberty of going where she will and may keep her within the bounds of conjugal Society so may Parents restrain their Children and also constrain them to the performance of moral duties and that without any Ingagement or Law we may also without any injury restrain a furious person or one who is inferring violence to himself in his Life or Limbs because this is not against any Act of his lawful Liberty and is done as a duty in us of Love and Mercy But in matters of utility and profite where the Natural Liberty is not hemmed in with an Obligation there unless by his own delinquence or consent man cannot justly be restrained much less constrained upon pretence of his utility or profite for Liberty as far preferable to profite and in the matter of utility every man is left to his own choice and cannot without injury to God and Man be hindred to do what he pleaseth or be compelled to do what he pleaseth not in things wherein he is free as Grotius saith De jure belli lib. 2. cap. 22. pag. 2. Non enim si quid alicui ntile est id statim mihi licet ei per vim imponere nam his qui rationis habent usum libera esse debet utilium multilinimve electio nisi alterijus quodam in eos quaesitum sit 6. Liberty may be diminished or taken away by our Delinquence in the way of punishment for seing it is a Right in our own power as Goods and Debts may be forfaulted by our Delinquence so may our Liberty in whole or in part 7. Thirdly our Ingagements do commonly import a Diminution of our personal Liberty but much more of that Natural Liberty of things without us whence it is that the Law alloweth personal Execution or Restraint and Incarceration of the Debitors Person until he do all the deeds that are in his power for the satisafction of his Creditor 8. Liberty is diminished by subjection unto Authority for as man by Nature is a free creature in his own power he doth then become in the power of others whether it be in the power of a Society where the suffrage of the plurality is preferred to the natural and free choice of particular persons or whether the Authority be stated in a few persons or in one Soveraign 9. Fifthly Liberty is wholly taken off by Bondage Slavery or Servitude which is Diametrically opposite to Liberty for as Liberty is that power by which men are sui juris so by Servitude they became alieni juris in the power of another unto whom they became as the rest of their Goods in their Patrimony and are possessed by them and may be gifted legated sold and otherways disposed of at their pleasure l. 4. ff de statu hominis l. qui in servitute ff deregulis juris so that Masters had among the Romans and almost every where power of Life and Death of their Slaves l. 1. ff de his qui sunt sui vel alieni juris though the constitutions of the Emperors did restrain that power to moderate chastisement as appears by the former Law § 2. and next ensuing Servants being wholly their Masters they could have nothing of their own l. acquiritur de acquirendo rerum Dominio so that their peculium which their Masters committed to them to Negotiat with was wholly in their Masters power and might be taken away at his pleasure l. 4. ff de peculio neither could they be lyable to any Obligation l. nec servus 41. ff de peculio neither could there be any Civil Action for or against them l. in personam ff 22. de regulis juris neither could they be Witnesses Procuratoss or Arbiters l. cum serv. ff de regulis juris yea and they were accounted as no body or as dead men l. 32. de Reg. Jur. l. 7. de testib l. 6. Cod. de judiciis l. 7. de recep qui arb 10. Bondage was introduced by the Law of Nations and it is among the positive Laws of Nations settled by common Consuetude and it took first place in the these who were taken in War who being under the power of their enemies Sword did loss their Liberty in lieu of their Life such also were these who sold their Liberty and gave it up and were content to be perpetual Slaves as were the Jewish Bond-men whose ears were pierced with an Aul as the solemnity of their perpetual and willing Servitude the offspring of Servants remained in their servile condition and by the Custome of Nations and the Roman Law it followed the Mother and not the Father partus sequitur ventrem and in some cases both by the Judicial Law and the Roman Law free Parents might sell and give their Children into Bondage 11. Bondage though contrair to the nature of Liberty yet it is lawful Liberty being a Right alienable and in our disposel so that the Natural Law constitutes us free but puts no necessity on us so to continue and therefore Servitude is both approven in the Old Testament and in the New it is cleared against that obvious Objection that being made free by Christ we should not become the servants of men to which the Apostle answereth Art thou called being a servant or slave continue so for nevertheless thou art Christs freeman But yet Christian Lenity and Mercy hath almost taken away Bondage except amongst the Spaniards Portugals and other Christian Nations bordering upon the Turks where because the Turks do extreamly exercise Slavery especially upon Christians their neighbours do the like that they may have Slaves to exchange with Slaves little of Slavery remains elsewhere among Christians except the Ascriptitii who are not absolutely Slaves but they and their Posterity are bound to several Services to Ferms and Villages to which by reason thereof only they are in Bondage and their Masters cannot apply them to other
