\ 
 
 A 
 
 6 " 55 H 
 
 
 
 ^
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 TH E 
 
 LAW OF SCOTLAND 
 
 IX RELATION TO 
 
 WILLS AND SUCCESSION; 
 
 [NCLUDING THE SUBJECTS OF 
 
 INTESTATE SUCCESSION, AND THE CONSTRUCTION OF WILLS, 
 ENTAILS, AM) TRUST-SETTLEMENTS. 
 
 BY 
 
 JOHN M C LAREN, Esq., 
 
 ADVOCATE. 
 
 IN TWO VOLUMES. 
 VOL. I. 
 
 EDI \ 15 I 1M; II: 
 BELL & BRADFUTE, L2 BANK STREET. 
 
 WILLIAM MAXWELL a- SON, LONDON. 
 
 MI»< << I. Will.
 
 /v\V3 ... 
 
 JOHN BAXTER, PRINTER, ELDER STREET, EDINBURGH. 

 
 PREFACE. 
 
 At an early period in his professional life, the author perceived that a 
 text-book on the Law of Wills and Succession would be an acceptable 
 addition to the literature of the Law of Scotland. His treatise on the 
 Law of Trusts, published in 1863, was a partial fulfilment of an intention 
 then formed of supplying the deficiency ; and the favour with which it was 
 received, notwithstanding the defects which were inseparable from the 
 limits which the author had imposed on himself, encouraged him to at- 
 tempt the preparation of a work of a more comprehensive character, and 
 more nearly approaching to the standard to which the indulgent criticism 
 of the profession had permitted him to aspire. 
 
 In the fulfilment of this design, the plan of the Law of Trusts has 
 been entirely abandoned. The first volume of the present work, which 
 treats of the subjects of Intestate Succession, and the construction of Wills, 
 Entails, and Settlements of Landed Estate, is almost entirely new. A por- 
 tion of the second volume also is new, and the remainder is taken from the 
 text of the Law of Trusts, but considerably altered, and in part re-written. 
 The Law of Wills and Succession may therefore claim to be regarded as a 
 n«\v work, incorporating the substance of the Law of Trusts; and, allow- 
 ance being made for the difference in the size of the pages of the two im- 
 pressions, the present work will be found to contain nearly twice the quantity 
 of matter in the former. 
 
 The author may be permitted to add that everything has been done that 
 personal exertion could accomplish to secure accuracy in the statement of 
 the law, and in the references to its authorities. The preparation of the 
 Dew matter has been the constant occupation of his spare time during 
 Bevei : In the revision of the proof sheets, the whole of the refer- 
 
 ences have heeii personally verified by comparison with the original reports 
 and treatises. The Learned reader will know how to make allowance for 
 imperfections in the treatment of a subject so extensive and intricate as the 
 
 Mt. For errors for which this excuse ci I be pleaded, the author 
 
 ventures to bope foi the Bame indulgence which has been extended to him 
 in ][]> former literary efforts. 
 
 hi icon Jun
 
 TABLE OF CONTENTS. 
 
 ABSTRACT. 
 
 PAKT I. 
 
 DOMICILE AND INTERNATIONAL LAW. Chapters I.-1I. 
 
 PAET II. 
 
 INTESTATE SUCCESSION. Chapters I1I.-XI. 
 
 PAET III. 
 
 CONSTITUTION AND INTERPRET ATION OF WILLS AND SETTLEMENTS. 
 Chapters XI I. -XX I. 
 
 PAKT IV. 
 
 SUCCESSION UNDER WILLS AND TESTAMENTARY DISPOSITIONS. 
 Chapters XXII.-XXXIV. 
 
 PAET V. 
 DESTINATIONS AND LAW OF VESTING. Chapters XXXV.-XLIII. 
 
 PAET VI. 
 ESTATES IX TBUST. Chapters XLIV.-LI. 
 
 PAET VII. 
 ESTATES OF TRUSTEES AND EXECUTORS. Chapters LII.-LVI1. 
 
 PAET VIII. 
 OK powers. Chapters LVIII. I. XII. 
 
 PABT IX. 
 
 ADMINISTRATION OF TRUST AND EXECUTRT ESTATES. 
 Chapti rs LXIII.-LXX. 
 
 PAET X. 
 LIABILITIES ok TRUSTEES AND EXECUTORS Chapters I. XXI i.xxvn
 
 CONTENTS. 
 
 Index of Cases cited, ...... 
 
 List of English Equity Reports, with theie Abbreviations, 
 
 CHAPTER I. 
 
 of domicile. 
 
 Sect. 1. Generalities, .. 
 
 2. Domicile of Birth, 
 
 3. Acquisition of a Domicile, 
 
 4. Wife's Derivative Domicile, 
 
 CHAPTER II. 
 
 international law in relation to wills and succession. 
 Sect. 1. Regulation of Intestate Succession, 
 
 2. Validity of Wills and Testamentary Dispositions, 
 
 3. Interpretation of Wills and Testamentary Dispositions, 
 
 4. Election, 
 
 5. Administration of the Succession, 
 
 6. Revenue Laws, . 
 
 7. Jurisdiction, 
 
 8. Ascertainment of Foreign Law, 
 
 CHAPTER III. 
 
 OPENING OF THE SUCCESSION BY SURVIVANCE. 
 
 Sect. 1. Questions as to the Death of the Ancestor, 
 
 2. Question whether Ancestor was survived by an alleged Heir, . 
 
 CHAPTER IV. 
 
 ORDER OF LEGAL SUCCESSION IN RELATION TO HERITABLE ESTATE. 
 
 Sect. 1. Succession of Heirs-at-Law, ..... 
 
 2. Division of Heritable Succession, . 
 
 3. OfTerce, ....... 
 
 4. Of Courtesy, ......'. 
 
 CHAPTER V. 
 
 VESTING OF HERITABLE SUCCESSION, AND TITLE OF THE HEIR. 
 
 Sect. 1. Possession on Apparency, ..... 
 
 2. Service and Entry of Heirs-at-Law, .... 
 
 3. Vesting of Terce and Courtesy, ....
 
 CONTENTS. Vll 
 
 CHAPTEK VI. 
 
 ORDER OF LEGAL SUCCESSION IN RELATION TO MOVEABLE ESTATE. 
 
 Sect. 1. Succession of Personal Representatives. . . . .111 
 
 2. OfLegitim, . . . . • • • .117 
 
 3. Of Jus Relictce, ....... 126 
 
 CHAPTER VII. 
 
 EXCLUSION OF LEGAL CLAIMS BY WILL OB CONTRACT. 
 
 Sect. 1. Satisfaction and Discharge of Legitim, .... 128 
 
 2. Satisfaction and Discharge of Jus Relictce, .... 134 
 
 3. Satisfaction and Discbarge of Terce and Courtesy, . . . 137 
 
 4. Satisfaction and Discharge of Executry and Heritable Succession, . 139 
 
 CHAPTER VIII. 
 
 OF COLLATION. 
 
 Sect. 1. Collation between Heir and Executor, . . . 141 
 
 2. Collation among Children claiming Legitim, . . . .152 
 
 CHAPTER IX. 
 
 LAW OF DEATHBED. 
 
 Sect. 1. Incapacity, how arising. ...... 160 
 
 2. Deeds liable to Challenge, ...... 168 
 
 3. Title to Challenge ex, eapite lecti, ..... 171 
 
 4. Exclusion of Heir's Title, and effect of Revocation, . . .175 
 
 CHAPTER X. 
 EIGHTS of the heib and executor DISTINGUISHED. 
 
 1 . ( lorporeal Subjects, ....... 183 
 
 2, [ncoi pore d Subji cts, ....... 187 
 
 8. Conversion under uncompleted Contracts, .... 193 
 
 1. Rights in relation to Termly Payments, .... 197 
 
 CHAPTER XI. 
 
 ■■I CONSTRUCTIVE fn.w ERSION. 
 
 Sect. 1. Converted Estate as Successii f the Testator, . . . 208 
 
 2. Converted Estate a Succession of the Beneficiary, . . • 214 
 
 B. Rei v rsion oi Kl> ction, .... .221 
 
 I. Propi rti led Sue i, . . • • • 226 
 
 CHAPTER XII. 
 
 i OEM AND CHAB U rEBISTIl iMEN I u;i W R1 CINQS. 
 
 Sect. 1. Authentication of Wills and Settlements, .... 281 
 
 2 Uteration of the Ti si of a Will, . • 289 
 
 Of 0< licil and Writing authenticati d bj R( ferena • ' '
 
 viii CONTENTS. 
 
 PAGE 
 
 CHAPTER XIII. 
 
 REVOCATION OF WILLS AND TESTAMENTARY DISPOSITIONS. 
 
 Sect. 1. Power to Revoke, ....... 249 
 
 2. Revocation by Birth of Children, ..... 257 
 
 3. Revocation by Ademption or Alteration of Title, . . . 260 
 
 4. Revocation by Cancelling or Destroying the Testamentary Writing, . 263 
 
 5. Revocation by a subsequent inconsistent Testamentary Writing, . 265 
 
 6. Effect of the Law of Deathbed. ..... 268 
 
 CHAPTER XIV. 
 
 OF THE CAPACITY TO MAKE A WILL OR TESTAMENTARY DISPOSITION, . . 271 
 
 CHAPTER XV. 
 
 OF THE CAPACITY TO TAKE UNDER A WILL OR TESTAMENTARY DISPOSITION. 
 
 Sect. 1. Disabilities of Trustees and Executors, .... 281 
 
 2. Disabilities of Disponees, Legatees, and Beneficiaries, . . 286 
 
 CHAPTER XVI. 
 
 RESTRAINTS ON THE POWER OF DISPOSITION. 
 
 Sect. 1. Purposes, whether Lawful or Unlawful, .... 291 
 
 2. Perpetuities, ....... 298 
 
 3. Accumulations of Income, ...... 302 
 
 CHAPTER XVII. 
 Of the estate or subject of disposition, . . . . .311 
 
 CHAPTER XVIII. 
 Of uncertainty in testamentary writings, ..... 318 
 
 CHAPTER XIX. 
 
 INTERESTS ARISING BY IMPLICATION. 
 
 Sect. 1. Implication from Recitals, ...... 328 
 
 2. Implications from Destinations to other Legatees to take effect upon 
 
 a Contingency, ....... 331 
 
 3. Implication from Gift of a Life Interest where the Fee is undisposed of, 334 
 
 4. Implication from Powers of Disposal and Division, . . . 335 
 
 5. Implication from Conveyances of the Legal Estate, . - . 337 
 
 CHAPTER XX. 
 
 INTERPRETATION OF CONTRADICTORY AND DEFECTIVE PHRASEOLOGY. 
 
 Mir. 1. Effect of Repugnancy in Wills, ..... 338 
 
 2. Of Supplying Words, ....... 343 
 
 3. Restoration of Defective Text in Wills. . . . .349
 
 CONTENTS. i.\ 
 
 PAGK 
 
 CHAPTER XXI. 
 
 OF EXTRINSIC EVIDENCE IN EXPLANATION OF TESTAMENTARY WRITINGS. 
 
 Sect. 1. Evidence for the purpose of enabling the Court to Read the Will, . 356 
 
 2. Evidence identifying the Persons and Things named in the "Will. . 361 
 
 3. Where the words of the Will are Insensible with reference to 
 
 Extrinsic Circumstances, ..... 368 
 
 4. Evidence proving the Testator's knowledge of Facts material to the 
 
 Construction of the Will. ..... 370 
 
 5. Evidence in contradiction to the presumption against double Provisions, 372 
 
 6. Where the words of the Will arc applicable indifferently to more than 
 
 one person or thing. ...... :>74 
 
 CHAPTER XXII. 
 
 OF LEGACIES AND RESIDUE. 
 
 SECT. 1. Constitution and ( 'hts-ification of Legacies, .... 382 
 
 2. Interest of the Legatee, ...... 391 
 
 3. Residuary Interests. ....... 400 
 
 CHAPTER XXIII. 
 
 OF MARRIAGE-CONTRACT PROVISIONS. 
 
 1. Form and effect of such Provisions, ..... 406 
 
 "J. Antenuptial Provisions — how secured. .... 415 
 
 3. Postnuptial Provision-. ...... -Jl':'. 
 
 CHAPTER XXIV. 
 
 OF CHARITABLE BEQUESTS. 
 
 Se< i. 1. Principles of Interpretation, ...... 426 
 
 2. Property of Relij ties, ...... 432 
 
 the Poor, . . . . . . . 438 
 
 CHAPTER XXV. 
 
 0) : EGACIES 
 
 ■tion of Legacies by Provisions, .... 441 
 
 2. Satisfaction of Onerous Provisions h] L . . .117 
 
 ; ion of Di . . . . . 453 
 
 4. Satisfactioi Legacies and Provisions by Advances, 458 
 
 < HAPTEB XXVI. 
 
 i.l •. V IKS wiietiii 'I [ON, 
 
 CHAPTER XXVII. 
 
 OF El. l.i l [ON— OB Ali'lMi-A ll. ■• BATE. 
 
 1 I ■nt. . . . . 476 
 
 2. Subject of Election, .... 17* 
 
 I l'i in , • Equitable < lompi nsation, . 480
 
 x CONTENTS. 
 
 1'AOE 
 
 CHAPTER XXVIII. 
 
 DoC'TKINE OF LAPSE. ........ 485 
 
 CHAPTER XXIX. 
 
 i if WILLS AND TESTAMENTARY DISPOSITIONS OF HE1UTABLE ESTATE AND OF SUBSTITUTIONS. 
 
 Sect. 1. Generalities, ........ 491 
 
 2. Heir-substitute, whether taking as Disponeu or as Heir of Provision, 495 
 
 3. How a Substitution may be Evacuated, .... 498 
 
 CHAPTER XXX. 
 
 OF DEVOLVING CLAUSES, AND CLAUSES OF RETURN. 
 
 Sect. 1. Clauses of Devolution, ...... 501 
 
 2. Clauses of Return, ....... 504 
 
 CHAPTER XXXI. 
 
 OF ENTAILS. 
 
 Sect. 1. Entailer's Title ; Subject and Form of the Entail, . . .506 
 
 2. What constitutes a Tailzied Destination, .... 513 
 
 3. Of Imperfect Entails. ....... 522 
 
 CHAPTER XXXII. 
 
 OF THE STATUTORY REQUISITES OF A STRICT ENTAIL. 
 
 Sect. 1. Of the three Statutory Prohibitions, ..... 534 
 
 2. Of the Irritant and Resolutive Clauses, .... 547 
 
 3. Of the other Solemnities required by the Act 1685, . . . 555 
 
 4. Consequences of incurring an Irritancy, .... 564 
 
 CHAPTER XXXIII. 
 
 OF THE ESTATE OF AN HEIR OF ENTAIL. 
 
 Sect. 1. Restraints on the Power of the Heir as Proprietor, . . 567 
 
 2. Liability of the Estate for Entailer's Debts and Real Burdens, . 574 
 
 CHAPTER XXXIV. 
 
 OF CONDITIONS IN WILLS AND TESTAMENTARY DISPOSITIONS, . . . 584 
 
 CHAPTER XXXV. 
 
 OF DESTINATIONS TO HEIRS OF PROVISION. 
 
 Sect. 1. Technical meaning of words descriptive of Heirs, . . 592 
 
 2. "Words of Destination how far controlled by the Context, . 602 
 
 CHAPTER XXXVI. 
 
 OF THE SERVICE OR ENTRY OF HEIRS OF PROVISION. 
 
 Sect. 1. Entry of Heirs, in what cases requisite, and to what ancestor, 619 
 
 2. Of the rule that the Entry must be in the proper character, . 624 
 
 3. Of the Right of a Contingent or subsequently born Heir-Substitute to 
 
 divest an entered Heir, ...... 627 
 
 4. Effect of Possession of Double Titles, 629
 
 CONTENTS. XI 
 
 PAGE 
 
 CHAPTER XXXVII. 
 
 Of conditional institution in moveable and mined succession, . . 631 
 
 CHAPTER XXXVIII. 
 
 DISPOSITIONS AND BEQUESTS TO CHILDREN. 
 
 Sect. 1. Description of Object^ ami Mode of Succession, . . . 639 
 
 2. Rule that Fee cannot vest in children nascituri, . . . 645 
 
 3. What class of Objects in relation to Period of Birth are comprehended, 651 
 
 4. Conditional Institution of Children, and whether Right contingent on 
 
 Survivance of Period of Distribution, .... 658 
 
 5. Destination over, as referring to Death without having, or without 
 
 leaving Children, ....... 661 
 
 6. Provisions to Younger Children. ..... 663 
 
 CHAPTER XXXIX. 
 
 nF THE IMPLIED CONDITION SI INSTITUTUS SINE LIBERIS DECESSEEIT. 
 
 Sect. 1. Application of the Condition, ...... 670 
 
 2. Exclusion of the application of the Condition, . . . 672 
 
 3. Extension of the Condition to remoter Descendants, . . . 673 
 
 4. Whether issue take as Survivors or only as Original Legatees, . 674 
 
 CHAPTER XL. 
 
 OF SURVIVORSHIP. 
 
 Sect. 1. Winn a Destination to Survivors is implied, .... 675 
 
 2. In what cases Issue take as Survivors, ..... 681 
 
 3. Words of Survivorship to what period referable, . . . 687 
 
 CHAPTEB XLI. 
 
 BEQUESTS TO HEIB8, NEXT OF KIN, EX [SSUE, FAMILY. AND RELATIONS. 
 
 Sect. 1. General Designativi Destinations, ..... 703 
 
 2. Ascertainment of Objects under a General Designation of Persons, . 715 
 
 3. Special Designative Destinations. ..... 721 
 
 VOLUME II. 
 
 CHAPTEB XLII. 
 
 DI8F0S1 no i -. v, in. nil i. \ ESI ED OB C0NTINGEN1 
 
 1 ■ ilities, . . . . . . . I 
 
 2 Mania • Oontracl Pi i Pn i d to Children natcituri, . I 
 
 I. ibl( al thi ■ Epilation of Liferenl [nteresl 8 
 
 i I t to p iymi ni oi Annuiti . |o
 
 Xll CONTENTS. 
 
 CHAPTER XLIII. 
 
 VESTING UNDER CONTINGENT DESTINATIONS. 
 
 Sect, L. Legacies containing Destinations to Survivors or to Conditional 
 
 Institutes, ........ 15 
 
 2. Legacies payable at the Majority or Marriage of the Legatee, .' 20 
 
 3. Legacies given subject to powers of Disposal or Distribution, . . 28 
 
 4. Deferred Liferents and Annuities, ..... 29 
 
 CHAPTER XLIV. 
 
 OF TRUSTS, AND THE ESTATE OF A BENEFICIARY. 
 
 Sect. 1. Definition and Classification of Trusts, . . . .32 
 
 2. Estate of the Trustee, ....... 36 
 
 3. Estate of the Beneficiary. ...... 40 
 
 CHAPTER XLV. 
 Doctrine of radical right, ...... 47 
 
 CHAPTER XLVI. 
 Of THE separate estate of a married woman, ... 57 
 
 CHAPTER XLVII. 
 
 OF TRffSTS CONSTITUTED BY DECLARATION OR ACKNOWLEDGMENT. 
 
 Sect. 1. To what Transactions the Statute applies. .... 71 
 
 2. Evidence required by the Statute, ..... 80 
 
 3. Evidence in questions with Third Parties, .... 85 
 
 CHAPTER XL VIII. 
 
 OF RESULTING TRUSTS UNDER WILLS AND DISPOSITIONS. 
 
 Sect. 1. Lapsed Succession, ....... 88 
 
 2. Resulting Interests under Charitable Trusts, .... 100 
 
 3. Resulting Interests under ex facie Absolute Conveyances, . . 106 
 
 CHAPTER XLIX. 
 
 OF CONSTRUCTIVE TRUSTS, ....... 112 
 
 CHAPTER L. 
 
 TRANSMISSION OF BENEFICIAL INTERESTS BY DEED OR OPERATION OF LAW. 
 
 Sect. 1. Assignment and Disposition inter vivos, .... 122 
 
 2. Testamentary Disposition, ...... 127 
 
 3. Descent to Heirs and Executors, ..... 128 
 
 4. Diligence against the Trust-Estate, . . . . .130 
 
 CHAPTER LI. 
 Completion of the beneficiary's title to the estate, . . . 134
 
 CONTENTS. 
 
 < HAPTER LIE 
 
 OF THE OFFICE OF AN EXECUTOR. 
 
 Sect. 1. Executors-Nominate, ....... 142 
 
 2. Executors-Dative. ....... 144 
 
 3. Executors-Creditors, . . . . . . .151 
 
 4. Executors ad omissa, mak appreciata, and ad rum exeeuta, . . 156 
 
 CHAPTER LIII. 
 
 Ok CONFIRMATION, . . . . . . . .159 
 
 CHAPTER LIV. 
 
 OF THE OFFICE OF A TRUSTEE. 
 
 Sect. 1. Disability to enter into Personal Transactions, . . . 169 
 
 2. Office is joint, and transmits to Survivors, . . . i t • » 
 
 3. Trustees act by a Majority, . . . . . .185 
 
 i. Office at Common Law cannot be Delegated, .... 190 
 
 I IIAPTER LV. 
 
 ACCEPTANCE AND DISCLAIMER OF THE OFFK'K OF TRUSTEE. 
 
 SE( r. 1. Of Acceptance . . . . . . . .194 
 
 2. or Disclaimer, ........ 202 
 
 CHAPTER LV1. 
 
 ASSUMPTION. NEW APPOINTMENT, AND RESIGNATION OF TRUSTEES. 
 
 Sect. 1. Assumption and Nomination of New Trustees, . . . 211 
 
 2. Appointment of Trustees by the Court, .... 219 
 
 3. Resignation of Tru ...... 226 
 
 CHAPTER I. VII. 
 COMPLI i k. .... *_':;! 
 
 CHAPTEE I. VIII. 
 M'In i p. i in-, ni i h i-ii i-i - 1 ee, ..... 240 
 
 CHAPTEB I.I X 
 
 OF OB PECIAl POWERS CO TRUSTEES, . . . . . 250 
 
 i ii M'TKi; LX. 
 
 '" I HBP08AL, ....... 26 7 
 
 I HAPTEF, I. XI. 
 
 "i APPOINTING PROVISION 
 
 ' . . . .280 
 
 Entail. .....
 
 Xiv CONTENTS. 
 
 CHAPTER LX1I. 
 Of powers of division, ..... 293 
 
 CHAPTER LXIII. 
 
 ADMINISTRATION OF TRUSTS OF PERSONAL AND GENERAL ESTATES. 
 
 Sect. 1. Realisation and Management of the Estate, .... 301 
 
 2. Safe Custody of the Estate, . . . . . .312 
 
 3. Payment of Debts and Legacies. . . . . .317 
 
 4. Of Investments, ....... 320 
 
 CHAPTER LXIV. 
 
 ADMINISTRATION OF TRUSTS FOR SALE. 
 
 Sect. 1. Execution of Trusts for Sale, ...... 330 
 
 2. Power of Trustee to grant Titles, and to Discharge Purchasers, . 338 
 
 3. Purchases of the Trust-Estate by the Trustee, . . . 345 
 
 CHAPTER LXV. 
 
 ADMINISTRATION OF TRUSTS FOR THE EXECUTION OF DEEDS OF ENTAIL. 
 
 Sect. 1. Execution of the Trust, ..... 363 
 
 2. Rights to Rents and Accumulations of Interest, . . . 375 
 
 CHAPTER LXVI. . 
 
 ADMINISTRATION OF CHARITABLE AND QUASI-CORPORATE TRUSTS. 
 
 Sect. 1. Duties of Trustees of Charities, .... 384 
 
 2. Powers of the Trustees, ...... 388 
 
 3. Liabilities and Remedial Jurisdiction of the Court, . . . 396 
 
 4. Appointment of New Trustees, ..... 402 
 
 CHAPTER LXVII. 
 Administration of trusts for payment of debts. . . . 408 
 
 CHAPTER LXVII1. 
 Extinction of the trust and discharge of the trustee, . . 425 
 
 CHAPTER LXIX. 
 
 Anticipation of the period of payment, ..... 435 
 
 CHAPTER LXX. 
 
 Appointment of judicial factors upon trust-estates, . . . 441 
 
 CHAPTER LXXI. 
 
 of passive representation, or the liabilities of heirs. 
 
 Sect. 1. Passive Representation of Heirs, Executors, and Legatees, . . 451 
 
 2. Of Apparent-Heirs three years in possession. .... 401 
 
 3. Preference of the Ancestor's Creditors, .... 464 
 
 4. Irregular Passive Titles, ...... 469 
 
 5. Discussion of Heirs and Right of Relief, .... 478
 
 n iXTENTS. x\ 
 
 CHAPTER LXXII. 
 
 ORDER OF LIABILITY OF THE REAL AND PERSONAL ESTATES. 
 
 Sect. 1. Relief between Heirs and Personal Representatives, . . . 475 
 2. Real and Personal Liabilities distinguished, .... 479 
 8, Liabilities of the different classes of Real and Personal Representatives, 488 
 4. Effect of Testamentary Provisions charging <>r dislmnloiiiiig particu- 
 lar estates, ....... 490 
 
 CHAPTER LXXII I. 
 Liabilities tN< ubbed by tbustees and bxecutobs tocbeditobs ofthe estate, 497 
 
 CHAPTER LXXIV. 
 
 LIABII.i i [ES I'-' DBBED BY l RUSTEES AND EXECUTOBS TO THEIR CONSTITUENTS. 
 
 1. Liability for Personal Negligence, ..... 518 
 
 2. Liability in relation i" Payment of Interest, .... 523 
 
 3. Liability for Co-Trustees, and Limitation of Liability, . . 529 
 
 4. Liability for Factors, ....... 540 
 
 CHAPTER LXXV. 
 
 EXPENSES OF ADMINISTRATION AND IND] I [FIl HO EES AND EXECUTOBS. 
 
 1. Liability for Expenses of Administration, .... 545 
 
 2. Liability for Expenses of Litigation, ..... 555 
 
 CHAPTER LXXVI. 
 
 Or ACTIONS BY BENEFICIABIES, AND DEFENCES THEBETO, . . . 566 
 
 CHAPTER I. XXVII. 
 
 lKTNG INSTBUCTIONS FOB THE PBEPABA.TION OF WILLS, 
 
 <$tyU£. 
 
 i I • i IMENO IBY DISPOSITIONS. 
 
 i General Settlement under burden of legacies, .... 584 
 
 .,1 Settlement in favour of Joint Legal . . -".so 
 
 No. ::. Mutual General Settlement, ...... 587 
 
 N... l. I., ading form oi Family S( ttlement, .... 
 Si til, i,,. 'Hi cri ating a Lifi rent Inti rest, . . . . 
 
 No. 6. Settlement providing for Mi gementofT tatoi Business, . 
 
 No. 7. Bettli mi at of a Landed Proprietor, .... 
 
 No. 8. Mutual Tru il Bettli tnent, ..... 
 
 No, 9. Si ill' mi at a i tination of E tati to < lhai itabli I ' i 
 
 ■ ion for purpoBi a to be afti i - ard di clan d, 
 
 698 
 600 
 606 
 611 
 616 
 618
 
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 - 7 - :; :.: ::n=Liss::- . .651 
 
 iarse and Baiifieatian bv Beneficiarl- 660 
 
 |Vpprndix. 
 
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 666 
 
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 ' .- .' 114 
 
 Tstjtz . .68
 
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 INLEX OF CASE- CITED. 
 
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 292,297 
 
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 XV1U 
 
 INDEX OF CASES CITED. 
 
 Aitkin v. Glasgow Road Trs., 1829, ii, 501. 
 
 v. Graham, L845, ii. 423-4. 
 
 v. Reid, 1829, ii. 499. 
 Aitkens v. On-. 1802, i, 171. 
 Alexander, i, 26; ii. 381. 
 
 v. Alexander, L830, i. 407. 
 
 v. Alexander, 1843, i. 387, 049. 
 
 ?. Alexander, 1848. i, 726. 
 
 v. Bennett's Trs., 1829, i, 41, 478. 
 
 v. Clark, 1696, i, 65. 
 
 v. Gordon, 1849, i. 319. 
 Alison v. Alison, 1771, ii, 71. 
 
 v. Catley, 1839. i, 15. 
 
 v. Earl of Dundonald's Trs.. 1793, 
 ii. 241, 818. 459. 
 
 v. Fairholme, 1765, ii, 311, 344. 
 
 v. Scullay's Crs., 1802. ii, 161. 
 Allan v. Allan, 1763, i, 124. 
 
 v. Allan's Trs., 1851, ii. 577. 
 
 v. Callander, 1762, i. 125. 
 
 v. Fleming, 1845, i, 301. 493, 632. 
 
 v. Glasgow's Trs., 1835, ii, 251, 203, 
 392-8. 
 
 v. Glasgow's Trs., 1842, i, 580; ii, 87, 
 100. 
 
 v. Glasgow, 1846, i. 266-8. 
 
 v. Kerr's Trs., 1853. ii, 514. 
 
 v. Mansfield, 1834. ii, 336. 
 
 v. M'Crae, 1792. ii, 423, 435. 
 
 v. Robertson, 1781, ii, 41. 
 
 v. Sawers, 142, ii, 118. 
 
 v. Sinclair, 1776, i, 267. 
 Allen v. Callow, i, 472. 
 
 v. Maddock, i, 246. 
 
 v. Robertson, 1855, i, 46. 
 Allardice v. Allardice, 1795, i, 646. 
 
 v. Latour, 1845, ii, 5. 
 
 v. Onslow, i, 11. 
 
 v. Smart, 1722. i, 721. 
 Allcock, 1855, ii, 445. 
 
 Alston v. Marshall, 1833, i, 401, 405 ; ii, 90. 
 Altham, i, 381. 
 Alves v. Alves, 1861, i, 84, 267, 404 ; ii, 100, 
 
 271-9, 677. 
 Amphlett v. Parke, i, 402 ; ii, 97. 
 Anderson, 1855, ii, 245. 
 
 1857, ii, 245. 
 
 v. Anderson, 1677, i, 76. 
 
 v. Anderson, 1729, i, 259, 322. 
 
 v. Anderson, 1832, i, 626. 
 
 v. Anderson, 1734, i, 333, 641. 
 
 v. Anderson, 1743, i, 140. 
 
 v. Anderson, 1832, i, 497. 
 
 v. Bank of Scotland, 1842, ii, 134, 359. 
 
 v. Borthwick, 1827, i, 47. 
 
 v. Bruce, 1680, i, 412. 
 
 v. Buchanan, 1837, ii. 51, 63, 250, 270, 
 445. 
 
 v. Fleming, 1833, i, 180. 
 
 v. Ford, 1844, i, 185. 
 
 v. Garroway, 1837, i, 258, 426. 
 
 v. Gill, 1858, i, 236. 
 
 v. Kerr, 1866, ii, 184. 
 
 v. Lauder, 1760, ii, 171, 320. 
 
 v. M'Culloch, 1846. ii. 303. 
 
 v. M'Dowal, 1865, ii, 506. 
 
 Anderson v. M'Nair & Brand, 1859, ii, 417. 
 
 V. Miller, 1799, i, 125. 
 
 v. Mortimer, 1682, i, 119. 
 
 v. Pitcairn, 1839. ii. 57. 
 
 v. Robertson, 1807, i. 249. 
 
 v. Shaw, 1849, ii, 335. 
 
 v. Small, 1838, ii, 820-8. 520-8. 
 
 v. Starkio & Co., 1813, ii, 416. 
 
 v. Stewart, 1814, ii, 30, 335, 346, 351. 
 
 v. Stewart, 1631, ii. 152. 
 
 v. Wishart, 1715. i, 83, 502. 
 Andrew v. Wrigley, ii, 343. 
 
 v. Trinity Hall, ii, 209. 
 Andrews v. Lawrie, 1849, i, 648 ; ii, 138. 
 
 v. Sawer, 1836, i, 119, 137, 482. 
 Angas, ii, 513. 
 Angus v. Monylaws. 1793, i, 166. 
 
 v. Angus, 1825, i, 210-6 ; ii, 99. 
 Angerstein v. Martin, ii, 377-9. 
 Annand v. Chessels, 1775, ii, 60. 
 
 v. Scott, ii, 62. 
 Annandale v. Maeniven, 1847, ii, 487. 
 
 v. M'Niven, 1867, ii, 141, 483. 
 
 v. Scott, 1711, i, 86. 
 
 M. of v. Countess of Hopetoun, 1739, 
 ii, 464. 
 
 Marchioness of v. Marq. of Annandale, 
 1755, ii, 376. 
 Anstruther v. Anstruthcr, 1823, i, 411, 286. 
 
 v. Anstruther, 1836, i, 112, 133, 145-8. 
 
 v. Anstruther, 1860, i, 548, 554. 
 
 v. Chalmers, i, 39. 
 
 v. East of Fife Ry. Co., 1852, ii, 247, 
 571. 
 
 v. Lock-hart, 1827, ii, 457, 484. 
 Arbroath Bank v. Stevenson, 1847, ii, 256 
 
 394-7. 
 Arbuthnot v. Arbuthnot, 1766, 1, 337. 
 Arbuthnott v. Arbuthnott, 1758, ii, 526. 
 
 v. Arbuthnott, 1773, ii, 480. 
 
 v. Arbuthnott, 1792, i, 480, 512. 
 
 v. Arbuthnott, 1816, i, 405, 489 ; ii, 23. 
 
 v. Arbuthnott, 1865, i, 543. 
 
 v. Arbuthnott's Trs., 1805, i, 86, 226. 
 Arkwright v. Billinge, 1819, i, 186. 
 Armitage v. Williams, i, 652. 
 Armstrong, ii, 510. 
 
 Arniston v. Ballenden, 1685. ii, 465-8, 470. 
 Arnold v. Arnold, i, 815, 396. 
 Arnott v. Gairdon, 1720, i, 164. 
 
 v. Stewart, 1846, i, 6, 14. 
 Arrol v. Mongomerie, 1826, i, 297. 
 
 v. Wight, 1810, ii, 423. 
 Arthur, 1846, ii, 331. 
 
 Ashburton, Lord, v. Baillie, 1811, i, 58, 60, 
 427. 
 
 v. Macguire, i, 260. 
 Ashby v. Palmer, i, 224. 
 Athole, Duke of v. Anderson, 1831, ii, 127. 
 Atkinson v. Learmonth, 1808, ii, 451. 
 Atlee v. Hook, i, 278. 
 Att.-Gen. v. Alford, ii, 523. 
 
 v. Andrews, ii, 246, 570. 
 
 v. Arnold, ii, 105. 
 
 v. Beverley, ii, 105. 
 
 v. Count Blucher, i, 11.
 
