Succession 9. The Judicial Law in the case of the Daughters of Zelophehad Num. 6. 27. Determineth the order of Succession in Lands or Immoveables to stand as a perpetual Statute to the Children of Israel Thus the first degree of Succession is of all the Sons whereby the Daughters and their Descendents are excluded but the Sons do not Succeed equally For the first born had a double Portion of all that the Father had Deut. 21. 17. By which the eldest Son had twice as much as the other Sons So that the Heritage being divided in one Portion more then there were Sons of these the eldest had two and each of the rest one As if there be two Sons it divides in three whereof the elder hath two third parts and the younger one third part If there be three the Heritage divides in four parts whereof the eldest hath two fourth parts which is the half and each of the rest hath one fourth part 10. This Right of primogeniture was so secured that the Father could not preser any other Son thereto Deut. 24. v. 16. Failling Sons the inheritance passes to the Daughters equally For though the Text expresseth it to passe to the Daughter in the singular number Yet it is cleared by the context that all the Daughters are therein included for the Daughters of Zelophehad though more in number are found to have the said Right and to get an Inheritance among their Fathers Brethren by which it appeareth that the Right of Representation had place there for all the Daughters of Zelophehad were but to have that share which their Father would have had if he had been alive among his Brethren for they claiming the Right of their Father whom they show not to have been in the company of Corah thereby forefaulting his right So then right of Representation must take place amongst all descendents So that the Children of the Sons though these Sons survive not their Father would exclude the surviving Daughters or would come in with the surviving Sons not equally and in capita but in stirpes whereby they would succeed to the shares of their pre-deceased Fathers by Right of Representation 11. The third degree of Jewish Succession is failing Descendents the inheritance passeth to the Defuncts Brethren and these failing to his Fathers Brethren and these failing to the nearest Kinsman of his Familie that is the nearest Agnats on his Fathers side where all the male Agnats of the same degree are understood It doth not appear whether in this Collateral 〈◊〉 there be place for Representation and though there be no mention of the Succession of Women or their Issue but only of Daughters Some have thought from the paritie of Reason in everie degree failing the Males the Females are to Succeed and to exclude further degrees of Males as if there be no Brothers but Sisters these should exclude the Fathers Brother It may be also thought strange that in all this course of Succession there is no mention of the Succession of Parents 12. In answer to these doubts as to the first I conceive that in Collateral Succession there is also place for Representation so that the Brothers Sons as representing the Defunct Brother their Father would exclude the Fathers Brethren And so of the rest because it is said if there be no Brethren the Inheritance shall passe unto the Fathers Brethren which 〈◊〉 unto the nearest Kins-man and if there be no Right of Representation the Cousin-german or Father Brothers Son would exclude the Nephew or Brothers Son for Uncle and Nephew are never understood by the name of Cousins or Kinsmen but have that special nominate relation of Uncle and Nephew or Father and Brother Son and therefore the Brothers Son as representing the Brother must succeed and exclude the Fathers Brother 2. Cateris paribus Succession will certainly descend to the Brothers Son and not ascend to the Fathers Brother 13. As to the second doubt Ihold that only Daughters and their Issue do succeed and no other Females or their Issue the reason is First from the Text where failling Sons Daughters are exprest but failling Brothers Sisters are not substitute but Uncles 2. The Division and Succession and the Land of Canaan was Typical and was not to passe from Tribe to Tribe and therefore Daughters succeeding are appointed to Marry in their own Tribe because ordinarily they were to be Married when their Fathers succession did probably appear but this could not have been if Fathers Sisters and these of further degree had succeeded 14. As to the third concerning Succession of Parents it is sure Mothers and all Cognats by the Mother side being ordinarily of other Tribes and Families were for the reason now adduced excluded from the Succession The Text is clear that only Kins-men in the Family that is on the Fathers side succeed But the reason why there is no mention of Fathers c. May be because the Land of Canaan being Typical is fixed to Tribes and Families it uses not to passe by Testament or provision or to be acquired further then by Wodset to return at the Jubile Therefore among the Jewes Lands passed by the ordinar course of Legittime Succession and so came from the Fathers to the Children which presupposes the Father to have been pre-deceased and could not succeed By this Tract of the Jewish Succession it is clear that GOD by his Positive Law altered the effect of Equitie and of his Moral Law in succession For it hath been now shown from that place if Children then Heirs That all Children must needs be Heirs not by the Judicial Law but by Equity And yet by the Judicial Law not all Children are Heirs but Sons exclude Daughters and Females are excluded by Males of a far distant degree which necessarily infers that for expedience the course of Succession may be altered The like must also be in other effects of Equity which are in our power 15. The order of Succession in the Civil Law did exceedingly varie being in many points different in the Ancient Law of the twelve Tables in Honorarie Law introduced by the Edicts and Customs of the Pretors who had Authority to Supply and Correct the Ancient Law and in the Imperial Constitutions especially in the Novel Constitutions of Justinian they did all agree in this that the chief mean of Succession is the Will or Testament of the Defunct which they held so Sacred That all Pactions or Provisio s which might any way hinder the Free Liberty of Testing or any Act whereby Defuncts might be Restrained or Constrained in the free Disposal of their Estates were not only null but exclusive of such Persons from having any interest in the Defuncts Inheritance Yet were the Romans so sensible of the Natural Obligation of Parents to provide their Children that their midle Laws necessitat Fathers either to institute ther Children or expresly to exhaeridat or disherish them expressing their delinquencie of Ingratitude the kinds
Married Persons whether Male or Female do succeed So that Daughters of that Marriage will exclude Sons of another Marriage or Heirs of the Bodie of the Members of the Tailzie whereby there Collateralls or Ascendants are excluded And in proper Tailzies there are always divers Lines and Persons Male and Female substitute as Members of the Tailzie as when Infeftment beareth Lands to be granted to the Fiar and to the Heirs of his Body or to the Heirs Male of his Body or to his Heirs of such a Marriage which Failling to such an other Person Named and to the Heirs of his Body or to the Heirs Male of his Body c. And so to a Third or Fourth which all Failling to the first Fiar and his Heirs whatsomever or to return to the Superior or to any other Person and to their Heirs whatsomever And where such Persons and Lines are not Substitute it is not properly called a Tailzie but if it be simply to Heirs Male it is so specially Denominate all other Heirs which are not Heirs of Line or Heirs whatsomever retain the Name of Heirs of Provision the Chief whereof are Heirs of a Marriage which Failling the Husbands or Wifes Heirs whatsomever in which there is but one Blood or Line and not divers Persons and different Lines Substitute in these Tailzies the Person Nominat may Succeed and be served Heir of Tailzie though otherwise Incapable of Succession as Bastards as hath been shown in the former Title But the Persons Nominate are never the Immediat and fast Heirs in Lands but always the Fiars Heirs of his Body which Failling the Persons Nominate for if the Heritage should be granted for example to John and after his Decease to William and his Heirs John would be thereby Naked Liferenter and William Fiar who could not be served as Heir to John But if it were Granted to John and the Heirs of his Body which failing to William These failing William would be served Heir of Tailzie to John But this holds not in Bands or Securityes for Sums of Money for Parents do srequently take thier Bands and Infeftments for Security thereof to themselves they being on Life and after their Decease to such Children Nominat yet the Parents are Fiars and the Children are but Heirs Substitute So then all Succession with Us is either of Heirs of Line Male Tailzie or Provision Heirs of Line are also called Heirs General so also are Heirs Male and of Conquest and these may be served Heirs by a generall Service But other Heirs of Tailzie or Provision by Investiture cannot be served Heirs but by a Speciall Service serving them to such Particulars whereunto they Succeed by Infeftment or Provision Heirs of Line are also Called Heirs whatsomever because they are absolute without Limitation and in all cases where Heirs whatsomever is not specially altered by the Infeftment rights follow the Lineall Succession as among Heirs Male the same course taketh Preference except that Female Heirs are excluded as that first Descendents then Brothers c. do Succeed and Amongst Heirs of Marriages the Eldest Son doth exclude the rest and so in the Members of Tailzies We shall not need here to debate the Lawfulness or Expediency of constituting Heirs Male or of Tailzie or of Provision having now cleared that the first Ground and Rule in Equity is the Will of the Propriatar though he be Personally Oblieged to provide Competently for his own especially those of his Family And therefore though severall of our KINGS in their generall Revocations have Revocked Tailzies it can inferr no more but a Scruple in them and a Preserving of their Power against the course of Prescription But doth not infringe such Rights being Lawful in themselves The Expediency of Tailzies is the same with Primo geniture to preserve the memory and Dignitie of Families But as Primo-geniture for that end excludeth Females of nearest Degree Heirs Male excludeth them Simply and Heirs of Tailzie have had their Rise from Dissatisfaction with some of the Fiars Race or preference of them otherwayes then by the Propinquity of Blood Some have also Tailzied their Lands so as by Infeftments to Introduce a Primo-geniture among Familyes as the Law hath done among Males as if the Land were granted to the Fiar and the Heirs Male of his Bodie which Failling to the Eldest Heir Female of the Bodie without division and their Heirs carrying the Arms and Name of the Family The intent of these Heirs of Provision is also to preserve the Unity and memorie of the Family To come now to the Heirs of Line the Law hath ordred them thus first the Eldest lawfull Son and his Descendents in order by Right of Primo-geneture excludeth all other Descendents Male or Female Failling Sons the Daughters and their Descendents do all succeed Equally except in Rights Indivisible which fall to the Eldest Failling Desendents the next Degree is of the next immediat Brother German and his Descendents and among Middle Brethern the immediat Elder Brother succeedeth in Conquest whereunto the Defunct did not nor could not succeed as Heir but in all others the immediate Younger Brother succeedeth and therefore is called the Heir of Line and the other the Heir of Conquest If the Fiar be a Woman her Brother German excludeth Sisters German and of her Brothers the immediate Elder Brother succeedeth inConquest and the immediat Younger in heritage Failing Brothers German Sisters German and their Descendents exclude both Brethren and Sisters by the Fathers side only June ult 1629. Mr. Robert Cuningham contra Multray Failling Brothers or Sisters German Brothers by the Fathers side succeed to the Defunct whether Male or Female the immediat Elder in Conquest and the immediat Younger in Heritage Failing all Brothers and Sisters the Father or other Masculine Ascendent of his Line succeed to the Defunct whether Male or Female and exclude the Brothers or Sisters of that Ascendent as a Grand-grandfather excludes his Brethren Fathers Brethren to the Defunct Failling Ascendents the Fathers Brothers and Fathers Sisters and their Descendents succeed in all points as Brothers and Sisters the double Blood excluding the single Blood and the immediat Elder Brother succeeding in Conquest and the immediat Younger in heritage and all Failling the Grandfather and Failling him his Brothers and Sisters the same way And so upward till there can be any Propinquity of Blood proven which all Failling the King taketh place as Last Heir 34. In this Line of Succession observe First that there is no place for Adopted Children or their Issue but only for the Naturall Issue of the Vassal Which cannot be changed by a Voluntar Act of Adoption without consent of the Superior in the Investiture neither is Adoption in use with us in any case 2. These Naturall Heirs must also be Lawfull whereby Bastards are excluded who are such appeareth by the former Title 3. There is no place for Cognats as to the Mother Grandmother or other Feminine
renunce in the second instance after Decreet obtained against him Or in the first instance when the Ground and Title of the Pursuite instructs the debt then there needs no other decreet cognitionis causa but the Pursuer Protesting for adjudication the same will be admitted summarly Adjudication it self is a most simple and summar Process whereby the heir renuncing and the debt being established as said is the whole heretage renunced orbenefite whereto the heir might succeed is adjudged by the Lords to the pursuer for satisfaction of the Defuncts obliegement wherein the heir renuncing is again called to sustain the part of a defender which is only for forms sake for he can propone nothing and one single summonds is sufficient without continuation because it is accessory to a prior Decreet as Dury observes but expresseth not the Parties Feb. 26. 1629. And all is adjudged periculo potentis whatsoever the Pursuer pleaseth to Lybel alledging that it might have belonged to the heir entring Yea though any Party having Interest should compear and instruct that he hath the only Right and the Defunct was fully denuded it would be incompetent hoc loco Spots adjudication Cairncorss contra Laird of Drumlanrig 46. The reason is because the Adjudication is but periculo petentis and can give no Right unless the Defuncts Right competent to the heir renuncing be instructed Neither can the adjudger who is a stranger to the debitors right be put to dispute the same in obtaining the adjudication yet the Lords admitted a singular successor to propone upon his Infeftment that the Defunct was denuded and adjudged not the Property but all Right of Reversion or other Right competent to the appearand heir July 22. 1669. Alexander Livingstoun and Sornbeg contra heirs of Line of the Lord Forrester In this case the matter was notour to many of the Lords that the Lord Forrester having no Sons did contract his Estate with one of his Daughters to Leiutenent General Baities Son who was thereupon publickly Infeft But the reason why appryzings and adjudications have past so much at Random is because the appryzings have deboarded from their ancient form by an Inquest knowing the Lands which therefore would never have appryzed Lands but where the debitor was commonly repute Heretor or Heretable Possessor But when appryzings came to be deduced by Sheriffs in that part constitute by the Lords by Dispensation at Edinburgh where persons were made the Inquest who knew nothing of the Lands then all became to be appryzed which was claimed and though the appryzer would not pay a years Rent for entering him in Lands where he had no probability of Right in his debitor the greatest inconvenience was as to the Lands holden of the King it was little addition of Expences to passe one Infeftment for all and other Superiours getting a years Rent salvo jure they were not suffered to Contravert But now Adjudications being in place of Apppryzings and passing upon Citation before the Lords it is not like they will adjudge Lands where the Debitors are not at least repute heretable Possessors or Liferenters for now the Lords are in place of the Inquest And albeit as they suffer Decreets in absence to pass periculo petentis so they will suffer Adjudication to pass of all that is Lybelled but if any other shall appear and make it appear that they and their Predicessors have been holden and repute Heretable Possessors and that there was no Right repute to be in the Debitor the Lords might readily superceed to adjudge till some evidence were given of the Interest of the debitor Seasines having been now Registrat since the year 1617. And likewise Reversions though adjudicationes of these might more easily pass then because no Infeftment would follow But where Lands are adjudged and Infeftments follow there arises thence grounds of pleas and pursuits especially for Reduction and Improbation upon which all the Heretors of the Lands contained in the Infeftments would be oblieged to produce their Rights and open their Charter Chests to parties having no pretence to their Estates The adjudication was sustained of all Lands generally without condescendence Decemb. 14. 1638. Corser contra Dury But where the Defender appeared not or contraverted it not in the adjudication Process for Mails and Duties of the Lands adjudged was sustained in the same Libel Ibidem And in adjudication of a Reversion the Declarator for redeeming the same was sustained in the same Lybel July 8. 1629. Dury contra Kinross 47. In adjudication all is competent to be adjudged Which should have befallen the heir entering as Lands Annualrents Reversions Tacks Liferents and all Heretable Bonds yea not only these Rights themselves but the bygone Rents and Duties thereof preceeding the adjudication and after the Defuncts death may be adjudged and pursued against the Possessors and Intrometters in that same Process because these are competent to the Heir renuncing and there is no other way to attain them as in the case of appryzings which are not extended to bygones seing these may be arrested and pursued as Moveables belonging to the Debitor as was found in the said case Corser contra Dury Decemb. 14. 1638. And likewise heirship Moveables for the same reason are competent in adjudications but not against other Moveables of the Defunct which may be confirmed Spotswood Caption Isobel Hagie contra her Daughters Novemb. 24. 1638. Campbel contra John Baxter and so it is not competent against an Heritable Bond made moveable by a Charge Jan. 30. 1627. Couper contra Williamson and Bogmiln Yet if an Heritable sum should become moveable after the Defuncts death as by an order of Redemption it would be competent by adjudication seing it could be reached no other way In adjudications it is only competent to Creditors to appear having like Process of adjudication depending for all will be brought in pari passu who are ready before Sentence with the first pursuer Hope adjudications Stuart contra Sturt 48. If the adjudication be of Lands or Annualrents requiring Infeftment the Superiour will be compelled to receive the adjudger though a stranger his Vassal though he do not instruct his Authors Right salvo jure cujustibet suo Feb. 9. 1667. Elizabeth Ramsay contra Ker. But as to the years Duty payable by the adjudger to the Superiour for their Entry though the Lords thought it equitable that it should take place as well in adjudications as appryzings the reason being alike in both yet found not sufficient ground whereupon to decern it seing the said years Rent is exprest in the Act of Parliament 1469. cap. 36. And the Composition of the Superiour for receiving appryzers Parliament 1621. cap. 6. Yet in the next Act of the same Parliament anent adjudications there is no mention of Composition to the Superiour though the Act relateth to the former Act anent appryzings and therefore they thought it not competent to them to extend the said composition ad pares casus where
