Law for such till the Edict of the Pretor quod metus causa gestum erat ratum non habebo l. 1. ff quod metus causa but by that Edict and the Custome of this and other Nations such Deeds and Obligations as are by force and fear are made utterly void though in equity the effect almost would be the same for seing the Delinquence done by Extortion oblieges to Reparation if any should be pursued upon an extorted Obligation he would have the exception of Compensation upon the obliegement of Reparation and so might also by Action obtain such Obligation or other Right to be anulled This Edict was not Competent upon every force or fear but first it behoved to be unlawful l. 3. § 1. ff quod metus causa Secondly Such as might befal a constant man as of Life l. 6 7 8 9. ff l. 9. C. eodem or torment of the Body l. 4. C. eodem or of bondage l. 8. § 1. ff eodem or the loss of Estate l. 9. ff quod metus causa or infamy or disgrace l. 8. § 2. ff eodem or of bonds and prison l. 22. ff eodem but only unlawful and private and not publick Imprisonment l. 3. § 1. ff eodem it was not Competent upon reverential fear l. 8. ff l. 6. C. eodem nor upon fear contracted upon power and dignity d. l. 6. nor of threats l. 9. C. eodem except they were from powerful persons l. 23. § 1. quod metus causa The effect of the Edict was being pursued within a year unless Reparation was made before Sentence the Party was condemned in the quadruple and the penalty was triple and applyed to the Injured and after the year simple Reparation l. 14. § 1. ff eodem Our Customs go much along with the course of the Civil Law in this but so as not bound thereby respecting most when the true Reciprocal Cause of the Obligation or Deed is Force or Fear not being vain or foolish Fear And it is competent ordinarily by way of Action or sometimes by exception Spots Exceptions Tennants of Cockburns-path contra the Earl of Home it was eleided by a Judicial Ratification of the Deed upon Oath July 4. 1642. Agnes Graham contra Anthony Balvaird Extortion is more easily sustained in deeds of weaker persons and therefore Extortion was found relevant to reduce a Disposition by a facile weak person who was apprehended by the purchaser upon a Caption of a third party and detained by his Servants and Officers and not by Messengers and keeped latent in obscure Houses and carried from Place to Place in the Night till he subscribed a Disposition of his whole Estate for a cause not near the third of its value albeit there was produced a cancelled minute to the same effect with the Disposition in question wherein the two Actors of the Force were Witnesses insert but the Disponers name nor no part of it was to be seen but a lacerat place as if it had been cancelled without any anterior adminicle to astruct the truth of it January 10. 1677. Sir Archibald Stuart of Castlemilk contra Sir John Whitefoord and the Duke of Hamiltoun Extortion falls most to be contraverted in deeds done by Wives and therefore when the deed is extreamly to their prejudice and to the behove of their Husbands it is presumed as done ex reverentia maritali Thus a Wifes Discharge of her whole Contract was found null without alledging any Compulsion January 9. 1623. Marshel contra Marshel But ordinarily Marital reverence is not sufficient though the Husband were vir foerox and was thereafter Divorced Hope Husband and Wife Hepburn contra Nasmith In the case of Wives Dispositions or consent to their Husbands Disposition it was found relevant to reduce the same that the Wife at the time of the subscribing before the Witnesses declared that she was compelled providing that a third party a stranger to the Husbands fault were restored Nicol. de his quae vi Lady Cockpen contra Laird of Conheath It was also found relevant to reduce a Wifes consent to her Husbands Disposition because before he had beaten menaced and extruded her for not consenting But in this case it being alledged that the Wife appeared well content at the subscription Witnesses were examined hinc inde ex officio for tryal of the truth June 27. 1632. Cassie contra Fleming But where a Husband was proven to be vir foerox and that he did threaten his Wife to do the deed in question and that she appeared to the Witnesses unwilling the time of the subscription it was found relevant June 24. 1664. Woodhead contra Barbara Nairn But a Wife subscribing her Husbands Testament containing provisions prejudicial to her Contract of Marriage was not reponed as having done it ex reverentia maritali at her Husbands desire who was moribundus he having lien long sick and she having married within a year thereafter and the deed done to her only Daughter January 24. 1674. Marjory Murray and Michael Jaffray contra Isobel Murray Upon the like ground Extortion will be the more easily presumed and sustained in the deeds of the persons who are weak and infirm of Judgement or Courage then of these who are Knowing and Confident and more easily in Deeds and Obligations gratuitous and free then in such as are for an Onerous Cause which will not easily be anulled unless manifest Lesion do appear or that the compulsion be very evident Yet the Resignation of the Earldome of Mortoun in the hands of King James the fifth was reduced because the Resigner was then imprisoned by the King without any visible cause and was discharged the same day he made the Resignation Sinclar April 12. 1543. Earl of Mortoun contra the Queen Metus was sustained to reduce a Bond granted by a party because he was taken by Caption being sick January 22. 1667. Mr. John Mair contra Stuart of Shambelly It was also sustained to reduce a Bond granted by two Sons for freeing their Father who was taken by a Caption though the Charge was suspended he being carryed to the hills and Menaced on his Life though the Sons got abatement and so there appeared a Transaction December 8. 1671. Mcnish contra Spalding and Farquherson 9. Circumvention signifieth the Act of Fraud whereby a person is induced to a Deed or Obligation by deceit it is called dolus malus and it must needs be the cause of the Obligation or Deed and so not be known to the party induced before it can have any legal effect for he who knoweth the snare cannot be said to be insnared but to insnare himself and though deceit were used yet where it was not deceit that was the cause of the Obligation or Deed but the parties proper motion inclination or an equivalent cause Onerous it infers not Circumvention so neither doth error nor mistake though it be the cause of the Obligation or Deed and be very prejudicial to the erring party and though if it
granted after the Liferent Escheat fell in prejudice of the Superiour and Donatar July 3. 1624. Moor contra Hannay and the Earl of Galloway And extended to a Tack or Few of Ward-Lands not Confirmed by the Superiour in prejudice of his Donatar of the Ward March 13. 1627. Laird of Ley contra Blair And extended to the profits of a Procurator-Fiscals place wherein the incumbent served three years without interruption though his Right was reduced thereafter and declared null ab initio February 17. 1624. Thomson contra Law It was also extended to one who having a posterior Right of Reversion first redeemed and possessed thereby as to bygones before the Citation though he had not possest so long as to give him the benefite of a possessory Judgement November 18. 1664. Guthrie contra Laird of Sornbeg It was also sustained against a Minor reducing upon Minority and Lesion yet the possessor by vertue of his Contract was secure as to bygons before Citation here there was a probable cause of contracting for an onerous consideration though not fully equivalent February 16. 1666. Earl of Wintoun contra Countess of Wintoun Upon this Title a Tennent was liberat from removing upon a warning by a Fiar after the death of his Father the Liferenter in respect he set the Tack without mention of his Liferent and was reputed Fiar and therefore the Son was put to a new warning February 16. 1669. Hamiltoun contra Harper Possession bona fide was found to Liberat an Appryzer from being countable to the other Appryzers within year and day July 17. 1675. Bailzie Baird contra Bailzie Johnstoun It was also sustained against the Donatar of forefaulture January 28. 1679. Laird of Blair contra Lady Heslehead It was also sustained upon an Infeftment for relief whereby the rents were to be imputed in satisfaction both of the Principal and Annual February 8. 1676. Margaret Scrimzour contra the Earl of Northesk Yea it was sustained though the possessors Title was forged he being a singular Successor not accessory to or conscious of the forgery even after improbation of his Title was proponed by exception but not sustained but reserved by way of Action in which the Title was found false yet the bona fides was extended to the rents spent till he was put in mala fide by probation of the forgery but he was found lyable in quantum lucratus for getting more price for the Land in question then he payed to his Author therefore December 10. 1677. Dick of Grange contra Sir Laurance Oliphant But no unlawful Possession is valid in this case if it be vitious violent clandestine or momentany But it is not so evident when a possession is accounted momentany sure little time will suffice in Moveables but in Lands more time is required a year or term or less time may suffice This Right is different from the possessory Judgement competent upon Infeftments which require longer time and because it is an effect of Infeftments Tacks or the like we shall speak thereof in that place If the Possession bona fide be by vertue of a colourable Title though perhaps null in it self upon informalities in the Law requisite or upon Inhibition interdiction or want of power in the granter it is effectual Yet when by a common or known Law the Title is void materially in this case the possessor is not esteemed to possess bona fide it being so evident ignorantia juris non excusat As if a Relict should possess Lands or others the Marriage being dissolved by her Husbands death within year and day November 16. 1633. Grant contra Grant Hereby it is evident that possession hath much in it dictinct and several from Fact and therefore it stands in place of a Title in Ejections and Spuilzies 25. By the Canon Law allowed by our Custom possessor decennalis triennalis non tenetur docere de titulo etiam in causa salsi whereupon Prebendars were assoilzied from production in an improbation of their provisions Hope Improb Bishop of Galloway contra the Prebendars of the Chappel-royal But this holds not in Reductions where the Title is supposed but craved to be reduced upon a better Right as when the debate is who hath the right of Patronage Earl of Wigtoun contra Drummellier July 24. 1622. Earl of Wigtoun contra Bishop of Glasgow for in these cases an Ecclesiastical persons Title was to be reduced in consequentiam with the Patrons Title which hath not this priviledge But this possession must be as being holden and repute a part of a Benefice and must be proven by Witnesses and therefore the possession of Lands by tollerance was found probable by Witnesses to elide thirteen years possession thereof by a Minister who pretended to it as a part of his Glibe Ministers of contra Duke of Bucleugh And if the Church-mens Title can be found their possession will be ascribed thereto and regulate thereby And therefore the Bishop of Dumblain as Dean of the Chapel-Royal having long possest ten Chalders of Victual as a part of his Benefice there being found a Mortification of that Victual by the King bearing the King to have had right by Disposition from another and that others right being produced did bear Reversion in the body thereof for seven thousand Merks which being payed to the King when the Bishops were supprest and his grant of Redemption thereupon voluntarly without an Order or Sentence The Church-mens possession more then thirteen years before the Redemption and thirteen years after the Redemption was elided by the reverse Right and Redemption Neither did the Act of Sederunt after the Reformation declaring ten years possession of Kirk Lands before the Reformation and thirty years after to import a right sustain this Church-mans possession That Act being only for Fews granted by Church-men not for rights granted to Church-men July 7. 1676. Bishop of Dumblain contra Francis Kinloch And it was found that thirteen years possession of Viccarage by a Minister did not prefer him to a Tacksman where the Ministers Title was a Decreet of Locality produced and not containing the Teinds in question February 24. 1681 Doctor Lesly contra the Minister of Glenmuck This right in favours of Church-men is by a rule of Chancelary of Rome which hath been continued after Reformation as being convenient that less time and Title should give right to the Church Benefices whose Mortifications may be easilier lost or supprest then other Rights There is also another rule in the Chancelary that triennalis pacificus possessor beneficii est inde securus this rule gives not right to the Church but prefers one Church-man to another if he continue to possess three years without interruption though he could not defend by his Right There is a third Benefite by Possession of Benefices and Stipends by seven years peaceable possession whereby they have the benefit of a possessory Judgement and cannot be called in question but by Reduction or Declarator and
possession as a base Infeftment by Fathers to their Children was not sustained by the Fathers possession whose Liferent was reserved therein June 26. 1634. Dury contra Bruce But a posterior base Infeftment to the Wife was preferred in this case as being cled with the Husbands possession though common author to both the Son and Wife The like of a base Infeftment granted by a Goodsire to his Oy reserving the Goodsires Liferent July 3. 1624. Earl of Annandale contra Johnstoun And an Infeftment by a Father to his Son was not found cled with possession by the Fathers possession though he had a Factory from the Son but it was not alledged that the Father had granted Discharges expresly relating to the Factory July 10. 1669. Gardner contra Colvil Yet in the competition of two base Infeftments the former being granted to a stranger for relief of Caution and the latter granted to a Son and appearand Heir for relief of his Caution exceeding the value of the Lands the Sons base Infeftment though posterior having first attained possession and being without all suspition of Simulation was preferred And it was not found that Infeftments for relief were in the same case with Warrandice Lands where the possession of the principal Lands is fictione juris a possession of the Warrandice Lands These Infeftments being less subject to fraud or uncertainty then Infeftments for relief which relate to personal debts and oftimes generally to all debts or Cautionries contracted or to be contracted which debts may be retired and keeped up and made use of by the Infeftment for relief June 26. 1677. Mr. John Inglis contra Tennents of Eastbarns Infeftments base to Wives not being upon their Contracts of Marriage or in place thereof are not holden as cled with Possession by the Husbands Possession 28. Infeftments by Confirmation do not only require a Charter from the Disponer bearing the Lands to be holden of the Superiour and Seasine thereupon but require also the Superiours Confirmation till which it is no real Right but null but whensoever the Confirmation is added the Right becomes valid from the date of the Infeftment Confirmed as to the right of property and as to the Superiours Casualities and therefore an Infeftment ase not confirmed was found null by exception though cled with some years possession December 4. 1623. Patton contra Stuart and found null though the Confirmation was past the Privy Seal Hope Confirmation Hunter contra Dalgleish And also found null in an Annualrent holden from the Disponer not Confirmed Hope Confirmation Lord Balmerino contra Coatfield But if there were any mid impediment betwixt the Charter Confirmed and the Confirmation it excludeth the Confirmation and whole right as an Appryzing and Infeftment But Confirmation of a right not bearing to be holden of the Superiour but of the Vastal makes it not a publick Infeftment nor takes it away the Superiours ordinary Casualities as Ward but only Recognition and Forefaulture Hope Confirmation Lady Cathcart contra Vassals of Cathcart November 17. 1627. Laird of Clackmannan contra Balnamoon Hence it is that because Confirmation constitutes Rights holden of the Superiour that the first Confirmation makes the first Right though it confirm a posterior Infeftment from the Vassal as is clearly determined in the case of double Confirmations holden of the King Par. 1578. cap. 66. which is not introduced but declared by that Act and holdeth alike in other Confirmations It doth of times fall to be doubtful whether a Confirmation makes an Infeftment publick or not when Seasine is taken upon a precept of Seasine in a Disposition Which Disposition contains obliegments for Infeftment de se ase by Confirmation But the precept of Seasine relates not specially to either obliegement and Seasine is taken thereupon and is afterward confirmed The question comes whether this be only a Confirmation of a base Infeftment to exclude Forefaulture or Recognition or if it doth make the Infeftment publick it is generally constructed as a publick Infeftment as was found July 5. 1680. Bishop of Aberdeen contra Viscount of Kenmure 29. Infeftments upon Appryzing or Adjudication when formally perfected do require Charters to be granted by the Superiours of the Appryzed Lands or other real Rights the Tenor whereof is already set down in this Title and Precepts and Seasines thereupon which have little peculiar differing from other Infeftments as to their Tenors and Effects but that their reddendo is ordinarly general when the Appryzer or Adjudger cannot prove or instruct the Tenor of his authors Right and therefore do bear such duties and services as were contained in the Authors Rights which the Superiour may be charged to renew and make special so soon as the Authors Rights are produced and if they be not so renewed they are understood as Ward-holdings But for Renovation thereof the Appryzer or Adjudger will get Letters of Horning summarly upon the allowance of the Appryzing or Adjudication which will not be excluded although the Superiour have already granted Infeftments in general terms as aforesaid but he must renew the same according to the special Tenor of the Authors Right produced and that without any new composition yea the Appryzers Heirs upon supplication will obtain Letters of Horning summarly for renewing the same and so will his singular Successors but they must pay a years Rent for their Entry whether their Title be Appryzing or Adjudication against the former Appryzer or Adjudger in wich case he may make use of Letters of Horning upon the allowance of his own Appryzing and though his Title be a voluntary Disposition he will get Letters of Horning as succeeding in the place of the former Appryzer or Adjudger to renew and make special the former Infeftment to his Author upon payment of a years duty But Appryzing and Adjudications being legal Dispositions and conveyances of the Authors Infeftment we shall say no further of them in this place but leave them to the Title twenty four where they are considered amongst Dispositions We shall only add here that before the year 1624. Appryzings were left at the great Seal by warrant from the Lords whence Precepts were issued thereupon against the Superiours to Infeft which if they obeyed not Charters were granted by the King to supply their Vice but since they are retained by the Appryzer and he may have Letters of Horning summarly Charging the Superiours to grant Charters and Precepts of Seasine as is aforesaid 30. This also is singular in Appryzings and Adjudications that a real Right of Fee is constitute thereby by a Charge of Horning against the Superiour without Charter or Seasine For such Appryzings or Adjudications are declared effectual by the Act of Parliament 1661. cap. 62. ordering the payment of debts betwixt Creditor and Debitor For after that Charge no Infeftment upon voluntary Disposition or upon any other Appryzing or Adjudication can be granted by the Superiour prefering any other Vassal to the Appryzer or Adjudger whom he
Horn these occurring after the Disposition will be upon the hazard of the Acquirer and not the Authour Disponer But if the Warrandice be in the Superiours Charter burdening himself it will be extended to all subsequent Distresses through his fault and so to Recognition Liferent-escheat or Non-entry but it will not extend to the Forefaulture or Recognition or other fault of the Superiours Superiour Neither will it extend to the Ward or the avail of the Marriage of the Superiour bound in Warrandice failing thereafter unless it be so exprest for no provident man is presumed to guard against these unless it be so exprest and therefore there is little advantage by special Clauses of Warrandice For the general Clauses reaches all Evictions from anteriour Causes yea the effect is the same though there were no Clause of Warrandice exprest if the Right warranted be for Causes onerous viz. sums of Money or equivalent value unless by the special Warrandice future deeds inferring eviction or which would not infer it ex natura rei be exprest Warrandice is never inferred from Infeftments from the King as Supream Superiour and though they were exprest would have no effect neither are the Warrandices of Infeftments by Church-men effectual against their Successors in Office yea express Warrandices of Feus or Tacks of Kirk-lands thereafter annexed to the Crown after the said Warrandice doth neither reach the granters thereof nor their Successors Par. 1587. cap. 29. and cap. 110. The reason whereof is there rendered because the Church-lands were annexed to the Crown by subsequent Laws Infeftments do frequently bear Conditions Reservations Provisions and Exceptions which give great ground of debate which therefore must here be cleared There is no question but Infeftments may either be pure or conditional some conditions are implyed from the Nature of the Right and are effectual though they be not exprest 47. As in Ward-holdings the Vassal cannot alienate without his Superiours is consent which an effectual resolutive condition whereby if the major part of the fee be alienate the whole becomes extinct returns to the Superiour as he gave it 48. Infeftments of Warrandice imply this condition that they should take no effect but in the case of Eviction of the principal Lands Infeftments for relief of Cautionry implys this condition that they shal have no effect till distress and that they shall ceass by relief Infeftments for satisfaction of sums imply this condition that the sums being satisfied they are extinct and the Authors Infeftment revives and stands valid without necessity of Renovation 49. Infeftment given for a particular Office and bear not Assigneys or Substitutes as to be an Ensign-bearer Advocat or Chaplain with Lands and Annual rents annexed does imply this condition that the Heir be capable to exerce these Offices and therefore by his inability they ceass unless they be granted to Assigneys with power of substitution in which case they may be performed by another 50. Infeftments by Excambion do imply this tacit condition that if the one Tenement Excambed be evicted there is recourse to the other Tenement with which it was Excambed for therein Excambion or Permutation differs from Sale this recourse is effectual not only to the Heirs but to the singular Successors of both parties whether by voluntar or Judicial Rights and therefore regress was sustained against an Appryzing prior to the Eviction without necessity to instruct that the Excamber had right when he changed it being presumed that he delivered his Rights to the other party and therefore an old Charter from the King bearing the Lands to have been Disponed in Excambion for the other parties Lands and expressing Regress but without mention of Assigneys yet was found effectual to a singular Successor July 14. 1629. Laird of Wairdess contra Laird of Balcomie In this Process it was found that no person needed to be cited but the present Proprietar of the Lands Excambed and the Heir or appear and Heir of the maker of the Excambion July 2. 1629. inter eosdem and that Regress was effectual against an Appryzer of the Excambed Lands it was so decided December 21. 1623. Earl of Montrose contra Sir George Ker. 51. The Law doth also introduce Conditions in Infeftments which do not arise from their Nature as in Feus by the common Feudal Law and by special Statute with us whereby if the Feu-duty be not payed by the space of two years hail and together that the Feu shall be extinct and lost Parl. 1597. cap. 〈◊〉 It is therefore beyond doubt that such Clauses are effectual whether exprest or not exprest in the Infeftment 52. It is also incontroverted that Liferents one or more may be effectually reserved in Infeftments which will pass therewith as a real burden to all singular Successors and needs no other Infeftment 53. Infeftments are also sometimes burdened with the Exception of other Infeftments which Exceptions if they be in the Dispositive Clause as a burden upon the Infeftment they are effectual against singular Successors 54. Infeftments are also frequently burdened with Faculties or Powers to affect or burden the Lands or others Disponed and that either absolutely at the Disponers pleasure for such sums to Children or Creditors which Clauses are frequent in the Dispositions by Fathers to their eldest Son and are very amply Interpret against them and their Heirs though the way of burdening might have been defective as by a base Infeftment not cled with Possession or by Bonds of Provision though no Infeftment follow as was found in the case of the Relict of Robert Earl of Carnwath contra Gavin Earl of Carnwath And a Disposition by a Father to his Son witha power to burden with such a sum a Bond granted thereafter to his Daughter without mention of that power was found effectual against the Son in so far as was not satisfied with the Fathers Moveables June 24. 1677. Margaret Hopringle contra George Hopringle though these might be more strictly Interpret in the case of singular Successors acquiring for onerous Causes And in the case of the Creditors of Mouswal contra the Children of Mouswal who having Disponed his estate to his eldest Son by his Contract of Marriage reserving a power to himself to burden it with such a sum to his Bairns having given them Bonds of Provision with a base Infeftment the same was preferred without Possession by vertue of the reservation to the posterior publick Infeftments of the Creditors for prior Debts seing he had then an Estate sufficient for all his Debts and his Bairns Portions It is no less certain that all the Clauses contained in Infeftments are not real burdens affecting singular Successors such as Warrandice which only obliegeth the Warrand and his Heirs and is meerly personal so then the difficulty remains what Clauses insert in Infeftments are real burdens effectual against singular Successors First then If the Infeftment bear a provision that the person Infeft shall pay such a sum or do such
Earl of Argile as Donatar to his Fathers forefaulture seing the King had done no deed to accept Mcleod as his immediat Vassal but that he was Infeft by Precepts out of the Chanclery passing of course 6. Superiours nor their donatars need not instruct the Superiours Right but the Vassal must acknowledge it or disclaim him upon his peril so it was found in the Casuality of Marriage February 25. 1662. Arbuthnet contra Keiths which will not hold if the Right of Superiority be newly acquired and no Infeftment given to the Vassal or his Predecessors by vertue thereof The Superiours Infeftment gives him interest to pursue Reductions and Improbations against all parties even against his own Vassals who will be forced to produce their rights under the Certification to be declared null or false and feigned though when they are produced they may defend them 7. Superiority carrieth a right to the Service and Duty contained in the Vassals reddendo and that not only personally against the Vassal upon any personal Obligation or Contract in Write but also by vertue of Intromission in meddling with the Fruits and Profits of the Land for all such intromettors may be pursued and distressed personally for the Duties contained in the reddendo which being granted to Masters of the Ground for their Tack Duty against Tennents and all intromettors with the rents is much more competent to the Superiour for his Feu-duty or other Service in kind how far this will be extended to Blensh-duty hath been shown in the former Title And as to Services which are annual as winning and leading of Peats c. these are not due if they be not required yearly in due time whether they be due by Vassals to the Superiour or Tennents to their Master January penult 1624. Carnowsie contra Keith So Service of Harrage and Carriage in a Feu-duty was found not due but when demanded within the year June 27. 1662. Mr. David Watson contra Mr. James Elleis 8. But also the Superiority carrieth the right to the duty of the reddendo really against the ground of the Fee for which he hath Action of Poinding of the Ground against the Vassal and all singular Successors to him whereby he may appryze the Goods upon the Ground or the Ground-right and Property of the Lands the saids Duties being liquidat upon repayment whereof the Lands are redeemable as in other Appryzings 9. Superiority carrieth the Right of Jurisdiction over the Vassals Lands and Inhabitants thereof if the same be granted to the Superiour in his own Infeftment either implicitely as being a Barrony Lordship or Earldom or expresly having the power of Courts and their Issues and though the Superiour grant the same to the Vassal yet that is not exclusive of his own right but cumulative therewith how far Superiority carrieth the right of Thirlage of the Vassals Lands to their Superiours Milns when the Vassals have not granted to them the priviledge of Milns and Multars will appear amongst Servitudes of which hereafter 10. Superiority carries all the Casualities thereof requiring Declarator to Heirs and singular Successors hoc ipso that they have the Superiority established in their person and do not fall to the Executors of the Superiour as to bygones before his death unless gifted or liquidat by Sentence March 5. 1611. Dowglas contra Captain Crawford February 19. 1635. Cunninghame contra Stuart July 11. 1673. Robert Fa contra Lord Balmerino and Laird of Pourie But Feu-duties or any Casuality may be separat from the Superiority by Sentence or Assignation and therefore a Disposition of the Superiority was found to imply an Assignation to the Feu-duties bygone which being to the vassal himself needed no intimation and was valid against a singular Successor Infeft in the Lands in Superiority December 14. 1676. Earl of Argile contra Lord Mcdonald 11. A Superiour of Kirk-lands pursuing his vassal for his reddendo was not excluded till he instructed that he consented to the surrender conform to the Act of Parliament 1633. annexing the Superiority of Kirk-lands to the Crown reserving the Feu-duties to the Lords of Erection who consented to the surrender which was presumed in possessorio June 27. 1662. Mr. David Watson contra Mr. James Elleis 12. Superiours are oblieged to receive Appryzers or Adjudgers for a years Duty albeit the Superiour alledge a better Right then the Appryzer but the Infeftment to bear salvo jure cujuslibet suo July 4. 1667. George Shein contra James Chrystie Yet a Superiour having received an Appryzer was not found excluded from any right to the Property though he made no reservation thereof seing his receiving was necessary July 19. 1664. Hospital of Glasgow contra Robert Campbel But a Superiour being charged to receive an Adjudger was found to have his option either to receive him for a years Rent or to pay the sum adjudged for getting Assignation to the Adjudication being redeemable by the Vassal from the Superiour and without any years Entry to be payed at Redemption seing the Vassal was not changed as is provided Par. 1439. cap. 36. June 10. 1671. Sir Francis Scot of Thirlestain contra Lord Drumlanerk 13. And a Superiour is also oblieged to receive a Donatar upon the Kings Presentation gratis without present payment of the Non-entry duties till declarator and if he refuse he loses his Superiority during his Life June 25. 1680. Laird of Blair contra Lord Montgomerie 14. A Superiour must also receive his Sub-vassal whom his immediat Vassal refused to Enter without further instructing of the Vassals Right but by receipt of the Feu-duty by him as Superiour wherein the mediat Superiour supplet vicem of the immediat salvo jure June 28. 1672. Menzies contra Laird of 〈◊〉 Yet a Superiour cannot exclude an Appryzer or Adjudger within the legal from the Rent of the 〈◊〉 till he pay a years rent December 3. 1672. Mr. Hendry Hay contra Earlstoun 15. And if a Superiour or any to his behove take the gift of his own Ward he was found to have no interest to extend it further against his Vissal Infeft with absolute warrandice then to a proportional part of the Composition and Expenses February 15. 1665. Boyd of Penkil cintra Tennents of Carslooth The like where the Ward had fallen after the Vassals Right for if it had fallen before he could have nothing December 1. 1676. Lord Lindsay contra Bargallon 16. Superiours are not oblieged to receive upon Resignation or by Confirmation and having accepted Resignation it did not exclude the marriage of the Resigners Heir there being no Infeftment upon the Resignation before the Resigners death November 14. 1677. Sir William Purves contra Strachan of Kinadie 17. Superiority falling to more Persons doth not obliege the Vassal to take Infeftment of them all but if heirs portioners of the eldest July 30. 1678. Lady Lus contra Inglis And by the same reason if the Superiority fall to many singular Successors by Appryzing or otherways the Vassal
