A COMMENTARY,

&c. &c. &c.

OF INHERITANCE.

THERE are two modes of acquiring property.-One natural, regulated by the law of nature and common to all mankind, the other peculiar to each nation, and regulated according to its own laws. Among the natural modes of acquiring may be enumerated occupation or jus primi occupantis which commences at the moment of a person's taking possession of an object with a view of exclusively retaining it, and ceases from the moment he has abandoned it or given up all idea of exercising any further act of ownership in reference to it; the most simple mode of proprietorship of which we can form any conception. Among the second, may be enumerated sales, inheritances, and wills, which though common to all nations, are yet governed by certain rules or laws peculiar to each, with which all citizens are supposed to be acquainted, and which sometimes from not really knowing they suffer severely. Property may also be acquired either for a valuable consideration or gratuitously; inheritance and wills, of which it is intended here to treat, are acquired in this manner. I shall begin by inheritance as the most simple and natural mode, and moreover as the first in the order followed by the new law of which the following pages are intended as a brief commentary.

To inherit from a person is, in other terms, to occupy the place left vacant in society by his death, or privation of civil rights; such as 'is entailed by a seven years' banishment from the bailiwick, after conviction of some crime. The person

* Quâ ratione verius esse videtur, si rem pro derelictâ a domino habitam quis occupaverit, statim eum dominum effici. Pro derelicto autem habetur, quod dominus eâ mente abjecerit ut id in numero rerum suarum esse, nolit ; ideoque statim dominus ejus esse desinit. Inst. lib. 11, tit. 1, § 47.

thus inheriting or occupying the place of another, is called his heir, which intimates the absence of the former owner, for viventis nullus hæres. How parties inherit, and in what proportions to different kinds of property real or personal of a person dying intestate* or without having himself selected his heir, will be the subject of the following chapter.

The peculiar rights of primogeniture, according to the present law, and those of all other relatives whether in a direct, collateral or ascending line, are now more clearly defined than ever they were; and it is to place this knowledge of them within the reach of all, that the following pages are written.

The articles follow, as inscribed in the Order in Council dated the 13th of July, 1840, and registered here on the 3d of August following.-The first of which refers to the abolition of the vingtième or twentieth portion of real property which, in certain inheritances, sons took over daughters.

CHAPTER I.

ARTICLE I.

The right of the sons to the Vingtième, or twentieth part of the estate is abolished. The eldest son's right to the Préciput shall be continued, subject however, to the modifications stated in the articles that follow.†

The vingtième or twentieth was a certain portion of real property situated without the barrières or boundaries of St. Peter-Port, which always devolved to the sons, whenever their number did amount to, or exceed, double that of the daughters. In other terms, when the number of daughters was so much greater than that of the sons, as to require additional favour, that was precisely the time they were treated with the greatest disadvantage ;—thus in the case of a son and three daughters, the son would first raise his twentieth, in which was included his eldership by right of primogeniture, besides the remaining

The term intestate is derived from ab intestato, that is, without leaving a will.

+ Abolition du Vingtième et Conservation du Préciput. Article I.-Le droit de Vingtième en faveur des fils est aboli. Le droit de Préciput en faveur du fils aîné continuera à avoir lieu, sujet toutefois aux modifications portées dans les articles suivants.

two thirds of his father's real property; so that each daughter could not have inherited one twentieth in quantity, nor perhaps one fortieth in value of her parent's inheritance.* So then provided the number of sons only amounted to, but did not exceed, double the number of daughters, they were entitled to the vingtième.› Where there was one son and a daughter her portion was exactly the same as where there were two sons and a daughter, the number of sons not exceeding double that of the daughters. The system was altogether most vexatious and unjust, and could not for one moment be tolerated upon a revision of the law; it was therefore from the commencement unanimously settled by the Committee of the Petitioners, that its abolition should be demanded, which was acceded to by the Court's Committee, and by the States. On levying the vingtième, which is done before the Douzaine of the parish where the deceased's estate is situated, the sons select the spot they think fit, beginning as a matter of course with the most valuable portions of land on which are erected tenements and dwelling houses, which, however valuable, are calculated only as bare ground. The only restriction placed on them is, that when once the sons have chosen their vingtième in a certain spot, they are bound to continue taking the whole amount allotted to them, if the spot can furnish it, and that can be done without crossing any street or road, but if it cannot, then they may not only cross from one road to another, but even from one parish to another, to levy the surplus,† always

Well might one of the ablest parochial officers in the Island, Mr. John Mahy, at the frequent instances of legal oppression which arose from such a division of patrimonial estates, exclaim-" Que le sang lui bouillonnait dans les veines à l'aspect de si criantes et fréquentes injustices," of which he perhaps, more than any other person in the Island, had been called upon to make, and of the legality of which, there never existed a more competent judge. Yet, had the Petitioners and their Committee been content to abide by the custom of their forefathers, these abuses must have long continued, as they were energetically told that their system of inheritance and wills was the best ever formed, and the work of ancestors, perfect models of human wisdom.

