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Brieve. The means by which the widow's right to terce is established is a Brieve, directed from the Chancery to the Sheriff of the county where the lands lie, who empannels a jury to inquire, on two heads, first, whether the widow was lawful wife of the deceased, and, second, whether her husband died infeft in the lands specified in the brieve. The right to terce having been established, a portion of the land is allocated to the widow by a process called a Kenning to the Terce, in which the sheriff allots to her an alternate acre of each three, having cast lots to discover whether he shall begin at the east or the west end of the estate; but such an inexpedient division is generally avoided by a mutual arrangement."
Courtesy is a liferent right in the surviving husband of all the heritage in which his wife died infeft. It only exists in the case of a living child having been born of the marriage, and there being no heir to the wife by a former marriage.? The lands over which it extends are, such as the wife has succeeded to as heir of line or provision, &c., not such as she may have acquired by donation or purchase. The husband takes the liferent, with all heritable burdens, and his wife's personal debts are effectual against him, he having recourse on her executors. No service or other ceremony is necessary to enable the husband, having a right to courtesy, to continue to draw the rents of the estate, of which he was the legal administrator during the life of his wife.
PARENT AND CHILD.
Sect. 1.—Legitimacy. The child of a woman, whose husband is alive, or has died within such a period as admits of the presumption of his being the parent, is presumed to be legitimate. The presumption cannot be met by any other counter-proof than such as shows it to be physically impossible that the husband could be the father. In the case of bigamy, or of marriage within the forbidden degrees (see Chap. I. Sect. 2), it is held by the commentators that ignorance of the circum
stance on the part of either of the parties will legitimate the offspring. The subsequent marriage of the parents of an illegitimate child, legitimates the child, unless they were in such a position at the birth that they could not lawfully marry, as by one of them being married to another. A child 80 born will take precedence in succession of the children born during the marriage. After the question had been the object of much speculation among lawyers, it has now been decided, that the marriage of the parents of a natural child will legitimate the child, though one of the parents should after the birth of the child have been married to another person, and had children in wedlock. These children of the intermediate marriage are not of course deprived of their legitimacy, but it has become a curious question how the relative rights of succession can be adjusted in such a case. It appears that the legitimacy only dates back to the time of the marriage of the parents, and therefore that it does not interfere with rights that have opened to the children of the intervening marriage, but there has been no decision on this point.3
Where a person, who inherited landed property in Scotland, but who lived in England, and had an illegitimate child there, married the mother of the child during a brief residence in Scotland, the Court of Session held the child legitimate 4 but the House of Lords reversed the decision, on the principle that the child of unmarried persons born in England entered life with a legal disqualification, which no subsequent act of the parents could remove. It has been held in England, that a child legitimated in this country by the subsequent marriage of the parents cannot succeed to landed property there.
Sect. 2.-Mutual Obligation to Support. Parents' Obligation. The father, as the head of the family, is the first person to whom the law looks as the supporter of his children where they cannot support themselves. “He is obliged to preserve and protect them during their nonage; to provide them in bed, board, and clothing, and all the necessaries of life; and to give them an education suitable to their rank, in their younger years."? It would appear that subsistence is all the pecuniary assistance that a son
can demand, and so, where a father possessed entailed estates to the extent of £10,000 per annum, and his son and heir held a commission in the army which yielded him £90 a-year, while he was allowed £100 a-year by his father, the House of Lords reversed a decision binding the father to provide farther aliment. The father is not bound to aliment the child out of his house, unless his harsh temper render it impossible for them to reside together. The obligation ceases when the child can gain his own subsistence, a period which will depend on the rank of the parent and the sex of the child. The obligation descends to the heir of the father, or any person succeeding to his property.4
By the Poor-law Act, a parent able to maintain his children, and failing to do so, may be criminally prosecuted as a vagabond, and is liable to fine or imprisonment.5
The duty of aliment devolves, in the second place, upon the mother, if the father or his representative be indigent, and the mother comparatively affluent. The duty falls, in the next place, on the grandfather, and so upwards. The father has been held bound to maintain his son's wife, when destitute, but not his widow ;9 though it was found that the proprietor of an entailed estate was liable to support his son's widow, who was mother to the heir of entail. 10