before Yea Citation before the 5. years and Inhibition in the 5. years with a subsequent Security was found sufficient to take off the benifite of this Act July 23. 1666. Earl of Southesk contra Marques of Huntlie This priviledge is not competent by Exception or Reply offering to prove 5. years possession but by a reture upon a Commission served by an Inquest July 13. 1666. Sr. Henrie Hoom contra Sr. Alexander Hoom. In this Statute it is also provided that where there were Tacks or possessions of Lands or Teinds possessed by the forefault Person in respect that the rights thereof might also be abstracted that the King and his Donatar should continue in that same possession for sive years without any accompt for the profits thereof and longer if a Right be instructed of the forefault person And if a Fewer be forefault the Land is not lyable for the Feu dutie preceeding the Forefaulture because the discharges thereof might have been abstracted Possession for feuer then 5. years by the Forefaulted person was found sufficient to continue for 5 years though no Tack was instructed Jannuary 24. 1667. Sr. Henrie Hoom contra Sr. Alexander Hoom. 36. It is also declared in this Statute that the Forefaultur of the appearand Heir carries therewith the right of the Lands to which he might succeed though he were never entred Heir nor Infeft whereof Craig mentions a case Lib. 2. Dieg. 8. That the Daughters of the Laird of Laisindrum were excluded from their Succession to their Goodsir because their Father was forefault though he was never received nor infeft in these Lands 37. Craig in the forecited place moveth but determineth not this question whether the Forefaulture inserreth a Corruption of the Blood of all the Descendents of the Forefault Persons whereby till they be restored they are incapable of any Succession though descending to them by the Maternal Lyne This Corruption of the Blood is frequently in Fngland where persons are specially attainted and convict of Treason And sometimes with us it is called dishabilitation and is a part of the Doom or Sentence that the Successors of the Person convict shall be incapable of Lands Estate Honour or Office Yea then Fame and Memorie is sometimes condemned and their Surname abolished as was done in the Forefalture of the Earl of Gourie But it is not consonant to our Customs that Forefaulture in other cases should infer this Corruption of Blood First because of the Multiplication of cases to which Forefaulture is now extended as to Thest on 〈◊〉 men and false Coyn. 2. If none of the Descendents of 〈◊〉 persons were Capable of Succession to any person that could not be by reason of any speciality in the matter of Succession but of something in their person by reason of the Forefaulture excluding them thence which would not only take place in Heritage but in Moveables Yea the Oye or farther Off-spring of the Forefaulted person could not succeed to their ownimmediat Parents which would inferr that they could be capable of no Goods or Means but the same would be instantly Confiscat 3. Though Forefaultures in Scotland have been very frequent the off-pring of such have ordinarily acquired Lands and Goods and their Children Succeeded them therein without obtaining Restitution of their Blood So that this Corruption of the Blood is rather to be thought a Speciality in some Attrocious Treasons by the tenor of the Doom of Forefaulture then a general consequence thereof 38. But whereas it hath been said that the appearand Heir being Forefaulted the King hath right to the Heritage to which he might succeed It may be Questioned whether that my be extended to the appearand Heir if he be Forefaulted during his Predicessors Life Or if it be only in the case that the Heir apparent is forefaulted after the death of his Predecessor Where de presenti he may be Heir there is no doubt if the person forefaulted should be fugitive and survive his Predecessor But the Heritage accresing to him wherein he might de presenti infeft would fall under forefaulture though he were not actually infeft And it seems no less clear that being forefaulted if he should die before his Predecessor that his brother or Collaterals might succeed to their Father or any other to whom the forefaulted person if he had survived them would have succeeded It is more doubtfull whether his descendents could if any were for these would Exclude the Collateralls And there seems no reason to exclude them from their Grandfathers Heritage not being dishabilitat And seing I have not found it extended further I conceive it more favourable that the Heir appearand dieing before his Predecessor should not hinder his Descendents to succeed to that predecessor But unless the forefaulture did incapacitat the Predecessor to dispose upon his own estate the forefaulture in that case would be improfitable Yet seing we have no complaints of exhaeredatione in Scotland But that Parents may freely dispose of their Estates at their pleasure it would be hard to bind up the Parent more in Relation to the Fisk then tohis own Child unless fraud to prevent the effect of the forefaulture without a rationall cause do appear 39. For the further Security of the King and his Denatar it is provyded Par. 1594. cap. 202. That no Letter of Pension Factory Band or Assignation granted by any forefault person shall be valid unless it be confirmed by the King or authorized by Decreet of an ordinary Judge obtained before citation in the Process of Forefaulture which seems to insinuate that Creditors should be satisfied out of the forefault Estate but it will reach no further then the Moveables fallen by forefaultnre which seems to be affected in the same way as falling by Single-escheat the full Dominion in both being the Kings but with the burden of admitting the diligence of Lawful Creditors before Declarator but I have not observed this practiced in moveables of forefault persons The reason of this Statute appeareth by the Act immediately preceeding whereby a former Act of Parliament in favours of the Vassal of forefault persons is resoinded and appointed to be delet out of the Books of Parliament which rescinded Act though it be not Extant but delet as aforesaid hath affected forefault Estates with the debts of the forefault person and with the subaltern Infeftments granted by forefault persons not confirmed And therefore such Rights being Constitute by a Law then standing could not be derogat by a subsequent Law And therefore it was 〈◊〉 to Caution by the foresaid Act 202. That Simulat or antedated Rights might not affect Estates Forefaulted before the said rescissory Act. 40. Sentence of Forefaulture being pronunced is declared Irreducible upon any nullitie in the process upon which it proceeded till the 〈◊〉 be remitted by the King or the partie tryed and acquite thereof But restitution shall only be granted by way of Grace to the parties forefaulted or their Posteritie Par. 1584.
trust reposed in him and the like hope of his Issue Patrene sequitur sua proles It was at first so simplie done that the entering of the Vassall in Possession in 〈◊〉 of his Peers was a sufficient Constitution of his Right and the Investiture signified then not so much the Act constituting as the Write evidencing the Fee in the which case from the nature of the right it is consequent first that none should succeed in the Fee but such as were fit for the Militarie Services and so Women and their Issue were utterlie excluded and all the Males Succeeded equally 2. In Proper Fees none could Succeed but the Lawful Issue of the first Vassall whose Person and Issue was specially chosen among which first the Male Issue of the Vassall who dyed last infeft according to their nearness do succeed with the right of Representation and so not per capita but per 〈◊〉 next unto the Descendents among the Collateralls Brothers and their Male Issue and among these the Brothers German and their Issue exclude the Brothers by one blood and after Brothers Father Brothers and their Male Issue And so other Agnats of the last deceased being alwayes of the Male Issue of the first Vassall which being extinct the Fee ceaseth and returneth to the Superior not as the Vassalls but by vertue of that Directum Dominium which still remained in the Superior In this course of Feudall Succession there could be no place to the Vassalls Father or other Ascendents because if the Fee were a new Fee or Conquest by the Son his Father nor his Brethren could not Succeed as not being of the Issue of the first Vassall and if it were an old Fee not purchased by the Son but whereunto he did succeed it doth necessarly presuppose the Death of the Father and other Ascendents to whom the Son could not be Heir nor succeed till they were Dead But when by the course of time Fees declined from the proper nature of Ancient Fees and the Investiture did express the Tenor and speciall nature thereof the Tenor of the Investiture became the first rule of Succession in such Fees and came in place of the Testament or Will of the Defunct for seing the Vassall could not alter the Succession without consent of the Superior he could not effectually Test thereupon 21. In the next place what is not the Express Will of the Vassall and Superior by the Tenor of the Investiture is regulate by their Conjectured Will from the nature of the Fee and Propinquity of Blood So if the Fee be Originally granted to a Woman her Issue 〈◊〉 succeed as well as the Male or if the Reddendo be not Militarie Service but Money Grain or Services competent to a Woman or Manual Services wherein there is no choise of Persons as Tilling c. And so generallie Fees holden Blench or Feu In all these Woman may Succeed because they are not excluded by the Nature of the Service 2. If the Fee be Granted to Heirs whatsomever not only doth the Issue of the first Vassall but all other his Lawfull Heirs or the Lawfull Heirs of the last Deceassing Vassall whether of the Issue of the first Vassall or not do succeed And now Fees being ordinarily acquired by Sale Excambion or the like Onerous Title Feuda ad instar 〈◊〉 sunt reducta Heirs whatsomever are commonly exprest and if they were not they would be understood for that which is Ordinar is Presumed 22. But now Custome hath altered the Course of Feudall Succession and given the Prerogative of Primogeniture to the eldest Male of the nearest Degree to the Defunct Vassall who excludes not only the Females of that Degree but the Males also and their Issue not only among us but in England France and most other Nations and therefore before we descend to our own Customes it will be fit to consider the Justice and Expediency of this common Custome in Feudall Succession The Lawfulness of Primogeniture will be easily evinced from what hath been said already upon Succession wherein the will of the Proprietar is the Rule even in Equity and though he be Naturally oblidged to provide for his own that Personal Obligation reatcheth him but not the Inheritance nor doth it Oblidge him to make these to Succeed but to give them Competent Provisions and therefore the Judicial Law which is the Positive Law of God evidenceth sufficiently the Lawfulness and in some Cases the Expediency of altering the Natural Course of Succession and therefore not only the Male Issue is thereby preferred to the Female All the Females are utterly excluded but only Daughters that the Inheritance may remain within the Tribe and the Preference of Males is because Femoles are less fitted for Management of Lands and therefore are to have a Portion which the Judiciall Law calleth the Dowry of Virgins The Expediency of Primogeniture is partly Publick and partly Private The Publick Expediency is that the Estate of Great Familyes remaining intire and undivided They with their Vassals and followers may be able to defend their Country especially against Sudden invasions for with us in France Polland and many other Places the Great Families are the Bullwarks of their Countrey Having 〈◊〉 to Maintain them selves and their Followers for some time without Standing Armies Constant Pay and Subsidies The Private Expediency is for the Preservation of the Memorie and Dignitie of Families which by frequent Division of the Inheritance would become despicable or forgotten Primogeniture taketh Place in Germanie and France in proper Fees like unto Our Ward-holdings but not in Allodialls and Lands holden Freely or for Cane or Rent Gudelinus de Jure novissimo lib. 2 cap. 13. relateth that in many of the German and French Provinces the Male gets two third parts and the Females one in the other Provinces the Children of the first Marriage succeed in all the Lands the Parents had during that Marriage and so in order the Children of after Marriages And in other Provinces and Cities the Youngest Son Succeedeth in all Excluding the rest and Generally Bastards are not admitted even to the Succession of their Mothers and in England though Primogeniture have the Prerogative by the Common Law yet it hath an Exception of the Custom of Kent where Primogeniture hath no Prerogative And therefore that Custom is called the Gaball kind of Kent which is as much as to give to all the kind The Customs of England and Germany are contrary in this That in Germany Parents come in the next place after Descendents and exclude Brothers and Sisters and all other Collateralls but in England Parents do never Succeed so if the Defunct have no Issue Brothers nor Sisters nor their Issue the Fathers Brother Succeeds and excluds the Father though his Relation be by the Father and much further distant then the Father And it sometimes falls out that the Uncle Succeeding dying without Issue the Father Succeeds his Brother and so Accidentally and
