in the Fathers Goods in respect of that Community of Goods betwixt Man and Wife and the Conjugal Society even naturally whence the Goods are derived into the Issue of the Lawful Marriage This Paternal Authority doth not necessarily carry the property and disposal of the Goods of the Children but that they are capable of such by the Gift of their Parents or any other ways even in Infancy and that they have the full Dominion and Administration thereof in their full Age And therefore Bonds of Provision by Fathers to Children if delivered are not Revockable directly nor indirectly by contracting Debts thereafter And the delivery of such Bonds of Provision makes them irrevockable whether the delivery be to the Children or to any other for their behoove which behoove will be presumed unless the Father express his mind at the delivery that the Write is to be returned to himself or depositate upon terms and therefore a Bond taken By a Father in the name of his Brother the Father obtaining an Assignation from him to his Daughter the Bond was not found Revockable by the Father being Registrate in the Brothers Name November 20. 1667. Executours of Trotter contra Trotter Childrens provisions by Bond granted after a Testament nominating them Executours found not to import that they should have the Executry if the Heir be oblieged to pay the Bonds of provision but that the Bond being Moveables should first affect the Executry February 22. 1677. Belfhes of Tofts contra Belshes And a Father granting Bond to a Bairn in satisfaction of her Portion natural was not found thereby to apply that Bairns Portion natural to the Heir Executour or unlversal Legator though they would be lyable for payment of the Bond but to apply that Bairns share to the rest of the Bairns who thereby will have the whole Bairns part February 17. 1671. Mistris Katharine Mcgill against the Viscount of Oxford for Bonds of provision delivered in liege pousty do as other Debts affect the whole Executry and where all the Bairns had Bonds of provision bearing in satisfaction they had also their Bairns part of the Executry July 16. 1678. Murrays contra Murrays But Bairns provisions payable at such a day and not bearing the proportion of the deceasing to accress to the surviving the share of these Bairns who dyed before that age without Issue was not found due February 22. 1677. Belshes of Tosts contra Belshes The delivery of Writes in other cases is presumed from the date if they be in the persons hands in whose favours they are granted but in competition with other Creditors the delivery of Bonds of provision is not presumed to have been from the date but that 〈◊〉 be instructed by some evidence as taking Seasing Registration or Witnesses who saw the same in the hands of the Children or others to their 〈◊〉 and in that case they are valide if there be no 〈◊〉 or prejudice to Creditors by latency or 〈◊〉 and therefore Bonds of provision to Children were reduced upon the eldest Sons Contract of Marriage though 〈◊〉 January 10. 1668. Laird of 〈◊〉 〈◊〉 his Brothers and Sisters And a posteriour Tocher was preferred to a prior Assignation to a Bairn in Family unless the prior delivery were also proven November 14. 1676. Major Ingles contra 〈◊〉 June 〈◊〉 1668. Johnstoun of 〈◊〉 contra Isobel Arnold But from this paternal power it follows that the Parents may continue and keep their Children in their Families and that they are oblieged to imploy their Service and Work for the common interest of the Family and what thence arises is the Parents not their own which doth always indure till by consent of the Parents they become 〈◊〉 〈◊〉 whereby they may imploy their Work and Service for themselves alone Thus the interest of Parents in the Persons and Goods of their Children by the Law of Nature being cleared As to the Obligations Natural of Parents toward their Children beside their Obligations that stand and are acted in the Mind and Affections which the Law respecteth not but these only qua non mente sed manu tenentur the main Obligations are Education and Provision The Education of Children consisteth not only in the Care and Intertainment of them during Infancy but especially in Breeding of them for some Calling and Imployment according to their capacity and condition 7. The duty of provision of Children comprehends not only their Aliment and Intertainment in Meat Cloaths Medicine and Burial which may be competent during the Parents Life but also competent provision after the Parents Death for the Apostle saith That he that careth not for his family is worse then an Infidel 1 Tim. 5. vers 8. And in both the ability of the Parent and necessity of the Children is to be considered for if the Children be 〈◊〉 provided aliunde the Parents are not bound and though the Children be necessitous yet there must first be reserved for the Parents that which is necessar for subsistence so that when they are not able to intertain their Children they may lawfully expose them to the mercy and charity of others But a Father though indigent was decerned to receive his Son having no Means or Calling into his Family or to pay him a modification January 13. 