 INDEX 01- CASES ( 
 
 XIX 
 
 tt.-Gen. v '■ Hon of Bristol, ii, 101, 
 
 105. 
 
 v. Brooke, ii, 392. 
 
 v. Cains College, ii, 105. 
 
 v. Master of Catherine Hall, Cam- 
 bridge, ii, 105. 
 
 v. Christ's Hospital, ii. 105. 
 
 v. E. of Clarendon, ii. 172, 392. 
 
 v. Coopers' Co.. ii, 105. 
 
 v. Cordwainers' Co., ii. 101. 
 
 v. Mayor of Coventry, ii. 100. 
 
 v. Dikie, ii, 392. 
 
 v. Doyley, i. 727. 
 
 v. Draper's Co., ii. 105. 
 
 v. Fishmongers' Co., ii. 101. 
 
 v. Floyer, ii, 212. 
 
 v. Haberdashers' Co., ii. 105. 
 
 v. Hawick, ii, 105. 
 
 v. Halford, i. 2! 
 
 v. Johnson, ii. 105. 
 
 v. Jesus College, ii, 105. 
 
 v. Lepiue. 1818, ii, 399. 
 
 v. Merchants' Venturer's Society, ii, 
 105. 
 
 v. Mill. i. 25. 
 
 v. Minshnll, i, 131 ; ii, 45. 
 
 v. Morgan, ii. 392. 
 
 v. Corp. of Norwich, ii, 217. 
 
 v. Ponldon, i. 306. 
 
 v. Simcox, i. 219. 
 
 v. Smythies, ii, 101, 105. 
 
 v. Solby, ii. 524. 
 
 v. Guardians of Southampton, ii, 247. 
 mthgate, ii 
 
 v. < Sorpor , iii Molton, ii, 105. 
 
 v. Sparks, ii. ; 
 
 v. Mayor d, ii. 385, 392. 
 
 i v. Trinitv Colli • . ii. 105. 
 
 v. Wilson, ii, L05. 
 
 v. Karl of Winchelsea, i, 431. 
 
 v. 1>( an oi Windsor, ii, 105. 
 Auchinblane, 1841, i, 446, 450. 
 Auchim 
 Aul I 
 
 Ayr Acadi my, 18 
 Ayr, Mag . of v. M'Adam, 1780, ii. 4G8. 
 
 128; ii. 92. 
 Ayton 171. 
 
 Aytoun ' \\toiui. 1784, ii, 201. 
 
 Baton on, 1810, ii, 62. 
 
 •!.-. i. 222. 
 Bagget v. Meux, i. 295; ii. 66. 
 Bagshaw v. Wii 
 
 v. Sinclair, L786, i, 200. 
 
 298. 
 Bailey v. Gould, ii. 818, 521. 
 Baillie, ii. 558. 
 
 v. Audi rson, 1844, ii. 1 19. 
 v. Baillie, i, 848 
 itbbert, L6i 
 michaeL 17.; 1. i. 647. 
 
 ii, 268. 
 
 Baillie v. Lockhart, 1855, i, 203. 
 v. Mackenzie, 1856, ii. 1 74. 
 v. Morrison, 1822, i, 434 ; ii, 173. 
 v. Seton, 1853. i, 208, 650 ; ii, 3, 29, 
 
 569. 
 v. Somerville, 1677, i, 354. 
 v. Tennant, 1766, i. 605-9, 704. 
 Baillie's Trs. v. Crosse. 1832, i, 227. 
 Bain, 1846, ii, 222. 
 
 v. Black, 1849, ii, 388. 
 v. Reeves, 1861, ii, 473, 478, 691. 
 v. Shand, 1833. i, 47. 
 Baine v. Craig, 1848, ii, 127, 271-3, 631. 
 Bainbridge v. Blair, ii. 555. 
 Baird, ii, 519. 
 
 \. Baird, 1854, i, 573. 
 
 v. Mags, of Dundee, 1865, ii, 172, 387, 
 
 576. 
 V. Harvey's Trs., i, 274. 
 v. Jaap, 1856, i. 245, 360, 465, 470-3. 
 v. Mitchell, 1854, i, 53. 
 v. Morrison, 1693. ii. 278. 
 
 . .Will. 1835. ii. 332. 
 v. E. of Rosebery, 1766, ii, 454. 
 Baker v. Turner, i, 398. 
 Bald v. Globe Insurance Co., 1847. ii, 339. 
 Balderstone v. Fulton, 1857, i, 275, 296 ; 
 
 ii. 01-7, 438. 
 Baldwin v. Rogers, i, 654. 
 Balfour's Trs. v. Edinr. and Northern Ry. 
 Co., 1848, ii. 324. 
 v. Balfour. 1864. i, 656, 663. 
 v. Balfour's Trs.. i. 453-6. 
 V. Balfour, 18G4. i, 697 ; ii. 19. 
 v. Scott, 1793, i, 142, 146. 
 v. Kerr, 1856. ii, 355. 
 Ball v. Coutts, 1806, i. 604. 
 t. Ball, 1827. i, 88. 
 v. Harris, ii. 343. 
 Ballenden, Lord v. Murray, 1685, ii, 466. 
 Bajlantyne v. Mags, of Ayr. 1838, i, 247. 
 BaUantine v. Mags, of Ayr. 1838, i, 492; 
 
 ii, 391. 
 Ballantyne v. Dunlop, 1814, i, 693-4. 
 
 v. Scott, 1687, ii, 18. 
 BallingaU a, 1808. i, 119. 
 
 L68S, i, 88. 
 Balmain v. Glenfarquhar, L719, i. 1 12. 155. 
 Lady v. Graham, 1721. i, 127, 134. 
 v. Graham, 1721, i, 134. 
 Balmerino's Ore. v. Lady Couper, 1071, 
 i. 166, 17!. 
 
 i v. Balmerino's Crs., 1746, i, 389. 
 1 : ham, ii, 651. 
 
 1 as, IT*''"', ii. 165. 
 
 Bankier v. Robi rl on, L865, ii, 622. 
 Bannatyne v. I.>>\\ rie, i, 68. 
 Bannatj ae v. Bonnar, L688, i, 195. 
 Bannerman v. Ba I 788, i, 60. 
 
 y. Bannerman, L801, 8, 722. 
 
 Ladj .. Bannerman, 1842, ii. 2 
 Baptisl Churches v. Tiv I i 291 ; 
 
 277. 
 
 .
 
 XX 
 
 INDEX OF CASES CITED. 
 
 Barbour v. M'Minn, 1826, i, 295 ; ii, 56, 132, 
 421. 
 
 v. Kelvie, 1824, ii, 472. 
 
 v. Wight, 1811, ii, 267. 
 Barclay, 1715, i, 95, 512. 
 
 v. Adair, 1821, i, 550. 
 
 v. Fairly, 1849, i, 257 ; ii, 107. 
 
 v. Griffiths, 1830. i. 248, 265-6, 492. 
 
 v. Scott, 1675, i, 87, 106-8. 
 Bardswell v. Bardswell, i, 320-4. 
 Barford v. Street, ii, 272. 
 Barker v. Rayner, i, 261. 
 Baruasconi v. Atkinson, i, 380. 
 Barnet v. Duncan, 1831, ii, 311. 
 Barnes v. Grant, i, 320. 
 
 v. Patch, i, 313. 
 Barns v. Barns' Trs., 1857, ii, 574. 
 Barrett v. Duncan, 1831, ii, 344. 
 
 v. White, i, 302. 
 Barron v. National Bank, 1852, ii, 551. 
 Barrow v. Barrow, ii, 58. 
 
 v. Wadkin, i, 287. 
 Barry v. Thorburn, 1847, ii,. 446-9. 
 Barstow v. Cook, 1862, i, 58 ; ii, 427. 
 
 v. Inglis, 1857, ii, 107, 303. 
 
 v. Kilvington, i, 247. 
 
 v. Stewart, 1858, i, 623 ; ii, 138. 
 Bartlett v. Buchanan, 1811, i, 87, 107, 226. 
 Barton v. Brisco, i, 295-6. 
 Barwick, 1855, ii, 445. 
 Battley v. Small, 1815, i, 180, 497. 
 Baugh v. Price, ii, 358. 
 
 v. Murray, 1834, ii, 496. 
 Baxter and Mitchell v. Wood, 1864, i, 399 ; 
 
 ii, 551. 
 Baylis v. Attorney-General, i, 379. 
 Bayne v. E. of Sutherland, 1750, ii, 244. 
 Bazett & Co. v. Heugh's Trs., 1826, ii, 569. 
 Beaton v. Mackenzie, 1737, ii, 201. 
 Beattie v. Johnstone, 1849, ii, 262. 
 
 v. Thomson, 1861, i, 266, 465, 470. 
 Beattie's Trs. v. Cooper's Trs., 1862, i, 451, 
 
 655, 661, 701 ; ii, 5, 329, 160. 
 Beatton v. Gaudie, 1832, i, 65, 78, 93. 
 Beaumont v. Fell, i, 364, 380. 
 Beckford v. Tobin, i, 394. 
 Bective, Earl of v. Hodgson, i, 404. 
 Bedford v. L. Balmerino, 1662, ii. 551. 
 Bee v. Wallace's Exrs., 1745, ii, 114-6, 172. 
 Beer v. Beer, i, 203. 
 Beg v. Lapraik, 1737, i, 157. 
 Begbie v. Begbie, 1706, i, 77. 
 
 v. Boyd, 1837, i, 184. 
 Begg v. Arnot, 1741, i, 72. 
 Beizley v. Napier, 1739, i, 139; ii, 96. 
 Belfrage v. Davidson's Trs., 1862, i, 335, 
 
 489. 
 Bell v. Brodie, 1847, i, 388 ; ii, 486. 
 
 v. Campbell, 1781, ii, 469. 
 
 v. Carruthers, 1749, i, 625. 
 
 v. Cheape, 1845, i, 487, 711 ; ii, 27, 
 123. 
 
 v. Gordon, 1838, ii, 331. 
 
 v. Halliday, 1825, i, 87, 226. 
 
 v. Izat's Trs., 1854, ii, 550. 
 
 v. Lothian, 1773, ii. 468. 
 
 Bell v. Mason, 1749, ii, 21. 
 
 v. Maxwell, 1828, ii, 55. 
 
 v. Morton, 1831, ii, 416. 
 
 v. Willison, 1831, ii, 127, 155, 160, 302. 
 
 v. Wright, 1842, ii, 564. 
 Bellamy and Ors., 1834, ii, 248. 
 Bellasis v. Uthwatt, i, 452. 
 Belsb.es v. Belsbes, 1677, ii, 8. 
 
 v. Murray, 1752, i, 444, 471. 
 Belshier v. Moffat, 1779, i, 84, 87, 97, 107, 
 Bempde v. Johnstone, i, 3. 
 Bengaugh v. Walker, i, 452. 
 Benn v. Dixon, ii, 324. 
 Bennett, ii, 358. 
 
 Bennet v. Bennet's Trs., 1829, i, 136, 475. 
 Benson v. Benson, ii, 66. 
 Bentley v. Mackay, ii, 80. 
 Benyon v. Benyon, i, 469. 
 Berford v. Brown, 1832, i, 221 ; ii, 127. 
 Berkeley v. Pulling, i, 642. 
 Bernard v. Marishall, i, 320. 
 Berry v. Downie, 1839, i, 460. 
 
 v. Morse, i, 155. 
 Berry's Trs. v. Cox's Trs., 1850, i, 399, 403, 
 
 490. 
 Bertram v. Vere, 1706, i, 178. 
 Berwick, Mayor of v. Murray, ii, 523. 
 Berwickshire, Commissrs. of v. Craw, 1678, 
 
 ii, 102. 
 Best v. Stonehewer, i, 723. 
 Bethune v. Cameron, 1843, i, 432. 
 Beveridge v. Wilson, 1829, ii, 331. 
 Bez v. Imray, ii, 428. 
 Bibb v. Thomas, i, 263. 
 Biggar's Trs. v. Biggar, 1858, i, 587, 654 ; 
 
 ii, 5, 569. 
 Binning v. Binning, 1767, i, 682. 
 Biuny v. Binny, 1820, i, 199, 574. 
 Birch v. Sherrat, i, 400. 
 
 v. Wade, i, 320. 
 Bird v. Hunsden, i, 331. 
 Birkhill's Crs. v. Ay ton's Heirs, 1742, i, 700. 
 Birnies v. Laird of Polmais, 1678, i, 178. 
 Birtwhistle v. Vardill, i, 21. 
 Bisset v. Walker, 1799, i, 254, 636. 
 Black v. Black, 1787, i, 162. 
 
 v. Black, 1795, ii, 107, 121, 123. 
 
 v. Brown, 1816, i, 162. 
 
 v. Lorimer, 1821, ii, 126, 185. 
 
 v. Scott, 1820, ii, 136. 
 
 v. Valentine, 1844, i, 490, 653, 672, 707. 
 
 v. Wallace. 1739, ii, 472. 
 
 v. Watson, 1841, i, 181, 198, 478. 
 Black's Trs. v. Miller, 1836, i, 427 ; ii, 100, 
 
 402. 
 Blackburn v. Lindley, 1868, ii, 246. 
 Blackett v. Gilchrist, 1832, i, 32, 47; ii, 315, 
 
 520. 
 Blackwood, ii, 6. 
 
 v. Brewster, 1862, ii, 140. 
 
 v. Darner, i, 247. 
 
 v. Dykes, 1833, i, 139, 338, 401, 482, 
 493; ii, 21,90. 
 
 v. Milne, i, 282. 
 
 v. Blackwood's Trs., 1833, i, 587, 657; 
 ii, 92.
 
 INDEX OF CASES CITED. 
 
 XXI 
 
 Blaikie v. Farquharson. 1849, i, 101. 205. 
 Blaiu v. Paterson, 1836, ii, 199, 202, 212, 
 
 320-6, 520-8, 533-8. 
 Blair, 1751, i, '.'7. 
 
 v. Allan, 1858, i, 292. 
 
 v. Anderson, 1663, ii, 474. 
 
 v. Balfour, 1745. ii, 84. 
 
 v. Blair, 1831. i. 316. 
 
 v. Blair. 1849, i, 158, 247, 323, 379, 
 
 704-11. 
 v. Burns. 1829, ii, 566. 
 v. Hamilton. 1714. i, 425. 
 v. Horn, 1858, ii, 422. 
 v. Lyon, 1739, i, 596-9, 615. 
 v. Murray, 1843. ii, 525-7. 
 v. Ramsay, 1735, ii, 180. 
 v. Stewart. 1 733, i, 97. 
 v. Tvtk-r. 1855, i, 388. 
 Blair's Trs., 1852, i, 221. 
 
 v. Blair, 1863, ii, 229, 420. 
 Blake v. Shaw, i, 317. 
 Blakely, ii. 510. 513. 
 Blann v. Bell, i, 404. 
 
 »n v. Blasson, i, 645. 
 Blennerhaaset v. Day, ii, 334. 
 Blisset's Trs. v. Hope's Trs., 1854, ii, 184-8. 
 Blogg v. Johnston, ii, 523. 
 Blonay, Baroness de v. Oswald's Rep., 1863, 
 
 i,55, 135. 
 Blount v. Nicholson, 1783, ii, 452. 
 Blyth v. Chisholm, 1833, ii, 416. 432. 
 Boo v. Anderson, i, 40-9, 282, 321 ; ii, 236. 
 
 v. Anderson, 1862, i, 24, 53, 561. 
 Bog v. Baillie, i, 630 ; ii, 472. 
 ~ v. Hepbnm, 1623, i, 233. 
 Bogle v. Bogle, 1759, i, 171, 273. 
 v. Cochrane, 1850, i, 200. 
 v. M-Lehose, 1815, i, 370. 
 Borton v. Crowther, ii, 575. 
 B m Accord Ins. Co. v. Sorter's Trs., 1850, 
 
 ii. 827, 499, 509, 620, 553. 
 Bonar v. Christian Knowledge Soc, 1846, 
 
 ii,890. 
 Bones v. Morrison. 1S66. ii, I 19. 166. 184. 
 Bontine v. Bontine, 1868, i. 539, 540-4. 
 v. Carrick, 1827, i, 668. 
 v. Graham's Tre, 1827. i, 568. 
 v. Graham, 1837, i. 565, 581. 
 Booker v. Allen, i, 374. 
 
 . v. Cornforth, i. 339. 
 Booth v. Black; 1882, i. 670; ii, 306, 530. 
 Bootle •.. Blnndell, i. 886, 192. 
 
 !.. i. 342. 
 Borthwick, i, 558. 
 
 v. Borthwick, 1720. ii, 285. 
 
 rd, 1868, i, 242, 689, 648, 658. 
 v. Hilson, L888, ii. 466. 
 v. Shepherd, 1882, ii, 416. 
 v. Tradi - Maiden Hospital, 17-7, ii, 
 281. 
 
 all, ii. 827,619,621. 
 Bo ' u ■ . Eoi burgh, L781, i. 684. 
 l> rille v. Brander, ii 
 B dl - I'm wfll.1852, i, 247. WO. 
 v. Mill. r. 1846,1, 11 1. 
 v. Selkrig, 1,811; ii. 76 
 
 Boughton v. Boughton, ii, 496. 
 
 Bow & Ors. v. Patrons of Cowan's Hosp., 
 
 1825, ii, 401. 
 Bower v. E. Marshall, 1682, ii, 471. 
 Bowie v. Bowie, 1809, i, 706 ; ii, 487. 
 Boyack v. Foreman's Trs., 1729, i, 169. 
 Boyd v. Boyd, 1774. i, 74, 582, 594. 
 
 v. Bovd, 1851. i, 293. 403, 456, 465. 
 v. Hamilton, 1805, i, 85, 109. 
 v. Sinclair. 1671, i, 93. 
 Exrs. v. Martin's Exrs., 1847, i, 293. 
 Boyes v. Bedail, i, 38. 
 Boyle v. Crawford, 1822. i, 271. 
 
 v. Earl of Glasgow's Trs., 1858, i, 653 ; 
 ii. 6, 87. 
 Brack v. Hogg, 1831, i, 32, 179, 248, 386 ; 
 
 ii, 487. 
 Bradley v. Hughes, ii, 66. 
 Bradshaw v. Bradshaw, ii, 182. 
 Braid v. Ralston, 1860, i, 613. 
 Braidwood v. Braidwood, 1835, i, 251. 
 Brainier v. Bethune, 1839, i, 545. 
 Brand v. Brand, 1734, i, 312, 391, 492. 
 Brandon v. Robinson, i, 295. 
 Breadalbane, E. of v. Macdonald, 1824, 
 ii, 130,411. 
 M. of v. M. of Chandos, 1837, i, 22. 46, 
 
 120, 130, 145, 155. 
 Trs. v. Breadalbane, 1843, i, 126. 
 Trs. of M. v. M. of Breadalbane, 1846, 
 
 ii, 492. 
 Trs. v. Duchess of Buckingham, 1840, 
 
 i, 121. 
 Trs. v. Duchess of Buckingham, 1842, 
 
 i, 118, 120-6 ; ii, 474, 493. 
 Trs. v. Marchioness of Chandos, 1836, 
 
 i, 39. 129, 148. 
 Trs. v. Pringle, 1841, i, 402-5, 475-8, 
 
 483 ; ii, 94, 141. 
 Trs. v. Pringle, 1854, i, 195, 316, 891. 
 Bremner v. Campbell, 1841, ii, 461. 
 v. Mahon, 1837, ii, 174. 
 v. Offley, i, 320. 
 v. Rigden, i, 38. 
 Brice v. Stokes, ii, 530. 
 Bridge v. Brown, ii, 243. 
 Bridges v. Ewing, 1836, ii, 127. 
 
 v. Fordyce, 1844, i, 201. 
 Bridgenorth, Corporation of v. Collins, i, 305. 
 Briggs v. Chambi rlain, i, 224. 
 v. Penny, i, 320. 
 \. Swan's Exrs., 1854, ii, 576. 
 Bright v. Hntton, ii. 505,550. 
 
 v. North, ii, 446. 
 Brine v. Ferrier, i. 472. 
 ine, L850, i. 272. 
 Brisbane's Trs. v. Crawford, 1826, ii, 39, 333, 
 
 846, 350-3, 360,410. 
 Bri I- ■■. \ . I'ii tow, i, 395. 
 British Lim a Co., 1844, ii, 1 18. 
 
 \. Bn adalbane's Trs.. 1886, i, 62; ii, 
 
 671. 
 \. Martin, L849, ii, 106-9. 
 v. Monteath, 1868, ii. 180 
 v. Lord Reay, I860, ii 461.
 
 XXII 
 
 IX OF CASES CITED. 
 
 British Plate Manufacturers v. Meredith, 
 
 ii. 515. 
 Brook v. , 1818, i. L62. 
 
 i v. Cochrane, 1809, i, 72, 17-1. 
 
 7. Sp< irs, 181-3. i, 564 ; ii, 864. 
 Brocksopp \. 568. 
 
 Bro lie 1857, i, 580. 
 
 \. Barry, i, 22, -175. 
 
 v.Brodie, 1817, i, 844. 
 
 v. Brodie, 1827. i, 17-1. 476; ii. 861, 
 432. 
 
 v. Macfariane's Crs., 18GG, ii. 549. 
 Brodie's Trs. v. Mewl. ray's Trs., 1840, i, 
 
 C55; ii, '281. 297. 
 Brook v. Brook, i, 648. 
 Brookuian v. Hale?, ii, 114. 
 
 \ . Rothschild, ii, 350. 
 Broomfield v. Campbell, 1833, i, 658; ii, 6. 
 
 v. Paterson, ] 784, i, 530, 559. 
 Brough v. Jolly, 1793, ii, 52, 78, 552. 
 Broughton, ii, 443. 
 
 v. Broughton, ii. 174, 553. 
 
 v. Fraser, 1832, i, 94 ; ii, 55, 129. 
 Bnrw Q v. Adam, 1848. ii, 246, 528, 558, 570. 
 
 v. Att.-Gen.. 1852, i, 255. 
 
 t. Bedwell, 1830, i. 272. 
 
 t. Bower. 1770, i. 313. 493. 
 
 v. Brown, 1689, i. 144, 639, 722. 
 
 v. Brown, 1744, i, 19. 
 
 v. Brown, 1841, ii, 218. 
 
 v. Brown. 1782, ii, 478, 489. 
 
 v. Burt, ii, 853-9. 446. 
 
 v. Campbell, 1855, i, 76, 593 ; ii, 4, 21. 
 405. 439. 
 
 v. Cheyne, 1833, ii. 339. 
 
 y. Coventry. 1792, i. 299. 324, 493, 631. 
 
 v. Countess of Dalhousie, 1808, i, 545. 
 
 \. De Tastet, ii. 555. 
 
 v. Fleming, 1850, i, 418; ii, 60-2. 
 
 v. Cirvan, 1820, i, 415. 
 
 v. Henderson, 1805, i, 390, 316. 
 
 v. Henderson, 1852, ii. 463. 
 
 v. Higgs, i. 820. 
 
 v. Johnstone, 1830, i, 285, 482-4; ii, 
 172. 
 
 v. Langley, i. 380. 
 
 v. Macgregor, 1837, i, 529. 
 
 v. Macintyre, 1880, ii, 423. 
 
 ,. .Mill, r"., Exrs., 1853, ii, 302. 
 
 v. Moffat, 1853, ii, 167, 302. 
 
 v. Paterson, i, 413. 
 
 v. Robertson, 1845, ii, 443-5. 
 
 v. Selwyn, i, 881. 
 
 v. Thomson, 1634, i, 124, 171. 
 
 v. Thomson. 1849. ii. 256. 
 Brown'* Trs. v. Hi, K slations, 1762, i, 322, 
 728 ; ii. 298. 
 
 v. Brown, i, 33, 46. 
 Brown's Tutors, 1867, ii, 248. 
 Browne v. Amyott, i, 203. 
 Browning, ii. 5. 
 
 v. Browning's Trs., 1837, i, 417 ; ii, 293. 
 
 v. Hamilton, 1837, ii, 346, 358. 
 
 v. Wall, 1837. ii. 361. 
 Brown! lell, 1831, i, 257. 
 
 Brm 1790. i, 3-7, 12-9, 30 
 
 Bruce v. Bruce, 1799, i, 553. 
 
 v. Bruce, 1826, ii, 455. 
 
 v. Bruce, 1830. i. 527; ii, 454-6, 360-5. 
 
 y. Carstairs, 1773, ii, 285. 
 
 y. Erskinc, 1707, i, 184. 
 
 v. Grant, L839j i, 297; ii, 90. 
 
 v. Hamilton, 1807, i, 9, 273. 
 
 v. Melville, 1677, i, 68. 
 
 v. Moir, 1833, ii, 13. 
 
 v. Rohson, 1834. i, 59 ; ii, 573. 
 
 v. Stewart, 1666, i. 249. 
 Bruce's Trs. v. Hamilton, 1858, i, 584. 
 Brough v. Forbes. 1715, ii, 341. 
 Brudenell v. Elves, ii, 290. 
 Brumbridge v. Brumbridge, ii, 585. 
 Brunsden v. Wooldridge. i, 728. 
 Brunton v. Thomson, 1822, ii, 460. 
 Bryan v. Collins, i, 305. 
 Brvden v. Bryden, 1833. i, 725. 
 Bryson v. Crawford, 1833, i, 246, 434. 
 Buecleuch, Duke of, v. Montgomery, 1819, 
 i, 569. 
 
 y. M. of Tweeddale, 1677, i, 133, 144, 
 156. 
 Buchan, Earl of, 1837, ii, 292. 
 
 v. His Father's Crs., 1757, i, 581-4 ; ii, 
 64. 
 
 y. Erskine. 1842, i, 551-7. 
 Buchan v. Macdonald, 1796, ii, 461. 
 Buchanan v. Angus, 1862, i, 94, 210-9, 327, 
 619; ii. 41. 129, 252. 
 
 y. Buchanan, 1680, i, 589. 
 
 v. Buchanan, 1758. i, 178. 
 
 v. Carrick, 1838. i, 580. 
 
 v. Corbet, Borthwick & Co., 1827, ii, 
 560. 
 
 v. Downie. 1830. i, 691 ; ii, 20. 
 
 v. Mackersey, 1867. ii. 525-7. 
 
 v. Mollison, 1824, i, 460. 
 
 y. M. of Montrose, 1705, i, 93. 
 
 y. Paterson, 1704, i, 263 ; ii, 89. 
 
 v. Royal Bank of Scotland, 1842, ii, 
 167, 472. 
 Buckingham, D. of v. M. of Brcadalbane, 
 1843, i, 477. 
 
 v. Breadalbane's Trs., 1844, ii, 244. 
 
 Duchess of v. Winterbottom, 1851, i, 
 44 ; ii, 58. 
 Buggins v. Yates, i, 324. 
 Bmk v. Patullo. ii, 111, 315, 568, 573. 
 Bulloch v. Smith, 1809, i, 437. 
 Bunten y. Buchanan, 1760, i, 590. 
 Burden v. Smith, 1738, i, 123, 130, 419, 
 
 487; ii, 554. 
 Burgess y. Stanton, 1764, i, 26. 
 Burke y. Jones, ii, 422. 
 
 v. Mackay, 1765, ii, 452. 
 Burnett, 1829, ii, 443. 
 
 v. Burnett, 1701, i, 266. 
 
 v. Burnett. 1854, i, 676-7 ; ii, 489. 
 
 v. Forbes, 1783, ii, 21. 
 
 y. King's College of Aberdeen, 1846 ; 
 ii, 100. 390. 
 
 v. Leper, 1665, ii, 452. 
 
 y. Nasmyth, 1693, ii, 470. 
 Burnie v. Getting, ii, 520.
 
 INDEX OF CASES CITED. 
 
 xxm 
 
 Burns. 1807. ii. 336. 
 
 v. Lawrie's Trs., 1840. ii. 39, 42. 70. 127. 
 
 v. Ogilvie, 1753, i, 60. 
 
 v. Picken, 1758, ii, 463. 
 Burusidos v. Smith. 1829. i, 334-6. 393. 
 
 404. 587; ;:. ; 
 
 Burrell v. Burrell, 1825, i, 219. 458. 
 
 v. Burrell 260. 
 
 v. Delevante, ii 
 Burrowes v. M'Farquhar's Trs.. 1842, i. 638. 
 
 Bartonshaw v. Gilbert, i. '_■ 
 
 Bushby v. Renny, i. 415. 
 
 Butchart v. Butchart, 18-31. ii. 449. 
 
 Bute. M. of v. Wortlev (Eosehaughb 1803, 
 
 i. 503. 614. 
 Boston v. i 308. 520. 
 
 Byera v. Husband's Crs., 1708, ii, 566. 
 
 11 v. Miller, 1828, ii. 449. 364. 
 Ut. Cadde] 
 Caffrey v. Darby, ii, 306, 546. 551. 
 Caimcross v. Lorimer, 1860, i, 438 ; ii. 
 
 v. Meek, 1858. i, 437. 
 Cairnie v. Cairni i, 299, 322, 
 
 644, 728. 
 Cain 113. 
 
 329, i, 460; ii. 94. 
 
 of v. The Earl, 1767, 
 i, 120. 
 E. of v. Lord Berriedale, i, 555. 
 Calder v. Dickson, 1655. ii, 10, 65. 
 v. Gray, 182 
 v. Miller, 1824, i. 292. 
 v. Stewart, 1800. ii. 43, 342. 
 Caldwall v. Caldwall, 1736, i. 389. 
 
 onian and Dumbartonshire Rail. v. 
 Mags, of Helensburgh, 1856, i,283; 
 ii. 324. 
 Callendei - r'a Trs., 1863, i. 282, 
 
 245. 
 ■t . . Lord John Hamilton, 1687, 
 i. 625. 
 Cameron 308, 
 
 621, 564. 
 v. M L82. 
 
 v.Ma 32-4,274; 
 
 .. f< •.,.:. L887 
 v. W L864, i, 186, 270, 
 
 I 360, u 866, 370 I. 
 Campbell, 1708, i, 95. 
 
 L867, ii, . 
 
 v. B 
 
 I I I 11. 
 v. i. 
 
 46. 
 
 i ' 
 
 142. 
 
 Cam. 579. 
 
 mpbell, 1749, ii. 492. 
 
 v. Campbell, 1752, ii. 403. 
 v. Campbell. 1757. i, 354. 
 v. Campbell, 1761, ii, 116. 
 v. Campbell, 1770. i. 407. 602. 
 
 v. Campbell, 1809, ii, 284-7, 326. 
 
 ampbell, 1811. ii, 342. 
 v. Campbell. 1815, i, 583. 
 v. Campbell, 1817, ii. 495. 
 v. Campbell. 1830. ii. 
 
 I 
 i 
 v. Cam,. 1 -, ill, 1849, i. 199, 205. 
 11, 1852, i. 332; ii, 2 
 
 373, 440. 
 v. Campbell, 1861, i, 13. 
 v. Campbell. 1865, i. 374. 432. 
 v. Campbell's Tr i, 59, 60-2. 
 
 tmpbell's Trs., 18CG. i. 24* 
 
 ii. 20. 
 y. Cullen, 1849, ii, 345. 
 y. Cunnii ;■'.'■>. i, 93. 
 
 v. Edderli ,610; ii, 39, 
 
 49. 54.88, 411. 
 v. Fisher, 1838. i, 164. 
 y. Gallanach, 1800, ii, 459. 
 v. Hart. 1755. ii. 472. 
 v. Keith, 1840, i ; . 525-7. 
 v. Lamont, 1824, i. 58, 60. 
 y. Lauder, 1852, ii, 550. 
 v. M«Alister, 1827, i. 459. 
 v. M -Donald's Trs., 1829, ii, 416. 
 y. M'Intyre, 1824, ii. 186, 396. 
 v. M'Kellor, 1808, i, 96. 
 v. M _ I ii, 132. 
 
 rd Monzie, 1752, ii, 178, 413, 442. 
 v. Munro. i, 41, 478. 
 
 i, 288, ii, 185. 
 v. Pollock, 1720, ii, 5. 
 . Rankin, 1805, i. 170. 
 v. Reid, 1840. i, 273, 353, 395, 403; 
 
 ii. 24, 304. 
 y. Rucker, 1809, i, 50. 
 
 mdilande, 1082, ii. 57. 
 Idon, i, 13. 
 v. Simpson, 1 7 ( .»J. ii. 1 15. 
 v. Stewart, 1848, i, 294, 118; ii, 00-2. 
 v. Wightman, 1746, 
 Ezra. v. Clinton's Trs.. 1866, i, 58,296, 
 
 869. 
 
 'I . 127. 
 
 618, 709; 
 ii. 25! 
 
 182. 
 124. 
 •<;. i. 83; ii 
 i , II. 
 
 190. 
 
 161, 467. 
 < l 
 
 • 1.660,001,079; 
 ii, 5, 17, 19.
 
 XXIV 
 
 INDEX OF CASES CITED. 
 
 Carle-ton's Crs., v. Gordon, 1753, i, 5G4. 
 Carlyle v. Carlyle'a Crs., 1725, i, 85. 
 
 v. Macalpin's Trs., 1864, i, 293. 
 Carmicliael v. Anstruthor, 1821, ii, 484. 
 
 v. Carmichael, 1745, ii, 152. 
 
 v. Carmichael, 1810, i, 100, 462, 478, 
 512. 
 
 v. Todd, 1853, ii, 569. 
 Carnegie v. Clark. 1677, i, 639, 722. 
 
 v. Carnegie, 1700, i, 195. 
 Carnegy v. Carnegy's Crs.. 1668, i, 199. 
 Carnoustie v. Meldrum, 1630, ii, 491. 
 Carphin v. Clapperton, 1867, ii, 64. 
 Can- v. Ellison, i, 224. 
 Carrick v. Buchanan, 1844, i, 514, 525, 546. 
 
 v. Hutcheson, 1844, ii, 244, 419. 
 
 Trs. v. Moire, 1840, ii, 474, 481-8, 495. 
 Carron Co. v. Stainton, 1857, i, 52 ; ii, 569, 
 571. 
 
 v. Maclaren, i, 51. 
 Carruther's v. Hall, 1830, ii, 536. 
 
 v. Johnston, 1706, i, 85. 
 Carse v. Carse, 1666, ii, 551. 
 
 v. Russell, 1717, i, 70. 
 Carswell v. Irvine 1850, ii, 500, 506. 
 Carse well v. Munn's Trs., 1832, ii, 564. 
 
 Trs, v. Carsewell, 1858, i, 316-9, 390. 
 Carstairs v. Carstairs, 1672, i, 487. 
 Carter v. M'Intosh, 1862, ii, 125. 
 
 v. Taggart, i, 204 ; ii, 58. 
 Cartwright v. Cartwright, i, 273. 
 Carver v. Bowles, ii, 290. 
 Cary v. Cary, i, 320. 
 Casamaijor v. Pearson, 1841, i, 399, 403 ; 
 
 ii, 490. 
 Cassilis v. Kennedy. 1831, i, 240. 
 