himself and the heirs of the first Marriage and thereafter resigned and Infeft himself and the heirs Male of the second Marriage which failling his nearest heirs whatsomever these heirs Male the second Marriage failled And therefore not the Daughter of the first Marriage only but she and the Daughters of a third Marriage Succeeded by the second Infeftment as his heirs whatsomever substitute to be his heirs of the second Marriage Craig hath the Case but otherways observed lib. 2. dieg 14. Where a person had provided his Lands to the heirs of three several Marriages of each whereof there survived a Daughter The question was which of the Daughters should succeed Whether the first as having the first Provision or the last having the last Provision The parties were three Sisters Aikmans In which the Lords admitted all the three Sisters as heirs Portioners and so confounded the Provisions being all equal and about the same thing which must be the Reason and not that which is there rendered Because the Defunct notwithstanding of these Provisions in Favours of heirs might have Disponed effectual to a Stranger And so likewise to his own Children of another Marriage For that Reason would have excluded the Daughters of the first Marriage and preferred the Daughter of the last Marriage And as hath been shown Tailzies of Provisions upon an anticedent onerous obligation Such as is Marriage hinder the Fiar to dispone or provide the same to his heirs of Lyne representing him simplie and must fulfil his Obliegment Albeit his Disposition to Strangers not so representing him will be effectual And therefore Craig in that same place observeth in the case of Isobel Barron who being heir to her Father of his first Marriage by which it was provided that the heirs of the Marriage should Succeed to all Lands conquest during the Marriage And thereafter having a Son of the second Marriage who was his Fathers heir of Lyne to whom his Father Disponed or provided a Tenement acquired during the first Marriage Yet the said Isobel as heir of that Marriage recovered that Tenement from her Brother as heir of Lyne But the main difficultie remaineth when the obliegment in favours of the heirs portioners are un-equal for when they are equal whether they become extinct by confusion or not it is alike But if they be so extinct when they are un-equal there will not be an equal suffering or abatement but the greatest obliegment will be extinct as well as the least Neither can such obligations be wholly extinct by confusion but only pro rata So that if there be three heirs Portioners for example the obliegment granted to every one of them can only be extinct for a thirdpart because they are but heirs in a third part and as to two third parts each two of them are debitors to the third And if the obligation exceed the value of the heritage such of them as find themselves losers if they enter heirs may abstain and renounce and they or their Assigneys may pursue any of the rest that shal enter for fulfilling of the Defuncts obliegments but if they be considerat when all the obligations joyntly exceed the value of the Estate they will all Renounce and Assigne there obliegments and their Assigneys will be preferred according to their dilignece without consideration of the priority or posteriority of the obliegments but if they happen to enter or when their provisions are not Personal to themselves nominatim but as they are heirs of Provision and therefore necessarily require that they must be heirs before they can obtain their Provisions then the obliegments or Provisions of each Portioner are extinct as to their own proportion but they have like Action against the others heirs portioners for there proportion as other Creditors have the point will be clear by example if three Sisters were provided by the Father to un-equal Portions The first to 15000. Merks the second to 12000. Merks the third to 6000. Merks and the Defuncts whole Estate had only been worth 18000. Merks All of them entering the case would be thus The eldest would succeed to 6000. Merks of the heritage for her part and the second would be lyable to her for 5000. Merks as the third of the her provision to whom she would also be lyable for 4000. Merks as the third of the seconds Provision which being compensed the second would be lyable to the first in an 1000. Merks dc claro In like manner the first would be lyable to the third in 2000. Merks and the third would be lyable to the first in 5000. Merks which being ballanced the third would be debitor de claro to the first in 3000. Merks So the Interest of the first would be 6000. Merks as her own portion and one out of the Second and Three out of the Thirds Portion being in all a 10000. The second falleth 6000. as her share out of which she is lyable in 1000. Merks to the eldest and the youngest is due to her de claro 2000. Merks whereby her interest will be 7000. Merks the youngest Portion will be 6000. Merks out of which she is due to the eldest 3000. Merks and to the second 2000. So there will remain only free to her 1000. Merks This may clear the case as to liquid Sums and as to Dispositions or Provisions of Lands or other obliegments in facto These or the Interest or Value will be the same way effectual amongst the Heirs Portioners as if they had been made to Strangers Except where the same Disposition or Provision is made to divers of them For then either being equally oblieged to others as representing the Defunct the same become void and in-effectual protanto As was found in the case of the Sisters Aikmans But since the Act of Parliament 1621. against fraudulent Dispositions the first Disposition or Provision constituting that Party Creditor may give ground to Reduce a posterior Disposition of the same thing to another of the Heirs Portioners as being without a Cause onerous after contractiong of the first debt but that will not hold in Bands for Sums of Money all which will have their effect as is before said Neither will it hold when the Provision of Lands provideth the Party provided to be Heir for thereby the party cannot Quarrel that Predecessors Deed Otherwayes the first Obliegment or Disposition to any of the Heirs Portioners nominatim may Reduce any posterior Disposition to others of the Heirs Portioners Two Daughters being served both Heirs Portioners to their Father in some Teinds but one of them Succeeding to her Brother who was Infeft as Heir to his Father in Lands excluding the other Sister who was not Sister German to her Brother by both Bloods and both being pursued for their Fathers Debt they were not found lyable equally but proportionally according to the Interest they Succeeded to the one being only immediat Heir to her Father in a Right of Tiends wherein her Brother was not served
Husband was found Feer and therefore the Creditor apprising excluded the Wife and her heirs January 29. 1639. graham contra Park and Jarden And a Bond providing a Sum to a Man and his Wife in Conjunctfee and the Bairns procreat betwixt them which failing to two Bairns of a former Marriage nominatim containing a Precept for infefting the Spouse and the two Bairns named whereupon all the four were infeft yet the Father was found Feer and all the Bairns of the Family Male and Female equally were found heirs of Provision and the two Bairns named were found Heirs substitute failing the Bairns of the Marriage January 14. 1663. Thomas Beg contra Sir Thomas Nicolson And a Bond bearing a Sum borrowed from and payable to Man and Wife and longest liver of them two in Conjunctfee and to the heirs betwixt them and their Assignys Which failing to the Heirs and Assignys of the last liver found to constitute the Husband Feer and the Wife Liferenter albeit she was last liver and that her heirs of Line were found heirs of Provision to the Husband January 2. 1668. John Justice contra Mary Barclay his Mother A Tocher provided to the Husband and Wife the longest liver in Conjunctfee and Liferent and to their Bairns in Fee was found to make the Husband Feer and that the Father might alter the Substitution December 12. 1665. Mr. John Pearson contra Martine And generally in all Infeftments in Conjunctsee betwixt Man and Wife the Husband is always interpret to be Feer and the Wife Liferenter albeit the last Termination be the Wifes heirs who are heirs of Provision to the Husband unless the Right flow from the Wife originally as if she should resign her Lands in favour of her Husband and her self in Conjunctfee and the heirs of the Marriage which failing her heirs or if the Right did flow from the Wifes Father by a gratuitous Deed. But by the Contract of Marriage a Father oblieged himself to infeft the Husband Contracter and his Daughter in Conjunctfee and Liferent and the heirs betwixt them which failing the Daughters heirs and Assignys whatsoever And by the same Contract the Husband was obliged to provide all Lands that she should acquire or succed to to himself and Wife the longest liver of them two in Conjunctfee and to the heirs betwixt them which failing the one half to the Husband's heirs and the other to the Wifes heirs and their Assignys By both these Clauses the Husband was found to be Feer and the Wife Liferenter albeit the Tenement disponed by the Father was not nomine dotis yet there was no other Tocher July 2. 1671. Adam Gairns contra Isabel Sandilands Yet a Clause in a Minute of a Contract of Marriage obliging the Husband to infeft his Wife in Conjunctfee and Liferent in such a Barony named and obliging him and his Heirs and Assignys that all and whatsoever Lands or Sums of Money should be purchased by him during the Marriage that Security should be made in Liferent thereof as of theforesaid Barony to his future Spouse in case of no Issue of Children the one half of the said Conquest to be disponed upon as the Wife shall think fit the Conquest was found to be equally to the Husband and Wife and that she was Liferenter of the whole and Feer of the half in respect the Minute did not bear whose heirs should succeed and that the Conquest was all to be expected by the Wifes Means therefore she being Conjunctfeer that the one half of the Conquest should be disponed as she pleased she was found Feer of that half as not being a Faculty but a Power of Disposal importing Property June 27. 1676. Earl of Dumferling contra Earl of Callendar 52. There do many questions arise as to the Succession of Heirs of Provision by Clauses of Conquest in Contracts of Marriage The main question is what is accounted Conquest Whether that which is acquired and thereafter disponed be accounted Conquest either as to the Wife or to the Heirs or Bairns of the Marriage As to which it hath been shown before that such Provisions infer not only a Succession to the Heirs or Bairns of the Marriage as Heirs of Provision but thereby the Wife or Heir and Bairn of the Marriage have an interest as Creditors that the Husband or Father cannot ad arbitrium do Deeds prejudicial to that which is once acquired but the Husband is not thereby bound up from disponing to Strangers for causes onerous or to other Wives or Children for competent Provisions But he may not otherways intervert the design of those Provisions by taking the Rights to Wives or Children of another Marriage unlesse he have not means aliunde to provide them And therefore the Husband being oblieged to take all Sums acquired during the Marriage to to himself and his Wife inConjunct-fee having taken a Sum acquired during the Marriage in the name of his second Son his Relict was found to have Right to the Annualrent thereof July 16. 1625. Knox contra Brown The like where the Bonds were taken originally in the name of the Bairns leaving out the Wife March 14. Graham contra Representatives of her Husband But Clauses of Conquest of all Lands acquired during the Marriage do not extend to Lands acquired and disponed during the Marriage Yea Conquest of Lands was extended where there was Disposition without Infeftment with a burthen of a part of the Price upon the Disponer January 24 1629. Lady Rentoun contra Laird of Rentoun Spotswood Husband Countess of Dumfermling contra Earl of Dumfermling And where the Clause of Conquest bare Lands or Annualrents the same were extended to Bonds bearing Annualrent though without clause of Infeftment Feb. 20 1629. Douglas contra White And these Clauses are interpret strictly according to the tenor thereof for sometimes they only bear Lands Conquest sometimes Lands or Annualrents sometimes Lands Annualrents or Sums of Mony and sometimes also Goods or Geer in which case the Executors will be obliged to imploy moveable Goods and Sums for the Wife in Liferent and for the Bairns and Heirs of the Marriage in Fee These Clauses of Conquest do never extend to any thing whereunto the Husband succ eds as Heir or Executor unless Succession be exprest A clause of Conquest oblieging the Husband to take all Lands Annualrents and Sums conquest during the Marriage to himself and the Heirs and Bairns of the Marriage one or moe found to constitute all the Bairns of the Marriage Male and Female Heirs Portioners and that it was not alternative that the Husband might either take the Conquest to himself and the Heirs of the Marriage or to himself and Bairns of the Marriage at his option And therefore having taken a considerable Sum in favour of himself and the Heir of the Marriage who was his only Son yet after his Death his four Daughters of that Marriage obtained Decreet against their Brother to denude himself of their Shares
Husbands Revocation upon Death-bed subscribed by Nottars because of his Infirmity Hope Husband and Wife Earl of Angus contra Countess of Angus And a Husband was allowed to recall a Bond granted to his Wife bearing that he thought it convenient that they should live a part and therefore oblieged him to pay a Sum yearly for her Aliment albeit it bore also that he should never quarrel or recal the same as importing a Renunciation of that Priviledge February 6. 1666. Livingstoun contra Beg. Yea a Donation by a Husband to his Wife was found Revocked by a Posterior Right to his Children though it was not a pure Donation but in lieu of another Right and quoad excessum only seing it was notabilis excessus November 20. 1662. Children of Wolmet against Lady Wolmet And un Infeftment bearing Lands and a Miln was found Revockable as to the Miln it not being exprest in the Wifes Contract February 5. 1667. Countess of Home contra Hog This was extended to a Wifes accepting of an Infe ftment in satisfaction of her Contract February 12. 1663. Relict of George Morison contra his Heir It is also Revockable indirectly by the Husbands posterior Disposition of the Lands formerly Disponed to his Wife in Life-rent July 16. 1622. John Murray of Lochmaiben contra Scot of Hayning A Donation by Infeftment granted by a Man to his Wife beside her Contract found Revocked by an Annualrent out of these Lands granted to his Daughter pro tanto without mention of Revocation December 15. 1674. Mr. Robert Kinloch contra Raith It was also found effectually Revocked by the Husbands submitting of the Right of the Land wherein he had formerly gifted a Life-rent to his Wife and a Decreet Arbitral adjudging the same to another Nic. de Donat. inter virum uxorem Viscount of Annandail contra Scot. But Donations by a man to his Wife who had no former Provision nor Contract of Marriage found not Revockable being in satisfaction of the Terce due by the Marriage March 25. 1635. Laird of Louristoun contra Lady Dunipace The like November 22. 1664. Margaret Mcgill contra Ruthven of Gairn But where the Husband granted Infeftment of all that he then had there being no Contract of Marriage And thereafter a second Infeftment both Stante Matrimonio The first was sustained being in place of a Contract of Marriage but the second was found Revockable 23. of November 1664. Halyburtoun contra Porteous And a provision to a Wife having no Contract of Marriage was found Revockable in so far as it exceeded a Provision suitable to the Parties 27. of July 1677. Short and Burnet contra Murrays Yet the want of a Contract did not sustain a Donation by a Wife to her Husband to whom she assigned an Heretable Bond the Husband being naturally oblieged to provide for his Wife and not the Wife for her Husband December 15. 1676. Inglis of East-shield against Lowry of Blackwood And an Assignation to an Heritable Bond by a Wife to a third Party but to the Husbands behoove found Revockable by the Wife after the Husbands death even against the Husbands singular Successor for causes onerous the trust being proven by Write June 17. 1677. Margaret Pearson contra Mclane Yea a Donation by a Wife by Assignation of her former Joynture to her Husbands behoove found Revockable though there was no Contract unless the Husband had given a remuneratory provision January 22. 1673. Janet Watson contra Bruce And a Wifes consent to a Contract of Wodset of her Life-rent Lands with a back-tack to the Husband only found valid as to the Creditor but Revockable as to the Husband in relation to the back-tack declaring the same to belong to her for her Life-rent use that she might injoy the superplus more than the Annualrent June 28. 1673. Arnot contra Buta Donation by a Husband to his Wifes Children of a former Marriage was not found Revockable though done at his Wifes desire January 15. 1669. Hamiltoun contra Banes Nor by a Wife subscribing her Husbands Testament by which her Life-rent Lands were provided to her Daughter July 12. 1671. Marjory Murray contra Isobel Murray Such Donations are also annulled by the Wifes Adultery and Divorce As all Donations are Revockable for ingratitude Hope donatio inter virum uxorem Margaret Dowglas contra Aitoun A Bond conceived to a Man and Wife and her Heirs found a Donation by the Man whose Means it was presumed to be and Revockable by him after her death and a Tack taken by him to himself and his Wife in Life-rent was found Revockable by a posterior Tack thereof to himself and his brothers Son December 21. 1638 Laird of Craigmiller contra Relict of Gawin 〈◊〉 yet thereafter it was found in the same case January 30. 1639. that in respect the 〈◊〉 was set by a third person and that it did not appear to be by the Mans 〈◊〉 that the Back-tack to the Wife was not Revockable But a Donation betwixt Man and Wife altering their Contract of Marriage being done before the marriage it self was not found Revockable January 23. 1680. John Home contra John and George Homes yea where the Donation did bear date before the Marriage the Husbands Heir proving the Write antidated and that it was truely after the Marriage the Donation was therefore found Revockable July 24. 1667. Earl of Dumfermling contra Earl of Callender 15. To come to the Interest of the Husband and Wife after the Dissolution of the Marriage we must distinguish the Dissolution thereof which falls by death with in year and day from the solemnizing thereof and that which is Dissolved thereafter for by our Custome this is singular which is found no where else in the Neighbouring Nations that if the Marriage Dissolve within year and day after the Solemnizing thereof all things done in Contemplation of the Marriage become void and return to the Condition wherein they were before the same and so the Tocher returns back to the Wife or these from whom it came and she hath no Benefite or any Interest either in the Moveables or Heretables either by Law or Contract provided to her nor hath he any Interest in hers unless there were a living Child born which was heard cry or weep in which case Marriage hath the same effect as to all intents and purposes as if it indured beyond the year and this is extended to both the Marriage of Maids and Widows July 23. 1634. Maxwel contra Harestones And extended also to an Infeftment by a Husband to a Wife though it had no relation to the Marriage but was only presumed to be hoc intuitu November 16. 1633. Grant contra Grant and not only extended to the Wife and Husband and their Heirs but to any other person concerned Restitution being made hincinde of all done 〈◊〉 Matrimonii June 8. 1610. Laird of Caddel contra Elizabeth Ross yea a Disposition by a Father to a Son of his Estate in Contemplation of