in the Fathers Goods in respect of that Community of Goods betwixt Man and Wife and the Conjugal Society even naturally whence the Goods are derived into the Issue of the Lawful Marriage This Paternal Authority doth not necessarily carry the property and disposal of the Goods of the Children but that they are capable of such by the Gift of their Parents or any other ways even in Infancy and that they have the full Dominion and Administration thereof in their full Age And therefore Bonds of Provision by Fathers to Children if delivered are not Revockable directly nor indirectly by contracting Debts thereafter And the delivery of such Bonds of Provision makes them irrevockable whether the delivery be to the Children or to any other for their behoove which behoove will be presumed unless the Father express his mind at the delivery that the Write is to be returned to himself or depositate upon terms and therefore a Bond taken By a Father in the name of his Brother the Father obtaining an Assignation from him to his Daughter the Bond was not found Revockable by the Father being Registrate in the Brothers Name November 20. 1667. Executours of Trotter contra Trotter Childrens provisions by Bond granted after a Testament nominating them Executours found not to import that they should have the Executry if the Heir be oblieged to pay the Bonds of provision but that the Bond being Moveables should first affect the Executry February 22. 1677. Belfhes of Tofts contra Belshes And a Father granting Bond to a Bairn in satisfaction of her Portion natural was not found thereby to apply that Bairns Portion natural to the Heir Executour or unlversal Legator though they would be lyable for payment of the Bond but to apply that Bairns share to the rest of the Bairns who thereby will have the whole Bairns part February 17. 1671. Mistris Katharine Mcgill against the Viscount of Oxford for Bonds of provision delivered in liege pousty do as other Debts affect the whole Executry and where all the Bairns had Bonds of provision bearing in satisfaction they had also their Bairns part of the Executry July 16. 1678. Murrays contra Murrays But Bairns provisions payable at such a day and not bearing the proportion of the deceasing to accress to the surviving the share of these Bairns who dyed before that age without Issue was not found due February 22. 1677. Belshes of Tosts contra Belshes The delivery of Writes in other cases is presumed from the date if they be in the persons hands in whose favours they are granted but in competition with other Creditors the delivery of Bonds of provision is not presumed to have been from the date but that 〈◊〉 be instructed by some evidence as taking Seasing Registration or Witnesses who saw the same in the hands of the Children or others to their 〈◊〉 and in that case they are valide if there be no 〈◊〉 or prejudice to Creditors by latency or 〈◊〉 and therefore Bonds of provision to Children were reduced upon the eldest Sons Contract of Marriage though 〈◊〉 January 10. 1668. Laird of 〈◊〉 〈◊〉 his Brothers and Sisters And a posteriour Tocher was preferred to a prior Assignation to a Bairn in Family unless the prior delivery were also proven November 14. 1676. Major Ingles contra 〈◊〉 June 〈◊〉 1668. Johnstoun of 〈◊〉 contra Isobel Arnold But from this paternal power it follows that the Parents may continue and keep their Children in their Families and that they are oblieged to imploy their Service and Work for the common interest of the Family and what thence arises is the Parents not their own which doth always indure till by consent of the Parents they become 〈◊〉 〈◊〉 whereby they may imploy their Work and Service for themselves alone Thus the interest of Parents in the Persons and Goods of their Children by the Law of Nature being cleared As to the Obligations Natural of Parents toward their Children beside their Obligations that stand and are acted in the Mind and Affections which the Law respecteth not but these only qua non mente sed manu tenentur the main Obligations are Education and Provision The Education of Children consisteth not only in the Care and Intertainment of them during Infancy but especially in Breeding of them for some Calling and Imployment according to their capacity and condition 7. The duty of provision of Children comprehends not only their Aliment and Intertainment in Meat Cloaths Medicine and Burial which may be competent during the Parents Life but also competent provision after the Parents Death for the Apostle saith That he that careth not for his family is worse then an Infidel 1 Tim. 5. vers 8. And in both the ability of the Parent and necessity of the Children is to be considered for if the Children be 〈◊〉 provided aliunde the Parents are not bound and though the Children be necessitous yet there must first be reserved for the Parents that which is necessar for subsistence so that when they are not able to intertain their Children they may lawfully expose them to the mercy and charity of others But a Father though indigent was decerned to receive his Son having no Means or Calling into his Family or to pay him a modification January 13. 