 E. of v. Hamilton, 1745, i, 504 
 Castell v. Tag, i, 247. 
 Castledon v. Turner, i, 379. 
 Cathcart v. E. of Cassillis, 1795, i, 96, 626; 
 ii, 313, 364. 
 
 v. Earl of Cassillis, 1802, i, 624. 
 
 v. Earl of Cassillis, 1825, i, 378. 
 
 v. Cathcart, 1821, i, 298. 
 
 v. Cathcart, 1830, i, 209, 219, 524, 542, 
 573. 
 
 v. Kennedy, 1825, ii, 364. 
 
 v. Maclaine, 1846, i, 543. 
 
 v. Moodie, ii, 318, 426, 454-9. 
 
 v. Eocheid, 1772, i, 79, 108. 
 
 v. Shaw, 1755, i, 568-9. 
 Cattanach v. Birnie, 1858, i, 686. 
 
 v. Thorn's Exrs., 1858, i, 695 ; ii, 24, 
 440. 
 Cattley v. Arnold, i, 205. 
 Catto v. Gordon, 1748, i, 372, 390 
 Cairnie's Hospital, Govs, of, 1842, ii, 324, 
 
 391. 
 Cave's Crs. v. Murray, 1736, i, 188. 
 Chadwick, ii, 351. 
 Chalmers v. Chalmers, 1750, i, 80. 
 
 v. Chalmers, 1827, i, 676. 
 
 v. Chalmers, 1840, ii, 79. 
 
 v. Chalmers, 1845, ii, 87. 
 
 v. Chalmers, 1851, i, 260. 
 
 v. Cunninghame, 1735, ii, 320. 
 
 Chalmers v. C. Mackenzie's Crs., 1795, ii, 42. 
 
 v. Scott, 1830. ii, 661. 
 
 v. Taylor, 1699, ii, 89. 
 
 Trs. v. Watson, 1860, ii, 38, 166, 246. 
 Chaloner v. Bradley, i, 225. 
 
 v. Butcher, i, 224. 
 Chambers v. Carruthers, 1849, i, 59, 62. 
 
 v. Chambers, 1849, ii, 427. 
 Chancellor v. Chancellor, 1742, i, 143. 
 Chaplin v. Horner, i, 211. 
 Chapman v. Bryson, i, 514. 
 
 v. Gibson, 1631, i, 118. 
 
 v. Maclean's Trs., 1860, i, 243, 844. 
 Charteris v. The Lord Advocate, 1750, 
 i, 588. 
 
 v. Charteris, 1712, ii, 432. 
 
 v. Cred. of Merchiston, 1734, ii, 552. 
 Chatto v. Baillie, i, 704. 
 Cheine v. Sykes, i, 117. 
 Cheyne v. Cameron's Trs., 1831, ii. 332-8. 
 Cheyney, i, 380. 
 
 Chichester, Lord v. Coventry, 1867, i, 443. 
 Chiesly v. Chiesly, 1704, i, 194. 
 Chilow's Estates, i, 203. 
 Childers v. Childers, ii, 86. 
 Childs v. Monins, ii, 505. 
 Chippendale, ii, 551. 
 Chisholm v. Chisholm, 1673, i, 263. 
 
 v. Chisholm-Batten, 1864, i, 316, 500. 
 
 v. M'Donald, 1800, i, 564. 
 Cholmondeley v. Cholmondeley, i, 320. 
 Christie v. Christie, 1681, i, 125, 493. 
 
 v. Allan, 1835, ii, 154, 469. 
 
 v. Christie, 1681, i, 632. 
 
 v. Dun, 1806, ii, 160. 
 
 v. Paterson, 1822, i, 671-3. 
 
 v. Royal Bank of Scotland, 1869, ii, 468. 
 
 v. Mags, of Stirling, 1774, ii, 392. 
 Christison v. Kerr, 1733, i, 171. 
 Christopher v. White, ii, 554. 
 Christy v. Paul, 1834, ii, 448. 
 Church of England Insurance Co. v. Wink, 
 
 1857, ii, 80. 
 Churnside v. Currie, 1789, i, 278. 
 Clark v. Barstow, 1856, ii, 443. 
 
 v. Boswell, 1856, ii, 313. 
 
 v. Brebner, 1759, i, 45, 303. 
 
 v. Burns, 1835, i, 130, 151-5. 
 
 v. Gibson, 1826. i, 272. 
 
 v. Hay's Trs., 1823, i, 449. 
 
 v. Mitchell, 1825, ii, 304. 
 
 v. Paterson, 1851, i, 488 ; ii, 3, 21, 26. 
 
 v. Sewell, i, 394. 
 Clarke v. Clarke, 1832, i, 666. 
 
 v. Edgar, 1810, i, 46 ; ii, 153. 
 
 v. Morrison, 1837, ii, 120. 
 
 v. Newmarsh, 1836, i, 11, 19, 25, 44. 
 Clason v. Jones, ii, 335. 
 Clayton v. Lothian, ii, 480. 
 Cleghorn v. Elliot, 1833, ii, 283, 291. 
 
 v. Eliott, 1840, i, 583 ; ii, 342, 358. 
 
 v. Gordon, 1827, ii, 564. 
 Clelland v. Baillie, 1845, ii, 460. 
 
 v. Brodie, 1844, ii, 252, 332, 523. 
 
 v. Gray, 1839, i, 684-9; ii, 20. 
 
 v. Weir, 1848, ii, 303.
 
 INDEX OF CASES CITED. 
 
 A x V 
 
 Clephane v. Mags, of Edin., 1864, ii, 384. 
 ClerMngton. Lady v. Stewart. 1644, i, 68. 
 CJeugb, 1841, ii, 331. 
 
 v. Leslie, 1744, i. 175. 
 Clifton v. Lombe, i, 320. 
 Clough v. Bond, ii, 191. 
 Cloyiie, Bishop of v. Young, i, 380. 
 Clunie v. Stilling, 1854. i. 274. 
 Clunie's Crs. v. Sinclair, 1739, i, 189 ; ii. 484. 
 Clydesdale, M. of v. Earl of Dundonald, 
 
 1726, i, 172, 505. 604; ii. 462. 
 Clyne's Trs. v. Alison, 1840, ii, 555-7. 
 Clyne v. Clyne's Trs., 1837, i, 179, 270. 
 Cochran v. Cochran, 1732, ii, 354. 
 
 v. Cochran, 1755. i. 413. 
 
 v. Ramsay, i, 100, 105. 
 Cochrane v. Black, 1855, i, 392, 533-7 ; ii, 
 39. 107. 244. 519. 
 
 v. Black. 1857, ii. 172. 322, 525. 
 
 v. Bogle, 1850, i, 524-6, 543 ; ii, 278. 
 
 v. Cochrane, 1732, ii, 117. 
 
 v. Cochrane's Exrs, 1854, i. 710 ; ii, 18. 
 
 v. Ramsay (Murdieston), 1828, i, 96. 
 
 v. Vernor, 1844, i, 524. 
 
 v. Vernor, 1850, ii, 458. 
 Cockburn v. L. of Cambusnethan, 1509, 
 i, 448. 
 
 v. Cameron, 1836, ii, 341. 
 
 v. Cockburn, 1803, i, 313. 
 
 v. Langton's Crs., 1747, i, 92. 
 
 v. Paterson, L824, i. 666. 
 Cockburn's Trs. v. Dundas, 1864. i, 670-2, 
 717, 720 ; ii, 12. 
 nil v. Barber, ii, 208. 
 Cockrell v. Cockrell, i. 8, 11. 
 
 rington v. Johnston, 1824, ii, 485, 655. 
 v. Lyon, 1830, i. 172. 
 
 v«. Lyon, 1834, i. L61. 
 
 v. Stevens, i, 212. 
 Cole v. Fitzgerald, i. 317. 
 
 v. Sewell, i. 681. 
 I i cotbick, ii, 353. 
 
 I i-Ci iig, 1835, i. 408. 
 
 ( loleman v. Sej mour, ii. 282. 
 Collie v. Pine's Trs., L851, i. 122, liii 
 
 296. 
 Collier v. ( ! -:;:;, i, 132, 477. 
 
 I gtoa -.. I !( Hi ;ton, 1667, ii, 57. 
 Collins v. Wak< man, i. 21 8. 
 Collow'a Trs. v. Connell, 1866, i. 878, 519. 
 Collyer v. Ashburner, i. 89 1. 
 
 houn v. Campbell, 1829, i, 258. 
 
 v. Colquhoun, 1828, i, 197, 620. 
 ; v. Corrie, 1853, ii, 52, 267-9. 
 Colvil] v. Colvill, 1863, i. 516. 
 Colville v. J I 362, ii. 277. 
 
 v. Lander, 1800, i, 6, 22, 117. 
 Colvilli Mi. .. < loll ill' Tr., 1779, ii, 111. 
 i . i 1 796, i. 625. 
 
 Comb 
 Comn* red J Bank v. Black, 1842, ii. 60. 
 
 v. Bprot, 1841, ii. 500 6. 
 
 Condie v. Macd< Id, 1884, ii. 45, 17::. 527. 
 
 Con. ell v. Grierson, i. 520, 600, 618, 712; 
 ii. 888. 
 ghame v. I ii. 206. 
 
 VOL. I. 
 
 Cook v. Duckenfield, ii. 272. 
 
 v. Foyer, ii, 196. 
 
 v. Hutchinson, ii, 91. 
 
 and Paul v. Jeffrey, 1835, ii, 551. 
 Cooke v. The Stationer's Co., ii, 93. 
 Coombs v. The Queen's Proctor, i, 278. 
 Cooper v. Mackenzie, 1860, ii, 408, 421, 485. 
 Corbett v. Douglas, 1808, ii, 75. 
 Corbet v. Porterfield, 1842, ii, 462. 
 Cornewall v. Cornewall, i, 317. 
 Corsan v. Corsan, 1631. i. l-"<7. 
 
 v. M'Gowan, 1736, ii, 117. 
 Corse, 1802, i, 227. 
 
 v. Corse, i, 192. 
 Coster v. Coster, ii, 58. 
 Coulter v. Forrester, 1823, ii, 189. 
 Couper v. Burn, 1859, i, 437. 
 
 v. Meek, 1694, ii, 472. 
 Courtenay v. Courtenay, ii, 229. 
 Coutts v.'Crawford, 1806, i, 176. 
 Cowan v. Cowan, 1817, i. 166. 
 
 v. Crawford, 1837, i, 326 ; ii, 8, 29, 283, 
 299, 543. 
 
 v.Kerr, 1830, i, 138; ii, 572. 
 
 v. Turnbull's Trs., 1848, i, 476; ii, 
 373. 
 Cowie v. Brown, 1707, i, 169. 
 
 v. Cowie, 1707, i, 80. 
 Cowman v. Harrison, i, 324. 
 Cowper v. Mantell, ii, 265. 
 Crabtree v. Bramble, i, 224. 
 Cradock v. Pyper, ii. 170, 553-5. 
 Craig v. Craig (Riccarton), i, 514. 
 
 v. Galloway, i, 257. 
 
 v. Jack, 1857, ii, 90. 
 
 v. Lindsay, 1862, ii, 686. 
 
 v. M'Culloch, 1839, i, 521. 
 
 v. Maekersy, 1823, i, 437. 
 
 v. Maltmen of Glasgow, 1739, i, 171. 
 Craigcrook Mortification v. Sawers, 179 1. 
 
 ii, 395. 
 Craigdaillie v. Aikman, i, 437. 
 I , d ;ie v. Craigie, 181 I. i. 122. 
 
 v. Trail,'. 1817. i. 568. 
 
 v. Gairdner, 1817, i, 43, 161. 
 
 v. Cordon. 1837. ii, 438, 568. 
 
 v. Ker, 1808. i, 105. 
 
 v. Lewin, i. 7. 
 
 v. Marshall, 1850. i. 437; ii. 390. 
 (Villain v. Oulton, ii, 422. 
 ' Iran ton \. Brown, 1676, i. 372, 390. 
 
 v. Wilkinson, L666, ii. 472. 
 
 v. Scott, 181 1. ii. 482. 
 
 v. Scott, 1826, ii. 521-7. 
 Cran tonn, Lord v. Cunningham, 1839, i. 
 
 53, 55. 
 daw v. Ear] of Kellie, i, 189. 
 
 ( 'i-iiwcnur \. < : r:i li:i in, 1844, ii, 295. 
 
 ford, i, 71 8. 
 
 v. Bell, 1687, ii. 84. 
 
 v. Brichen, 171 1, i. 166. 
 
 v. Campbell, 1826, i. 96. 
 
 v. Cook, 1888, ii, 818, 159. 
 
 v. ('milts, 18(111, i. 172. 18(1, 269, 475, 
 
 v. Crawford, 1714, i. 95. 
 
 v. Crawford, 1789, ii 71 
 
 i
 
 XXVI 
 
 INDEX OF CASES CITED. 
 
 Crawford v. E.ofDundonald, 1838,i, 137-9 ; 
 ii, 137. 
 
 v. Rotchkis, 1809, i, 582 ; ii, 290, 485. 
 
 v. Kincaid, 1782, i, 162. 
 
 v. Stewart, 1794, i, 144. 
 
 v. Ure, 1755, ii, 109. 
 
 v. Walker. 1827, ii, 345. 
 Crawford, E. of v. Hepburn, 1767, ii, 117, 
 
 171. 
 Crawford's Trs. v. Crawford, 1867, i, 479. 
 484. 
 
 v. Hart, 1802, i, 89. 
 Crawfurds v. Crawfurds, 1774, i, 26. 
 Crawley v. Crawley, ii, 324. 
 Cree v. Durie, 1810, ii, 350, 360. 
 Cricbton v. Grierson, 1828, i, 239, 298, 319, 
 
 389, 427. 
 Crichton's Crs. v. Wood, 1798, i, 626. 
 Crighton, 1857, ii, 331. 
 
 v. Hamilton, 1532, i, 87, 108. 
 Cripp v. Wolcott, i, 688, 698. 
 Crispin v. Doglioni, i, 46. , 
 Crokat v. Lord Panmure, 1853, ii, 568. 
 Croker v. Marquis of Hertford, i, 246. 
 Croll's Trs. v. Robertson, 1791, ii, 415. 
 Cromarty, Countess of v. Tbe Crown, 1764, 
 
 i, 333. 
 Crook v. Whitley, i, 640. 
 Croom's Trs. v. Adams, 1859, ii, 3, 24. 
 Crosbie v. Wilson, 1865, i, 245, 264. 
 Cross v. Boyes, 1801, i, 135. 
 Crossfield, ii, 510. 
 
 Cruickshauk v. Cruicksbank's Trs., 1843, 
 i, 49, 51. 
 
 v. Ewing, 1864, ii, 243. 
 
 v. Sandeman, 1843, i, 411. 
 
 v. Williams, 1849, ii, 351. 
 Cruicksbank's Trs. v. Cruicksbank, 1845, 
 i, 452; ii, 364, 499, 522, 573. 
 
 v. Cruicksbanks, 1853, i, 409, 487, 655, 
 673; ii, 109. 
 
 v. Cruicksbanks, 1801, i, 80. 
 Cruttenden v. Rattray, 1824, ii, 410. 
 Cruwys v. Colman, i, 320. 
 
 v. Keeling, i, 719. 
 Cullen v. Anstruther, 1856, ii, 76. 
 
 v. Baillie, 1846, ii, 547. 
 
 v. Fontaine, 1831, ii, 500. 
 
 v. Johnston, 1861, ii, 532. 
 
 v. Sprott, 1841, i, 433. 
 
 v. Thomsons, 1731, i, 237. 
 
 v. Wemyss, 1838, i, 113, 457 ; ii. 577. 
 Culpepper v. Aston, ii, 340. 
 Culsha v. Cheese, i, 489. 
 Cult's Crs., Ranking of, 1781, ii, 466. 
 Cuming v. Irvine, 1726, i, 582. 
 Cuming's Trs. v. Cuming, 1833, ii, 370. 
 Cumming v. Lord Advocate, 1756, i, 84, 
 637, 648 ; ii, 268. 
 
 v. Cumming, 1858, i, 422. 
 
 v. Cumming's Trs., 1824, i, 392, 402 , 
 ii, 45. 
 
 v.Gordon, 1761, i, 526, 541. 
 
 v. Hay, 1834, ii, 175, 188, 203, 430, 
 563. 
 Cunliffe v. Cunliffe. i, 320. 
 
 Cuninghame v. Beaumont, 1778, ii, 285. 
 
 v. Cuningham, 1733, i, 411. 
 
 v. Fairlie, 1857, i, 553. 
 
 v. Farie, 1856, ii, 160. 
 
 v. Scott Moncrieff, i, 654. 
 Cuninghame's Trs. v. Cuninghame, 1852, 
 
 i, 557. 
 Cunningham, 1858, ii, 12. 
 Cunninghame, 1839, ii, 443. 
 
 v. Lady Cardross, 1680, i, 80, 582. 
 
 v. Cunninghame, 1770, i, 70. 
 
 v. Dickson, 1839, ii, 445. 
 
 v. Hatborn, 1810, i, 417, 420. 
 
 v. Livingstone. 1737, i, 316. 
 
 v. M'Kirdy, 1827, ii, 472, 499. 
 
 v. M'Leod, 1846, i, 423; ii, 52, 64, 
 124, 274, 367, 445. 
 
 v. Moncrieff, 1858, i, 586. 
 
 v. Mouat's Trs., 1851, i, 263. 
 
 v. Moutray, 1629, ii, 471. 
 
 v. Ramsay, i, 164. 
 
 v. Lady Semple, 1706, i, 29. 
 Cunningbarae's Trs. v. Hutton, 1847, ii, 
 
 335. 
 Cunyngbame v. Cunynghame, 1777, i, 275, 
 640 ; ii, 289. 
 
 v. Cunynghame, 1804, i, 417. 
 
 v. Cunyngham, 1852, i, 522, 550-3. 
 
 v. Higgins, 1802, ii, 502. 
 
 v. Whiteford, 1797, i, 273. 
 Currer v. Dickson, 1857, ii. 77, 81. 
 Currie v. Currie, 1835, i, 398; ii, 128, 279. 
 
 v. Pile, i, 472. 
 
 v. Sbortreid, 1818, i, 194. 
 
 v. Threshie, 1846, i, 399 ; ii, 490. 
 Curtis v. Hutton, i, 25. 
 Cust v. Garbet & Co.. 1795, ii, 152. 
 Cutbbert v. Peacock, i, 376. 
 Cuthbertson v. Pollock, 1799, ii, 62. 
 Cutbill v. Burns, i, 257, 384, 413 ; ii, 20. 
 
 69, 109. 
 Cutler, ii, 58. 
 
 Daer, Lord v. Lord Hamilton. 1740, i, 199. 
 D'Aguilar v. Drinkwater, i, 590. 
 Daley v. Desbouverie, i, 590. 
 Dalgliesb, 1849, ii, 330. 
 
 v. Buchanan, 1854, ii, 120. 
 Dalhousie, Lady i, 546. 
 
 Countess of v. M'Dowall, 1840, i, 21. 
 
 Earl of v. Gilmour, 1787, i, 188, 198. 
 Dalkeith, Earl of v. Book, 1729, i, 29. 
 Dallas v. Leisbman, 1710, ii, 108, 201, 
 413. 
 
 v. Paul, 1704, i, 174. 
 Dalrymple, 1746, i, 579. 
 
 v. Dalrymple, i, 54. 
 
 v. Halkett, 1735, i, 192. 
 
 v. Hope and Bucban, 1739, i, 596. 
 
 v. Hunter, 1784, i, 536. 
 
 v. Murray, 1784, ii, 529, 535, 543. 
 
 v. Ranken, 1836. ii, 364. 
 
 v. Earl of Stair, 1841, i, 620. 
 
 v. Earl of Stair, 1844, i, 560. 
 Dalvell v. Dalyell, 1810, i, 507. 602. 
 Dalziel v. Dalziel. 1756. ii, 136. 237. 442.
 
 INDEX OF CASES CITED. 
 
 xxvn 
 
 Dalziel v. Scotstarvet, i, 1688, i, 590. 
 Daniel, ii. 512. 
 
 Daniell v. Daniell, i, 642, 688. 
 I < v. Darg, 1808, i, 187. 
 Dargie v. Mags, of Forfar, 1855, ii, 516. 
 DarFeith v. Campbell, 1702, i, 89. 
 Darling v. Adamson, 1834, i, 396 ; ii, 332. 
 348, 371-7, 431. 
 v. Darling, 1802. ii. 577. 
 v. Hav, 1709. i. 170. 
 v. Mein, 1847. i. 294. 
 v. Mein, 1851, ii, 62. 
 v. Watson, 1825, i, 283 ; ii, 205. 
 Dashwood v. Peyton, i, 329. 
 Davenport v. Hanbury, i, 626. 
 Davey v. Dun-ant, ii, 337. 
 Davidson, ii, 612. 
 1857. ii. 445. 
 
 v. Aikman, 1803. i. 362, 435 ; ii, 82. 
 v. Mags, of Anstruther-Easter, i, 372. 
 v. Clark, 1867, ii. 158. 
 v. Davidson, 1687, i, 178 ; ii, 268. 
 v. Davidson, 1867, i, 257 ; ii, 61. 
 v. Dobie, 1828. ii, 46. 426. 
 v. Hamilton, 1632, i, 273. 
 v. Kerr, 1815. ii. 336. 
 v. Kyde, 1797. i. 193, 221 ; ii, 98. 
 v. Macgregor, 1850, ii, 391. 
 v. Mackenzie, ii, 190-9, 206, 210. 
 v. Nairn, L755, ii. 193. 
 v. Handel, 1706, i, 448. 
 v. Tulloch, 1860, ii, 532. 
 Davidson's Irs. v. Carr, 1850, ii, 560. 
 
 i v. AsMord, i. 224 : ii. 491. 
 Davis v. Chambers, i. 452. 
 
 on v. Stirton, ii. 183, 531. 
 Dawson's Trs. v. Maclean, 1860, i, 52 ; ii, 
 
 571. 
 Day v. Trig, i, 367. 
 
 1, 39. 
 De Bathe v. Lord FingaL i. 246. 
 Di Beanvoir v. De Beauvir. i. 703. 
 ]>. . .,-. Pr« -y. of, v. Urn,', , 1865, i, 821, 438. 
 
 . Di '-'. ii. 81. 
 DeGh Irev. & at, i. 393. _ 
 Ii,. ]:, i tax ■■ !• in]-!'' ce, ii, 58. 
 Delmare v. Bobello, i. 380. 
 
 ,[, i. ■v. |s:,7, i. 523; ii, 260. 
 v. Willison, 179'.', i, 269, 334. 
 Dendy, ii. 209. 
 
 Denham v. Baillie, 1738, i. 664. 
 ■. . Denham, 1766, ii. 191. 
 v. Maitland, 1772. i, 616. 
 Denholm, ii, 124. 
 
 .. Di aholm . L68J i, 80, 876. 
 Dennistou v. Crichton, L824, i, 496, 623. 
 li. L888, i, 825, 844, 
 849, 662; ii, 288. 
 % Denni toun, 1821, i, 897 ; ii, 178 
 v. '• '. 1829, ii. 77. 
 
 v. Welsh, L880 i, 79. 
 
 I).- Vigny, the < !onnte i 
 a, i, 727. 
 I lew v. Clarke, i, 278. 
 1 1, wax •- Bnrrf 524, 643, 654 
 
 Dewar v. Burden, ii, 454-8. 
 
 v. Dewar, 1852, i. 522, 550. 
 v. M'Kinnon, 1S25, i, 646. 
 v. Boss, 1767-8, ii, 254. 
 v. Ross's Trs., 1792, ii, 254, 341. 
 v. Kirk-Session of Torryburn, 1864, i, 
 350, 388. 
 Dick v. Donald. 1826, i. 272-8 ; ii, 338. 
 v. Drysdale, 1812. i. 351. 
 v. Ferguson, 1768, i, 322, 728; ii. 298, 
 
 403, 441. 
 v. Gillies, 1828, i, 213-5, 309, 716; ii, 
 
 98. 
 y. Murison, 1845, ii, 417. 
 Di.k's Trs. v. Pridie, 1815, ii, 206, 228. 
 Dickinson v. Blisset, i, 277. 
 Dickson, i, 377. 
 
 v. Barbour, 1828, ii, 167. 
 
 v. Bonar's Trs., 1829, ii, 557. 
 
 v. Braidfoot, 1705, ii. 59. 
 
 v. Cunninghame, 1831, ii, 4_57. 
 
 v. Cunninghame, 1786. i, 576-8. 
 
 v. Dickson, 1780, i, 637, 647, 668. 
 
 v. Dickson, 1786, ii, 07. 
 
 v. Dickson, 1823, i, 411. 
 
 v. Dickson, 1854, i, 663-6 ; ii, 288, 381. 
 
 v. Halbert, 1851, ii, 13. 
 
 v. M-Donald, 1816, i, 545. 
 
 v. Somerville's Trs., 1867, i, 253, 249, 
 
 425. 
 v. Syme, 1801, i. 103, 563. 
 v. Young. 1678, i, 120-6. 
 Dickson's Tutors v. Scut, 1853, i, 214, 
 
 373-9. 
 Diggens v. Gordon, i, 314, 412. 
 
 a v. Stewart, 170G, ii, 472. 
 Dike v. Kicks, ii, 340. 
 Di I"ii v. Campbell, 1780, i, 507. 
 Dimes v. Scott, ii, 377. 
 Dingwall v. Askew, i. 262. 
 
 v. M'Combie, 1822, ii, 42, 77. 127, 414. 
 v. Dingwall, L842, i, 551. 
 Lord v. V 1619, i. 47. 
 
 Di brow v. Mackintosh, 1862, ii. 166, 244. 
 Disher v. Disher, i, 211. 
 Di Sora v. Phillips, i, 37, 54, 360. 
 Dix v. Reed, ii. 200, 530. 
 Dixon v. Dixon, 1841, i, 673, 669, 714. 
 
 x. Fisher, 1833, i. 403, 443,483,646, 
 
 665. 
 v. Fisher, 1843. i, 186. 
 v. Gayfere, i, 22). 
 v. Rutherford, 1863, ii, 175. 
 
 I'.xr -.. ii. 613. 
 Dohio v. Milne, 182K, ii, 12. 
 
 v. Oliphant, L707, ii. L68, 302. 
 
 v. Scales, 1831, ii, 120, 355. 
 Docker v. Somes, ii, 520. 
 Doe v. Alcock, i. 869. 
 
 v. Jom . i. -V 
 
 v. Kett, i. 881. 
 
 v. Perkes, i, 268. 
 // | ,/. Duke of Devonshire v. Cavendish, 
 ii. 290. 
 
 ,/. Leicester v. Biggs, i, 888. 
 
 ./ Thwaitet v. ' >rr, i, 727.
 
 X X V 11 1 
 
 INDEX OF CASKS CITED. 
 
 Doe d. Watts v. Wainwright, i, (381. 
 
 d. Williams v. Evans, i, 246. 
 Dollar v. Dollar, 1792, i, 721. 
 Dolphin v. Robins, i, 15. 
 Dommel v. Bedford, i, 296. 
 Don v. Don, 1713, i, 537. 
 Donald v. Golquhoun, 1835, ii, 461. 
 
 v. Kirkaldy, 1788, i, 263. 
 Donald's Trs. v. Donald, 1864, i, 324, 367, 
 
 489, 635, 705. 
 Donaldson v. Donaldson, 1624, i, 195. 
 
 v. Donaldson. 1749, i, 238. 
 
 v. Donaldson's Trs., 1851. i, 392; ii, 17. 
 
 v. Kennedy, 1833, ii, 314, 427, 448. 
 528, 567. 
 
 v. Ord, 1855, ii, 303. 
 Donaldson's Trs. v. Cuthbertson, i, 650, 
 923 ; ii, 20, 30. 
 
 v. Macdougall, ii. 16, 28, 693, 710. 
 Donnavan v. Needhain, i, 394. 
 Door v. Geary, i, 367. 
 Dormer, i, 222, 709. 
 Dougall v. Dougall, 1789, i,*889. 
 Douglas, 1839, 14,443, 553. 
 
 1856, ii, 175. 
 
 v. Ainslie, 1761, i, 496. 
 
 v. Allan, 1733, i, 493. 
 
 v. Congreve, ii, 377. 
 
 v. Dalrymple, 1770, ii, 86. 
 
 v. Dickson, 1751, i, 195. 
 
 v. Douglas, 1724, i. 417. 
 
 v. Douglas, 1763, i, 142. 
 
 v. Douglas, 1822, ii, 286, 291, 410. 
 
 v. Douglas, 1843, i. 332, 643, 663. 
 
 v. Douglas. 1862, i, 484 ; ii, 370. 
 
 v.Douglas, 1864, i, 679; ii, 12, 18, 
 358, 519, 653. 
 
 v. Douglas' Trs., 1859, i, 263, 325 ; 
 ii, 283. 
 
 v. Douglas' Trs., 1867, ii, 327, 527, 572. 
 
 v. D. of Hamilton, 1761, i, 104, 574. 
 
 v. Holmes, 1854, i, 96 ; ii, 313, 364. 
 
 v. Johnston, 1804, ii, 261. 
 
 v. M'Clymont, 1802, ii, 421. 
 
 v. Mason, 1796, ii, 131. 
 
 v. Pringle, 1724, ii, 454. 
 
 v. Sharpe, 1811. i, 646-8. 
 
 v. Stewart, 1765, i, 563. 
 
 v. Strathnaver, 1730, i, 562. 
 Douglas' Trs. v. Douglas, 1862, i, 480. 
 
 v. Douglas, i, 687, 696. 
 
 v. Douglas, 1868, ii, 491. 
 Douglas, Duke of v. Lockhart, 1717, i, 505. 
 
 Earl of v. Selkirk, i, 378. 
 
 Heron, & Co. v. Cant, 1783, i, 138. 
 
 & Co. v. Glassford, 1825, i, 530; ii, 54. 
 Dove. v. Smith, 1827. i, 266-8, 715. 
 Dow v. Beith, 1856, i, 476-9. 
 
 v. Dow, 1681, i, 464. 
 
 v. Dow, 1848, i, 263, 361. 
 Dowling v. Dowling, i, 332, 681. 
 Downes v. Collins, ii, 510-3. 
 
 v. Glazebrook, ii, 349. 
 Dowie v. Millie, 1786. i, 384. 
 Downie v. Downie's Trs, 1866. i. 20, 190 2. 
 v. Maekillop, 1843. i. 253. 
 
 Downie v. Pearson, 1841, ii, 60. 
 Doyle v. Blake, i, 203, 381. 
 Dree Gebrceders, i, 10. 
 Drevon v. Drevon, i, 8, 12. 
 Drew, 1867, ii, 249. 
 
 v. Paterson, 1825, ii, 350-6, 446. 
 Dion's Trs. v. Peddie, 1850, i, 587. 
 Dronnan v. Montgomerie, 1716, i, 232. 
 Drumkilbo v. Lord Stormonth, 1629, i, 647. 
 Drummond, ii, 510. 
 
 v. Feuars of Bothkennel, 1671, ii, 178. 
 
 v. Drummond, 1624, i, 390 ; ii, 486. 
 
 v. Drummond, 1799, ii, 477. 
 
 v. Lindsay, 1857, ii, 443, 544. 
 
 v. Mackenzie, 1758, i, 227; ii, 136, 237, 
 442. 
 
 v. Swayne, 1834, i, 459 ; ii, 319. 
 Drummore v. Somervil, 1742, ii, 180. 
 Drysdale v. Nairne, 1835, ii, 346, 352-6, 
 
 409. 
 Dudgeon v. Arnot, 1830, i, 396. 
 
 v. Dudgeon's Trs., 1844, ii, 472, 499. 
 Dudley, Lord, v. Ward, i, 186. 
 Duff v. Duff, 1824, i, 705-8. 
 
 v. Earl of Fife, 1823, i, 277. 
 
 v. Gordon, 1807, i, 505. 
 
 v. Gordon, 1849, ii, 432. 
 
 v. Gorrie, 1849. ii, 253, 361. 
 Duff's Trs. v. Scripture Headers, i, 323, 366, 
 
 394, 432, 677 ; ii, 104. 
 Duffus' Trs., Lord v. Dunbar, 1842, i, 524, 
 
 555. 
 Duggan v. Wight, 1797, ii, 75. 
 Duguid.v. Caddal's Trs., 1831, i, 252, 384. 
 
 v. Dundas, 1839, ii, 565. 
 Du Hourmelin v. Sheldon, i, 288. 
 Dumbreck v. Stevenson, 1861, ii, 427, 567. 
 Dun v. Dun, 1668, i, 162. 
 Dunbar, 1847, ii, 331. 
 
 v. Dunbar, 1799. i, 535. 
 
 v. Leslie, 1628, ii, 471. 
 
 v. Sinclair, 1850, ii, 430, 563. 
 Dunbar's Trs. v. Dunbar, 1808, i, 311, 316, 
 324, 390. 
 
 v. Shaw, 1805, ii, 259, 294, 300, 319. 
 Dunbar's Heirs, E. of, 1625. i, 77. 
 Duncan v. Findlater, 1839, ii, 397, 514. 
 
 v. Rae, 1810, i, 189, 314. 
 
 v. Floss, 1785, i, 419. 
 Dunch v. Kent, ii, 423. 
 Dundas v. Dundas, 1706, i, 332. 
 
 v. Dundas, 1738, i, 265. 
 
 v. Dundas, 1783, i, 26. 378. 
 
 v. Murray, 1744, i, 566. 
 
 v. Dundas, 1830, i, 478. 
 
 v. Lord Dundas, 1823, i, 496, 623, 668; 
 ii, 138. 
 
 v. Dundas, 1829, i. 22, 449, 582; ii, 107. 
 
 v. Dundas, 1830, i, 386, 390, 475 ; ii. 
 487. 
 
 v. Dundas, 1837, i, 319, 336, 401, 427, 
 713 ; ii, 90, 143, 279, 299. 
 
 v. Dundas, 1829, i, 277, 580. 
 
 v. Lewis, 1807, i, 245. 
 
 v. Kirkcaldy's Trs.. 1853, ii, 309, 507. 
 
 v. Ogilvie, 1804, ii, 473.
 
 INDEX OF CASES CITED. 
 
 Dundas v. Morrison, 1857, ii, 309, 521. 
 Dundee, Mags, of v. Lindsay >i Morris, i, 
 . 
 
 v. Morris, i. 265, 321-5. 344, 362, 383, 
 427 ; ii, 400-5. 
 
 v. Taylor, 1863, ii, 132. 
 
 Presbv. of v. Mags, of Dundee, ii. 384. 
 
 Ry. Co. v. M i ler, 1832, ii. 509. 
 Dunfermline v. Earl of Calder, 1<>74. i, 238. 
 
 v. Dunfermline. 1628, i, 86. 
 Dunkley v. Duuklev. ii, 58. 
 Dunlop. 1835. ii. 2i">. 
 
 v. Cochrane, 1824, i. 105. 
 
 v. Crawford, 1812. ii. 94, 242. 339, 
 
 v. Dunlop, 1839. i, 237. 
 
 v. Greenlee's Trs.. i. 233-6. 
 
 t. Johnston, 1867. i. 255-7, 424. 
 
 v. Marshall, 1821, ii. 331. 
 
 v. Weir, 1823, ii. 131. 
 Dunmore v. Dickson, 1834, ii. 336. 345. 
 Dunn v. Brnnton, 1801, i. 435. 
 Dupleix v. Rae, ii. 212. 
 Durrant v. Friend, i. 261. 
 Durham v. Blacks? 1. 1622, i, 292. 
 
 v. Durham, 1811. i, 630. 
 Durham's Trs. v. Graham, 1798, i. 626. 
 Durie v. Coutts. 1791, i. 216, 219. 
 
 v. Gibson, 1667, i, 244. 
 Duthie v. Duthie, 1841, ii, 368. 
 
 v. Boyd, 1813, i, 488, 604, 648. 
 
 v. Dykes, 1811, i, 421, 7U7. 
 Dyose v. Dyose, i, 380. 
 
