children of the survivor and the predeceased spouse. It is different if the child so inheriting from the predeceased spouse bequeaths his or her portion to the surviving spouse, who need then make no division with the children of the first marriage; and there need be no division if the deceased child so bequeathing property to the surviving parent has acquired the same from any other source. A surviving parent who succeeds, jointly with his or her children, ab intestato (by intestacy) to his legitimate portion of the inheritance of a deceased child who acquired such inheritance from the predeceased parent, is entitled not to the ownership of such legitimate portion, but only to the usufruct thereof. The foregoing rules were introduced as penalties for a second marriage, and the latter rule with regard to the usufruct holds good so long as the children of the first marriage for whose benefit the rule was introduced are living. The Roman Law provided that a surviving spouse cannot by his or her own disposition confer a special benefit on any of the children of the first marriage in particular, with regard to property coming from the predeceased spouse, but such property must, if descending ab intestato, be shared equally between the children without distinction, and if the property descends by testament, the dispositions of the first-dying spouse must hold good, for a mutual will is the will of the first-dying spouse. Where a surviving spouse remarries more than once, the children of each marriage take only the property coming from their own parents, and have no interest in the property of a marriage between one of their parents who has in such manner remarried and his or her spouse in a previous marriage. The children of the first marriage are entitled to their shares, unless they have been specifically disinherited. They do not transmit their right to descendants, and can only claim the ownership of the property where they have been instituted heirs jointly with the surviving spouse, if they outlive the surviving spouse. If all the children of the first marriage die in the lifetime of the surviving parent who has remarried, the survivor has full power to alienate property accruing to him or her either directly from the first

spouse or from a child or children of the first marriage ab intestato ; and, likewise, alienations of such property made by the survivor during the lifetime of the children of the former marriage, who have since died, will become ratified (23, 2 §§ 102-109).

Voet does not clearly lay down which of the rules summarised in this section were or were not obsolete in Holland, and the subsequent portions of the title cast no light on the subject. It would seem from Van der Keessel (§§ 313-320) that the Trebellian Law (Senatusconsultum Trebellianum), on which the foregoing rules are founded, was in full force in Holland in his day. He even goes so far as to state specifically that the procedure enjoined by Justinian (Inst. 2, 23, 12; Code, 6, 42, 32), whereby the heir was put to his oath as to the trust which he had or had not received, had been adopted in Dutch Law. See Van der Linden (1, 9, 8), Van Leeuwen (R. D. L. 3, 11, 1—11; 1 Kotzé, pp. 413-418); and Grotius (2, 20, 6-14). The rules would seem to be obsolete in the Cape Colony, where Act 26, 1873, § 1, provides that "In no case shall any heir of any one dying after the taking effect of this Act be entitled to deduct out of the estate of the person so dying any portion under or by virtue of the law known as the Trebellian Law, which, but for such law, such heir would not be entitled to claim or deduct." The Trebellian Law is also repealed in the Transvaal. This does not affect the general rules relating to fideicommissa or trusts, which Voet treats of in Book 36.

409. The next penalty provided in the case of second marriages is that a survivor cannot give by deed inter vivos or bequeath by testament to his or her second spouse more than the sum given or bequeathed to that one of the children of the first marriage to whom the least portion has been left; and, if more than such smallest portion is given or bequeathed to such second spouse, the gift or bequest is void to the extent of such excess, and the excess must be divided equally among the children of the first marriage alone. If there are not only children, but grandchildren of the predeceased spouse as well, such grandchildren succeed by right of representation to the share of the excess due to their parent (who is the child of the marriage between the survivor and the predeceased spouse). This law (which is found in the Code, 5, 9) is known, from the first words of the introduction, as the Lex hâc edictali (23, 20 § 11).

Colquhoun says (§ 582): “The parties to a second marriage can give no more to one another than the portion of a child of the first marriage; and if their portions be unequal, then the same as the child who has the least. All excess over this is equally divided among the children of the first marriage: this applies to gifts, legacies, or heritages under quocunque nomine. Whatever one receives by operation of law is not to be included in such sum." The lex hac edictali Codicis de secundis nuptiis was introduced by the Emperors Leo and

Anthemius. Neostadius (on Antenuptial Agreements, 4) states that the law was first introduced in the Netherlands in or about 1529. See also Van Leeuwen (R. D. L. 4, 23, 5; 2 Kotzé, 185).

410. If only grandchildren of the predeceased spouse survive, the amount which has been given or bequeathed to the survivor's second spouse in excess will go to such grandchildren not per capita but per stirpes. Thus if there are five grandchildren, two being children of one son, and three children of the other son of the predeceased spouse, the first two grandchildren will each take one-fourth of the excess, and the next set of (three) grandchildren will each take one-sixth of the excess. The same rules apply not only to second marriages, but to all subsequent marriages. Voet mentions an opinion of Sande (Law relating to Step-parents) to the effect that if a survivor has left less to a child of the first marriage than his legitimate portion, such legitimate portion must first be made up to its full value from the excess, for the balance of the excess is distributed among all the children of the first marriage; but Voet dissents from this view (23, 2 § 111).