1666. William Dick contra Sir Andrew Dick. But a Father was not found lyable to pay a Merchant for Furniture given to his Son where he gave his Son an allowance in Money for his Cloaths January 〈◊〉 1672. High 〈◊〉 contra Craufoord of Camlarg Neither was a Father found lyable for his Daughters Bridel-Furniture to a Merchant whom he prohibit to give them off but the Daughter and her Husband July 〈◊〉 1672. 〈◊〉 contra 〈◊〉 and Gairn and a Mother was found oblieged to receive her Children into Family but for no other modification though they were Noble Persons there being none representing the Father able to intertain them February 23. 1666. Children of the Earl of Buchan contra the 〈◊〉 As to the Interest Children have in the Goods of their Parents it is to be considered either during the Parents Life or after their Death for the Interest they have after their Parents Death it falleth in to be considered among the conveyances of Rights by Succession but during the Parents Life they have no real Right of Dominion or Property in the Parents Goods for though the Parents be oblieged naturally to Intertain and Educate their Children out of their Goods yet that is but a personal Right and intituleth not the Children to meddle with the Parents Goods upon that pretence as saith Solomon Prov. 28. vers 24. Who robbeth his Father and Mother and sayeth it is no transgression the same is the companion of a destroyer 8. The Obligation of Children toward their Parents consists mainly in their Obedience to them and their duty to Aliment and Supply them in all their necessities according to the Childrens ability their Obedience to their Parents is much
his Marriage which was dissolved within year and day by the Wifes death was found void seing the Father persisted not therein but Infeft his second Son July 15. 1678. Lord Burley contra Laird of Fairny And a Tocher payed within the year was 〈◊〉 to be repayed without any Deduction for the Wifes intertainment during the Marriage but only for her Cloathes which were before the Marriage and her Funeral Charges which was after the Marriage was Dissolved February 23. 1681. Janet Gordoun contra Thomas Inglis But Gifts given to the Married Persons by the Friends of both were divided equally the Marriage being dissolved within year and day January 14. 1679. Wauch contra Jamison But if a living Child was born the Marriage was found valide though both Mother and Child died within the year Spot Husband and Wife Stuart contra Irving The reason why the Child must be heard cry is to make certain its lively ripeness and not to leave it to the conjecture of the Witnesses and therefore it sufficed not though they did declare that the Child was living immediately before the Birth and appeared lively and full ripe when it was born but that it was stifled in the Birth as was found in the case of Sandelands and Thores yet a Wifes Infeftment was found valid till her Tocher was repayed though the Marriage Dissolved within the year July 20. 1664. Petrie contra Paul But where a Marriage continued a year and a part of the next day after the year the Tocher was found not to return Nam in favorabilibus dies ceptus habetur pro completo February 25. 1680. George Waddel contra George Salmond 16. Marriage Dissolveth by Divorce either upon wilful non-adherence or wilful Desertion or by Adultery and the party injurer loseth all benefit accrueing through the Marriage as is expresly provided by the foresaid Act of Parliament concerning non-adherence 1533. cap. 55. But the Party injured hath the same benefit as by the others Natural Death as was found March 21. 