 Eade v. Eade, i, 320. 
 
 v. England, i, 320. 
 Early VjBenbow, i. 472. 
 V. Middleton, i. 472. 
 E 1 863, i. 161. 
 
 v. Hepburn, 1627. i. 84 7. 
 . v. Newland's Trs., 1822, ii, 421. 
 Eaton v. Watts, i. 325. 
 Eaton. Hammond, & Suns v. M 
 .. 1837, ii. 506. 
 i v. Edgar, 1665, ii. 8. 
 .. 1! id .. P. 21. ]. 95. 
 v. Hamilto L'sTrs. 1x28, i, 473; ii, 108. 
 v. Johnstone, 1736, i. 505. 
 v. Maxwell, 1736, i. 378,500, 624. 
 v. Maxwell, 1742, i, 630. 
 v. Salisbury, i. 380. 
 Edinburgh, College of v. Mortimer, 1856, 
 i. 605. 
 Ministi re of v. Mags. <>f Edinr., is 16, 
 ii, 898, 51.-.. 
 of v. Aubery, ii. 399. 
 . of v. Univ. of Edinr., 1831, 
 i, 31'.'. 
 
 . of v. I'rin. and Prof, i I Iniv. of 
 Edinr., 1851, ii, 384 9,401. 
 
 i of v. Lord Advocate, 
 
 1861, I. 241, 129, 491. 
 Town of v. Binny, 1698, ii. 890-2. 
 of v. L L664, ii, 460. 
 ; i H pita! 
 
 i 10 ; ii. 190. 
 ad v. Blaii • 
 
 Edmond v. Dingwall's Trs.. 1860, ii, 309, 
 428, 521. 
 
 v. Gordon, 1828. ii, 60. 
 Edmonston v. Edmonston. 1637, i. 96, 173. 
 
 528. 
 Edmonstone v. Edmonstone, 1706, i, 169. 
 
 v. Edmonstone. 1769, i, 527. 
 Edmunds v. Low, i, 455. 
 
 v. Waugh, i. 658. 
 Edward v. Sheill. 1848. ii, 70. 
 Edwards v. Lewis, ii. 114. 
 
 v. Countess of Warwick, i, 211, 224. 
 Egbert v. Butler, ii, 530. 
 Egerton v. Forbes, 1812, i. 33. 43 ; ii. 161. 
 Eglinton, Earl of v. Eglinton, 1861, i, 372, 
 378. 391 ; ii, 574. 
 
 E. of v. Montgomerie, 1842, i, 494, 598. 
 
 E. v. Montgomerie, 1845, i, 541. 
 
 v. Montgomerie, 1847, i. 351. 
 Elder v. Marshall. 1830. ii. 168. 
 
 v. Watson. 1859. i. 45s ; ii. 320. 
 Elias v. Black, 1856. ii, 171, 348-60. 
 Elborne v. Good, i, 305. 
 Elibank, Lord v. Campbell, 1833, i, 513. 
 551, 625. 
 
 L. v. Hamilton, 1827, i, 571 ; ii, 85. 
 
 L. v. M-Kenzie, 1811, i, 197. 
 
 v. Montolieu, ii, 58. 
 
 L. v. Murray, 1835, i. 527. 
 
 L. v. Kenton. 1833, i, 568. 
 Elleis v. Scot, 1672, ii, 178. 
 Eliott v. Stobs, 1803, i, 548, 554. 
 Elliot v. Currie, 1798, i, 571. 
 
 v. Elliot, 1698, ii, 268. 
 
 v. Elliot, 1792. i, 199. 
 
 v. Elliot, 1813, ii, 286. 
 
 v. Merrvman, ii, 343. 
 
 v. Earl of Minto, 1823, i, 579. 
 
 v. Pott. 1821, i, 540, 570. 
 
 v. Stair's Trs.. 1823, i. 465-8. 
 
 \. Wijson, 1826, ii. 351-8. 
 
 Trs. v. Elliott. 1828. ii. 42S. 
 
 Trs. v. E. of Minto, is:;:;, ii. 193. 
 Elli v. Carse, 1670, ii. 472. 
 
 v. Eden, ii, 520. 
 
 v. Maxwell, i. 305, 657. 
 
 v. Wal on, 1712. i. 171. 
 Ellison v. Airey, i. 65 I. 
 Elmsley v. Young, i. 711. 
 Elphinstone v. Burnett, 1856, i, 545. 
 Elphinston v. Keith, L790, ii. 524. 
 
 Eltham, Inhabitants of V. Wanvvn. ii, i 
 Elwes v. Mair. i, L86. 
 Emery \ . England, i. 667. 
 
 v. Hill, ii. 899. 
 Emslie v. Groat, 1817, i, L95, 223. 
 England v. I i 68. 
 
 Enohin v. Wylie, i, 15, 50 8, 859. 
 Erskine, L850, i, 851 ; ii, 288. 
 
 y.Car: 1679, i. 419. 
 
 v. Erskine, 1 795, ii, 462. 
 
 v. Erskine, 1821, ii, 296. 
 
 v. Erskine, L827, ii. 282, I 
 
 v. Erekine' Ti 1840, i LI 
 
 v. Ei kine a Ti ., I860, i, 269. 
 
 v. Erskin< I I860, i, 17fl
 
 XXX 
 
 INDEX OF CASES CITED. 
 
 Erskrae v. Balfour-Hay, 1758, i, 531. 
 
 v. Earl of Mar, 1829, i, 583. 
 
 v. Stephen, 1622, i, 58. 
 
 v. Wemyss, 1829, ii, 250, 262. 
 
 v. Williams, 1843, i, 347, 409, 586. 
 
 v. Wright, 1843. i, 299. 
 Ettles v. Boberton, 1833, ii, 412, 422. 
 Evans v. Crosbie, i. 313. 
 
 v. Evans, i, 699. 
 
 v. Jackson, ii, 242. 
 Ewen v. Watt, 1828, i, 477, 648-56. 
 
 v. Ewen's Trs., 1830, i, 169. 
 
 V. Mags, of Montrose, 1830, i, 239, 
 280, 321, 427 ; ii, 89. 
 
 v. Corbet, ii, 343. 
 Ewing v. Drummond, 1752, i, 189; ii, 484. 
 
 v. Ewing, 1799, i, 420. 
 
 v. Ewing's Trs., 1857, i, 586. 
 
 v. Miller, 1747. i, 596, 616, 722. 
 Eyemouth's Crs., 1726, ii, 409. 
 Eyre v. Marsden, ii, 97. 
 
 v. Countess of Shaftesbury, ii, 182. 
 
 Faichney v. Faichney, 1766, i, 166. 
 Fairholme v. Fairholme's Trs., 1856, i, 164. 
 
 v. Fairholme's Trs., 1858, i, 59-62; 
 ii, 561. 
 Fairlie v. Fairlie, 1819, ii, 284. 
 
 v. Fergusson, 1827, ii, 49, 56. 
 
 v. Neilson, 1821, ii, 309, 507, 532. 
 
 Crs. v. His Heirs, 1630, ii, 473. 
 
 Tr. v. Fairlie, 1860, i, 293. 
 Fairservice v. White, 1789, i, 707, 721. 
 Falconer, 1830, ii, 220, 404. 
 
 v. Blair, 1629, ii, 476. 
 
 v. Dougal, 1664, i, 390. 
 
 v. Falconer, 1721, i, 373; ii, 314. 
 
 v. Hay, 1789, i, 73. 
 
 v. King's Coll. of Aberd., 1721, i, 373. 
 
 v. M'Arthur, 1825, i, 418, 655; ii, 5. 
 
 v. Macintosh's Tr., 1814, ii, 345. 
 
 v. Stephen, 1848, i, 263, 360. 
 
 v. Wright, 1824, i, 668. 
 Falkner v. Grace, ii, 496. 
 Farmer v. Elder, 1683, i, 104 ; ii, 452. 
 Farquhar v. Campbell, 1628, ii, 471. 
 
 v. Farquhar, 1838, i, 520, 613. 
 
 v. Hamilton, 1842, ii, 458. 
 
 Trs. v. Stewart, 1841, ii, 107. 
 Farquharsonv.Cumming's Crs., 1729, ii, 410. 
 
 v. Farquharson, 1729, i, 872. 
 
 v. Farquharson, 1756, i, 707. 
 
 v. Farquharson's Tr., 1866, i, 579 ; 
 ii, 496. 
 
 v. Earl of Morton, 1828, ii, 366. 
 Farrant v. Blanchford, ii, 577. 
 Faulds v. Corbet, 1859. ii, 171, 335, 351-60. 
 Fea v. Traill, 1731, i, 87, 108. 
 Fearns v. Young, ii, 324. 
 Featherstonehaugh v. Fenwick, ii, 114. 
 Fegan v. Thomson, 1855, ii, 553. 
 Fellows v. Mitchell, ii, 530. 
 Fenn v. Death, i, 640. 
 Fenton v. Dirleton's Heirs, 1523, i, 79. 
 
 v. Livingstone, 1859, i, 21, 54. 
 
 v. Scott, 1832. ii, 319. 
 
 Fergus v. Fergus, 1833, i. 266, 326, 397, 
 478, 493. 
 Exrs. v. Gore, ii, 422. 
 Ferguson, 1682, i, 316, 390. 
 1836, ii, 331. 
 
 v. Cowan, 1819, i, 96-9. 
 
 v. Douglas, Heron & Co., i, 48. 
 
 v. Ferguson, 1663, i, 77. 
 
 v. Ferguson, 1834, i, 215. 
 
 v. Ferguson, 1852, i, 522, 555. 
 
 v. M'Gachen, 1829, i, 95. 
 
 v. Marjoribanks, 1853, i, 35, 49, 399, 
 431-43. 
 
 v. Menzies, 1830, i, 47; ii, 315, 520. 
 
 v. Munro, 1823, ii, 89. 
 
 v. Murray, 1853, ii, 559. 
 
 Trs. v. Hamilton, 1862, i, 649. 
 Fernie v. Colquhoun's Trs., 1854, i, 250-7, 
 423 ; ii, 63. 
 
 v. M'Guire, ii, 310. 
 
 v. Baird, 1834, ii, 191. 
 Ferraby v. Hobson, ii, 392. 
 Ferrie v. Ferrie, 1849, i, 663, 696; ii, 13 
 437, 569. 
 
 v. Ferrie, 1863, i, 233. 
 
 v. Woodward, 1831, i. 49. 
 Ferrier v. Berry, 1835, ii, 525. 
 
 v. Morehead, 1790, ii, 86. 
 
 v. Duke of Roxburghe, 1813, i, 564. 
 Fetterneerv. Temple, 1680, i, 589. 
 Fettes v. Gordon, 1825, i, 58, 61 ; ii, 427. 
 Field v. Mostin, i, 455. 
 Fife v. Fife, 1855, i, 58. 
 
 Earl of v. Duff, 1828, i, 105; ii, 261, 452. 
 
 E. of v. Duff, 1861, i, 510, 559, 562. 
 
 E. of v. M'Kenzie, 1797, i, 315, 390. 
 
 v. Nicolson, 1751, i, 457. 
 
 Trs. v. Wilson, 1859, i, 571. 
 
 and Kinross Bail. Co. v. Deas, 1859, 
 i, 288 ; ii, 187. 
 Fillingham v. Bromley, i, 589. 
 Finch v. Finch, i, 265. 
 Findlay, 1855, ii, 179, 183, 223, 433. 
 
 v.'Birkmire, 1779, i, 179. 
 
 v. Calder's Exrs., 1747, i, 113. 
 
 v. Macintyre, 1869, i, 387 ; ii, 29. 
 
 Trs. v. M'Omie, 1852, ii, 553. 
 
 Bannatyne & Co. v. Ord, 1846, ii, 506. 
 Finlay, ii, 512. 
 
 v. Dymock, 1854, ii, 445. 
 
 v. Morgan, 1770, i, 103. 
 
 Hodgson & Co., ii, 512. 
 Finlayson, 1810, ii, 331. 
 Finnie v. Commrs. of the Treasury, 1836, 
 
 i, 116, 213, 286,401; ii, 90-8. 
 Fischer v. E. of Seafield, 1822, i, 47. 
 Fish v. Klein, i, 285. 
 Fisher v. Dixon, 1840, i, 118, 137, 477. 
 Fisher's Trs. v. Dixon, 1843, i, 131, 151-6, 
 
 481. 
 Fisher v. Hepburn, i, 315. 
 
 v. Pringle, 1718, i, 188. 
 Fisher's Children v. their Tutors and Cura- 
 tors, 1758, ii, 181. 
 Fisher's Trs. v. Fisher. 1844. i. 130. 144. 
 637, 645.
 
 INDEX OF CASES CITED. 
 
 xxxi 
 
 Fisher's Trs. v. Fisher. 1850. i. 133, 143-8. 
 Fitch v. Weber, i. 211. 
 Fitzgerald v. Pringle, ii, 325. 
 Fleming v. Brook, i, 315. 
 
 v. Brown. 1861. ii, 429. 
 
 v. Campbell. 1845. ii. 252, 332, 523. 
 
 v. Craig, 1863, ii. 466. 
 
 v. Lord Elphinstone, 1804, i. 502. 
 
 v. Fleming. 1661, i, 448. 
 
 v. Fleming, 1800, i, 266, 378. 
 
 v. Imrie'a Trs.. 1868, ii, 351. 
 
 v. Little, 1829, ii, 559. 
 
 v. Martin. 1798, i. 672. 
 Fletcher v. Fletcher. 1838, ii, 319. 
 Flowerdew's Trs., 1854. ii. 174. 553. 
 Flucker v. Noble, 1836, ii. 192. 
 Fogo v. Fogo, 1840. i. 497. 529, 531. 622. 
 
 631 : ii. 236. 
 Folev v. Parrv. i. 320. 
 
 v. Wontner, i. 438; ii, 216. 
 Fonnereau v. Povntz, i, 380. 
 Foord v. Foord, 1682, i. 590. 
 Forbes, 1852, ii. 447. 
 
 v. Ball, i, 320. 
 
 v. Campbell, 1845. ii. 201. 
 
 v. Culloden. 1712, ii, 84. 
 
 v. Drummond, 1772. i. 1>7. 
 
 v. Eden, 1867, i, 435. 
 
 v. Forbes, i. 4-12. 
 
 v. Forbes. 1756, i, 176. 
 
 v. Forbes, 1765, ii, 284, 358, 491. 
 
 v. Forbes, 1774, i, 80. 
 
 v. Forbes, 1816, i. 546. 
 
 v. Forbes, 1823, ii, 472, 499. 
 
 v. Forbes, 1833, ii, 200. 
 
 v. Forbes, 1852, i. 51 ; ii, 369. 
 
 v. Fhllerton, 1636, ii. 470. 
 
 v. F. of Galloway's Trs.. 1808, ii. 180. 
 
 v. Mags, of Olasgow, 1839, ii, 391. 
 
 v. Hunt«r, 1810, i. 100. 
 
 v. Luckie, 1838, i, 656, 698 ; ii, 6-9, 
 L22. 
 
 v. Maitland, 1753, i. 627. 
 
 v. Morrison, 1844, ii. 657. 
 
 v. Peacock, ii. 251, ::!:;. 
 
 v. Skene, 1 7 ~< 7 . i, 697. 
 Forbes. Lord v. Gemi 
 Forbes' Trs. v. Mackintosh, 1822, ii, 338. 
 
 :,u\ 
 Forbes. Sir W. ( y (',,. v. Lord Duncan, 1802. 
 
 32; ii 188, 
 Ford v. Ryan, ii. 310. 
 Fordyce v. Bridgi . L8 12, i. 51 . 
 
 v. Cork), urn, 1827, i. 266. 
 
 v. Willis, i. 271. 
 Fordyce, Presby. of \. 8nanks, 1849, ii 
 Forfeit* 'I I I Mackenzie, 
 
 i. 278. 
 I 260, 872. 
 
 ■ ■: ii. 806, 619, 628. 
 Forrest's Tre. \. Pom I I - 16, i 520 ; ii. 
 
 l, 1868, i 268. 
 v. Forre t, L868, i. 647; ii, 168 
 r, 1670, i. 68. 
 
 Forrester v. Forrester, 1835, i, 622. 
 
 v. Fotheringhame, 1649. ii. 473. 489. 
 
 v. Hutchison, 1826, i, 341, 606. 
 Forsham v. Higginson, ii, 229. 
 Forster v. Hale, ii, 83. 
 Forsyth v. Fergusson. 1832, i, 595 ; ii, 260, 
 367. 
 
 v. Kilgour, 1854, ii, 12, 46, 426, 569. 
 Forsvtlis Trs. v. M'Lean, 1854, i, 385 ; ii. 
 
 72. 107. 
 Fortune's Trs. v. Gillies, 1839, ii, 327, 525. 
 Fotheringham v. Ogilvie, 1797. i, 422. 
 
 v. Saltoun, 1852, ii, 431, 563. 
 Foulis v. Foulis. 1721. i. 169. 
 
 v. Foulis. 1857. i. 695 : ii. 18, 437, 440. 
 
 v. Gilmour. 1072. i. 589. 
 Fowke v. Duncan, 1770. ii, 8. 
 Fowlis v. Gilmour. 1672. i. 111. 
 Fox v. Mackreth. ii, 347, 353. 
 Francis v. Brooking, ii, 58. 
 Eraser, 1837. ii, 224, 433. 
 Fraser. 1854, ii, 446. 
 
 v. Agnew. 1830, ii. 457. 
 
 v. Bishop, 1638, i, 120, 126, 157. 
 
 v. Bowie, i, 189. 
 
 v. Brown, 1707, ii, 61. 
 
 v. Bvng, i, 463. 
 
 v. Fraser, 1810. ii, 43. 
 
 v. Fraser, 1812, ii, 695. 
 
 v. Fraser, 1827, ii, 457, 499, 522. 573. 
 
 v. Fraser, 1831, ii, 482. 
 
 v. Fraser, 1834, i, 280 ; ii, 89. 
 
 v. Fraser, 1854, i, 240, 539. 
 
 v. Hankey & Co., 1847, ii, 113-6, 350- 
 361, 432. 
 
 v. Hill, 1852, i, 292. 
 
 v. Johnston's Trs.. 1821. i, 45; ii, 803. 
 
 v. Lord Lovat. 1842. i. 538 ; ii, 270. 
 
 v. Lovat, 1852, ii, 245, 485. 
 
 v. Mackay, 1833, ii, 457. 
 
 v. M'Nanghton, 1829, ii, 551. 
 
 v. Pattie and Tutor ad litem, 1847, ii, 
 557. 
 
 v. Rankine, 1835, i, 135. 
 
 v. Rose, 1849, i. 297. 588. 
 
 v. Smith, 1776. i, 315, 390. 
 
 v. Spalding, 1812. ii. 477. 483. 
 
 v. St. <r< :. Trs., 1839, ii. -".11. 
 
 v. Thorbnrn, 1855. ii. 46, 445. 
 Fraser's Trs. v. Fraser, 1749. i, L89. 
 I land & Co. v. Finlayson, 1828, ii, 423, 
 Freeman v. 1'arsley. i. 724. 
 Frei mantle v. Bankes, i, 380. 
 Freen v. Beveridge, 1832, ii, 188. 227. 622, 
 
 57::. 
 IV. neli v. MuirMri Iron Co., 1 7 - • 7 . ii. 472. 
 
 v. Earl of WYinvss. 1677. i, -".7. 
 Fivw v. Frew, 1S28. i, :'/.»7. 166 ; ii. 282. 
 Frier v. \V. tern Funk. L866, ii. 
 Frith v. Buchanan, 1887, i. 116; ii. 160. 
 I Crs. v. His Cliildr. n. 17:;.".. j. 496, 
 
 1,16. 
 
 1 v v. Phillips, i. 727. 
 
 Fullarton, 1884, ii. 881, 1 18. 
 Fullarton \. Hamilton | Bargany) I 
 602.
 
 INDEX OF CASES CITED. 
 
 Fullurton v. Kinloeh, 1739, ii, 477. 
 Fullerton v. Dalrymple, 1825, i, 565. 
 Fulton v. Blair, 1722, i, 384. 
 
 v. Fulton, 1864, ii, 531-4. 
 
 v. M'Alister, 1831, ii, 312, 546. 
 Fyfe v. Kedzlie, 1847, i. 383, 460 ; ii, 106-8. 
 Fyffe v. Ferguson, 1842, ii, 167. 
 Fyffe v. Fvffe, 1841, i, 300, 631, 726 ; ii, 29, 
 
 128. 
 Fyffe v. Kerr, 1841, i, 656. 
 
 Gairdner v. Heirs of Duifipace, 1744, i, 547. 
 
 v. Primrose, 1744, i, 525-7. 
 
 v. Royal Bank of Scotland, 1815, ii, 61 . 
 Galbraith v. Deans, 1685, i, 73. 
 
 v. Graham, 1814, i, 513, 573. 
 
 v. Smith, 1837, i, 437. 
 Gall v. Bird, 1855, i, 279. 
 Galletly v. Macfarlane, 1843, i, 233. 
 Gallie v. Mackenzie, 1782, i, 448. 
 Galloway, 1802, i, 316, 390. 
 
 v. Craig, 1861, i, 255, 384, 413 ; ii, 110. 
 
 v. Grant, 1851, i, 259 ; ii, 577. 
 
 E. of v. Kirk-Session of Dairy, 1810, 
 
 ii, 120, 385, 438. 
 
 Gammell v. Cathcart, 1849, i, 536. 
 
 Gardiner v. Spalding, 1779, i, 196. 
 
 Gardner v. Anderson, 1862, ii, 506. 
 
 v. Davidson, 1802. ii, 472. 
 
 v. Gardner, 1830, i, 174. 
 
 v. Hatton, i, 261. 
 
 v. Marshall, ii, 58. 
 
 v. Ogilvy, 1857, i, 218, 220-8. 
 
 v. Pearson, 1810, ii, 318, 408. 459. 
 
 v. Stevenson, 1830, ii, 472. 
 
 v. Trinity House of Leith, 1865, ii, 185. 
 282-8. 
 Gardyne v. Royal Bank, ii, 40, 53. 
 Garland, ii, 506, 513. 
 
 v. Stewart, 1841, i, 57, 196; ii, 98, 427. 
 Garnkirk, Lady v. Gray, 1725, i, 80. 
 Garnock, Visct. of v. Heirs of Entail, 1725, 
 
 i, 557. 
 Garth v. Meyrick, i, 472. 
 Gartshore v. Brand, 1683, i, 419. 
 Garvey v. Hibbert, i, 642. 
 Gavin v. Kirkpatrick, 1826, ii, 138, 199. 
 Gaywood v. M-Keand, 1828, i, 240. 
 Geddes v. Waddell, i, 413. 
 Geils v. Geils, i, 54. 
 Gemmil v. Gemmil, 1729, i. 112. 
 Genary v. Fitzgerald, i, 652-7. 
 Gent v. Harris, ii, 58. 
 Gentle v. Aitken, 1826, i, 425. 
 Gerrar v. Alexander, 1781, i, 646. 
 Gibb v. Gibb, 1769, ii, 314, 521. 
 
 v. Pitcairn, 1829, i, 413. 
 Gibbon v. Johnston, 1787, ii, 153. 
 Gibbs v. Lawrence, i, 315. 
 Gibson v. Macdonald, 1824, ii, 415. 
 
 v. Pearson, 1831, ii, 555. 
 
 v. Pott, 1813. i, 164, 394. 
 
 v. Reid (Hoselaw), 1794, i, 168; ii, 
 284-7. 
 
 v. Stewart, 1840, i, 297. 
 
 v. Wilkie. 1833. ii, 559. 
 
 Gilbert, 1608, i, 170. 
 
 v. Wetherell, i, 155. 
 Gill v. Earl of Fife's Trs., 1823, ii, 309, 501. 
 
 v. Shelley, i, 370. 
 Gillespie v. Gillespie, 1802, i, 124, 170. 
 
 v. Gillespie, 1817, i, 276. 
 
 v. Donaldson's Trs., 1831, i, 237, 246, 
 466. 
 
 v. Marshall, 1802, i, 395; ii, 319. 
 
 v. Robertson, 1824, ii, 141. 
 Gillett v. Peppercorne, ii, 350. 
 Gillies v. Hutton's Trs., 1835, ii, 397. 
 
 v. Longlands, i, 224. 
 
 v. Maclachlan's Rep., 1846, ii. 171, 
 350-8, 362, 577. 
 Gillon & Co. v. Dunlop, 1864, i, 49. 
 Gilmour v. Cadell, 1838, i, 526, 534, 543. 
 
 v. Campbell, 1821, ii, 452. 
 
 v. Gilmour, 1809, i, 144-6. 
 
 v. Gilmour, 1856, i, 559. 
 
 v. Gilmour, 1864, i, 623. 
 
 v. Gilmour's Trs., 1852, ii, 228, 371. 
 
 v. Gordon, 1843, i, 552. 
 
 v. Lockhart, 1756, i, 502. 
 
 v. Mure, 1850, ii, 303. 
 
 Trs. v. Gilmour, 1856. ii, 263 
 Gettings v. M'Dermott, i, 704. 
 Glanville v. Glanville, i, 641. 
 Glas v. Stewart, 1830, ii, 334. 
 Glasgow, 1844, ii, 222. 
 
 Trs. v. Glasgow, 1830, i, 394, 403. 
 
 University of v. Hamilton, 1713, ii. 
 234. 
 Glass v. Mackintosh, 1825, ii, 424. 
 
 v. Weir, 1821, ii, 421. 
 Glassford's Tr. v. Glassford, 1864, i, 346, 
 
 357, 540. 
 Glen v. M'Turk, 1852, i, 553. 
 Glencairn Peerage, 1797, i, 63. 
 Glendinning v. Walker. 1825, i, 587, 669. 
 Glendonwyn v. Maxwell, 1850, ii, 269, 274. 
 
 v. E. of Nithsdale, 1662, i, 105. 
 Globe Ins. Co. v. Mackenzie, 1850, ii, 408, 
 420. 
 
 v. Murray, 1854, ii, 51-6. 
 Glover v. Brough, 1810, i, 312, 391, 493. 
 Glynn v. Locke, ii, 310. 
 Goblet v. Beechey, i, 357-9, 379. 
 Goddard v. Stewart's Children, 1844, i, 416, 
 
 486; ii, 293. 
 Goldie v. Murray, 1753, i, 72. 
 Gollan v. Gollan, 1863, i, 243, 539, 544. 
 Goodall v. Livingston, 1681, i, 123-5. 
 Goodinge v. Goodinge, i, 380. 
 Goodman v. Goodman, i, 21. 
 Goodsir, ii, 424. 
 
 v. Carruthers, 1858, ii, 175, 264, 553. 
 Goodtitle v. Pugh, i, 200. 
 Goold, 1856, ii, 446. 
 Gord v. Needs, i, 377. 
 Gordon v. Anderson, 1748, ii, 344. 
 
 v. Anderson, 1828, i, 247. 
 
 v. Blackburn, 1697, ii, 65. 
 
 v. Cameron's Trs., 1839, ii, 544. 
 
 v. Campbell. 1729, ii, 160. 
 
 v. Campbell, 1842. ii. 507, 559.
 
 INDEX OF (.'ASKS CITED. 
 
 X X X 1 1 1 
 
 Gordon, 1811, i. 411 ; ii, 228. 
 
 v. Cheyne, 1824. ii, 42, 54, 127. 
 . v. Dewar, 1771, i, 575. 
 v. Gordon, 1696, i, 162. 
 v. Gordon, 1731, i, 512. 
 v. Gordon, 1806, i. 184, 200. 
 v.Gordon, 1811, i, 568; ii, 285. 
 v. Gordon, 1832, i, 372 ; ii, 59. 
 v. Gordon's Crs., 1748, i, 496, 565-7. 
 
 622. 
 V. Gordon's Trs., i, 515-9, 609 ; ii, 200, 
 
 367. 
 v. Hay, 1777, i, 528. 
 v. Howden, 1833, i, 297. 
 v. Howden, 1845, i, 292. 
 v. King's Advocate, 1750, i, 565. 
 v. Maculloch, 1791. i. 531, 620. 
 v. Maitiand, 1757. i. 582; ii, 452. 
 v. Meldrum, 1628, i, 119. 
 v. Milne, 1780, ii, 464. 
 v. Mosse, 1851, i, 516. 
 V.Murray, 1765, i, 237, 415. 
 v. Ogilvie, 1761, i, 105. 
 7. T. trie, 1682, i, 590. 
 v. Eoss, 1741, ii, 454. 
 v. Worlie, 1633, i, 35. 
 Gordon's Hospital v. Mins. of Aberdeen, 
 1831, i, 282,365,430; ii, 190. 
 Trs. v. Eglinton, 1851, ii, 182, 237. 
 v. Lord Fife's Exrs., 1862, ii, 75. 
 v. Harper, 1821, i. 94, 298 ; ii, 43, 129, 
 
 135. 
 v. Stewart, 1822, ii, 558. 
 Gore, ii, 354. 
 Gourlay v. Wright, 1864. i, 132; ii, 577. 
 
 Trs. v. Kerr, 1857, ii, 346, 350-7. 
 Gourlie v. Pumbreck, 1710, ii, 305, 519. 
 G :, v. Boyd, 1790, i, 29, 32. 
 
 v. Kichardson, 1633, ii, 327, 567. 
 v. Seton, 1812. i. 492 ; ii, 486. 
 Gowan v. Bradley. 1845, i, 55. 
 v. Pursell, L822, i.272; ii, 60. 
 v. Seton, 1812, i, 387. 
 thwaite, ii. 510-13. 
 Grace, ii. 114. 
 
 Grafftey \. Humpage, i. 711. 
 Graham v. Bannerman, 1822. ii, 148. 
 v. Bontine, L848, i, 513, 560. 
 v. Denhiston, L792, i. 389. 
 v. Duff, 1794. ii. 327, 569. 
 v. Forbes, L829, ii. 56. 
 v. I krantess of G-lencairn, 1806. ii. 285, 
 
 462. 
 v. Graham, 1779. i. 96, 173. 
 v. Graham, L827, ii, 503 6. 
 v. Graham, 1884, i. 1 17; ii, 128. 
 v. Graham, I860, L, LOO. 
 v. Graham'i I It ., 1796, ii, 462. 
 r, Graham Trs., I860, i, 681; ii, 251, 
 
 422. 
 v. Graham' Tr .. L868, i, 404. 
 v. Bope, 1807, i 187, 684, 707. 
 v. Earl of Bopetonn, L798, i, r 
 -.. Hunt. r , L828, i, 681. 
 v. Hunt, r'a Ti 1881 ii K 
 620 
 
 VOL. I. 
 
 Graham v. Keble, 1830. i. 39. 
 
 v. Keble, 1820, ii. 172. 244. 307, 323, 
 
 519 
 v. Kilgour, 1829, ii, 327. 
 v. Lang, 1850. ii, 568. 
 v. M'Nab, 1822. ii, 524. 
 v. M-Queen, 1711. ii, 456, 465-8. 
 v. Marshall and Others, 1860, ii, 244, 
 
 551-7, 561. 
 v. Montrose, 1685, i, 232, 290. 
 v. Murray, 1848, i, 550. 
 v. Pollock, 1848, i, 297. 
 v. Russell, 1791, ii, 22. 
 v. Smith. 1859. i, 433. 
 v. Stewart, 1831, ii, 566. 
 v. Stewart, 1855, ii. 366, 371. 
 v. Mags, of Stirling, 1847, ii, 399. 
 v. Western Bank, 1866, ii, 510. 
 v. Wight, 1850, i, 580. 
 Trs. v. Boswell, 1830, ii, 245. 
 Grahame v. Grahame, 1813, i, 563. 
 
 v. Grahame, 1816, i, 341, 607, 723. 
 v. Grahame's Crs., 1795, i, 563. 
 Grant, 1790, ii, 403. 
 
 v. Anderson, 1860, i, 444. 
 
 v. Campbell's Reps., 1764, ii, 186. 
 
 v. Cuningham, 1747, ii, 417. 
 
 v. Dyer, 1813, i, 353, 590 ; ii, 21. 438. 
 
 v. Findlay, 1845, ii, 335. 
 
 v. Fyffe, 1810, i, 644, 653, 724. 
 
 v. Gibson-Craig, 1829, ii, 558. 
 
 v. Girdwood. 1820, ii, 245. 
 
 v. Grant, 1619, i, 123. 
 
 v. Grant, 1757, i, 69. 
 
 v. Grant, 1794, ii, 9. 
 
 v. Grant. 1846, i, 371. 
 
 v. Grant, 1851, i, 328. 
 
 v. Grant's Trs., 1859, i, 68. 99, 171,627. 
 
 v. Gunn's Trs., 1833, i, 124, 157, 494, 
 639, 722. 
 
 v. Leith, 1811, i, 396. 
 
 v. Murray, 1852, ii, 94. 
 
 v. Shepherd, 1847, i, 240, 323, 361. 
 
 v. Stoddart, 1849, i, 243, 266, 360,463. 
 470. 
 
 v. Sutherland, 1756, ii, 462. 
 
 v. Tyller. 1820, i, 545. 
 
 Tr. v. Anderson's Tr., 1866, i, 655, 
 663 ; ii, 4. 
 
 Trs. v. Grant, i, 259, 329, 337, 493, 
 670, 707. 
 ( (raves v. 1 lolphin, i, 295. 
 Cray, i, 162. 
 
 v. Ballegemo, 1678, i, 234. 
 
 v. Cockburn, 1711, i, 389. 
 
 v. Fraser, 1850, ii, 4 is. 
 
 v. Gray, I H35, i, 399; ii. 328, 520. 
 
 v. Gray's Trs., L818,i, 161. 
 v. Baig, ii, 315. 
 y. M'Caul, 1733,. ii, 151. 
 y. Panton, L705, i. L95. 
 
 y. Skinner. 1864, i. 572. 
 
 y. Walker, 1859, i. 190; ii. 808, 460 
 
 572-7. 
 
 v. Wardrop's Trs. 1861, ii. L19. 
 T, v. Robi rtson, L868, i, 219. 228
 
 XX XIV 
 
 INDEX OF CASES CITED. 
 