1666. William Dick contra Sir Andrew Dick. But a Father was not found lyable to pay a Merchant for Furniture given to his Son where he gave his Son an allowance in Money for his Cloaths January 〈◊〉 1672. High 〈◊〉 contra Craufoord of Camlarg Neither was a Father found lyable for his Daughters Bridel-Furniture to a Merchant whom he prohibit to give them off but the Daughter and her Husband July 〈◊〉 1672. 〈◊〉 contra 〈◊〉 and Gairn and a Mother was found oblieged to receive her Children into Family but for no other modification though they were Noble Persons there being none representing the Father able to intertain them February 23. 1666. Children of the Earl of Buchan contra the 〈◊〉 As to the Interest Children have in the Goods of their Parents it is to be considered either during the Parents Life or after their Death for the Interest they have after their Parents Death it falleth in to be considered among the conveyances of Rights by Succession but during the Parents Life they have no real Right of Dominion or Property in the Parents Goods for though the Parents be oblieged naturally to Intertain and Educate their Children out of their Goods yet that is but a personal Right and intituleth not the Children to meddle with the Parents Goods upon that pretence as saith Solomon Prov. 28. vers 24. Who robbeth his Father and Mother and sayeth it is no transgression the same is the companion of a destroyer 8. The Obligation of Children toward their Parents consists mainly in their Obedience to them and their duty to Aliment and Supply them in all their necessities according to the Childrens ability their Obedience to their Parents is much
hereafter Teinds also must come in as Servitudes though they are accounted a distinct Right 1. The Roman Law divideth personal Servitudes into Usufruct Use and Habitation Usufruct is the power of disposal of the use and fruits saving the Substance of the thing which if it be restrained to these persons and their proper use without making profite or disponing to others it is called the use and because of some special Consideration in the Law of that use of Houses Habitation is a distinct Servitude from other uses 2. All Servitudes with us come under some of the kinds before named Personal Servitudes are either constitute by the deeds of men or by the Law which provideth a competent portion to either of the surviving Spouses out of the Lands and Tenements of the other during the Survivers Life as if the Wife survive she hath the third of her Husbands Tenements and if the Husband survive he hath the Liferent of the Wifes whole Tenements and that provisione legis alone But other Liferents constitute for surviving Spouses or otherways are provisione hominis So may the Terce or Liferent by Courtesie be provided and some things altered from the course of Law but oftner Liferents are constitute by Conjunctfee and most ordinarly otherways which therefore retain the common name of Liferents appropriat thereto and distinct from Conjunctfees 3. Liferents are sometimes provided particularly and sometimes generally for the whole or such a share of the Conquest during the Marriage which though not fulfilled by the Husband in his Life is effectual against his Heirs and is not accounted a fraudulent provision though it be the whole Conquest even amongst Merchants yea it was found effectual for recovering the rents of the Conquest Lands without Infeftment against the Husbands Heir in the case of the Relict of Johnstoun Merchant in Glasgow And where a Husband purchased Lands in favours of his eldest Son being then an Infant and not to himself yet his Relict was found to have Right to her Liferent thereof as being a fraudulent deed in prejudice of the obliegement of Conquest July 3. 1627. Countess of Dumfermling contra the Earl of Dumfermling her Son But these provisions of Conquest do not hinder the Husband acquirer to denude himself wlthout Fraud for any onerous or just cause as selling for a price or disponing to Children whether it be the appearand Heir by ordinary Terms of Contracts of Marriage to younger Children or to Wives of subsequent Marriages June 16. 