exactly on the same footing; that is, with the exception of the special legatee, the heirs and all other legatees by merely accepting the succession or will of the deceased, become one and all jointly and severally personally responsible to discharge all the testator's debts.

The danger in which the fortunes of heirs and legatees were thus placed naturally required some equitable temperament, by which the law generally provides against undue severity; hence the institution of the benefit of inventory, by means of which the heir is not bound to pay the creditors of the deceased a greater sum than he received from his succession, a principle borrowed from the Roman law, and which, being deemed advantageous in those jurisdictions where the heir and legatee were personally bound to the extent of their quota for the debts of the deceased, became quite indispensable in other jurisdictions, as in our own and in Normandy, where he is not only personally bound ultra vires for his portion of the debts, but in solidum for the whole of the debts, engagements, and liabilities contracted by his ancestor.

On examining the principles which obtain on the subject of the benefit of inventory by our laws, conformable in this respect to the Norman laws, whereby the succession of the deceased is bestowed on the nearest heir who will take to the estate absolutely, and at once pay the debts, in preference of the nearest of kin, we find another example of undue severity, repugnant to the principles of affection on which the laws of inheritance profess to be founded; for why should the boldest or the more distant heir be allowed to exclude the nearest ?* In practice, however, the injustice of the principle is not attended with much evil, the liabilities contracted by the absolute acceptance of inheritance being too varied and extensive to warrant any one's taking to them without the precaution of an inventory, so that the rights of all are in this manner preserved, particularly those of the nearest of kin, as they almost invariably obtain possession of the estate, who, after taking an inventory, collect the assets and dispose of the whole among the creditors according to their respective

By the French Code the nearest of kin who accept a succession by means. of an inventory are not excluded by more distant relations who offer to accept absolutely.

preferences or priority of claims. The creditors have no right of action personally against the heir, nor has the latter any claim on the estate until the whole of the debts are liquidated.

The residuary legatee, and the legatee for a given portion of the deceased's property, are now entitled as the heir to the. benefit of an inventory; their liabilities being the same, it is but fair they should possess the same means of guarding against them, and after ascertaining the state of the succession they may abandon it, n'est héritier ni légataire qui ne veut, in which case they will only be held responsible for the amounts derived from it, or, as it is generally termed, pro modo emolumenti.

The last article of the modern law on wills, refers to the obligations of the legatee to deliver to those to whom he has become indebted, in consequence of the property bequeathed being burthened with certain liabilities, the muniments or titles by which the creditor may obtain payment of his rent. The heirs being

as much interested as the creditor of the rent in making the legatee pay such rents, they may deliver the title deeds of their own authority and at the legatee's expence, if he refuse this satisfaction to the rentholder within a reasonable time.

ARTICLE XXVI.

Within six months from his being put in possession, the legatee shall deliver to each of the rentholders to which the property bequeathed to him is indebted, a copy, under the seal of the bailiwick, of the will, or of the part thereof that concerns him. If he is not the sole universal or residuary legatee, he must deliver a copy, thus authenticated, of the "Bille de Partage," or other document, correctly defining the part of the estate bequeathed to him, and the debts due upon it. In default of his doing so within the said period, the heirs, in order to discharge theniselves of their responsibility towards the rentholders, may make

the delivery of the said instruments, and in that case shall recover all the expences they may be at, and half the amount thereof besides, from the legatee. The rentholders themselves may also, after the same period, procure the same instruments, and exercise the same right of recovery against the legatee.*

The right of the rentholder to obtain his title deeds free of expense and at an early date is obvious. He should not be allowed to suffer from any change which independently of him has occurred in the person of his debtor. Hence his unquestionable right of coming on the heirs or indeed at once on the legatees, who, being debtors of his rent in fact detain a portion of his real property, to make them give him a suitable acknowledgment to that effect. Where the legatee is a universal or residuary legatee, that is to say, qui sustinet personam defuncti, and that the testator from leaving no heirs sufficiently near, in favour of whom he is in certain cases bound to leave the whole, and in others a certain portion of his real property, has bequeathed all such property to strangers, it is submitted that in this case the rentholder could not come upon the heirs for their title deeds, they in fact being excluded from the testator's inheritance. The rentholder must then look to the legatee alone for his titles or get them made out at such legatee's expence, for an excluded heir has no more claim than the most perfect stranger on a deceased's estate, who has thought proper to select his own heirs. In the absence of a residuary or universal legatee the following remarks of the Court's committee are fully borne out, by the principles introduced into the law, with a view of * Tout légalaire à quelque titre que ce soit, six mois après sa mise en possession, est tenu de placer à la disposition du rentier des droits ou titres devenus indispensables par le changement de

propriétaire.