 Gray, Lord v. Dundas, 1856, ii, 174, 553. 
 
 v. Paterson, 1854. ii, 568. 
 Great North of Scotland Railway v. Gaultl 
 
 1863, i, 193 ; ii, 568. 
 I been v. Gascoyne, i. 307. 
 v. Howard, i, 380. 
 v. Marsden, i, 323. 
 v. Spicer, i, 295. 
 Greenhill v. Aitken, 1826, i, 174, 414. 
 
 v.Ford, 1826, i, 82; ii, 62. 
 Greenock v. Greenock, 1736, i, 77, G17. 
 Banking Co. v. Smith, 1844, i, 460; 
 ii. 298. 
 Greenwood v. Greenwood, i, 472. 
 
 v. Sutcliffe, i, 342. 
 Gregorson v. Macdonald, 1843, ii, 569. 
 Gregory v. Anderson, ii, 522. 
 Gregson's Trusts, i, 693. 
 Greig v. Christie, 1837, ii, 153. 
 
 Trs. v. Greig, 1854, i, 397, 478. 
 
 v. Johnstone, 1833, i, 299, 324, 493, 
 
 631; ii, 24. 
 v. Malcolm, i, 673, 684 ; ii, 160. 
 v. Moodie, 1839, ii, 94. 
 V. Wemyss, 1670, ii, 62. 
 Grey v. Stewart, 2753, ii, 335. 
 Grierson v. Grierson, 1843, i, 294, 665. 
 v. Miller, ii, 273. 
 v. Ramsay, 1780, i, 216. 
 v. Wallace, i, 415, 460. 
 Griesbach v. Fremantle, i. 224. 
 Grieve v. Amos' Exrs., 1835, ii, 172, 321-6, 
 528, 536. 
 Tr. v. Betlmne, i, 709 ; ii, 12, 46, 565. 
 Griffiths v. Vere, i, 308, 320. 
 Grindlay v. Drysdale, 1833, ii, 45, 173. 
 v. Grindlay 's Trs., i, 213, 219, 223. 
 v. Hill, 1810, ii, 233. 
 v. King, 1853, i, 268 ; ii, 253. 
 v. Merchant Maiden Hospital, 1814, 
 i, 486; ii, 23. 
 Guest v. Willasey, i, 246. 
 Gunn v. Gunn'sTr., 1833, i, 133, 396. 
 Gunning v. Lord Cranstoun, i, 367. 
 Guthrie, 1845, ii, 447. 
 
 v. Cowan or Bell, 1826, ii, 281, 297. 
 v. Dunbar, 182L ii, 108. 
 v. Fairweather, 1853, ii, 307, 323, 519. 
 Guy v. Sharpe, i, 373. 
 
 Hacket v. Gordon, 1673, ii, 566. 
 Hadden v. Haliburton, 1676, ii, 470. 
 Hadaway v. Barker, 1830, i, 188. 
 Haddaway v. Inglis, 1673, i, 164. 
 Hagart v. Hagart, 1834, i, 388. 
 
 v. Robertson, 1834, ii, 334. 
 Haggart v. Vans Agnew, 1820, i, 543. 
 Haig v. Haig, 1857, i, 422, 451, 512. 
 Hailes v. Darell, i, 455. 
 Haining v. Young, 1808, i, 118. 
 Halbert v. Dickson, 1857, i, 80 ; ii, 433, 439. 
 Halcro v. Somerville, 1626, i, 116. 
 Haldane, 1848, ii, 324. 
 
 v. De Maria, 1812, i, 292. 
 
 v. Haldane, 1766, i, 625. 
 
 v. Rhymer, 1707, ii, 189. 
 
 Hales v. Margerum, ii, 272. 
 
 Halkett Craigie v. Craigie, 1817, ii, 292. 
 
 Hall, ii, 512. 
 
 v. Cassie, 1726, i, 562. 
 v. Fisher, i, 367. 
 v. Franck, ii, 188. 
 v. Hill, i, 373, 474. 
 v. Jones, ii, 182. 
 v. Thomson, 1675, ii, 469. 
 Hall's Trs. v. Hall, 1854, i, 20, 25. 
 Halley v. Gowans, 1840, ii, 178. 
 Halliday v. Maxwell, 1802, i, 340, 608. 
 
 v. Morrison, 1857, i, 276. 
 Hambleton v. Hambleton's Trs., 1863, ii, 
 
 259. 
 Hamilton, 1565, ii, 198. 
 1685, ii, 186. 
 1777, i, 272. 
 1852, ii, 375. 
 1859, ii, 259. 
 v. Bennet, 1833, i, 314, 388, 398; ii, 
 
 686. 
 v. Bonar, 1677, i, 95, 292. 
 v. Boswell, 1716, i, 86, 90, 108, 137. 
 v. Bridges, 1832, ii, 339. 
 v. Broun, ii, 1839, 120. 
 v. Brace's Trs., 1857, ii, 326. 
 v. Min., &c, of Cambuslang, 1725, i, 
 
 438. 
 v. Chancellor, 1833, ii, 339, 342, 358. 
 v. De Gares, 1765, i, 643. 
 v. Gibb, 1823, ii, 503-6. 
 v. Gordon, 1726, i, 401 ; ii, 90. 
 v. Hamilton, 1669, i, 278. 
 v. Hamilton, 1714, i, 496, 619. 
 v. Hamilton, 1741, ii, 282. 
 v. Hamilton, 1767, i, 93-7; ii, 465. 
 v. Hamilton, 1838, i, 483, 671, 707. 
 v. Hawkins, ii. 198, 257. 
 v. Henderson, 1857, ii, 570. 
 v. Littlejohn, 1834, ii, 442-9. 
 v. Macdowal, 1815,' i, 560, 571. 
 v. M'Gie, 1828, ii, 125. 
 v. Millar. 1830, ii, 350. 
 v. Moir, 1710, i, 246. 
 v. Viscountess Oxford, 1757, i, 568. 
 v. D. of Queensberry's Exrs., 1834, ii, 
 
 416. 
 v. Rattray, 1868, ii, 10. 
 v. Western Bank, 1856, ii, 77. 79. 
 v. Whitehead, 1833, i, 322, 727. 
 v. Wood, 1770, i, 85. 
 v. AVorley, ii, 479. 
 
 v. Wright, 1842, ii, 112-18, 170, 349, 
 355. 
 Hamilton's Crs., 1749, i, 97. 
 Hamilton's Exrs. v. Hope, ii, 77. 
 Hamilton, D. of v. Baillie, i, 618. 
 v. Douglas, 1761, i, 96, 604. 
 v. Douglas, 1779, i, 172-8, 505. 
 v. Earl of Selkirk, 1740, i, 189, 617 ; ii, 
 227, 413. 
 Hamilton, Mags of v. Hart's Trs., 1854, ii, 
 
 233. 
 Hamilton. Mayor of v. Hodson, i, 312. 
 Hanbury v. Hanbury, i, 452.
 
 INDEX OF CASES CITED. 
 
 XXXV 
 
 Hanbury v. Kirkland, ii, 531. 
 Handyside's Trs. v. Scott, 1868, ii, 175, 552. 
 Hannah v. Guthrie. 1738, i, 386, ii. 72. 
 Hanson v. Fylder, i, 313. 
 
 v. Keating, ii, 58. 
 Harcourt v. Seymour, i. 224. 
 Hardie v. Kay's Trs.. 1821, i. 454-7. 
 
 v. Kay's Trs., 1823, i, 113, 119. 
 
 v. Kirk-Session of Linlithgow, 1855, i, 
 438. 
 Harding v. Glyn, i, 320. 
 Hargreaves v. Michell. ii, 422. 
 Hardman v. Guthrie, 1828, i, 395, ii, 6, 26, 
 319. 
 
 v. Rouget's Trs., i. 37. 
 Harland v. Trigg, i, 320-3. 
 Barley, ii. 337. 
 Harmony, The, i, 8. 
 Harper, 1833, i, 277; ii, 442. 
 
 v. Haves, ii. 337. 
 
 v. Hume, 1850, ii, 79. 
 Harrington v. Hart'-, i, 716. 
 Harrison v. Harrison, ii. 93. 
 Hart v. Tribe, i, 320. 
 Hartree, i, 234. 
 Harvey v. Calder, 1840. i, 294; ii. 65. 
 
 v. Lacy, 1836. ii, 568. 
 
 v. Harvey's Trs., I860, i, 474-8; ii, 3, 
 
 Harvey's Trs. v. Harvey's Trs., 1862, i, 452, 
 
 483. 
 Harvie v. Craig Buchanan. 1811, i, 499, 630. 
 v. Donald, 1815, i, 646. 
 v. Reston, 1799, i. 166. 
 v. Wink, 1847. i. 422. 
 Ii istiev. Htistie, 1671, ii. 319. 
 Hastings v. Marquis of Hastings, 1847, i, 
 502. 
 tings, M. of v. Hastings, 1844, i, 600. 
 iigs, March, of v. Marquis of Hastings' 
 Exrs., i. 16, 149. 
 Haughton v. Harrison, i. 654. 
 i In. 1861, ii, 449. 
 
 ■.. 1 1 ,:.! .].. lM'.l.ii. 46,443 
 Lady v. Dunlop, 1865, i, 558; ii, 77, 
 164 
 
 mntess v. Elphinstone's Tr., 1866, 
 i. 5iii. 652 
 Ilawki 331. 
 
 V. Gi kb mi' Ti •. l>"i». i. 581. 
 v. Hawkins. 1843, i. L88, 708; ii, 412. 
 v. Wedderburn, 1842, i, 51. 
 .ru v. Gordon, 1696, i, 80. 
 Hay, 1861, ii. 449. 
 
 v. Angus, 1795, i, L21 8; ii, L07. 
 v. Binny, 1861, ii, 169, 248, 8] 1. 645. 
 v. Brown, 1825, ii, 804. 
 
 $50, i. 21':;; ii, GOG. 
 v. Crawford, 1678. i, 262, 617. 
 v. II i . 1710, i 420. 
 v. Hay, 1768, i, 196, 627. 
 i . Hay, 1 776, i 
 v. II 608. 
 
 v. Hay, 1842, i, 848, 560. 
 v, Hay, 1861, i 
 
 338 ii L82 268 
 
 Hay v. The Marquis of Tweeddale (Lin- 
 plum), 1773, i, 503, 614. 
 
 v. Wood, 1781, i, 590. 
 Haynes v. Forshaw, ii, 343. 
 Heathcote v. Holme, ii, 520. 
 Heddervrick v. Campbell, 1746, i, 172. 
 Heggie v. Heggie, 1858, ii, 519. 
 Heighington v. Grant, ii. 524. 
 Helling v. Yeud. i. 312. 
 Henderson v. Burt, 1858, i, 467-470 ; 
 ii, 475. 
 
 v. Campbell, 1783. i, 95. 
 
 v. Dougall, 1841, ii. 26, 89. 
 
 v. Hamilton, 1808, ii, 474. 
 
 v. Hamilton, 1858, i, 493-5, 632. 
 
 v. Hendersou, 1782, i, 132, 156, 481. 
 
 v. Henderson, 1791, i, 502. 
 
 v. Henderson, 1815, i, 526, 544-7, 555. 
 
 v. Henderson's Crs., 1760, i, 492. 
 
 v. M-Culloch, 1839, i, 401 ; ii, 90, 107. 
 
 v. Mackenzie, 1836, i, 412. 
 
 v. Nome, 1866, ii, 434. 
 
 v. Sanders, 1634. i. 118. 
 
 v. Saughtonhall, 1683, i, 124. 
 
 v. Selkrig, 1795, i. 26. 
 
 v. Somerville, 1841, ii. 250, 262. 317. 
 
 v. Stewart, 1796. i. 196. 
 
 v. Stuart, 1825, ii, 210. 
 
 v. Wilson, 1717, ii, 470. 
 
 v. Wilson, 1803, i, 38. 721. 
 
 Trs. v. Drummond's Trs., 1831, ii. 130. 
 Henry v. Grant, 1824, i, 487 ; ii, 128, 279. 
 
 v. Watt, 1832, i, 510, 593. 
 Hepburn v. Brown. 1844. i. 254. 
 
 v. Hepburn, 1663, i, 172-8. 
 
 v. Hepburn, 1758, i, 548. 
 
 v. Hepburn, 1860, i, 314, 378. 
 
 v. E. of Hopetoun, 1732, i, 541. 
 
 v.Scott, 1781, i, 105. 
 
 v. Waughton, 1606, i. 233. 
 i! ipburn's Tutor, 1866, ii. 269. 
 
 it v. Reid, i, 381. 
 Herioi v. Farquharson, 1766, ii, 416. 
 Heriot' Hosp. v. Ro ,18 16, ii, 516. 
 
 Trs. v. Fyffe, 1836, ii, 188, 191, 258. 
 Heron v. Espie, i, 193. 
 
 v. Heron, 1756, i, 96. 
 
 v. M'Geoch, 1851, ii, 109. 
 
 v. M'Kie, 1741. i. 96. 
 
 v. Duke of Queensberry and Dover, 
 1733, i, 513, 573. 
 Herries Peer Lfi -. i. 63. 
 
 v. Herries, L806, i. 639, 722: ii 2 
 Herries, Farquhar >v ( !o. v. Brown, 1 
 
 416-9; ii. 50-4,280, 363. 
 Herries, Farquhar & Co. v. Burnet, 1846; ii. 
 
 66, 111. 421. 
 Hethersel] v. Hales, ii. 551. 
 Hewitt \. Foi ter, ii. 530. 
 
 v. Morris, ii. 377. 
 Hiddlestone v. Goldie, 1819, i. 162. 
 
 inbotham v. Clydi Ti 1848, i 
 II. gins v. Livingstone, 1816, ii, 602 I, 
 682, 660 
 
 v. Maxwi I!, 1878 ii 170 
 Hill, 1866, ii. 117
 
 XXXV] 
 
 INDEX OF CASES CITED. 
 
 Hill v. Burns, 1826, i. 239, 821, 426 ; ii, 298, 
 889, 400. 
 
 v. Hill, 1850, ii. 5G3. 
 
 v. Hill's Tutors, 1866, i, 489 ; ii, 21. 
 
 v. Kinloeh, 1856, ii, 514. 
 
 v. Mackay, 1824, ii, 233. 
 
 v. Mercht. Co. of Edinr., 1815, i. 289; 
 ii, 234. 
 
 v. Mitchell & Ors., 1846, ii, 227. 
 Hinchcliffe v. IlincheliftV, i. 451. 
 Hiscocka v Hiscocks, i, 376. 
 Hislop v. Hislop, 1811, i, 185. 
 Hodgson v. Do Beauchesne, i, 12. 
 Hog v. Hog, 1800, i, 226. 
 
 v. Lashley, 1790, i, 113-7. 
 
 v.Lashley, 1792,i,19, 31, 123-7, 131-4, 
 152-7, 192, 476, 481. 
 
 v. Lashley, 1804, i, 22, 127, 256. 
 Hogg v. Campbell, 1864, i, 232, 253. 
 
 v. Grieve, 1807, i, 189. 
 
 v. Hume, 1706, i, 57, 60. 
 Holford v. Wood, i, 472. 
 Holloway v. Badcliffe, i, 225. 
 Holmes v. Cunninghame, 1781, i, 536. 
 
 v. Marshall, 1677, i, 136. 
 Holmes & Campbell v. Cunninghame, 1851. 
 
 i, 346, 557. 
 Holyman, ii, 354. 
 Home v. Grierson, 1678, ii, 472. 
 
 v. Hardy, 1842, i, 274. 
 
 v. Home, 1807, i, 489. 
 
 v. Home, 1837, ii, 29. 
 
 v. Hunter, 1883, ii, 192, 447-9. 
 
 v. Mackenzie, 1845, ii. 569. 
 
 v. Menzies, 1845, ii, 537, 541-2. 
 
 v. Pringle, 1841, ii, 175, 537, 541-7, 
 553. 
 
 v. Watson, 1757, i, 707. 
 
 Trs. v. Ralston, 1834, ii, 558. 
 
 E. of v. Bothwell, 1747, i, 353. 
 Hook v. Hook, i, 12, 14. 
 Hooley v. Hatton, i, 464, 473. 
 Hope, 1858, i, 476 ; ii, 439. 
 
 v. Dickson, 1833, i, 476. 
 
 v. Hamilton, 1851, ii, 339. 
 
 v. Hope, 1856, ii, 175. 
 
 v. Earl of Hopetoun, 1799, i, 579; 
 ii, 494. 
 
 v. Moncrieff's Tutor, 1833, ii, 334. 
 Horn v. Horn, ii, 343. 
 
 v. Stevenson, 1746, i, 100. 
 Home v. Home, 1867, ii, 19. 
 
 v. Marq. of Breadalbane's Trs.. 1835, 
 ii, 455. 
 
 v. Rennie, 1838, i, 554. 
 Home & Rose v. Ram, 1848, ii, 302. 
 Horsbrugh v. Horsbrngh, 1847, i, 462. 
 
 v. Horsbrugh, 1848, i, 242-4, 266. 342, 
 373, 399, 465-489. 
 Horsley v. Bell, ii, 592. 
 Horwood v. West, i, 320-5. 
 Hotham v. Sutton, i, 315. 
 Houlditch v. Spalding, 1847, i, 648. 
 House v. Way, ii, 324. 
 Houston v. Duncan, 1842, ii, 525-7. 
 
 v. Nicolson, 1756, i, 351 ; ii, 287, 291. 
 
 Houston v. Shaw, 1711, i, 263. 
 
 Lady v. Dunbar, 1742, i, 79, 81. 
 Hawarth v. Mills, i, 643. 
 Howat's Trs. v. Howat, 1838, i, 214; ii, 304. 
 
 376. 
 Howden v. Crichton, 1815, i, 268, 270. 
 
 v. Crighton, 1821, i, 132-5. 
 
 v. Fleming, 1867, i, 501-4, 552. 
 
 v. Glassford, 1864, i, 243, 539. 
 
 v. Howden, 1815, i, 182, 265. 
 
 v. Howden, 1841, i, 114. 
 
 v. Porterfield, 1834, i, 579; ii, 291. 
 
 v. Porterfield, 1835, ii, 458, 496. 
 
 (Rocheid's Tr.) v. Rocheid, 1868, i, 508, 
 543-552. 
 Howe v. Earl of Dartmouth, ii, 321-4, 
 
 519. 
 Howes v. Goodlet Campbell, 1758, ii, 572. 
 Howie v. Merry, 1806, i, 172, 240. 
 Hudson & Hudson, ii, 185. 
 Hughes, ex parte, ii, 172. 
 
 v. Empson, ii, 307, 520. 
 
 v. Evans, ii, 91-3. 
 
 v. Wells, ii, 272. 
 
 v. Wynne, ii, 422. 
 Hughson v. Hughson, 1822, i, 190; ii, 
 
 484. 
 Humbie v. Hume, 1634, ii, 60. 
 
 Heritors of v. Min. and Kirk-Sess., 
 1721, i, 438. 
 Hume v. Hume, 1862, i, 14. 
 
 v. Johnstone, 1675. i, 93. 
 
 v. Middlemass, 1836, ii, 77. 
 
 v. Stewart, 1834, i, 260 ; ii, 425, 432-7. 
 
 v. Watson, 1757, i, 130. 
 Humphreys v. Humphreys, i, 331. 
 Hunt v. Hort, i, 379. 
 Hunter v. Dickson, 1831, i, 134. 
 
 v. Bowie, 1829, ii, 336. 
 
 v. Douglas, 1715, i, 85. 
 
 v. Eccles' Trs., 1856, ii, 297. 
 
 v. Kellie, 1834, i, 520. 
 
 v Nicolson, 1836, i, 456, 586. 
 
 v. Nisbet, 1839, i, 610, 635, 709. 
 
 v. Smith, 1793, ii, 60. 
 
 Trs. v. Campbell, 1839, i, 412. 
 
 Trs. v. Hunter, 1864, ii, 446. 
 Hurst v. Beach, i, 373, 380, 469, 474. 
 Huskisson v. Bridge, i, 325. 
 Hutchinson v. Merrit, ii, 45, 173, 410. 
 Hutchison v. Aberdeen Banking Co., 1837, 
 ii, 310. 
 
 v. Hutchison, 1822, i, 476. 
 
 v. Hutchison, 1842, ii, 62. 
 
 v. Middleton. &c, 1830, ii, 130. 
 
 v. Skelton, 1856, i, 660. 
 
 & Co. v. Aberdeen Banking Co., 1837, 
 i, 45. 
 Hutton v. Hutton, 1724, i, 384. 
 Hutton's Trs. v. Hutton, 1847, i, 649. 
 Hynes v. Redington, ii, 321. 
 Hynshaw v. Morpeth Corporation, ii, 105. 
 Hyslop, 1830, ii, 427. 
 
 v. Gordon, 1830, i, 59. 
 
 v. Maxwell's Trs., 1834, i, 407, 487 
 ii. 274.
 
 INDEX OF CASKS CITED. 
 
 XXXVll 
 
 Inglis v. Bell, 1G39, ii, 156. 
 v. Hamilton, 1733. i. 175. 
 v. Harper, 1831, i, 2-4(5, 260, 360-7. 
 v. Harper, 1845. i. 245. 
 v. Inglis, 1781, i. 7'.'. 
 v. Inglis, 1851, i, 559. 
 v. Inglis, 1853, i, 561. 
 v. Miller, 1700. i. 084. 704. 
 v. Mirrie. 1738. ii. 186. 
 v. Moncrieff, 1851. ii. 118, 120. 
 Ingram v. Steinson, 1801, i, 232, 290. 
 Inland Revenue, Comrs. of v. Gordon's Exrs. 
 
 1850, i. 12, 48. 
 Inneraritv v. Gil more, 1840, i, 50, ii, 132, 
 
 155, 160. 
 Innes v. Mags, of Edinburgh, 1798. ii, 515. 
 v. Farquharson, 1692, ii, 281. 
 v. D. of Gordon, 1822, i, 199; ii, 361,432. 
 1846, ii. 331. 
 v. Innes. 1670, i. 634. 
 v. Innes. 1728, ii. 551. 
 v. Innes, 1828, ii, 55, 333. 570. 
 v. Ker, 1807, i. 546. 
 v. Mordaunt, 1822, i. 571. 
 v. Reid's Trs., 1822, ii. 333. 546. 
 v. Russell, 1794. ii. 421. 
 v. Sinclair. 1773. ii. 473, 489. 
 v. Tarbet. 1740. i. 275. 
 Inverness, Mags, ofv. M;Intosh, 1824,i,282. 
 Inverness, Presby. of v. Eraser, 1823, ii. 173. 
 
 434. 
 Inland v. Glass, 1833, ii. 179, 300; ii. 188, 
 224, 299. 
 v. Govan, 1765, i, 80. 
 Irish Charter School Society, i, 365. 
 Irvine v. Earl pf Aberdeen, 1772. i, 559. 
 v. Bannerman, 1844, i, 401-5 ; ii, 90. 
 v. Irvine, 1851, i, 192, 228, 707. 
 v. Kirkpatrick, ii. 576. 
 v. Lang, 1840, i, 263. 
 v. Maxwell, 17 is. ii. 467. 
 v. Monimusk, 1626, ii. 17 1 . 
 v. Tail, 1808 i. 172; ii. 515. 
 Irving v. Houston, 1803, ii. 15. 
 ing, L694, i. L34, L58. 
 \. Erring, 1701, ii, 529. 
 v. Irving, 17 1 1. i, 1 75. 
 v. T;.it, 1*0*. ii. 361, 132. 
 I iac . Defriez, i, 728. 
 
 Jaci v. Burnett. 1846, i, 321-5. 
 ;:. 1857, i. L68. 
 v.Jack, 1862, i, 14. 
 
 v. I d( r, 1742, i. 260, 389. 
 
 L886, ii, 287, 292,819. 
 v. Jackson, i. I 
 v. Simpson, 1 757, ii, 410. 
 
 v. v. .. ii. 174. 
 
 J, 1: .11- Tr. v. Black, 1882, ii, 818, 459 
 
 , i. 816. 
 Jam 651. 
 
 v. 1 (can, ii. 1 1 I. 
 
 v. I- L82I 
 
 •.. Btrachan I 1 -:'..". i. 888, 8 (( 
 
 i- 
 
 Jamieson v. Courts & Co., 1763, ii, 410, 471. 
 Jankouska, i, 39, 138. 
 Jardine v. Currie, 1*30. i. 255. 
 
 v. Lockhart, 1833, i, 579 ; ii, 457,484, 
 
 493. 
 v. Jardine, 1850. ii, 110. 297, 300, 339. 
 Jarvie v. Pearson, 1860, i, 316, 391. 
 Jeffrey v. Aiken, 1826, ii. 346, 350-362,577. 
 v. Aiken, 1831, ii, 108. 
 v. Bathgate's Trs. 1823, ii. 551. 
 v. Blair, 1789, ii, 471. 
 
 v. Brown, 1824, ii, 504-6. 
 
 v. Campbell, 1825, i, 423. 
 
 v. Ure, 1825, ii, 426, 499, 522, 573. 
 
 v. Michell, i, 453. 
 Jenkins v. Gower, i, 715. 
 
 v. Jones, ii, 334. 
 Jerningham v. Herbert, i. 19. 
 Jervey v. Watt, 1732, i. 118, 125. 
 Jessop v. Watson, i, 211. 
 f( es v. Shadwell. i. 48. 
 Jews, Society for Promoting Christianity 
 
 among, i, 365. 
 Joass v. Lord Banff, 1765, i, 97. 
 Johns v. Munro's Tr., 1833, ii, 3. 
 Johnson v. Johnson, ii, 58, 324. 
 Johnston, i, 46. 
 
 v. M. of Annandale, 1727. i. 199. 
 
 v. Ma u<. of Tanongate, 1804, ii. 393. 
 
 v. Cochran, 1829, i, 119, 133, 156. 326 ; 
 ii, 481. 
 
 v. Crawford, 1751, ii, 180. 
 
 v. Crawford, 1855, i, 78. 
 
 v. Johnston, 1740, i, 702. 
 
 v. Johnston, 1814, i, 145. 
 
 v. Johnston, 1840, i, 656, 700 ; ii. 7. 31. 
 
 v. Johnston, 1841, i, 134. 
 
 v. Johnston, 1857, ii, 439. 
 
 v. K( in., it, Li, 343. 
 
 v. Mackenzie's Exrs., 1835, i, 292-7. 
 
 v. Newton, ii, 314-9, 521. 
 
 v. Pettigrew, 1865, i. 232. 
 
 v.Scott, 1860, ii, 505, 550. 
 
 v. Steel, 1733, ii, 461. 
 
 Trs. v. his Crs„ 1738. ii, 169, 174, 55:',. 
 Johnstone v. Beattie, 1856. i, 9; ii, L75, 
 557, 564. 
 
 v. Carson, 1823, ii, 423. 
 
 v. Coldstream, 1843, i, 136. 230. 
 
 v. Pairholme's < Irs., 1770, ii, 410. 
 
 v. Irvine, L824, i, 50*6. 
 
 v. John bone, 1088, i, 244. 
 
 v. John tone, 1829, i. 494. 
 
 v. Johnstone, L839, i. 696-8. 
 
 \. Beattie Johnstone, 1867,i, 82 ;ii,123 . 
 
 \. Lowdi q, L838, i, 2*5 : ii. 161. 
 
 v. Martin, L810, i, 96. 
 
 v. Miller, 1*17. i. I 10, LSI. 
 
 v. Paterson, L8 ■<. i, 476. 
 
 v. Wilson, 1822, ii. 327. 
 
 Trs. v. John tone, L819, ii. 886. 
 Jolly v. Graham, 1824, i. 415, 458, 486 
 Joni I. ii, 52 I. 
 
 v. Hugh, .ii, 251 . 
 
 v. Lev is, ii, ".1 2 
 Iter, i
 
 XX XV HI 
 
 INDEX OF CASES CITED. 
 
 Jopp v. Hay, 1844, ii, 410. 
 
 v. Wood, i, 11. 
 Jordan v. Dickson, 1809, ii, 9, 19. 
 Jordanhill v. Edmiston, 1687, ii, 452. 
 Joy v. Campbell, ii, 530. 
 Justice v. Ross, 1829, i, 571 ; ii, 419. 
 
 Kay v. Kay, 1844, i, 183, 156. 
 
 v. Miln, 1830, ii, 309, 521. 
 
 v. Wilson's Trs., 1850, ii, 559. 
 Keating v. Keating, ii, 242. 
 Keddie v. Christie, 1848, ii, 100. 
 Keech v. Sandford, ii, 114, 172. 
 Keggie v. Christie, 1815, i, 272. 
 Keillerv. Thomson's Trs., 1824, i, 323. 363. 
 Keily v. Monck, i, 589. 
 Keir v. Bremner, 1842, ii, 472. 
 Keirie v. Nicolson, 1671, i, 197. 
 Keith v. Logie's Heirs, 1825, i, 200. 
 
 v. Maxwell, 1795, ii, 232. 
 Keith's Trs. v. Keith, i, 129, 135, 155-7, 
 
 303-9, 380, 401, .722 ; ii, 90. 
 Kelhead v. Irving, 1674, ii, 469. 
 Kell v. Charmer, i, 358. 
 Kelland v. Douglas, 1863, i, 321, 427; 
 
 ii 214 299. 
 Kellie, E. of v. Crawford, 1821, ii, 401. 
 Kelly v. Kelly, 1861, i, 385, 396 ; ii, 92. 
 
 v. Macindoe, 1858, ii, 338, 501-8. 
 
 v. Powlet, i, 380. 
 
 v. Thomson, 1840, ii, 333. 
 
 E. of v. Duncan, 1725, i, 262. 
 Kemp v. Ferguson, 1802, i, 241-4. 
 Kempt v. Watt, 1779, i, 547. 
 Kendall v. Kendall, i, 315. 
 Kennedy v. Allan, 1825, i, 646. 
 
 v. Arbuthnot, 1722, i, 171, 242. 
 
 v. Bell. 1863, i, 8, 12, 22, 114. 
 
 v. Crawford, 1841, i, 656, 662 ; ii, 25, 
 131. 
 
 v. Kennedy, 1747, i, 191. 
 
 v. Kennedy, 1829, ii, 292, 462. 
 
 v. Kennedy, 1843, i, 142, 222, 476; 
 ii, 245, 427. 
 
 v. Maclean, 1851, i, 58. 
 
 v. Ramsay's Trs., 1847, ii, 336. 
 
 v. Rose, 1863, ii, 109. 
 
 v. E. of Ruglen and March, 1762, i, 63. 
 
 v. Rutherglen, 1860, ii, 174, 553. 
 
 v. Wightman, 1827. ii, 310, 528. 
 Kennell v. Abbott, i, 371. 
 Kenney v. Brawne, ii, 358. 
 Kennoway v. Ainslie, 1752, ii, 83. 
 Kensington v. Hastings, ii, 105. 
 Ker, 1855, ii, 254. 
 
 v. Erskine, 1851, i, 181, 268, 270, 493. 
 
 v. Hotchkis, 1837, i, 277. 
 
 v. Innes (Roxburgh cause), 1810, i, 346, 
 359, 614. 
 
 v. Ker, 1747, i, 512. 
 
 v. Innes Ker, 1808, i, 572. 
 
 v. Lady Essex Ker's Trs., 1829. i, 26, 
 32, 179, 269. 
 
 v. D. of Roxburgh's Trs., 1815, i, 479. 
 
 v. D. of Roxburghe, 1833, ii, 458. 
 
 t. Russell, 1838, ii, 38, 242. 
 
 Ker v. Thomson, 1736, ii, 689. 
 
 v. Tumbull, 1758, i, 587. • 
 
 v. Wauchope, 1819, ii, 141. 
 
 Trs. v. Weller, 1866, ii, 259. 
 
 Lady Essex v. Innes, 1810, i, 597-9. 
 617. 
 
 Ladies E. and M. v. D. of Roxburgh's 
 Trs., 1815, i, 175. 
 Kermack v. Storie, 1831, i, 407. 
 Kerr v. Arthur's Trs., 1848, ii, 333-5. 
 
 v. Cochrane, 1836, ii, 494, 579. 
 
 v. Fyffe, 1840, i, 53. 
 
 v. Graham's Trs., 1827, ii, 130, 242, 
 333, 410. 
 
 v. Hastie, 1671, i, 120. 
 
 v. Hay, 1708, i, 233. 
 
 v. Howison, 1708, i, 496. 
 
 v. James, 1858, ii, 13, 135, 314. 
 
 v. Kerr, 1676, i, 256. 
 
 v. M'Arthur's Trs., 1848, ii, 355, 570. 
 
 v. M'Dowall, 1828. i, 292. 
 
 v. Redhead, 1794, i, 571. 
 
 v. Reid, 1795, i, 83. 
 
 v. Thomson's Trs., 1865, i, 586. 
 
 v. Wood, 1830, ii, 331. 
 
 v. Young, 1745, i, 311, 316, 390. 
 
 Trs. v. Justice, 1866, i, 295. 
 
 Trs. v. Moody, 1850, ii, 563. 
 
 Trs. v. Russell, 1832, ii, 416. 
 Kibble v. Stevenson, 1830, i, 233, 639, 722. 
 Kidd v. Brown, 1826, ii, 560. 
 
 v. Kidd, 1843, i, 26, 248, 265, 492. 
 
 v. Kidd, 1863, i, 253, 589. 
 
 v. North, i, 465. 
 Kiernan v. Campbell's Tutors, 1866, ii, 494. 
 Kilgour v. Kilgour, 1845, ii, 10. 
 Killilung Tenant, 1760, ii, 464. 
 Kilpatrick v. Kilpatrick, 1841, ii, 77. 
 
 v. Macalpine, 1793, ii, 198. 
 Kincaid's Trusts, ii, 58. 
 King v. Dawson, ii, 93. 
 
 v. Jaffray, 1828, i, 199. 
 
 v. Thorn, ii, 505. 
 
 v. Earl of Stair, 1847, i, 560. 
 
 v. Wieland, 1858, ii, 55. 
 King's College of Aberdeen, 1741, ii, 219, 
 
 441. 
 Kinglassie case, 1807, i, 439. 
 Kingsgrange, i, 98. 
 Kingston v. Lorton, i, 320. 
 Kinloch, 1859, ii, 241-9, 321, 394, 554. 
 
 v. Kinloch, 1678, i, 707. 
 
 v. Kinloch's Exrs., 1811, ii, 483. 
 
 v. Lundie, 1663, i, 390. 
 
 v. Rocheid, 1800, ii, 575. 
 
 Exrs. v. Kinloch, 1811, ii, 481. 
 Kinnaird, 1680, ii, 180. 
 
 Lord v. Hunter, 1761, i, 558. 
 Kinninmound v. Rochead, 1739, i, 199. 
 Kintore, Earl of, 1814, ii, 285. 
 
 Earl of v. Lord Inverury, 1861, i, 551-4. 
 Kippen v. Darley, i, 441-7 ; ii, 282. 
 
 v. Kippen's Trs., i, 450. 
 Kirk v. Eddowes, i, 374. 
 Kirkcudbright, Presbvtery of v. Blair. 1742. 
 i, 260, 389.
 
 INDEX OF CASES CITED. 
 