1676. Katharin Mitchel contra the Children of Thomas Litlejohn And such a Clause being of all sums acquired during a second Marriage was found to annul an universal Legacie to the eldest Son of the first Marriage but not to annul competent provisions to the Bairns of the first Marriage June 19. 1677. Murrays contra Murrays The like January 3. 1679. Mr. Alexander Gibson contra Elizabeth Thomson Yea a Clause providing the present Stock and all the Conquest to the Bairns of the Marriage whilks failing the one half to the mans Heirs the other to the wifes Heirs was found to make the man Fiar and not to hinder him to provide his whole means which were very great to his Bairns of a subsequent Marriage there being no Bairns surviving of the former marriage December 1. and 21. 1680. Alexander Anderson contra Andrew Bruce But as to such Clauses Conquest is only understood where the Husband acquired more then he had the time of the Clause but not when he sold some Lands and acquired others of no greater value June 27. 1676. Earl of Dumfermling contra Earl of Callender yea a Clause of Conquest in a Wifes Contract of Marriage who was otherways sufficiently provided was found to be with the burden of the Annualrent of a sum which the Husband declared under his hand to be a part of the price of the Lands acquired remaining due to the seller Decem. 20. 1665. Lady Kilbocho contra Laird of Kilbocho 4. This is common to all kinds of Liferents and involved in the nature thereof that they must be salva rei substantia which by Statute is especially extended to Conjunctfiars and Liferenters that they must be countable and find surety not to wast or destroy the Biggings Orchards Woods Stanks Parks Meadows or Dovecoats but that they hold them in such like kind as they receive them Par. 1491. cap. 25. which is confirmed and declared to proceed upon twenty one days by Sheriffs Bailies of Burghs or Regalities under pain of Confiscation of the Liferent-right to the Kings use Parliament 1535. cap. 14. And though the Narrative of the Statute expresseth Conjunctfiars and Liferenters giving Caution as being most ordinary by provision of men yet the Statutory part is general at least may be extended to Terces and Liferents by the Courtesie So a Liferenter was Charged Summarly to uphold the 〈◊〉 Liferented and to leave it in as good case as she found it without precognition how it was the time of her Entry March 28. 1626. George Foulis contra Isobel Allan By Act of Parl. 1594. cap. 226. Anent ruinous Tenements within Burgh which being cognosced by an In quest to be ruinous as become or which may become within a short time uninhabitable the same must be repaired by the Liferenter or the Fiar may enter in Possession finding Caution within the Burgh to pay the Liferenter the Mail thereof as the samine gave or might give the time of the precognition but this Act was not found to derogat from the former Acts nor that Precognition was requisit before finding Caution except in Tenements within Burgh decayed before the Liferenters entry as was found in the foresaid case George Foulis contra Isobel Allan Neither was the Liferenter freed from Caution upon her offer to quite the Possession to the Heretor for paying of the Rent the Tenement not being ruinous at her Entry 5. It is also common to Liferents and Conjunctfees that the Liferent-right is lyable with the Superiour of Ward-lands or his Donatar for an Aliment to the Heir to be modified by the Lords proportionally according to the quantity of the Land in Ward and Liferent by the said Statute 1491. cap. 23. Vide Tit. Heirs § 3. 6. Liferents are either Constitute by way of Reservation in Infeftments of Property or otherways by a several Infeftment but it cannot become a real Right and be effectual against singular Successours without Infeftment though most Servitudes may be Constitute by Disposition and Possession 7. Yea though Liferents being Constitute by Infeftment may be conveyed by Assignation because there can be no subaltern or renewed Infeftment of a Liferent which is only personal to the Liferenter and the Right is incommunicable yet the Fruits and Profits arising thence are communicable and assignable 8. It is also common to Liferents that nothing done after their Infeftment by the Constituent or his singular Successor can prejudge the Liferenter And so an Appryzer from the Husband was