The foregoing rules of the lex hâc edictali, as well as those following, were repealed by the Cape Act 26, 1873, § 2, which provides that "from and after the taking effect of this Act the sixth law of the ninth title of the fifth book of the Codes (sic) of Justinian, commencing with the words 'Hac Edictali,' and commonly called or known as the Law or Lex Hac Edictali, shall be and the same is hereby repealed." This law was repealed in the Transvaal by Proc. 28, 1902, § 127. Van der Keessel states (§§ 222, 232) that community of property subsists in the case of a second marriage notwithstanding the lex hác edictali (even where such community has been introduced by antenuptial contract). In such a case, either spouse will become liable for debts contracted before marriage; and, where the lex hâc edictali is still in force, a second spouse will in consequence be liable to the children of the first marriage (the survivor of which marriage such second spouse has married) for their legitimate portions and for the excess paid, given, or bequeathed to such second spouse.

411. The children of a first marriage are not deprived of this benefit by the fact that they have adiated the inheritance left them by will of their surviving parent who married a second time (23, 2 § 112).

See Blignaut's Trustee vs. Celliers' Executor (Buch. 1868, p. 206); and Salmon vs. Duncombe and Others (5 N. L. R. 103, and 7 N. L. R. 182), and Barrett vs. Meyer's Executors (6 N. L. R. 169).

412. When a husband has contravened the lex hac edictali by making an excessive gift inter vivos to his second wife (or, vice versâ,

the wife makes a similar gift to a second husband), which gift is made irrevocably, the benefit of the penalty given by the law in favour of the children of the first marriage becomes vested in them, so that they cannot even be deprived of such benefit by an agreement between the husband and his second wife (or between the wife and her second husband, as the case may be) cancelling the donation. "But it does not necessarily follow," says De Villiers, C.J. (in Lucas vs. Hoole (Buch. 1879, p. 145), "that the rights of the children to the penalty would vest where the gift to the second wife is made not by way of donatio inter vivos, but by way of bequest or inheritance. In the latter case it would remain uncertain until the husband's death whether his second wife would receive any benefit at all; in the former case the gift would take effect immediately, and it could be easily ascertained, by comparing the gift with the husband's means, whether or not the gift was excessive and contravened the law." If a father who has made a gift to his second wife dies insolvent, the said gift being in contravention of this law, the excess will go to the children of the first marriage, and not to the creditors of the deceased, unless the gift was clearly made in fraud of the creditors. A second wife cannot deprive her husband's children by a former marriage of the benefit of the lex hâc edictali by renouncing a legacy which exceeds the amount which the law allows to be given to her, the law conferring the excess on the children of the first marriage immediately upon the death of their father. The law will also not be defeated by the fact that the father has made the gift or bequest to his second wife with a substitution (failing the second wife) in favour of a stranger or of the second wife's children. A gift exceeding a child's portion, made by a step-mother, who has children by a prior marriage, to her step-child or step-children, will be void to the extent of the excess, but only if it clearly appears that the lex hâc edictali was contravened by the very fact of making such step-child the recipient of the gift. The penalty in such a case will, of course, enure in favour of the step-mother's own child or children (23, 2 §§ 113—117).

See Van Leeuwen (Cens. For. 1, 1, 12, 13; 1, 3, 4, 50), Dutch Consultations. (1, 90, 3; 3, 1, 44); Johannes à Someren (3, 1, 1).

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413. The lex hac edictali does not prevent a surviving spouse who remarries from leaving more property to the children of his or her second marriage than to the children of his or her first marriage. The children of the first marriage must be satisfied if they receive the legitimate portions due to them from the estate of their parent (23, 2 §§ 118, 119).

See Van Leeuwen (1, 3, 4, 50, Cens. For.), Sande (Decisiones Frisicae, 2, 3, 6), Dutch Consultations (1, 90, 3; 3, 1, 44), and Johannes à Someren (3, 1, 1; 9, 2, 3).

414. Prohibited gifts under the lex hâc edictali include "morning" gifts (jewellery and similar presents in consideration of marriage), dowry, and the like. The usufruct of property is likewise included, unless it be shown that the usufruct does not amount in value to a child's portion. The same rule applies to household furniture left or given to the second spouse (23, 2 §§ 120, 121).

The question whether community arises or not in the case of a second marriage, notwithstanding the lex hâc edictali, has been discussed above (§ 410). Voet is of the same opinion (23, 2 § 122) as Van der Keessel. He then proceeds to consider the effect of antenuptial contracts on property, with reference to the lex hac edictali, but as the decision in each particular case depends on the interpretation of the special contract, the subject need not be further gone into here. Profits arising from the community introduced by the second marriage, and money or property earned through the industry and labour of the parties to the second marriage, are not to be reckoned as included in the children's portions of the first marriage (23, 2 §§ 123, 124).

415. Spouses of survivors of a first marriage will not be able to retain more than the child's portion due to them under the lex hâc edictali, by showing that the children of the first marriage have already received more than their shares of inheritance from their predeceased parent. If a second spouse has by antenuptial contract stipulated to receive from his or her wife or husband a child's portion of the inheritance coming from such wife or husband, and the portions paid out to the children have been increased, the child's portion for which such spouse has so stipulated by antenuptial contract should be similarly increased. If a wife promises her second husband a dowry of all her goods, having already paid or provided for payment of a sufficient portion to the children of her first marriage, and thereafter reduces her dowry in order to increase the portions of the children of the first marriage, her