 XX XIX 
 
 Kirkland, 1848. ii, 331. 
 
 v. Crighton, 1842. ii, 558, 563. 
 
 v. Her Son, 1635, i, 420. 
 Kirkman v. Booths ii. 556. 
 
 v. Myles, i. 224. 
 Kirkpatrick. 1853, i, 277, 568. 
 
 v. Bell, 1866. ii. 107. 
 
 v. Innes, 1830, ii. 200. 
 
 v. Irvine, 1838, i, 51 ; ii, 452. 
 
 v. Irvine, 1841, ii, 451. 
 
 v. Irvine, 1848. ii, 561. 
 
 v. M 'Alpine, 1703, ii. 257. 
 
 v. Sime, i. 227. 
 Kirkwood v. Keeling, 1842, i, 653. 708. 
 
 v. Patrick, 1847, i. 240; ii, 83. 
 Knight v. Atkins, i, 211. 
 
 v. Bonghton, i. 205, 325. 
 
 v. Knight, 1842. i. 552; ii, 66. 
 
 v. Marjorihanks, ii. 349. 
 
 v. Robinson, 1786, i, 90. 
 
 v. Robertson. 1798, i, 90. 
 Knox v. Irvine. 1700. ii. 462. 
 
 v. Martin, 1850, ii, 77. 
 Kyle v. Allan, 1832, i, 280 ; ii, 89, 432. 
 
 Trs. v. White, 1827, ii, 130. 
 
 1. '> aichere v. Tupper ii, 513. 
 
 Lacev, ii, 347, 350-2. 
 
 Lackie v. Benny, 1748, ii, 209. 
 
 Ladbrooke, ii, 337. 
 
 Lag, 1634, ii, 186. 
 
 Laing v. Barclay. 1865, i, 685, 699 ; ii, 18. 
 
 v. Bruce, 1838, i, 263, 273, 360. 
 
 v. Robertson, 1859, i, 46. 
 Laird v. Kirkwood, 1763, i, 166. 
 
 v. Laird, ii| 113-7, 172, 244, 307. 519, 
 525. 
 
 t. Miln, 1833, i, 283; ii, 188, 447. 
 Lake v. De Lambert, i. 2£ 1. 
 Lamb v. Montgomerie, 1858, i, 42, 478 ; 
 
 ii, 465. 
 Lamhe v. Ritchie, 1837, ii, 527. 
 
 tbert, i, 398 ; ii, 478. 
 Lamington v. Lamington, 1628, i, 86-7. 
 
 v. Moor, 1675, i. 6 17. 
 Lamond v. Lamond, 1776, i, 721. 
 Lamphier v. 1 >i Bpard, i. 812. 
 L Aiiivv. \ Trs., 1850, i, 663,710; 
 
 ii. 18, 126. 
 I "■' of v. Trs. of Battiesmain's 
 
 Mortification, 1852, ii. 891, 400. 
 Landalea v. Landale, 1752, i, 103. 
 Landon v. Hoopi r, ii. 2 18. 
 i m, ii, 183. 
 
 v. M . 1-1.:. ii. 39. ::ll. 
 
 v. i In 'ii. i, 642. 
 Lang v. Brown, 1867, i, 258, 126. 
 
 r. Lang, 1889, i. 526, 668. 
 
 v. I. L889 I. 624, .",11-50. 
 
 v. Pngh, i. 845. 
 
 v. Whytlaw, L809, i. 266, 
 ham v. Bandford, i, 380. 
 I tonv.Olr ant, ii, 827, 619, 521. 
 I Ii 16, i, 68. 
 
 II' pita] v. E. of WemyBB, ii. 219. 
 
 Larkin v. Smith, 1824, ii. 415. 
 
 Lashley v. Hog, 1804, i, 4, 7, 13, 121, 130. 
 
 v. Moreland, 1809, i, 44. 
 Lasswade, Heritors of v. St Cuthbert's, 1844 
 
 i, 5. 
 Lauder v. Lauder's Trs., 1851, ii, 224, 443. 
 
 v. Miller, 1859, ii, 174, 553. 
 
 v. Orr, 1853, ii, 75, 87. 
 Lauderdale. E. of v. E. of Fife. 1830, ii, 132, 
 217, 413, 423, 444, 570. 
 
 E. of v. His Heirs of Entail. 1730, 
 i, 578. 
 
 E. of v. Royle's Exr. 1830, i, 586, 644, 
 683 ; ii, 4. 
 Lauenviile v. Anderson, i, 13. 
 Law, ii, 213. 
 
 v. Law, 1553, 141-7. 
 Lawrie v. Donald, 1830, i, 582. 
 
 v. Edmond's Trs., 1816, i, 119, 130. 
 
 v. Gordon, ii, 451. 
 
 v. Lawrie, 1854, i, 551. 
 
 v. Lawrie, 1859, i, 232-6. 
 
 v. Lawrie's Trs., 1830, i, 180, 269. 
 
 v. Macghie (Redcastle), 1763, i, 503. 
 
 v. Reid, 1712, i, 240. 
 
 v. Spalding, 1764, i, 537. 
 
 Trs. v. Lawrie, 1843, i, 267. 
 Lawson, 1864, ii, 255. 
 
 v. Copeland, ii, 306. 
 
 v. Gilmour, 1709, i, 90. 
 
 v. Imrie, 1841, i, 501, 586, 632. 
 
 v. Lawson, 1777, i, 113-9. 
 
 v. Lcith and Newcastle Packet Co., 
 1850. i. 78. 
 
 v. M-Dougal's Crs., 1738, ii, 454. 
 
 v. Stewart, i, 353, 488. 634, 711 ; ii, 99. 
 
 v. Walker, 1845, ii, 256, 500. 
 Lawton v. Lawton, i, 186. 
 
 v. Salmon, i, 185. 
 Lea v. Landale, 1828, ii, 415. 
 I ch v. Micklem, i. 346. 
 Leake v. Randall, i, 380. 
 Leai v. Leggat, i, 296. 
 Learmonth v. Pat' rson, 1858, ii, 553. 
 I.euniiniit v. Shearer, 1866, ii, 131. 
 I.' chmere v. I.a\ ie, i. 320. 
 Lech v. Gairdner, 1855, ii, 37. 
 Lcckie v. I., ckie, 1766, i. 252. 
 
 v. Leckie, 1854, ii. 62, 74-8, 552. 
 Lee v. Brown, ii. 259. 
 
 v. Donald, 1816, ii, 153-6. 
 
 v. Pain, i. 365, 373, 468. 472; ii, 286 
 
 Lady v. Fee. 1698, ii. 286. 
 . D. of v. E. of Amherst, ii. 315. 
 Leeming, lie, i, 223. 
 I,' ■ \. W'il '.ii. 1S08, i, 118, 1M. 
 L( froy v. Flood, i, 320. 
 Le Maistre v. Bannister, i. 324. 
 I., thbridge \. Thnrlow, i, 452. 
 
 v. N< rhury, i. 624. 
 I ighton v. Li ighton, 1867, i, 701 ; ii, 8. 
 I ighton v. Rubsi II. 1862, i, L86 9. 
 Li ipi rv. C( chrane, 1822, i, 280; ii, 89. 
 I.eith v. Lord Banff, 1711, ii, 403. 
 
 v. Hay, L811, i, 47. 
 
 v. I.eith. 1848, i. '.'7 17'..' 4. 248, 265
 
 INDEX OF CASKS CITED. 
 
 Leith v. Leith, 1802, i, 411 ; ii. 28G. 
 
 v. Leith, 18G3, i, 180-7, 269. 
 
 Trs. v. Leith, 1848. i, 29. 
 
 v. Livingston, 1759, ii, 410. 
 Lennox v. Linton, 1G63, i, 70. 
 Leny v. Leny, 1860, i. 517; ii, 90, 2G0, 366. 
 Leslie, 1814, ii, 189, 386. 
 
 v. Baillie, ii, 428. 
 
 v. Dick, 1710, i, 516. 
 
 v. Leslie (Balquham), 1742, i, 503. 
 
 v. Leslie, 1747, i, 169. 
 
 v. Leslie, 1752. i, 528. 
 
 v. Leslie. 1774, i, 615. 
 
 v. Orme, 1799, i, 569. 
 Leveu and Melville, E. of v. Cartwright, 
 
 1861, i, 508-13, 535 ; ii, 364. 
 Leven, E. of v. Montgomery, 1683, i, 169. 
 Lewis v. Lawrie, 1736, i, 504. 
 Lichfield v. Baker, ii, 324. 
 Liddard v. Liddard, i, 320. 
 Liddel v. Kirk Sess. of Bathgate, 1854, i, 
 289, 438 ; ii, 399, 402. 
 
 v. Wilson, 1855, i, 95! ii, 313, 364. 
 Lillie v. Lillie, i, 162. 
 
 v. Riddel, 1741, i, 496, 646. 
 Lincoln v. Wright, ii, 306. 
 Lindores v. Stewart, 1714, i, 256, 457, 575. 
 Lindsay, ii, 403. 
 Lindsay, 1848, ii, 324. 
 
 1849, ii, 330. 
 
 1857, ii, 331. 
 
 v. Earl of Aboyne, 1844, i, 524, 530-7. 
 543-8. 
 
 v. Anstruther's Tr., 1827, i, 373. 46G, 
 474. 
 
 v. Balgonie, 1627, ii, 575. 
 
 v. Barmcotte, 1851, ii, 77-82. 
 
 v. Dott, 1807, i, 623, 645. 
 
 v. Lindsay, 1819, i, 169. 
 
 v. Lindsay, 1847, ii, 217, 222, 445. 
 
 v. Giles, 1844, i, 294 ; ii, 54, 84. 
 
 v. University of Glasgow, 1794, ii, 462. 
 
 v. Lothian, 1685, i, 326, 420. 
 Lindsay's Crs., 1714, i, 174. 
 
 v. Oswald, i, 378, 514, 525-7. 
 Lingen v. Sowray, i, 224. 
 Linplum, i, 604. 
 Little v. Little, 1856, ii, 107. 
 Littlejohn v. Hamilton, ii. 417. 
 
 v. Weir, 1695, i, 84. 
 Livesay v. Livesay, i, 664. 
 Livingston, ii, 124. 
 
 v. Goodal, 1683, i, 167. 
 Livingstone v. Livingstone, 1684, i, 376, 
 470. 
 
 v. Lord Napier, 1757, i, 496. 
 
 v. Lord Napier, 1765, i, 619. 
 Lobley v. Stocks, i, 469. 
 Lock v. De Burgh, i, 204. 
 Lockhart, i, 597. 
 
 v. Denham, 1811, i, 526. 
 
 v. Lockhart, 1761, ii, 288. 
 
 v. Lockhart, 1839, i, 393. 
 
 v. Lockhart, 1841, i, 555. 
 
 v. Lockhart, 1853, ii, 290. 
 
 v. Macdonald, 1837, i, 598. 
 
 Lockhart v. Macdonald, 1842, i, 494. 
 
 v. Ross, 1814. i. 632. 
 
 v. Scott, 1858, ii, G. 
 
 v. Wingate, 1011, ii, 54. 
 
 I kie v. MasoD, 1837, ii, 411. 
 
 Lockwood's Trs. v. Falconer, 1866, i, 679, 
 
 697 ; ii, 20. 
 Lockyer v. Savage, i, 296. 
 Logan v. Campbell, 1757, i, 169 ; ii, 259. 
 
 v. Galbraith, 1665, i, 86, 109. 
 
 v. Logan, 1839, i, 624. 
 
 v. Meiklejohn, ii, 188, 194-9, 203-6. 
 
 v. Logan, 1823, i, 244, 263. 
 
 v. Logan, 1839, i, 530-2. 
 
 v. Stevens, ii, 98. 
 
 v. Wright, 1831, i, 367-375. 
 Londesborough, Lord v. Somerville, i, 394. 
 Long v. Dennis, i, 356. 
 Lord v. Colvin, 18G0, i, 57, 213, 304, 401, 
 716 ; ii, 90-8, 263 
 
 v. Colvin, 18G5, i, 39, 55, 117, 401, 717 ; 
 ii, 90, 435. 
 
 v. Godfrey, ii, 324. 
 
 v. London City, ii, 105. 
 
 v. Sutcliffe, i, 469. 
 Lothian v Willison, 1725, i, 565. 
 Loudon v. Loudon, 1861, i, 42, 175. 
 
 v. Murray, 1752, ii, 464. 
 Lovat, Lord v. Fraser, 1842, ii, 374. 
 
 v. Fraser, 1866, ii, 460, 561. 
 Loveday v. Hopkins, i, 209. 
 Low, 1865, ii, 407. 
 Lowden, 1835, ii, 449. 
 Lowfield v. Stoneham, i, 381. 
 Lowndes v. Douglas, 1862, i, 9-12. 
 
 v. Lord Stamford, i, 205. 
 Lowrie v. Borthwick. 1683, i, 504. 
 Lowson v. Ford, 1866, i, 234, 360. 
 
 v. Young, 1854, i, 132, 174, 476 ; ii. 
 125. 
 Lowther v. Lowther, ii, 347, 352. 
 
 v. Maclaine, 1786, ii, 287. 
 Lowthian v. Aglionby, 1801, i, 82. 
 
 v. Ross, 1797, ii," 480. 
 Luard, ii, 510. 
 Lucas v. Beal, ii, 513. 
 Ludquhairn v. Haddo, 1632, ii, 115. 
 Lumsden v. Buchanan, 1865, ii, 510-3. 
 
 v. Lumsden, 1840, i, 551. 
 
 v. Peddie, 1866, ii, 510. 
 Lundy v. Sinclair, 1713, ii, 453. 
 Lushington v. Boldero, i, 569. 
 Luss, Lady v. Inglis, 1678, i, 78-80. 
 Lyall v. Paton, i, 7. 
 
 v. Christie, 1823. ii, 415. 
 Lyle v. Falconer. 1842, ii, 302. 
 
 v. Lyle, 1842. ii, 160. 
 Lynedoch v. Auchterlonv, 1827, ii, 188, 203, 
 316. 
 
 v. Auchterlony, 1832, ii, 184, 524-7. 
 Lyon v. Gray, 1751, i, 634. 
 
 v. Lyon's Crs., 1724, i, 417. 
 
 v. Sibbald, 1823, ii, 544. 
 
 Macalister v. Ferguson, 1842, ii, 366. 
 v. Macalister, 1836, i, 395, 403.
 
 INDEX OF CASES CITED. 
 
 Macalister v. Macalister, 1865, i, 579. 
 Macalister's Exrs. v. Macalister's Trs., 1834, 
 
 i, 82, 49, 53. 
 Macalister's Trs. v. Macalister. 1851, i. 411. 
 
 v. Macdonald, 1763, ii, 59. 
 Macara v. College of Aberdeen, 1786, i. 25. 
 426. 430 ; ii, 402. 
 
 v. Wilson. 1848, i, 101. 
 Macartlmrs v. Macbrair, 1844, i. 292. 
 MacArthur v. Jarnieson, 1825, i, 262. 
 MacAslan v. Glen. 1859. i, 256 ; ii, 222, 
 
 403. 
 MacAulav v. Bell. 1712, i. 126, 135. 
 
 v. Rennv, 1803, i, 284. 
 MacBrair v. Maitland, 1736, ii, 461. 
 MacC'ormack v. Barber, 1861, ii, 8. 
 MacCaskill v. Cameron, 1810. ii. 388. 
 MacCaul's Crs. v. MacCaul 1745, ii, 462. 
 
 '.v v. MacCaw, 1787. i. 112, 143. 
 MacClelland v. Bank of Scotland, 1857, ii, 
 
 125. 
 MacClure v. Baird, 1807. ii, 337. 
 MacClymont v. Hughes, 1827, ii, 310. 525, 
 
 533-6. 
 Maccomie's Exrs. v. Strachan, 1760, ii, 460. 
 MacCormack v. Barber, 1861, i, 728 ; ii, 29, 
 299. 
 
 v. Barber, 1861, i, 323, 652. 724. 
 MacCracken v. Pearson, 1821, i, 167. 
 MacCnig v. .MacAulav, 1830, ii, 312, 546. 
 MacCubbin v. Ferguson, 1715, ii, 341. 
 
 v. Venning, 1859, i, 51; ii, 571. 
 MacCnbbin'a Exrs. v. Tait, 1868, ii, 109. 
 MacCulloch, 185*, ii. 207. 
 
 v. Foreman, 1851, ii. 174. 
 
 v. MacCracken, 1857, i, 276. 
 
 v. MacCulloch, i, 300. 
 
 v. MacLeod, 1731, i, 496, 619. 
 
 v. Maitland, 1788, i, 85. 
 
 v. Wallace, 1860. ii, 186. 
 MacDiarmid v. MacDiarmid, 1828. i, 274. 
 M nald v. Bryce, i. 305 : ii. 97. 
 
 v. Di 62. 
 
 v. Lain-. 17'.";. i, 6-9. 
 
 v. Lockhart, 1836, ii. 291. 
 
 v.I. 342, i, 520, 613. 
 
 v. London, 1855, ii, 62 
 
 v. MacDonald, 1808, i, 123. 
 
 v. Ma - 16, ii, 319. 
 
 v. Ma IV.. i. 267. 
 
 v. Lord Macdonald, 1832, ii, 283,485. 
 
 v. Mackinnon, i. 68, 629. 
 
 v. MacLachlan, L881, i. 649. 
 
 v. PL , L821, ii. 94, 342. 
 
 Macdouald's Ti onald, 1842, ii, 
 
 MacDonni 11 v. Reynolds 1824, ii, 492. 
 . I 363, ii, 246. 
 v. Macdongall, 1866, i, 668, 679, 728 6; 
 
 ii. 80. 
 v. MacdongaU'e Ore., 1801, i. 86, 159. 
 v. W: on L868, i, 126, 181. 
 
 Ion. 1888, i. 167. 
 v. MacdowaU, L789, ii. 219, 408, 1 1 ' 
 v. MacGilL 1847, i, 800 681, 
 v. Milligan, L826, ii. I 
 70L. I. 
 
 MacDowall v. Kelton's Crs.. 1742. i. 97. 
 Macdowal v. Russell, 1824, ii, 42, 341. 
 MacEachern v. Campbell's Trs., 1865, i, 
 393-9. 
 
 v. MacEachern, 1833, ii, 699. 
 MacEwan v. Campbell, 1851, ii, 505, 550. 
 
 v. Pattison, 1865, i, 332, 342. 350. 610. 
 MacEwen v. MacEwen, 1842, ii, 241, 319.. 
 
 v. Thomson, 1793, i, 188. 
 Macfarlane, 1857, 303. 
 
 v. Buchanan. 1779, i. 95. 
 
 v. Cranstonn, 1823, i, 401, 420, 568. 
 
 v. Donaldson, 1835, ii, 433, 448. 
 
 v. Finlay, 1825, ii, 319. 
 
 v. Fisher, 1837. ii, 77, 81. 
 
 v. Watt, i, 373. 
 Macgeorge, 1856, ii, 44">. 
 Macgibbon v. Macgibbon, 1852, i, 252 ; 
 
 ii, 50. 
 Macgill v. Crawfurd, 1671, i, 481. 
 
 v. Law, 1798, i. 562; ii, 284-8. 
 
 v. Macgill. 1798, i, 83. 
 Macgillivray v. Souter, 1860, i, 101, 521, 
 
 592. 
 Macgowan v. Jaffray, 1842, i, 329, 345. 
 
 v. Mackinlav, 1835, ii, 149, 270. 
 
 v. Robb, 1864, i, 623, 647 ; ii, 344, 571. 
 Macgregor v. Brown, i, 527-9. 
 
 v. Forrester, 1835, i, 638, 646. 
 
 v. Gordon, i, 515-8, 595, 601 ; ii. 253. 
 
 v. Hunter, 1850. ii. 309, 507. 
 
 v. Macdonald, 1843, ii, 281. 
 
 v. Stirling 1882. ii. 884. 
 
 v. Tolmie, 1860, i, 185. 
 
 Trs. v. Macgregor, 1820, i, 423. 
 
 and Fraser v. Macandrew, 1831, ii, 127. 
 Macgrigor v. Hamilton, 1845, i, 552. 
 
 i her v. Hill, 1822, ii, 551. 
 Macharg v. Blane, 1760, i, 38, 721. 
 Macinnes v. Macallister, 1827, i, 393-6, 478. 
 483 ; ii, 260, 367, 373. 
 
 v. Macallister, 1830, i, 39. 
 Macintosh v. Gibson, i, 415. 
 
 v. Macintosh, 1812, i, 575. 
 
 v. Primrose, 1685, i, 194. 
 Macintyxe v. Fairie's Trs., 1863, i, 364. 
 
 v. MacCrie, 1809, i, 437. 
 
 v. Macfarlane, 1821, i. 466. 
 
 v. Macfarlane's Trs., 1821, i, 230. 2 15. 
 
 v. Macintyre's Trs., 1805, i, 120-7. 
 Mackay v. Ambro e, 1829, ii. 76, 80. 
 
 v. Campbell's Trs., 1835, ii. 462. 
 
 v. Dairy mple, 1798, i, 566. 
 
 v. Davidson. 1831, i, 161. 
 
 v. Ewing, 1867, i, 326, 337 ; ii, 258. 
 
 v. Fowler, 1744, i, 120, 120. 187. 
 
 v. Mackay, 1783, ii, 480. 466. 
 
 v. Mackinnon < iampbi 11' Ti .. 1885, 
 i. 504. 
 
 v. Robertson, 1726, i, 169, 707. 
 Mackellar v. Balmain, L817, ii. 171. 846 
 850. 
 
 v. Bunter, 1868, ii, 106 9. 
 
 v. Mackellar, 1861, i, 278-6. 
 
 v. Marqnia, L840, i, 688, 646; ii, 61. 
 Mackenzie, 1628, i. 84, 109.
 
 xlii 
 
 INDEX OF CASES CITED. 
 
 Mackenzie, 1855, ii, 248. 
 
 v. Bradbury, i, 329. 
 
 v. Brodie, 1859, ii, 106. 
 
 v. Burnett, 1688, i, 234. 
 
 v. Dickson, 1840, i, 679. 
 
 v. Gillanders, 1853, i, 96. 
 
 v. Gordon, 1839, ii, 66. 
 
 v. Grieve, 1828, ii, 314, 443. 
 
 v. Hanbury, 1846, ii, 569. 
 
 v. Holte's Legatees, 1781, i, 652-6, 671, 
 724. 
 
 v. Kinminity's Cr., 1750, i, 589. 
 
 v. Macdonafd, 1736, i, 278, 281-5. 
 
 v. Mackenzie, 1818, i, 497, 531, 621. 
 
 v. Mackenzie, 1823, i, 543. 
 
 v. Mackenzie, 1824, i, 568. 
 
 v. Mackenzie, 1807, ii, 473. 
 
 v. Mackenzie, ii, 332, 457. 
 
 v. Robertson, 1668, i, 121. 
 
 v. Smitb, 1861, ii, 55, 421. 
 
 v. Stewart, 751, i, 573. 
 
 v. Thomson, 1846, ii, 423-6, 522, 573. 
 Mackenzie's Trs. v. M'Dowall, 1852, i, 400. 
 
 v. A. Mackenzie's Trs., i, 328. 
 Mackenzie of Redcastle's Crs. v. His Child- 
 ren, 1795, i, 415. 
 Mackie v. Dunbar, 1628, ii, 161, 416, 572. 
 Mackilligin and Ors. v. Mackilligin, 1855, 
 
 i, 386 ; ii, 213, 234. 
 Mackinnon v. Macdonald, 1765, i, 68, 629. 
 
 v. Mackinnon, 1756, i, 68, 504, 628. 
 
 and Campbell's Trs. v. Campbell, 1838, 
 ii, 262. 
 Mackintosh v. Gordon, 1845, i, 637, 647, 651. 
 
 v. Mackintosh, 1812, i, 637, 648. 
 
 v. Mackintosh, 1855, ii, 371. 
 
 v. Mackintosh, 1863, ii, 245. 
 
 v. Macqueen, 1829, i, 95. 
 
 v. Townsend, i, 25. 
 
 v. Williamson, 1849, ii, 245. 
 Mackintosh's Trs. v. Mackintosh, 1852, ii, 
 
 246, 523, 553, 570. 
 Mackintosh Fund, Trs. of v. Mackintosh, 
 
 1852, ii, 398. 
 Macknight v. Irving, 1805, i, 185. 
 Maclachlan v. Bennet, 1826, ii, 467. 
 
 v. Campbell, 1824, i, 419, 424. 
 
 v. Meiklam, 1857, i, 52, 304, 813. 
 
 v. Bob, i, 49. 
 
 v. Watson, 1839, i, 255. 
 MacLachlan's Exrs. v. Scott, 1850, ii, 439. 
 Maclaine v. Maclaine, 1807, i, 564. 
 
 v. Maclaine, 1845, ii, 286. 
 
 v. Maclaine, 1852, i, 362. 
 
 v. Robertson, 1825, ii, 345. 
 Maclaucblan v. Campbell, 1757, i, 340, 608. 
 Maclauchlane v. Maclauchlane, 1807, i, 79. 
 MacLaverty v. MacLaverty, 1864, i, 310. 
 MacLean v. MacLean, 1849, i, 101 ; ii, 279. 
 
 v. Maclean's Trs., 1861, i, 248. 
 
 v. Richardson, 1834, ii, 71. 
 Maclehose v. Bogle, 1815, i, 322, 641. 
 MacLeish's Trs. v. Gibson and Ors., 1841, 
 ii, 103, 402. 
 
 v. M'Leish, 1841, i, 324; ii, 87, 211, 
 218, 238, 255, 393. 
 
 MacLeish v. Rennie, 1826, i, 87, 106-8. 
 
 MacLeland v. Shaw, i, 402. 
 
 MacLelland v. Bank of Scotland, 1857, ii, 
 
 52, 77, 552. 
 MacLeod v. Cunninghame, 1841, ii, 319. 
 
 v. MacKenzie, 1827, ii, 39, 54. 
 
 v. Macleod, 1828, i, 512 ; ii, 261, 275, 
 370. 
 Macmaster v. Dickson, 1834, i, 51. 
 MacMichael v. Queensberry's Exrs., 1829, 
 
 i, 191. 
 MacMicban v. MacMichan's Trs., 1859, i, 
 
 280. 
 MacMillan v. Armstrong, 1848, ii, 199, 256, 
 260, 538. 
 
 v. Campbell, 1831, ii, 54. 
 
 v. Campbell, 1834, i, 39, 49, 54, 124, 
 510. 
 
 v. Free Church Assembly, 1862, i, 288. 
 
 v. Macmillan, 1850, i, 235, 244, 324, 
 415, 675. 
 
 v. MacMillan's Exrs., 1814, i, 194. 
 
 v. Tait, 1775, ii, 452. 
 MacMorine v. Cowie, 1845, i, 48, 50. 
 MacMurrav v. MacMurray's Trs., 1852, i, 
 
 118, 125, 131. 
 MacNab v. Spittal, 1797, i, 316. 
 
 v. Whitbread, i, 320. 
 Macnair v. Bloomfield, ii, 310-6, 533-16. 
 
 v. Macnair, 1791, i, 300, 322, 728 ; ii, 
 299. 
 Macneight v. Lockhart, 1843, i, 78, 81, 90, 
 
 108. 
 Macneil v. Macneil, 1826, i, 417. 
 
 v. Macneil's Trs., 1826, i, 261, 275, 
 512 ; ii, 370. 
 
 v. Blain, 1835, ii, 120. 
 
 v. Steel's Trs., 1829, i, 254. 
 MacNicol v. MacNicol, 1814, ii, 481. 
 
 v. MacNicol, 1816, ii, 481. 
 Maconochie, 1857, ii, 252. 
 
 v. Greenlee, 1780, i, 422. 
 Macpherson, 1840, ii, 215, 446, 449. 
 
 v. Mackintosh, 1773, ii, 566. 
 
 v. MacPherson, 1746, ii, 173. 
 
 v. Macpherson, 1839, i, 410 ; ii, 370. 
 
 v. Macpherson, 1841, ii, 432. 
 
 v. Macpherson, 1843, ii, 286. 
 
 v. Macpherson, 1846, i, 411. 
 
 v. Macpherson, 1852, i, 54, 214 ; ii, 
 260, 367, 370-7. 
 
 v. Macpherson, 1855, i, 232 ; ii, 149. 
 
 v. Macpherson, 1857, ii, 317. 
 
 v. Stewart, ii, 97. 
 
 v. Tytler, 1850, i, 38. 
 Macqueen v. Nasmyth, 1831, i, 410. 
 Macrae v. Macrae, 1836, i, 278. 
 
 v. Macrae, 1839, ii, 54. 
 MacRath v. Alexander, 1712, i, 589. 
 Macreadie v. Macfadzean, 1752, i, 632. 
 MacTaggart's Rep. v. Robertson, 1834, i, 
 
 297; ii, 192. 
 MacTarget v. MacTarget, 1829, ii, 187. 
 MacTavish v. Lady Saltoun, 1821, i, 51. 
 MacVean v. MacYean, 1864, ii, 77. 
 MacWhirter v. Miller, 1744, ii, 161.
 
 INDEX OF CASES CITED. 
 
 xliii 
 
 Maberly & Co., 1834, i, 53. 
 
 Macey v. Shurmer, i. 320. 
 
 Mack v. Jenkins, 1814, ii. 417. 
 
 Midden v. Currie's Trs., 1842, i. G37, G45. 
 
 Malion v. Savage, i, 728. 
 
 Mainwaring v. Beevor, i. 657. 
 
 Mair v. Thorn's Trs., 1850. ii, 315. 
 
 Maitland v. Cockerell, 1827, ii. 167, 552. 
 
 v. Maitland, 1715. i. 107. 
 
 v. Maitland, 1757. ii, 452-4. 
 
 v. Maitland. 1843, i. 129. 140. 151, 
 479, 722. 
 
 v. Maitland, 1864, i, 639. 726. 
 
 v. MacDermaid, i, 657, 695 ; ii. 24, 440. 
 Majendie v. Carrutkers, 1819. i, 422. 
 Malcolm v. Bardner, 1823, i, 571. 
 
 v. Brown, 1807. i. 570. 
 
 v. Caxmichael, 1854, ii. 120, 335. 
 
 v. Dick, 1866, ii, 167. 
 
 v. Male ,1m, 1823, i, 411 : ii. 285, 332. 
 
 v. Martin, i, 38. 
 
 v. « m. ii, 545, 551. 
 
 v. West-Lothian By. Co., 1835, ii. 509. 
 Malim v. Barker, i. 320. 
 
 v. Keighley, i, 320-5. 
 Malloch v. MacLean, 1867, i, 185. 
 Malone v. O'Connor, i. 320. 
 Mann v. Thomas, 1830, i, 116. 
 Manner's Tr. v. Willison, 1831, ii, 544. 
 Manning v. Thesiger, i. 472. 
 Mansfield v. Brown, 1735, ii, 410. 
 
 v. Stuart, 1833, ii, 283. 
 
 v. Young's Tr.. 1843, ii, 418. 
 Mansfield, Earl of * Ogle, ii. 523. 
 Mansfield, Earl of v. Stewart, 1844, i, 559. 
 Manson v. Baillic. 1855. ii. 174. 547, 553. 
 Mar. Earl of v. EraMne, 1831, i, 326; ii, 
 
 285. 
 March, Earl of v. Kennedy, 1760, i, 516, 
 
 520. 
 Marchharks v. Brockie, 1836, i, 710; ii, 
 
 17. 
 Marder'a Trs. v. Harder, 1853, ii, 28, 295. 
 Marjoribanks, L822, ii, 219, 1"::. 
 
 ■ . i. 205. 
 Marnock v. Wilson, 1855, ii, 19. 
 II. L859, ii, 443. 
 
 v. And t on, 1841, ii, 1 74. 
 
 v. Finlaj . 1 7 17. i. 1 18. 
 
 v. ( iraliain. 1809. ii. 1 15. 
 
 v. Holloway, ii. 656. 
 
 v. J. vail, L869, i. 194; ii. 71. 118. 
 
 v. Marshall, 1823, ii. 566. 
 
 v. .M - L829, i. 182, 157. 
 
 v. Milne, L677, ii, L94, 806. 
 
 v. Mollison, 1866, ii. 119. 
 M urtin, i, 278. 
 
 v. Agnew, 1749, i, 181. 
 
 v. : ' i6, i. L97. 
 
 v. Bannatyne, 1861, i,296; ii, 68 276, 
 146. 
 
 v. Drinkwater, i, 471. 
 
 v. D ; i i 548, 668. 
 
 v. Glover, i, 816, 715. 
 
 v. Bolgate, 1866, i. 669, 726. 
 
 v. K 1868, i 620, 615; ii I 
 
 Martin v. Martin, 1795, i, 40, 478; ii, 3. 
 
 v. Paterson. 1808, ii, 94. 
 
 v. Thorns, 1856, ii, 55. 
 
 v. Wight, 1841. ii, 213, 218. 
 Martin's Trs. v. Milliken. 1864, i, 623,643-7, 
 
 654-7, 663, 694; ii, 19. 
 Mason v. Limburg, i, 320. 
 
 v. Mason, i, 61. 
 
 v. Scott's Trs., 1836, i, 440. 
 
 v. Skinner, i, 247, 300, 401 ; ii, 90, 
 104, 389. 
 Master v. De Croismare, i, 288. 
 Massey v. Burton, ii, 279. 
 Massie's Trs. v. Massie, 1816, i, 189 ; ii, 
 
 483. 
 Mathieson, 1857, i, 46. 
 
 v. Clarke, ii, 554. 
 
 v. Mathieson, 1766, i, 448. 
 Matthew v. Scott, 1844, i, 657, 700; ii, 10, 
 
 25. 
 Matthie v. Edwards, ii, 334. 
 Maxwell, 1857, i, 409 ; ii, 375. 
 
 v. Currie, 1724, i, 171. 
 
 v. Drummond's Trs.. 1823, ii. 346-9, 
 351-7. 
 
 v. Earl of Galloway, 1775, i, 297. 
 
 v. Grierson, 1843, ii, 289. 
 
 v. Houston, 1717, ii, 489. 
 
 v. MacClure, 1857. i, 8, 13, 22. 
 
 v. Maxwell, 1667, ii, 117, 171, 320. 
 
 v. Maxwell, 1675, i, 95. 
 
 v. Maxwell (Munshes), 1817, i, 531. 
 
 v. Maxwell, 1843, i, 565. 
 
 v. Maxwell, 1852, i. 551. 
 
 v. Maxwell, 1866, i. 714-720. 
 
 v. Maxwell, ii, 71-3. 
 
 v. Neilson, 1722, i, 173. 
 
 v. Smith, 1860, i, 552. 
 
 v. Tenants. 1630, i, 109. 
 
 v. Wylie, 1837, i, 57. 695. 719; ii, 11, 
 31, 89, 122, 131, 438. 
 Maxwell's Trusts, i, 204. 
 May v. Ross, 1667, i, 164. 
 Maybank v. Brooks, i. 381. 
 Mayne v. M'Keand, 1835, ii, 326,433, 522, 
 
 567. 
 Mead v. Anderson, 1830, i, 19, 26, 32-4; 
 ii, 481. 
 
 v. Bwinton, 1796, i, 86. 
 Mearns v. MearnB, 1775, i. 329. 
 