successors right because being only probable by oath of party the oath of the author will not prove against his singular successor Neither will Declarations Back-bands or conditions of Trust be comprehended under Reversions but they remain obliegements personal upon the person intrusted unless they contain express obliegement to re-dispone which is a reversion albeit it be not formal or if it bear to denude himself in favours of the disponer or any other but if it be but in trust to his behove though thereupon via actionis he might be compelled to denude yet is no reversion and however hath no effect against singular successors unless they be registrate as aforesaid except in so far as they may be grounds of reduction against the parties intrusted or their singular successors partakers of the fraud 6. It is also frequently provided in Reversions That if the condition of the Reversion be not performed betwixt and such a time the reversion shall expire and sometimes it is provided so to be ipso facto without Declarator This is a clause irritant irritating or annulling the Reversion which in the Civil Law is called Pactum Legis Commissoriae in pignoribus and is thereby rejected and void as an usurary paction whereby the Wodsetter getteth more then his just interest as a penalty which therefore as in other cases ought to be modified to the just interest especially seing indigent Debitors through necessity of borrowing money will be easily induced to such Clauses And therefore a Back-band for redemption of a Tenement bearing such a Clause irritant was found null two years after the terme and after a Decreet of removing all meliorations being satisfied July 8. 1636. Cleghorn contra Ferguson The like was found in an Assignation to a Bond under reversion of a smaller sum which was found penal and modified to the just interest June 25. 1623. Mitchel contra Robson Yet such clauses irritant are effectual upon the failie committed unless they be purged by performance which is ordinarly received when offered at the bar in the Declarator of the expirie of the reversion So was it found purgeable at the instance of the Reversers Creditors 19. of March 1631. Doctor Scot contra Dickson of Headrig Yea though the payment be not present a time will be granted before the Extract of the Decreet of Declarator of the expirie of the reversion that in the mean time the failie may be purged Feb. 7. 1628. Pringle contra Ker but no such time was granted where the requisition was upon ninescore dayes but Decreet was given unless present payment were made July 19. 1625. Nairn contra Napier But Clauses irritant in Reversions are only thus qualified in real Impignorations but when the reversion is of a true sale not in security but for an equivalent price or where it is granted after the right related to and not for implement of a promise or condition made at that time it is valid for only pactum legis Commissoriae in pignoribus is rejected in Law And therefore the Irritancie was not found purgeable before the Declarator where the Reversion was of Lands disponed for a competent price by a true sale January 17. 1679. James Beatsone contra Harrower A Bond bearing that failing Heirs-male of the granter and of his Brothers bodie that the Heirs-female should denude in favours of a Sisters son upon payment of a certain sum being registrat in the Register of Reversions was found valid against a singular Successor as a conditional reversion and not as a substitution albeit the Bond was granted by an Heretor and that the Land was never wodset but became redeemable by this Bond and was not prejudged by a posterior Liferent granted by that Heretor in favours of his Wife which would have been effectual if it had been a substitution But the sum upon which the Heir-female was oblieged to denude was ordained to be re-imployed for the Wife in Liferent January 16. 1679. Laird of Lambertoun contra Lady Blanergesk 7. As to the nature of Reversions they are stricti juris and not to be extended beyond what is exprest and so not to be extended to the sAssigneys of the reverser when not exprest yea not to his Heirs unless it be so exprest but where Heirs of the Reverser were not exprest without adjecting the ordinary clause of paying the debt to the Wodsetter by the Reverser any time during his life and so Heirs were not found omitted dedita opera but by negligence they were not excluded January 9. 1662. Earl of Murray contra Laird of Graunt And a Reversion taken by a father disponing to his son found to be extended against the Heirs of the son though Heirs were not mentioned Feb. 6. 1630. Muir contra Muir The like Spots redemption William Hamilton contra Hamiltons And therefore the day of consignation being appointed eight dayes after the terme the Consignation was not sustained at the terme it self though these dayes were introduced in the Reversers favours July 12. 1634. Lord Balmerino contra Eliot of Stobs Yet where the Reversion bore the premonition to be at the Paroch-Church it was sustained being used only personally Decemb. 11. 1638. Finlason contra Weyms And where the Reversion did bear consignation at the Creditors house in London it was sustained being at his successors house at Edinburgh Feb. 1. 1667. Creditors of Sir James Murray contra Sir James Murray 8. The constitution or nature of Wodsets being thus cleared as to the kindes thereof Wodsets are either proper or improper and they are either publick or base 9. A proper Wodset is where the fruits of the thing Wodset are only given for the annual-rent of the sum and the hazard or benefit thereof whether it rise or fall is the Wodsetters and there hath never been any case decided finding such proper Wodsets usurary upon exorbitancy of profite But by the Act of Par. 1661. betwixt Debitor and Creditor all Wodsets before that Act though proper are so altered that if the person having right to the Reversion offer surety and demand possession the Wodsetter must quite possession or else restrict himself to his annualrent and count for the superplus and that not from the Act of Parliament or Citation but from the offer of security which was not sustained at the instance of a singular successor in the right of Neversion not having produced his right to the Neversion at the requisition and though it was produced in the Process the Wodsetter was not found oblieged to restrict or cede the possession because he was in natural possession by labourage till he were warned before Whitsonday Feb. 20. 1679. Bruce contra Robert Bogie though there was a Clause in the Wodset renuncing the Usurpers Act and all such Acts made or to be made for that Exception in the Act of Parliament relateth only to preceeding Clauses thereof and not to the Clause anent Wodsets which is posterior January 29. 1662. Laird of Lamingtoun contra Sir John
Ascendent or these of their side but only to Agnats conjoined by the Father Grandfather c. Which holdeth even though the heritage descended from the Mother or these of her side for in the service of Heirs the nearest lawfull Heirs are only inquired and retoured either by the Lineall Succession aforesaid or by express Tailzie or provision in the Infeftment without respect from whence the Inheritance flowed for which we have no Satute nor Custom But in England it is otherwayes for Paterna paternis and Materna Maternis takes place but with us the contrare was found in the case of John Gilbert as Craig observeth Lib. 2. Dieg 17. And he there relateth that many afterward changed their opinion therein and though there be equity in it yet no Law nor Practique since hath favoured the Maternal Line but the Father was found Heir to his Son even in the Lands where the Son was Infeft as Heir to his Mother and did exclude his Brother Uterin by that Mother February 5. 1663. Lenox contra Lintoun 4. In all this Line of Succession there is place for Representation of Descendents in place of their Defunct Parents So that Females of a further degree by the Right ofrepresentation exclude Males of a nearer degree as the eldest Sons Daughter will be preferred in theGrandfathers Inheritance to his other Sons in private Rights though that be contraverse by the more comon Feudall Customs as is largely and learnedly dispute by Tiraquellus 35. In this Lineall Succession the Father Grandfather or other Ascendents of the Paternall Line succeed in heritable Right next unto Brothers and Sisters and before all other Collateralls or Agnats We have shown before why there is no mention of Ascendents in the Jewish Succession because such a case could hardly occurr among them Craig Lib. 2. Deig 13. affirmeth that it was doubtfull in his time whether Ascendants could succeed in heritable Rights and that he heard the opinion of some learned men in the contrary and that he had not found the Lords decide in it and that it is contrare to the Feudal Law and also to his own opinion yet he brings both evident reason and example in the contrary the reason is that no Inquest can justly Retoure that the Father Brother is nearer then the Father He bringeth also the Example of the Earl of Angus served Heir in the Earldom of Angus to his ownSon whom he had infeft therein And the Lord Colvill in likemanner having infeft his Son in all his estate though sum affirmed that this was by provision in the infeftment yet that the Service was is sure but that provision is uncertain and though some also were doubtful whether the Earl of Angus was served and infeft as Heir to that same Son which well inferreth that the Father was not infeft as Heir to his Son but not that he was not served Heir to him therein for he might have been served and not infeft Whereby the service as incompleat became void and the next Earl behoved to serve of new to the Son who died last vest and seased as of Fee The Custom and common opinion since is for the Ascendants and so the Earl of Roxburgh was served as Heir Male to his Son The Lord Ker and many others which ought to be the more favoured as more conform to equity and the Law of nature which in Dubio ought to take place where there is no Law nor custom to the contrary as with us there is none Neither did I ever hear of one who attempted to exclude a father by the Fathers Collaterails And though there had been no Decision upon it neither have there been upon many other uncontroverted Customs especially in Succession but the acquiescence of all Parties having interest in matters of so great moment is a strong Evidence of the Nationall consent by Custom But it hath aho been so decided by the Lords Hope Succession Mr. Robert Burnet contra Mauld Yea a Son being infeft as Heir to hisMother dying without Issue his Brother uterin by the Mother was not found Heir to him but his Father February 5. 1663. Lenox contra Lintoun As to the alledged opposition of the Feudall Law as hath been oft times said it is Local And therefore as in England all Ascendents are excluded so in Germany they succeed in the next place after descendents and are preferred to Brothers and sisters according to theNaturall course ofSuccession The reason why Brothers and Sisters of the Defunct are preferred to the Fathers with us may be because such Fees do commonly proceed from the Father And therefore by the continuance of that sameFatherly affection are derived to the Brothers and Sisters and because they are in more need of Provision then the Father TITLE XXVII Heirs 1. Appearand Heirs may pursue exhibition ad deliberandum 2. They may defend their predecessors Rights and Possessions being called or compearing for their interest and their executors have right to the Rents of these years they were appear and Heirs 3. The Aliment of Heirs from the Donatars and Life-rentars 4. Heirs not entred have the benefit of Clauses which by Nature import they should not be actual Heir 5. Heirs have interest in all Rights granted to their Predecessors though not mentioning Heirs who are not exclusive of Heirs by their Tenor and Nature 6. Heirs have the benefit of all Rights heritable by Destination or having a future Tract of time after the Defuncts Death 7. Heirs have Right to Moveable heirship or obleigment for Sums wherein Executors are excluded 8. Heirs of Lyne are heirs generally their interest 9. Hirship Moveables 10. Heirs of Conquest their interest 11. Heirs Portioners their Interest 12. Heirs Male Tailzie and Provision their interest 13. All Heirs are lyable pasivè for the Defuncts debt but not in the same way 14. Heirs Portioners how far lyable 15. The effects of different Provisions or Obligations by Defuncts in Favours of Divers heirs Portioners 16. Heirs not being Portioners no substitute in Bands are lyable in solidum 17. The order by which heris are lyable passivè and may be discust 18. Heirs of Tailzie ripresent not the Defunct in obligations contrary to the Terms of the Tailzie 19. Heirs of Marriage may quarrel their Predecessors Deeds being meerlygratouitus in their prejudice but not such as are onerous or rational Deeds 20. Heirs having the benefit of discussing may propone the Exception that all parties having interest are not called without instructiug the Right whereto they may succeed 21. The exception of the order of discusing is not sustained without condescending on the heritage whereunto the anterior heir may sueceed and what is discusing 22. The order and effect of a Genral Charge to enter heir 23. The order and effect of a special charge to enter heir 24. Renounciation to be heir its order and effect 25. The entrie of heirs general and effects thereof 26. The entrie of heirs upon precept of Clare Constat
or was buried are requisite or common Fame as to Persons who perish or are killed The second poynt of this Head is that the Defunct died last vest and Seised as ofFee which must be instructed by production of theInfeftment specially the Instfrument of Seising and warrant thereof or ground of the same For though in antiquis the very Precept cannot be shown yet the Charter or Disposition will be a sufficientAdminicle to corroberat thisSeising that it be not accounted only as the assertion of a Natar Yea there is no doubt but since the Act of Prescription consequent Seisings having the Course of fourtie Years may instruct this point being sufficient even in the case of Competition which is much exacter than this And Spotswood observeth upon Retours that in Anno 1547. a negativeService was reduced upon production of a Transumpt of theDefuncts Seising out of a Protocol transumed before a Comissar with a Decreet against the Superior bearing to have confessed that he had infeft the Defunct But here the instructing the Defunct's being once infeft will infer a Presumption that he so continued and so died Infeft unless the contrary be proven that he was denuded The third poynt in this Head That the Defunct died at the Faith and peace of our Soveraign Lord is also presumed quia quod inesse debet 〈◊〉 And therefore needs no other Probation but layeth the burthen of Probation upon theAlledger in the contrary viz. That the Defunct died Rebel or that he was Forfaulted or his Blood attiainted which may be elided by the Replyes of Relaxation Dispensation or Restitution But there useth small notice to be taken of Rebellion upon civil Debts but only open Rebellion of War or upon Treasonable Causes whereupon the Defunct was declared Fugitve which makes the Defunct as to this poynt not to die at the Faith of our Soveraing Lord. November 21. 1626. Seatoun Supplicant 35. The second Head of the Brieve is That the Pursuer is nearest and lawful Heir to the Defunct in these Lands Which resolveth in two points First that the Fee was provided to such Heirs as are contained in the Claim whether they be Heirs of Line or of Conquest Heirs Portioners Heirs of Marriage Heirs Male or of Tailzie and Provision And this can only be instructed by the Defunct's Infeftment and other ancient Evidents where in dutio the Presumption is always for the Heir of Line So that if it be not sufficiently instructed that the Fee was provided to special Heirs it will belong to the Heirs general of Lyne or Conquest according to Law as if it be instructed by three consequent Seisings which ordinarly do not express the the several Kinds of Heirs The other point of this Head is That the Pursuer of the Brieve is nearest lawful Heir which sometimes also is instructed by the Infeftment As when the Person to be served is a Member of Tailzie nominat as if the Infeftment bear Land or Annualrents to be granted to the Feer and to the Heirs of his Bodie which failling to George his Brother c. George pursuing a special Service needs no further instruction because That he is George the Defuncts Brother passeth without probation as Notorium But ordinarly the Propinquity of Blood must be proven to the Feer who died last infeft or to some member of Tailzie substitute For proving whereof the Relation must be particularly condescended on according to the Line of Succession mentioned in the former Title as that the Pursuer is the Defunct's eldest Son or the eldest lawful Son of that Son or that they are the Daughters of that Son c. or the lawful Daughters of the Defunct c. And it will not be sufficient to instruct or serve the Pursuer nearest lawful Heir without condescending Here also the propinquity of Blood being condescended on and proven it is sufficient in whatsoever Degree can be proven though it were beyond the tenthDegree Yea any Degree being presumed to be the nearest Degree unless a nearer Degree be instructed for it resolves in this Negative that there is no other nearer Degree which as other Negatives proves it self And that thePursuer is not only nearest Heir according to Lineal Succession by Course of Law but that he nor none of the Intervenient Blood were Bastards or unlawful Children which is instructed sufficiently by common Fame or being so holden and repute in the Intermediates it will be sufficient that nothing is known to the Inquest on the contrary unless Bastardrie be on the other part alledged and instructed This propinquity of Blood is proven either by Writ or by Retours Infeftments or Designations or Acknowledgments of the Feer for the time bearing such a Person to be of such a Degree or Relation to him And in antiquis Writs bearing such Designation and Acknowledgment even by others of Fame will be sufficient For there is not equal evidence of Fame required in all Cases And therefore when the Fee is to fall Caduciarie and to cease from the Feer's proper Blood lesse probation will serve than when the Competition is betwixt divers Persons of the same Blood or at least members of the same Tailzie amongst whom the pregnantest probation will take place So the Service and Retour of the Earl of Airth then designed Earl of Strathern was reduced because the propinquity of Blood not sufficiently instructed which could not be known by the Inquest or was Witnesses the progresse thereof being far past memory of man and Hear-say or common Fame was not found sufficient Neither were the Writs produced sufficient to prove the said Earls Propinquity of Blood to David Earl of Strathern Son to King Robert the second or to Eupham only Daughter to the said David and Patrick Graham her Spouse which progress not being sufficiently instructed the Right remained with the King as the unquestionable Descendent of the said King Robert the third and so Heir of his Brother the said David Earl of Strathern So that no other lawful Issue being proven of the said David's own Bodie nor of any other nearer Brother all his Right remained with the King as descending from King Robert the third who was Brother to the said David Earl of Strathern March 22 1633. The King contra the Earl of Strathern There is another Exception against this Head That the pursuer hath slain his Father Mother Good-sire Grandsire c. whereby he and all his Issue are excluded from the Heritage of the Partie slain if he be convict thereof by an Assyse and the next Agnat may be served Par. 1594. cap. 220. Which was not sustained where the Slayer was only declared Eugitive for not appearing to underly the Law in a Dittay for Slaying his Mother Feb. 3. 1674. Mr. George Oliphant contra Oliphant 36. The third Head of the Brieve is Of whom the Fee is holden in Chief or who is immediat lawful Superior thereof and this also be instructed by the Infeftments whereby the Giver of the
get entry the delivery of a Copy to any of the Family is sufficient without Knocks and must be so express'd 6 The Dayes requisit for the Charge beyond the Water of Dee 7 The Denounciation must he against the Party and at the Mercat Cross of the Jurisdiction where he dwells 8 The Denounciations must bear three Oyesses or the equivalent 9 The Execution must bear three blasts of the Horn. 10 The Execution must be stamped 11 The Horning must be registrat and how 12 Denounciation after satisfaction hath no effect 13 The effect of general Letters of Horning 14 The Order and Effect of Relaxation from the Horn. 15 The Single-Escheat and extent thereof 16 How far the Denounced's Debts or Deeds affect his escheat Goods 17 Gifts of Escheat and preference thereof 18 Gifts of Escheat not expressing the particular Horning whereon they proceed 19 Gifts of Escheat though bearing Goods to be acquired extend but to those acquired within a year after the Gift 20 Eicheats within Regality 21 In what Cases Gifts of Escheat are held simular 22 Who must be called in the general Declarator 23 The Titles and Tenors of general Declarators 24 Exceptions against general Declarators 25 Special Declarators of Escheat 26 Leferent-Escheat 27 Confiscation of Treasures Waith or Shipwrack-Goods 28 Forefaulture 29 Several kinds of Treason by Statute 30 Forefaulture confiscats without the burthen of the Debcs or Infeftments not confirmed by the King 31 How far Feus are effectual against Forefaulture 32 How far Tacks of forefault Lands are effectual 33 Forefaulture by a rescinded Act was burthened with the Debts and Deeds of the Rebel 34 Forefaulture when and how it may proceed in absence 35 How far the Person of the Rebel gives Right to the Fisk. 36 The effect of Forefaulture of apparent Heirs 37 In what Cases Forefaulture dishabilitats 38 How far the Forefaulture of apparent Heirs may be extended 39 Explanation of the Act of Parliament 1594. cap. 202. importing burthening of Forfaultures with the Debts and Deeds of the Rebel 40 Forefaulture is not reducible upon any Nullity but only by way of grace 41 How far Forefaulture takes effect without Declarator 42 What Children are lawful and what Bastards 43 Declarator of Bastardy 44 The effect of Bastardy as to Succession 45 Legitimation and effects thereof 46 How the Debts and Deeds of the Bastard affect his Estate 47 Ultimus haeyes and the difference thereof from Bastardy TITLE XXVI Succession 1 WHether in equity there be a Rule in Succession 2 That Rule is the express 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 succeed 7 Failing those 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 primogeniture of their eldest Sons 11 By the Jewish Succession failing Descendents the 〈◊〉 passeth to Brethren and these failing to Father's Brethren and failing these to the nearest Kiufman 12 Whether in the Jewish Succession there be Right of Representation 13 Why no Females 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 Heir institute by Testament the ancient Roman Law called all the Children of the Family unjorisfamiliat male and female not excepting adopted Children to succeed 17 These failing the nearest agnats but no Parents thereby succeed 18 The Roman Succession by the praetorian Law 19 Their Succession by Justinian's Novel Constitution 20 In Feudal Succession the first Rule is the express will of the Party by the Investiture 21 The next Rule is the conjectured Will according to the nature of the Fee 22 Primogeniture now established by common custom in Feudal Rights 23 Succession in Scotland is wholly different in Moveables and Immoveabies 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 Predecessors Deeds on Death-bed 28 What is estimat Death-bed 29 Against what Rights Death-bed is extended 30 Death-bed annuls no Deeds for Causes onerous 31 Dispositions in Testaments are as on Death-bed 32 Annus deliberandi 33 Kinds of Heirs in Scotland 34 No place for Adopted or Cognats in Succession with us 35 Parents succeed to their Children and exclude the Parents Collaterals or those representing the Collaterals TITLE XXVII Heirs 1 APparent Heirs may pursue Exhibition ad deliberandum 2 They may desend their Predecessors Rights and Possessions being called or compearing for their Interest and their Executors have Right to the Rents of those years they were apparent Heirs 3 The Aliment of Heirs from the Donatars and Liferenters 4 Heirs not entered have the benefit of Clauses which by nature import they should not be actual Heirs 5 Heirs have Interest in all Rights granted to their Predecessors though not mentioning Heirs which are not exclusive of Heirs by their Tenor and Nature 6 Heirs have the benefit of all Rights heritable by Destination or having a future tract of Time after the Defunct's Death 7 Heirs have Right to Moveable Heirship or Obligements for Sums wherein Executors are excluded 8 Heirs of Line are Heirs generally their interest 9 Heirship Moveables 10 Heirs of Conquest their Interest 11 Heirs Portioners their Interest 12 Heirs Male of Tailzie and Provision their interest 13 All Heirs are lyable passivè for the Defunct's Debt but not in the same way 14 Heirs portioners how far lyable 15 The effects of different Provisions or Obligations by Defuncts in favour of divers Heirs-portioners 16 Heirs not being Portioners not substitute in Bonds are lyable in solidum 17 The Order by which Heirs are lyable passivè and may be discuss'd 18 Heirs of Tailzie represent not the Defunct in Obligations contrary to the Terms of the Tailzie 19 Heirs of Marriage may quarrel their Predecessors Deeds being meerly gratuitous in their prejudice but not such as are onerous or rational Deeds 20 Heirs having the benefit of Discussing may propone the Exception That all Parties having Interest are not called without instructing the Right whereto they may succeed 21 The Exception of the order of Discussing is not sustained without condescending on the Heritage whereunto the anterior Heir may succeed and what Discussing is 22 The order and effect of a general Charge to enter Heir 23 The Order and Effect of a special Charge to enter Heir 24 Renounciallon to be Heir its Order and Effect 25 The Entry of Heirs general and effects thereof 26 The Entry of Heirs upon Precepts of clare constat 27 The Entry of Heirs by Hesp and Staple within Burgh 28 Entry of Heirs by Brieves out of the
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