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
Liferent of these Tenements after which the Father having Infeft her of new in that half the said last Infeftment was found reducible at the instance of the Bairns as heirs of the Marriage and that they were not oblieged to fulfil their Fathers Deed in favours of their Mother who was competently provided in respect the same was contrary the provision in the Contract of Marriage July 10. 1677. Carnagie and Clark contra Smith and Baird Yea a Father by his Contract of Marriage having provided a definite Sum to the eldest heir Female of the Marriage and thereafter having disponed his Estate to her she marrying a Person that would assume his Name and Arms wherein if she failzied providing the same to his second Daughter upon the same terms c. the said eldest Daughter having married suteably before she knew that Disposition and her husband refusing to take her Name she was found to have Right to take her to her Portion by her Mothers Contract and so the Right of her Fathers Estate was divolved to her second Sister upon the terms therein contained who was found lyable to pay the Provision to her eldest Sister contained in her Mothers Contract July 26. 1677. John Stevinson contra Marion Stevinson But these Provisions do not hinder just and rational Deeds of the Father as providing a Joynture for a posterior Wife as was found in the Case of Katharine Mitchel contra the heirs of Thomas 〈◊〉 June 16. 1676. Nor will they hinder Fathers to provide Children of an other Marriage with competent Provisions according to his condition though thereby the conquest during the Marriage will be affected Yea where in a Contract of Marriage the Husbands present Means and the Wifes Tocher were provided to be imployed for the Man and Wife in Liferent whilks failing the one half to the Mans heir and the other half to the Womans heir There being no Bairns of the Marriage the Husband was not found lyable to imploy that Sum and the conquest in favours of himself and the Wifes heirs but that he might imploy the whole in favours of the Child he had by a posterior Marriage December 21. 1680. Bailiff Anderson contra Andrew Bruce 20. The exception that all Parties having Interest are not called will be sufficient to sist Process against such Heirs as have the benefite of discussion without necessity to condescend or instruct any Right they may succeed to January 24. 1667. Laird of Luss and Glendening contra Earl of Nithsdale 21. But the exception of the order of discussing will not be sustained unless the Defender condescend on and clear an Heritage to which the anterior heir may succeed which being a Dilator must be instantly verified as where it is notour and where that cannot be sometimes Process will be sustained against both heirs of Line and of Tailzie together superceding Execution against the heirs Male or of Tailzie till the heir of Line were discuss'd July 13. 1626. Edgar contra Heirs of Craigmiller And heirs of Line and Provision being pursued joyntly the heir of Line renouncing was assoilied and Protestation admitted for Adjudication against the heir of Line which the Pursuer was ordained to assign to the heir of Provision and was not found oblieged further to discuss the heir of Line or to put him to his Oath upon any other passive Title seing the heir of Provision required not the same when the heir of Line renounced nor shew any visible Estate which might befall to the heir of Line June 22. 1678. Thomas Crawford contra the heirs of the Laird of Rater The question is here what is meaned by discussing which is not understood by that heirs renouncing to be heir July 26. 1622. Cowan contra Murray but in that Case the renounced Heritage must be adjudged Discussing therefore is by Horning Caption and Apprising March 22. 1627. Edgar contra Heirs of Craigmiller or otherwise by Adjudication in case the heirs renounce by alledging his behaving as heir was found in the foresaid Case Cleghorn contra Fairlie This passive succession of heirs in their Predecessors Debts and Obliegments making them personally lyable thereto befalleth in three Cases First When the Heir is entered heir 2. When he is not entered but immixeth himself by medling himself as heir or becoming lucrative Successor after the Debt contracted 3. When the Heir is lawfully charged to enter Heir though he hath neither entered nor medled if he do not renounce he is personally oblieged and if he do renounce his Person and proper Estate is free and only the Heretage is lyable and the Creditor hath Action contra