but Moveables The next Degree of the nearest of Kin is Brothers and Sisters german and failing these Brothers or Sisters by the Father's side only or their nearest Descendents of the same Degree without Right of Representation As to the third Degree of Succession in Moveables failing Descendents and Brothers and Sisters and their Descendents the Question is Whether the Father surviving will exclude his own Brother or if there be any place for Ascendents in the Succession of Moveables Such Cases occur rarely and I have not observed it debated or decyded It is but of late since the like Case hath fallen in the Succession of Heirs and Heritable Rights wherein our Custom hath according to the course of the Law of Nature found the Father to be Heir to his Son and not the Father-brother or any of his Descendents and in that have differed from the Custom of England And there is no reason why if the Question should occurr that the like should not be done in Moveables The next Degree is the Father's Brethren and Sisters german which failing the Father's Brethren and Sisters by the same Grand-father and their Descendents in the next Degree In all which both Bloods exclude one Blood And if there be no Agnat or Kinsfolk found who can instruct their propinquity of Blood the Goods become caduciary and confiscat and belong to the King as ultimus haeres who and his Donatar have the same interest that the nearest of Kin would have had Vide Title Confiscation Section Ultimus hares Children in familia have not only the common Right as nearest of Kin but have their legittime Portion called the Bairns part in which their Father cannot by Testament Legacy or Donation ' mortis causâ prejudge them or by any other Deed on Death-bed By the Premises it appears that the whole power of Defuncts as to Succession in their Moveables is to nominate Executors and give Legacies 33. The Nomination of Executors is properly called a Testament Additions thereto or Alterations thereof are Codicils Legacies may be left whether there be Testaments or not and either in the Testament Codicils or apart but all is ambulatory during the Defunct's Life and may be taken away expresly or implicitely by posterior or derogatory Deeds unless the Defunct be obliged by Contract inter vivos not to alter the same In which case Contract and Paction doth so far over-rule the power of testing that posterior Deeds whether expresly or implicitely altering would be ineffectual like to that Obligement to leave a Legacy which was found an effectual Legacy without further Solemnity January 30. 1631. Houstoun contra Houstoun 34. The effect of Testaments being so small the Solemnities thereof are no other than what are requisit to accomplish any other Writ For two Witnesses suffice and if the Testament be holograph it is valid Or if the Testator cannot or be not able through Sickness to write a Testament will be sufficient by a Notar and two Witnesses notwithstanding the Act of Parliament 1579. cap. 8. requiring to Writs of importance two Notars and four Witnesses which holds not in Testaments though containing matter of great importance 18. of January 1623. Bog contra Robert Hepburn Yea Ministers are authorized as Notars in the case of Testaments Par. 1584. cap. 133. The reason here of is because Ministers are ordinarly with sick Persons the time of their Death Nuncupative Testaments are not of force in Scotland For though Legacies left within an hundred pounds may be nuncupative without Writ yet the Nomination will not so subsist nor be respected by the Commissaries And therefore a verbal Testament taking away a formal Legacy subscrived but by initial Letters was not sustained though made at Sea and so in a Case of necessity and not admitted to be proven by Witnesses in the Ship Feb. 18. 1631. Houstoun contra Houstoun 35. The effect of Testaments is not greater though made in England the Testator residing there and so extends not to an Heretable Sum due in Scotland left in Legacy by the Testator being a Scots-man July 3. 1634. Melvil contra Drummond Hope Testaments Purves contra Chisholm Executors of Collonel Henrison ibid. Neither do nuncupative Testaments of Scots-men though residing animo remanendi abroad and dying there have any effect with us albeit nuncupative Testaments be valid according to the Law and Custom of that Place For albeit the Custom of the Place may supply the Solemnity of any Writs or Evidents for instructing a Right as Writs made abroad by Nottaries and Tabellions are valid though not done according to the Law of Scotland which requires two Notars and four Witnesses in Writs of importance yet the Custom of those Places cannot constitute any Right of Succession not allowed by the Law of Scotland And therefore William Schaw Factor and Residenter in London having lived and died there in the House of one Mary Lewins who had confirmed in England a nuncupative Testament whereby he had designed her as Executrix and Legatrix and the nearest of Kin of the said William having confirmed themselves Executors to him in Scotland and the competition being betwixt them the Lords preferred the Executors confirmed in Scotland and had no respect to the nuncupative Testament as having no effect by the Law of Scotland January 19. 1665. Schaw contra Lewins 36. The like Solemnities will be sufficient for Codicils and Legacies A nuncupative Legacy within an hundred pounds is probable by Witnesses November 24. 1609. Russel contra July 7. 