his Marriage which was dissolved within year and day by the Wifes death was found void seing the Father persisted not therein but Infeft his second Son July 15. 1678. Lord Burley contra Laird of Fairny And a Tocher payed within the year was 〈◊〉 to be repayed without any Deduction for the Wifes intertainment during the Marriage but only for her Cloathes which were before the Marriage and her Funeral Charges which was after the Marriage was Dissolved February 23. 1681. Janet Gordoun contra Thomas Inglis But Gifts given to the Married Persons by the Friends of both were divided equally the Marriage being dissolved within year and day January 14. 1679. Wauch contra Jamison But if a living Child was born the Marriage was found valide though both Mother and Child died within the year Spot Husband and Wife Stuart contra Irving The reason why the Child must be heard cry is to make certain its lively ripeness and not to leave it to the conjecture of the Witnesses and therefore it sufficed not though they did declare that the Child was living immediately before the Birth and appeared lively and full ripe when it was born but that it was stifled in the Birth as was found in the case of Sandelands and Thores yet a Wifes Infeftment was found valid till her Tocher was repayed though the Marriage Dissolved within the year July 20. 1664. Petrie contra Paul But where a Marriage continued a year and a part of the next day after the year the Tocher was found not to return Nam in favorabilibus dies ceptus habetur pro completo February 25. 1680. George Waddel contra George Salmond 16. Marriage Dissolveth by Divorce either upon wilful non-adherence or wilful Desertion or by Adultery and the party injurer loseth all benefit accrueing through the Marriage as is expresly provided by the foresaid Act of Parliament concerning non-adherence 1533. cap. 55. But the Party injured hath the same benefit as by the others Natural Death as was found March 21. 1637. Lady Manderstoun contra Laird of Rentoun But if Divorce follow upon Impotency all things return hinc inde because in effect there was no Marriage as was found Earl of Eglintoun contra Lady Eglintoun 17. By the Dissolution of Marriage there ariseth to Married Persons not only these Rights which by voluntar Contract are Constitute to either and which are not proper here but also these which by Law and Custome are Competent without any special Convention or Covenant and these are either upon the part of the Husband or more frequently upon the part of the Wife To the Husband is Competent the Life-rent of the Wifes Heretage which because it is peculiar unto these Nations it is said to be the Courtesie of Scotland or England To the Wife ariseth her share of the Moveables which is the half where the Man hath no Children in familia and the third where there are such and her Terce which is the third part of his Lands during her Life But of Reversions Heretable Bonds Dispositions or Rights of Lands without Infeftment and of Teinds or Tacks or Tenements within Burgh the Relict hath no Terce These Rights of Terce and Courtesie fall in to be considered amongst the Feudal Rights and the Relicts third or half of Moveables in the Succession of Moveables wherein it is a Concomitant and regulat according to that which is proper Succession either of Children or others though as to the Wife it be rather a Division of that Community of Goods Moveable that was Competent to the Married Persons during the Marriage and therefore shall be insisted on no further here but left to these places And we shall proceed to the next kind of Obediential Obligations and Natural Rights which interveen betwixt Parents and Children Law and Custome hath favoured and priviledged Wives in many cases propter fragilitatem sexus they are free from obliegements for sums of Money and from personal Execution by Horning or Caption if it be not for Criminal Causes their Contracts of Marriage are preferable to other Personal Creditors February 8. 1662. Thomas Crawford contra Earl of Murray their share of their Husbands Moveables is not burdened with the Husbands Heretable Debt December 28. 1668. Margaret Mckenzie contra Robertsons July 19. 1664. Elizabeth Scrimzour contra Murrays yea gratuitous moveable Bonds granted by a Husband payable at his death whereby the whole Executry would be exhausted and the Wife have no share having no other provision the same were not found to affect the Wifes share But otherways such Bonds granted in Leige Poustie without fraud were found to come off the hail Head and not off the deads part only December 8. 1675. Thomson contra Executors of Eleistoun And a Wife was found not excluded from her share of her Husbands Moveables by a gratuitous Disposition by her Husband to his Brother of all sums that he should have at his death January 10. 1679. Grant contra Grant In like manner the Infeftments and Provisions of Wives are effectual although the Tocher which is the mutual cause thereof be not payed she not being oblieged therefore her self though the Contract bore that the Tocher being payed it should be imployed to the Wifes use July 5. 1665. Mackie contra Stuart The like though the Contract bore that the Husband should imploy the Tocher for the Wife in Life-rent albeit the Tocher was lost through the Fathers Insolvency June 11. 1670. Margaret Hunter contra Creditors of John Peter The like though the Contract bore that the Wife should have no benefit while the Tocher should be fully payed if the Tocher could be recovered by the Husbands diligence November 21. 1671. Mary Menzies contra John Corbet On the same ground a Contract of Marriage bearing the one half of the Tocher to the Wife failing Children albeit conceived passive and not that the Husband was to pay the same or do diligence therefore yet the Husband was found lyable to pay the half of the Tocher although it was not recovered unless he had done the diligence of a provident man which was found implyed in his Duty and Trust as Husband the Wife being in potestate viri July 14. 1676. Jean Lockhart and Raploch her Spouse contra James Bonar And though Husbands have no communion in the Habiliments and Ornaments of the Wife which cannot be affected for his debt yet she hath her share of the Habiliments of the Husband which falls in his Executry and he is oblieged to pay all Accompts for her Habiliments suitable to her quality But where the Wife had an Alimentary Provision for her Habiliments Ornaments and her other Uses the Husband having furnished them and received that sum was not found lyable to repay the same to her Executours February 2. 1667. Executours of the Lady Piltoun contra Hay of Balhousie Wives have not only a half or third of their Husbands Moveables when they survive but have their Aliment till the next Term after the Husbands
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
cleared from that Power and Authority their Parents have over them of which we have spoken For unto Authority or power to Command Subjection or Obedience answers as the Correlate so that as the Parental Power was most in the Infancy of the Children and least after their forisfamiliation so are the duties of Obedience proportional but after Emancipation these duties are so far diminished that little remaineth except the Natural Reverence Tenderness and Obsequiousness that Children do still owe to their Parents in due order which though it hath no civil remeeds yet it remains a Natural Obligation to observe the Parents commands throughout their Posterity as in that Nottour Example of the Rehabites Jer. 35. is clear where they observed their Fathers Commands in a free thing though inconvenient viz. To drink no Wine to build no houses c. and for their Obedience the Lord promises There should not be wanting a man of them to stand before the Lord for ever But while they are in the Family they are not only under the oeconomick Government of their Parents in so far as is not devolved to the Magistrat but specially they are bound to abide with their Parents and to imploy their Service for their Parents and the use of the Family whereunto their Parents may compel them by their own proper Authority and Parents have Action against all others who shall hinder them to keep their Children with them or lead them whether and imploy them as they please 9. The Obligation of Aliment and Relief to Parents in necessity is due both by the Law of Nature and hath in it also that Remuneratory Obliligation whereby Children ought to retribute to and recompence their Parents for their Education and Intertainment and though it be said 2 Cor. 12 14. That Children ought not to lay up for the Parents but the Parents for the Children yet it is to be understood of that care foresight and Providence that Parents ought to have not only to provide things necessar for themselves but for their Children also after them which being an ordinary duty ought to be in their thought and consideration and is not incumbent to the Children it being but rare and unexpected that Parents necessities put them to expect relief from their Children or else it is to be taken comparatively that parents are rather to lay up for the Children then Children for the Parents Solons Law made the Children infamous who did not Aliment their Parents And Cicero in his Oration de responsis aruspicum parentibus nos primum natura constituit debitores quos non alere nefarium est In these Natural Obligations of Aliment betwixt Parents and Children the Order of Nature must be observed that the nearest are first to be preferred and the Paternal Line before the Maternal as being in an other Family for even the distinction of Families and union thereof in the Paternal power is natural as before is said From the same ground Parents must first Aliment their Children in the Family and amongst them that are Emancipat the Males are preferable to the Females passing by Marriage into other Families 10. As to the Natural Obligation of Children amongst themselves there is no doubt but that there Naturally lye greater Obligations upon them each to other than the common Obligations betwixt man and man which are not only greater in the measures and degrees as to love them assist them support them and supply their necessities the more by how 〈◊〉 degree of Blood they are bound to them than others which is commonly acknowledged by all But the Romans and many other Nations have acknowledged the Natural Obligations of Brothers and Sisters to 〈◊〉 each other though our Custome hath not Authorized the same unless the Brother were Heir to the Father in a competent Estate and the remanent Children not at all provided in which case the Lords modified Aliment to them January 24. 1663. the Children of Wedderlie contra his Heir Aliment was also found due by a Brother to a Sister of a second Marriage who had a Portion to be payed at the age of fourteen and no Annualrent or Aliment in the mean time though they had a Mother on Life 〈◊〉 11. 1663. Catharin Frazer contra Hugh Frazer The like found due by an Heir Male to Heirs of Line till their Marriage seing their Portions bore no Annualrent January 8. 1663. Lady Otter contra Laird of Otter November 12. 1664. Daughters of Balmanno contra Heir-male thereof It is also an Natural Obligation upon Children or Kinsfolk descending from one common Stock to defend and have the Tuition of the Pupilarity of that Race which is incumbent ordinarily to the next degree in that same Family and this is the natural rise of Tutors of which in the next Title 11. The Romans did no more diminish the Conjugal Interests and Obligations competent by Nature as is before shown then they have exceeded the Law of Nature in the interests betwixt Parents and Children for thereby the Parents power is so great that no Nation hath the like Institut de patria potestate § 2. it being almost Dominical and the Children as Servants l. placet 99. ff de acquirenda haered the Father had also the power of Life and Death l. ult Cod. de patria potestate l. 〈◊〉 11. ff de liberis posthumis They had power also to sell their Children unto Servitude This was the ancient Roman Law whereof the austerity was by little and little corrected by the recent Law so that both in Servants and Children it was taken off and this power 〈◊〉 to cases of extream necessity l. 2. Cod. de patribus qui filios Children were permitted also to have Goods of their own which were called peculia in which they were as free and had all their Rights and Actions competent as others but with these Restrictions whereby the Right of the Father in the Goods of the Children was much abaited For in the peculia which the Son acquired by Arms or liberal Arts the Father had no power which was called peculium castrense vel quasi castrense l. 2. ff ad 〈◊〉 Maced of other Goods which befell the Children or were acquired and came not from the Father which were therefore called Adventitious the Father had the Usufruct and Administration but not the Property or Power of Alienation l. 2. Cod. de bonis maternis only in 〈◊〉 〈◊〉 which came from the Father he had full Right and Property and all permitted but to the Son was to make use of and mannage it for the Fathers Advantage In these peculia Children were as Fathers of Families by recent Law l. 1. filius familias 39. ff de oblig yea even the ususruct ceased in Goods given or left to the Children excluding the Parents nov 117. in principio 2. Next where any thing was given or left to both 〈◊〉 3. When the Goods came by the Fathers fault as when he did unjustly Divorce with
the Mother Nov. 117. de haered cap. 10. 12. The Custome of the Neighbouring Nations do follow more closely the Natural Law as the Custome of France and the Netherlands as is recorded by Gudel de jure Nov. cap. 13. And Mathias Stephanus 〈◊〉 the like of the Customes of Germany oecon juris civilis lib. 2. cap. 67. § 4. The Custome of this Nation also keepeth close to what is expressed before of the Natural Law as to the Interests and Obligations of Parents and Children and thereby Aliments are frequently decerned to Children to be payed by their Fathers if they expell them from their Families and that not only by the Act of Parliament providing Aliment to Heirs of Land to be payed by the Liferenters but a Father though his Son had no Lands was found conveenable super Jure naturae alendi 〈◊〉 July 21. 1636. Laird of Ramorney contra Law So also by our Custome a Father is Tutor of Law to his Sons being Pupils and therefore a Father was found lyable to the Son for Annualrent of his Mothers third of Moveables remaining in the Fathers Hands February 4. 1665. Beg contra Beg. But a Father was not found oblieged for Annualrent of a Legacy belonging to his Son uplifted by him seing he Alimented the Son December 15. 1668. Margaret Winram contra Mr. James Ellies A Father is also Curatour to his Children specially when in his Family unless other Curatours be chosen by his consent and so a Father discharging the Rent of his Sons Lands set by the Father though he was only Life-renter and the Son the Pupil-Fiar was found valid for years after the Fathers Decease in respect he was lawful Administrator young Rosyth contra his Tennants But a Father being poor was not allowed to lift his Sons Money without finding Caution to make it forth-coming February 12. 1636. Givan contra Richardson Neither might a Father being lapsis bonis assign a Tack acquired by him to his Son though he might uplift the Duties as Administrator January 29. 1629. Lands contra Dowglas So deeds done by such Minors without their Fathers consent as lawful Administrator were found null George Stuart contra Home of Rentoun After Pupilarity a Father is no more Tutor to his Children and so might not discharge for his Daughter being past Pupilarity but only consent with her as Curatour June 26. 1610. John Forrest contra Forrest A Father is lawful Administratour both as Tutour and Curatour honorarie of himself without any Cognition or Solemnity and is not lyable for omission neither is he exclusive of other Curatours But deeds done without a fathers consent by a Son were found null albeit the Son resided not in his Family but followed the Law having no Calling or Patrimony to maintain himself but living on his Fathers Charges neither was his Fathers Subscribing with him found a sufficient Authorizing of him seing he Subscribed with his Father as Cautioner for him December 7 1666. Sir George Mckenzie contra Mr. John Fairholme 13. As to the Fathers power to keep his Children within his Family and to apply their work for his use though controversies in that point have seldom been moved but the matter transacted by consent It is not to be doubted but that Children may be compelled to remain with their Parents and to imploy their Service for their use even after their Majority unless they be foris-familiat by Marriage or by Education in a distinct Calling from their Parents unless their Parents deal unnaturally with them either by Attrocity or unwillingness to provide them with a competent Marriage in due time and with means suitable to their Condition for that obliegement to provide for them would be a ground of exception against them if he would unjustly detain them in these cases or if the Father countenance or allow the Children to live by themselves and to mannage their own Affairs apart from whence his tacit consent to their Emancipation may be inferred in which cases also Zas 19. in lib. utrum turp c. De verb. oblig And Math. Steph. oecon juris civilis lib. 2. cap. 1. doth declare that the Consuetude of Germany is the same with our Customes before expressed The English account Children to be Emancipat so soon as they passe their Minority Cowell Institut jure Anglicani Tit. 12. § 4. TITLE VI. Obligations of Tutors and Curators Pupils Minor and persons Interdicted 1. The rise of Tutory in the Law of Nature 2. Order of Tutory by the Law of Nature 3. The Naturall Obligation of Tutors 4. Pupils Obligations to their Tutors 5. Kinds of Tutors by the Common Law 6. Tutors Testamentar 7. Tutors Testamentar exclude all others 8. Tutors of Law who 9. How Tutors of Law are entered 10. The time within which they must enter 11. Tutors Dative 12. Pro-tutors 13. Factors for Tutors 14. Con-tutors 15. Tutors custody of the Pupils Person 16. Tutors Authorizing their Pupils 17. Tutors or their Factors Rights relating to the Pupils accress to them 18. Tutors can only do necessary not free arbitrary deeds but may not sell Lands sine authoritate Judicis 19. Tutors are lyable for Annualrent for their Pupils means 20. Tutors are conveenable with their Pupils and lyable in quantum intus habent 21. Tutors Accompts 22. Tutors are lyable for exact diligence both for intromission and omission 23. Tutors are lyable in solidum 24. Tutory how finished 25. Tutors of Idiots and furious Persons 26. Gesta Tutorum accrescunt Pupillis 27. Removing of suspect Tutors 28. Duty of Pupils to their Tutors 29. Rise of Curators 30. Curators ad lites Negotia 31. Minors may at their option choose or not choose their Curators 32. Minors deeds having Curators without their consent are ipso jure null nisi in quantum â—â—erantur 33. Curators consent not requisite to latter Wills 34. Restitution of Minors upon enorme Lesione 35. Minor non tenetur placitare super haereditatem paternam 36. Differences betwixt Tutors and Curators 37. Duty of Curators 38. Curators or Interdictors for Prodigals or lavish Persons 39. Interdictors constitute causa cognita 40. Interdiction by Parents consent 41. Publication and Registration of Interdictions 42. Interdictions only extend to Heretable Rights not Moveables not to Personal Executions 43. Interdictions are only Competent by way of Reduction 44. Interdictions cannot be taken off but by Authority of a Judge TUTORS and Curators succeded in the place of Parents and their Obligations have a near resemblance and therefore shall be here fitly subjoyned though in the constitution and duties of Tutors and Curators the Positive Law predomineth yet that without any Positive Law or Contract there is a duty of Tuition and Protection of Orphans and specially upon these who by relation of Blood are their nearest Kinsmen and in place of their Parents it will appear by what ensueth and what is superadded either by the consent of parties in Curators or by the Law in Tutors with the condition and interest of
Pupils and Minors cannot conveniently be separated If there were no Positive Law the natural infirmity of Pupilage would not want its natural remedies provided by Him who is the Father of the fatherless and layeth his Obediential Obligations upon these whom by the Law Written in their hearts he hath bound to the performance of these Duties as is before shown There is a Common Obediential or Natural Obligation upon all Men of Love Mercy and relief of the distressed among whom Infants and Pupils who have no discretion and cannot at all Preserve or Govern themselves are the first It hath been also shown that there is a more special Obligation put upon those of one Blood one Family from one common Parent to help and support each other and that in order 2. The first and nearest degree is first and most oblieged hence ariseth that orderly and comely natural substitution of Tutors for the preservation of Pupils first the Fathers Tutory and lawful Administration whereof we have spoken already and these failing by death or incapacity the nearest degree of Agnats are in the place of Parents and are all joyntly bound to this natural Duty unless the Parents by their Parental power have appointed and ordained others whom they trust to undertake that work And lastly the common Obligation that lyeth upon people hath devolved upon the Magistrate as representing them the duty of being or appointing Tutors for Pupils hence doth arise the distinction of Tutors in Testamentar constitute by the Parent in his Testament legittime appointed by the Law which is of the nearest Agnats and dative which are ordained by the King 3. The Natural Obligations of these Tutors to their Pupils are first to preserve their persons and defend them against injuries and prejudices and therefore are they named Tutors quasi tuitores l. 1. § 1. ff de tutelis 2. To Aliment them out of the Pupils own Means according to the condition thereof and to Educate them for a station in the Common-wealth according to their quality and capacity 3. To mannage their Affairs with such diligence as provident men use in their own Affairs that nothing may be lost but every thing improven to the best advantage in all which they are not to exerce voluntary Acts of Dominion at their choise as disposing of what is secure but only necessar Acts for the preservation and recovery of what will or may perish and for improving the profits of it 4. They are bound to give an accompt and restore to the Pupil what is his own so soon as he attains to the Age of discretion 4. And on the other part the Pupil is oblieged to the Tutor by the obediential Bond of Remuneration or recompense of one good deed for an other to make up to the Tutors whatsoever is wanting to them through their faithful Administration This is all the substance of the Interests and Obligations of Tutors and Pupils which the positive Law doth no more but declare apply and ascertain by the form of entring that Office the security for performance of it the fixed time of indurance thereof which naturally is the Age of Discretion in some sooner in some later in some never But for certainties cause positive Law determines a particular year in which for the most part Discretion cometh That there are such Interests and Obligations even naturally the Light of Nature will so easily go along that it will rather need Consideration than Confirmation the grounds thereof being commonly acknowledged and accustomed by all Men who are led by Reason and it is so insinuate by the ordinar Term of Law whereby these Obligations are called quasi ex contractu as arising from no Contract betwixt the Tutor and the Infant or Pupil as not capable of Contracting and yet are not simply by the constitution of Law and therefore these Obligations not being by the will of Man must needs be Obediential Obligations by the will of God The Romans have in this matter keeped clearly and clossely by the Law of Nature and therefore our Customes have keeped as near by them and so have the Customes of other Nations So sayes Gudelinus de jure noviss l. 10. cap. 8. § ff that the Custome of France and Netherlands hath very little altered in this from the Roman Law we shall therefore interweave the Civil Law and our Customes that it may appear how far they do agree and differ and how they do quadrat to the Law of Nature following this order 1. What kind of Tutors they be and what order of the same 2. What the Tutors Duties are in their Entry Administration and Accompts 3. How Tutories end 4. The Pupils Obligation to them therefore And last of that Resemblance that Curatours and Minors have Tutors and Pupils 5. As to the first there be three kinds of Tutors by the Civil Law and our Custome befide that of the Father who is called for distinctions sake lawful Administratour of which formerly The first is Tutor Testamentar or nominate The second is the Tutor of Law And the third is the Tutor Dative all which follow in course in the same order 6. A Tutor Testamentar by the Civil Law behoved to be either named in the Testament or Codicills confirmed by Testament l. 3. ff de testamentaria tutela and could only be given to such as were in patria potestate § 3. Inst. de tutelis But by our Custome a Father may nominate Tutors to his Children in any writ he pleases but it is of a Testamentary nature always ambulatory and mutable during his Life a Grand-father cannot name Tutors to his Oyes because his Son being Emancipat by Marriage they are not in his Paternal Power Neither can a Mother or Grand-mother who have also no such power but any person that gives or dispones any thing to a Pupil may in that Disposition name Tutors who are not properly such but only have the trust and charge of that thing disponed and as to it exclude all other Tutors which taketh place because that nomination is a quality and condition in that Donation November 17. 1627. Fleming contra Brown January 31. 1665. Kirktouns contra Laird of Hunthill 7. A Tutor Testamentar requires no preparatory solemnity to capacitate him to Act but the very nomination it self is sufficient and if it be in a Testament it is valide though the Testament be never confirmed or be rejected by the Executors and so there needs no making of Faith or finding Caution because it is presumed the Father that did name him did sufficiently know his faithfulness and fitness and the Confirmation of a Testament bearing that a Tutor nominate accepted and made faith was not found to instruct his acceptance with out the principal Act subscribed by him were produced or Acts of Administration proven though it was thirty seven years since the confirmation January 31. 1665. Rutherfords contra Laird of Hunthil Neither was a Tutory found instructed by a Discharge as
Dative who ordinarily seek the Office and offer themselves both the diligence accustomed by provident men and such as they use in their own Affairs may be justly required By the Law all Tutors were lyable pro dolo culpa negligentia l. 33. de Administratione periculo tutorum c. 22. That Tutors are lyable not only for what they did intromet but what they might have intrometted with by diligence and particularly of Rents of the Pupils Lands wherein his Predecessors died infeft and in possession though the Pupil himself was not infeft was found January 26. 1628. Commissar of Dunkel contra Abercromby Yet a Tutrix found only lyable for her intromission in respect she continued but some Moneths and the place where the Minors Goods were was infected with the Plague Hope de tutoribus William contra Allan Cathcart neither was a Tutor found lyable for a Sum due to the Pupil as not doing diligence by Horning and Caption for uplifting thereof unless it were alledged that by diligence he might have recovered it and that the Debitor was become worse July 2. 1628. Hamiltoun contra Hamiltoun The like where the Tutor offered to prove by the Neighbourhead that the Debitor during his Tutory was repute and holden insolvent February 6. 1623. Watson contra Watson 23. Contutors both by the Civil Law and our Custome are lyable in solidum and so some of them were decerned for the whole though the rest were not conveened February 22. 1634. Davidson contra Jack they were also found lyable in solidum though they had divided the Tutory among themselves but if the same were divided by the Testatour or a Judge the Tutors are only lyable for their share and not for the rest unless they have by Fraud and supine negligence omitted to pursue the other suspect Tutors to be removed l. 2. Cod. de dividenda tutela The benefit of the order of discussing competent of the Law whereby the Tutors who did Administrate were only lyable for their parts primo loco if the rest were solvendo l. 3. C. de dividenda tutela and that they should be first discust who had Administrate and intrometted before them who had neglected or forborn Ibid. These our Custome followeth not yet a Tutor was not found to have Interest to cause the Con-tutors find Caution to warrand him for their acting without him or against his mind where they did out-vote him or else to quite the Tutory but was left to his ordinary course to remove them if they malversed June 27. 1672. Mr. James Stirling contra his Con-tutors Tutory is finished First by death either of Tutor or Pupil Secondly By the Marriage of a Tutrix Testamentar which no provision even of the Testator can dispense with Thirdly By the Tutors renouncing the Office after which though he were Tutor Testamentar he cannot resume the Office July 6. 1627. Campbel contra Campbel but forbearance for six or seven years doth not extinguish the Office of a Tutor Testamentar by the former Decisions The like December 17. 1631. Auchterlonie contra Oliphant Fourthly By Fury Lethargy or any natural defect of the Tutor rendring him unable to exercise his Office Fifthly And most ordinarily by the Pupils running his Pupilarity which in Men is fourteen years and in Women twelve But if the Tutors continue to act till Majority they are lyable as Curators yet the express Appointment of the Defunct that the Tutors continue Curators cannot extend the Tutory after Pupilarity or hinder Election of Curators February 6. 1633. Harper contra Hamiltoun Tutors or Curators appointed to furious Persons their Office ceaseth when the fury fully ceaseth for though they have Lucide Intervals in which acts done by them without their Tutors are valide yet their Tutory ceaseth not as to the Acts done in their Furiosity 25. The Tutory appointed to Idiots and Furious Persons is prescribed by Act of Parliament 1585. cap. 18. Whereby the nearest Agnats or Kinsmen of Natural Fools Idiots or Furious Persons should be served received and preferred to their Tutory and Curatory according to the Common Law where by the Common Law the Civil Law is understood and though the Act seems only to hold out Tutors of Law where any are served yet seing it is according to the disposition of the Civil Law it excludes not Tutors Testamentar during such persons Pupilarity nor Tutors Dative if the nearest Agnat serve not but ordinarily the Tutors of Idiots are the Tutors of Law This Act by Custome is extended to Deaf and Dumb Persons though they be not expressed who have Tutors in the same manner albeit they have sufficient Judgement since they cannot act by it 26. When Tutory is ended whatsoever the Tutor Acted in name of the Pupil the Pupil hath thereupon Action as if it had been done by himself l. 2. ff quando ex facto tutaris so whatever was decerned against the Tutor hoc nomine ceaseth when the Tutory is ended l. fin C. de per. tut and the Action is competent against the Pupil as likewise if the Pupil be advantaged by the Fraud of the Tutor he may be therefore conveened l. 3. ff quando ex facto tutoris 27. Lastly Tutory ceaseth by the Action of removing suspect Tutors which is a popular Action competent to any l. 1. § 6. ff 3. Inst. de susp tut but ordinarily it is done by the Overseers Mothers or Friends of the Pupil or by the other Tutors the grounds thereof are not only his Malversation and it was found a Malversation that the Tutor had not made Inventar conform to the late Act of Parliament July 7. 1680. Mr. Alexander Gibson contra Lord Dunkel and Sir James Thomson but any thing incident or appearing to weaken his trust as if he become insolvent or his Cautioner become such After Tutory is ended the Tutor hath no Action against his Pupil ante redditas rationes till he make his Accompts July 24. 1662. Mr. James Cranstoun contra Earl of Wintoun Neither hath the Tutors Assignay Action against the Pupil before the Tutor Compts be made albeit Assigned to a Liquid Sum unless the Assignay had found Caution for the Tutor January 24. 1662. Mr. James Ramsay contra Earl of Wintoun Neither for the same reason had the Tutors Assignay Action against the Pupil as Heir to his Father though it was ten years since the Pupilarity past July 7. 1676. Spence contra Scot. But a Tutor was not found lyable for the Services he got of the Pupils Tennants in kind January 11. 1668. Grant contra Grant Yea a Tutor having counted and given Bond for the Ballance being charged with other Articles though these were not instantly Liquidat yet the Extract of a Decreet upon the Bond was stopped for a time till the additional Articles should be closed but the Bond was not reduced as being in confinio minoris aetatis anteredditas rationes December 5. 1671. Mr. George Scot contra Mr. John Elleis In the Tutors