 !l v. Camplirll, 1838, ii. 55. 
 Megget v. Thomson, 1827, ii, 206. 
 Meggison v. Moore, i, 320-5. 
 .Miklam \. (ila , lord. 1851, ii, 65, 332. 
 Mi iklam's Trs. v. Mrs Meiklam's Trs., 
 
 L862, i. 189, 210, 221 ; ii, 251. 
 Mi in v. MacCall, L844, ii. 160, 244. 
 
 v. Taylor, 1827, i, 647. 
 
 v. Taylor, L880, i, 048. 
 
 v. Towers, 1829, ii. 84. 
 
 v. Turner, L866, i, 52. 
 Mi Idrum v. Maitland, L827, ii. 261. 
 Melvil \. Drummond, L684, i. 26. 
 Melville, 1866, ii, L96, 228, 446. 
 Melville, 1868, i, 242. 
 Meb i inda , L864, ii, 8 14
 
 xliv 
 
 INDEX OF CASES CITED. 
 
 Melville v. Drummond, 1034, i, 28. 
 v. Paterson, 1842, ii, 831. 
 v. Preston, 1838. ii, 39, 54, 220. 
 v. La.lv Preston, 1861, ii, 558. 
 Melvin v. Nicol, 1824, i, 2G, 245, 3G7, 388. 
 Menteith v. Next of Kin, 1717, i, 91. 
 Menzies v. Barstow, 1840, ii, 336. 
 v. Burnett, 1606, i, 136. 
 v. Duff, 1827, ii, 570. 
 Y. Livingston, 1838, i, 113, 119,396. 
 v. Menzies, 1738, i, 76, 188. 
 v. Menzies (Culdares), 1785, i, 532. 
 v. Menzies, 1852, i, 411, 554; ii, 173, 
 
 286. 
 v. Menzies, 1855, i, 410. 
 v. Murdoch, 1841, ii, 466. 
 Mercer v. Mercer, 1730, i, 412. 
 v. Ogilvie, 1793, i, 163. 
 v. Orr, 1823, ii, 551. 
 v. Scotland, 1745, ii, 201, 453, 473, 
 489. 
 Merchant Co. v. Heriot's Hosp.,1705,ii, 395, 
 
 401. 
 Meredith v. Heneage, i, 320-3. 
 Merriman's Trusts, ii, 58. 
 Merry v. Howie, 1806, i, 164. 
 Mesgrett v. Mesgrett, i, 590. 
 Methven v. Methven, i, 471. 
 Mexican and South American Mining Co., 
 
 ii, 512. 
 Michell v. Michell, i, 205. 
 Middlemore v. Macfarlane, 1811, i, 68. 
 Middleton v. Falconer, 1756, ii, 345, 471, 
 508. 
 v. Kutherglen, 1861, ii, 86. 
 Miles v. North British Railway Co., 1867, 
 
 ii, 183, 339, 343. 
 Millar, 1854, ii, 224. 
 
 v. Marsh, 1855, i, 177, 268. 
 Miller, 1834, ii, 433. 
 1836, ii, 292. 
 v. Black's Trs., i, 319, 401 ; ii, 90, 203, 
 
 220, 299, 443, 565. 
 v. Brown, 1776, i, 136. 
 v. Cathcart, 1799, i, 528. 
 v. Dickson, 1820, i, 251. 
 v. Dixon. 1854, ii, 331. 
 v. Farquharson, 1835, i, 235. 
 v. Macdonald, 1855, i, 101. 
 v. Miller, 1822, i, 420, 459. 
 v. Miller, 1793, i, 007. 
 v. Miller, 1831, i, 594. 
 v. Miller, 1833, ii, 294. 
 v. Miller's Trs., 1831, i, 75-7. 
 v. Milne's Trs., 1859, i, 252, 271, 383, 
 
 489. 
 v. Oliphant, 1843, ii, 82. 
 v. Travers, i, 376. 
 v. Ure, 1838, i, 49. 
 v. Wright, 1830, ii, 283. 456. 
 Trs. v. "Miller, 1848, i, 399, 409, 458 ; 
 ii, 308, 490, 521, 553. 
 Millie v. Millie, 1803, i, 122. 
 
 v.Millie, 1807, i, 127. 
 Milligan v. Milligan, 1820, i. 43 ; ii, 161-6. 
 v. Walker, 1862, ii, 577. 
 
 Mills v. Hamilton, 1880, ii, 416. 
 Milne v. Farquharson, 1822, i, 136. 
 v. Fraser & Ors., 1859, ii, 398. 
 v. Milne, 1826, ii, 297. 
 v. Milne, 1850, ii, 303. 
 Trs. v.Cowie, 1853, i, 440; ii, 241, 389, 
 Milner v. Milner, i, 247. 
 Milroy v. Milroy, 1803, i, 122-7, 226, 256 ; 
 
 ii, 107. 
 Minto v. Kirkpatrick, 1823, i, 192, 227 ; 
 ii, 481. 
 v. Kirkpatrick, 1833, i, 119, 133, 158. 
 v. Kirkpatrick, 1842, i, 132. 
 Mitchell, 1800, ii, 217, 413, 444. 
 1864, ii, 440. 
 
 v. Davidson, 1755, ii, 199, 200. 
 v. Major, 1850, ii, 123, 253. 
 v. Mackinlay, 1842, ii, 332. 
 v. MacMichan, 1852, i, 142 ; ii, 439. 
 v. Miller, 1742, i, 232. 
 v. Mitchell, 1805, i, 39, 55, 097 ; ii, 24. 
 v. Tarbutt, 1809, i, 97, 503, 580 
 
 ii, 364. 
 v. Thomson's Trs., 1827, ii, 338. 
 v. Watson, 1804, i, 163. 
 v. Wright, 1759, i, 386. 
 Trs. v. Pearson, 1835, ii, 507. 
 Mitchelson v. Atkinson, 1831, i, 548; 
 ii, 458. 
 v. Mitchelson, 1820, i, 266, 282, 666. 
 Mochrie v. Linn, 1786, i, 311, 315, 390. 
 Moffat v. Calderhead, 1825, ii, 333. 
 
 v. Kobertson, 1834, ii, 188, 305, 320, 
 519, 528, 533-6. 
 Moggridgev. Thackwell, i, 431, 469. 
 Moir & Others, 1826, ii, 220, 403. 
 v. Graham, 1794, i, 587. 
 v. Graham, 1826, i, 568. 
 v. Mudie, 1826, i, 174, 180. 
 Molle v. Riddell, 1811, i, 378, 499, 605, 630. 
 Mollison v. Buchanan, 1822, i, 260. 
 
 v. Murray, 1833, ii, 195-8, 200, 257, 
 525-8. 
 Monck v. Monck, i, 452. 
 Moncreiff v. Bethune, 1846, ii, 427, 568. 
 v. Menzies, 1857, ii, 368, 379-81. 
 v. Monypenny, 1713, i, 119-126. 
 v. Menzies, 1857, i, 214; ii, 200. 
 v. Miln, 1850, i, 193, 222 ; ii, 473-9. 
 v. Nasmyth, 1798, i, 440. 
 v. Newton, 1077, i, 84-0. 
 v. Skene, 1825, i, 320, 333, 579; ii, 
 
 457, 482-9, 490. 
 v. Usher, 1801, ii, 327, 508. 
 Monimail, Kirk-Sess. of, v. Espline, i, 440. 
 Monro v. Gordon, 1760, i. 422. 
 
 v. Gordon's Crs., 1777, ii, 337. 
 v. Monro, 1735, i, 195. 
 v. Scott's Exrs., 1080, i, 388, 398. 
 Montgomerie v. Boswell, 1841. ii, 471. 
 
 v. Earl of Eglinton, 1843, i, 527, 559, 
 
 502. 
 v. Montgomerie, 1937, ii, 455. 
 Montgomerie's Exrs., 1811, ii, 72, 80. 
 Montgomerie, Lord v. E. of Eglinton. 1847. 
 i, 503.
 
 INDEX OF CASES CITED. 
 
 xlv 
 
 Montgomery v. Boswell, 1841. ii. 470. 499. 
 
 v. Hart, 1845, i, 423. 
 
 y. Innes, 1795, i, 26. 
 
 v. Stewart, 1666, i, 195. 
 
 v. Wanchope, 1816, ii. 527. 
 
 v. Wauchope, 1822, ii, 528. 
 Montignani, 1866, ii. 111. 
 Montrose, Duke of v. Stewart, 1863. ii. 48 1. 
 
 Mags. ofv.Eobertson, 1738, i, 259, 670. 
 
 Marquis of v. Tutors. 1688. ii. 178. 180. 
 Monypenny v. E. of Buchan, i. 294. 
 
 M lie v. Anderson, 1824. i. 610. 
 
 Moir v. Maxwell, 1712. ii. 472. 
 Moorcroft v. Doweling, ii, 81. 
 Moorhouse v. Lord, i, 8-12. 
 Moore, i, 561. 
 
 v. Fronde, ii. 555. 
 Moore's Trs. v. Wilson, 1814, ii. 251, 392. 
 Moray v. Bobs, i. 576. 
 
 E. of v. Stewart, 1782, i, 461, 635, 704. 
 Mordannt v. limes, 1819, i, 570. 
 More v. Grier, 1693, ii, 300. 
 
 'a Exrs. v. Malcolm, 1835, ii, 245, 304, 
 318, 459. 
 Moreham v. Binston, 1679, i, 411. 
 Morehead v. Morehead, 1833, i, 529. 
 Moreton's Trs. v. Moreton, 1856, i, 104. 
 Morgan v. Morgan, i, 305. 
 Moriarty v. Martin, i. 320. 
 Morison, 1834, ii. 216, 220, 402 444 
 
 1857, ii, 448. 
 
 1863. ii. 400-7. 
 
 v. Morison, 1808* i, 173. 
 Morley v. Morley, ii, 312, 521. 
 Morrall v. Sutton, i, 338. 
 Morrice v. Sprot, 1846. i, 252, 420; ii 126 
 Morris. 1858, ii. 446. 
 
 v. Bain, 1858, ii. 449. 
 
 v. Beveridge, 1867, ii. 464, 473. 
 
 v. Riddick, 1867. i, 384. 
 
 v. s;. wart, 1852, ii, 310. 
 
 \. Tennant, 1853, i. 84,176; ii. 270-7. 
 822. 
 
 \. Dnndas, L809, ii. " 
 
 v. Knight's Trs., 1837, i, 315. 
 
 v. Millar, 1827, ii. 328 428, 520-3. 
 
 v. Miller, 1818, ii. 834. 
 
 v. M 1 : -.. 1862, i. 282, 274 
 
 ii, 211. 
 
 v. Morrison's Trs., 1848, ii, 244. 562. 
 
 v. Nisbet, 1829, i. 240 ; ii, 565. 
 
 v. I;, nnie, L849, ii. 17 1. 558. 
 Morri ] tore, ii. 248. 
 
 Morton v. Hunt r. 1830, i, 362, 375. 
 
 v. Towart, ii. 80 2. 
 
 v. Von,,-. 1818, 1. 1 18, 126, 17 7. 
 
 Earl of v. Somi rville, 1866, ii. 152. 
 ire, i. 708. 
 Monntstewart, Lord v. Mackenzie, 1709 i 
 68. 627, 644. 
 ■ v. M'Cnlloch, 1 - 618. 
 
 Mowal l ! . 1697, i, L87. 
 
 Mowbray v. BcougaJJ, L836, ii. 440. 
 Mncklow v. Full, r, ii, 580. 
 Mndie v. Dickson, 1764, ii. 410. 
 
 v. M 
 
 Mudie v. Ouchterlony, 1766. ii, 75. 
 Muir v. Mackersv, 18*53. ii, 326, 559. 
 v. Pollock. 1851, i. 326 ; ii. 294-9. 
 v. Ross's Exrs., 1666, ii, 109. 
 v. Tay Ins. Co., 1843, ii, 560. 
 Muirhead v. Dickson, 1754. i, 666. 
 v. Lindsay. 1867. i. 127. 
 v. Muirhead. 1724. ii, 462. 
 v. Muirhead, 184'.'. ii. 320. 
 v. Young, 1855, i, 568, 571. 
 v. Young, 1858, ii, 121, 324. 
 M uirhead's Belief v. Her Father-in-Law 
 
 1706, i, 120. 
 Mnlhallen v. Macvean, ii. 114. 
 Muller v. Dickson, 1854, ii, 52, 253. 
 Mundell, 1862, ii, 259. 
 Munro v. Coutts, 1813, i, 234, 248, 860. 
 v. Douglas, i, 7, 22, 117. 
 v. Drummond, 1831, i, 563. 
 v. Fraser, ii, 410. 
 v. Gordon's Crs., 1777, ii, 420. 
 v. Grahame, 1839, i, 51. 
 v. Munro, i, 7, 535. 
 v. Munro, 1735, i, 190. 
 v. Munro, 1810, i, 512, 533. 
 v. Munro, 1825, i, 312, 391, 536, 548 
 
 577. 
 v. Munro (Fowlis), 1828, i, 502. 
 v. Munro, 1840, i, 13, 21. 
 Munsell v. Price, i, 380. 
 Murdoch v. Mags, and Mins. of Glasgow 
 1827, i, 282, 427. 
 v. Murdoch's Trs., 1863, i, 93, 313. 
 v. Wylie, 1832, ii, 86. 
 Mure v. Gilrnour, 1851, ii, 569. 
 v. Mure, 1813, i, 181, 264. 
 v. Mure, 1837, i, 521. 
 Murison v. Dick, 1854, i, 250, 423; ii 51 
 
 63. 
 Murphy v. O'Shea, ii, 347, 352. 
 Murray, 1748, i, 582. 
 
 Rynynmound, 171 1. i. 557: ii, 455. 
 
 v. Baillie, 1849, i. 46, 478. 
 
 v. Blair, 1739, i, 637, 646. 
 
 v. Borthwick's Trs., 1797, i. 169- ii 
 
 172, 321. 
 v. Campbell, 1827. ii. 266-7, 532. 
 v. Dalrymple, 1745, ii, 59. 
 •v. Directors of Dundi .■ Academy, 18:53 
 
 ii, 395. 
 v. Lord Elibank, 1833, i, 529. 
 v. Fleming, 1729, i, 322-4, 727 ; ii, 298. 
 v. Flint, 17," I. i. 605-9, 7117. 
 v. < Irant, ii. 95. 
 v. .loin, -to,,. L831, ii. 568. 
 v. Jones, i, 380. 
 v. Kinloch, 17:;'.', i. 175. 
 v. Laurie's Trs., 1827, ii. 72. 
 v. Murray, L678, L, 126, 141-7, 157. 
 v. Murray, 1710, ii. 1 17. 
 v. Murray, L744, i, 666. 
 v. Murray, 1826, i, 280,451 ; ii, 89, 1 L0. 
 v. Murray, L888, i. 497, 621 ; ii L72 
 
 826, 520 8. 
 v. Murray, 1887, ii, 181. 
 v. Murray, 18 18, i, 160, 556 ; ii 108
 
 xlvi 
 
 INDEX OF CASES CITED. 
 
 Murray v. Murray's Trs., 1826, i, 174. 
 
 v. Ramsay, 1801, i, 512 ; ii, 4G3. 
 
 v. E. of Rothes, 183G, i, 19, 192, 213. 
 
 v. Smith, 1828, i, 41, 262. 
 
 v. Smith, 1831, i, 474. 
 
 V. Todd, 1818, i, 384; ii, 107. 
 Murray's Crs., 1744, ii, 469, 551. 
 Murray's Exrs. v. Murray, 1838, i, 354. 
 Myles, 1855, ii, 246, 523, 553. 
 
 v. Caiman, 1857, i, 637, 6 J 6. 
 
 v. Ireland, 1855, ii, 431. 
 
 Nairne v. Gray, 1810, i, 581. 
 Napier, 1837, ii, 260. 
 
 v. Balfour, 1835, ii, 174. 
 
 v. Napier, ii, 58. 
 
 v. Orr, 1866, i, 189, 251 ; ii, 5. 
 
 v. Orr, 1868, i, 196. 
 
 v. Scott, 1826, i, 646. 
 
 Lord v. Livingstone, 1762, i, 509, 513. 
 Nasmyth, i, 29. 
 
 v. Connell, 1833, i, 466, 644. 
 
 v. Hare, 1821, i, 244,* 263, 360, 401 ; 
 ii, 90-4. 
 
 v. Jaffray, 1662, i, 319. 
 National Bank v. Forbes, 1858, ii, 77-9. 
 
 Exchange Co. v. Drew, 1860, ii, 532. 
 Naylor v. Winck, ii, 348. 
 Neilson v. Baillie, 1822, i, 673, 683. 
 
 v. Coutter, i, 586. 
 
 v. Murray, i, 637. 
 
 v. Stewart, 1860, i, 213, 227, 268, 302, 
 319; ii, 99. 
 
 Trs. v. Peacock, 1822, ii, 430, 563. 
 Nevin v. Drysdale, 1736, i, 461, 536. 
 New v. Bonaker, i, 432 ; ii, 174, 554. 
 Newburgh, Lady, i, 379. 
 New Clyde Shipping Co. v. River Clyde 
 
 Trs., 1842, ii, 515. 
 Newenham v. Pemberton, ii, 56. 
 Newlands v. Chalmers' Trs., 1832, i, 20, 22, 
 33, 192. 
 
 v. Newlands' Cr., 1798, i, 646. 
 Newton, ii, 554. 
 
 v. Couper, 1865, ii, 402. 
 
 Hay v. Newton, 1867, i, 83, 168, 262, 
 580 ; ii, 284. 
 
 v. Thomson, 1849, i, 690. 
 Nicol v. Cameron, 1829, ii, 513. 
 
 and Carny v. Wilson, 1856, ii, 129, 
 158, 303, 571. 
 Nicolson v. Inglis, 1678, ii, 57. 
 
 v. Oswald, 1712, i, 354. 
 
 v. Ramsay, 1806, i, 488. 
 
 v. Wordsworth, ii, 204. 
 Nicolson's Assignee v. Hunter, 1841, i, 122. 
 
 v. Macalister's Trs., 1841, i, 132, 156, 
 223. 
 Nicholls v. Osborn, i, 380. 
 Nicholson, 1850, ii, 222. 
 Nickoll, ii, 512. 
 Nimmo, i, 445, 450. 
 
 v. Murray, 1863, ii, 569. 
 
 v. Murray's Trs., 1866, i, 711-720 ; 
 ii, 8. 
 Nimmo's Trs. v. Hogg's Trs., 1840, i, 254. 
 
 Nisbet v. Cairns, 1864, ii, 334. 
 
 v. Fraser, 1835, ii, 216, 224, 446. 
 
 v. Grahame, 1822, ii, 570. 
 
 v. Macdougall, 1809, ii, 440. 
 
 v. Moncrieff, 1823, i, 543. 
 
 v. Nisbet, 1726, i, 120, 130, 157. 
 
 v. Nisbett's Trs., 1835, i, 22, 39, 83-6, 
 126, 254. 
 
 v. Rennie, 1812, i, 221. 
 
 v. Rennie, 1818, i, 193. 
 
 v. Tod, 1848, ii, 36, 68, 259, 299, 438. 
 
 v. Whitelaw, 1625, i, 95. 
 
 v. Young, 1763, i, 561. 
 Nisbet's Trs. v. Halket, 1835, ii, 452-8. 
 
 v. Nisbet, 1831, i, 401. 
 
 v. Nisbet, 1851, i, 404, 484 ; ii, 90. 
 Niven v. Pitcairn, 1823, i, 185. 
 Nixon v. Borthwick, 1806, i, 319. 
 Noble v. Dewar, 1758, i, 83, 285, 562. 
 Nolan v. Hartley's Trs., 1866, ii, 26. 
 Norris v. Norris, 1838, i, 322, 727. 
 North British Insurance Co. v. Tunnock, 
 
 1864, i, 262, 372. 
 North British Ry. Co. v. Renton, ii, 457. 
 North of England Bank, ii, 513. 
 Northesk, E. of v. Carnegie, 1702, ii, 171, 
 
 320. 
 Northumberland, D. of v. MacGregor, 1846, 
 
 i, 294 ; ii, 284. 
 Northumberland and Durham District 
 
 Bank, ii, 510. 
 Norton v. Braidwood, 1858, ii, 504. 
 
 v. Stirling, 1852, i, 560. 
 
 v. Stirling, 1855, i, 346, 351, 558. 
 Norton's Trs. v. Menzies, 1851, i, 34. 
 Norvel v. Ramsay, 1763, i, 233. 
 Nowlan v. Nelligan, i, 320. 
 
 Oakes v. Oakes, i, 262. 
 
 v. Strachey ii, 324. 
 Ochill Turnpike Trs. v. Horn, 1822, ii, 502. 
 Officers of State v. Alexander, 1866, i, 102. 
 Ogilvie v. His Majesty's Advocate, 1620, ii, 
 161. 
 
 v. Boswell, 1850, ii, 534. 
 
 v. Boswell, 1856, ii, 381, 426. 
 
 v. Cumming, 1852, i, 395, 633. 
 
 v. Dundas, 1826, i, 326 ; ii, 474, 488, 
 494. 
 
 v. Erskine, 1837, i, 632. 
 
 v. Kirk-Session of Dundee, 1846, i, 387. 
 
 v. Lyon, 1729, ii. 112, 171. 
 Ogilvie's Legatees v. Hamilton, 1833, i, 394; 
 
 ii, 333. 
 Ogilvie's Trs. v. Kirk-Session of Dundee, 
 
 1846, i, 306, 426, 705. 
 Ogilvy v. Erskine, 1837, i, 498 ; ii, 575. 
 
 v. Ogilvy, 1817, i, 94, 626 ; ii, 462-4. 
 
 v. Reid, 1727, i, 96. 
 Oke v. Heath, i, 490. 
 Oldershaw v. Holt, i, 205. 
 Oliphant v. Olipbant, 1626, ii, 95. 
 
 v. Oliphant. 1794, i, 259, 333, 666; ii 
 288. 
 
 v. Oliphant, 1816, i, 545. 
 Ommanney v. Bingham, 1796. i, 13, 24, 30.
 
 INDEX OF CASES CITED. 
 
 xlvii 
 
 Ommaney v. Douglas, 1796, i, 589. 
 v. Smith, 1854, ii, 553. 
 v. Stilhvell, i, 59. 
 Ord v. Barton. 1846, i. 292. 
 v. Hill, 1847. i. 292. 
 v. Noel, ii, 333-7. 
 O'Beilly v. Baroness Sempill, 1855, i, 387, 
 
 711. 
 Orme v. Differs, 1833, i, 278. 
 Ormiston v. Broa<l, 1862, i. 114. 
 v. Greig, 1821, i, 1G6. 
 v. Ormiston, 1809, i, 417, 640; ii, 261, 
 
 294-6. 
 v. Wood, 1838, ii, 319. 
 Orr v. Glasgow, Airdrie, and Monklands 
 By. Co., 1860, ii, 532. 
 v. Newton, ii, 308, 520. 
 Osborne v. D. of Leeds, i, 472. 
 Osburn v. Osburn, 714. ii. 326, 522. 
 
 ; I v. Oswald, 1821, i, 668. 
 Ouchterlony v. Ouchterlonv, 1752, i, 420. 
 
 v. Anstrather, i. 317, 330. 
 Oxen'den v. Lord Compton, i, 222. 
 
 Padbury v. Clark, i, 224. 
 
 i v. Campbell's Trs., 1823, ii, 499. 
 " v. Eaton, 1823, ii, 55, 241. 
 v. Pagan, 1838, i, 260, 389. 
 Page v. Adam, ii, 343. 
 
 v. Leapingwell, i, 334, 380, 397. 
 Palin v. Hills, i, 714. 
 Palmer & Co. v. Glass, 1835, i, 39. 
 v. Newell, i. 452. • 
 v. Simmonds, i, 320. 
 v. Sinclair, 1811, i. 120, 407. 
 v. Young, ii, 114. 
 Punmure, Lord v. Crokat, 1854, i, 129, 132, 
 476. 
 v. Crokat, L856, i, 131,481. 
 Panton v. Gillies, 1824, i, 234, 260, 274. 
 867, 389, 492. 
 
 rather, 1853, ii, 304. 
 v. Marchant, i. 3] ; >. 
 I'arkliill • ' I, 1771, ii, 115, 172. 
 
 16. 
 PartoL v. i I 25, i, 190. 
 
 ■ ■ii v. Bruce, 1678, ii. 466. 
 \. Currie, L846, ii, 119. 
 \. FariBh, 1800, i, 813-6, 390. 
 v. I. lii . L845, i, 637. 
 v. M'Lelland, 1824. ii. 547. 500. 
 v. Macnaughten, L838, i. 895. 
 v. Monerieff, L866, i. L82, 476. 
 v. (ml, 1781, i, 90. 
 v. Pal i on, 17)1, i. 678. 
 v. Pa* r nn. 1849, i, :,.v.i ; ii, do, 286, 
 
 291, 486. 
 v. ]•,,;, : m i: r .. 1626, ii. 572. 
 v. si,:, ., L880, i. 297. 
 v. Smith, 1809, i. 279. 
 put. Trs. .. -I' In. ton, 1816, i. 161. 
 
 ■.. Eamilton, 1797, i. 635, 706. 
 \. MacMnto li. I7">7. i, 96. 
 v. Nairne, L728, i, 605. 
 v. Benny, L885, ii, 468. 
 v. Stirling. 1671, ii, 84 
 
 Patrick v. Nicliol, 1838, i, 209 ; ii, 99. 
 
 v. Yeathead, i, 311. 
 Patten, i. 11. 
 
 Pattenden v. Hobson, i, 709. 
 Pattie v. Thomson, 1843, ii, 506. 
 Pattinson v. Robertson, 1844, ii, 123. 
 Pattison v. Dunn's Trs., 1866, i, 172, 499, 
 
 610. 
 Paul v. Reid, 1814, ii, 575. 
 
 v. Anstrather, 1864, i, 206, 408. 
 v. Boyd, 1833, ii, 194, 206, 456. 
 v. Boyd, 1843, ii, 203. 
 v. Boyd's Trs., 1835, i, 298 ; ii, 43. 124. 
 v. Compton, i, 320. 
 v. Cuthbertson, 1840, i, 185. 
 v. M'Leod, 1828, ii, 54. 
 v. Paul's Trs., 1821, i, 260; ii, 366. 
 Paxton v. Paxton, 1840, i, 108. 
 Payne, i, 320. 
 
 Peacock v. Glen, 1826, i, 496, 622. 
 Pearmain v. Twiss, i, 19. 
 Pearson v. Casamaijor, 1839, i, 700 ; ii, 13. 
 v. Oorrie, 1825, i, 57, 653, 707, 618. 
 v. Grierson, 1825, ii, 313, 521. 
 v. Mags, of Montrose, 1669, ii, 515. 
 v. Pearson, i, 394. 
 Pearson and Gardner v. Ogilvie, 1857, i, 208. 
 Peat v. Peat, 1839, i, 401, 483 ; ii, 90. 
 1', ddie v. Beveridge, 1860, ii, 546. 
 v. Davidson, 1856, ii, 560. 
 v. Doig's Trs., 1847, i. 242. 
 Pedie v. Pedies, 1743, i, 80. 
 Pemberton v. Pemberton, i. 263. 
 Pender v. Ferguson, 1831, ii, 333, 340, 570. 
 Penman v. Brown, 1775, ii, 472. 
 
 v. Penman, 1775, ii, 471. 
 Penny v. Avison, ii, 523. 
 Pennycook, 1851, ii, 174, 207, 406. 
 Pennycook v. Thomson, 1687, i, 178. 
 Pentlandv. Hare, 1829, i, 238. 
 Peoch v. Glasgow, 1824, ii, 149. 
 Perkes, ii, 354. 
 
 I', r, I. .n \. Perston's Trs., ISC,:;, ii, 172. 
 Perth. Hospital of, 1775, i, 324 ; ii, 192. 
 Peterborough, Earl of v. Eraser's Crs., 173G, 
 
 i, 583. 
 Peters v. Martin. 1825, i, 51. 
 v. Spiers, 1797, ii, 410. 
 Petley v. Mackenzie, L806, i, 200. 
 Petre v. Petre, i. 397. 
 Philip v. Earl of Bothes, 1758, i, 558. 
 Phillip i, - '" parte, 1, 222. 
 
 v. Phillips, i. 213; ii, 421. 
 
 PI v. Gillan, ii, 513, 551. 
 
 v. Sc.it, ii, 341. 
 Piei . v . Ku oil, i, 568. 
 
 r n \. Garnett, i. 88, 820. 
 
 I ..it \. Colvill, L829, ii, 288. 
 Pilklngton v. Bought j . i, 820. 
 Pindar v. Davidson, L824, ii, 181. 
 Pirrie v. Colli* . L851, ii, IT-",, 658. 
 Piteairn, L710, i. 507. 
 
 \. Fra • r, is;: J. ii. 21 1. 
 \ . Lundin, 1 762, ii, 462. 
 v. Thomson, L868, i, 891, 724. 
 v. Wellwood, 1792. i 96
 
 xlviii 
 
 INDEX OF CASES CITED. 
 
 I'in v. Pitt, 1864, i, 9-15. 
 
 Plaine v. Thomson, 1886, i. 304; ii, 525. 
 
 Playfair v. dnited College of St Andrews, 
 
 1850, ii, 391. 
 Pluramer v. Whittley, i, 205. 
 Pollexfen v. Stewart, 1841, ii, 2G2. 324-8, 
 
 374, 428, 520-8. 
 Pollock v. Croft, i, 590. 
 
 v. Fairholm. 1632, i, 170. 
 
 v. Q-ilmour, 1777, i, 379. 
 
 v. Lockhart, 1779, ii, 575. 
 
 v. Pollock, 16G7, i, 143. 
 Ponton v. Ponton, 1837. ii, 296. 
 
 v. Trotter, 1832, i, 722. 
 Poole, i, 186. 
 
 v. Anderson, 1834, i, 424; ii, 281, 4G0. 
 Porteons v. Veitch, 1627, i, 190. 
 Porterfield v. Cant, 1672, i, 172. 
 
 v. Corbett, 1841, i, 557. 
 
 v. Graham, 1780, i, 645-7. 
 
 v. Stewart, 1831, ii, 27*0. 
 Potinger v. Wightman, i, 6. 
 Pratt v. Abercromby, 1858, i, 616. 
 
 v. Matthew, i, 643. 
 Prentise v. Malcolm, i, 475. 
 Preston v. E. of Dimdonald's Crs., 1805, ii, 
 42, 341. 
 
 v. Lord Melville, 1841, i, 44 ; ii, 221. 
 
 v. Preston's Trs., 1841, i, 50; ii, 223. 
 
 v. Baird, 1845, i, 551. 
 
 v. Wellwood, 1771, ii, 5. 
 Preston's Trs. v. Lady Baird Preston, 1838, 
 ii, 603. 
 
 v. Lord Melville, 1853, i, 315. 
 Pretty v. Newbigging, 1854, i, 695; ii. 18. 
 
 141, 275, 436. 
 Prevost v. Clarke, i, 320. 
 Price v. Dewhurst, i, 19, 45. 
 
 v. Wise, 1862, i, 39. 
 Pride v. Fooks, i, 640. 
 Prime Gilt Box of Kirkcaldy, Trs., etc. of 
 
 the, 1859, ii, 403. 
 Primrose, 1850, i, 272 ; ii, 567. 
 
 v. Crawford, 1771, i, 90, 137. 
 
 v. Primrose, 1756, i, 162. 
 
 v. Primrose, 1854, i, 518. 
 
 v. E. of Eosebery, 1715, ii, 180. 
 Pringle v. Pringle, 1688, i, 590. 
 
 v. Pringle, 1741, i, 140, 199, 667. 
 
 v. Pringle, 1767, i, 176. 
 
 v. M. of Tweeddale, 1823, i, 323, 366 ; 
 ii, 390. 
 Proctor v. Gordon, 1824, ii, 242. 
 Proven v. Proven, 1840, i, 656; ii, 7, 13, 569. 
 Pugh, ii, 58. 
 
 Pulteney v. Darlington, i, 224. 
 Pursell v. Elder, 1865, i, 309, 331-6, 395, 
 657 ; ii, 29, 90, 273-9. 
 
 v. Newbigging, 1 865, i, 403 ; ii, 31, 700. 
 Purves' Trs. v. Campbell, 1814. i, 526, 545. 
 Purves v. Chisholm, 1611, i, 24. 
 Purvis' Trs. v. Purvis' Exrs., 1861, i, 26-9, 
 
 82-7, 248, 265. 
 Pusbman v. Filliter, i, 320. 
 Pybus v. Smith, ii, 66. 
 Pye, i, 452. 
 
 Queensbcrry, D. of v. Douglas, 1783, i, 330. 
 
 v. Earl of Wemyss, 1807, i, 540. 
 Queensberry's Exrs. v. Duke of Buccleuch, 
 1820, i, 566. 
 v. M. of Queensbcrry, 1830, i, 527. 
 v. Tait, 1822, ii, 527. 
 Queensbcrry, M. of v. Montgomery, 1820, 
 i, 569 ; ii, 121. 
 v. Duke of Queensberry's Exrs., 1815, 
 
 i, 571. 
 v. Scottish Union Insur. Co., i, 392, 
 402; ii, 77, 88. 
 Queensberry's Trs. v. Earl of Wemyss, 1819, 
 i, 624. 
 
 Raby v. Ridelhalgk, ii, 520. 
 Rae v. Glass, 1673, ii, 117, 171. 
 
 v. Nelson, 1842, i, 192. 
 
 v. Rae, 1809, i, 80. 
 
 v. Rae, 1810, i, 412. 
 Raeburn v. Dawson, 1831, ii, 555-7. 
 Ragg v. Forbes, 1725, i. 166. 
 Rainsford v. Maxwell, 1852, i, 35 ; ii, 436. 
 Rait v. Rait, 1818, i, 167. 
 Raith v. Meldrum, 1628, i, 126. 
 Ralston v. Farquharson, 1830, ii, 338. 
 
 v. Hamilton, i, 645-9. 
 
 v. Leitch, 1803, i, 88. 
 
 v. Ralston, ii, 25-6. 
 Ramsay v. Anderson, 1836, i. 401-3 ; ii, 90. 
 
 v. Beveridge, 1854, i, 324-6, 648, 650. 
 
 v. Brewster and Ors., 1859, ii, 391. 
 
 v. Brownlie, 1738, i, 200. 
 
 v. Cowan, 1833, i, 25, 31, 226, 257, 326; 
 ii, 98, 269, 276. 
 
 v. Goldie, 1825, i, 121. 
 
 v. Maxwell, 1672, ii, 178, 180. 
 
 v. Pyrie, i, 124. 
 
 v. Ramsay, 1838, i, 298, 301. 
 
 v. College of St Andrews, 1842, i, 324, 
 386, 391. 
 
 v. College of St Andrews, 1860, i, 290. 
 
 v. Souter, 1863, ii, 546. 
 
 v. Lady White, 1833, i, 22-8, 216; 
 ii, 127. 
 
 Trs., i, 221-4. 
 