1637. Lady Manderstoun contra Laird of Rentoun But if Divorce follow upon Impotency all things return hinc inde because in effect there was no Marriage as was found Earl of Eglintoun contra Lady Eglintoun 17. By the Dissolution of Marriage there ariseth to Married Persons not only these Rights which by voluntar Contract are Constitute to either and which are not proper here but also these which by Law and Custome are Competent without any special Convention or Covenant and these are either upon the part of the Husband or more frequently upon the part of the Wife To the Husband is Competent the Life-rent of the Wifes Heretage which because it is peculiar unto these Nations it is said to be the Courtesie of Scotland or England To the Wife ariseth her share of the Moveables which is the half where the Man hath no Children in familia and the third where there are such and her Terce which is the third part of his Lands during her Life But of Reversions Heretable Bonds Dispositions or Rights of Lands without Infeftment and of Teinds or Tacks or Tenements within Burgh the Relict hath no Terce These Rights of Terce and Courtesie fall in to be considered amongst the Feudal Rights and the Relicts third or half of Moveables in the Succession of Moveables wherein it is a Concomitant and regulat according to that which is proper Succession either of Children or others though as to the Wife it be rather a Division of that Community of Goods Moveable that was Competent to the Married Persons during the Marriage and therefore shall be insisted on no further here but left to these places And we shall proceed to the next kind of Obediential Obligations and Natural Rights which interveen betwixt Parents and Children Law and Custome hath favoured and priviledged Wives in many cases propter fragilitatem sexus they are free from obliegements for sums of Money and from personal Execution by Horning or Caption if it be not for Criminal Causes their Contracts of Marriage are preferable to other Personal Creditors February 8. 1662. Thomas Crawford contra Earl of Murray their share of their Husbands Moveables is not burdened with the Husbands Heretable Debt December 28. 1668. Margaret Mckenzie contra Robertsons July 19. 1664. Elizabeth Scrimzour contra Murrays yea gratuitous moveable Bonds granted by a Husband payable at his death whereby the whole Executry would be exhausted and the Wife have no share having no other provision the same were not found to affect the Wifes share But otherways such Bonds granted in Leige Poustie without fraud were found to come off the hail Head and not off the deads part only December 8. 1675. Thomson contra Executors of Eleistoun And a Wife was found not excluded from her share of her Husbands Moveables by a gratuitous Disposition by her Husband to his Brother of all sums that he should have at his death January 10. 1679. Grant contra Grant In like manner the Infeftments and Provisions of Wives are effectual although the Tocher which is the mutual cause thereof be not payed she not being oblieged therefore her self though the Contract bore that the Tocher being payed it should be imployed to the Wifes use July 5. 1665. Mackie contra Stuart The like though the Contract bore that the Husband should imploy the Tocher for the Wife in Life-rent albeit the Tocher was lost through the Fathers Insolvency June 11. 1670. Margaret Hunter contra Creditors of John Peter The like though the Contract bore that the Wife should have no benefit while the Tocher should be fully payed if the Tocher could be recovered by the Husbands diligence November 21. 1671. Mary Menzies contra John Corbet On the same ground a Contract of Marriage bearing the one half of the Tocher to the Wife failing Children albeit conceived passive and not that the Husband was to pay the same or do diligence therefore yet the Husband was found lyable to pay the half of the Tocher although it was not recovered unless he had done the diligence of a provident man which was found implyed in his Duty and Trust as Husband the Wife being in potestate viri July 14. 1676. Jean Lockhart and Raploch her Spouse contra James Bonar And though Husbands have no communion in the Habiliments and Ornaments of the Wife which cannot be affected for his debt yet she hath her share of the Habiliments of the Husband which falls in his Executry and he is oblieged to pay all Accompts for her Habiliments suitable to her quality But where the Wife had an Alimentary Provision for her Habiliments Ornaments and her other Uses the Husband having furnished them and received that sum was not found lyable to repay the same to her Executours February 2. 1667. Executours of the Lady Piltoun contra Hay of Balhousie Wives have not only a half or third of their Husbands Moveables when they survive but have their Aliment till the next Term after the Husbands
of Infeftment as in the former case of Appryzing or where the Father had a Disposition without Possession January 31. 1665. Heleson Kello contra Pringle But the want of Infeftment of the Fathers Author was not found relevant January 18. 1667. Barbara Chapman contra John White Neither will this Priviledge exclude the Fathers obliegement to denude himself of the Infeftment in question Spots Minor John Hamiltoun contra For there there is no Competition of Rights but implement of an obliegement and so it was not sustained in a Reduction upon a Clause irritant in a few Hope de monoribus contra Mitchel Neither to exclude Reductions ob non solutum Canonem by the Father though the few contained no conventional Clause irritant February 20. 