Accounts it was a sufficient instruction of an Article of the Charge a Bond due to the Defunct produced by the Pupil Nor was the Tutor liberat upon alledging he knew not of it but it was presumed to have been in the Charter Chist unless the Tutor could instruct that he had made search of the Charter Chist and neither found this Bond nor any Inventar relating thereto but the Tutor was found lyable though the Sum was lost by the Debitors becoming Insolvent during the Tutory June 24. 1680. William Cleiland contra Laird of Lamingtoun Neither did a Tutor get any further allowance for his Pupils Maintainance then the Annualrent of his Stock though he expended more November 17. 1680. William Sandelands contra Patrick Tailziefer 28. The Reciprocal Duty of Pupils to Tutors after their Tutory is ended is to restore and make up to them whatsoever they wared out profitably or is so wanting to them by that Office wherein the Expences of obtaining the Tutory it self will be a part Nic. de tut Charters contra Mcmillan But Tutory being a Free Gratuitous Office the Pupils are not lyable to their Tutors for any Allowance Sallary or Satisfaction for their Pains but only for their Expences Nic. de tut Tutors of Bucleuch contra Earl of Bucleuch 29. Curatory hath such a resemblance with Tutory that though the constitution of Curators be not of the Law of Nature which leaveth all persons of Discretion free but of Positive Law whereby a way is provided for the Levity and Facility of Minors yet to shun repetition it will be most proper here to annex that Office and the Obligations therefrom arising betwixt Curators and Minors and in these we shall touch the difference betwixt Tutors and Curatours supposing the rest as common to both which is chiefly in these points 30. First In the Election and Constitution of Curatours which is done by way of Process at the Instance of the Minor before any Judge ordinary whatsomever whereby he citeth two or three of his nearest Kinsmen on both sides upon nine days warning to hear Curatours chosen Parliament 1555. cap. 35. and all others having interest generally at the Mercat Cross to hear and sec Curatours decerned to him and it is in his option whom to choose as it is in their option also to accept or refuse he may also make any number a quorum or adject auy condition he thinks fit in their Election and the parties compearing must accept and make Faith de fideli administratione and find Caution Yet where some of the Curators Elected made not Faith but all finding Caution the Curatory was found valid Hope Curators Paterson contra Wishart their Acceptation must be by Subscribing the Act of Curatory specially if the Election be in an Inferiour Court for want whereof an Act of Curatory before the Bailiffs was found null Hope Curatory Sibbald contra Hay and Lindsay Curatours also may be chosen by Procuratours without the Minors presence so that the Procuratorie expresse the Curatours Names Hope Curatours Marquess of Hamiltoun contra his Curatours yea being done in England according to the Custome there it is sufficient to Authorize the Minors Here Hope tut Posso contra Nasmith Though the Minor may choose Curatours when he pleaseth yet may he not choose Rebels unrelaxed if it be objected and verified at the Election by his Friends July 4. 1629. Corbet of Arbel contra 31. Curatours are of two kinds ad lites and ad negotia the former are appointed for Authorizing Judicially in Process the other are mainly for Extrajudicial Affairs Curatours ad lites are so far necessary that they must be given by the Judge ordinar before whom any Action is pursued for Authorizing of the Minors either Passive or Active and they will be given upon the desire of the other party Their Office seems to reach no further than to Faithfulness and Diligence in the Processes whereunto they are Elected There are sometimes Curatours named to Pupils to supply the defect of their Tutors as if their Tutour be concerned or be absent or uncapable to Act for a time These though for a distinction from Tutors they be called Curatours yet their Office pro tempore is of the same nature with Tutors 32. Curatours ad Negotia are free and in the Minors option in so far that a Son being Minor and choosing Curators without the Fathers consent but with consent of his Mothers Father the Curators were preferred to the Father as lawful Administratour but here the Father was known to be a weak Person and to have Controversies with his Son Nic. de tut Laird of Barganie contra his Son And Curatours must be freely chosen that though the Minors Father named his Tutor expresly to continue till the Pupils Majority their Office was found not to hinder the Minors to choose Curatours or to disown his Tutors after his Pupilarity February 6. 1633. Harper contra Hamiltoun Minors having chosen no Curators are in the same condition for extrajudicial Acts allone as if they had Curatours in either case the deeds are revocable and reduceable upon enorm Laesion 33. But if once they choose Curators all deeds done by them without consent of their Curatours are eo ipso null by exception without necessity to 〈◊〉 Lesion December 9. 1632. Maxwel contra Earl of Nithisdail and that so exactly that the Minority was counted de momento in momentum though the Minor wanted only twelve houres of twenty one years June 26. 1624. Drummond contra Laird of Cunningham-head and this extended to a Judicial Act whereby the Minor Acted himself Cautioner Hope de Minoribus Paterson contra Wishart and extended also to a Minors service without consent of Curatours and that by exception without instructing Lesion Spots de mino Simpson contra Laird of Balgane and to a Tack taken by the Minor without consent of Curatours Hope de Minoribus Seaton contra Laird of Caskiben and extended to deeds done by Minors in their Fathers Family without their Fathers consent and so it was found that a Minors Bond Subscribed Cautioner with and for his Father was null and that his Father as lawful Administratour could not Authorize him to be Cautioner for himself here the Minor was a Student at Law but intertained by his Father and not forisfamiltat December 7. 1666. Sir George 〈◊〉 contra Fairholme December 25. 1667. inter eosdem yet the deed was sustained being a Bond of borrowed Money the Creditor proving by Witnesses that the Sum was converted for the Minors use profitably December 21. 1629. Gordoun contra Earl of Galloway this is according to that 〈◊〉 ground of Equity nemo debet ex alieno damno lucrari hence follows Minor tenetur in quantum locupletior factus but though there was some onerous Cause of Minors deeds yet unless it were liquid as delivery of Money it is not receiveable by way of exception or reply but only is reserved to the Creditor to pursue as Accords and
Debitor whom the Creditor brought home from abroad that he might prevent the diligence of an other Creditor who had denunced that Debitors Lands to be Apprized upon sixty days but upon return of the Debitor this Creditor denunced upon fifteen days and so did first Apprize yet the first Denunciation and last Apprysing was preferred Hope de dolo Sir Hendry Wardlaw contra Thomas Dalyel And the Liferent Escheat of a Vassal was excluded because the Superior upon whose Horning it fell had taken payment of the Debt and had not acquainted the Vassal that he was Denunced that he might have relaxed within the year as was found in the same case Ibidem Though this case and that of latent insufficiency be rather lata culpa quae dolo equiparatur for the difference betwixt dolus lata culpa is that dole est magis animi and oftentimes by Positive Acts and lata culpa is rather facti and oftentimes by Omission of that which the Party is oblieged to show A Discharge was found null as to an Assigney to a Bond granted by one Brother to another the Discharge being of the same date with the Bond which could have no construction but that the Brother by assigning the Bond might deceive December 4. 1665. Thomson contra Henderson And a Discharge by a Son to his Father of a Sum provided to him by his Contract of Marriage without satisfaction But upon agreement betwixt the Father and the Son the time of the Contract that the Sum in the Contract should be Discharged gratis was found fraudulent and null as to the Sons Creditors who Traded with him even after the Discharge January 21. 1680. Isobel Caddel contra John Raith And a Liferent by a Husband to his Wife of his whole Estate providing she disponed the half to the Children of the Marriage was found fraudulent as to that half and the Creditors of the Husband preferred to the Children therein December 23. 1679. John Erskin contra Carnagies and Smith But where the Liferent was but suitable to the Parties a clause therein that so much of it should be applyed for the Aliment of the Children that clause was not found fraudulent in prejudice of the Husbands Creditors but was sustained to the Children it flowing only from the Mother November 16. 1668. Wat contra Russel 12. Under Fraud Simulation and Collusion are comprehended Simulation occurs mainly in two cases in Dispositions retenta possessione for although the Disposition be delivered and that there be Instruments of delivery of the Goods Disponed yet if the natural Possession be retained the Disposition is presumed simulat and others affecting the things disponed by Legal Diligence or by natural Possession are preferred Simulation in Gifts of Escheat and Liferent are very frequent and easily presumed retenta possessione Vide Tit. 25. § 12. 13. Collusion occurs chiefly when the Debitor or common Authour opposes some Creditors and concurs with others that these may attain the first compleat Diligences which imports direct Fraud or if he oppose one though he do not concur with an other but only not oppose that other his opposition is holden as Fraudulent 14. Fraud gives remeid by Reparation to all that are damnified thereby against the Actor of the Fraud either by anulling of the Contract or other deed elicit or induced by Fraud or by making up the damnage sustained by the Fraud at the option of the injured and so Fraud was sustained at the instance of a Seller to anull a Bargain of sale of Wines delivered to a Skipper upon the Buyers order because the time of that order the Buyer knew himself to be insolvent which might appear by his Books and though the Wines were Arrested by a Creditor of the Buyers in the Ship and a Decreet for making forth-coming recovered yet the Wines were ordained to be restored to the Seller December 22. 1680. Magnus Prince contra Peter Pallet 15. Reparation of Fraud is not only competent to the Party defrauded but also to his Creditors or Assignays for which the Romans had a peculiar remeid Per actionem Paulianam for anulling all deeds in fraudem Creditorum in imitation whereof the Lords of Session made an Act of Sederunt in July 1620. against unlawful Dispositions and Alienations made by Dyvers and Bankrupts which was Ratified by Act of Parliament 1621. cap. 18. By this Act of Sederunt the Lords declare that according to the Power given to them to set down Orders for Administration of Justice meaning to follow and practise the good and commendable Laws Civil and Canon made against Fraudful Alienations in prejudice of Creditors against the Authors and Partakers of such Fraud that they wil Decern all Alienations Dispositions Assignations and Translations made by the debitor of any of his Lands Teinds Reversions Actions Debts or Goods whatsomever to any conjunct and confident Person without true just and necessary Causes and without a just price really payed the same being done after contracting of lawful Debts to have been from the beginning null by way of Action or Exception without further Declarator but prejudice to purchasers of the Bankrupts Lands and Goods for just and competent Prices or in satisfaction of their lawful Debts from the Interposed Persons But the Receiver of the Price from the Buyer shall be holden to make it forthcoming to the Creditors and it shall be sufficient to prove by Write or Oath of the Receiver of the Disposition from the Bankrupt that the same was made without a true and just Cause or that the Lands and Goods being sold by him that bought them from the Dyver that the most part of the Price was converted or to be converted to the Bankrupts profit and use And in case the Bankrupt or interposed Person shall make any voluntar Payment or Right to any Person he shall be holden to make the same forthcoming to the Creditor having used the first lawful Diligence and he shall be preferred to the Con-creditor who being posterior to him in diligence hath obtained payment by the partial favour of the Debitor or his interposed Confident and shall recover from the said Creditor what he hath so obtained But what the interposed Person hath payed or assigned to the Bankrupts lawful Creditor before preferable diligence done by others shall be allowed to him and he shall be lyable to make forthcoming the rest of the price Yea the saids Bankrupts and interposed Persons and all others who shall give Counsel and Assistance in devising and practizing the Fraud shall be holden infamous incapable of Honour Dignity or Office or to be Witnesses or Assyzers This excellent Statute hath been cleared by Limitations and Extentions in multitudes of Decisions occurring since relating to defrauding of Creditors which being of the greatest importance for Publick Good and Security We shall distinctly and in order hold forth the several Cases that have been decided in this matter First then though the Statute be only in favours of anterior
Creditors for anulling posterior Deeds yet it is not exclusive of other Remeids for anulling Deeds done in defraud of Creditors though contracting after these Deeds where Fraud in the design doth evidently appear whereof we have now instanced several Decisions So a Bond granted by a Father to a Son forisfamiliat payable after the Fathers Death was Reduced at the Instance of the Fathers posterior Creditors continuing Traffick with him February 1669. Pott contra Pollock And a Bond payable only by the granters Heir if he had no Heir of his own Body was Reduced as Fraudulent January 24. 1677. Blair of Ardblair contra Wilson And a Disposition of Lands purchased by a Merchant to his Son was found Affectable for the Debts of Merchants Strangers who began to Trade with the Father before the Disposition and continued after even as to the posterior Debts seing the Father continued still to act as Proprietar though by his Compt Book it appeared he knew himself to be Insolvent And though the Sons Infeftment was publick and Registrat which stranger Merchants were not oblieged to know July 2. 1673. Street and Jackson contra Masson Yea an Infeftment by a Father to his eldest Son an Infant was reduced at the Instance of posterior Creditors his neighbours where the Seasing was Registrat seing the Register was carried out of the Countrey and the Father continued to act not as Liferenter but as Proprietar December 4. 1673. Reid of Bullochmyle contra Reid of Daldillin And generally Latent Rights amongst confident persons are reduceable by posterior Creditors But the Liferent of the whole Conquest of a Merchant provided in a Contract of Marriage to his Wife being an ordinary Clause was not found fraudulent February 10. 1674. Marion Gray contra the Son and Creditors of her Husband Secondly though this Statute bears all Alienations without Cause onerous in prejudice of prior Creditors to be null ab initio and without declarator by exception or reply Yet Custome hath found this inconsistent with the nature of Infeftments which cannot be reduced till they be first produced and all the Authors called which cannot be by way of exception but by action But a Disposition of Moveables was found anullable by reply November 18. 1669. Henderson contra Henderson June 18. 1671. Bower contra Lady Couper And likeways a profitable Tack February 6. 1662. Doctor Hay contra Marjory Jamison Neither are the receivers of such Alienations comptable for the profits ab initio till they be put in mala fide by the pursuites of anterior Creditors whose Rights they are not presumed to know till they be produced and found preferable Thirdly Though the Title of this Statute and much of the Body of it be against the Alienations of Bankrupts in prejudice of their Creditors yet the Statutory part declares against all Alienations to any conjunct or confident person without a just price being in prejudice of anterior Creditors to be anulled which hath always been extended not only to Dispositions of Bankrupts made to confident persons but to any person without a competent price or equivalent cause onerous and therefore such gratuitous Deeds are reduceable by anterior Creditors though the granter was not then Bankrupt as a broken Merchant flying But if he were before or did by these fraudulent Deeds become insolvent Hope Usury Pringle contra Ker. February 16. 1628. Kilgour contra Thomson January 17. 1632. Skeen contra Belstoun Yea if thereby his Estate cannot afford ready Satisfaction or Security as being incumbred with many Appryzings or Adjudications though the Reversions may be equivalent to all his Debt Yet anterior Creditors may reduce gratuitous deeds done by such persons being more fit that anterior Creditors should be preferred and the obtainers of these gratuitous Rights should be put to recur upon the Reversions by their warrandice February 10. 1665. Lady Craig contra Lord Lour But there is nothing in this Statute or by Custome to anull any gratuitous deed in favours of Wives Children or Strangers if at the time of the granting and delivery thereof the granter had an Estate sufficient for these and all his Debts unaffected by Appryzing Adjudication or Arrestment Neither will Inhibition suffice nor Apprizing or Arrestment for small Sums to be a ground for this Reduction Competent provisions to Wives or Husbands are not accompted gratuitous but onerous ad sustinenda onera Matrimonij and for mutual Provisions But if exorbitant they will be lyable in quantum locupletiores facti December 23. 1661. Dam Rachel Burnet contra Lepers Neither are Provisions or Gifts to Children anullable by anterior Creditors if the granter had then a visible Estate sufficient for these and all his Debts as was found in a provision by a Father to his Son by his Contract of Marriage though the Son received the Tocher June 22. 1680. Grant of Cairnhauch Contra Grant of Elshes November 10. 1680. Mckel contra Jamison and Wilson Yea the Portions of Children were not excluded by prior Creditors their Father having then a sufficient visible Estate though ex eventu it proved insufficient by running on of Annuals and Accumulations of Appryzings December 11. 1679. Creditors of Muswall contra Children of Nuswald June 30. 1675. Clerk contra Stuart and Williamson And so a Disposition by a Grand-Father to his Oye was not annulled by Anterior Creditors March 6. 1632. Laird of Grantoun contra Ker. Fourthly Though this Statute requires a just price it did not anull a Disposition though a prior Creditor offered a greater price if the price received was the ordinary Rate of the Countrey and though there was a personal Reversion to the Disponers eldest Son only January 16. 1677. Earl of Glencairn contra John Brishane The like where the pursuer had obtained a prior minute of Sale for a greater price yet it did not reduce a posterior Infeftment purchased bonafide though for a lesser price being competent July 18. 1677. Murray of Kilor contra Drummond of Machanie Fifthly Though the Statute mentions only the anulling of Dispositions c. yet it is ordinarly extended to Bonds or obliegements whereupon Appryzing Adjudication or Arrestment follow Sixthly Though Dispositions or other Rights be fore equivalent Causes Onerous yet by the posterior part of the Statute they are accompted fraudulent and reducible if the Bankrupt or the interposed person in Trust do by voluntar gratification prefer one Creditor to another who hath done more timeous and lawful diligence where by Bankrupt is not only to be understood a notour Bankrupt but any person insolvent or by the preference becoming insolvent or who hath not a sufficient visible inaffected Estate for his other Creditors But where a Debitor of an intear Estate pays his lawful Creditor or satisfies him by Dispositions or Assignations neither the Tenor nor Extention of the Statute reacheth these Cases albeit there be inchoat and incompleat Diligence at the Instance of other Creditors Seventhly Where that Clause of the Statute bears the annulling of Deeds done
favourable but the adjection of a penalty or estimation makes not the Obligation alternative But if any of the Members of the alternative become not intire the Debitor connot offer that Member January 18. 1675. Collector of the King and Lords Taxation contra Inglis of Straitoun The manner also of performance admitts not that the Debitor may perform by parts that which he is oblieged to by on Obligation if it be not that which cannot be performed all at once as the performance of some Acts requiring divers seasons but otherways it must be done without intermission for neither can Money or Grain be delivered at one instant but that is understood to be performed together which is without intermission yet the Civil Law favours the Debitor so far that the Creditor cannot refuse to accept a part of the Money due TITLE XI Liberation from Obligations 1. Obligations cease by contrary consent by Discharge Declaration Renunciation or per pactum de non pentendo 2. Three subsequent Discharges Liberat from preceedings 3. Payment made bona fide 4. Consignation 5. Acceptilation 6. Compensation 7. Retention 8. Innovation 9. Confusion HAVING thus run thorow the constitution and effects of Conventional Obligations It is requisite in the next place to consider their destitution and how they cease which we have exprest in the general term of Liberation comprehending not only payment but all the ways by which Obligations or Bonds are dissolved or loosed and Debitors Liberat We are not here to speak of the Objections competent against Obligations from their nullities for such were never truly Obligations neither of the common exceptions against them and other Rights as Prescription Litiscontestation res judicata Circumvention Extortion c. of which in their proper places But only of the proper ways of taking away Obligations and these are either by contrair consent or by performance or the equivalent thereof 1. First As consent constituteth so contrary consent destituteth any Obligation whether it be by Declaration Renunciation Discharge or per pactum de non petendo which may be extended not only to Conventional but to Natural Obligations as to any duty omitted or transgressed which is past though not to the discharge of the Obligation it self as to the future for love to God or our Neighbour and most of the Duties betwixt Husbands and Wives Parents and Children cannot be Discharged as to the future neither can future Fraud or Force be effectually Discharged for such cadunt in turpem causam If the Write be special and express there can be no question when it concerns a personal Right and is given by the party having power to Discharge and therefore a Discharge of a clause in a Bond constituting an Annualrent whereupon Infeftment followed for a sum lent by a Father and taken to his Son in Fee and bearing with power to the Father during his life to Dispone was found valid and that it required not Registration as a Discharge of Reversion January 6. 1681. Mary Bruce contra Patrick Hepburn But a Discharge of an Annuity belonging to an office by infeftment containing a renunciation of that annuity was not found Relevant against an Appryzer December 9. 1679. Lord Hattoun contra the Town of Dundee Neither did a Discharge of a sum payable to a man and his Wife and the Bairns of the Marriage subscribed only by the Husband exclude the Wife from her Liferent Right to that sum January 22. 1680. Isobel Caddel contra John Raith Neither was a Discharge to a Cautioner upon payment found competent to the principal Debitor unless the Cautioner concur for the Principal may be distressed by the Cautioner using the name of the Creditor as his Cedent July 13. 1675. Margaret Scrimzour contra the Earl of Southesk A Discharge to one or more Debitors Viz. Con-tutors found not to liberat the rest except in so far as satisfaction was made or as the other Con-tutors would be excluded from relief by the party Discharged December 19. 1669. Seatoun contra Seatoun But payment made by one party whose Lands were affected by Inhibition did Liberat the rest pro tanto though it bore not in satisfaction but to restrict the Inhibition January 5. 1675. Ballantine contra Edgar But Discharges by Masters to Tennents for Rent by their Subscription without Witnesses and not being holograph are sustained in regard of the custom so to Discharge November 7. 1674. John Boyd contra Story And by the same custom receipts and discharges of Merchants and Factors in re mercatoria are sufficient by the parties subscription albeit neither holograph nor with Witches But the main Question is how far general Discharges are to be extended which are of two sorts One where there are particulars Discharged with a general Clause and then the general is not extended to matters of greater importance then the greatest of the particulars February 24. 1636. Lawson contra Ark Inglas The other is where the Discharge is only general without particulars which useth not to be extended to Clauses of Warandice Clauses of Relief or obliegements to Infeft or to purchase real Rights and therefore a Discharge of all Debts Sums of Money Bonds Obligations Clags Claims for whatsoever cause was found not to Discharge a Contract for purchasing an Appryzing of Lands and Disponing the same November 19. 1680. Beatrix Dalgarn contra the Laird of Tolquhon Neither was a Discharge wholly general extended to an Obligation by the party Discharged as Cautioner unless it were proven that the Discharge was granted upon satisfaction of that Debt Hope Bonds Ogilbie contra Napier But it was extended to Contravention though there was a Decreet after the Discharge Hope Contravention Laird of Aitoun contra his Brother Yea a general Discharge in a Decreet Arbitral was found to Liberat the submitters Cautioner Hope Bonds Lady Balmastiner and her Son contra Alexander 〈◊〉 Neither was a general Discharge found to extend to a sum assigned by the Discharger before the Discharge albeit the Assignation was not intimat seing the Discharger was not presumed to know the want of the Intimation unless it were proven that the sum was particularly commoned upon or satisfied at obtaining the general Discharge February 3. 1671. Blair of Bagillo contra Blair of Denhead Neither was a general Discharge extended to sums whereuto the Discharger succeeded after the Discharge February 14. 1633. Halyburtoun contra Huntar 2. Three subsequent Discharges do presume that all preceedings are past from As first The Discharges of three immediat subsequent years Rent June 21. 1610. Nowison contra Hamiltoun This was sustained though the Discharges were only granted by a Chamberlain Hope Clause irritant Laird of Wedderburn contra John Nisbit this was sustained to purge a Clause irritant yea though some of the Discharges were granted by the Father and the rest by the Son as Heir February 17. 1631. Williamson contra the Laird of Bagillo which was extended to by gones though a Bond was
are the real Charter yea it is not like they would reject a Bond obliedging to grant such Infeftment albeit it do not de presenti dispone as a sufficient adminicle to sustain a seasine where they had been 40 years possession although prescription was not compleated by immediat subsequent Seasines or uninterrupted possession the Party making faith that he did not keep up or conceal any other part of the Investiture which would sufficiently take off the presumption of Fraudful concealing or away-putting the immediat warrant of the Seasine which might afford defences to the other Party For even in a recent Case of the Infeftment of a Wife in Life-rent her Seasine was sustained upon Production of her Contract of Marriage albeit the Seasine proceeded upon a Bond granted for the same cause January 29. 1665. Mr. George Norvil Advocat contra Margaret Sunter where nothing was alledged of long possession See what was found November 22. 1628. Clappertoun contra Hoome Hope Seasine Murray of Philliphaugh contra Schaw Gray contra Finlayson there could be less question if the Seasine related to a precept apart and did not bear whether the precept proceeded upon a Charter Disposition Alienation or Bond for then the production of any of these would adminiculat the Seazine Seasines within Burgh for serving of Heirs by Hesp and Staple by the immemorial Custom and Priviledge of Burgh being given by the Town-Clerk do prove sufficiently both the propinquity of Blood that the same was Cognosced and Seasine given accordingly without necessity of any warrand or adminicle but in Seasines of Original Rights of conveyances to singular Successors will not be sustained by Seasines by the Town Clerk without Adminicles as to Tenements within Burghs as was found in an Infeftment from a Father to his son bearing to be upon the Fathers Resignation February 11. 1681. Francis Irwing contra Corsan June 21. 1672. William Mitchel contra Thomas Cowie Seasines propriis manibus when either the Superior himself doth give Seasine to his Vassals Acturney or when the Superiors Baily by his Precept gives Seasine to the Vassal himself being present and accepting or when the Superior immediatly gives Seasine to the Vassal in these Cases the Nottars warrant is sufficiently instructed by the Seasine and by the Disposition Contract of Alienation or Bond Or when the Seasine is propriis manibus secundum Cartam Conficiendam if a Charter thereafter made beshown as a Seasine propriis manibus by a Father to his son reserving the Fathers Liferent was found valid against a second Wises Infeftment granted for a competent Tocher being adminiculat by a Bond granted by the Father of the same date with the Seasine obliedging him to warrant the same February 11. 1669. Buchan contra Tait yea a Seasine propriis manibus by a Superior containing Resignation accepted by the Superior and immediatly Seasine given propriis manibus was sustained without any warrant subscribed by the Superior but by the Vassals Disposition containing Procuratorie of Resignation there being no more solemn Infeftment in competition Januarie 17. 1672. John Young contra Thomson But as to Seasines propriis manibus by Husbands to their Wives in Contemplation of Marriage either before Marriage where Marriage followed or after Marriage having no adminicle but the Marriage The Lords according to the different Cases have sometimes sustained them when they were suitable to the parties and not exorbitant and where the question was only with the Husbands Heir Nov. 22. 1628. Clappertown contra Hoom. June 19. 1668. Relict of Wallace of Galrigs Contra his Heir in which case it was instructed that about that time the Wife had disponed to her Husband her Joynture by a former Marriage But such Seasines are easily improven if they be not asserted by the Witnesses insert As in the last case the Heir insisting in improbation there being four witnesses in the Seasine two of them deponed they were not witnesses thereto the third remembred not the fourth was positive for it and the Nottar offered to depone that it was true yet having no adminicle his oath was not taken and the Seasine was improven but if there had been an adminicle the Nottar and one of the Witnesses being positive the Seasine would not have been improven for where there is a warrant mediat or immediat providing a Seasine to be given Quid fieri debet facile 〈◊〉 And therefore the witnesses not remembring would hardly improve such Seasines unless their Testimony were positive giving special circumstances of their remembrance as being in such another Country or far distant place at that time if the truth of that were otherwayes astructed But the general denial to be witnesses could import no more but non memini and therefore an adminicle in write with the protocol or oath of the Nottar if he were alive and especially if possession followed for some time these would stronglier approve then the not remembrance or general denyal of the witnesses insert would improve But this dipping upon a general Question de side instrumentorum we shall say no more of it in this place nor of the Admission and Qualification of Nottars as to which Craig relates the customs of France which were not then nor have not yet been here allowed but certainly more exactness ought to be in the admission of Nottars not only as to their skill but as to their reputation of Honesty and Fidelity and the least want or weakning of these should turn them out For the Introduction of the Solemnity of the Instruments of Nottars was not only because of old few could write and the impression of Seals were easily imitat yea even such rude Subscriptions there being some in Justinian's time who could so artificially imitat anothers hand write that himself could not know it or durst swear it was not his write And therefore he introduced two remeeds that private writes should not prove by the Subscription of the party unless that there were three subscribing Witnesses knowing he Parties Contracters or that there were three Witnesses who depone anent the truth of the Deed or otherwayes that writes were made in publick by a publick person which at first was only done Judicially but thereafter Extrajudicially by a Nottar-publick but our Custom hath returned to private write and 〈◊〉 not the Instruments of Nottars but where they are adminiculat by 〈◊〉 〈◊〉 in the case where parties cannot write and then in matters of Importance two Nottars and four Witnesses are necessary by special Statute But this is not extended to seasines but only to the subscriptions of Nottars for parties February 11. 1669. Buchan contra Tait Julie 5. 〈◊〉 Bishop of Aberdeen contra Viscount of Kenmuir Yet in some cases of small importance Instruments of Nottars are probative and in all cases where witnesses would prove it doth much fortifie the same that they were Witnesses required and Instrument of a Nottar taken thereupon For then the Instrument of the Nottar astructed by