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
falls by Reduction or nullity of Infeftments or retours 20. Burgage falls not in Non-entrie as to the Burgh or particular persons 21. The effect of the general Declarator of Non-entry 22. The effect of Non-entrie after Citation in the general Declarator 23. Exceptions against Non-entry as to the Feu-dutie or retoured mail 24. Exceptions against Non-entrie as to the full Rent 25. Whether Non-entrie after Ward requires Declarator 26. The Original of Relief 27. The Custom of England and France as to Relief 28. The quantitie of Relief with us 29. Whether Relief be due during Non-entrie 30. Whether Relief is due when the heir is entered whether the Fee be burdened with Conjunct-fee or Liferent 31. Relief stops not the heirs Seasine 32. Compositions for the Entrie of Appryzers or Adjudgers 33. The Original of Ward 34. The effect of Ward as to the heirs person 35. The effect of Ward as to the fee. 36. The restrictions of Ward 37. The value of the Marriage of heirs of Ward-vassals 38. The true interest of Superiours in the Marriage of their Vassals 39. The single value of Marriage not penal but favourable 40. Double value penal and unfavourable with the exceptions against it 41. Single value found due where the heir was Married before his Predecessor died by precipitation 42. The quantity of the single value in heirs male or female 43. Marriage is debitum fundi 44. It belongs to the eldest Superiour 45. The Royal Prerogative prefers the King to all others as to the Marriage of the Vassal 46. Marriage is due by the heirs of Appryzers 47. Exceptions against the value of marriage 48. The rise of Liferent-escheat 49. It extends to all kinds of Liferents 50. Liferents of fees not having Infeftment or not owing fidelity to a Subject belong to the King 51. Liferent escheat of sub-vassals to whom they belong 52. Liferent Escheat is not excluded by voluntary Infeftments after Denunciation not being for implement of a special Obliegement to Infeft before Denunciation 53. Liferent Escheat is excluded by Appryzing for debts anterior to the Rebellion there being Infeftments or Charge in cursu rebellionis 54. Liferent Esche it extends not to Burgage or mortification 55. But extends to Ministers Stipends 56. Liferent Escheat is made Effectual by Declarator HAVING now shown what is the interest of the Vassal in the Fee it will be the more easie to find out what the Superiours Right of the Superiority retaineth for what is proper to the Fee and is not Disponed to the Vassal is reserved to the Superiour and it is either Constitute as belonging to the Superiour constantly or casually 1. The constant Right of the Superiour standeth mainly in these particulars First Superiority it self is dominium directum as the Tenentry is but dominium utile as before is shown and therefore the Superiour must be Infeft as well as the Vassal and that in the Lands and Tenement it self without mention of the Superiority which followeth but upon the Concession of the Fee in Tenentry though sometimes through the ignorance of Writers Infeftments bear expresly to be of the Superiority 2. Only the Soveraign Authority as the common Fountain of all Rights of the Ground needs no Infeftment but hath his Right founded in jure communi and is not Feudal but Allodial and when the Right of Lands fall to the King by the Casuality of his Superiority as Forefaulture Recognition Bastardry or last heir if the Lands be holden immediatly of the King they are ipso facto consolidat with the Superiority and the Declarators required thereanent do not Constitute but declare the Kings Right without prejudice of what is consumed bona fide But where they are not holden immediatly of the King the Right thereof is perfected by Gift and Presentation whereby the immediat Superiour is oblieged to receive the Donatar by Infeftment like to that of his former Vassal yet the Kings Right by the Casuality though it be not perfected is real and effectual against all singular Successours whereby deeds of Treason and Recognition being in Facts ordinarly proven by Witnesses Purchasers cannot be secured by any Register and therefore must secure themselves by the Kings Confirmation novo damus But where the King succeeds in any Fee to a Subject as to Property or Superiority before he can alienat the same he must be served Heir in special thereunto so King CHARLES the first was served Heir to Queen Ann his Mother in the Lordship of Dumfermling in which King James Infeft her in Fee to her and her Heirs by a Morning-gift the first day after his Marriage with her and King Charles the second was served Heir to Charles Duke of Lennox in the Earldom of Lennox In which Service the Chancellour and fourteen of the Lords of Session were the Inquest the youngest Lord being left out because there could be no more but fifteen But the King needs no Infeftment upon such Retours but if he acquire any Lands holden immediatly of himself the Instrument of Resignation must be Registrat and if holden of a Subject there ariseth no real Right to a Donatar till he be Infeft upon the Kings Presentation and his Seasine Registrat by both which the certainty of Land-rights is preserved 3. Secondly Superiority carrieth a Right to all Actions following the Land against any other then the Vassal for seing Superiours are Infeft in the Lands they can only be repelled from such Actions by the Rights granted to their Vassals but by no others and so may remove Possessors who can show no Right this was found though the Superiours Infeftment bore him only to be Infeft in the Superiority of the Lands November 19. 1624. Lag contra his Tennents 4. If a Superiour become Fiar by Succession or Acquisition for Establishing the Property in his Person he may either be Infeft upon his own Precept or the Kings November 26. 1668. Daughters of Mr. Robert Mortoun 5. But a Superiour cannot interpose betwixt himself and his Vassals by Infefting another in the Lands to be holden of himself Such infeftment was found null by Exception January 30. 1671. Dowglas of Kelhead contra Vassals Superiours must receive and Infeft their Sub-vassals upon the refusal or incapacity of the Vassal and may at any time after receive the immediat Vassal or his Successour or another if the immediat Vassals Right be extinct or acquired by the Superiour which is no unwarrantable Interposition which is repelled as contrary to the Nature of the Feudal Contract and Right it being inconsistent that the Superiour should both give his Superiority to another and claim it himself Dans retinens nihil dat And if that were allowed interposed Vassals might be infinitely multiplied November 26. 1672. Earl of Argyle contra Mcleod in which case the late Marquess of Argyle being forefault Mcleod who was Argyles Vassal was retoured and Infeft in the Lands as holden immediatly of the King which did not hinder the King to Interpose this
Bruce contra James Bruce This annualrent was not for security of a Stock The like was found of a Liferent Annualrent June 18. 1663. Margaret Fleming contra James Gillis 14. Annualrents as to bygones are moveable and so arrestable and belong to Executors December 15. 1630. Ogilvie contra Ogilvie Yet it will be more competent and suitable to pursue it personally against intrometters with the Rents or Postessors then by a real Action of poinding the ground Annualrents are supprest by Wodset of the Land or other more noble Right in the person of the Annualrenter unless that Right were evicted 15. An Infeftment of Annualrent redeemable was found extinct by a Renunciation registrat in the Register of Reversions and that against a singular Successor though there was no resignation of the Annualrent January 7. 1680. John Mcclellan contra Mushet An annualrent was also found extinct by the annualrenters intrometting with the Rents of the Lands out of which the Annualrent was payable equivalent to the principal Sum for security whereof the annualrent was constitute which intromission was sound probable by witnesses though it was silver-rent Feb. 4. 1671. Wishart contra Elizabeth Arthur And therefore singnlar Successors succeeding in annualrents either by voluntary Disposition or by Apprising or Adjudication cannot be secure by inspection of Registers as they may be for Lands but they run the hazard of satisfaction of the principal Sum for which the Annualrent is granted wherewith it falls in consequence For no provident man will buy an annualrent given for security of a principal Sum but either upon necessity for satisfying a prior debt or upon great advantage in both which cases he should take his hazard Scire debet cum quo contrahit as all Purchasers of personal Rights must do Pensions resemble Annualrents or the seuda ex camera or ex cavena mentioned by the Feudists for thereby a yearly Rent is constitute to be payed out of the Constituents Lands generally or particularly Yet these Pensions not having Infeftment have but the nature of Assignations and so are not valid against singular Successors 16. Except only Ecclesiastick Pensions constitute by Prelates which are valid against their Successors in Office but not unless they be cloathed with Possession or Decreets conform in the Constituents life Par. 1592. cap. 137. And so a Pension granted by a Bishop with power to assign was found valid to the Assigney after the first Pensioners death against the succeeding Bishop and to be no dilapidation July 21. 1625. Minister of Kirklistoun contra Patrick Whitelaw yea though the Pension bore a power to assign etiam in articulo mortis December 17. 1628. Chalmers contra Craigievar But in this case the Pensioner granting Assignation reserving his own Life-rent or to take effect after his death whereby both might at once have interest therein the Assignation was found null by exception though having Decreet conform and thirty years possession The like Hope Assignation Abernethie contra Lady Drumlanerk But now by the Act of Par. 1606. cap. 3. Archbishops and Bishops are disabled to grant Pensions to affect their Benefices further then themselves have right to the Benefice but do not prejudge their Successors in Office Yet Pensions granted by beneficed persons are not only due during their life but out of their annat after their death February 28. 1628. Bairns of the Bishop of Galloway contra Andrew Couper 17. Pensions granted by secular persons though they contain Assignations to the duties of the Lands specially and have Decreet conform were found ineffectual against singular Successors in the Land July 9. 1629. Urquhart contra the Earl of Caithness December 11. 1662. Andrew Clappertoun contra Laird of Ednem neither against the Lady Tercer of the Constituent March 27. 1634. Countess of Dumfermling contra Earl of Dumsermling A Decreet conform being obtained against the granter of a Pension his Tenants and Chamberlains is effectual against subsequent Chamberlains without new Decreet or Transference yet must be transferred against the Constituents Heir and his Chamberlain though it would be valid being an Ecclesiastick Pension against his Successor December 7. 1630. Earl of Carrict contra Duke of Lennox Spots hic Alexander Weyms contra Chamberlain of the Duke of Lennox A Pension bearing for love and special service done and to be done was found effectual though the Pensioner removed and did not that service his removal being necessary by transportation March 25. 1629. Doctor Strang contra Lord Couper The like of a Pension granted to an Advocat for services done and to be done which was found valid during his life though he left Pleading December 3. 1662. Mr. John Alexander contra Mr. Roderick Mcleod The like of a Pension for service done and to be done though the service was not done when not required nor was it excluded by the Pensioners pursuing Processes at his own instance against the Constituent upon a probable ground though the Constituent was assoiled June 26. 1678. Mr. William Weir Advocat contra the Earl of Callendar 18. Pensions granted by the King are declared not arrestable in the Thesaurers hands by Act of Sederunt June 11. 1613. The reason thereof must be because such are ordinarly alimentary and alwayes for the Kings special service which would be impeded by hindering payment of the Pension TITLE XVI LIFERENTS Where of Conjunctfees Terces and Liferents by the Courtesie of Scotland 1. Servitudes personal by the Roman Law 2. Servitudes personal by our Custom 3. Clauses of Conquest of Liferent or fee of Lands acquired during marriages how far extended 4. All Liferents must be salva rei substantia 5. Liferenters are burdened with aliment of Heirs 6. Liferents without Infeftment are not effectual against singular successors 7. The effect of Assignations to Liferents 8. Liferents are not prejudged by Tacks or other deeds of the Fiar being posterior 9. What Terms do belong to Liferenters 10. Conjunctsees 11. Liferenters by Conjunctsee have all the Casualities of Superiority 12. Terce 13. Services of Terces 14. Kenning to Terces 15. The effect of Terces 16. The extent of Terces 17. Exceptions against Terces 18. Burdens of Terces 19. Liferents by the courtesie of Scotland 20. Publick burdens FROM the Feudal Rights of Property we proceed to Servitudes burdening the 〈◊〉 these are either personal or real Personal Servitudes are whereby the property of one is subservient to the person of another Real Servitude is whereby a Tenement is subservient to another Tenement and to persons But as and while they have Right to the Tenement Dominant as Thirleage Pasturage Ways Passages c. and the like Servitudes personal for term of Life are therefore called Liferents Servitudes for an indefinite time are such which either may or uses to be Constitute for a longer or shorter time such are Pensions Ecclesiastick Rentals and Tacks which though they be in their nature but personal Rights Yet by Statute or Custom they have the effect of real Rights of which
out A Terce of Wodset Lands wherein the Husband died Infeft was not found elieded because the Husband Required or Charged for the Money not being denuded before his death Feb. 16. 1642. Veich contra Veich of Dawick But the wifes third continues as to the third of the Annualrent of the Money in lieu of the Lands Redeemed by the heir after his predecessors death Terce is not excluded by Ward Non entry or Liferent-escheat of the Husband as hath been more fully shown before Title Superiority 18. Terce is burdened proportianally by all debita fundi affecting the whole Tenement as Annualrent Thirlage Pasturage but with no other debts of the Defunct being personal though they be Heretable and have provision of Infeftment 19. Liferent by the Courtesie or Curiliaty of Scotland is the Liferent competent to the Husband of the Wifes Lands and Hereditaments It is introduced by our Common Law which is our most ancient Custom wheroef no beginning is known in the same way as the Terce of the surviving Wife whereby without any paction or provision 〈◊〉 enjoys the third of her deceassed Husbands Heretable Rights wherein he 〈◊〉 Invested as of Fee during her life so the Husband Liferents the whole Lands and Hereditaments of the wife wherein she died Infeft in Fee and that without any Service or Kenning as in Terces but Summarly by vertue of his having been Husband to the Defunct neither is there any difference whether the Defunct wife had a prior Husband or not or whether her hereditament be Ward Blensh Feu or Burgage The original of this Liferent by the Courtesie as Craig observeth lib. 2. dieges 22. is from the Rescript of the Emperour Constantine whereby the Father had the Usufruct of the heretage of his Children befalling to them as heirs to their Mother and therefore the Courtesie takes no place but where there were Children of the Marriage one or more which attained that maturity as to be heard cry or weep for then the Law regardeth not how long the Children live or whether they do Survive their Mother but hoc ipso that they are born at maturity they are heirs appearand of the Fee and the Liferent is established in their Father In this the Courtesie of Husbands differs from the Terce of Wives for the Wife hath her Terce if either the Marriage continue undissolved year and day or though it continue not so long if a Child was born of the marriage heard cry and weep though the Child had been begotten before the Marriage yea though it had been born before the Marriage being Legitimat by the subsequent Marriage how short soever it endured the wife should have her Terce But the Courtesie takes no place unless a ripe Child beborn though the Marriage should continue for many years so that the being of Children procreat and born to maturity is the chief motive introductory of this Law Skeen in his Title de verborum significatione upon the word Curialitas limiteth the Courtesie to the Lands or Hereditament into which wives succeed as heirs to their Predecessors whether before or during the Marriage which Craig in the foresaid place doth likewise follow and doth exclude the Husband from the Liferent of the wifes Land to which the wife had right by any Contract as titulo emptionis which will not exclude the husband where the wises Predecessor Infefts her per praeceptionem haereditatis If a Father should Infeft his Daughter reserving his own Liferent with power ro Dispose she is not thereby heir active nor is that Estate accompted Heretage but Conquest yet she is heir passive and there is more reason that the husband should enjoy his Liferent of that Estate then if his Wife had been therein heir of Provision or Tailzie whereby failing her and her Issue another Branch not nearest of blood to her might readily succeed so that if her Children were dead before her self her heirs of Tailzie would have much more reason to question her husbands Liferent by the Courtesie then his own Children as heirs of line would have to contravert his Liferent of the Estate wherein she was Infeft by her Father or any of her Predecessors to which she was appearand heir but there have been few Debates or Decisions or limitations thereof which would clear this and other points thereanent The Law hath well fixed the maturity of the Children by their crying or weeping and hath not left it to the conjecture of witnesses whether the Child was ripe or not both as to the Courtesie Terce and Dissolution of the Marriage within the year in all which cases the Law alloweth Women Witnesses as being necessary in the case of the death of the Children at the time of their Birth Liferenters were found free of the Reparation of Ministers Manses by the Act of Parliament 1662. cap. Ordaining Heretors to build or repair Manses to the value of 1000. Pounds whereof no share of relief was found due by the Liferenters they not being exprest November 14. 