1633. Lennox contra 〈◊〉 neither did it exclude the Probation of the Tenor of a Charter which might exclude the Minors Right February 15. 1628. Master of Jedburgh contra Earl of Home albeit it would exclude Process upon that Charter Neither doth it exclude Processes in relation to Marches Perambulation or vision of Lands July 27. 1675. Robertson of Inveray contra Gilbert Stuart Neither did it exclude the nullity of a Disposition by a Wife to her Husband dying within the year February 15. 1678. Mary Gordoun and her Spouse contra Captain Robert Maxwel But the Priviledge was found not only competent to defend Minors in their Property but in their Commonty Hope de Minoribus contra Mitchel where reasons of Reduction are probable by Witnesses so that the Probation may perish by delay Witnesses are always received to remain in retentis January 31. 1665. Kello contra Pringle February 15. 1678. Mary Gordoun and her Spouse contra Captain Robert Maxwel where the Interest of Minor is not the Chief Right but a Majors Right whereby the Minors would fall in consequence the Process doth proceed but the Minor is held as not called November 25. 1624. Hamiltoun contra Matheson Spots Minors Hamiltoun contra Chrysty Or where a Major Liferenter is called with a Minor fiar the Process proceeds against the Liferenter but the Minor is as not called March 21. 1628. Alexander Bamanno contra Zule July 5. 1665. James Borthwick contra Janet Skein This Priviledge is not relevant against the faults of the Father or his Authors as to his Possession or Right and therefore it will not defend against Forefaulture of the Fathers Authour whereby the Fathers Right fell in consequence Spots Minor James 〈◊〉 contra Galstoun Neither against Recognition February 19. 1662. Lady Carnagy contra Lord Cranburn Neither will it defend against the Superiour or his Donator pursuing for any Casuality of his Superiority 35. Curatours differ in their Office from Tutors mainly in this that Tutors are given chiefly for the Pupils Person but Curatours are given for the right Managing of their Goods and Affairs Secondly Tutors act for and in name of their Pupils who in their Pupilarity have no discretion but Curatours cannot and are only oblieged by their Office to authorize their Minors and act with them by consenting to their deeds For instance Curatours cannot discharge for their Minors but only consent to their Minors Discharge and so Fathers after their Childrens Pupilarity June 26. 1610. Forrester contra Forrester January 9. 1675. Mckintosh contra Frazer of Strichen 36. Their duty is to see to the Minors Affairs that they get not detriment and so they must answer not only for the deeds whereunto they consent but for their omission and for any detriment the Minor suffereth by their negligence and therefore a Curator was found lyable for Intromission and Omission albeit the Act of of Curatory did not bear that he compeared and did find Caution seing he accepted thereafter by Subscribing a Write with the Minor as his Curatour which was found to obliege him from the time of the acceptance November 18. 1671. Charles Calsie contra James Elleis But Curatours continuing to uplift their Minors Rent after Majority were found not lyable for Omissions these years unless they had a distinct Factory continued per tacitam reconventionem Ibidem and therefore they must not only be Councellours to the Minors showing them what they ought to do and requiring them to do the same but specially they must cause them constitute Factors and grant Procuratories to persons for uplifting their Money whether it be the Stock of that which may be in hazard or Annualrent or Rents and to grant Procuratories for pursuing their Actions and putting them to Execution for seing they must be countable they must not suffer the Minor to have his own Goods and his own Money in his own hand lest he lose and mispend them these Procuratories may be given to some of themselves and in many things their very Office includes a Procuratory being less then Curatory but though they may intromet with the Pupils Means themselves yet they are not oblieged to be Servants or Factors but may authorize such being lyable always that they acted therein profitably but if the Minor will not authorize such nor do these deeds needful and profitable for his Affairs the Curatours may crave to be exonered so they may also do if he meddle with his own Means and will not be Restrained or if any of the other Curatours act unprofitably or without consent of the rest the Curatours must do diligence to remove them as suspect and malversant Curatours are to recover that which was unwarrantably meddled with otherways they are lyable not only for their own omissions or intromissions but for the other Curatours and so are all lyable in solidum as hath been said of Tutors February 11. 1630. Guthrie contra Guthrie and they are lyable for Annualrent of Minors Means as Tutors are February 24. 