Children's Obligation. The duty of aliment is reciprocal, children who are able to do so being bound to support their indigent parents." A son was bound to contribute to the maintenance of his father, who, though not destitute, was in indigent circumstances, and incapable of working. 12' A son was held not to fulfil the obligation to aliment his mother by receiving her into his house, unless he was unable to afford her a separate maintenance.13
Sect. 3.-Parents' Authority. The parents are the guardians of their children while they are minor, and reside in family with them, the father, while he lives, taking the direction, which the mother assumes on surviving him. There are few late decisions on the powers of parents over children, and the law as stated by Erskine is
almost the sole guide on the subject. “This parental power or authority," he says, " is chiefly discovered in the father, whom nature has constituted the head of the family, and who, in that character, has the sole and absolute right of directing whatever concerns the persons of his children under age, of exercising that degree of discipline and moderate chastisement upon them which their perverseness of temper and inattention calls for, and of ordering every thing relating to their education, or the improvement of their minds. He is entitled to all the profits accruing from their labour and industry, while they continue in his family, or are maintained by him at bed and board. But even then the children are capable of receiving donations either from the father himself, or from others, which thereby become their own property. Children who get a separate stock from the father during their minority for carrying on any trade or manufacture, or setting up a separate employment by themselves, even though they should continue in his family, may be said to be emancipated or forisfamiliated, in so far as relates to that stock, for the whole profits arising from it are their own. But if the profits arising from such employment shall be sufficient for their subsistence, the father is not obliged to maintain them in his family at his own expense, but may article with them for the payment of board. Forisfamiliation, when understood in this sense, is also inferred by the child's marriage, or by his living in a separate house, with his father's consent or permission.” 1
A father can undoubtedly compel his child when in pupillarity to live with him. Beyond that age it would appear that he is not entitled to prevent his child from living apart, and supporting himself. He cannot, however, be compelled to aliment a minor son or daughter otherwise than under his own roof.2
The father is tutor to his children (see below, Chap. III.), and curator, even in the management of property left by a stranger, unless he be specially excluded. He ceases to be curator to a daughter on her marriage.3 Fathers in administering their children's property, are not in the general case obliged to take the oath of faithful administration, or to give security, or make inventory, as in the case of strangers.4 (See below, Chap. III.) The father being the legal guardian, the child cannot, in the general case, choose another during his lifetime. Where the child, however, has separate pro
perty, precautions rendered necessary by the situation or character of the father will be sanctioned by the court. Thus the appointment of a factor and tutor was sanctioned by the court where the father was an undischarged bankrupt, with no settled domicile. As to the liability of minors for their engagements, see below, p. 42, and Part IV. Chap. I.
On the father's death, the mother, while she remains unmarried, has the custody of children in pupillarity, and the general guardianship of the children, so far as she is not superseded by tutors and curators. The vicious conduct of the mother will form a good ground for removing the child from her charge.
Sect. 4.-Illegitimate Children. The law as to the custody of illegitimate children is not very clearly defined. It is a doctrine of civilians, that such a child has, in the eye of the law, no father. The same principle has ruled in Scotland, somewhat modified in practice, for it is held that “ there is no fixed rule as to the custody of illegitimate children; and the only general one which can be laid down is, that the court must attend chiefly to what is most beneficial for the child."5 Professor Bell says, that the mother has the custody till seven in males, ten in females,"6 yet, in a case where the mother was allowed to reclaim a boy of twelve years of age from the relations of the father, it was said on the bench, “ I regard this case as if the father of the bastard were still alive. I look to the father's legal rights, and I do not see that he is entitled to the custody of his natural child. The right is in the mother."
The improper conduct of the mother will form a good ground for the removal of the child, and so apparently will her marriage, at least if an appropriate asylum is elsewhere offered to the child. The mother's position in society, however, arising from the illicit intercourse of which the child is the fruit, cannot, in any state of circumstances, be a ground for depriving her of its charge. This was decided in the very strong case of the father having left his natural daughter a large fortune, to be administered by tutors and curators.9