1679. Minister of contra Laird and Lady Beanstoun Yet if the whole Estate were Liferented by Conjunctfee the Conjunctfiar might be liable as Fiar in that case when the Heretor had no profite of the Land and if the whole were affected with a separat Liferent the effect would be the same seing what the Heretor would be lyable to would diminish his Aliment which behoved to be made up by the Liferenter Liferent by the Courtesie hath the same extensions and limitations sa terces it affects all the wifes Lands not Acquired by a singular Title it is not excluded by the Ward but it is excluded during the Non-entry or by Liferent-Escheat and also by the Ward of the Superiour or the Forefaulture or Recognition either of the Superiour or Wife it is burdened with all real burdens by Infeftment or Tack and with the Aliment of the Wifes Heir if he have not aliunde It is also excluded by the Dissolution of the Marriage within year and day by Divorce or by the Husbands desertion of the Wife though Divorce followed not Or by his Adultery or other atrocious Crimes 20. Amongst personal Servitudes may be numbered publick Burdens imposed by the King and Parliament for publick use such as Taxations which by the Acts imposing them are declared real affecting the Ground and that thereupon the Ground may be poinded and so consequently do affect singular Successors The extraordinary burdens of Mentainance and Sess imposed by the Parliament during the troubles had not that Clause therein of Poinding the Ground and so were not found debita fundi but debita fructuum nor do they affect singular Successors July 13. 1664. Grahame of Hiltoun contra the Heretors of Clackmannan TITLE XVII Servitudes Real 1. Requisites to Constitute real Servitudes by consent 2. How Prescription Constituteth Servitude 3. How far Servitudes are effectual against the Superiour 4. Extinction of Servitudes 5. Kinds of Servitudes 6. Servitudes of Support 7 Stillicides 8. Sinks
are not wakened every five years for such prescrive in ten years by the Act 9. Par. 1669. The exceptions of removing at the instance of the Master of the ground are very frequent and various for it is ordinarly proponed and sustained that the Defenders are Tennents by payment of Mail and Duty to a third party who is not warned nor called neither are they put to dispute their Masters Right to be valide which holdeth whether his Right be an Infeftment Liferent-right or Tack and though the Tennent hath been put to condescend what the Right is and that in specie it is a valide Right though he needs not dispute the particular defects of it nor the competition of it with any other Right That hath been done that the pursuer might know how to quarrel their Masters Right but I have never observed that Litiscontestation has been made or a Term assigned to Tennents to instruct their Masters Right therefore this defence is but dilatory and should not be sustained unless instantly verified by Tacks or Discharges from the alledged Master which would be repelled if the Tennents have interverted the pursuer or his authors Possession or if the pursuer were singular Successor not presumed to know any interest but of the Possessors if the Tennent produce his Masters Seasine with his Tack or Discharge it would instruct this Dilator which is sufficient upon the not calling the Tennents Master for his not being warned is proper for himself to alledge and the partie will in the same Process get warrand to cite that Master who must defend himself upon his own Rights and therefore this defence was sustained to Tennents though they condescended upon no other Right to their Master but tacite Relocation December 2. 1628. Mr. Walter Whitefoord contra Laird Johnstoun It hath also been sometimes sustained that the defenders were Tennents by payment of mail and duty to an Appryzer though not Infeft Hope hic Crawfoord contra Brown This exception is also elided by this reply that the defenders had acknowledged the pursuer by payment of Mail and Duty Nicol hic Lady Evandale contra her Tennents It is also elided by alledging that the defenders Masters Right was reduced at the pursuers instance December 12. 1622. Spading contra Fleming The like where his right was reduced at the instance of the pursuers author Spots hic Maxwel contra Tennents of Glassock Earl of Nithisdale contra his Tennents The exceptions against removing upon the defenders own right are either in respect of his right to the Land in question or to the other Lands brooked by him pro indiviso with it For the first there are as many such defences as there are rights competent for defending possession and they are either founded upon the benefite of a possessory judgement which how conpetent may be seen at large Title Infeftment 13. § 82. which needs not to be repeated Or if that be not competent the defender must found himself upon the point of right which ordinarly infers a competition of rights But in either case the defence will not be sustained upon any right if the possession was not attained there upon bat upon the pursuers right which Possession must be restored and the defender left to his action upon the others right as accords as if after redemption of a temporary right whereby the defender entered in Possession he should defend upon another right which will not be sustained in this possessory judgdement against him or his Successor from whom he had the Possession November 22. 1677. Sir Archibald Stuart of Castlemilk contra Duke of Hamiltoun The exception pro indiviso is very pregnant and taketh not only place in solemn removings but in the Action to find Caution for Mails and Duties or to remove though the Excipient had taken Tacks from the Pursuer December 6. 1623. 〈…〉 contra Carmichael Yet it was not found relevant to stop removing from the pursuers part of a Coal-heugh in Lands undevided because the Coals are divisible by measure as they are raised out of the Coal-pot Spots removing Hugh Somervel contra Dickson Neither was it found sufficient to maintain a Relict in possession of a House which could not be divided whereof she had a third part and possest the other two thirâ—s pro indiviso but the Fiar having the two thirds was to be preferred to the Poâ—â—ession paying her the third of the Mail upon condition that if he seâ— the Tenement she should be preferred giving as much Mail as another January 26. 1665. Legan contra Galbraith The last exception against removing is obedience by voluntary removing conform to the warning and leaving the Land void and red at the Term without necessity of a renunciation in write March 2. 1637. Keith contra Simpson The like the defender finding Caution to desist from the Possession Nicol. de migrando Wallace contra Mitchel But the alledgeance of obedience was not found relevant upon an exception bearing that the Land was left void and red at the Term seing that it bore not that the Possession was offered to the Charger in respect that at the time of his removing another party entered in his Vice January penult 1624. Greenlaw contra Adamson But the obedience must be full according to the warning by the defenders removing himself his Family Sub-tennents and Cottars Goods and Gear So that the pursuer may enter in Possession and therefore Decreet would be obtained against the principal Tacks-man and the Letters still put to execution against him till all these be removed and if the pursuer please he may pursue them to remove without other warning then what was made to the principal Tacks-man So it was sustained against a Son upon a warning against his Father even after his Fathers death January 26. 1630. Hoom contra Hoom. As to the last point concerning the effects of Decreets of Removing it is not only the attaining Possession of the Land it self but sometimes also the Corns growing thereupon as being a part thereof being a Possession violent Hope Spuilzie John Elliot contra Lord Balcleugh Yea of the Hay of that Cropt though separate and Stacked by the person removed Hope Spuilzie Sir James Balmuire contra Williamson But the main effect is the obtaining the violent profites of the Land until the possessors obedience and that both against these who are warned and against these who succeed in the vice of warned or removed Tennents 44. Violent profites are so called because they are such profites as are due by and for violent Possessioa whatsoever way it be by warning and removing ejection intrusion or succeeding in the Vice and they are opposite to ordinary profites which were due by tacit Relocation or were formerly accustomed to be payed Violent profites are pursued for by a several Action after the Decreet of removing is obtained Wherein the Decreet of removing is both a sufficient Title and probation of the violent Possession against the parties
the Lands that the value and worth thereof might the more clearly appear where after discussing of the Appryzers Claim the hability of the persons of Inquest and Witnesses so much Land was appryzed and adjudged as was worth the sum the years Rent to the Superiour and expenses of Infeftments and if the Lands were burdened with any former annualrents whereby a proportion of Land could not be appryzed free of burden there was appryzed an annualrent forth of the Lands effeirand to the sums and expenses foresaid and redeemable in the same manner which was sustained by the meaning and intent of the Statute though by the words of it appryzing of Lands was only mentioned it was ever extended to all Heretable Rights thus it continued till the Lords of Session upon exceptions against the Sheriff upon his interest relation or enimity or upon the lying of Lands in diverse Jurisdictions for preventing of expenses by many appryzings where the Lands in one Jurisdiction sufficed not did grant Letters of appryzing under the signet direct not to the ordinar Sheriffs but to sherifts in that part which being frequent did come to run in course to Messengers as sheriffs in that part c. And thereby the appryzer in respect the Letters had a blank for inserting the Messengers name did choise the Messenger who did denunce all Lands and other Heretable Rights which the appryzer pretended to belong to his debitor And in respect the Letters bore dispensation of the place did apprize at Edinhurgh all that the appryzer clamed in satisfaction of the debt without knowledge or consideration of the value of the Lands or others appryzed or proportion to the sums appryzed for and thereupon was Infeft in the whole and payed to the superiour a composition for a years Rent of the whole which was a considerable accession to the Debitors debt and behoved to be payed by him and by the saids appryzings the appryzer might and oftentimes did enter in possession of the whole Lands without being countable for the rents thereof of what quantity soever By this abuse the intent of that excellent statute for appryzings was enervat and the same turned in a meer Formality until the Par. 1621. cap. 6. which began to correct that exorbitant abuse and declared appryzers countable for their intromissions in so far as exceeded their Annualrents to be imputed in their principal sums pro tanto and that they being thereby satisfied of their sums principal and annual composition to the superiour and expenses of appryzing and infeftments that thereby the appryzing should expyre ipso facto and it is also declared that if the Lands appryzed be not worth of free rent effeirand to the annualrent of the said sums that before redemption he shall be satisfied of the superplus By which Act it is declared that Minors may redeem Lands appryzed from them at any time within their age of twenty five years compleat yet so that after the first seven year the appryzer shall have the benefit of the whole Mails and Duties till he be redeemed which hath always been extended to Lands appryzed from persons being Major if a Minor succeed during the Legal and if a person being Major succeed to him who was Minor he hath the benefit of Reversion of seven year in so far as was not run in the Minors life and if less remain then a year at the Minors death the Major hath a full year to redeem after the Minors death and by the Act 1669. of the abrogat Parliament 1641. appryzers were declared countable for the rents of appryzed Lands intrometted with by them during all the time of the Legal whether competent to Minors or others And because of another great abuse by the debording of Appryzings from the first institution that the first appryzer appryzing the whole Estate the other Creditors had no more but the Legal Reversion which did ordinarly expyre the subsequent Creditors not being able to raise money to redeem the anterior appryzer whereby the first appryzer carried the whole Estate and excluded all the rest and being ashamed to take so great a Legal advantage and sometimes not daring to make use of it did ordinarly compone with the debitor his appearand heir or some confident to their behove whereby the debitors heir recovered his whole Estate by satisfying one Creditor and excluding all the rest therefore the Par. 1661. by their Act 62. anent debitor and creditor declared that all appryzings deduced since the first of January 1652. or to be deduced in time coming within a year after the first appryzing which became effectual by infeftment or Charge should come in pari passu as if one appryzing had been led for all the sums and thereby the legal was extended to ten year and it is declared that whensoever the appearand heir or any to his behove shall acquire right to any expyred appryzing that the same shall be redeemed from them within the space of ten year after their acquiry by posterior appryzers upon payment of what they truly payed in so far as shall not be satisfied by their intromission But neither did this statute cure the abuse of appryzings and therefore the Act of Par. of the 6. of septem 1672. upon consideration of debording of appryzings from the first design and of the great inconveniencies arising thereby for the bringing in of all appryzers within year and day did give way to break the credit and ruine the interest of the most considerable Heretors in the Kingdom that creditors being thereby invited under the hazard of being excluded to appryze within a year and thereby one wilful malicious or necessitous Creditor apprizing all the rest followed and intirely brook their credit unless they would pay all their debt in one day therefore the Parliament did in place of Appryzings ordain adjudications to proceed before the Lords of Session for adjudging the Lands and other Heretable Rights of debitors effeirand to the sums appryzed for and a fifth part more in place of the penaltiies and sheriff-fee and allowed Witnesses for either party for clearing of the Rental and rate of the Lands in the several places where they ly and appointed the adjudger to have present Possession of the Lands adjudged not being accountable for his intromission during the Legal redeemable only within five year whereby the Creditor had easie accress for his satisfaction without all hazard or account which had been the ground of many tedious Processes of Count and Reckoning for the Intromission of former Appryzers and wherein the Adjudgers is to have the Consent of his debitor both as to Right and Possession and delivery of the Evidents and it is declared that if the debitor do not instruct and deliver a good Right and consent as said is that the creditor might adjudge all the debitors Estate in the same manner and to the same effect as is appointed by the Act of Par. 1661. between debitor and creditor We shall not here speak of
