indeed they must so determine), that no testator can be guilty of real wrong or injustice, it seems as if the mere kindly wish to gratify, even after death, would leave no especial danger to be apprehended. The principles, moreover, by which men are guided in such actions will evidently be much the same at any given time, and nearly universal in their application; and the frequency or rarity of testaments will, in any period, serve to show the legislator whether the order of succession ab intestato which he has introduced, be still appropriate or not. It might perhaps, then, be advisable to make a corresponding division of the State measures which relate to testaments, according to the twofold character of the objects we have noticed as embraced by them; that is, to allow every man, on the one hand, to determine who shall inherit his fortune after his death, subject only to the limitation as regards the portion due to his family, but to forbid him, on the other, to enjoin in any way whatever how it shall be managed or employed. Now it is certain that the first of these privileges, which we suppose to be allowed by the State, might be seriously abused, and made the very means of doing that which it would prohibit. But it should be the object of the legislator to endeavour to obviate this abuse by special and precise regulations. This is not the place to enter into a full exposition of this subject, but I may propose the following as convenient examples of
was entitled to one moiety, and lie might bequeath the other; but if he died without either wife or issue, the whole was at his own disposal. The shares of the wife and children were called their reasonable parts; and the writ de rationabili parte bonorum was given to recover them." This right to the rationabilis pars still continues to be the general law of Scotland. By this a man's movables are divided into three parts:—1. The Dead's part: 2. The widow's part, or jus relictæ; 3. The Bairns' part, or jus legitimum, a phrase which approaches the German word 'Pflichttheil,' which I have been obliged to render by a paraphrase. (See Burton's 'Manual of the Law of Scotland;' Private Law, p. 105.)—Tr.