Article 26.-Dans six mois après sa mise en possession, le légataire livrera à chacun des rentiers auxquels le fonds qui lui est légué est redevable, copie, sous le sceau du Baillage, du testament ou de la partie qui le concerne. S'il n'est pas seul légataire universel ou résiduaire, il devra aussi livrer une copie, authentiquée de la même manière, de sa bille de partage ou de toute autre pièce qui définisse exactement la partie de l'héritage léguée qui lui appartient, et autres redevances dont elle est chargée. Faute à lui de le faire dans le dit temps, les héritiers, afin de se décharger de leur responsabilité envers les rentiers, pourront livrer les dits droits, et auront droit de recouvrer leurs frais, et moitié en sus, du légataire. Les rentiers eux-mêmes pourront aussi, après le dit temps, se procurer les dits droits et exercer le même droit de recouvrement contre le légataire.

securing the rights and obligations which will arise between the heir, legatees, and rentholders in consequence of the power recognized by the modern law of bequeathing real property.

"If rents are due on the property bequeathed," the Committee observe,* "it will be necessary to give to each of the rentholders a document under seal, which shall serve as a sufficient title to claim such rents from the legatee. For it is a rule that a rentholder is not bound to know any other debtor than the one named in the title deed, except only in two cases, that of a saisie, which is a procedure where the forms admit of an entire publicity, and that of a succession, where the law itself, in indicating who are the heirs, indicates also who are responsible. The bequest of a real estate, with reference to rentholders, ought to assimilate rather to a sale than to either a saisie or a succession. Since then the rentholders can exact their titles, the question arises whether it is on the legatee or the heir that the obligation should be imposed of guaranteeing those rights? This duty generally devolves on him who wishes to charge another with a service for which he is himself responsible; nevertheless, in this particular case, the Committee have thought it just to consider this expense as a charge attached to the objects bequeathed, rather than burthen the heir, to whom, had there been no will, the law would have conveyed the whole of the succession, free of all charges of this nature."

Notwithstanding its being here laid down in such general terms that the expense of furnishing the rentholder with titles shall fall on the "legatee as a charge attached to the object bequeathed rather than on the heir," yet should the testator impose this charge on the heir as he may, the heir and not the legatee will then be bound to bear the expence which the change in the titles may require: for it being in the testator's power to deprive his heir altogether of his estate, it is only reasonable that he should not be deprived of the faculty of imposing upon him the conditions he may think proper respecting its acceptance, of which this expence may be regarded

as one.

It may be right to state that these stains in the law respecting the undue liability of heirs and legatees do not proceed * Vide Appendix, letter C, p. 39.

from the Court's committee, but from ancient usage; and though greater simplicity is desirable in the forms of drawing up wills of real property by dispensing testators who are willing to make olographic wills from appearing before a public officer to attest their wills, yet considerable credit is due to that committee for its judicious regulations on the manner in which it has secured the execution of such wills.

CHAPTER VI.

ON REDEMPTION OR PRE-EMPTION OF REAL PROPERTY, COMMONLY CALLED RETRAIT OR RETRAITE.

The faculty allowed a third party on the score of relation ship to redeem real property once sold, and by interfering between the vendor and purchaser permit him to annul a legitimate bargain concluded between them, is what is here. denominated right of redemption, or as we have it droit de retraite. It is not difficult at the onset to perceive how much opposed to all just principles is this misnamed right of redemption, and how it absolutely interverts that fundamental principle of legislation which directs that all contracts voluntarily entered into and honorably executed should be upheld as law. Of all stains in our system of real property retraite is the greatest, and whatever definition may have been given it by civilians, it might in practice be defined a faculty allowed by law to one relative to annul agreements entered into by another and a third party, on his perjuring himself with impunity, with the expectation of deriving from the real property thus obtained a larger amount than that for which it has been disposed of between his relative and the lawful purchaser. Impressed with the evils of the system the committee of the Petitioners prayed the legislature to abolish retraites in all sales which took place by public auction and coram judice, and it so far succeeded as to get the system abolished in the latter though not in the former instances, a restriction which the judicial authority has great reason to deplore almost every term the Court of Héritage assembles.