1627. Francis Guthrie contra Guthrie Yea their Heirs though Minors for the time after expiring of the Tutory Ibid. Where the Curatours Heir are found liable for the Annualrent of a Sum consigned to the Minor But Curatours expresly chosen with a quorum and with this condition that they should be only oblieged for deeds whereunto they consented and be free of omissions were so approven by the Lords during their Office and though the Minor acted deeds very prejudicial with any other quorum yet the rest were not freed nor acquited of their Office as not being in hazard by these deeds Nic. de tut Clerkingtoun and Scots Tarbet contra Earl of Bucleuch and his other Curatours But where the Act of Curatory bore that the Curatours were named jointlie or three of them to be a quorum two only accepting the Curatorie was found null January 25. 1672. Sir James Ramsay contra Maxwel But where they were not named jointly the death of one did not anul the Curatory January 4. 1666. Fairfowl contra Binning And though there be a quorum constitute all the Curatours are lyable for diligence and if any quorum Act hurtfullie they must crave them to be removed and what they have so done to be
and measures whereof the Law did determine So that if the Children were past by in silence and neither Institute nor exhaeridat the Law declared the Testament void and if they were exhaeridat without a due and true offence it did allow the Children querelam inofficiosi Testamenti that is complaint against the Testament made contra officium which is the Natural Obligation or duty of Parents to provide their Children For the like Reason the same Complaint was competent to the Fathers against the Testament of their Children but because that remeid might have been eleided by exhausting the Heritage by Legacies whereby the institution of the Children might prove ineffectual for their provision Therefore the Law allowed Children a Legittime Portion being the sourth part of the Heritage which that it might extend to all Heirs Falcidius was the Author of that Noble Law restraining Legacies so that there might remain a Portion to the Defuncts Heirs which Law and Portion in Honour of his Name was called the Falcidian Law and Portio Falcidia whereby the fourth part of the free Goods of the Testator remained always Secure against Legacies and when a new Subtilty was invented to frustrat the Falcidian Law By taking away the Heritage not Directly by Legacies but Indirectly by Trust or Fidei-comisses Trebellianus procured that Ordinance of the Senate called Senatus-Consultum Trebellianum whereby that Portion called also Trebelliarica should remain safe against FideiCommissarie Trusts And though it be the Common Opinion of the Doctors That if the Defunct Expressly Prohibit the Heir to take the benefit of his Falcidia or Trebellianica they will be thereby excluded yet the Common opinion is that it cannot be extended to Children as to their Legittime whom the Law hath fullie secured either by Ordaining them to be institute Heirs in Whole or at least in a fourth Part which is their Natural or Legittime Portion And if they be Institute in less they have Right to the Supplement of their Legittime Portion or otherwise they must be Expressly and Justly Exheredat and they have the Common benefit of other Heirs of their Falcidia or Trebellian which the Testator cannot Frustrate with out express Prohibition 16. If there be no lawfull Testament by theLaw of the twelve Tables which is the Ancient Roman Law and in comparison of the Pretorian or Imperial Law is only called the Law or the Civil Law the Succession of Defunct falleth in the first place to the defuncts Children or nearest descendents without Distinction of any lawful Children though Adopted or Posthumus or though of diverse lawful Marriages whether Male or Female So that they remain in the Defuncts familie and in his Paternall power for these who are emancipat and demitted from the familie and from under the Paternall power they are either really or presumptively provided and so have no share of the Succession of this Paternal Power and Emancipation see before Tit. Obligations of Parents These in the familie were called Haredes Sui necessarij because they were ipso facto Heirs without solemnity or entrie Among these the Right of Representation had place so that for example the Grand Children succeeded with theChildren but not equally et per capita but per stirpes For theGrand Children had but the share of their defunct Parent equally among them and so of all other descendents being in the Familie The Pretors did in a part alter this and brought in the Children or Issue emancipat with those in the family without distinction providing the emancipat brought in their goods and adjected the same to the Inheritance per collationem bonorum yet because only the Law that is the Ancient Law could make Heirs The Emancipat were not called Heirs but bonorum possessores The Pretorian Law did also take off the necessitie and dammage of the Succession that none might be necessitate