1629. Wallace contra Mure. Where a greater Legacy left by word restricted to an hundred pounds was found so probable 37. The power of Testing is competent to all Persons who have the use of Reason though Minors having Curators not consenting Wives cled with Husbands without their consent Persons interdicted without consent of the Interdicters but not to Pupils Idiots furious Persons in their Furiosity neither to Bastards not having lawful Issue or testamenti factionem by the Kings Gift as in the former Case Wallace contra Mure. Vide Tit. Confiscation § Bastardry 38. Legacies are either particular or universal general or special Universal Legacies are when the whole Moveables in so far as is in the Defunct's disposal and not left by particular Legacies is legat and so it is legalum per universitatem and like to the Succession of an Heir Special Legacies are where some Individual is left as such a Horse Cloaths c. or such a Sum due by such a Person whereby the Property is stated in the Legatar and at most but the Possession or Custody in the Executor And therefore the Legatar may pursue for Delivery or Payment of the special Legacy against the Havers or Debitors but he must call the Executor that his interest may be preserved least the Debts exhaust even the special Legacy Upon which consideration the Lords sustained not a Pursuit upon a special Legacy leaving a Sum due by such a Person in such a Bond pursued against
contrary acts of Injury by doing evil in stead of good Thirdly For the security of the people and anticipation of Error and Fraud and that evident probation may be had Men do most profitably order deeds to be done in such a palpable and plain form as may easily appear in which there can be no injury seing the manner of doing these deeds is free and in our power Thus though the dispositive will of the Proprietar be sufficient to alienate any thing that is his and to constitute the Right thereof in another Yet by the Civil Law and custome of most Nations delivery or apprehension of Possession for conveying the Right of Goods and Seasing is necessar for conveying of the Rights of Lands by the Feudal Law and so by our Customs Assignations are not effectual to transfer Personal Rights till Intimation follow Our Custome also appoints Write to be made where it is easie and ordinar to be done and therefore as the penalty of the neglect or contempt thereof doth exclude Witnesses in matters of importance and admitteth only Write or Oath of party in cases where Write is accustomed So the Romans ordained that because the agreements of the people when they stood in meer Conference that words were easie to be mistaken by themselves or Witnesses that therefore the parties should perfeit such Contracts by a solemn stipulation wherein the one party did interrogat if the other did agree to such terms as he exprest and the other immediatly repeated his answer closing with him in terms and therefore if they did not so stipulate they refused them Action upon naked paction Fourthly Nations for the flourishing of their Families do otherwise dispose of their Estates and Possessions and their Laws do order them otherways than the Law of Nature doth for in the most part the Heretage and Succession in the whole Land-rights belongs to the eldest Son as Stem and Line of the Family and the Parents are presumed to provide the rest of the Children with competent Portions though by the Law of Nature the Right of Succession doth belong to all and even in this positive Law altering the course of the Law of Nature hath its example from the Judicial Law of God by which the Males exclude the Females and the eldest hath a double Portion Fifthly According to the humours and inclinations of People men do lay the heavier penalties upon the Transgression of such Laws as stand in opposition thereunto which may be altered when these inclinations alter And so the Lord did frame the Law of Moses for the humors of that People in some things permitting without punishing the transgression of the most palpable and weighty Laws of Nature as in Poligamy and Divorce and also extending the proportion of Equality observed in the Law of Nature in Restitution and Retribution as in Theft hence it appears how necessar the Laws of men are yetsurely they are most happy whose Laws are nearest to Equity and most declaratory of it And lest altering of the effects thereof except in cases eminently profitable like unto these now pointed at yea and the Nations are more happy whose Laws have entered by long custome wrung out from the Debates upon particular Causes until it come to the Consistence of a fixed and known Custome for thereby the conveniencies and inconveniencies through a tract of Time are experimentally seen so that which is found in some cases convenient if in other cases afterward it be found inconvenient it proves abortive in the womb of Time before it attain the maturity of a Law But in Statutes the Lawgiver must at once ballance the conveniencies and inconveniencies wherein he may and often doth fall short and there do arise casus Incogitati wherein the Statute is out and recourse must be had to Equity But these are best which are approbatory or correctory of experienced Customs and in a customary Law though the people run some hazard at first of their Judges Arbitriment Yet when that Law is come to a fulness and consistence they have by much the advantage in this that what custom hath changed is thrown away