†The clearest idea that can be given of the Vingtième, is to be found in the APPROBATION DES LOIS, made in 1482, the twenty-fourth year of Queen Elizabeth's reign. "Le fils ou les fils," it is said, 66 prennent le vingtième pied de terre de leurs antécesseurs, qu'ils choisiront où il leur plaira hors les barrières de St. Pierre-Port; et s'il y a maison ou maisons,

however under the restriction that the eldest is bound to levy the remainder of his Préciput on the nearest spot. Though the Vingtième be abolished by the first article of the modern law, as this is one whose execution is deferred in cases where the eldest son, on the third day of August, one thousand eight hundred and forty, the date of its promulgation, shall have attained his fourteenth year, it will be some years before: it will come into uniform operation; one may be still justified in here setting forth its nature and consequences.dute» quifas

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As the second clause of the first article merely states that Préciput or eldership is not abolished, but modified, it will be seen what those modificatious are, on examining the fifth sixth, and seventh articles of which they form part.

ARTICLE II.

In successions to real property in a direct line, when sons and daughters succeed together, they all share, after the Préciput of the eldest son has been taken, the two thirds, the daughters one third; except in cases where, by this method, the portion of a son would exceed double that of a daughter, in which case the portions of the sons shall be reduced to double the portion of each of the daughters; excepting also in cases where, by this method, the portion of a daughter would exceed that of a son, in which latter case the sons and daughters will share in equal portions.

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moulins, ou autres bâtimens, ou jardíns, sur le vingtième qui sera pris, ne sera estimé que pour autant d'autre terre et est ce choix sur l'entier de. l'héritage; mais les fils ayant commencé à prendre leur vingtième, en un lieu, doivent, prendre tout ce qui leur en peut venir, sans aller sur d'autres terres, si le lieu où ils ont commencé peut suffire; și non, aux autres terres plus prochaines se doivent fournir, et après le dit vingtième pris, doit être parti l'héritage entre les frères et sœurs, dont les sœurs ont le tiers de l'héritage et font les lots et choisissent les frères; que s'il y a trois, quatre ou plus de frères et une sœur, elle aura telle part que les fils; et lors ne prennent les fils aucun vingtième.' So that before a Vingtième can be levied, the real estate must be situated without the barrières of St. Peter-Port; there must not be more than double the number of sons to that of daughters; once begun to be taken in a certain spot, if that does not furnish a sufficient quantity of land, the sons are bound to take the remainder on the nearest to it.

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Dans les Partages d'Héritage en ligne directe, le fils ne peut jamais hériter plus du double de la portion qui échoit à chacune des filles. Article 2.-En successions héréditales en ligne directe, lorsque les fils et filles succéderont ensemble, ils partageront, après le Préciput du fils aîné levé, les fils deux tiers, les filles un tiers; excepté dans le cas où de cette manière la portion d'un fils excéderait le double de celle d'une fille, auxquels cas la portion de chacun des fils sera réduite au double de la portion de chaque fille; excepté aussi dans les cas où de cette manière la portion d'une fille excéderait celle d'un fils, auxquels derniers cas les fils et les filles partageront en portions égales.

The above principle, in lineal successions, renders the condition of the daughter less disadvantageous than formerly, and was as unanimously demanded by the Committee of the Petitioners, as it was acceded to by the Royal Court, and States. The sons, after once the eldership is taken, can now never inherit more than double the portion accruing to each daughter. Thus, suppose an estate of thirty vergées to be divided between one son and two daughters. Formerly, it would have been divided thus:-the son would have first taken one and a half vergée for his Vingtième* and Préciput, besides two thirds of the remaining twenty-eight and a half vergées ; that is to say, nineteen vergées of the remainder of the estate, leaving no more than four and a half vergées to each of his sisters; whereas it is evident that the spirit of the law only allowed him a double portion, as he would now have, that is, fourteen vergées and three quarters, and each of his sisters seven and a quarter; that is, their portion of real property, whether houses, lands, or rents, would be now doubled, and even more than doubled, when the number of daughters greatly exceeds the number of sons. In this respect the system of the former law which aggravated the condition of daughters as their number increased, is completely reversed; the rule now being, that however few or numerous the daughters, the portion of the sons shall never exceed double that of any daughter. Such too was the prayer of the Petitioners, who represented that according to the old law the greatest injustices prevailed; that out of the barrières of the town, the eldest son often took away by far the most valuable portion of the real property, and that

This mode of raising the Vingtième before the Préciput, and taking the latter out of the former, goes far to show that originally there existed no elder. ship, as Mr. Thomas Le Marchant asserts; that the Vingtième was raised for the sons generally, not for the eldest in particular, who was only entitled to his portion of it as his other brothers. It would however appear that custom gradually introduced the system of granting a Préciput to the eldest son, and it may indeed be said immemorial custom, since we find Mr. Le Marchant who wrote two centuries back, inveighing against what appeared to him a great abuse, and usurpation. Since this learned man's time, the practice of granting an eldership has continued without interruption and may at present be said to be inherent in the laws and constitution of the island, where the principle when restrained to the estate of a single parent as will be the case in future, cannot be said to operate disadvantageously, as its consequences must be to prevent the dismemberment of small estates and too extensive subdivision of houses and lands, which it is well known are extremely injurious to agriculture.

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