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
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
found lyable to the Liferenter for the true worth of the Liferent-lands and not according as he set them though they were never set before except the Appryzer had set the Lands wholly or near to the worth March 9. 1631. Lady Huttonhall contra Lairds of Moristoun and Touch. 9. A Liferenters Executors was found to have right to the Mertimas Term though the Liferenter died upon the Mertimas day in the afternoon February 16. 1642. Executors of the Lady Bruntoun contra Heir of the Bishop of Glasgow And they have right to the whole Cropt and Profite of the Land laboured and sown by themselves or which was in Mansing and not set to Tenents though the Liferenter died before Mertimas December 14. 1621. William 〈◊〉 contra James Nisbit A Liferenters Executors was found to have right to the whole years Rent of a Miln Liferented by her she having survived Martimas and that Miln Rents were not due de die in diem but as Land-rents not as house mails though the conventional Terms of the Miln Rent was after Martimas viz. one Term at Candlemess after the Separation and the other at Whitsonday thereafter July 20. 1671. Guthry contra Laird of Mckerstoun But a Liferenter Infeft in an Annualrent of Victual provided to be payed yearly betwixt Zule and Candlemess her Husband having died after Martimas and before Candlemess she was found to have no share of her Annualrent for that Cropt January 12. 1681. Katharine Trotter Lady Craiglieth contra Rochhead Lady Prestoungrange 10. A Conjunctfee or Conjunct-infeftment is that which is granted to more persons joyntly which if it be provided to them and their Heirs simply it maketh them and their Heirs to have equal right pro indiviso and they are all equally Fiars and after the death of any of them their Portions belong to their Heirs but the Liferent of the Deceassing accresseth not to the Survivers but when Conjunct-infeftments are provided to Husbands and Wives the longest liver of them two and their Heirs There the Law presumes that the Heirs are the mans Heirs and by that Interpretation the wife by the Conjunctfee is but Liferenter and generally Heirs of man and wife in all things except Moveable Rights are ever understood to be the mans Heirs propter eminentiam masculini sexus so was it found in an Assignation to a Reversion granted to a man and his wife and their Heirs that thereby the mans Heirs first these of the Marriage and next his other Heirs whatsomever were understood Hope Husband and Wife Walter Collestoun contra Pitfoddels Yet though this be presumptio juris it admits contrary more pregnant evidences as a Reversion granted to a man and wife and their Heirs found to Constitute the wife Fiar because she was Heretrix of the Wodset Lands Hope Liferent Kincaid contra Menzies of Pitfoddels But to prevent this question the provision ordinarly is to the longest liver of them two and their Heirs whilks failing to such particular Heirs exprest whereby these are commonly esteemed Fiars whose Heirs what some ever are substitute And yet a sum provided to a man and his Wife and the Heirs betwixt them whilks failing to divide betwixt the man and wifes Heirs was found not to Constitute the wife Fiar of the half but only Liferenter and the wifes Heirs of line to be Heirs of provision to the man and that the sum was Disposeable by him and Arrestable by his Creditors January 29. 1639. Graham contra Park and Gerdon So strong is this presumption that there is no more meaned to be granted to Wives but their Liferent-right and no part of the Fee unless the provision bear expresly a power to the wife to Dispone and if it be adjected at any time during her life the Fee will remain in the man and that power in the wife will rather be understood as a Faculty like to the power given to Commissioners to Dispone Lands then an Act of Property unless that the provision bear a power to the wife and her Heirs to Dispone but a Conjunctfee to future Spouses of Conquest during the Marriage in these Terms The one half thereof to be disponed upon as the Wife shall think fit being in a minut of Contract expressing no Heirs but being a short draught the Lady being of great quality having about 22000. Merks yearly in Liferent beside Money and Moveables and the Husband being a Noblemans Son having gained an Estate of 7000. Merks yearly in the Ware which he had lest the Clause was found to be understood and extended so as to make both future Spouses equal Fiars seeing the Conquest was mainly to arise out of the wifes Liferent June 27. 1676. Earl of Dumfermling contra Earl of Callender If a Conjunct-infeftment be granted to two or more the longest liver of them and express no Heirs but a liferent to them all the same accresseth to the Survivers or if it be a Right of Lands or Annualrents to a man and his Wife the longest liver of them two and to their Son named and his Heirs the man and his wife are both liferenters and the Son is Fiar only unless the right be for security of Sums of money and then the person named is but as Heir substitute the Father is Fiar even though the Son were infeft with the Father and Mother January 14. 1663. Thomas Bog contra Sir Thomas Nicolson July 23. 1675. Moor of Anistoun contra Laird of Lamingtoun 11. The main difference betwixt Conjunct-fees and other Life-rents is that the Conjunct-fiar though by interpretation Liferenter only and so may not alienat or waste yet by the nature of the right and custom they have the benefit of all Casualities befalling during their life and may dispose thereof which will not only be effectual during their life but simply for that individual casuality So Conjunct-fiars may receive and enter the Heirs of Vassals and have the benefit of their Ward Non-entry Liferent-escheat and may grant Gifts thereof effectually even as to the time after their death So also a Conjunct-siar infeft with her Husband in Lands cum Sylvis was found thereby to have right to make use of the Woods for her and her Tennants use January 10. 1610. Hunter and others contra Relict of Gadgirth Vide Title 13. § 41. Liferenters have not these Casualities of Superiority yet a Baron having disponed his Barony reserving his Liferent was thereby found to have right to receive the Heirs of his Vassals but not singular Successors Ianuary 11. 1611. Crawfurd contra Laird of Glaspen And there is reason that the Fiar disponing with reservation to himself whereby his own Infeftment stands pro tanto should have greater power then a Liferent apart or by reservation not being before infeft conjunctfees though publick as ordinarly they are and thereby as to the Superiour the Fee is full and the casualities of Ward and Non-entry excluded yet the Heir may enter to the Property and compel the Superiour to
receive him 12. Terce is the third of the Tenements in which the Husband died infeft as of Fee provided to his Wife surviving by Law or Custom though there be no provision or paction for that purpose The original hereof as hath been shown before amongst the interest of Marriage is from that obligation upon the Husband to provide for his Wife which therefore positive Law hath determined to a third of his Moveables if there be Children in the Family and if there be none to a half but in either case she hath a third of his Tenements And though as Craig observeth by our ancient custom Terce extended only to a third of the Tenements a Husband had the time of the Marriage yet since it extends to a third of those he stands infeft in as of fee the time of his death and so when he is denuded before his death the Terce is excluded Yea a base Infeftment without possession granted by a Husband to his Creditor was found to exclude his Wife from a Terce of that Land January 27. 1669. Bell of Belford contra Lady Rutherford This provision of Law is more equitable and proportionable then ordinarly are their provision by Contract of the Husband who being carried with affection doth oft-times provide his Wife to the prejudice of their Children and ruine of their Estate which this Terce keepeth alwayes proportionable and maketh the Wife sharer of the Industry and Fortune of the man and therefore more careful over it and upon the contrary giving out but small Provisions to their Wives at their Marriage when oft-times they do but begin to have Estates which they increase not according to the increase of their Fortune but the Law doth more fitly order the Wifes Provision to be increased or decreased according to the condition of the man 13. The Terce taketh place ordinarly where the Husband died infeft as of Fee and it hath no effect till the Widow take Brieves out of the Chancelery directed to Sheriffs or Bailies to call an Inquest of fifteen sworn men and thereby to serve the Brieve which hath two Heads the one That the bearer was lawful wife to the defunct the other that he died in fee of such Tenemnts This is a pleadable Brieve and hath no retour but Service alone is sufficient enough to give the Wife interest that other Liferenters have It was specially statute That where the Marriage was not questioned in the Husbands life and the Widow was holden and repute his lawful Wife in his Time no exception in the contrary shall be sustained in the service of the Brieve but she shall be served and injoy the Terce till it be declared in a petitory judgement That she was not lawful Wife Par. 1503. cap. 77. 14. The Brieve being thus served the Sheriff or Bailiff must also if it be demanded ken the Relict to her Terce which is ordinarly done by the Sun or the Shade That is whether the division shall begin at the east or the west and so the division of the Tenements proceed by Aikers two befalling to the Heir and one to the Relict wherein there ought to be Marches set and Instruments taken thereupon which is as a Seasine but this division being most inconvenient except the whole interest were used to be set in Aikerdale it is not exclusive of other divisions by the worth of the Lands or the Rent so many Rooms being designed for the Tercer the rest remaining for the Fiar This way of kenning would be valid and much better but it is not necessary to divide at serving the Brieve to constitute the Terce for the Service giveth sufficient Title to the third of the Mails and Duties of every Room March 5. 1632. Relick of Veatch of Dawick contra 15. But that thereby she cannot remove possessors is because she brooketh the Terce pro indiviso with the Heir till it be be kenned or otherwayes divided and the Terce being served gives right not only to the years thereafter but preceeding since the Husbands death November 20. 1624. Tennants contra Crawford and Flemming and so the Tercer may pursue the Heretor or other intromettor for all by-gones of the third of the Duty not as they were at the Husbands death but as they were bettered by the fiar Feb. 13. 1628. Countess of Dumfermling contra Earl of Dumfermling and that without deduction of Factor-fee March 27. 1634. inter eosdem The Tercer being served hath interest to pursue for Commission to cognosce pasturage Lands what Soums they may hold that she may have the third Soum or else to divide January 18. 1628. contra Mackenzie The division of the Terce from the two thirds may be in the most convenient way wherein all Dwelling-houses or Kilns and Barns and other Houses for service will come in as they may be most conveniently divided This is the most ordinary way of Terces by Service as said is when the Husband died infeft in Fee 16. Terce takes place not only in Lands but also in Annualrents wherein the Husband died infeft as of Fee Novemb. 30. 1627. Tennants of Easthouses contra Hepburn but not to the Terce of Annualrents of Bands whereupon no Infeftment followed June 24. 1663. Elizabeth Scrimzeour contra Murrays It is also extended to Infeftments of Teinds Feb. 13. 1628. Countess of Dumfermling contra Earl of Dumfermling But it is not extended to Tenements or Lands within Burgh or holden Burgage neither to Superiority or Feu-duties or other Casualities thereof nor to Tacks ibidem neither to Patronage or Advocation of Kirks neither doth Terce extend to Reversions If the Fiar whose Land is lyable to a Terce die and his Wife have right to another Terce which is called the lesser Terce though the Husband died infeft as of Fee of the whole Tenement she hath not a third of the whole but a third of these two thirds which were unaffected with the greater Terce till the former Tercers death Craig lib. 2. dieges 22. proposeth two cases in which the Relict will have a Terce though the Husband died not infeft as of Fee The first is if the Husband infeft his appearand Heir in his Estate if there be no Liferent provided to his wife by a Contract in that case the Relict will have a Terce which is most just albeit it will not proceed summarly by a Brieve which bears only warrand for a Terce of the Tenements in which the Husband died infeft as of Fee But it may proceed by Reduction or Declarator and would not only have effect against the appearand Heir but against any gratuitous Disposition reserving the Husbands own Liferent for such deeds would be found fraudulent and contrary to the nature of the obligation of Husbands to provide their Wives unless there remained Tenements out of which a reasonable Terce might remain to the Relict according to her quality The other case is when a Father by his Sons Contract of Marriage is oblieged to infeft his Son
for which the Right to the Annuity was granted according to which many have bought their Annuities The Commission did also give power to value the Teinds that the Annuity might be known and to uplift and compone for the bygone and the Current Annuities until they were sold and accordingly Collectors were appointed by the Earl of Lowdoun in several places of the Kingdom The like Commission was renewed to James Earl of Lowdoun after his Fathers death who did make some progress therein in the same way as his Father had done but a stop was put thereto by the Kings Warrant in anno 1674. which doth yet still continue and with this stop by a Proclamation from the King all the arrears of the Annuity before the year 1660. were simply Discharged 14. The Rule prescribed by the King for valuation of Teinds to fix them to a constant yearly duty was this that where the Teinds were severally known from the Stock and set by Tack or Rental the same should be also valued severally deducing a fifth part for the ease of the Heretor because frequently the Church-men had drawn the rate of the Teind above the just value by their Stocked and Rental Bolls But where the Stock and Teind were not severally known the fifth part of the Rent was decerned to be for the Teind 15. Teinds by the Canon Law were all constitute into Benefices which follow the several Offices in the Roman Church which were either Prelacies or inferiour to Prelacies Prelacies were the sewho had Chapters and Convents And therefore one had the Prelacy or preserence amongst the rest of their Colleagues such were Arch-Bishops Bishops Abbots Priors Prioresses Abbots and Priors had the Prelacy amongst the Mouks of several Monasteries as the Prioresses had over the Nuns There were also some few Monasteries which keeped the name of Monasteries or Ministries and the Prelate was called Minister of which there are four in Scotland the Minister of Fale Peebles Scotland-wall and the Trinity-friers of Aberdene Next unto these were the Provosts of Collegiat Kirks instituted for singing of Mess specially for their Founders and Patrons these Provosts governing their Prebend who were skilful in Musick and had their several Stalls in which they sat for the more orderly singing of their parts of musick from which these Prebends were designed of the first second or other Stall Some of the Colledge-Kirks were founded by the King and great Families The Chapel-Royal is a Collegiat-Church Governed by the Dean of the Chapel which Office is now annexed to the Bishop of Dumblain under whom are the Prebends of the Chapel-Royal The Earl of Fife sounded the Colledge Kirk of Kirkheugh The Earl of March founded the Colledge-Kirk of Dumbar The Earl of Bothwel the Colledge-Kirk of Chrightoun The Earl of Lennox the Colledge-Kirk of Dumbarten The Earl of Ross the Colledge Kirk of Tain Other Families Erected Chapels Officiat by one Chaplain Inferiour to these Prelacies were Parsons Viccars Chaplains Prebendars these had Patrons whose advice and protection they used in stead of a Chapter and Convent which Prelacies only had 16. The general rule by the Canon Law was that decinta debentur parocho de jure the Parsonage Teinds to the Parson the Viccarage or small Teind to the Viccar and where no other appeared to instruct Right the Teinds were ipso jure due to parsons and Viccars it was so found and that the Kings Gift was not sufficient to carry the Right of Teinds from the imcumbents unless mortification thereof to any other Office or Benefice possession thereof by another Office were instructed June 27. 1665. Alexander Ferguson contra Stuart of Ascog The Bishops and such Prelacies as had curam animarum had Chapters and the Priors Prioresses Abbots c. had Convents whose consent in all masters of Benefices being Chapterly conveened was necessary and in evidence thereof the Seals of the Chapter or Convent were appended Viccars were either such as were substitute by Parsons and other Clerks or such as had a distinct Office and therefore were not changeable by their Constituents and were called Viccars of cure cum cura animarum or perpetual Viccars Chaplains were Clerks having curam institute for their accommodation who were far from ordinary Churches and therefore were Erected upon the Expenses of the Founders who were therefore Patrons and of all other Patrons supposed to have greatest interest in these Benefice so that after the Reformation these Chaplanries and Prebendaries were declared to return and be disposed upon by their Patrons to Bursers of Colledges Par. 1592. cap. 158. Likeways Prebendars were such as had Prebendam or a Benefice which was at first a common name but was made special by use to these Clerks who had no other special name These Prebendars were either cum cura animarum or sine cura as Parsons preparing for orders most of them were Institute in Colledge-Kirks for singing of Mess specially for the Founder and his Family over whom was a Provest having the power of Prelacy in these also the Patrons were held as Founders and had the chief Interest in the Benefice which therefore after the Reformation returned as void to them the chief Prebendars were these of the Kings Chapel-Royal the intent of Constitution of these Offices as aforesaid was mainly to secure the Benefice and Patrimony of the Church against Dilapidation the incumbents being Administrators or at best Liferenters night other ways have wronged their Successors in favours of their Friends and Relations and therefore Prelates could do nothing of moment without consent of their Chapters or Convents or other Beneficed persons without consent of their Patrons Though these Offices were abolished by the Reformation there was no other way fallen upon for managing of Benefices but by giving Secular persons the Designations of these Offices who therefore were called Titulars because they had the naked Title without the Office of Bishops Priors Abbots Provests c. who in Lieu of the consent of Chapters and Convents appended only the common Seal thereof and when Bishops were set up again and Chapters appointed for them the consent of the major part thereof was requisite with the Seal Yet it was not necessary that they should be Chapterly conveened Parliament 1606. cap. 3. 17. But before the Reformation according to the Canon Law there were these Restraints upon Beneficed persons in order to their Benefices as to Teinds they could grant no Feus at all neither could they grant Tacks without consent of the Chapter or Convents of Prelats the members whereof were found sufficiently proven by Feues and Presentations granted by Prelates and subscribed by these persons as members of the Convent without necessity to show the Erection or Foundation or these persons Admission and that there were no more members of the Convent then the eight subscribing several Writes June 24. 1623. Laird of Drumlanring contra Maxvel of Hills Spots Kirkmen Parson of Kinkel contra Laird of Coulter The consent
Order of Redemption being lawfully used the action thereupon is a declarator of Redemption because it is the order that Constitutes the Redemption and the Declarator but finds and declares it to be orderly proceeded and decern-the Wodsetter to denuds himself conform thereto and therefore though the Reversion be personal excluding Assigneys if that person once use the Order he may Assign it and Dispone the Lands as Redeemed and the Assigney at any time even after his death will have interest to declare July 29. 1623. Earl Marischal contra his Brother March 3. 1630. Murray contra Myls July 30. 1650. Campbel contra Dick. Declarator of Redemption was sustained upon an Order used against a defunct and the Declarator pursued against his appearand Heir without a Charge to enter Heir or a new Order December 11. 1638 Findlayson contra Weims But in the Decreet of Declarator of Redemption against the appearand Heirs they cannot be decerned to denude unless they were Charged to enter heir yet the Declarator it self would be sufficient to extinguish the Wodset against singular Successors But it would not convey the right of Wodset to the Redeemer and therefore if he were not Infeft or heir to a person Infeft in the Wodset Lands it would be necessary to charge the appearand heir to enter to the effect he might denude and dispone and therefore a declarator of Redemption against an appearand heir did bear that the sums should not be given up till the appearand heir were Infeft and Resigned January 10. 1665. Campbel contra Brison It was also sustained at the instance of an Appryzer of the Reversion without calling him from whom it was Appryzed but only the Wodsetter December 17. 1629. Carnousie contra Lesmore In respect that the Appryzing was a Legal Assignation of the right of Reversion granted by the Wodsetters author And there have been no interveening singular Successors but in Redemptions against singular Successors in Wodsetts whose rights do not instruct that they are derived from the granter of the Reversion the pursuer must instruct that the granter of the Reversion stood Infeft in Fee Otherways that singular Successor will not be oblieged to acknowledge the Reversion and because the Successors of the first Wodsetter would have warrandice against the first Wodsetter or his heirs if they had disponed the Lands without reserving the Reversion therefore in that case only the first Wodsetter or his heir if he can be condescended upon having any visible Estate have been of old accustomed to be called which is not necessary in other cases and hath been the ground of that Decision July 9. 1630. Fisher contra Brown Where it was found necessary to call the heirs of the granter of Reversion if the defender could condescend upon them for the ancient custom hath been to have more respect to the heir of the granter of the Reversion then to the singular Successor present Possessor of the Wodset as Craig observes l. 2. Dieges 6. that sometimes Redemption hath been sustained upon Premonition and Citation only of him who granted the Reversion or his heir But ever since the present Heretable Possessor of the Wodset must necessarly be Premonished and Cited and but seldom the granter of the Reversion or his heir as where the granter of the Reversion was immediat Author to the singular Successor against whom the Order was used as in the former case his own Rights behoved to acknowledge the right of the granter of the Reversion who was common Author and might intimate the plea to him but could not be oblieged so to do where his own right shew no right from the granter of the Reversion A Redemption being voluntary without Process was sustained against a Sub-wodsetters right being a Liserent by the Wodsetter to his Wife albeit it was 〈◊〉 yet the Redeemer was not found oblieged to know it but it was found taken away without any Order against her or Citation of her Iuly 27. 1665. Lillias Hamiltoun contra her Tennents Redemption upon a Rose-noble used upon the Sabbath-day albeit the Instrument of Consignation did not bear the Reversion was shown nor read was sustained Spots Redemption Laird of Newwark contra his Son but this would not be drawn in example amongst strangers where the Wodset is redeemable upon considerable sums For though Consignation upon the Sabbath-day by a Father against his Son be sustained 〈◊〉 non debet sed factum valet Yet the Wodsetter cannot be oblieged to attend and perform the requisites of Consignation by numeration of Money perusal of Writes and subscribing a Renunciation upon the Sabbath-day Redemption was sustainedwithout necessity to the pursuer to uplift the sums Consigned from the Consignatar and re-produce them at the Bar unless it be instructed he had taken them up December 7. 1631. Grierson contra Gordoun Where the Extract was superceeded till the Consignatar was Charged summarly upon Letters granted upon the Instrument of Consignation to exhibite the Consigned Money but no Annualrent was found due after Consignation A Redemption was sustained without production of the Reversion the pursuer being an Appryzer and proving that the Reversion was in the Defenders own hand February 19. 1662 Children of Wolmet contra Mr. Mark ker The like where the pursuer was a singular Successor February 17. 1663. Collonel James Montgomery contra Robert Halybruntoun Yea an order used by an Assigney sustained though he shew not his Assignation till the Process of Declarator yet so as the Wodsetter was not countable for the Rents but from the production of the Assignation February 19. 1674. Lord Borthwick contra Pringles Yet Redemption was not sustained at the instance of an heir not being entered at the time of the Order though entered before Declarator Ianuary 19. 1672. Lord Lovat and Kintail contra Lord Mcdonald But if the Redeemer uplifted the Consigned Money he must produce the same with the Annualrent and will have right to the Rent during that time Hope Confirmation Baikie contra December 8. 1671. Forrest contra Brounlie November 29. 1672. Duke of Buckleugh contra Scot of Thirlestain Redemption was not eleided because the sums were Consigned in the hands of the redeemers own servant and taken up from him seing it was offered at the Bar and no special provision in the Reversion anent the Consignatar Hope Confirmation Laird of Drum contra Wishart The like though there was an Instrument of another Nottar contrary the Order of Redemption July 18. 1610. Earl of Kinghorn contra Kincaid 20. The effect of Declarator of redemption is that it makes the redeemed Lands belong to the Redeemer and makes the sum Consigned moveable and to belong to the Wodsetters Executors if he have accepted the Consignation or Declarator do follow in his Lifetime but if Declarator do follow after the Wodsetters death the Consigned sums will not belong to his Executors but to his heir who remains Propietar of the Wodset But if Declarator past in the Wodsetters Life it did take