haereditatem jacentem The first Case is most ordinary and orderly the second inferreth the vitious passive Titles Gestionem pro haerede or Preceptionem haereditatis of which in the ensuing Titles Let us here consider first the Charge to enter Heir which is antecedent to the Entry and then the Entry of Heirs it self 22. The Charge to enter Heir is founded upon the Act of Parliament 1540. cap. 106. and it is of two kinds a general Charge and a special Charge The general Charge to enter Heir proceedeth thus the Creditor upon Supplication without Citation obtaineth from the Lords of Course Letters passing under the Signet to charge the Party complained upon to enter heir to the Compleaners Defunct Debitor within 40 days after the execution of the Charge with Certification if he enter not such Process will be granted against him as if he were actually entered Heir The reason of this Charge with us is because Heirs are not lyable passive if they enter not nor immix themselves in the Heretage and therefore that the Creditor may not ly out beyond the Year and Day granted to Heirs to deliberate the Law hath introduced this remeid that the Creditor may charge the Debitors appearand Heir to enter whereupon he hath personal Action against him if he renounce not and thereupon may reach not only his Heretage but his own proper Goods belonging to him aliunde and if he renounce he hath Action contra haereditatem jacentem The general Charge to enter Heir may be execute against the appearand Heir after the Defuncts death even within the annus deliberandi but the Summonds thereupon must be after the Year and day expired not only from the Defuncts death but from the Heirs 〈◊〉 if he be posthumus Spots Heirs of Livingston contra Fullertoun and therefore a Summonds execute after Year and Day expired upon a Charge to enter Heir within the Year was sustained June 19. 1628. David Maculloch contra Marshal and Reid July 10. 1610. Neil Montgomery eontra Laird of Langshaw There is also an Act of Sedorunt in Anno 1613. allowing general Charges to enter Heir within the Year and Day or within the days of the Charge if the Heir renounce and omit that Defence the Decreet Cognitionis causa and Adjudication thereupon werefound valid and that alledgance proponed by another Creditor was repelled because
alter the succession without a necessary or just consideration and so do exclude deeds fraudulent or meerly gratuitous which might evacuat the effect as to the heirs of the Marriage so that if there were heirs of the Marriage and also heirs of another Marriage the Father could not alter the Succession in favours of the heirs of another Marriage because of the interest of the Wife and the Tocher she-brings But it doth not hinder the Father to give competent portions to the Bairns of another Marriage June 19 1677. Murrays contra Murrays Neither did such a Clause of Conquest during the Marriage exclude a competent Liferent constitute to Wife of a subsequent Marriage albeit there were Bairns of the first Marriage June 16. 1676. Katherine Mitehel contra Children of Thomas Littlujohn Yet where there survived no heirs of the Marriage a provision in a Contract of Marriage that such a sum the future Spouse then had and all they should acquire during the Marriage should be taken to themselves in Conjunct-Fee and to the heirs of the Marriage whilks failzing the one half to the Mans heirs and the other half to the Womans heirs found to constitute the Man Fiar of the whole and that he might provide both the first Stock and all the Conquestro his Children of a posterior Marriage which was found no fraudulent 〈◊〉 meerly gratuitous deed December 1. and 21. 1680. Alexander Anderson contra Androw Bruce 42. Infeftments to more persons subordinat are such as are taken to Parents and after their decease to such Children and other persons named whereby the Parent is understood to be Fiar and not Liferenter and the Children or others to be Heirs substitute albeit both the Father and the Bairns named were Infeft July 23. 1675. Laird of Lambingtoun contra 〈◊〉 of Annistain But where the Band did bear a sum lent by a Father for himself and as Administrator for his Son and that the Money was the Sons and payable to the Father and after his decease to the Son was found to constitute the Son 〈◊〉 and the Father only life-renter February 14. 