and obliterat without memory or mention of it but in Statutory Written Law the Vestige of all the alterations remain and ordinarily increase to such a Mass that they cease to be Evidences and Securities to the people and become Labyrinths wherein they are fair to lose their Rights if not themselves and must have an implicite Faith in these who cannot comprehend them without making it the work of their life 15. Our Customes as they have arisen mainly from Equity so they are also from the Civil Canon and Feudal Laws from which the Terms Tenors and Forms of them are much borrowed and therefore these especially the Civil Law have great weight namely in cases where a custome is not yet formed but none of these have with us the Authority of Law And therefore are only received according to their Equity and Expediency Secundum bonum equum And though it may appear from some Narratives of our Statutes that the Parliament doth own the Civil and Canon Law to be our Law as in the Revocation of King James the fourth Parliament 1493. c. 51. where it is said and since it is permitted by the constitution of Law Civil and Canon that Minors may revoke Par. 1540. cap. 80. So likewise Nottars Forgers of false Writs are ordained to be punished after the disposition of Common Law Par. 1551. cap. 22. And in the Act establishing Religion all Acts contrair or Constitutions Canon Civil or Municipal are abrogated Par. 1567. cap. 31. Yet these amount to no more then that these Laws are an example after the similitude whereof the Parliament proceeded And though in the cases of Falshood the punishment be assumed as in the Civil Law which will make that a part of our Law it will not infer that in so far it was our Law before much less in the whole And there is reason for the Abrogation of the Canon Law at the establishing of the Protestant Religion because in the Popish Church it was held as an Authoritative Law but since it is only a Law as to these Cases that were acted by it when it was in vigour and in the rest only as our Customes assume some particulars thereof according to the weight of the matter But for the full Evidence of the Contrair there is an express and special Statute declaring this Kingdom subject only to the Kings Laws and no other Soveraigns Laws Par. 1425. cap. 48. Par. 1503. cap. 79. Yea the Law of Scotland regulats the Succession and Rights of Scottish men in Scotland though dying abroad being resident there as was found in the case of Collonel Hendersons Children who having died in Holland Legatted upon Heretable Bonds according to the custome there yet they were found not to be conveyed by Testament but belonging to his Heirs according to the Law of Scotland Dury 9. Decemb. 1623. The
like betwixt Melvil and Drummond Dury 3. July 1634. and lately in the case of the Executors of Williami Schaw Factor at London dying there it was found that a Nuncupative Testament confirmed in England being contrair to the Law of Scotland which admits of none such was null and the nearest of Kin preferred to the Executor and universal Legatar named there January the 19. 1665. Schaw contra Lewens but as to the manner of Probation or Subscription the Law of the Place Regulates Dury 11. Decemb. 1627. Falconer contra the Heir of Beatty and the 27. July 1623. Gordoun contra Morley 15. Feb. 1630. Harper contra Jaffray So a Bond by an English man to a Scottish man residing there being after the Style of England payment thereof was found probable by Witness and by the Oath of the Cedent against the Assignay 28. June 1666. Mcmorlan contra Melvil yet a Bond granted by Scottish men to an English man in England found regulate by the Law of Scotland and not to be taken away by Witness being after the Style of Scotland and Registrable in Scotland Decemb. 8. 1664. Scot contra Henderson and Wilson But the Law of England and other Forraign Nations is matter of Fact to us probable by the Declaration of the Judges there January 18. 1676. Cunningham contra Brown The Law of Scotland as of all other Nations at first could be no other than equum bonum Equity and Expediency for it is not to be supposed that any Nation at their first association and owning of a Government did appoint positive Laws nor could they have Customes anterior to their Constitution and yet it is necessarily implyed that they must submit to and be Governed by a Law which could be understood no other than what their Soveraign Authority should find Just and Convenient It may be some Cities at their first Constitutions might have enacted Laws but it cannot be found in all the Records of Antiquity that ever any Nation or Countrey did so whatsoever be said of the Salique Law of the French which they hold so ancient and fundamental It is either fictious or long posterior to their constitution into a Nation And therefore as in Arbitriments parties are understood to submit themselves to Arbiters Secundum Arbitrium boni viri So Nations of old submited to their Princes choosing rather to refer their Interests and Differences to the Determination of their Soveraign than that every one should be a Judge to himself and should take and hold by force what he conceived to be his Right without any Superiour Judge than himself to appeal to and thereby live in perpetual War whence Government necessarily implys in the very beeing thereof a yielding and submitting to the Determination of the Soveraign Authority in the differences of the People though one or either