Campbel 18. Recognition is not inferred by an alienation to the Vassals appearand heir by the ordinary course of Law as by a father to his eldest son because the fee will befall to the son after the fathers Deceass Neither was it inferred by an alienation granted by a Grand-father with consent of his son to his oye who was alioqui successurus by the course of Law Hope recognition Adam Rae contra Laird of Kellie Yet recognition was found incurred by a Vassals Infeftment to his eldest son his heirs and assigneys the son having Disponed the major part to strangers seing the father who was Vassal did not bind up his son from Disponing by a Clause irritant neither did the son purge the alienations made by him during his fathers life July 15. 1674. Sir Charles Erskin contra Forbes of Achintoul And recognition was found incurred by the Infeftments of Ward-lands by a Husband to his Wife in Fee failing heirs ofhis Body albeit the Wife did not acept or make use of the same but brooked by a prior conjunct Infeftment February 14. 1678. Knock contra Lady Knock. And recognition was found to be incurred by an alienation by the Vassal to his Brother who for the time was his appearand heir but not necessarly by the ordinary course of Law seing the Vassal might have had Children of his own and so his Brother could not be called alioqui successurus unless it were by accident Spots recognition Kings Advocat and his Son contra Earl of Cassils and Collane The like July 29. 1672. Lord Hattoun contra Earl of Northesk 19. It is more questionable whether recognition is incurred by a conditional alienation bearing if the Superiour consent or saving the Superiours right Craig following Baldus in the said three Dieges l 3. declareth that if such Clauses be insert bona fide they infer not Recognition But contrariwys if they be done fraudulently as when the Vassal Seaseth and Possesseth a powerful Person whom the Superiour cannot easily Dispossess or his Enemy concerning whom there can be no doubt of the Superiours will or if the Superiour have declared his will upon the contrary But for clearing further of the Point distinction would be made of the Nature and Tenor of the Clause which may either be suspensive or resolutive of the Property or Fee in the former case Tradition is only made of the Possession but the Property is suspended till the Superiours will be known as if the Vassal Dispone and possess another without Seasine there could be no recognition or though he Possess him by an Instrument ofPossession bearing expresly that he should have no right to the Property till the Superiours consent were obtained this were a suspensive Clause like to the addictio in diem in the Civil Law by which only Possession and not the Property was transmitted for that time and so till the purification of the condition it could be no alienation But when the Clause is only resolutive not hindering the transmission of the Property but resolving or annulling the same though transmitted in such an case such Clauses do not exclude recognition because there is truely there an alienation without the Superiour consent which is only to be disannulled by his disassent much less can such general Clauses as Salvo jure cujuslibet or Salvo jure Superioris avoid recognition 20. Recognition was found not excluded or burdened by Inhibition against the Ward-vassal before the gift and Declarator of the Deed inferring recognition seing the Creditors inhibiting did not pursue reduction before Declaratorof recognition December 16. 1680. John Hay contra Bethark and Laird of Balagarno 21. Neither was recognition excluded because the Deeds inferring recognition was done when the Disponer was drunk not being to stupidity impeding reason July 29. 1672. Lord Hattoun contra Earl of Northesk 22. To come now to the Superiours consent it may be either antecedent concomitant or consequent to the alienation and it may be either express or tacite all which will be sufficient to avoid recognition albeit many of them will not be sufficient to make a valide Infeftment if the same be granted by the Vassal to be holden from him of the Superiour which by our custom is null till it be confirmed whereunto an anterior consent or Homologation in any ways will not suffice Craig in the forementioned Dieg. 3. relates the opinion of the Feudists whereunto he agrees that if the Vassals Fee be granted to him his Heirs and Assigneys whatsomever that thereby ther is granted a general antecedent consent of the Superiour to his Vassal to and Assigneys whatsomever that thereby there is granted a general antecedent consent of the Superiour to his Vassal to alienat or assign to whom he pleaseth But the contrary was found in the case of the Lady Cranagie contra Lord Cranburn Feb. 5. 1633. And that the Disposition to Assigneys did only importa power to Assign the Disposition before Infeftment taken thereupon 23. There is no question but the Superiour Confirmation is sufficient even the Kings Confirmation though without a novo damus albeit it may pass in Exchequer without the knowledge advertency of the recognition incurred it was found sufficient being done before the Donatar of recognition was Infeft Hope recognition Rae contra Laird of Kellie Which Confirmation doth secure against recognition falling by thatInfeftments Confirmed but doth not secure against recognition upon other subaltern Infeftments not Confirmed which are not considered to be known by the King or his Officers without a novo damus and so imports but a passing from recognition by the Infeftment Confirmed but not to import an absolute Ratification pro omni jure February 6. 1673. Lord Hattoun contra Earl of Weims The like was found February 23. 1681. John Hay contra Creditors of Murie And a Donatar of recognition having granted Precept of clare constat acknowledging the Vassals right was found thereby excluded albeit the Precept did bear to be in obedience of Precepts out of the Chanclery June 24. 1668. Andrew Gray contra Howison and Gray But the Superiours consent is not inferred by granting Charters for obedience upon Appryzing though before any Infeftment of the Donatar Hope recognition Laird of Lugtoun contra Laird of Lethendie 24. The Superiour consent also by Homologation is sufficient to avoid recognition as if it were express consent as if the Superiour require the new Vassal or Sub-vassal to perform the Services due out of the Fee for thereby he acknowledges him Vassal as is observed by Craig in the case betwixt the Laird of Calderwood and Maxwel of Calderhead Or if the Superiour should pursue the new Vassal for the avail of his Marriage Liferent-escheat or other Casuality of the Superiority 25. Recognition being incurred so openeth and returneth the Fee to the Superiour that no Debt or Deed of the Vassal doth burden the same but these only which before that time were established by consent of the Superiour or Authority of Law
to an Executor Creditor of the Cedents even as to his own Debt July 27. 1669. Exeutors of Mr. Thomas Ridpeth contra Home As to the extent and effect of assignations the same extends to all personal Rights whether Moveable or Heretable as to Bonds Liferents Tacks Reversions Mails and Duties Annualrents and to Dispositions of Lands and others till Infeftment follow but is no valid conveyance of any Right compleated by Infeftment except Liferents which can have no subaltern Infeftment as to the ground right it self though it may extend to the profits thereof as to Mails and Duties and annualrents and to these no longer then the right by Infeftment stands in the Cedents person whence there ariseth to him and to his assigney a personal obliegement upon the possessors which faileth as to all Terms after Denunciation Decem. 17. 1622. Kinbrachmount contra Sir William Anstruther and an assignation to such a sum yearly out of Teinds was found excluded by an appryzing of or assignation to the Tack of these Teinds Feb. 6. 1666. Watson 〈◊〉 Pleming Assignations are effectual not only of such rights as are granted to heirs and assigneys but generally to all Rights though not mentioning assigneys which by their nature are transmissible and therefore an annualrent by a Father to his Daughter wherein his Brother and Sisters were substitute failing the heirs of her Body without mentioning her assigneys and wherein the annualrent was redeemable by payment of a principal sum which she had no power to require unless she were Married the annualrent was found to belong to her assigney after her death being principally constitute and not accessory to the principal sum June 24. 1679. Sir William Stuart contra Sir Thomas Stuart and albeit Superiours be not oblieged to receiye singular Successors without appryzing or adjudication yet before Infeftment assigneys to the Disposition granted by the Superiour may compell him to receive the assigney which was so found though the Superiour alledged that the Superiour was not in good Terms with him Decem. 23. 1673. Ogilbie contra Kinloch of Bandach But Reversions and Tacks in most cases unassignable unless they be granted to assigneys for albeit the Assignation being a procuratory may give them interest to act procuratorio nomine for the Cedent yet they cannot act proprio nomine as Procurators in rem suam therefore the oath of the Cedent will always be competent against them and they cannot obtain Declarator of Redemption in their own name or Decreet for denuding of the Wodsetter in their favours Neither can Assigneys to Tacks enter in possession by vertue thereof Yea Liferent-rights by Infeftment or Tack were so peculiar to the Liferenter that no assignation can state them in the assigneys person but only the profits thence arising So that in the assigneys person they are not Liferents and therefore the Liferents of Wives which belonged to their Husbands jure mariti as a legal Assignation fall not under the Husbands Liferent-escheat as they would fall under the Liferent of the Wife unmarried but under the single Escheat Vide title 〈◊〉 upon Escheat Upon which ground Hope upon Assignations observes that Assignations to Liferent-tacks make them fall under the Assigneys single Escheat in the case of Sir Robert ker contra John Ker. 17. Thirdly an Assignation to a sum carries with it the Inhibition raised thereupon Hope Assignation Walter Hay contra Mark Ker. The like where only all actions following thereupon were exprest generally June 28. 1610. Blair contra Gray And an Assignation to a Bond found to carry a Bond of corroboration of the foresaid Bond though not mentioned therein albeit the Assignation bore not that ordinary Clause with all that has followed or may follow thereupon which is but an Explicatory Clause of Style of that which innest dejure February 3. 1676. Bultie contra Earl of Airly 18. Fourthly The effect of Assignations is that the oath of the Cedent cannot prove against the Assigney unless the matter hath been litigious before the Assignation or Intimation as in the case after arrestment has been laid on and therefore a debitor having pursued the Cedent to annul the Band upon a reason to be verified by the Cedents oath before the Assigney had Intimat the Cedents oath was sustained February 15. 1662. Pitfoddels contra Glenkindie And an Assigney pursuing in the Cedents name and not in his own albeir he produccd his Assignation in the Process yet there being no other Intimation thereof the Cedents oath was admitted against him Feb. 12. 1678. Firazer contra Frazer of Strichen July 26. 1628. John Rule contra Laird of Aitoun Or if the Assignation be gratuitous without a Cause onerous the Cedents oath will be competent in all cases against the Assigney June 16. 1665. William Wright contra George Sheil June 13. 1668. Jack contra Mowat But the oath of the Cedent will prove against the Assigney in England as to Assignations made by residenters there June 28. 1666. Mcmorland contra William Melvil 19. Fifthly Assignations being intimat during the Cedents Life having summar execution and the Assigney got protestation against a Suspension raised against the Cedent after the Cedents death without walkning or transferrence and thereupon all execution would proceed summarly by Horning Poynding Appryzing even after his death Hope assignation Lady Craigmiller contra Stevinson Otherways it will yeeld but an ordinary action Jan. 23. 1624. inter eosdem The same was found and that there needed no confirmation July 27. 1664. Mr. John Murehead contra Yea though it was an Assignation by a Father to his Son of all his Goods and Debts yet action was sustained thereupon without Confirmation June 25. 1663. James Halyburtoun contra Earl of Roxburgh But where there was no delivery the Assignation of all the Goods was not found to give action without Confirmation June 23. 1665. Procurator-fiscal of Edinburgh contra Thomas Fairholm Or where there was reservation to the Disponer to dispone otherways during his life July 4. 1665 Commissar of Saint Andrews contra Hay of Bowsie But since the Restitution of Bishops and reviving of the Quots actions are sustained upon Assignations not intimat in the Cedents life if they be special the pursuer always confirming before the Decreet be Extracted 20 Except in the Matter of Probation all Exceptions competent against the Cedent before the Assignation or Intimation are relevant against the assigney as payment compensation c. which was found even as to assigneysto Tacks that the Tacks-mans Back-bond was sufficient against his singular Successor by assignation Decem. 18. 1668. Mr. Robert Swintoun contra John Brown This is clear when exceptions relates to the matter in Question 21. Assignations to incompleat real Rights as Appryzings Dispositions of Lands before Infeftment are affected with the assigneys Back-bond if the competition come in before infeftment Inhibition be used or legal diligence that makes the matter Litigious and therefore the Back-bond of an asigney to an
gift of escheat before Denunciation was found null by exception Because it mentioned no particular Horning whereupon it proceeded though done by the Kings own hand at Court And though Anterior Hornings were produced in the Process and no other Donatar nor Officer of State quarrelled the same November 20. 1628. Weston contra Stewart 19. Gifts of escheat not bearing expresly goods to be acquired extend no further then to the goods the Denunced had the time of the gift February 27. 1623. Bruce contra Buckie And though the gift bore expresly not only the goods the Rebel had but which he should acquire thereafter during his Rebellion Yet the same was only extended to what he had the time of the Gift and what superveened within year and day June 27. 1622. John Jnglis contra Laird of Caprinton It was so decyded July 2. 1669. Barclay contra Barclay Yea the same was extended to no goods acquired after the gift seing the Style thereof bore not what he should acquire February 2. 1627. Lewis Somervail contra Mr. William Stirling 20. Escheats of Persons living within Regality belongs to the Lord or Baillie of Regality infeft with that priviledge And therefore Gifts by the King reach not these escheats but gifts by the Lords or Baillie of the Regality which was found to comprehend all Moveable goods and sums belonging to the partie Denunced as well within the Regality as without the same June 26. 1680. Young contra Laird of Raploch But these gifts Differ from the Kings gifts that they are effectual according to their Tenor both as to goods before and after the gift and are valid though granted generally or though before the Casuality fall if a special gift after the Casuality fell be not in competition for the Prior Limitations of the Kings gifts are only in Favours of the King that he be not prejudged by the default of his Officers But private parties ought sibi invigilare And albeit the diligence of Creditors be preferred to the Donatars chiefly by the Kings benignity Yet the same was sustained against a Donatar of Escheat by a Lord of Regality February 24. 1637. Gilmore contra Hagie 21. The main difficultie anent Gifts is when they are Simulat and to the behove of the Denunced which is much cleared by that excellent Statute Par. 1592. cap. 145. Declaring it a sufficient evidence of Simulation of any Assignation or Gift of Escheat if the Rebel himself his Wife Bairns or near Friends remain in Possession of his Tack and Goods to their own uses and behove yet it is not declared how long their possession must be Seing the Rebel ordinarily for some time is in possession till the Donatar use diligence But where the Rebel retained possession till his death a Gift though declared was found null by exception July 12. 1628. Morison contra Frendraught June 26. 1611. Gairdner contra Lord Gray Yea it was found Simulat where the Rebel possessed 9. years June 27. 1622. John Inglis contra Laird of Capringtoun and other Circumstances concurring 4 or 5. years by the Rebel was found sufficient the Donatar having consented to several Tacks and Wodsets granted by the Rebel And yet the same Gift was found valid in part in so far as concerned Heritable Rights acquired by the Donatar from the Rebel December 23. 1623. Ballantyn contra Murray four or five years Possession of the Rebel were found sufficient to infer Simulation though the Donatar was a Creditor and the Rebels Lands apprysed seing the appryser possessed not but the Rebel 6 and 9. of January 1666. Sr. Lawrance Oliphant contra Sir James Drummond So that the time of Possession sufficient to infer Simulation remaineth in arbitrio Judicis The next ground of the Simulation of gifts of Escheat and presuming the same to the Rebels behove is when it is taken in the name of the Children in his Family which was found Relevant without mention of the Rebels Possession June 25. 1622. Lord Borthwicks Bairns contra Dickson But the presumption was not found sufficient that the Gift was to the behove of the Rebels Son Here it was not alleadged that he was then in his Fathers Familie March 20. 1623. Keith contra Benholme The like where the Son was not in his Fathers Family and was a Creditor and made Faith it was to his own behove at passing the Gift though the partie Denunced did remain in possession sometime after Declarator December 4. 1669. Jaffray contra Jaffray The third Presumption of the Simulation of Gifts is when the same is procured and past by the Rebels means which was sustained though a part was by the Donatars means and a part by the Rebels though the Donatar was then a Creditor June 26. 1622. John Inglis contra Laird of Capringtoun The like found probable by Members of the Exchequer as Witnesses Nov. 28. 1626. Earl of Kinghorn contra Wood. Hope cessio bonorum Laird of Clunie contra Laird of Blandine Cant and Porterfield contra Sir James Stewart The like against an assigney constitute by the Donatar Hope Horning Sir Georg Hamilton contra Robert Ramsay Simulation of a Gift of Life-rent to the Rebels behove was found probable by the Rebels Oath and the Witnesses insert in the Gift June 19. 1669. Scot contra Langtoun This ground of Simulation is found relevant not only against the Donatar but against a singular Succesor not partaking of the Fraud whose Assignation was after the Creditors diligence December 10. 1623. Dowglas contra Belshes And though there was no diligence the Gift being exped blank in the name and filled up thereafter in the Donatars name It was found Simulat even as to him though obtaining it for his true debt December 17. 1670. Nicol Langton contra Robison Simulation is not otherwise valid against singular Successors Yet it will not be relevant to exclude the Donatar and prefer another Donatar in so far as concerns the first Donatars debt truly owing to him though the gift was given at the Rebels request and past at his own Charges So that the Exclusiion by this presumed Simulation was only Inferred as to the profit of the Gift above the Donatars own debt in quantum Lucratus est For that was found no Fault in the debitor Rebel to concurr in desire and moyen to get a gift to his Creditor in so far as concerned that Creditors debt March 11. 1624. William Dowglas contra Viscont of Air. The like where the Rebel concured in procurring the gift the Donatar having made Faith the gift was to his own behove showing his Debt and Back-band December 12. 1673. Mr. Georg Dickson contra Sr. Alexander Mcculloch All this must be understood if the Rebel remain unrelaxed for if unrelaxed a Gift though taken expresly in his name returneth and accresceth to the Fisk and next donatar July 6 1627. Earl of Annandale contra Laird of Cockpool Yea though he was after relaxed before any other gift November 28. 1626. Earl of Kinghorn contra
cap. 135. Which was not found to extend to Dishabilitation of the Son of the Forefaulted person but that it might by Act of Parliament be taken off without Citation of any partie who had acquired Right upon the Dishabilitation from the Donatar which fell in consequence February 24. 1665. Dam Elizabeth Douglas and Sr. Robert Sinclair contra Laird of Wedderburn 41. The Doom or Decreet of Forefaulture when past in Parliament gives immediat access to the Mails and Duties of the Estate possest by the Forefault person and needs no Declaratar because it is a Decreet of Parliament and hath the like effect as Ward which requireth no Declarator Jan. 6. 1681. George Hoom contra Mr. Patrick Hoom. The like though the Doom of Forefaulture was by the Justices in absence seing it was ratified in Parliament not by a Ratification passing of Course but by a publick Law ratifieing that Forefaultnre by the Justices as if it had been done in Parliament And all such Forefaultures by the Justices being for open Rebellion and rysing in Arms against the King December 15. 1680. Gordon of Troquhen contra a Wodsetter of Barscow 42. Bastardrie and last Heir makes things befall to the Fisk as caduciary because such things can be Lawfully Claimed by none And therefore are applyed to the Fisk. Ere we can conceive the effects of Bastardrie we must understand the efficient that makes a Bastard which being Relative and Defective is best taken up by the opposite viz. A lawful Child begotten of persons lawfully Married So then a Bastard is a Child whose Parents werenot lawfully Married And therefore such are Bastards First Whose Parents were not at all Married 2. These whose parents were Married yet were not in degrees capable of Marriage 3. These who were Married and in capable degrees yet the Marriage was inconsistent because of some impediment as if either party were Married before and the other Spouse on life whether that were Solemnly or Privately by promise of Marriage and Copulation following in which last case if the impediment be Secret and not known to both parties Craig observeth as his own opinion and the opinion of the 〈◊〉 that the said impediment though it be sufficient to anull the Marriage yet not to take away the Legitimation of the Children procreat bona fide by any of the parties before knowledge of that impediment But because who are the Parents is sometimes dubious procreation being Secret both in the Act and Effect For clearing thereof it is the common rule in the Civil Law And with us Pater est quem justae Nuptiae demonstrant L. 5. F. de in jus vocando So he is presumed to be the Father who the time that the Conception might be was Married to the Mother But in this case Lawful Marriage is not opposed to Clandestine or Irregular Marriage as not being after Proclamation in the Church or by a person having power to Marry by the Canons of the Church or Statutes of the Countrie But that is only understood as unlawful Marriage in this case which materially is unjust and inconsistent where Marriage could not have subsisted albeit it had been orderly performed as being by persons in degrees prohibited by Divine Law or where either partie had another lawful Spouse then living and undivorced Yea Marriage betwixt the adulterer and the adulteress after dis solution of the former Marriage doth not inferr Bastardrie of the Children of the subsequent Marriage though it may debarr them from Succession The presumption that the Children born in Marriage are the Husbands requires such time as they might have been lawfully procreat when both parties were free and unmarried which if it was 9 moneths before the birth it is sufficient but if less the presumption will not suffice Unless it appear the Child was unrype and born before the time otherwise the Child will be presumed to be the former Husbands This is presumptio juris and admits contrary probation As first if the Father were absent or impotent the time that the conception could be which absence is not necessarily beyond Sea as the English require the fathers absence And therefore if he be within the four Seas during the time the birth is in the Womb this presumption prevaileth against his absence with them But with us it will be sufficient that his absence be special and circumstantiat that there remaineth no doubt that he could not have been present As if the Father were in prison or at very great distance So that a short time might not suffice him to be present This presumption will also be taken off by the Testimony of both Parents agreeing that the Child belongs to another Father and so is a Bastard But the Testimonie of either of them will not suffice as Craig relates of a Lady that having controversie with her Son she was accustomed to consesse that he was a Bastard And of a Queen related by the Doctors whose name they forbear Who at the time of her death declared to her Son that he was not the Kings Son yet he was received as King in his Fathers place It hath been more frequently seen that the Father hath disowned the Child born of his Wife which though it might inferr suspicion and reproach yet not Bastardrie unless the Mother also of consent or by process were made to acknowledge it It will not be sufficient to eleid the foresaid presumption though the Wifes adulterie should be proven Yea though at a time answering to the time of conception though it hath an ordinary course of 9 moneths yet hath had such variations that the Child hath been accompted belonging to the Father by reason of the Marriag though it preceeded the Birth of the Child only by the space of 8 7 or the beginning of 6. moneths Especially if by the judgement of Phisicians immaturity of the Child concurred Yea this presumption will atribute the Child to the Father though the Child be born 9 10 or 11. moneths after the Fathers Death But in these cases the Probability of the circumstances may make the Mothers Testimony alone sufficient to instruct the Bastardie of the Child Neither is Marriage here accompted by the Solemnization thereof in the Church which in some places is ordinarily without that and though with us it be a requisit solemnity yet it is not of the being of Marriage And therefore Cohabitation as Man and Wife supplyeth the Solemnity of publick Marriage which being a 〈◊〉 Act and having no record could seldom be proven Yea though it could be proven by the Oath of both parties or otherwise that there was never a formal Marriage if the parties were capable of Marriage Cohabitation would supplie for after Contract or Promises of Marriage or Sponsalia if copulation follow there is thence presumed a Matrimonial Consent de presenti which therefore cannot be past from by either or both parties as having the essential requisits of Marriage If diligence be used for performing that
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
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
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
help many deponed that severall Persons having walked close about him they could not Distinctly know and severall Witnesses having Deponed that he Walked Freely without Help and two having Deponed that he was Helped by themselves his so going Abroad was not found Sufficient neither was his being carried in the Chair found equivalent as if he had Ridden upon his Horse because a Sick-man might have required help even upon Horse-back and would not have been able to have Ridden Freely without Help and yet might have been Able to sit in a Chair In this case a lso it was found that Supportation was more positively Proven Albeit be fewer Witnesses The Witnesses themselves being Supporters As to the sixth point proposed whether going to Kirk and Mercat unsupported inferreth Health or Convalescence presumptione juris de jure So that a contrary Probation that even then he was Sick and so continued tiil IDeath hath not yet been destinctly decided Albeit in Pargilleis case it was not regarded that the Witnesses deponed that Pargilleis when he came to the Mercat appeared Sick and continued Sick thereafter Neither can any Conjectural Probation in such case be Respected Because Squalor morbi doth ordainarily remain afterConvalescence which if it were 〈◊〉 would render that Defence uncertain and conjectural So that there can be no question unlesse the Probation of the being then Sick were positive and pregnant as if a Person in a hot Fever wherein there is ordinarily strength enough should come abroad to a Mercat the Foam and Furie of the Fever continuing in his Face or if the Partie did Groan and Bemoan himself as Sick Persons use to do For the last point offered to consideration whether Convalescence can be proven otherways then by going un-supported to Kirk and Mercat I have seen no decision whereby Death-bed hath been elided upon such equivalent Acts But on the contrare it was found in the Case of the Lord Salton that his coming to a Green near his House un-supported and standing there till he saw men play at Foot-ball was not sufficient And in Coupers case his coming frequently with Strangers to their Horse and sometimes going up and down Stairs un-supported and oftimes going out and walking in his Garden and once to a House a quarter of a myle off and all un-supported were not found equivalent to going unsupported to Kirk and Mercat And in Clellands Case his going several times to his Barn and to some Trees a pair from his Gate un-supported were not found equivalent to going to Kirk and Mercat Yet it cannot be doubted but there may be Acts equivalent As if any Person should go a far Journey but the equivalence must not stand in this that the Defunct did Acts requiring as much strengh as going to Kirk and Mercat In respect of this Difference that going to Kirk and Mercat exposes the Partie to publick view Whereas other private Acts about his House may be proven by a few Persons prompted for that purpose Which probation cannot be ballanced with any other for clearing that there was support or help as in the Case of going to Kirk or Mercat or going a long Journey where they may be had many un-prepossessed Witnesses Death-bed was not found elided by ryding on Horse-back a Journey of about sixteen myles Seing the party had a man who rode behind him and for some part of the way was tyed to the man which was found to be Supportation Nor was it respected that long before his Sicknesse he had in his Testament left the same things in Legacie And therefore was not prevailled upon with Importunity Seing his purpose might have altered after that Testament December 11. 1677. William Lockhart contra Cromuel Lockhart of Lie 29. As to the extent ofDeath-bed it doth not only annul Dispositions ofLands but Assignations to Heritable Bands Feb. 24. 1624. Donaldson contra Donaldson Or to a Band Moveable in it self becoming Heritable by a Posterior obliegment to imploy it for Annualrent Spots Juramentum calumniae Margaret Arthur contra James Watson Yea it will annull any Band though Moveable in so far as thereupon the Heritage may be Appryzed or Adjudged Jan. 7. 1624. Schaw contra Gray But an Heritable Sum being payed to the Defunct on Death-bed his discharge thereof was not Reduced ex capite lecti though the money was instantly given away after it was received which was found valid as a Legacie out of the Deads part March 15. 1634. Margaret Broun contra Thomson but such Deeds on Death-bed will not prejudge the Relict or Bairns part but is null as to them as well as to the Heir As hath been now shown Death-bed was extended aganist Bands though granted by a Father to a Son having no other Provision which were not sustained though ossered to be restricted to a competent Portion due Naturally by Parents to Children July 1. 1637. Cranston Riddel contra Richardson Yea Death-bed was found relevant to Reduce a Disposition in Favours of the Disponers only Daughter in prejudice of the Brother and Heir Male Though the Disposition contained a power to alter the Tailzie or dispone at any time in his Life but bore not etiam in articulo mortis Feb. 25. 1663. Adam Hepburn of Humbie contra Hellen Hepburn But where the Disposition was neither to an Heir Male nor of Line That clause was sufficient to 〈◊〉 the Disponer on these Terms to burden though it mentioned not Death-bed or in articulo mortis June 22. 1670. Douglas of 〈◊〉 contra Douglas And Death-bed was not sustained to Reduce a Disposition by a Father to his Son Seing the Father reserved such a Sum to be at his disposal in his Disposition to his appearand Heir though it mentioned not at any time in his Life June 28. 1662. George Seaton of Barns contra Charles Seaton And now since the Lords have frequently decerned Aliment to Bairns against the Fathers Heirs having competent Estates it is like the Lords will allow all provisions on Death-bed in so far as they may be competentAliments Holograph writs without Witnesses prove not their own dates to have been Prior to the Subseribers Death-bed and therefore they are presumed to be on Death-bed withoutwhich that priviledge would be evacuat it being as easie to induce a Sick Person to Antidate a writ as to Prejudge his Heir But if it be proven by Witnesses that the writ was seen and delivered before the granter contracted the Sickness whereof he died Or if it was Subscribed before his Sickness though not delivered if it was in favours of his Children or had a Clause dispensing with delivery or did reserve his Liferent The presumption to have been done on Death-bed will be thereby elided But a Disposition to Neices having been proven to be Subscribed before the Subscribers Sickness but blank in the Name was reduced as upon Death-bed because the name was not filled up 〈◊〉 the Writter did depone that it was delivered to him to fill it up with