to be Heirs yea all Heirs had the benefite of an Inventar being timeouslyand duelie made beyond which they were not lyable for the defuncts Debts 17. The next degree of Succession by the ancient Roman Law was failing Descendents in the Familie the nearest Agnats of the same degree succeeded But there was no Succession ofParents nor of Cognats related by the Mothers side here Mother comprehends Grand-mother and all other Ascendentsof that kind So the next Degree was of Brethren and Sisters c. 18. The Pretorian Law did also emendat this and first brought in the Fathers with the Brothers and SistersGerman or of both Bloods And thereafter the Tertullian Senatus-consult failling the Fathers brought in the Mother with the Sisters in their share but not with the Brothers German who if there were no Sisters German excluded their Mothers totally and if for example there were a Brother German and a Sister German the Father being dead the Brother had the half and the Sisters half was devided equally betwixt her and her Mother and so the Mother is preferred to the Fathers Father and to the Defuncts Brethren and Sisters of one blood Failling those of this degree the Brothers and Sisters by the Fathers side and these failling the nearest Degree of Agnats in which the paritie of reason inferreth that as in Brothers and Sisters so in other Collateralls these of both blood make a nearer Degree then these of one blood Failling all these the Pretorian Law admitts Spouses to be Heirs each to other the Husband to the Wife and the Wife to the Husband and last the Fisk takes place as last Heir 19. But the. Emperor Justinian by the Novel Constitution 118. cap. 4. Took off all destinction of Agnats and Cognats and brought in the Mother equally with the Father with what reason or approbation we have touched before This is the sum of Succession by the Roman Law wherein there is no 〈◊〉 〈◊〉 〈◊〉 oveables or Immoveables and which takes up no small part of the bodie of the Law and writings of the Lawyers wherein to insist particularlie would raise a great bulk unnecessar for our purpose Whereunto we conceive this Summarie may suffice But while the Roman Empire and Laws were trampled down by the Northern Nations the Feudal Law arose and doth yet continue with the Civil Law of the Romans and other Nations by which there is a great distinction introduced in the Succession in Moveables and in Lands or Immoveables which are now of a feudal nature We shall therefore go on to the Common Feudal Customes 20. The Feudal Customs are locall and it is hard to find a common rule therein for Succession which is variable according to the diversity of place only if we call to mind what was formerly said Title Infeftments of the Distinction of Ancient and Proper Fees and of Declining and Improper Fees The nature of Proper Fees wil hold forth the matter of succession therein for a Proper Fee being freely granted by the Superior to his Vassall for Military service the Vassalls person being chosen by the Superior and a speciall
intestat The ancient way of testing amongst the Romans was either in peace and solemne which was done in presence of the People being convocat callatis comitiis or otherways by a simulat Sale per aes libram wherein the Testator in presence of five Witnesses Romans did hold a Ballance and weighed Money therein and under that form as it were sold his Inheritance for the Money and asked Witnesses Or otherwayes Testaments were made in precinctu when they were standing in Battaile before the Fight without other Solemnity than three or four Witnesses This was the ancient form of testing The matter and power of testing was very absolute according to Equity concerning which this was the Law of the twelve Tables uti quisque rei suae legasset ita jus esto But the after-course of the Civil Law changed both this ancient manner and power of testing and redacted Testaments into three kindes Solemne Nuncupative and Military 3. Solemne Testaments were so called because they required the most Solemnities as First That the Testaments were in writ the Name of the Heir at least being written by the Testator or one of the Witnesses Secondly There behoved to be seven Witnesses specially required all present and subscribing by themselves or another and sealing the Testament at the foot thereof none of which might be Women Pupills Servants Prodigalls or furious Persons neither the Heir himself or any of his Domesticks each Subscription bearing I Titus c. being called and required to be a Witnesse to this Testament which is contained in this Schedule have subscribed it with my hand and sealed it with such a Seal Thirdly The Testator also behoved to subscribe thus I Mevius c. declare this Schedule to be my Testament and I have tested as is contained therein or by another if he could not write who stood as the eighth Witnesse Fourthly The Testament behoved to be made by one continued Act without interruption of any extraneous act least