was lyable to fulfill the Bastards back-band June 20. 1671. Alexander Alexander contra Lord Saltoun 47. Ultimus Haeres may seem to be a Succession from the dead and to come in amongst other Heirs yet though it hath the resemblance of an Heir because it hath effect when there is no other Heir and makes the Heritagelyable to pay the Defuncts debts it is only a caduciarie Confiscation of the Defuncts-Estate with the burden of his Debt but no proper Succession to him therein which appeareth thus The Heir is one person in Law and is therefore personally obleiged for all the Defuncts debts so is not the Fisk against whom or the Donatar there lyeth no Personal Action for payment but for Restitution if he have intrometted and of Real Action contra Haereditatem jacentem which is most proper by Adjudication being the Supplement of ordinary Actions or Executions competent by Law For there being no partie to represent the Defunct debitor there can be no Decreet but cognitionis causa and Adjudication following thereupon in which the Fisk or Donatar is to be called passive as the party having Interest to see that the Debt be due which will affect the Defuncts caduciarie Heritage to the detrement of the Fisk or Donatar So then ultimus Haeres and Bastardrie are of the like Nature which being caduciarie Confiscations fall to the Fisk because no other can have right there may be this difference betwixt them That in the case of the last Heir Creditors for their satisfaction may confirm the Defuncts Moveables and so recover the same for their own Satisfaction in which case they would be lyable as other Executors to the remanent Creditors of the Defunct and to the Fisk or Donatar for the superplus As in the place of nearest of Kin to the Relict also for her part but this being only for obtaining their own Satisfaction and for shunning a more extraordinary way by Adjudication which also they may use at their option they ought not in prejudice of the Fisk to have the third part of the Defuncts part as other Executors but in the cases of Bastardry Confirmation of Executors is not competent because the Bastard being excluded from the power of making Testament can have no Executor Concerning last Heir the greatest doubt is who they are and in what Cases they take place As to the first Craig lib. 2. Dieg. 17. is not positive whether Superiours be last Heirs of the Defunct in the Fies held of them or if the King be the last Heir for all And according to the antient Feudal Customs there is no doubt the Feus return to the several Superiours for thereby none could succeed without Express provision in the contrary but the lawful Issue of the Descendent of the first Vassal whose Person and Race was peculiarly chosen and confided in by the Superiour But now Fies not being gratuitous as at first but for onerous causes besides the reddendo service and ordinarly granted to the Vassal and his Heirs whatsomever Which failzing the King by his Prerogative Royal excludeth all other Superiours who are presumed to retain no right nor expectation of Succession unless by express provision of the Investiture the Fies be provided to Heirs Male or of Tailzie which failzing to return to the Superior In which he is proper Heir of Provision As to the other Doubt in what case the King is last Heir Craig in the forenamed place relateth that some were of opinion That if the Defunct had no Heirs within the 7th degree the King taketh place as last Heir And that others thought it to hold in Collateral Successions but his own opinion is in the contrary That any Heir of what degree soever hath Right which suiteth with the ground now laid that the King hath right as last Heir to the Heritage become caduciarie Because no other partie can be instructed lawful Heir So he reporteth it was found in the case of the Earl of Marr who was served Heir to Lady Elizabeth Dowglas Countess of Marr beyond the tenth degree And that the Lord Seatoun that he might have a Title to the Redemption of the Lands of Longnidrie against Forrester served himself Heir to the granter of the Wodsett beyond the 7th degree whereof several degrees were Collateral And the French King Henrie the 4th Succeeded to Henrie the 3. though not within the 15. degree The gift or right of ultimus haeres hath no effect till Decreet of Declarator be obtained thereupon in the same way as in Bastardry July 20. 1662. Laird of Balnagoun contra Dingwal July 31. 1666. Thomas Crawford contra Town of Edinburgh TITLE XXVI Succession 1. Whether in equity there be a Rule in Succession 2. That Rule is the expresse will or presumed will of the Defunct 3. The first degree of Succession by the presumed will of Defuncts 4. Whether in equity there be right of representation 5. Failing descendents ascendents succeed in equity 6. Failing both brothers and sisters succed 7. Failing these the nearest Agnat succeeds 8. The succession of Cognats 9. The Jewish succession whereby all the sons succeed and exclude the daughters and the eldest son hath a double portion 10. Fathers could not prejudge the primogenitur of their eldest Sons 11. By the Jewish succession failing descendents the inheritance passeth to Brethren and these failing to Fathers Brethren and failing these to the nearest Kinsman 12. Whether in the Jewish Succession there be right of representation 13. Why no Femals but daughters succeed among the Jews 14. Why Parents Succeed not amongst the Jews 15. Succession amongst the Romans was first by Testament 16. If there was no Heirs institute by Testament the antient Roman Law called all the Children of the Family unforisfamiliat male female not excepting adopted Children to Succeed 17. These failing the nearest Agnats but no Parents thereby Succeed 18. The Romans Succession be the pretorian Law 19. Their Succession by Justinians novel constitution 20. In Feudal Succession the first Rule is the expresse will of the partie by the investitur 21. The nixt Rule is the conjectured will according to the nature of the Fee 22. Primo-geniture now established by common custom in Feudal Rights 23. Succession in Scotland is wholly different in moveables and immoveables 24. The several degrees of Succession in moveables 25. Succession in Heritable Rights 26. The difference betwixt the two successions 27. The priviledge of Heirs not to be prejudged by their predicessors deedes on Death-bed 28. What is estimate Death-bed 29. Against what rights Death-bed is extended 30. Death-bed annulls no deeds for causes onerous 31. Dispositions in Testaments are as on Death-bed 32. Annus deliberandi 33. Kinds if Heirs in Scotland 34. No place for Adopted or Cognats in succession with us 35. Parents Succeed to their Children exclude the Parents Collaterals or these representing the Colaterals SUCCESSION to Defuncts is the most Important Title in Law for thereby the Rights of all
Mediatly to his own Son 23. To return to our Customs in Succession in respect of the Matter it is divided in two Branches the one is of Moveables the other of Immoveables which do as much differ astheCustomes of diverseNations The Successor in Immoveables doth only retain the Name of Heir and therefore Immoveables are called Heritable Rights and that part of the Moveables which belongs to the Heir is called Heirship-moveable The Successor in Moveables from the Office of executing the Defuncts Will express or presumed is called Executor We shall here Summarily at one view set forth the whole matter of Succession with us which we shall more fully and distinctly follow in the ensuing Titles Heirs in Law are called Universal Successors quia succedunt in universum jus quod Defunctus habuit they do wholly represent the Defunct and are as one Person with him and so they do both Succeed to him active in all the Rights belonging to him and passive in all the Obligations and Debts due by him and when they do not orderly enter they become Successors passive lyable to the Defuncts Debt but not Heirs active having power to claim his Right till they be entered according to Law Other Successors are called singular Successors as Assigneys Purchasers but Heirs only are universal Successors And now when Heirs are of divers kinds as some in Moveables some in Lands and other Heritable Rights and of these ac cording to the Investiture some succeed to Lands provided to Heirs of Line some to Lands provided to Heirs Male some to Lands otherways Tailzied in all which some Heirs Succeed alone and in solidum some Succeed in parte pro rata yet all may be said to Succeed in universum jus quod Defunctus habuit by universum jus the whole Right not simply in solidunt but the whole Rights of such a kind either in solidum or at least pro rata parte as he who Succeeds in a half or third part of all the Defuncts Rights active passive Succeedeth in universa singula jura in all and every right thought not in totum solidum the whole or every part of every Right As to Moveables we shall not repeat what hath been said Title Real Rights of the distinction of Heritable and Moveable Rights whether Goods or Moveable Debts but shall only hold forth what becometh of Moveable Rights after the Owners decease And first if the Defunct be Married there was thereby acommunion of Goods betwixt the Defunct and the other Spouse which being disolved by Death the surviver may withdraw their share which share is estimate by the condition of the Familie at that time for if in the Family there were a Husband a Wife and Children not forisfamiliat the Wife her share is the third but if there were no Children unforisfamiliat the Wifes share is the half which is not properly a Succession but a Division 24. The first degree of Succession in Moveables with us is by the will of the Defunct by his Testament or Codicil whereby the Defunct may name Executors and dispose of his Moveables either in part by particular Legacies or in whole by an universal Legacie whereby in effect the universal Legatar is institute Heir in the Moveables and if the Executor nominat be not also universal Legatar he hath but one office and is not Heir for himself but in name and to the behove of the Legatar and hath but fidei-comissum of the Moveables These Legacies whether Particular or Universal doth immediately transmit the Right to the Legatars and their Successors The Solemnities of Testaments or Legacies are very plain with us but we shall leave them to the Title Executrie The will of the Defunct is restrained with us in three cases the First is Bastards cannot at all Test or leave Legacies unless they be Legittimat or have power from the King of making Testament or have lawful Children 2. A Father is bound up in respect of his Children in his Family which are not forisfamiliat and provided for these have necessarily their Portion Natural and Bairns part of Gear wherefrom their Father cannot exclude 〈◊〉 by 〈◊〉 or otherways as by Donations in contemplation of tion to a Moveable Band granted on Death-bed was found null as to the relict and Bairns part Spots Assignations Margaret Pyrie contra Ramsay Yea it was found that the Gift of Money by the Defunct out of his own hand on Death-bed was null as to them ibid Mr. Andrew Moncrieff contra Mr. Archibald Moncrieff The like of an Assignation to a confident Person to the behove of the Defuncts Bairns which was found not to prejudge the Relicts third Durie July 10. 1628. Cant contra Edgar And therefore a Father hath only power to dispose upon such a part of his Goods which are thence called Deads part which if he have a Relict and Bairns in the Family the Bairns part is the third the Relicts part is also a third and so the Defuncts part is only a third but if there be no Relict then the Bairns part is the half and the Deads part is the other half But if there be neither Wife nor Bairns the Defunct may dispose of the whole as Persons never married or Wives upon whom there is no Restriction though they have Husband or Children for they may dispose of their share of the Husbands moveables or if they acquired or succeed to any moveables in Viduity they may iniurley Dispose thereof though they have Children If his Legacies exceed his own part then they abate proportionally unles there be a preference granted by the Testator or a priviledge whereof I know none with us for even a Legacie ob pias causas viz. A mortification to a Kirk was found to have no priviledge but it and other Legacies suffered proportional deduction seing they exceeded Deads part Durie July 6. 1630. Doctor Monro contra Scots Executors The reason of this Restriction is that Natural Obliegment for provision of Children of which before it is extended only to the immediate Children and not to Grand-children neither doth it Restrict the Mother but only the Father 3. The third Restriction of the Defuncts will is in favours of their Heirs of Line for Heirs having the sole interest in Heritable Rights are by our custome justly excluded from coming in with other Children in moveables except that which is called Heirship-moveable which is the best of every kind of moveable wherein the Defuncts will cannot prejudge the Heir The second member os Succession in moveables is from the Intestat So that failing the Defuncts will with the Restrictions aforesaid the nearest of Kin have interest both in the Defuncts moveables and office of Executrie and though they claim not the office yet have they 〈◊〉 Right to the Goods leaving a third of Deads part to the Executors 〈◊〉 administration of the office These nearest of Kin take place all in 〈◊〉 all the nearest degree Male or Female come in
heir of Conquest and the other retaineth the common name of the heir of Line Conquest is feudum novum whereunto the Defunct did not succeed as heir to any Person or whereunto the Defunct could not succeed as heir for if that were disponed to him by the Defunct whereunto he would have succeeded it were but Preceptio haereditatis and so remained to be repute as heritage to descend to the Younger and not to ascend to the Elder as Craig observeth lib. 2. dieg 15. Such heritages are rare and befall only by Tailzie or Provision amongst midle Brethren Because the eldest by primogeniture excludeth the rest from being heirs of Line but it may befall in case of the heirs of Lyne when the nearest Successor is the Fathers or Grand-fathers Brothers or their Issue there being Elder and Younger Brothers but Conquest is frequent because not only that which is acquired properly by the means and industry of the Defunct But that which is by Gift of the Defuncts Parents or any other or whatsoever the Defunct could not succeed to is Conquest Yet if the heir of Conquest succeed that which was Conquest becomes heritage and descends As if there were four Brothers and the third acquiring Lands Died without Issue the second would be his heir therein who if he Died also Infeft the Lands would fall downward to the Youngest Brother and not upward to the Eldest Brother The custom of England is contrary for thereby the eldest Brother succeedeth to all his Brothers failling the Issue But with us the Immediat elder or younger doth always succeed though of different Marriages none of them being Brothersgerman And therefore in the case proposed by Craig lib. 2. 〈◊〉 15. In fine of a Brother by a second Marriage dying without Issue and having three Brothers of a former Marriage no doubt the youngest would succeed according to the Opinion of Oliphant and King there related Albeit that Craigs opinion be that the eldest would succeed It was so decyded contrary Craigs opinion July 20. 1664. Laird of Clerkington contra Stewart Heirs of Conquest succeed not only to Lands Conquest by their immediat Predicessors but in other heritable Rights passing by Infeftments as Annualrent or such as are heritable by distination and which are accomplished by Infeftment as Despositions of Lands or Annualrents Appryzings or Adjudications c. The like where an Annualrent was first Disponed and a Clause of Requisition and Reversion subjoyned July 7. 1675. Robertson contra Lord Halkertoun and in Reversions Hope de Successionibus heirs of Pitcairne But in this case it is not cleared whether the Lands given in Wodset were heritage or conquest but it seems if the Lands had been heritage as they were Wodset the Reversion would also belong to the heir of Lyne as the Lands whereto it was accessory would Yea heirs of Conquest succeed in heritable Bands bearing Clause of Annualrent As was found amongst the heirs of Doctor Craig But the heirs of Lyne and not the heirs of Conquest succeed in Tacks acquired by the Defunct Hope Succession Earl of Dumbars heirs June 23. 1663. Ferguson contra Ferguson The heirs of Lyne do also succeed in Pensions or any other Right not requiring Infeftment as in these which having a tract of time after the Defuncts Death do thereby exclude Executors and do belong to the heir of Lyne and not of Conquest though they be acquired The heir of Lyne and not the heir of Conquest falleth to be Tutor or nearest Agnat to the Pupil to whom the heir of Lyne might Succeed The heir of Lyne hath right to the heirship Moveable and not the heir of Conquest 11. Heirs-portioners are amongst Heirs of Line for when more Women or their Issue succeed failing Males of that degree it is by the course of Law that they succeed and because they succeeed not in solidum but in equal Portions they are called Heirs-portioners and though they succeed equally yet Rights indivisible fall to the eldest alone without any thing in Lieu thereof to the rest As first Dignity of Lord Earl c. 2. The principal Manse being Tower Fortalice c. which doeth not extend to houses in Burghs nor to ordinary Country-houses the former being divisible the latter falls under division as pertinents of the Land whereupon they stand and are not as separata jura or distinct Rights 3. Superiorities are accounted indivisible and befal only to the eldest Daughter and her Issue and thereby all the Casualities of the Superiority either preceeding or following the Defuncts death as Ward Relief Marriage of the Vassals Heirs Nonentry Liferent Escheat c. The reason is because the Vassals condition ought not to be worsted and made subject to many Superiors by such Successions Craig lib. 2. dieg 14. excepteth the Superiority of Feu Lands the Feu Duties whereof are divisible amongst all the Heirs-portioners yet the former reason of the indivisibility of the Superiority in respect of the Vassals Interest reacheth Feu Superiorities as well as others and it is hardly conceivable how Superiorities should belong to the eldest and yet the Feu Duties divide to the rest seing the Superiority as being Dominium directum is the only Title for poynding the Ground or pursuing the Possessors or Intrometters with the fruits thereof It seems for the reason adduced the Superiority and therewith the Feu Duty befalleth to the eldest yet so because the Feu Dutie is constant and liquid and is not like the other Casualities of Superiority which are illiquid and accidental therefore the other Heirs-portioners ought to have Compensation for their parts of the Feu Duty in or off other proper Lands Or if there were moe Superiorities of Feu Lands so that some of the Superiorities might befal one Heir and others to other Heirs no particular Superiority being divided or the Vassal made Vassal to many Superiors I conceive it would be allowed or otherways the eldest Co-heir would be dicerned to infeft the rest in Annualrents out of the Fee correspondent to their share of the Feu Duty A Vassals Heir though the Defunct had taken Infeftment of more Heirs-portioners was not found oblieged to take Infeftment of some of them severally but either of all jointly or the eldest July 30. 1678. Lady Luss contra Inglis How far Heirs-portioners succeed passive and are lyable for the Defuncts Debt shall forthwith appear 12. Heirs Male and of Tailzie and Provision succeed not by Law but by the tenor of the Infeftment or Provision and therefore have that benefit and no more which is so provided to them or which is accessory thereto whereby any Right or Security of Lands or others befalling to these Heirs which is thereafter acquired by their Predecessors though the same be acquired to him and his Heirs whatsover yet the same will befall with the principal Right to which it is accessory to the Heir Male or of Tailzie or Provision As if a Proprietar Infeft himself or his Heirs