27. The entrie of heirs by hesp and steeple within Burgh 28. Entrie of heirs by Brievcs out of the Chancellarie 29. To whom these Brieves are directed 30. The manner of citting the Inquist and Proclaming the Brieve 31. Exceptions competent against members of Inquist 32. The appearand heirs claim 33. Exceptions against the Claim 34. First head of the Brieve 35. The 2. head of the Brieve 36. 3. head of the Brieve 37. The 4. head 〈◊〉 of Brieve 38. The 5. head of the Brieve 39. The 6. head of the Brieve 40. The 7. head of the Brieve 41. The Service 42. The Reture 43. Reduction of Retures by a great inquist 44. Reduction thereof otherways 45. Reduction of Retures how competent 46. Precepts out of the Chancellarie to Superiours to Infeft 47. Suspensions of the precepts and the reasons competent therein 48. The certification of the loss of the Superiority during the life of the Superiors disobeying 49. Further reasons of Suspension of these precepts 50. Whether the Persons nearest at the Defuncts decease may be entred where a nearer is in spe 51. Who are Fiars of Conjuct-fees or Provisions substitute 52. The entreast of heirs of Provision and import of Clauses of Conquiest in Contracts of Marriage BY the former Title it appeareth who are Heirs let us now Consider what their Interests are by being Heirs And that is either Active by the benefit or Passive by the Burden whereunto they do succeed For Heirs being successors in Universum jus quod Defunctus Habuit they do fully represent the Defunct both in the Rights belongiug to him and in the Debts due by him First then of the Interest common to all Heirs And next of the interest speciall to the severall Heirs 1. The interest of Heirs are most properly Competent when they are entered Heirs according to the due Course of Law of which afterward Yet somethings are competent not only to heirs entred but to appear and Heirs as first they have interest to prusue Exhibition of all writs made by their Predecessors to their Wives Children and others in Familia but not of writes made by them extra Familiam December 6. 1661. Margaret Forrester and Schaw of Sor nebeg her Spouse Contra Tailzefere Or to their Predecessors Simply to the effect they may know the condition of the heritage And may desiberat whether they would Enter Heirs or not Seing if they do Enter they are lyable for all the Defuncts Debts though they farr exceed his Estate and have no benefit of Inventary as in moveables And therefore they are allowed to pursue for inspection of all Writes Importing a debt of the Defunct Yet not so as to open the Charter Chists of Strangers who have purchased Lands from the Defunct on pretence of the Burden by the Warrandice for in that case the Strangers Infeftment will exclude them and only dispositions made to these in the Family hinder not inspection of the Heirs whole Rights Flowing from the Defunct or his Predecessors But I doubt not but all will be oblieged to produce Bands or Personal obleigements which might burden the appearand Heir if he enter As was found in the Case of Dispositions and Bandsgranted by the Defunct to Strangers Feb. 26. 1633 Laird of Swynton contra Laird of Westnisbit But if Infeftment had followed upon the Disposition the Defender would not be oblieged to produce the Disposition because the appearand Heir might by the Registers find his Predecessors denuded This inspection is competent during their Annus deliberandi It was so found in Favours of the appearand Heir pursuing Exhibition within the Year Feb. 26. 1633. Laird of Swinton contra Laird of Westnisbit where the Writs pursued for were likely to be the ground of a Plea against the Defender himself This Exhibition ad deliberandum is competent at any time before the Heir enter even after the Annus deliberandi which is granted to appearand Heirs that they may be free of all Actions on Chargesto enter Heir Reductions or Declarators during that time if they do not enter or behave as Heirs But on this accompt the appearand Heir hath no Interest to put parties to Compt and Reckon ad deliberandum June 22. 1671. Lessies contra Alexander Jeffray In these Exhibitions the Relations or Propinquity of Blood of the appearand Heir passeth without probation as Notorium So as if the Defender be absent the Decrcet will not be null for want of Probation of the Title Yet a Scots man born of Parents residing in Holland was found to have no Interest to pursue Exhibition as appearand Heir to his Father till he produced an Authentick Declaration and Tryal by the Magistrants in that place that he was the eldest lawful Son of his Father December 17. 1627. Fleming contra Broun 2. Appearand Heirs may defend all Rights competent to them upon Production of their Predicessors Infeftments whether they be called or compear for their Interest January 19. 1627. Laird of Rosline contra his Tenents and George Fairbairn for his interest They may also continue their Predecessors Possession and pursue for Mails and Duties of there Lands finding Caution in case of doubtfulnesse to make these forth-coming to any other having Interest Spots Heirs James Oliphant contra his Tenents Yea the Rents of Lands were so far found to belong to an appearand Heir That though he died un-entered the next Heirs not entering to him was found obleiged to pay the former appearand Heirs Aliment in so far as he intromitted with the Rents of the Years during which the former appearand Heir lived December 20. 1662. Ladie Tarsapie contra Laird of Trasapie And consequently the Rents might be confirmed by his Executors or arrested for his debt The like was found of moveable heirship wherewith the appearand Heir was intertained by his Mother June 29. 1629. Robertson contra Dalntahoy They may also pursue the Life-renters of their Estate for Aliment Feb. 12. 1635. James Hepburn contra Dam Margaret Preston and Isobel Seatoun 3. The Aliment of Heirs out of there Lands being Life-rented or in Ward is constitute by the Act of Parliament 1491. cap. 25. Bearing a reasonable Living to be given to the Sustentation of the Heir after the Quantitie of Heritage if the said Heir have no Blensh or Feu ferm to sustain him as well of Ward Lands fallen in the Kings hands as in the hands of any Barron Spiritual or Temporal whereby it is clear 1. That the Quantity of the Aliment is indeterminat And therefore is modified by the Lords according to the Quality of the Heir and his Estate 2. It takes no place if the Heir have Blensh or Feu Lands sufficient to sustain him but if these be not sufficient the same will be made up by the Life-renters and Wardatars proportionally March 16. 1622. Heir of Milioun contra Calderwood Yea where the Minor had any other means sufficient to intertain himself as the Heir being a Writer and thereby able to Aliment himself he
was found to have no Aliment from his Mothers Life-rent who brought 8000. Merks of Tocher and had but 10. Chalders of Victual in Life-rent July 21. 1626. Laird of Ramorny contra Law The like where the Heir was not Minor but designed himself Preacher and so having a calling Feb. 11. 1636. Sibbald contra Wallace Here the Relict was Infeft in no Land but had an Annualrent of 400. Merks out of Land and the Heir was not Minor Whereas the Lords thought the Act of Parliament was not in favours of Majors who ought to do for themselves but all must be considered complexly in this Decision Some Heirs by their Quality not being bound to follow Callings but the Life-rent was a mean Annualrent no more then an Aliment to the Relict the Pursuer Major and having a calling And certainly where the Life-rent is but an Aliment the appearand Heir must rather want then the Person provided for a cause onerous Though the Act mention only Ward Lands yet it was extended to a Minor having no Ward Lands against a Life-renter of all his Fstate being Houses and Annualrent of Money Feb. 22. 1631. Fiinnie contra Oliphant In this case it was not found sufficient that the Life-renter offered to maintain the Minor her own Child upon her own charges she being married to a second Husband But the Tutor obtained modisication with consideration of the moveable Heirship on the contrary where the Mother was not married her offer of Intertainment was received July 14. 〈◊〉 Alexander Noble and his Tutors contra his Mother Neither was the modifi cation excluded because there were free Lands at the Defuncft Death seing they were appryzed thereafter for the Defuncts debt Hope de haered White contra Caldwall The like the debt being great and the Annualrent thereof equivalent to the rent of the Lands not Liferented Feb. 13. 1662. Antonia Broun contra her Mother But Aliment was not found due by a Father Life-renter to his Son on this Act but only super Jure Naturae July 21. 1636. Laird of Rumorney contra Law Nor by a Grand-father to his Oye who had disponed his Estate to his Son reserving his Life-rent of a part the rest unsold by his Son being Life-rented by his Wife July 7. 1629. Hamilton contra his Goodsir But where the Heirs Mother brought a great Tougher and the Grand-father fell to a plentiful Estate by his Brother the Heir was found to have Aliment of his Goodsir though he disponed the Land to the Heirs Father burdened with his Mothers Life-rent June 27. 1662. Heir of Gairn contra Laird of Gairn This behoved not to be from the Statute but ex debito naturali Aliment was found due by a Liferenter to her daughter the appearand Heir though she renounced to be Heir July 16. 1667. Hamilton contra Symonton But where a Father disponed to his Son a part of his Estate reserving his Life-rent and another to his Son and his Wife in Conjunctfie after his Sons Death his appearand Heir got no part of his Aliment from his Goodsir but only from his Mother Feb. 26. 1675. Sr. John Whitfoord contra Laird of Lamington Aliment was found due to the Heir by an Asigney to a Gift of Ward without necessity to prove that he intromitted with the Ward Lands unlesse he had been Legally excluded which was Modified by the Lords And it was not found sufficient to intertain him in the Assignyes Family but nothing was Modified for that time that the Minors Mother Alimented him gratis Feb. 19. 1679. Sibbald of Cair contra Sr. Alexander Ealconer 4. Heirs also not entered have the benifite of such obliegments or provisions conceived in Favours of Heirs which by their Nature or Meaning require to be fulfilled before the Heirs entry As when a Party was obleiged to imploy a Sum upon Land and to procure himself and his Umquhil Spouse Infeft therein in Life-rent and the Heirs Procreat betwixt them in Fee the Bairn of the Marriage who would fall Heir was thereby found to have Right to crave his Father to imploy the Money accordingly though he never was nor actually could be Heir his Father being alive December 16. 1628. Laird of Collington contra Granton In this case the Lords inclined so to decide but decided not But that day Durie observes a like case decided July 7. 1632. Young contra Young The like was decided Feb. 13. 1677. Alexander Frazer contra John Frazer In which case a Father by his Contract of Marriage being obleiged to imploy a certain Sum upon security to Him and his Wife in Conjunct-fee and to the Heirs of the Marriage and likewise to take all Conquest during the Marriage the one half to the Wife in Life-rent and the other to the Heir of the Marriage in Fee after the Wifes Death Process was sustained at the instance of the apparent Heir of the Marriage against his Father who was decerned to imploy the special Sum to himself and after his decease to the Heir apparent of the Marriage albeit therby the Father would remain Fiar and might dispone or burden the Sum so imployed for reasonable Considerations but not by Deeds meerly gratuitous to evacuat the obleigment And if he did Deeds prejudicial he would be obleiged to purge the same or re-imploy 〈◊〉 But it was not so found as to the Conquest before the Marriage which might be altered during his Life for that only could be accounted Conquest that he had more at his Death then at his Marriage And so Heirs of a Marriage in an obleigment in case a Wife deceased without surviving Heirs of the Marriage these were Interpret Bairns of the Marriage who survived their Mother but died before their Father and so could never be served Heir to him January 26. 1630. Turnbul contra Colinshlie The like where a Father was obleiged to Infeft himself and his Spouse in Conjunct-fee and the Heirs procreat betwixt them c. The apparent Heir was found to have interest to pursue the Father for fulfilling thereof and of the obleigment adjoyned not to dispone in their prejudice Hope de haeredibus Hamilton contra Silvertonhil Tacks set to Heirs require no service but being Notour to be the Person who might be served Heir they have right without service June 9. 1675. Hoom contra Johnston of Oldwells 5. As to the benifit of Heirs they have Right not only to Obleigments conceived in favours of the Defunct and his Heirs But though there be no mention of Heirs unlesse by the nature of the obleigment there be a speciallity appropriating the same to the Person of the Defunct only as in Commissions Trusts c. So Heirs were found to have the benifit of a promise made to their Predicessors for disponing of Lands to him acquired for his use though it mentioned not Heirs Feb. 22. 1610. Heir of Jean 〈◊〉 contra Livingston The like of a Reversion not mentioning Heirs which was thought to be omitted by neglect seing it bore not
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
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
a Male Child not a Female And therefore Daughters of a Defunct cannot be served Heirs if there be a probability of a posthumus Child who is presumed to be a Son whereby they will be excluded till the contrary appear It was so amongst the Romans who therefore sent the Womb in Possession for the Child But with us the Fee of necessity must remain in Non-entry and the Friends or nearest Agnats of the Birth as Pro-tutors may continue the Possession But the difficulty is when the nearer Heir is in possibility and neither conceived nor born and it occurs specially in two Cases First in the Case of Heirs ascendent as when the Father succeeds to the Son having no Issue Brother or Sister For in that Case though at the Defunct's death there be neither Sister nor Brother gotten or born yet the Father may have them after So that the question will be Whether the Father may enter immediatly upon the death of his Son having no Children Brother nor Sister born nor in the Womb or if he must attend the future possibility of a superveening Brother or Sister The other Case is in Heirs of Tailzie whereof there was a notable instance long debated in Anno 1647 and 1648. on this occasion The Laird of Blackwood married his Natural Daughter Marion Weir having no other Children to Major James Bannatine and in Contemplation of the Marriage and for a Sum advanced by the Major for satisfying his Debts he disponed his Estate of Blackwood to Major Bannatine and the Heir to be procreat betwixt him and Marion Weir which failing to the Heirs of the said Marion Weir by any other lawful Husband which failing to the Heirs of the Bannatine The Major died without Issue So the question was whether Bannatine's Heirs should succeed or if the Succession behoved to be pendent till it appeared whether there would be any lawful Heir of the Body of the said Marion Weir who was no Member of the Tailzie her self but only the Heirs of her Body The whole question resulted in this Point Whether whilks failing was to be understood failing de praesenti at the time of the Feer's death or failing simply as being 〈◊〉 at no time The matter was not dicided but transacted Whereby Marion Weir being married to William Lowrie and having Children during the dependence of the Plea the matter ended by Transaction betwixt the Laird of Corhouse who was Major Bannatine's Heir and William Lowrie taling Burthen for his Heirs with Marion Weir thus That the tailized 〈◊〉 should belong to Marion Weirs Heirs That William Lowrie for them should pay to Corchouse 20000 pound Scots as the Sum which the Major his Brother had contracted for payment of Blackwood's Debts and had payed out upon Contemplation of the Marriage There was a very equitable Transaction to the same effect as if the Clause in the Tailzie had been interpret thus That failing Heirs of Marion Weir that is so long as the Heirs failed the Major's Heirs should succeed to him in the tailzied Estate So that where there became to exist Heirs of Marion Weir both that they should succeed to Major Bannatine's Heirs to wit Corehouse who was served Heir of Tailzie to his Brother Major Bannatine and should exclude Corehouse his Heirs of Line Whereby the Fee should never be in pendente at the death of the last Feer but that Person should be entered as Heir of Tailzie who at the death of the Defunct Feer or at the time of the Service was nearest Heir of the Tailzie whereby Corehouse should succeed as Heir of Tailzie to his Brother because at his death neither of the two former Branches of the Tailzie were existent viz. the Heirs betwixt the Major and Marion Weirs heirs by another husband And therefore a judicious and just Inquest lerving a Brieve for the Heirs of Tailzie of Major Bannatine could not but find that he died last vest and seased as of Fee in the tailzied Estate of Blackwood and that the Majors Heir of Line to wit Corehouse his immediate elder Brother is the nearest Heir to the Major by the Tailzie there being no Heir of Marion Weir then existent conceived or born she being unmarried For if she had then had a lawful Child the Inquest behoved to have served that Heir as nearest Heir of Tailzie to Major Bannatine then his Heir of Line Neither would that Child be excluded because the Child could not be Heir to Marion Weir while she was on life for Heirs in that case were only mean'd such as might be Heirs if she were dead Suppose then there had been a Son betwixt the Major and Marion Weir who had been infeft as Heir to his Father and died without Issue Marion Weir at her death having then a Daughter by asecond Husband that Daughter would have succeeded as Heir of Tailzie albeit a Son of Marion Weir were in possibility and in the nearest hope and to whom the title of her Heir would be most proper as being her Heir of Line or Heir simpliciter yet the Fee would not remain in pendente and vacant till the event of that possibility but the Daughter would be served as nearest at the last Feer's death And therefore the Inquest could not justly swear but that Major 〈◊〉 Heir of Line is his nearest Heir of Tailzie the time of the Service For if it should be 〈◊〉 that there were a nearer Heir in possibility or hope the Inquest could not demur thereon because an Heir in possibility is not but only may be And therefore the Major's heir is the nearest heir of Tailzie who needs not be served heir of Line to the Major If the Major had an untailzied Estate his Brother might renounce to be heir of Line to him in that Estate and yet might be heir of Tailzie to him in the tailzied Estate as being still his heir of Line demonshrativè that is the Person who might be his heir of Line And therefore after Corehouse his death if he died infeft as heir of Tailzie to his Brother if the question again had arisen betwixt Corehouse his Son as his heir of Line and Marion Weirs Son being then existent an Inquest could not justly ferver Corechouse heir of Tailzie to him in the Estate of Blackwood because then Marion Weirs Son was a prior Branch of the Tailzie and so behoved to exclude Bannatine's heirs of Line which are the posterior Branch Therefore in lieu of this temporary Succession of Corehouse resolving in his Liferent as the Branches of Tailzies frequently do he accepted 20000 l. which was his Brothers true Interest and denuded himself in favour of Marion Weirs Son the prior Branch So we are left in both to a rational Debate without decision As to the first Case we have already showen both by Reason and Practice That failing the Feer's Children Brother and Sisters his Father and Grand-father succeed and exclude their Collateralls So thence it necessarly followeth that these Ascendents may be
Money are lent and the Obligement to repay is conceived thus To be payed at such a Term to the Lender and in case of his Decease or failing him by Decease or after his Decease to such a Person Whence these Questions result first Whether the Lender be Feer of the Sum and the Person substitute Heir of Provision Or whether the Person substitute be Heir whether he may succeed at any time or only if the Lender die before the Term of Payment As to the first Question the Person substitute is not Feer but Heir and the Lender is not Liferenter but Feer and therefore may dispose of the Sum at pleasure by Assignation Legacy or otherwise as other Feers may February 22. 1623. Mr. John Leich contra Laird of Balnamoon February 28. 1626. Tulliallan contra Laird of Clackmannan And where the Clause bare to be payed to Clackmannan and his Spouse the longest liver of them two and in case of their Decease to Alexander Bruce their Son in Fee with an Obligement to infeft the Spouse in Liferent and the Son in Fee in an Annualrent effeirand thereto yet the Father was found to have Right to dispose of the Sum. The like was found Feb. 20. 1629. Laird of Drumkilbo contra Lord Stormount where the Father surviving the Term of payment though he freely and without a Cause onerous discharged the Sum provided to be payed to him and failing him to his Son though it bare a Clause of Infeftment to the Father in Liferent and to the Son in Fee but no Infeftment followed The like though the Father and the Son subtitute were both infeft in one Seasine July 23. 1675. Laird of Lamingtoun contra Muire of Annistoun As to the second Question The more ancient Decisions have interpret such Clauses strictly thus That the Sum payable at such a Term to the first Person should be payed at that Term to the Person substitute so that it should be payable at no Term thereafter to the Person substitute but if the first Person survived the Term of payment though he did nothing to alter the Substitution the same should not belong to the Person substitute but to his heirs Hope succession Spots Assignations Laird of Bonytoun contra John Keith Feb. 22. 1623. John Leich contra Laird of Balnamoon Where it was found that such Sums came under the first Persons surviving the Term their Testament and belonged to their Executors But more frequent Decisions have with better reason interpret such Clauses on the contrary that the Person substitute is heir of Provision whensoever the Defunct dies whether before or after the Term. Because constitution ofheirs is simply and not ad diem but mainly because the ordinary intent of such Clauses is to appoint Portions for the Bairns named therein who therefore are substitute heirs of Provision to their Father so that if he do not expressly alter or prejudge the Substitution his intent is that they succeed him whensoever Spots Assignations Currie contra Nimmo Relict of John Thomsom contra William Thomson The like in a Legacy left to a Person and failing her by Decease to another which was not found à fidei commissum to be restored by the first Person to the second at her death And therefore the Assigny of the first Person was preferred Spots Disposition Sarah Reid contra Alexander Downie January 18. 1625. Wat contra Dobbie June 26. 1634. Keith contra Innes Therefore such Sums bearing no Clause of Infeftment yet fall under Testament neither hath the Relict a third thereof Hope Successions In these Substitutions though the Person be substitute as heir yet he is not properly heir and so needs not to be entered by any Service because he is nominate and there is no other heir But inTailzies though some of the Members of the Tailzie be nominate yet because in Lands as is before said the Person nominate is never the first heir therefore there must be a Service to enquire whether the first heir fails or not which is unnecessary where there is one Person only nominate to be heir concerning which there needs beno enquiry Though the Persons substitute be as heirs it followeth not that they must be lyable as heirs of Provision to the first Person 's Debt contracted before the Substitution because they are not properly heirs not requiring any Service They are interpretativè like to heirs because the nature and intent of such Clauses is not to constitute the first Person as a naked Liferenter but that they are understood as if they were thus express'd With power to the first Person to alter aad dispone at his pleasure during his life So thereafter only the heirs substitute take place though in these respects as heirs yet in reality as secundary conditional or substitute Feers But the Substitute is lyable other 〈◊〉 Heirs and Executors being discussed unless the Person substitute abstain Because the Substitution is a gratuitous Deed in prejudice of Creditors post contractum debitum and so annullable and the Substitute medling is lyable to repay quoad valorem only but never by an universal passive Title July 3. 1666. Fleeming contra Fleeming The next difficulty is who is Feer in Provisions or Tailzies of Sums Annualrents or Lands in Conjunctfee wherein these general Rules do ordinarly take place First That the last termination of Heirs whatsoever inferreth that Person of the Conjunctfeers whose Heirs they are to be Feers and the other Liferenters 2. When that is not express'd potior est conditio masculi the Heirs of the Man are understood But these have their own Limitations as first in Moveable Goods and Sums provided to a Man and a Wife and their Heirs without me ntioning which failing to whose Heirs the same should be due were found not to fall to the mans Heirs but to divide equally betwixt the Man and Wifes Heirs February 2. 1632. Bartholomew contra Hassingtoun February 18. 1637. Mungle contra John Steill Yea a Clause in a Reversion redeemable by a Man and his Wife and their Heirs was found to constitute the Wife Feer of the Reversion because she was Feer of the Land Wadset Hope Liferent Kincaid contra Menzies of Pitfoddels But an Assignation to a Reversion provided to a Man and Wife the longest liver of them two and their Heirs was found to make the Man only Feer Hope Husband and Wife Walter Collistoun contra Laird of Pitfoddels A Clause in a Charter providing Lands to a Man and his Wife the longest liver of them two and the Heirs betwixt them Which failing to the Heirs of the Mans Body Which failing to the Wife her Heirs whatsoever though the last termination was upon the Wife yet the Husband was found Feer July 24. 1622. Ramsey contra Laird of Conheath The like in a Clause providing a Sum being a Wifes Tocher to the Man and Wife and the longest liver of them two in Conjunctfee and to the Heirs betwixt them Which failing the Wifes heirs yet the