by extraneous acts the mind might be diverted or inconsiderat in so solemne an Act. So the Testament was closed up and sealed And if the Testator opened the Testament it was presumed he changed his mind But after his Death the Witnesses were called together to acknowledge their Seals and Subscriptions at the opening thereof Or otherwayes it was opened by the authority of a Judge before other honest Witnesses And if any of the Witnesses acknowledged not their Subscriptions the Testament was held suspect 4. A Nuncupative Testament is that which was by Word only before seven Witnesses qualified as aforesaid Yet two Witnesses were sufficient in a Father's Testement amongst his Children and a Woman might be Witness therein Or in a Testament for pious Uses five Witnesses did suffice where there was penurie of Witnesses 5. A Military Testament was that which was made by the Souldiers in Warre wherein they had these Priviledges First when they were in procinctu ready to joyn Battaile any declaration of their mind by word or writ though it were written but in the sand was sufficient It was also valid if made during the Expedition with such Solemnities as can be had for the time Yet so that if the Testator lived a year in which he might make it more Solemn it became void Military Testaments have this further Priviledge that the Testator may institute for a time and may institute in a part and so die partly testat and partly intestate which is against a Principle of their common Law 6. The ancient absolute power of testing was by the subsequent course of Law cleared and restrained not only by the declaratory Laws finding testing and otheracts invalide as done by furious Persons out of their lucid intervalls and by Idiots and by Pupills who have not the use of reason or those made by Fraud or Error in the Substantialls or by extortion but more particularly it is limited in these particulars 7. First Filii familiâs Persons in the power and family of their Fathers could not test upon their Goods whether profectitious from their Father or adventitious aliunaè even though their Father consented but only on their bona castrensia acquired in Warre or quasi casirensia as in militia togata 8. Secondly Captives with publict enemies or Persons given in pledge to them or Persons condemned to capital Punishment whose goods are con fiscat or those condemned of Infamy could not test 9. Thirdly by Testament some Persons can neither be institute nor substitute Heirs such as the spurious Children of the Defunct to put a restraint upon such unlawful Procreations But Children begotten on Concubins while those were tollerat could not be institute or substitute these being lawful Children in more then a sixth part of the heretage Only there could be left to spurious Children Legacies for their necessary Aliment Neither could Persons guilty or condemned of Treason be institute or substitute Heirs 10. Fourthly power of Testing is restrained in those who have lawful Children who were necessitat either to institute their Children their Heirs or expresly to exheredat or disheirish them expressing the Cause of so doing For if these institute others and past over their Children in silence the Testament was void And if they unjustly exheredated them they had Quaerelam inofficiosi testamenti to annul the Testament as done against the natural Dutie of Fathers without just Cause 11. Fiftly the power of Testing was restrained in favour of lawful Children that the Testator could not by Legacy or fidei commissum abate from the Children their Portions natural due to them by the Law of Nature obliging Parents to entertain their Children which the Law defyned to be the fourth part of the Inheritance Debts deduced when there were fewer than four Children a third part when four and a half when more If there be no Children this Legittima is due to the Parents Grand Father and Grand Mother but not to Brethren unlesse a base Person be institute Which Portion natural the Testator could not prohibite the Children to withdraw from the Heretage 12. Sixthly the Falcidian Law did restrain Legacies that they might not exceed three fourth parts of the Inheritance so that there behoved to remaine one fourth part to the Heir which therefore was called portio Falcidia And therefore if the Legacies did exceed three Quarters of the free Inheritance Debts being deduced they were abated proportionally that the Falcidia might remain to the Heir 13. This Portio Falcidia differs from the natural Portion in this that the Testator could not prohibite the Heir to take the benefit of the Portion natural but he could effectually prohibite the Heir to take his Falcidia The Reason whereof was because the Falcidia was introduced to the effect that the Wills of the Defuncts might be execute which could not be if the Legacies left nothing to the Heir considerable but trouble as oft-times it falls out So that this being a Remedy in favour of the Testator to make his Will