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 Rh MARRIAGE 101 ' / / (or called into existence) ^ between a surviving sppusa- and the heirs of the deceased. This result .jilay>6e effected : (1) by the ante-nuptial contract or mutual testament of the spouses ; ^ (2) (under a local custom or statute) by the separate will of the deceased spouse,* ia which the survivor is appointed executor of the will and administrator of the joint estate during the minority of the children in both cases there must be an express direction in the wiU that the community is to continue, or come into existence ; (3) by operation of law. This takes place in one case only ; viz. ' if the surviving father or mother, being at the same time guardian of the children, fails to draw up an inventory or make to them the " proof " or buy out their interest (noch aan dezelven bewijs, vertigting of uitkoop doet). The consequence is that the community of goods continues between the survivor and the children, and to the advantage of the latter, who enjoy the half of all the profits that accrue to the estate after the death of their deceased parent, but not to their prejudice, inasmuch as all losses are borne by the surviving parent.' So the law is stated by Van der Linden, who adds : ' At least this rule applies when local statutes have not provided differently on this point '. Van der Keessel, however, regards this penal and one- sided community as resting, in every case where it occurs, on local custom only, and, in accordance with a principle laid down by himself in an earlier Thesis, takes Grotius to task for inferring a rule of common or general law from a number of particular instances of merely local applica- tion.® However this may be, it appears from the above authors as well as from Grotius, Schorer, and Bynkershoek,® V. d. K. Th. 267 and 144. = V. d. K. Th. 266-7. V. d. K. Th. 269. ^ V. d. L. 1. 5. 4 (based on Juta's translation). See also Van Leeuwen (4. 23. 7), who says that the law ' has been introduced in favour of the innocence of young children, and as a punishment of wicked parents '. ^ y. d. K. Th. 270-1. ° Gr. 2. 13. 2-3 ; and Schorer ad loc. ; Bynkershoek, Quaest. Jur. Priv., lib. Ill, cap. x ; Voet, 24. 3. 36 ; Natal Bank, Ltd. v. Bood [1910] A. C. 570 ; in appeal from the Transvaal S. C. [1909] T. S. 243.