and Infeft the other being equally and Immediately Heir to her Father in these Teinds and mediatly Heir to her Father by being Heir to her Brother who was Heir to his Father being Infeft in the Lands by precept of Clare Constat without Service June 10. 1673. Christian White contra Janet White 16. Other heirs not being Heirs-portioners are lyable for the Defuncts Debt in solidum except heirs substitute in Bands who are only lyable quoad valorem in the sums in these Bonds July 3. 1666. Fleeming contra Fleeming 17. Heirs are not conveenable at the Creditors option as in the case of heirs and Executors but they have the benefit of an order of discussing Thus first Debts and Obliegments relating to any particular Lands or Rights and no other do in the first place affect the heirs who may succeed in these Lands or Rights before the heir general So an Obliegment oblieging the Defuncts heir of Line or Tailzie so soon as he should come to his Estate was found to affect the heir of Tailzie who came to that Estate without discussing the heir of Line Hope de Haeredibus Lyon contra Sir Robert Scot. Nicol. de haereditariis actionibus inter eosdem So an Obliegment oblieging a Debitor and his heirs Male succeeding in such an Estate and not all other heirs was found to burden the heir Male before the heir of Line or Executors July 22. 1662. Margaret Anderson contra Andersons So likewise an Obliegment to infeft a Party in an Annualrent out of Lands designed was found to affect the heir of Provision in these Lands without discussing the heir of Line Nicol ibid. Edmonstoun contra Edmonstoun This was also the opinion of the Lords though there was no decision in it February 19. 1611. Laird of Blair contra Fairlie And in these Cases the heir of Tailzie or Provision will have no Relief against the heir of Line or other nearer heirs of Blood who otherwise and also Executors must be discuss'd before heirs of Provision or Tailzie General Obliegments not relating to particular Lands do first affect the heirs of Line who are heirs general 2. The heirs of Conquest July 21. 1630. Fairlie contra Fairlie 3. Heirs Male must be discuss'd before heirs of Tailzie or Provision not being so near of Blood Hope de haered Dunbar contra Hay of Murkill the like must follow as to heirs of Marriages who are also heirs of Blood and must be discuss'd before other heirs of Provision or Tailzie who therefore are only lyable in the last place the rest being discuss'd unless they become oblieged to relieve the heir of Line November 22. 1665. Lawrence Scot contra Boswel of Auchinleck 18. But an heir of Tailzie was not found to represent the Defunct in Obligations contrary to the terms of the Tailzie as to which heirs of Tailzie are as Creditors and Strangers as when the security of a Sum was by way of Tailzie payable to the Creditor and the heirs of his Body which failing to a Person named his heirs and Assigneys whatsoever the Creditor being oblieged to do no Deed hurtful to the Tailzie and the Debitor oblieged not to pay without the consent of the Person named that Person was found to have Interest to obtain Declarator that the sum was unwarrantably payed by the Debitor without his consent or order of Law by consigning it to be imployed in the same terms and therefore the Debitor was ordained to make up the Security again as at first reserving to Creditors how far they could affect this Sum for the first Fiars Debt or whether the terms of the Tailzie would exclude the Fiars Debts or Deeds for his necessary use or only unnecessary and voluntary Deeds Feb. 3 1674 Drummond contra Drummond And in like manner a Father having granted two Bonds of Provision to his two Daughters payable to them and the heirs of their Body which failing to return to the Father and his heirs the one of them having died without heirs of her Body but having assigned her Bond to her Sister the Assignation was found ineffectual as being done on design to disappoint the Tailzie made by the Father of the return of the Provision in case the Daughters had no Heirs of their Bodies and so was done without any onerous Cause or just Consideration January 31. 1679. Jean Drummond contra Drummond of Rickertoun 19. And likewise heirs of Marriage are heirs of Provision and partly Creditors and therefore may quarrel Deeds fraudulent or meerly gratuitous done by the Defunct whom they represent in prejudice of their Provisions as was found in the forementioned Case of Isobel Baron observed by Craig who being heir of a Marriage to whom all Lands conquest during the Marriage were provided the Father having disponed a Tenement acquired during that Marriage to his eldest Son by another Marriage yet that heir of the Marriage did recover the same from that Son albeit the heir of the Marriage did represent her Father and yet not simply but according to the provision by the Contract of Marriage which being an onerous Contract uberrimae fidei the Father Contracter can do no Deed contrary thereto but upon an onerous Cause or just Consideration and therefore if he sell any thing falling within such Provisions the heir of Provision cannot quarrel that Stranger but is oblieged to fulfil to him but might quarrel the same if it were meerly gratuitous much more might heirs of a Marriage quarrel Deeds prejudicial to their Provision in favours of the Children of other Marriages without which the great trust of these Contracts would be eluded whereupon Parties rely and make Matches and give Tochers and therefore take Provisions to the heirs of the Marriage either of definite Sums or of all or a part that the Contracters have or shall acquire during the Marriage by which the whole Estates of Citizens are ordinarily conveyed or otherwise Contracts of Marriage bear particular Lands or Sums to be provided to the heirs or Bairns of the Marriage and also the conquest during the Marriage which clause of Conquest will reach only to what the Father had more at his Death then the time of the Contract and is ordinary both in the Contracts of Citizens and others which therefore should not be elusory but effectual according to the true meaning of the Parties which is not to bind up the Father that he cannot do Deeds for Causes onerous or rational Considerations but that he can do no other Deeds meerly gratuitous and arbitrary in prejudice of such Provisions for though by such Provisions when fulfilled he himself must become Fiar and so may dispone yet he is also Debitor and so cannot effectually dispone against the import and meaning of the Provision And therefore a Father by his Contract of Marriage having provided certain Tenements to himself and his future Spouse in Conjunct-fee and to the Bairns of the Marriage c. and the Wife having restricted her self to the half of the
delictum should not be competent after the Intrometter's Death It was also thought by the whole Lords after dispute in presentia upon this Title That it takes only place where there appeared the apparant Heir's animus immiscendi adeundi haereditatem and not where he hath any probable or colourable Title Spots Heirship Corser contra Durie Yet in favourable cases a smal Intromission was sustained as making use of the Defnuct's chief Bed and Board though standing in the Defunct's House seing the Heir entred the House before he obtained Inventary of the Moveables made by authority of a Judge though the House belonged to himself proprio jure March 8. 1610. John Bailzie contra Hoom of Bassenden Or by Intromission with a Mazer Cup of the Defunct's and drinking therein entering in the House when he died lying in his Bed and bed Cloaths standing there and wearing his Silk Stockings though all these were undisposed upon and that the Defunct's Mother who had given them to her Son had medled therewith who died in a Chamber belonging to his Mother and his name was upon the Mazer January 15. 1630. Cleghorn contra Fairly 6. There are two Cases of Behaving as Heir viz. Intromission with the moveable Heirship and Intromission with the Lands Teinds Tacks or other Rights which might have belonged to the Intromitter as Heir In both which cases the Intromission will not infer this passive Title unlesse the Intrometter might succeed in the same particulars And therefore the apparant Heir of Line and no other can be lyable by Intromission with Heirship moveable because the same can only belong to the Heir of Line So the Intromission with Rents of Lands Tiends or Tack will not infer gestionem unless by the apparant Heir who would succeed therein according as they are provided to Heirs of Line of Conquest Heirs male or of Tailzie or Provision Neither will any other Intromission be relevant but what is immediat or by express Warrant Command or Ratihabition 7. A Tutor or Curator's Intromission will not infer gestionem upon his Pupil unless he accept the same from the Tutor in his Accompts Nor the Intromission of one having a general Commission as Factor c. It was so found in the Case of a Tutor's Intromission with the Rents of the Pupil's Predecessor's Lands for the restitution whereof he was only found lyable Nevember 3. 1665. David Boyd contra Tailzfair 8. Behaving as Heir by Intromission with the moveable Heirship is most unquestionable when the said moveable is chosen drawn and separat by the Heir from the remanent moveables In which case the apparant Heir will not be admitted to alledge that the Defunct could not have an Heir or Heirship moveable when he formerly drew the same July 13. 1631. Laird of of Gadgirth contra Laird of Auchinleck But it seems very hard where the apparant Heir's choice of such particulars as the best of every Kind for her Heirship doth not evidently appear for that must be accounted the best which is such in the opinion of the apparant Heir And yet in favourable Cases Intromission with any Kind of moveables out of which Heirship may be drawn will be found sufficient and repute as the Heir's choice As the apparant Heir's making use of his Fathers Board lying in his Bed though he disposed not thereof and though the same were standing in a House disponed to him by his Father before contracting of the Debt pursued on seing he continued two years in possesion and got no Warrant from the Lords or made any Inventary thereof July 14. 1626. Gilbert Johnston and Masson his Spouse contra Masson The like by making use of the Defunct's Bassin Silver Spoons Timber Beds and Boards without alienation thereof though the beginning of the Intromission was when the Intrometter was not apparant Heir himself but was Tutor to another Heir who was Idiot seing he continued five years after the Idiot's Death himself being then apparant Heir January 17. 1627. Frazer contra Monimusk Yet the contrary was found where the Intromission began before the Intrometter was apparant Heir there being a nearer apparant Heir though it continued after that nearer apparant Heir's Death when the Intrometter was apparant Heir July 〈◊〉 1629. Mr. Robert Cuuingham contra Moultry Yea Behaving as Heir was sustained by Intromission with certain Goods of the Defunct which might have been Heirship though they were confirmed promiscously by an Executor and bought from him by the apparant Heir But this Executor was his own domestick Servant and confirmed to his own behoof December 16. 1630. Weir contra Ker of Cavers The like where the Heirship Goods were sold to the apparant Heir by a stranger seing they were not delivered to that stranger but possest by the Defunct till his Decease but his possession continued by the apparant Heir Nicol. Plus valet quod agitur Feb. 9. 1621. Melvil contra Melvil But the contrary was found the Goods being disponed by the Defunct to the apparant Heir albeit not delivered before his death otherways than that the Defunct being un-married came to his Son's House and lived with him till his death January 30. 1630. Calderwood contra Porteous Neither was the same inferred by a Disposition of the Defunct to his apparant Heir of certain moveables in satisfaction of his Heirship moveables whereunto he might succeed Feb. 24. 1636. Meidhope contra Hepburn 9. The ordinary Objections and Exceptions against Behaving as Heir by Intromission with the Heirship moveable are First That the Defunct was neither Prelat Baron nor Burgess to whose Heirs only Heirship moveable is competent by the Act of Parliament the extent whereof is shown in the former Title And therefore the Pursuer must condescend and instruct that the Defunct was either Baron Prelat or Burgess which would besufficiently instructed by the Defunct's Infeftments of Lands or Annualrents at any time for thence it would be presumed that he continued undenuded till his death semel baro semper baro presumptivè And this will be elided by this Exception That the Defunct was denuded before his Death For though some have been of opinion that semel baro semper baro is meant that though a Person once infeft were denuded yet his Heir would have Heirship as a Baron For which I find neither Reason nor Decision But it is most reasonable that he who is once proven to be a Baron should be presumed so to continue unless the contrary were proven that he was denuded It was so found January 27. 1636. Straiton contra Chirnside But if the Legal was not expired at the Defunct's Death he is not esteemed denuded and therefore his Heir hath Heirship Feb. 26. 1663. Cuthbert of Drakies contra Monro of Foulis July 8. 1628. Dumbar contra Lesly Neither will it be sufficient that the Defunct was once Burgess but itmust be proven that when he died he was acting as a Burgess So that neither the Heirs of honorary Burgesses nor they who once were