party should conceive themselves injured that thereby private opinion may give place to publick Authority although they had natural power sufficient to withstand the same otherways they behooved to dissolve Authority and Society and return to the Soveraignity of their private judgement and their natural force from which they did flie unto the Sanctuary of Government which though it may sometimes err yet can be nothing like to these continual errors when every one owns himself as Soveraign Judge in his own Cause Next unto Equity Nations were ruled by Consuetude which declareth Equity and constituteth Expediencies In the third place positive Laws of Soveraigns became to be accustomed Customes always continuing and proceeding so that every Nation under the name of Law understand their ancient and uncontroverted Customs time out of mind or their first and Fundamental Law So the Romans accounted their Laws of the twelve Tables and when they did express any thing to be ipso jure they meaned it to be such by that ancient Law in opposition to their recent Customs introduced by their Pretors and Constitutions of their people Senat and Princes The English also by their Common Law in opposition to Statute and recent Customs mean their ancient and unquestionable Customs In like manner we are ruled in the first place by our Ancient and Immemorial Customs which may be called our Common Law though sometimes by that name is understood Equity which is common to all Nations or the Civil Roman Law which in some fort is common to very many By this Law is our Primogenitur and all degrees of Succession our Legittime Portions of Children Communion of Goods betwixt Man and Wife and the division thereof at their death the Succession of the nearest Agnats the Terces of Relicts the Life-rent of Husbands by the Courtesie the exclusion of Deeds on Death-bed which are anterior to any Statute and not comprehended in any as being more solemn and sure than these In the next place are our Statutes or our Acts of Parliament which in this are inferiour to our ancient Law that they are lyable to Defuetude which never Incroaches on the other In this we differ from the English whose Statutes of Parliament of whatsoever Antiquity remain ever in Force till they be repealed which occasions to them many sad debates publick and private upon old forgotten Statutes But with us the Lords of Session being by their Institution Authorized with Power to make Rules and Statutes to be observed in the manner and order of Proceeding and Administration of Justice Par. 1537. cap. 43. Par. 1540. cap 93. Their Decisions are final and irrevocable when solenmly done in foro contradictorio and thereby recent Custome or Practique is established both by their Acts of Sederunt and Decisions which extend not only to the Interpretation of Acts of Parliament but to the Derogation thereof especially so far as concerns the Administration of Justice which is specially committed to them whereby all the old Acts of Parliament concerning the forms of Process are in Desuetude and in several points more recent Statutes for instance albeit by the Act of Parliament 1621. cap. 81. Reductions of Infeftments are appointed to be sustained by exception or reply yet the Lords seeing that this is inconsistent with the necessar and ordinar form of Process whereby Rights cannot be annulled or reduced till the parties and their authors be called that the same maybe first produced therefore they do not take away Infeftments by exception or reply notwithstanding of the said Statute But there is much difference to be made betwixt a custome by frequent Decisions and a simple Decision which hath not like force especially if it be invested with many Circumstances of Fact But such are more effectual if they be in any abstract point of Law Yet frequent agreeing Decisions are more effectual than Acts of Sederunt themselves which do easily go into Desuetude Where our ancient Law Statutes and our recent Customs and Practiques are defective recourse is had to Equity as the first and universal Law and to expediency whereby Laws are drawn in consequence ad similes casus but if it
the first Branch and therefore though there were no Clause irritant they might reduce alienations meerly gratuitous or fraudulent especially when done not by the Heirs of Line or Heirs Male of him who constitute the Tailzie for these are always in every Tailzie in the first place and while the Fee continues in them it is rather a simple Fee then Tailzied as it becomes again when all the Branches of the Tailzie fail The perpetuities of Estates where they have been long accustomed have 〈◊〉 〈◊〉 their Inconvenience therefore divices have been found out to 〈◊〉 them ineffectual Only the Majoratus of Spain hath been most 〈◊〉 〈◊〉 and 〈◊〉 that the King Nobilitating a Person of Merit and 〈◊〉 either by the Kings Gift or his own Right that Estate can neither be alienate or burdened but remains alimentary for preservation of the Dignity of that Family But these perpetuities in England are now easily evacuat First by Warrands to sell purchased in Parliament which pass without much difficulty and if they become frequent with us it is like we will find the same remeid they are also evacuat by a simulat Action of fine and recovery whereby the purchaser pretends that he is unwarrantably dispossest of such Lands by the present Fiar who coludes and is silent having received a Price or other consideration so that these