1667. Campbel contra Constantine 43. The third division of Infeftments is in respect of the succession and they are either simple or Tailzied Simple Infeftments are these which are taken to Heirs whatsomever for by that expression we express the lineal Heirs who according to Law would succeed in any Heretable Right But Tailzied Infeftments are where the Lands are provided to any other then the Heirs of Line as when it is provided to Heirs Male or Heirs Male of the Fiars own Body or to the Heirs of such a Marriage or to the Heirs of Titius whilks failzing to the Heirs of Seius c. Of these Tailzies there are many several ways as the Fiar pleaseth to invent and ordinarily in them all the last Member or Termination is the Heirs whatsomever of the last Branch or Person substitute or the Disponer and when that takes effect by succession the Fee which before was Tailzied becomes simple A Tailzie must necessarly be a part of the Infeftment for no write apart can constitute a Tailzie though Bonds or Contracts of Tailzie as personal or incompleat Rights may force the Contracter or his Heirs to perfect the same They must also be constitute by the Superiour being a part of the Infeftment granted by him either originally in the first Constitution of the Fee or thereafter by Resignation or Confirmation and as a Superiour is not oblieged to alter the Tenor of the first Investiture or to accept a Resignation or grant a Confirmation in any case except where it is provided by Law whereby he is necessitat to receive Appryzers and Adjudgers So neither in that case is he oblieged to constitute a Tailzie but only to receive the Appryzer or the Adjudger their heirs whatsomever unless the Debt and Decreet whereupon the same proceeded be conceived in favours of Heirs of Tailzie in which case the Appryzing or Adjudication and Infeftment thereupon must be conform unless it be otherways by consent of parties Tailzies also being Constitute are broken or changed by consent of the Superiour accepting Resignation in favours of other Heirs whether the resigner resign in favours of himself or his heirs whatsomever or in favours of any other and their heirs But most ordinarly by Appryzings or Adjudications whereby the Superiour is necessitat to receive another Vassal and his heirs though perhaps he be substitute himself as an heir of Tailzie as if it be provided that failzing other heirs there mentioned the Fee return to himself But Infeftments holden of the King have this priviledge that they are not refused either upon Resignation or Confirmation as the Fiar Purchaser pleaseth Yea it is declared by several 〈◊〉 of the Privy Council that the King or his Commissioners ought not to deny his Confirmation upon the reasonable expenses of the party which Ordinances are repeated in the Act of Parliament and though the design thereof gives not occasion to ratifie the same yet they are contained in the Narrative as Motives of that Statute and therefore are not derogat but rather approven Parl. 1578. cap. 66. And though several Kings have revocked Infeftments granted by them from heirs of Line to heirs Male and of Tailzie yet the effect of such Revocations hath never been tryed by Suite or Decision Conjunct-infeftments to Husband and Wife and their heirs are also Tailzied and though if the heirs of that Marriage be a Son and of a first Marriage he may be both heir of Line and heir of the Marriage yet may he enter as heir of the Marriage and if the Defunct had other Lands provided to heirs whatsomever he may renunce to be heir in these Lands to the effect they may be first burdened with his Fathers Debt and he or his Lands provided to the heir of the Marriage can be but burdened in the second place in subsidium of what is wanting by the Executors or Heretage befalling to heirs whatsoever much more are Infeftments Tailzied which are granted to Husband and Wife and to the Bairns of the Marriage whereby Male and Female come in pari passu Bonds taken to Parents and after their decease to such a Child nominatim whereupon Infeftment followed makes a Tailzied Fee but these are rather called heirs of provision and these are most properly called Tailzied Fees where several Branches are specially substitute one failzing another But seing heirs of Tailzie fall under consideration in the transmission of Rights by Succession we shall insist no further thereon in this place but shall proceed to consider the Clauses which are adjected in Infeftments not being of the Substantials or Solemnities thereof and how far such come in as parts of the real Right affecting singular Successors and how far they are only personal affecting alone the heirs of the Superiour or Vassal And last we shall consider the effects of Infeftments themselves As to the first beside the