doth remain and both are compatible Hope Successor Lucrative Gray contra William Burgh 2. This passive Title is not only extended to Dispositions of Lands bearing expressly a lucrative Title as for Love and Favour c. but though the Narrative thereof bear expressly a Cause onerous which being betwixt the Disponer and his apparant heir proves not and therefore the Cause onerous must be proven aliunde Vide Title Reparation upon Circumvention where the Narrative of Writs amongst conjunct and confident Persons proves not the Cause to be onerous And though there be a Cause onerous instructed it will not be sufficient unless it be equivalent to the worth of the Lands to substain it against Reduction but if the Cause onerous be considerable the heir will not be lyable simply or personally but the Right may be reduced and the heir may be lyble in quantum est lucratus And therefore an apparant heir having accepted the benefit of a Disposition and Infeftment granted by his Predecessor to a third Party but to the apparant 〈◊〉 behoofe the Lords before answer ordained the Cause onerous of the Disposition to be instructed reserving to their consideration how far the apparant heir should be lyable personally thereby January 14. 1662. Nichol Harper contra Hume of Planergest The like of a Disposition of Lands by a Mother to her apparant Heir though it did bear a Sum of Money which did not prove betwixt Mother and Son February 15. 1676. Patrick Hadden contra George 〈◊〉 The like was found of a Disposition by a Father to his Son and apparant heir though the Son offered to prove it was for equivalent onerous Cause seing the Disposition it self did bear for love and favour and other good Considerations November 22. 1671. Beaty contra Roxlurgh But Bonds of Provision by Parents to Children infer no passive Title though the Children be Heirs apparant As when the Bonds are granted to the eldest Son or Bonds of Provision or a Tocher to Daughters when there are no Sons though in that Case the Daughters might be esteemed heirs apparant although truly they be not for a man is ever understood to be capable of having a Son and therefore Daughters are little more heirs apparant than Brothers Yet Bonds of Provision or Tochers are reducible by anterior Creditors if the Defunct had not a visible Estate sufficient for these Portions and his whole anterior Debts And therefore accepting a Tocher did not make a Daughter lyable as lucrative Successor though there was no Son yet the Daughter and her Husband were found lyble to the Father's anterior Creditors for what was above a competent Tocher suteable to the Parties December 23. 1665. Dame Rachel Burnet contra Lepers Neither will taking Bonds in the name of the Daughters or assigning Bonds to them make them lyable as lucrative Successors And yet the accepting of Assignations to heretable Bonds by a Father to his eldest Son in which the Son would succeed as Heir may inferre this passive Title December 2. 1665. Edgar contra Colvil But where the Father in his Contract of Marriage provided his Son to several Bonds which before any Creditor pursued were payed and cancelled and it did not appear by the Contract whether they were heretable or moveable the Lords did not sustain the passive Title but found the Son lyable in quantum 〈◊〉 and did presume the Bonds to be heretable unless they were proven to be moveable January 7. 1679. Hamilton of Burdowie contra Mr. Andrew Hay But a Disposition of Lands to the eldest Son was found to make him lucrative Successor although by his Father's Contract of Marriage with his Mother his second Wife the Father was obliged to infeft the eldest Son of the Marriage in the said Lands which did import a Succession seing the Obligement contained no determinate time and so might be performed by the Father any time in his life November 29. 1678. Hagens contra Maxwell The like was found in a Disposition of Lands or Annualrents to the eldest Son of the Marriage seing these were provided to the Heir of the Marriage February 22. 1681. Grizel More contra Ferguson The Disponer's Bairns Portions are not a Cause onerous being granted after the Creditors Debts albeit undertaken and secured by the apparant Heir bona fide before any Diligence at the Creditors instance not being payed before the Pursuit ibid. because the Heir may suspend upon double Poynding and will not be made to pay both the Bairns and Creditors 3. This Title is extended to Dispositions granted in the apparant Heirs Contracts of Marriage which in many respects is accounted a Cause onerous July 8. 1625. Gray contra William Burgh Where the Son was not liberat though he offered to renounce the Lands he had by Contract And it was found that Lands being disponed and resigned by the Father in favour of the Son by his Contract of Marriage though they were for the present wadset and disponed with that burthen and thereafter redeemed by the Son by his own means so that there remained nothing in the Father but the Superiority and the 〈◊〉 yet the Contract of Marriage was found onerous as to the Wife 's Luerent And in respect the Son was Minor and presently revoked the Disposition and renounced all other Rights except that of the Wadset which he had redeemed he was liberat of the passive Title and the Lands declared redeemable by any Creditor anterior to the Contract January 14. 1634. Mr. David Courtney Minister contra Weems of Lothoker In the like Case where Lands were disponed by a Father to the Son in his Contract of Marriage for a Tocher payed to the Father for some Debts and Bairns Portions far within the worth of the Land the Son was not found lyable in solidum as lucrative Successor nor yet the Pursuer put to a Reduction but the Son was in hoc processu put to compt and pay the superplus of the true price of the Land June 17. 1664. Lyon of Murask contra Bannerman 4. This Title takes place not only in universal Dispositions of the Predecessor's whole Estate but a Disposition of any part thereof is sufficient seing the least as well as the most is praeceptio haereditatis 5. This Title is extended also not only to Dispositions made to and accepted by the immediate apparant Heir but also to the mediate apparant Heir so that he be alioqui successurus by the course of Law necessarly as what is granted to the eldest Son of the apparant Heir Because the ground of this Title being to prevent Deeds in favour of the Disponer's Successors prejudicial to the Disponer's Creditors whose Debts are anterior the reason holds as much where he dispones to his Oye who by the course of Law is to succeed to him as to his Son 2. It is Praeceptio haereditatis in the Oye aswell as in the Son And therefore the Rule in this Title is not that the Accepter be that Person who
effectual he might prohibite it and could not be presumed so irrational as to prohibite it if he had not good ground to know that his Heirs would enter without it Or indirectly if the Testator prohibite the alienation of the Heretage the Law esteemed it as a prohibition of the Falcidia The Falcidia had no place in Military Testaments or in Legacies left to Pious Uses or left to the Relict of the Testator nomine dotis The reason of these exceptions was in favour of Souldiers Pious Causes and Tochers And if the Heir ommitted to make Inventary he lost the benefit of his Falcidia 14. When the fiduciary Succession became in use whereby Heirs were institute or substitute to the use and behoofe of others to whom they were to restore the Inheritance or some part thereof or thing therein which therefore was called fideicommissum as being committed to the trust and faithfulnesse of the Heir the Senatusconsultum Trebellianum did introduce the reservation of a fourth part to the Heir institute or substitute by these fideicommisses in the same way that the Falcidia was a reservation from Legacies And therefore this fourth part was called Trebellianica which therefore hath the same exception with the Falicidia of which in the former Paragraph And this further if the Heir were forced by Law to enter or if within a year thereafter he do not fulfil the Will of the Defunct he lost the benefit of his Trebellianica And if he had either Legacy or Portion of the Inheritance it was reckoned to him as a part of his Trebellianica 15. The use of these Fideicommissary Trusts was when the Testator designed his Inheritance or some of his Goods either for Persons that were not capable to be Heirs or not fit to manage as through Pupilarity prodidigality or some other defect then he institute other Heirs fit for the present managment and desired or required them by his Testament to restore the Inheritance or some part of it to such Persons And that either simply to a day or conditionally And oft times the day of Restitution was after the Heirs own Death whereby he had his Liferent or Vsufruct thereof At first this was wholly left to the trust and faithfulness of the Heir without any legal Remedy or Compulsion which afterward were adhibite with the Reservation of the Trebellianica as hath been shown But where the Persons in whose favour the Trust was were such as could not be Heirs or succeed as spurious Persons then those Heirs were not compelled to restore The essential and chief poynt of a Testament is the Nomination of an Heir either by Institution or Substitution without which it was not allowed the name of a Testament but only a Legacy or at best the name of Codicills which is called by some an imperfect Testament 16. Codicills might be made before five Witnesses either in writ or nuncupative and they were ordinarly additions to Testaments Yea because if when Testaments through want of Solemnity became voyd the Legacies failled therefore there used to be adjoyned this Clause If this be not valid as a Testament Let it be valid as a Codicill which thence is called Clausula codicillaris 17. The form of Institution of Heirs was in plain and short terms thus Titius haeres esto These were either institute solly or joyntly and that either equally or indefinitely which is understood equally or otherways by certain Portions No Institution can be conditional or to a day or if it be it is presently effectual Because the Heritage cannot hing in the air and belong to none else it would prove caduciary Yet in military Testaments this Priviledge is indulged as hath been said 18. Substitution is the Nomination of substitute Heirs who take place failing the institute There may be as many subordinate Members of Substitution as the Testator pleaseth The Institute or prior Substitute is found to fail when either he cannot or will not enter but if once he enter the Substitution for ever evanisheth And if he or his should be extinct who was institute the Heretage becomes his Patrimony and no more the first Defunct's Heretage and so falls not to the Substitute who is Heir of the first Defunct but to the Heirs of the Institute It is otherways with us in Tailzies or other Substitutions as hereafter will appear 19. Substitution was of two kindes vulgar and pupillar Pupillar is that whereby Fathers were allowed in their Testament having named their Children being Pupils to be their Heirs to substitute Heirs to them which Substitutes had not only the Father's Heretage but the Son 's dying in Pupillarity Under which is comprehended that which is called substitutio exemplaris whereby Parents having institute their Children being Idiots their Heirs did substitute other Heirs to them if they entered not and died Idiots or Furious And in military Testaments the pupillar Substitution is not only effectual if the Testator make his own Will and institute his Children but though he only substitute And though the Children survive their Pupillarity yet if they entet not the Substitution is valid All other Substitutions are ordinary or vulgar when the Testator institutes Heirs and substitutes others but hath only effect as to the Testator's own Goods if those institute enter not but not as to the Goods of Heirs institute 20. The matter of next moment to the Institution or Substitution of Heirs is the leaving of Legacies which may be left in Testements or Codicills and without either in some cases Any thing may be legat which is in the Defunct's Goods alienable except in so far as is restrained in the Legittima Falcidia Trebellianica of which formerly Yea though the thing legat be not the Testator's the Heir is obliged to purchase it to the Legatar or the value of it if the Testator knew it was another's for then his mind is followed to make it effectual at least by the value But if the Testator legat any thing thinking it to be his own which is not his own the Legacy is ineffectual For Legacies being Donations they are undestood to be given but so far as the Giver hath Right and therefore there is no Warrandice of them as to the Testator's Right But if the Heir deliver any thing not specially legat in satisfaction of the Legacy if that be evicted upon defect of the Heir 's Right he is lyable for Warrandice As if an Heir were appointed to give in Legacy a Horse worth such a price not being in the Heretage but delivered by the Heir to satisfie the Legacy if the Horse be evicted the Legatar hath Warrandice against the Heir because it is not the Defunct's Right but the Heir 's Right that fails Legacies and particular Fideicommisses not being for Restitution of the whole Heretage or any special Part or Quota thereof are equiparat as Fideicommisses of the Heretage or a Quota thereof are equivalent to the Institution or Substitution of Heirs And either
the Heir But if the Testator say I leave my House to Titius I leave the same House to Seius and Mevius either indefinitly or expressing their Portions Seius and Mevius their Portions accresce each to other and not to Titius because if they and Titius be conjoyned in matter only yet they are also conjoyned in word and so the more Conjunctions prevail by the presumed Will of the Defunct This kind of Accrescence is called by the Doctors jus non decrescendi because each party being provided to the whole which cannot be effectual therefore concursu partes faciunt and the Deed is made effectual to them in part equally if the Will of the Defunct appear by the Provision not to take away the former wholly as in many Cases it falleth out And therefore in this Accrescence if any burthen be adjected if that Party accept not his Portion aceresceth to the other without that burthen because the other enjoys his own Right which was total and becomes now effectual as to the whole the impediment that retrenched it being wholly taken off But in all other Conjunctions the Portion accresceth with its burthen And therefore the accrescing Portion as being special may be rejected in Legacies and Fidei commissis but it cannot be rejected in Institutions or Substitutions lest the Testator should be intestat in part But in jure non decrescendi when Portions accresce amongst those that are conjoyned in the matter only the Accrescence is necessary and the Portion accrescing cannot be rejected because it befalleth by one integral Right which either must be accepted wholly or rejected wholly and therein approbans non reprobat no man can both approve and disapprove of the same individual thing 28. The Law and Customs of Scotland have reduced the matter of Testaments and Succession in Moveables much nearer to natural Equity and made it much shorter and plainer than the Roman Law For first the Civil Law did lay the greatest weight upon the free power of testing which our Law hath so far abridged that all Contracts Pactions and Provisions in relation to the Heretage of Persons living are valide and ordinary in Contracts of Marriage c. And even pactum corvinum in the worst sense is valide as when one being provided by Contract of Marriage to be a Bairn in the House sells that Portion in the Lifetime of the Contracter Which was sustained 6. of Julie 1630. Mr. James Aikenhead contra Bothwel So an Obligement to leave a Legacy was found valide and to stand as an irrevocable Legacy yet only to be taken out of the Defunct's part of his free Goods 13. of Januarie 1631. Houstoune contra Houstoune 29. Secondly Not only may the power of testing be restricted by Paction but is actually restricted by Law to extend to no immoveable or heretable Right which cannot be alienate or affected upon Death-bed or which is equiparat by Testament though the Testator were in his liege pousty or perfect Health And that on good considerations because Persons are ordinarly and still presumed to be weak when affected with Sickness and so not fit to alienat or affect things of their greatest concernment as their Lands Heretage c. And because it is the great interest of Persons to be free of all importunities when they come to their Death-bed At which time they are only capable of their Deads part which is seldom 〈◊〉 and so they cannot affect their Lands nor can they further dispose of their Goods upon the Solicitation of Church-men which is very powerful in the Popish Church where Indulgences and Prayers for the Dead to bring them out of Purgatory are believed and cannot but be forcible upon dying Men who then are more concerned for the safety of their Souls than preservation of their Estates And every where the pressing Desires of Wives for themselves or for such of their Children as they most affect or of Children Relations and Friends may have great impression upon the Sick for preserving their Peace and Quiet So there remains nothing testable but moveable Rights What Rights are moveable and what heretable see in the beginning of the Title Rights Real which shall not be here repeted Thence it is that there is a total Separation of the Succession in heritable Rights which are only competent to Heirs and in moveable Rights as to which because they were intrusted to Prelats and their Officials as being presumed most careful of Widows and Orphans and that the Will of Defuncts should be effectual who did appoint or confirm Persons to execute the Defunct's Will the Persons so appointed or confirmed were called Executors and the whole moveable Rights of Defuncts whether tested on or from the intested are comprehended in Executory 30. The whole interest of Executory with us is in the Office of the Executor the Division of the Communion of Goods betwixt Man and Wife whereby the Relict hath her Part the Saccession of Children and nearest of Kin or Legacies There is with us properly no Institution or Substitution of Heirs for albeit the Nomination of Executors be in the Defuncts power in the first place and doth resemble the Institution of Heirs and may receive Substitutions in the same way yet is it not properly a Succession but rather an Offce which therefore hath a part of the Goods Executors are Heirs in mobililus and when Heirs only are exprest Executors are comprehended quoad mobilia If there be Nomination of Executors with a material Legacy to another it is a fideicommissiry Succession to be restored to the universal Legatar And Executors dative have also a fideicommissary Succession which they must restore to the Wife and nearest of Kin of the Defunct So must Executors nominat not being also universal Legatars and being strangers retaining only a third of Dead's part to themselves for executing their Office The greatest power of Defuncts either by Testament or otherwayes is the power of legating by particular or universal Legacies The interest of the Wife is not so much a Succession as a Division of that Communion of moveable Rights which the Law stateth betwixt the Husband and her stante matrimonio and which is dissolved by the Dissolution of the Marriage and so she taketh her share of the free Goods by way of Division 31. The Succession in Moveables from the intestat belongeth to the nearest of Kin who are the Defunct's whole Agnats male or female being the Kinsmen of the Defunct's Father's side of the nearest Degree without primogeniture or Right of Representation wherein those joyned to the Defunct by both Bloods do exclude the Agnats by one Blood 32. The Line of Succession in Moveables is first the nearest Descendents male or female in the same Degree equally whether Sons or Daughters without Right of Representation So that if the Defunct the time of his Deceass had two Daughters though he had an Oye by a Son the Daughters will exclude the Oye albeit the Defunct had nothing
but Moveables The next Degree of the nearest of Kin is Brothers and Sisters german and failing these Brothers or Sisters by the Father's side only or their nearest Descendents of the same Degree without Right of Representation As to the third Degree of Succession in Moveables failing Descendents and Brothers and Sisters and their Descendents the Question is Whether the Father surviving will exclude his own Brother or if there be any place for Ascendents in the Succession of Moveables Such Cases occur rarely and I have not observed it debated or decyded It is but of late since the like Case hath fallen in the Succession of Heirs and Heritable Rights wherein our Custom hath according to the course of the Law of Nature found the Father to be Heir to his Son and not the Father-brother or any of his Descendents and in that have differed from the Custom of England And there is no reason why if the Question should occurr that the like should not be done in Moveables The next Degree is the Father's Brethren and Sisters german which failing the Father's Brethren and Sisters by the same Grand-father and their Descendents in the next Degree In all which both Bloods exclude one Blood And if there be no Agnat or Kinsfolk found who can instruct their propinquity of Blood the Goods become caduciary and confiscat and belong to the King as ultimus haeres who and his Donatar have the same interest that the nearest of Kin would have had Vide Title Confiscation Section Ultimus hares Children in familia have not only the common Right as nearest of Kin but have their legittime Portion called the Bairns part in which their Father cannot by Testament Legacy or Donation ' mortis causâ prejudge them or by any other Deed on Death-bed By the Premises it appears that the whole power of Defuncts as to Succession in their Moveables is to nominate Executors and give Legacies 33. The Nomination of Executors is properly called a Testament Additions thereto or Alterations thereof are Codicils Legacies may be left whether there be Testaments or not and either in the Testament Codicils or apart but all is ambulatory during the Defunct's Life and may be taken away expresly or implicitely by posterior or derogatory Deeds unless the Defunct be obliged by Contract inter vivos not to alter the same In which case Contract and Paction doth so far over-rule the power of testing that posterior Deeds whether expresly or implicitely altering would be ineffectual like to that Obligement to leave a Legacy which was found an effectual Legacy without further Solemnity January 30. 1631. Houstoun contra Houstoun 34. The effect of Testaments being so small the Solemnities thereof are no other than what are requisit to accomplish any other Writ For two Witnesses suffice and if the Testament be holograph it is valid Or if the Testator cannot or be not able through Sickness to write a Testament will be sufficient by a Notar and two Witnesses notwithstanding the Act of Parliament 1579. cap. 8. requiring to Writs of importance two Notars and four Witnesses which holds not in Testaments though containing matter of great importance 18. of January 1623. Bog contra Robert Hepburn Yea Ministers are authorized as Notars in the case of Testaments Par. 1584. cap. 133. The reason here of is because Ministers are ordinarly with sick Persons the time of their Death Nuncupative Testaments are not of force in Scotland For though Legacies left within an hundred pounds may be nuncupative without Writ yet the Nomination will not so subsist nor be respected by the Commissaries And therefore a verbal Testament taking away a formal Legacy subscrived but by initial Letters was not sustained though made at Sea and so in a Case of necessity and not admitted to be proven by Witnesses in the Ship Feb. 18. 1631. Houstoun contra Houstoun 35. The effect of Testaments is not greater though made in England the Testator residing there and so extends not to an Heretable Sum due in Scotland left in Legacy by the Testator being a Scots-man July 3. 1634. Melvil contra Drummond Hope Testaments Purves contra Chisholm Executors of Collonel Henrison ibid. Neither do nuncupative Testaments of Scots-men though residing animo remanendi abroad and dying there have any effect with us albeit nuncupative Testaments be valid according to the Law and Custom of that Place For albeit the Custom of the Place may supply the Solemnity of any Writs or Evidents for instructing a Right as Writs made abroad by Nottaries and Tabellions are valid though not done according to the Law of Scotland which requires two Notars and four Witnesses in Writs of importance yet the Custom of those Places cannot constitute any Right of Succession not allowed by the Law of Scotland And therefore William Schaw Factor and Residenter in London having lived and died there in the House of one Mary Lewins who had confirmed in England a nuncupative Testament whereby he had designed her as Executrix and Legatrix and the nearest of Kin of the said William having confirmed themselves Executors to him in Scotland and the competition being betwixt them the Lords preferred the Executors confirmed in Scotland and had no respect to the nuncupative Testament as having no effect by the Law of Scotland January 19. 1665. Schaw contra Lewins 36. The like Solemnities will be sufficient for Codicils and Legacies A nuncupative Legacy within an hundred pounds is probable by Witnesses November 24. 1609. Russel contra July 7. 1629. Wallace contra Mure. Where a greater Legacy left by word restricted to an hundred pounds was found so probable 37. The power of Testing is competent to all Persons who have the use of Reason though Minors having Curators not consenting Wives cled with Husbands without their consent Persons interdicted without consent of the Interdicters but not to Pupils Idiots furious Persons in their Furiosity neither to Bastards not having lawful Issue or testamenti factionem by the Kings Gift as in the former Case Wallace contra Mure. Vide Tit. Confiscation § Bastardry 38. Legacies are either particular or universal general or special Universal Legacies are when the whole Moveables in so far as is in the Defunct's disposal and not left by particular Legacies is legat and so it is legalum per universitatem and like to the Succession of an Heir Special Legacies are where some Individual is left as such a Horse Cloaths c. or such a Sum due by such a Person whereby the Property is stated in the Legatar and at most but the Possession or Custody in the Executor And therefore the Legatar may pursue for Delivery or Payment of the special Legacy against the Havers or Debitors but he must call the Executor that his interest may be preserved least the Debts exhaust even the special Legacy Upon which consideration the Lords sustained not a Pursuit upon a special Legacy leaving a Sum due by such a Person in such a Bond pursued against
effect is that it be without Collation Which is so much the more evident that oftimes Children are provided to be Bairns of the House after the rest are likewise provided So that when that Condition is not adjected the meaning is that without consideration of the Tocher or former Provision the Children by that Clause should have equal share It was so found Spots Test. Elizabeth Carsen contra Agnes and Marion Carsens 46. Collation then hath only place amongst Children where it is not prohibite expresly or implicitely by the Father providing that Child to be a Bairn in the House But Collation hath no place as to the Wife because Tochers in such Provisions being as inter vivos of its own nature it is no part of the Executory but is done by the Husband in 〈◊〉 potestate who is dominus omnium bonorum at least hath plenam administrationem notwithstanding the Communion of Goods in the Wife But Collatio is only a Remedy introduced in Law to keep Equality amongst Children who have an equal Interest in their Father and his Moveables but it is not introduced to keep an Equality betwixt the Wife and them Neither doth it design an Equality in all things but in Provisions or Tochers in Money which must be accompted to those who got the same But Land disponed to a second Son for Love and Favour not bearing for his Portion or in satisfaction thereof was not found to exclude him from his share of the Bairns part with his Sister nor to require him to collate what he got in Land January 14. 1677. Duke and Dutches of Balcleugh contra Earl of Tweedale Hence ariseth another Branch of the former Question Whether if all the Children be forisfamiliat and provided but have not discharged their Portion natural or Bairns part or accepted the provision in satisfaction thereof If in that case they will have access to a Portion natural in prejudice of the Relict and Legatars I say if they be all provided because if some be in the Family unmarried and unprovided the Relict and Legatars will be no more prejudged if all the Bairns come in or only some of them because many or few they will have all the Bairns part and no more The former Case Ross contra Kelly seems to bring in the Children though all forisfamiliat to a Legittime with the Relict because there was but one Child and she married and tochered Only it is observed that her Provision was in satisfaction of her Mother's part so that albeit she was married yet it appears that she was not provided ex bonis paternis but only ex bonis maternis And therefore it remains yet unclear and there seems much reason that the Wifes interest being a division of her Communion of Goods she should not devide with them who are out of the Family and provided unless they had a Provision to be Bairns in the Family By the common Practick also Commissaries divide Executory in two where there is a Wife and the whole Children married and so presumed to be provided It was so found where there was but one Child married and provided though not exprest in satisfaction But the Child was admitted to a Third offering to confer February 18. 1663. Dumhar of Hemprigs contra Frazer And where a Defunct had only two Daughters besides his Heir the one in her Contract of Marriage getting a Tocher in full satisfaction of her Portion natural and Bairns part and the other in her Contract being provided to be a Bairn in the House was found to have the whole Right to the Bairns part and to the Deads part and Office of Executory excluding the other who was found to succeed to no part as being renounced in favour of her Father and returning back from him by his Succession but that it accresced to the other though she was not Executrix nominat but dative And therefore the Confirmation of her sole Executrix was sustained January 27. 1680. Agnes Sandielands contra Rachel Sandielands There is an other considerable difference betwixt the condition of the Wife and Children introduced by the Act of Parliament 1641. revived Par. 1661. cap. 32. whereby Bonds and Provisions bearing Clause of Annualrent which before were heritable and so fell not within Executory now are moveable as to the Bairns nearest of Kin Executors and Legatars only excluding the Relict and are disposeable by Legacy or Nomination and at the Defunct's disposal by Testament or any Deed on Death-bed And they are exhaustible by Debts of the same nature which Debts of that nature do not exhaust the Relicts part which is inferred by a necessary consequence from the foresaid Act of Parliament 1641. For seing thereby Wives have no Share of their Husband's Bonds bearing Annualrent as they have not the benefit so they ought not to be burthened with such Bonds unless the Husband or Wife die before the Term of Payment of the Annualrent or that the Bonds become moveable simpliciter by a Charge or Pursuit for Payment thereof whereby the Creditor's mind is presumed to make the Sum simply moveable In which Case the Wife hath both the benefit and burthen of such Bonds in her Share July 14. 1664. Elizabeth Scrymgeour contra Murrays Yet the Wife hath her Share of the Annualrent of all Bonds though heritable due before Dissolution of the Marriage but no Share of the said Annualrents after nor of the Stock June 24. 1663. inter eosdem In this Case a Bond being payable to the Husband and Wife the longest Liver of them two but bearing no Annualrent the Relict was found to have her option either to lift the whole and re-imploy it for her Liferent use or to have the Half of the Stock seing it bare no Annualrent but not to have both the Annualrent of the whold and the Half of the Stock But Bonds which exclude Executors are heritable quoad creditorem but moveable quoad debitorem Because the Creditor excludes his Executor whereas the Debitor's Executor is not excluded but lyable But Bonds bearing Clause of Infeftment are simply heritable both as to the Debitor and Creditor for by these the mind of the Creditor appears to exclude all others but his Heir except as to the bygone Annualrents 48. Heirs are excluded from the Bairns part though in the Family because of their Provision by the Heritage except two Cases First if the Heir renounce the Heritage in favour of the remanent Bairns for then the Heir is not to be in worse case than they but they come in pari passu both in heritable and moveable Rights which is a kind of collatio bonorum which will hold when there is no Bonds but heritable Bonds 49. Secondly If there be but one Child in familia and so both Heir and Executor that Child hath not only the Heritage but the whole Bairns part and so abates the Relict's part and Dead's part Nic. Division of testaments Kennedy contra his Father's Relict The like without
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