trafficking Burgesses and take themselves to a Country Life their heirs will have heirship moveable And therefore semel civis semper civis is not presumed Neither semel paerlatus semper praelatus for if a beneficed Person were deprived or demitted before the Death his heir would have no heirship moveable 10. The second Defense against Intromission with heirship moveable and which is also competent against Vitious Intromission is That the Defunct died Rebel and his Escheat was gifxted and declared before intenting of the Creditor's Pursuit June 10. 1663. Gordon of Lismoir contra Keith June 10. 1674. Lady Spenserfield contra Hamilton of Kilbrachmount December 22. 1674. Heirs of Seatoun of Blair contra Sr Alexander Seatoun And It is not necessary to alledge That the apparent heir had any Right or Tollerance from the Donatar For the Exception is equiparat to Executors confirmed against Vitious Intromission whereby Vitious Intromission is excluded albeit the Intromission was before another was confirmed Executor if the Confirmation was before intenting of the Creditor's Cause But it is no relevant Defense That the Defunct died Rebel and so had no moveables but that they were confiscat Neither was it sufficient that the Escheat was gifted not being also declared before the Creditor's Pursuit As was found in the said two first Cases 11. The third Defense is That the apparant Heir intrometted by a Gift to himself or to his behoofe or by a Right or Tollerance from a Donatar These being prior to the Creditor's Pursuit although posterior to his Intromission albeit not declared are relevant because the Donatar thereby is in possession and needs no Declarator Feb. 26. 1663. Cuthbirt of Drakies contra Monro of 〈◊〉 June 10. 1663. Gordon of Lismoir contra Keith July 4. 1674. Mr. William Innes contra George Wilson June 10. 1674. Lady Spenserfield contra Hamilton of Kilbrachmont Feb. 10. 1676. Grant contra Grant 12. The fourth Exception is When Moveables belonging to a Defunct remain in his House whereunto his apparant Heir hath Right by Infeftment wherein the Defunct had his Liferent or Tollerance if the Heir enter in possession of the House if at his entry he represent to any competent Judge that there are Moveables in or about the House belonging to the Defunct which he desires to be inventaried or that such as cannot be preserved may be sold that the price may be made forthcoming to all parties having interest if Inventary or Sale be made by warrant of that Judge the continuing of these Moveables in the House or the Sale of those which cannot be preserved will not infer Behaving as Heir Yet the making use of the things in the Inventary or the Sale of that which is not warranted yea the ommission out of the Inventary of Moveables of any considerable value was found to infer Behaviour January 25. 1632. Helen Scarlet contra John Paterson 13. The other ordinary member of Behaving as Heir is by Intromission with the Rents of Lands or Tiends whereunto the Defunct had Right by Infeftment or entering in possession of these Lands and Tiends unto which the apparent Heir would succeed which is the most direct Behaviour as Heir and is only competent against such persons as might be Heirs in that whereinto they immix themselves And so an Heir of line poslessing or intrometting with the Rents of Lands provided to Heirs male or to Heirs of Tailzie or Provision or the Intromission of these with the profits of Lands or Tiends befalling to Heirs of line will only infer Restitution or Reparation but will not infer a general passive Title making the partie lyable to all the Defunct's Debts 14. There are many Defenses which use to be proponed against this species of Behaviour As first it was an ordinary custom to shun this passive Title that the apparant Heir granted a Bond of purpose to adjudge the Defunct's Right upon the apparant Heirs Renounciation and then take Right to the Adjudication till the Lords by an Act of Sederunt Feb. 28. 1662. did declare that if apparant Heirs should in time coming take Right to any Appryzing or Adjudication of their Predecessors Rights for their own Debt and did 〈◊〉 thereby whether before or after expyring of the Legal they should be lyable as behaving as Heirs which hath always since been followed And therefore no Defense for such Rights will be sustained albeit it were a true Debt of the apparant Heirs and not a simulat Bond granted of designe to adjudge or apprise Neither is it a relevant Defense That the Lands or Teinds were appryzed or adjudged from the Defunct albeit Infeftment had followed thereupon if the heir apparant intromet without Right or Warrant from the Appryser or Adjudger within the Legal Feb. 21. 1663. Henrie Hamilton contra William Hamilton But it is a relevant Exception That the apparant heir's Intromission or possession was by Right from an Appryser or Adjudger though the Legal was not expired unless the Sum were fully satisfied by Intromission or otherways January 10. 1662. Barclay contra Laird of Cragievar The like though the apparant heir continued to possesse for some time after the Apprysing was satisfied by Intromission Feb. 26. 1663. Cuthbert of Drakies contra Monro of Foulis Yea Intromission with the Rents of the Defunct's Land by his apparant heir waselided by a Tollerance from a Donatar of Recognition albeit not declared till after his Intromission the apparant heir paying the single value of his Intromission July 17. 1666. Thomas Ogilvie contra Lord Gray But a Tollerance from Apprysers after their Intromission was not found relevant July 11. 1671. Sr. George Maxvell contra Maxvel Yet the apparant heir's Intromission was elided because the Defunct's Rights were improven though after the Intromission March 22. 1628. Roderick Farquhar contra Campbel of Kingingcluch And an apparant heir's Intromission was elided by a colourable Title though not valid whereby the heir of a Marriage being entered and infeft as heir to her Mother yet her Infeftment being reduced and her Father being found Feer in a dubious provision of Conjunct-fee the heir so served was not found liable as behaving as heir to her Father but only quoad valorem of her Intromission July 12. 1671. Adam Gairns contra 〈◊〉 Sandielands But it was not elided because the apparant heir past by his Father and was infeft as heir to his Good-sire though his Father was infeft that colourable Title was not sustained the apparant heir being in mala fide having the Evidents in his hands November 23. 1671. Rorieson contra 〈◊〉 Yet Behaving as heir was not inferred by the heir apparant's intrometting with the Rents of Lands which his predecessor had disponed in trust to a third party for the behoofe of the apparant heir and whereupon the Intrusted was infeft January 14. 1662. Nicol contra Home of Plandergest But Intromission by the apparant heir was elided by a Disposition by a Defunct to the apparant Heir's Son his Oye though without
the Neices name seing he filled it not up till the granters Sicknesse July 22. 1678. Birnies contra Polmais and Brouns But Death-bed was not found to hinder the recalling of a Disposition made by a Grand-father to his Oye and delivered to a third Party in Leige poustie if it should appear that the delivery was not Simply to the behove of the Oye whereby it became Irrevocable but Conditionally that the Disponer might recal it for eviden ce whereof it was proven by that third Parties Oath That the Defunct on Death-bed called for it and he delivered it and that the Defunct on Death-bed delivered two Blanks for dividing the Right in the first Disposition which he delivered with his said first Disposition to a Nottar And ordered the filling up of the one half to the Heir the other half to a second Son but for further clearing the Partie to whom the first Disposition was first delivered was appointed to be examined what the Defunct exprest when he delivered the first Disposition to him Decem. 9. 1676. Janet Ker contra Ninian Ker. But thereafter the third Partie not being found to be examined The Lords found that there being nothing proven exprest at the delivery The recalling and the re-delivery did import that the delivery was not Simple to the behove of the Oye making it Irrevocable But that it was Conditional to be delivered to the Oye if the Disponer did not recall it and that his recalling of it for a special effect to divide the same betwixt his Heir and the second Son was effectual both against his Oye to whom he first Disponed and as effectual against his Heir as to the one half albeit the Revocation was onDeath-bed Seing thereby the Heir had no prejudice but benefit being formerly Excluded by the Disposition to the Oye delivered in Liege Poustie January 25. 1677. inter eosdem 30. But onlyFree deeds onDeath-bed are thusReduceable for if there were an equivalent Cause Onerous which was truly Imploy'd upon the Defunct or might affect the Heir it is not to the Heirs Prejudice and so not Reduceable thus the Reason of Death-bed was eleided because the Band quareled was offered to be proven for Furnishing truly Delivered to the Defunct July 13. 1632. Pollock contra Fairholme The like of a Discharge granted by a Bastard after he was Infected of the Plague against the Donatar of the Bastardry November 23. 1609. Marr contra Auchinleck In all these Witnesses are Sustained to prove the Cause Onerous in the write And likewise a Band granted on Death-bed being proven for a Cause Onerous in part viz. Droggs and Service to the Defunct on his Death-bed was sustained pro tanto and Reduced for the rest January 7. 1624. Schaw contra Gray But a Liferent granted to a Wife on Death-bed and a Liferent-Tack of Teinds of the Lands Liferented were not reduced Hope Teinds Lady Dunlap contra Laird Dunlap The reason whereof is observed to have been because the Husband before Sickness was bound to Infeft his Wife in Lands or Anualrent equivalent Nicol. de haereditarijs actionibus inter eosdem 31. AsDeeds on Death-bed prejudge not the Heir So deeds in Testaments though done in Leige Poustie have no more Effect then on Death-bed And it is not habilis modus by Testament to dispone any Heritable Right December 14. 1664. Colvin contra Colvin Death-bed is not competent by Exception but by Reduction January 11. 1666. Grizell Seatown contra Dundas But in Declaratorie or Petitory Actions as Recognition it is receivable by Exception July 20. 1669. Barcley contra Barcley Or in a Reduction it is competent by Exception or Reply February 3. 1672. Barbara Hoom contra Bryson A third difference is that Successors in Moveables or Executors are not lyable Passive for the Defuncts Debts in Solidum but Heirs are Though they farr exceed the Value of the Inheritance without the benefit of an Inventar And though Craigs Opinion is that Heirs may Renounce even after their Entry if the Heritage appear overburdened The course of Decision since his time hath cleared the Contrary 32. Because Heirs entring cannot Renounce there is Annus deliberandi allowed to them by Law in which they may abstain from entering and Immixing themselves with the Heritage and then they are not conveenable for the Defuncts debt upon charges to enter Heir or otherwise but if they enter or meddle sooner they are lyable This Annus deliberandi is ordinarily accounted a year from the Defuncts Death which was so accounted though during a great part thereof the Heir remained unborn February 7. 1610. Knows contra Menzies But the Contrary was found thereafter that the year was accounted from the Birth of the Posthumus Heir that the benefit of Deliberation might be profitable to his Tutor in his Name Spots Heirs Livingstown contra Fullertown If the Day of Compearance be after the Charge to enter Heir and after the year it will be Susrained June 27. 1667. Dewar contra Paterson In which case it was found that even Actions Real as Reductions 〈◊〉 c. which require no Charge to enter Heir are not Competent within the year of Deliberation because in these the Heir cannot Defend without the Hazard of behaving as Heir 33. Succession in Heritable Rights in Scotland are either by the will of the Fiar or by Law Provistone Hominis or Legis Heirs by the 〈◊〉 of Law are called Heirs of Line as befalling by the Line of Succession appointed and known in Law all other Heirs do Cross or Cut that Line and therefore are called Heirs of Tailzie from the French word 〈◊〉 to Cut whence Craig conceiveth this Tailzied Succession hath been first denominat amongst the French and Normands and thence being brought into England by the Normand Conquest both in Custom and Name hath been Derived to Us Yet it is liker to have come to us Immediatly from France with which we keeped greater Intercourse then with England of Old And our Tailzies at least to Heirs Male are Ancienter than the English which begun but from the Famous Law called the Second Statute of Westminster in the Reign of Edward the First of that Name of the Normand Line Heirs of Tailzie are also called Heirs of Provision which terms are Equiparat both comprehending all Heirs which are not according to the Line or Course of Law and among others Heirs Male and Heirs of Marriage Yet our Stile doth ordinarily distinguish them so that where there is no alteration from the Lineall Heirs Male and where there are severall Substitutions of certain Persons or Lines failling others by the tenor of the Infeftment they are Specially called Heirs of Tailzie but when there is an Alteration of the Lineal Succession yet not Simply to Heirs Male nor to divers Members of Tailzie they retain the common Name of Heirs of Provision as is most ordinar by Contracts of Marriage providing Lands to the Heirs of the Marriage whereby the Heirs Lawfully Procreat betwixt the
January 29. 1673. Stewart contra Stewart But Conquest is only understood of what the Husband acquired more after his Contract of Marriage than what he had before And therefore if he acquired Lands Annualrents Sums or Goods if he instruct That he had as much or a part thereof before as he sold the superplus will only be counted Conquest And though he have not disponed on any thing he had before 〈◊〉 〈◊〉 he contract Debt for purchasing the Conquest it will be burthered with the Annualrent of the Debt as was found in the former cases And the like December 20. 1665. Lady Kilbocho contra Laird of Kilbocho June 27. 1676. Earl of Dumfermling contra Earl of Callender The like was found in a Provision of Conquest of all the Husband 's Goods and Geer acquired during the Marriage to the Wife for her Liferent use which was found to be with the burthen of the Husband's Debt contracted before or after and so to import only Liferent of the free Geer December 23. 1660 Jane Smith contra Margaret Muire And where a Husband was obliged to imploy a definite Sum for himself his Wife and Bairns of the Marriage and also his Conquest and having acquired a Tenement during the Marriage to himself and his Heirs whatsoever that Tenement was applyed to the definite Sum primo loco and the superplus as a Conquest January 4. 1672. Beaty contra Roxburgh So much for the Being and Interest of Heirs As for the proving and instructing who are Heirs the most ordinary by way of Retour or Infefment as Heirs or by a Service though not Retoured but those Instructions must be repeted in every several Process For so an Heir active was found not to be instructed by a Decreet at his instance as Heir against the same Defender and in the same Matter without reproduction of the Instructions Feb. 22. 1629. Stewart contra Wilson neither was it instructed passivè by a Decreet of the Comissars by production of the Defender's Seisine without 〈◊〉 thereof Had. Neither was it instructed passivè by the Kings gratuitous Restitution of the apparant Heir of a forefault Person which made him capable of his Father's Rights but not Heir nor Successor to him Hope forefaliure Halyburton contra Lord Balmerino Neither by a Bond wherein the Party designed himself Heir or at least apparant Heir which relateth nothing to the benefit of Succession January 24. 1626. Laird of Glenkindie contra Crawfoord Neither by an Award of a Town Court recognoscing a Burgess Heir to his Predecessor Spotswood Heirs Gudelet contra John Adamson TITLE XXVIII Behaving as Heir 1. Gestio pro Haerede described 2. The time when this passive Title was introduced 3. The reasons of introducing it 4. The latitude used in this Title 5. This Title not competent after the Intromette's Death or where there was any colour able Title 6. Behaving as Heirs by Intromission with Heirship only competent against Heirs of Line 7. Intromission of Tutors or Curator's infer not gestionem against the Pupills or Minors 8. Cases inferring gestion by Intromission with the Heirship moveables 9. Exceptions against this member of the Title As first The Pursuer must instruct that the Defunct was either Barron Prelat or Burgess by Infeftments of Lands or 〈◊〉 10. The 2. Defence against Intromission with Heirship Moveables and vitious Intromission That the Defunct died Rebel and his Escheat gifted before intenting the Creditor's pursuit 11. The 3. Defense That the apparant Heir intrometted by a Gift to himself or to his behoofe 12. The 4. When Moveables belonging to a Defunct remain in his House whereunto his apparant Heir hath right by Infeftment 13. Gestion by intrometting with Lands Tiends or Tacks wherein the Intrometter might be Heir 14. Defenses against this member 15. Gestion by intrometting with the Defunct's Charter Chest. 16. Item by intromission with Sums due to the Defunct or doing any Deed that may transmit the Defunct's Right 17. This passiive Title excluded unless established in the behavers in the behavers life-time 18. How far Heirs Portioners behaveing as Heirs are lyable and whether behaving as Heir excluds the benefit of 〈◊〉 and relief competent to Heirs actually entering GESTIO PRO HAEREDE is the apparant Heirs disorderly Entry and immixing himself with the Heritage without order of Law and therefore it gives him no Right nor Active Title as Heir but makes him only Heir 〈◊〉 whereby he represents the Defunct in all his Debts and Burthens and is lyable for them all 2. This passive Title as Spots observes was but introduced by the Lords of Session and was not before the institution of the Colledge of Justice the apparant Heir being only lyable for restitution of the single value formerly As was found in the case of an Heir's Intromission with the Heirship moveable November 14. 1546. Janet Seatoun Lady Dirlton contra Anna 〈◊〉 3. The reason of introducing this passive Title is in favour of Creditors that they be not un-satisfied or shifted by the heirs of the defunct Debitors who if they might continue possession of their Predecessors Means and Estate and be but countable would rarely enter and hundle up their Intromission and with time ascribe it to singular Titles abstracting their Predecessors Rights And therefore it is an expedient Custom that they should either enter legally and for good and all or that they should wholly abstain Especially seing the Law allows them a year to enquire into the condition of the Desunct's heretage whether it will afford them losse or gain during which time they may deliberat and if they abstain can be troubled by none So that though it may seem rigourous for a small Intromission to make the Intrometter lyable for all the Defunct's Debts how great soever Yet it being so easie to abstain and the hazard known the Expediency and Favour of the Creditor proponderateth the wilfull Disadvantage of the Debitors Heir 4. In this Title the Lords have always taken great Latitude and sometimes have found smal Intromission not relevant to infer this Title in odions 〈◊〉 November 6. 1622. Laird of Dundas contra Hamilton of Peill Where a Decreet of Spulzie of Tiends being obtained against Peill's 〈◊〉 and never insisted in till in his time he was convened as Heir to his Father who had behaved himself as Heir to the Good-sire in so far as he had entred and dwelt in the house of Peill and there being in the house the Goodsire's best Board standing Bed and brewing Caldron he used the same by eating at the Board lying in the Bed and brewing in the Caldron and desivered the Good sire's Beiff Pot to a Flesher for Flesh furnished to the Defender's Father the Defenders Mother having keeped possession of these Heirship Goods for five years before 5. Yet this Condescendence was not found relevant in this Case The passive Title was not established before the Defender's Father's Death As the Lords lately found That these passive Titles quae sapiunt