Sentences though Collusive must be irrevocable In Tailzies the Heirs Male or Heirs of Line of every Branch being the Issue of the Stipes of that Branch do succeed and therefore there is a good Caution by the Law of England that after the possibility of Issue is extinct the present Fiar can do no more as to the Fee but what a Liferenter could do The next Branch being ordinarly altogether strangers to that Fiar little care will be taken to preserve the Fee In the Tailzie of Stormount the whole Estate was not comprehended and it was distinctly provided that in case any of the Heirs of Tailzie for the time should contraveen that the Right should be divolved on that person who would succeed if the contraveener were dead But in such Tailzies formerly it was not so clearly ordered being only provided that the contraveener should lose his Right and the next Heir of Tailzie should have place whereby it remained dubious whether the next Branch of the Tailzie were meaned so that the contraveener losed his own Interest and all descending of him Or whether he losed the Interest of all descending of that Branch Or whether he losed only his own personal Interest wherein the design of the Constituter of the Tailzie might be dubious enough 59. To sum up this important Subject of Tailzies let us consider the effects thereof according to the several ordinary Tenors of the same and how far the Fiar or his Heirs of tailzie is bound up thereby we must then distinguish betwixt Tailzies having Clauses not to alter burden or alienat And these that are simple without any express restrictive Clause Secondly Betwixt Tailzies made freely and these that are made for onerous Causes Thirdly Betwixt these that have Clauses resolutive or irritant and these that have only such Clauses by way of Obligation Provision or Condition As to the first Case It is a general Rule that quisque est rei suae moderator arbiter every man may dispose of his own at his pleasure either to take effect in his life or after his death and so may provide his Lands to what Heirs he pleaseth and may change the Succession as oft as he will which will be compleated by Resigning from himself and his Heirs in the Fee in favours of himself and such other Heirs as he pleaseth to name in the Procuratory whereupon Resignation being accepted by a Superiour and new Infeftment granted accordingly the Succession is effectually altered yea any obliegement to take his Lands so holden will obliege the former heirs to enter and to denude themselves for Implement of that obliegement in favours of the heirs therein exprest and if the Superiour refuse to accept the Resignation altering the Succession a Bond of borrowed Money though granted only upon design to alter the Succession will be the ground of Adjudication of the Land and being assigned to the Fiar himself and to such heirs as he pleaseth the Superiour will be forced to receive him accordingly so that the first constituter of a Tailzie or any heir succeeding to him may change it at their pleasure unless the Tailzie be for an onerous Cause as when Tailzies are mutual then the first constitutors of the mutual Tailzies cannot alter the same although their Debts may affect the same yet no fraudulent or gratuitous deed can alter or evacuat such Tailzies and therefore a mutual Contract betwixt two brethren oblieging them that what Lands they should succeed to or acquire should be taken to the Heirs of their body whilks failzing to the Brother and the heirs of his Body c. though thereafter either Brother took their Lands otherways to their heirs whatsomever whereby Sisters having succeeded to one of these brothers they were decerned to denude themselves in favours of the other Brother January 14. 1631. Mr. John Sharp contra Helen Sharp But if the Cause onerous be of less import then to grant and continue a Tailzie it will import no more then once perfecting the Infeftment by such a Tailzie whereby the hope of Succession ariseth to these parties in whose favours the fiar is oblieged to take the Tailzy but he was not found oblieged to continue the same but that he might alter it thereafter without refounding the Money he got for granting it being but of that value as was equal only to the hope of Succession which behoved to be understood of alteration sine dolo July 15. 1636. Mr. David Drummond contra Drummond Heirs of Provision by Contracts of Marriage are in part ouerous being granted for a Tocher and the interest of the Wife concerned therefore they cannot be alterred by the Husband at his pleasure but do exclude all fraudulent or meerly gratuitous alterations as hath been shown Section fourty three But if there bean express Obliegement not to alter the Tailzie albeit that will not give Title to the Heirs of Blood of the present Fiar to quarrel his deed or alteration yet it will give interest to any other Branch of the Tailzie whether to the person nominat or his heirs to quarrel and reduce such alterations though it will not exclude alterations by Appryzing or Adjudication for debts truly borrowed by the Fiar and therefore a Tailzie of a sum of Money lent in thir terms to be payed to the Creditor and the heirs of his Body whilks failing to the Father and the heirs of hsi Body whilks failing to a person named and his heirs and assigneys whatsomever with a provision that the Creditor and his heirs should do no deed hurtful to the Tailzie nor the Debitor should not pay without consent of the heir