 Trs., v. Ramsay, 1836, ii, 565. 
 Randal v. Hearle, i, 320. 
 Randall v. Bookey, ii, 93. 
 Rankeillor v. Ay ton, 1709, i, 316. 
 Ranken v. Gardner, 1741, ii. 241, 318, 459. 
 
 v. Stewart, 1840, i, 50. ' 
 Rankine v. Rankine, 1736, i, 721. 
 
 v. Reid, 1849, i, 244. 
 Raphael v. Boehin, ii, 524. 
 Ratchfield v. Careless, i, 381. 
 Ratcliffe v. Graves, ii, 520. 
 Rattray v. Blair, 1790, i, 670, 682. 
 
 v. White, 1842, i, 52. 
 Ravenscroft v. Jones, i, 461. 
 Rawlings v. Jennings, i, 315. 
 Raworth v. Parker, ii, 423. 
 Ray v. Adams, i, 320. 
 Read v. Devaynes, ii, 208. 
 
 v. Steadman, ii, 95. 
 Redfearn v. Somervilles, 1813, ii. 42, 414.
 
 INDEX OF CASES CITED. 
 
 xlix 
 
 Redford v. Redford, 1816, i, 390. 
 Redhouse's Crs. v. Glass, 1744, i, 016. 722; 
 
 ii, 289. 
 Reed v. Brown, 1834. i, 58, 62. 
 
 v. Lord Strathallau, 1835, i, 316 ; ii, 
 278. 
 Re<* v Norfolk Commrs. of Sewers, ii, 246. 
 Reid. 1863, ii, 18G. 229. 
 
 v. Ainslie, 1862. ii. 264. 
 
 v. Baxter, 1840. i, 277. 
 
 v. Campbell, 1728, i. 175. 
 
 v. Campbell. 1782. i, 195. 
 
 v. Coates, 1809, ii, 21. 
 
 v. Coates, 1813, i. 588. 
 
 v. Hope's Trs., 1825. i, 389. 
 
 v. Redder, 1840, i. 240, 323, 361-3. 
 
 v. Lyon, 1832, ii. 77. 81. 
 
 v. Maxwell, 1852. ii. 180.571. 
 
 v. Officers of State. 1747, i, 73. 
 
 Imond, 1667, ii. 171. 
 v. Steele, 1852, ii. 334. 
 v. Young 1838, i. 493. 
 Rr-ith v. Seymour, ii. 272. 
 
 ogton, Crawford & Co., v. Bruce, ii. 
 451-6. 
 Rendall v. Robertson, 1836, i,-65, 78. 
 Rendlesham v. Meux, ii, 332. 
 Rennie, 1849, ii, 174, 553. 
 v. Crosbie, 1822. i. 721. 
 v. Rennie, 1831, i, 445. 
 v. Rennie, 1845, ii. 65. 
 v. Ritchie, ii, 66, 100. 
 v. Tod, 1806, ii, 100. 
 v. Walker, 1800, i, 408. 
 Rennie & Webster v. Myles, 1847, ii, 415, 
 
 564. 
 Renton v. Anstruther, 1837, i, 509. 
 v. Anstruther, 1842, i. 191. 
 v. Girvan, 1833, ii. 55, 132. 
 v. Munro, 1843, i, 544. 
 v. Renton, 1851, ii. 460, 476. 
 Ehind'a Trs. v. Li ith, i, 369, 490, 640, 656, 
 
 682. 
 i: ihan v. Hill, 1832, ii. -15:5. 
 I:: shards v. Richards, i. 316. 
 Richardson, ii. 506, 518. 
 v. Biggar, L845,i, 2-12. 
 v. < M-i ■ e, i. 46 1. 
 v. Richardson, L848, i, 171. 
 
 ■t. 1835, ii. 607. 
 v. Stewart, i. 609. 
 Richardson's Trs. v. Cope, 1850. i. 690. 
 Richardson and Riddel v. Sinclair, 1685, i, 
 
 17M. 
 Richmond v. Railton's Tr., I860, ii, 669. 
 Richmond 1 r. Winton, 1814, i. 27. 
 
 198. 
 Richmond, Duche - of v. D. of Richmond, 
 
 Rickarl v. Rickart, 1720, i, 1 16. 
 Riddi II v. Dalton, 1781, i, 186. 
 \. Riddell, 1802, ii, 241, 819. 
 it I m, L687, i. 169. 
 Ridges v. Morri on, i, I T ' » 8. 
 
 60; ii. 181. 
 ill 1840 i 16 
 vor,. I. 
 
 Ripley v. Waterworth, ii, 98. 
 Ritchie v. Ritchie, 1858, i, 456 ; ii, 107. 
 Robb v. Robb's Tr., 1796, ii, 57. 
 Roberts v. Edwards, i, 392. 
 v. Kuffin, i. 315. 
 v. Mackintosh, 1833, ii, 527. 
 v. Pocock, i, 398 ; ii, 478. 
 v. Roberts, ii, 491. 
 v. Walker, ii. 495. 
 Roberton v. Roberton, 1833, i, 89, 586; 
 
 ii, 18. 
 Robertson, 1830. ii, 174. 
 Robertson, 1833, ii, 216. 
 Robertson. 1865, ii. 567. 
 
 v. Ainslie's Trs., 1837, ii, 423. 
 
 v. Baillie 1705, ii, 484. 
 
 v. Blackwood's Trs., 1852, ii, 120. 
 
 v. Davidson, 1846. ii, 13, 439. 
 
 v. Duff, 1840, ii, 39, 52, 77, 551. 
 
 v. Ferrier, 1833, ii, 331. 
 
 v. Fleming, 1622, i, 162. 
 
 v.Gilchrist, 1828, i, 116; ii, 160-8, 
 
 302. 
 v. Gordon. 1814, i, 53. 
 v. Lord Halkerton, 1675, i. 69. 
 v. Houston, 1858, i, 656, 671, 683, 691 ; 
 
 ii, 20-8. 
 v. Kerr. 1742. i. 118. 125, 299, 706. 
 v. Landell, 1843, i, 49. 53. 
 v. M'Caig, 1823, i, 162. 
 v. MacGregor, 1840, ii, 338. 
 v. Mackenzie, 1856, ii, 523, 569. 
 v. M'Vean, 1817, i, 22, 49, 142, 151-6, 
 
 405. 
 v. Menzies, 1857, ii, 125. 
 v. Morrison, 1823, ii. 550-9. 
 v. Ogilvie's Trs.. 1804. ii, 235, 241-3, 
 
 479. 
 v. Pattinson, 1846, ii. 123. 
 v. Richardson, 1843, i. 689. 
 v. Robertson, 1766, i. 707. 
 v. RolMTtsmi. 1816. i. 22. 41. 478. 
 v. Robertson, 18V.'. i. 634. 
 v. Knbertson, 1835, ii. 61. 
 v. Robertson's Trs., 1838, i, 200, 460. 
 v. Scott, 1834, ii, 126, 361, 432. 
 Robertson's Crs. v. Mason, 1795, i, 26. 
 v. Robertson, 1803, i, 326. 
 v. W. Robertson's Crs.. 1803. ii. 474. 
 
 •1SS. 
 
 Robison v. Robison, 1859, i, 75, 593. 
 Robinson v. Lowater, ii, 251. 
 
 v. Pott. ii. 171. 554. 
 
 v. Robinson, ii. 328. 520-4. 
 
 v. Smith, i. 820. 
 
 v. S\ kes, i. 725. 
 
 v. Taylor, i, 211. 
 Robson v. MacNi h, 1861, i, 292; ii. 482. 
 
 \. Robson, 1794, i, 705. 
 
 v. SI, in If, 1868, ii. 19. 
 
 v. WaJ bam, 1867, i, 48. 
 Roch v. Callen, i, 169 
 Roi v. Summer et, i, 881 
 
 v. Walker, i, 814. 
 
 I; i -. ft i : i! 98. 
 
 x, Scot! 1867, ■ 898 HI
 
 1 
 
 INDEX OF CASES CITED. 
 
 Ro^erson v. Barker, 1833, ii, 187. 
 
 !;, . rson'e Tra. v. Rogerson, 18G5, i, 653, 
 
 661 9, 701; ii, 4. 
 Rollo v. Erring, 1803, i, 392; ii, 45. 
 v. Ramsay, 1882, ii. 59, 61. 
 v. Rollo, 1848, ii. L25, 277. 
 v. Roll«>. isii-l. i. 522. 
 aea \. Riddell, 1865, i, 656, 663, 697 ; 
 ii, 5. 18, 29. 
 Rooi v. Att.-Gen., i, 708. 
 Rose, 1885, ii, 336. 
 
 v. Fraser, 1790, i, 86, 108. 
 v. Rose, 1784, i, 605, 678. 
 v. Hose, 1786, ii. 474, 489. 
 v. Rose, 1821, i, 476. 
 v. Ross, 1830, i, 10. 
 Rosebery, Earl of v. Cowio, 1823, ii, 51. 
 v. M -Queen, 1823, ii, 319. 
 v. Primrose, 1736, i, 167. 
 v. Primrose, 1765, i, 558. 
 Rosebery v. Primrose's ExrsT, 1766, i, 104; 
 
 ii, 452. 
 Ross, i, 39. 
 
 v. Ross, 1770, i, 313. 
 
 v. Ross. 1793, i, 193. 
 
 v. Aglionby, 1797, i, 138. 
 
 v Albion Joint-Stock Co., 1831, ii, 506. 
 
 v. Allan's Trs., 1850, ii, 320-6, 433, 
 
 520-8, 573. 
 V. Drummond, 1861, i, 564. 
 v. Equitable Loan Co., 1826, ii, 333. 
 v. Grabam, 1816, i, 121, 190. 
 v. Hawkins, 1848, ii, 457. 
 v. Heriot's Hospital, 1843, i, 440; ii, 
 
 397-9, 516. 
 v. Kellie, 1627, i, 155. 
 v. King, i, 668 ; ii, 19. 
 v. Macgregor, 1846, ii, 526. 
 v. Mackenzie, 1842, i, 132, 399 ; ii, 460. 
 v. Masson, 1843, i, 119, 135, 418; ii, 
 
 307. 
 v. Munro, 1766, i, 566. 
 v. Ross, 1770, i, 493. 
 v. Ross, 1771, i, 316, 390. 
 v. Ross, 1809, i, 19, 33, 191, 228. 
 v. Ross's Trs., 1809, i, 34, 492. 
 Rothes v. Leslie, 1635, i, 236. 
 
 Earl of v. Philip, 1761, i, 514. 
 Earl of v. Rothes, 1823, i, 326. 
 v. Rothes, 1829, i, 410 ; ii, 285. 
 Roughead v. Hunter, 1833, ii, 213. 
 
 v. Rannie, 1794, i, 632, 686. 
 Routledge v. Carruthers, 1812, i, 422, 498. 
 Rowan v. Alexander, 1775, i, 180. 
 Rowe v. Monypenny, 1837, i, 546. 
 
 v. Rowe, i, 455. 
 Roxburghe, Duke of v. Ker, i, 540. 
 v. Roxburghe, 1818, ii, 286. 
 v. Swinton, 1824, ii, 525-7. 
 v. Wauchope, 1816, i, 180. 
 Roxburgh v. Wauchope, 1820, i, 267, 513, 
 
 573, 617. 
 Royston v. Haliburton, 1715, ii, 18. 
 Ruddiman v. Merchant- Maid en Hosp., 1746, 
 
 i, 238. 
 Rule v. Hume, 1635, i, 93. 
 
 Rundell & Co. v. Montgomerie, 1825, ii, 421. 
 Rusco v. Blair, 1723, ii, 268. 
 Rush worth, ii, 114. 
 Russell, 1855, ii, 443. 
 
 v. Earl of Breadalbane, 1832, ii, 552. 
 
 v. Brown, 1687, i, 125, 156. 
 
 v. Crawford's Trs., 1824, i, 710. 
 
 v. Dickson, i, 467. 
 
 v. Freen, 1835, i, 247. 
 
 v. Hamilton's Ore., 1760, ii, 467. 
 
 v. Macdowall, 1824, ii, 18, 126. 
 
 v. Mudie, 1857, ii, 338. 
 
 v. Ross's Crs., 1792, i, 563. 
 
 v. Russell, 1745, i, 579 ; ii, 491. 
 
 v. Russell, 1763, i, 516. 
 
 v. Russell, 1822, i, 147. 
 
 v. Russell, 1835, i, 665, 679; ii, 282. 
 
 v. Russell, 1852, i, 541 ; ii, 262, 462. 
 Rust v. Smith, i, 257. 
 Rutherford, 1748, i, 97. 
 
 v. Carruthers, 1838, i, 53. 
 
 v. Nisbet's Trs., 1830, i, 96, 101-5. 
 Rutherfurd v. Tumbril, 1821, i, 403, 679 ; 
 
 ii, 11, 438. 
 Ruthven v. Clark, 1628, i, 59. 
 Ryder v. Ross's Crs., 1794, i, 200. 
 Ryrie v. Ryrie, 1839, ii, 314. 
 
 St Albans, D. of v. Beauclerk, i, 473. 
 
 St Andrews, Town-Council of v. Dr Bell's 
 
 Trs., 1845, ii, 390. 
 St Aubyn v. St Aubyn, i, 196, 204. 
 Sale v. Moore, i, 320-4. 
 Salt v. Chattaway, i, 211. 
 Sandeman v. Shepherd, 1835, ii, 556-560. 
 Sanderson, i, 293. 
 Sanderson's Exrs. v. Kerr, 1860, i, 334, 393, 
 
 404. 
 Sandilands v. Mercer, 1833, ii, 59, 63. 
 
 v. Sandilands, 1671, i, 120-6. 
 Sands v. Lady Brisbane, 1835, ii, 496, 583. 
 v. Sands, 1844, i, 520. 
 v. Her Tenants, 1678, i, 57, 60. 
 Saunders v. Drake, i, 38. 
 Sawers v. Monteith, 1861, ii, 571. 
 Scattergood v. Harrison, ii, 654. 
 Sceales v. Russel, 1821, ii, 152. 
 Schaw v. Calderwood, 1688, i, 168 ; ii, 283. 
 v. Houston, 1715, i, 575. 
 v. Schaw, 1715, ii, 457. 
 Scheniman v. Willison's Trs., 1832, ii, 426. 
 v. Wilson, 1828, i, 587, 654-6 ; ii, 6, 
 11, 21. 
 Schuurmans v. Goldie, 1829, ii, 564. 
 Sclater v. Cottam, ii, 554. 
 Scrimzeour v. Wedderburn, 1675, ii, 209. 
 Scudamore v. Scudamore, i, 211. 
 Scot v. Halyburton, 1823, i, 411. 
 v. Scot, 1722, i, 278. 
 v. Seton, 1708, i, 586. 
 y. Stewart, 1834, ii, 182. 
 Scotston v. Drummond, 1694, i, 162-7. 
 Scott v. Allnutt, 1831, i, 46. 
 v. Baird, 1754, i, 93. 
 v. Lord Belhaven, 1821, ii, 472, 699. 
 v. Burnet, 1724, ii, 454.
 
 INDEX OF CASES CITED. 
 
 Scott v. Carfrae, 1769, i, 635. 
 v. Douglas, 1737. i, 238. 
 v. Fenoulhett, i, 642. 
 v. Fisher, 1832, i. 96. 
 v. Gray, 1862, ii, 531-4. 
 v. Josselyn, ii, 272. 
 v. Maxwdl, 1850, i. 646. 
 v. Maxwell, 1854. i. 638. 
 v. Miller, 1832. i, 292 ; ii, 85. 
 v. Mitchell, 1830, ii, 432, 577. 
 v. Napier, 1827. i, 649. 
 v. Paton, 1703, ii, 566. 
 v. Pattison, 1826, ii, 560. 
 v. Price, 1837, ii, 62. 
 v. Reid, 1822, ii, 188, 332. 
 v. Ross, i, 415. 
 v. E. of Scarborough, i, 657. 
 v. Sceales, 1864, i, 234, 319, 335, 360; 
 
 ii, 31. 
 v. Scott, 1684, i, 721. 
 v. Scott, 1713 ; ii, 457, 575. 
 it. 1775, ii, 180. 
 •i. L843, i. 401, 654-7,678. 
 v. Scott, 1846, i. 221, 458. 
 v. Scott, 1847, ii, 440. 
 v. Scott. 1850. i, 697. 
 v. Scott, 1855, i, 322, 533, 727 ; ii, 299. 
 v. Scott, 1860, i, 586 ; ii, 3. 
 v. Scott's Heirs, 1751, i, 580. 
 v. Sharp, 1759, ii, 319. 
 v. Surman, ii, 38. 
 v. Tawse, 1828. ii, 458. 
 v. Thomson, 1854, ii, 333. 
 v.Wilson. 177:;. ii. 217. 
 v. Wilson, 1825, i, 274 ; ii, 89. 
 Scott's Crs. v. Scot, 1760, i, 721. 
 Scott's Trs. v. Stack, 1865, i, 701 ; ii, 22. 
 Scottish Equitable Ins. Co. v. Champion, 
 
 i7, i, 413. 
 Scottish Mid. By. Co. v. Gray, 1850, ii. 457. 
 Scottish Mi . Soc. v. Home Mission Com- 
 
 mittee, L858, i, 323, 365. 
 Scottish Union . I rraham, 1839, i, 
 
 298, 681. 
 Scoular's Exrs. v. Scoular, 1867, i. 330. 
 Scrimshire v. Scrimshiie, i, 6. 
 Scriven v. Tapley, ii, 58. 
 
 ifield, Countess of v. Earl of Seafii Id, 
 L814, i, 39, 138. 
 
 ■ ■:. is |s. ii. .-,77. 
 ton v. Beaton, L672, i, 196. 
 
 i, 225. 
 Idrh ■.. La 176 
 
 ,f v . Doi 177'.'. i. 869, 704. 
 
 of v. D.ol Bamilton, 1740, i. 76 7. 
 61 i 
 Sellai v. Stephen, L865, i. 286, 466, 470. 
 Bel , ] I i, 642. 
 
 Selwood v. Mildmay, - 
 Sempill v. Sempill, L792, ii. 28. 
 Lord v. Bay, L862, ii, 481. 
 Sample v. Crawford, L626, i. 87, 108. 
 v. Semple, L818, i, 171. 
 idat v. Sai ■ . i, I 
 Sergei on v. S< al( v. i, 222. 
 Seth v. Bain, 1866, ii. 77. 81, 116. 
 
 Seton v. Dawson, 1841, ii, 199, 310, 327, 
 521-8, 535-8, 553. 
 v. Ramsay, 1680, i, 448. 
 v. Seton, '1844, i, 530. 
 v. Seton, 1855, ii, 179, 369, 542. 
 v. Seton's Crs., 1793. i, 669. 
 Seymour v. Vernon, i, 570. 
 Shand, 1862, ii, 447. 
 
 v. Blaikie, 1859, i, 372 ; ii, 88. 
 Shanks v. Aitken, i, 285 ; ii, 188. 
 
 v. Kirk-Session of Ceres. 1797. i. 341, 
 606. 
 Sharp v. Christie. 1839, i, 423. 
 
 v. Sharp. 1631, i, 516. 
 Sharpe, 1823, ii, 262, 373. 
 
 v. Sharpe, 1835, i, 347, 352, 539, 547. 
 v. Sharpe's Trs., 1862, i, 335. 
 Shaw v. Borrer. ii, 340-3. 
 
 v. Campbell's Exrs.. 1847. i, 173-8. 
 v. Gray, 1624, i, 162-9, 170. 
 v. Lawless, i, 320. 
 v. Lewis, 1665, i, 25. 
 v. MacDonald, 1862, ii, 447. 
 v. Rhodes, i, 305-8. 
 v. Shaw, i, 654-6. 
 v. Steele, 1852, ii, 443. 
 Shearer v. Christie, 1842, ii, 61. 
 Shedden, 1867, ii, 449. 
 Sheddon v. Gibson, 1802, i. 120. 
 Shelmerdine, i, 285. 
 Shepherd v. Grant. 1836, i. 614-8. 
 v. Grant. 1847. i. 539. 
 v. Buttons Trs.. 1854, ii. 428. 
 v. Ingrain, i. 657. 
 Shepherd and Grant v. Connell, i, 282 ; ii, 
 
 400-2. 
 Sherer v. Bishop, i, 642. 
 Sherrat v. Bentley, i. 342. 
 Shipbrooke, Lord v. Binchinbrooke, ii. 530. 
 Shore v. Wilson, i, 302. 
 Short v. Short, 1771. i. 75. 593. 
 
 Shora I's Children v. Shorwood, 1669, i, 
 
 169. 
 Sibley v. Perry, i. 725. 
 Sillickv. Booth, i. 61. 
 Sime \. Balfour, 1804. i. 119, 192, 227. 
 
 v. Kirkpatrick, 1811, i, 192. 
 Simmons v. Hose, ii. 405. 
 Simpson v. Barr, 1864, ii, 472. 
 
 v. Doud, 1855, i, 315,417, 520. 
 v. Gardner, i. 276. 
 v. Bamilton, L707, ii, 464. 
 v. Walker, 1710. i. 706. 
 Sim on v. ( Iraham, L881, ii. 881 . 
 v. Lord Borne, L697, i, 666. 
 
 ir v. Lord Duffu I, is 12, ii. 173. 
 v. Dunbar, 1845, ii. 458. 
 v. Earl of Kilo. 1700. i. 696. 
 v. Maxwell, L708, ii. 71. 89, 112. 820. 
 v. Sinclair, L788, i, 604. 
 v. Sinclair, L769, i, 561. 
 
 v. Sinclair. L770, i. I W. 
 v. Sinclair, isll. i. 660. 
 
 v. Sutherland, 1 777, ii, 180. 
 v. Traill, 1840, i, 189, 219, B28, 101 
 ii. 90 6
 
 lii 
 
 INDEX OF CASES CITED. 
 
 Sinclair v. Trail, is 17. ii, 268. 
 Sinclair's Exrs. v. Fraser, 1798, i, 826; u, 
 IT::. 489, 495. 
 v. Rorison, L852, i, 139, 457, 478. 
 Gil . i. 224. 
 Siiwvll x. l'-armm!. i, 214, 396; ii, 377. 
 M v. Dallas, 1824, i, 837, 656; ii, 7 
 29, 293, 800. 
 Skene v. Ramsay, 1665, ii, 75. 
 
 v. Skene, 1726, i. 605. 
 Skinner, ii, 392. 
 
 \. i; ibertson, 1807, i, 400. 
 n. Skinner, 1775, i, 156. 
 Slater v. Wheeler, ii, 183. 
 Sloan v. Auld, 1851, ii, 543. 
 Smart, 1854, ii, 443. 
 
 Smee & ( !o. v. Anderson's Crs., 1734, ii, 410. 
 Smith, 1802, ii, 447-9. 
 V. Anderson, i, 190. 
 v. Barlas, 1857, i, 113, 396; ii, 101. 
 v. Chichester, ii, 114. 
 v. Donaldson, 1829, i, 315, 391, 466-8. 
 v. Drummond, 1829, ii, 452. 
 v. Ellis, 1022, i, 130. 
 v. Frier, 1857, ii, 59. 
 v. Grieve, 1801, i, 299, 643. 
 v. Harris, 1854, i, 98. 
 v. Kyd, 1797, i, 435. 
 v. Lauder, 1834, i, 43; ii, 11. 
 v. Lay, ii, 555. 
 
 v. Leitch, 1826, i, 695, 710; ii, 18, 440. 
 v. Marshall, 1780, ii, 455. 
 v. Milne, 1826, ii, 273. 
 v. Murray, 1814, i, 298, 478. 
 v. Pybus, i, 339. 
 v. Eankine, 1840, i, 240. 
 v. Robertson. 1826, ii, 853-6. 
 v. Shields, 1830, i, 174. 
 v. Smith, 1710. i, 676. 
 v. Smith, 1737, i, 188, 196. 
 v. Smith, 1862, ii, 214. 
 v. Smith, 1866, ii, 65. 566. 
 v. Taylor, 1749, ii, 73. 
 v. Taylor, 1836, ii, 274. 
 v. Tebbit, i, 276. 
 v. Telford, 1838, ii, 563. 
 v. Thomas, 1830, ii, 160. 
 v. Wilson, 1792, i, 80. 
 Smith's Trs. v. Grant, 1862, i, 189; ii, 
 153-5, 161, 451. 
 v. Scaife, 1867, i, 395. 
 v. His Legatees, 1867, i, 404 ; ii, 23. 
 Smith's Trusts, ii, 31. 
 Smith and Bogle v. Gray, 1752, i, 498, 630. 
 Smitton v. Tod, 1839, i, 251, 295 ; ii, 50-6. 
 Smollett v. Bell, 1793, ii, 78, 82. 
 
 v. Smollet, ii, 289. 
 Smollett's Crs. v. Smollet, 1807, i, 563. 
 
 ill, 1812, i, 166. 
 Snodgrass v. Beats' Crs., 1744, ii, 410. 
 
 v. Buchanan, 1806, i, 239, 322, 492-8, 
 727 ; ii, 298. 
 Snowdon v. Dales, i, 295. 
 Sommervail v. Eclin. Bible Soc, 1830, i. 
 
 323, 366. 
 Somervell v. Geddie, 1743, i, 176. 
 
 Sommerville v. Redfeam, 1813, ii, 89, 54, 
 70, 127, 341. 
 v. Scott, 1761, i, 666. 
 v. Sommerville, 1819, i, 251, 416. 
 v. Lord Somerville, i, 4, 6, 13, 22. 
 Somerville's Trs. v. Dickson, 1865, i, 586. 
 v. Gillespie, 1859, i, 219. 
 v. Wemess, 1854, ii, 202, 218, 571. 
 Sorlies v. Robertson, 1771, i, 123. 
 Soutar's Crs., 1842, ii, 446. 
 Soutar v. M'Grugor, 1801, i, 401 ; ii, 90. 
 Southouse v. Bate, i, 334. 
 Sowerby's Trust, ii, 421. 
 Spadin'v. Spadin's Trs., 1819, i, 454-6. 
 Spalding v. Farquharson, 1811, i, 116. 
 v. Shalmer, ii, 340. 
 v. Small, 1821, i, 410. 
 v. Spalding, 1812, i, 147. 
 Speirs, i, 162. 
 
 v. Dunlop, 1778, i, 417, 512. 
 v. Graham, 1829, i, 343. 
 v. Speirs, 1850, i, 219, 227. 
 Speirs' Tutors, 1848, ii, 242. 
 Spence, ii, 512. 
 
 v. Durie, 1610, i, 89. 
 v. Ross, 1826, i, 251. 
 v. Stevenson, 1766, i, 157. 
 Spink v. Lewis, i, 716. 
 Spode v. Smith, ii, 314. 
 Spottiswoode v. Stockdale, ii, 418. 
 Spreul v. Crawford, 1741, ii, 74, 114, 118. 
 
 v. Wilson, 1809, i, 235. 
 Sprot v. Pennycook, 1855, i, 321 ; ii, 29, 
 278. 
 v. Sprot, 1828, i, 520 ; ii, 369. 
 Sprot's Trs. v. Sprot, 1830, ii, 262, 373. 
 Stables v. Murray, 1789, ii, 60. 
 Stackpoole v. Howell, ii, 208. 
 Stainton v. Stainton, 1828, ii, 562. 
 
 v. Stainton's Trs., 1850, ii, 43, 123, 
 135, 381, 425, 568. 
 Stainton's Trs. v. Topham, 1868, ii, 374, 
 
 479. 
 Stair v. Stair's Trs., 1825, i, 214 ; ii, 318, 
 376. 
 Earl of v. Dalrymple, 1844, i, 714, 721. 
 Earl of v. Head, 1844, i, 35-8. 
 Earl of v. King, 1846, i, 367. 
 Stanley v. Potter, i, 261. 
 Stanwix, i, 61. 
 Stark v. Mackay, 1714, ii, 306. 
 
 v. Moncrieff, 1838, ii, 326, 523. 
 Starr v. Newberry, i, 715. 
 Stead v. Cox, 1835, ii, 309, 507. 
 Stebbing v. Walkey, i, 642. 
 Steedman v. Malcolm and Ors., 1842, ii, 
 
 388, 400-4. 
 Steel v. Wemyss, 1793, i, 384. 
 Steel's Trs. v. Cooper, 1830, i, 396. 
 Steele v. Couper, 1853, i, 507, 516. 
 
 v. Steele's Trs., 1814, i, 528, 532. 
 Steele's Trs. v. Cooper, 1830, i, 113. 
 Stein v. Stein, 1826, i, 337 ; ii, 299. 
 Stein's Assignee v. Brown, 1831, i, 54. 
 Stenhouse v. Dewar, 1686, i, 68. 
 v. Young, 1737, i, 448.
 
 INDEX OF CASES CITED. 
 
 liii 
 
 Stephenson's Trs. v. Marq. of Tweeddale, 
 ■ 1823, ii, 228. 
 
 Sterling v. Baird's Trs., 1851, ii, 6, 10. 
 Steven v. Glen, 1811, ii, 342, 345. 
 Stevens v. South Devon Co., n, 247. 
 Trs. v. Fraser, 1836, ii, 75, 315. 
 Stevenson v. Allan, 1680, i, 273. 
 v. Ewing, 1849, ii, 215. 
 v. Fife, 1715, i, 706. _ 
 
 v Hamilton, 1838, i, 132, 174, 4, ( : 
 
 ii, 125. 
 v. Ker, 1663, ii, 472. 
 v. Macintyre, 1826, i, 393, 586. 
 v. MLaren. ii. 167. 
 v. Tweedie, 1649, i, 95. 
 Trs. v. Dumbreck, 1861, ii, S27. 
 Stewart. 1792. i. 226. 
 
 v. Anderson, 1741', i. 95. 
 v. Baillie, 1841, i, 266, 248, 465, 4(0 
 493. 
 
 impbell, 1830, ii, 564. 
 v. Campbell, L852, ii, 489, 494. 
 v. Denbam. 1 7 li^. i. 579. 
 v. Denbam, 1726, i, 565. 
 v. Elder, 1816, ii, 541. 
 v. Falconer, 1830, ii, 306. 
 v. Ferguson, 1841, i, 367. 
 v. Fullerton, 1830, i, 527. 
 v. Garnett, i, 33. 
 v. Hoome, 1792, i, 83, 545. 
 v. Hunter's Trs.. is is, ii, 64. 
 v. Irvine. 1632, i, 89. 
 v. Kirkcaldy, 1849, ii, 255. 
 v. Kirkpatrick, 1735, i, 501. 
 v. Leslie, 1810, i, 512. 
 v. Stewart, 1803, i, 492. 
 v Macdonald, 1826, i, 45 ; ii. 303. 
 v. Mark, n/.ie. 1834, ii. 538, 542. 
 v. M'Naughton, 1824, i, 143. _ 
 v Neilscm (Carnock), 18u9, l, 0OI-8, 
 516-9, 560 6, 628. 
 • ,„. 1866, i. 17'.'. 265, 391. 
 v E. of Orkni y, 1713, ii, 572. 
 , Porterfield, L821, i. 537. 
 v. Porterfield, L826, i, 617. 
 v. Stephen, 1832, i, 136,478. 
 v. St. wart, 1761, i, 185. 
 v. Stewart, 1802, i. 713. 
 v.Stewart, 1813, 1,289,322-6; u,296. 
 
 v. Stewart, L815, i, 417. 
 
 v. si. wart, 1833, i, 257. 
 
 v. Stewart, is 12, i. 872. 
 
 v. St. •■. rt, L846, i. 561. 
 
 v. St. v.,,1- I'.m ■ 1761, i, 184,508. 
 
 v. Traill, 1887, ii, 881. 
 
 \. \ I. '■ r, 77. 
 
 v. V I ."I. i. 82. 
 
 v Wa1 on, L791,i, 26, 246. 
 
 v. Wat on' II' i ' ' ; - 1862, i, 185-7. 
 
 v v. 8, Ii, 545. 
 
 T] . .. r! L861, i, L25.479; 
 
 ii. :;:;. 185, 868. 
 Stickney v. Sewi 11. ii, 621. 
 Stiles v. Gray, ii. 806, 828. 
 Still v. II- ■(• . 1- 864. 
 Sin i 1818 ' ,::: ' 
 
 , 1662, i. 514. 
 
 Stirling v. Cunningbame, 1639, ii, 305. 
 v. Deans, 1704. i, 464-9. 
 v. Dunn, 1827, i, 508. 
 v. Dun. 1829, i. 540, 570. 
 v Ewart, 1844, i, 618. 
 v. Luke, 1732. i, 130. 
 v. Mackenzie, 1847, i, 57 ; 11, 427. 
 v Moray, 1845, i, 549, 558. 
 v. Stirling, 1801, i, 512. 
 v. Stirling (Milton), 1834, 1, 502. 
 v Stirling and Robertson, 1822, ii, 77. 
 v. Stirling's Trs., 1838, ii, 309. 
 Stocken v. Dawson, ii, 554. 
 Stocks v. Dodsley, i, 714. 
 Stodart v. Arkley, 1799. i, 233. 
 Stoddart v. Grant, i, 373, 463-5. 
 
 v Rutherford, 1812, i, 283; 11, 181. 
 v Thomson, 1734, i, 139, 328, 482, 
 493 ; ii, 92. 
 Stone v. Parker, i, 317, 589. 
 Storke v. Storke, i, 380. 
 Stormonth v. Annandale s Crs. 
 v. Robertson, 1814, i, 196. 
 Stott, 1854, ii, 446. 
 
 v. Hollingworth, ii, 377. __ 
 
 Stracban v. Baldwin, 1837, i, 168 ; 11, 285. 
 Stracban v. Mowbray, 1843, i, 219-223 
 Strachan's Heirs v. His Crs., 1738, 11, 454 
 Straiten v. E. of Lauderdale, 1708, 11, 473, 
 
 489. 
 Strang v. Strang, 1751, i, 512. 
 Strange v. Smith, i, 590. 
 StratbaUan v. D. of Northumberland, 1840, 
 
 i, 326, 582, 665 ; ii, 289-91. 
 Strathmore v. Bowes, ii, 63. 
 
 Earl of. 1858, ii, 375. . 
 
 E of v. Stratbmore's Trs., 1831,1,1/9, 
 
 299,303; ii, 54, 380. 
 E. of v. Strathmore's Trs., 1840, i, 617; 
 
 ii, 270. 
 E. of v. Stratbmore's Trs., 1856. 11, 262. 
 Strathnaver v. M'Beath, 1731, ii, 79. 
 Straton's Trs. v. Cunningham, 184U, 1, 
 
 463 6, 174. 
 Strode v. Etusi 1 11. i, 380. 
 Strong v. Strong, 1851, i, 446. 
 Stronghill v. Anstey, ii, 343. 
 Stuarl v. Fl< ming, 1623, i,.467. 
 v . Campbell, 1852, is, 421. 
 v. Maconochie, 1836, ii, 432. 
 
 Stubbs & Co. v. Smith, 1829, ii 333. 
 Sturgeon v. M'Lellan, 1813, u,-651. 
 i v. Campbell, i, 395, 403. 
 
 ... 1 hiampnt ii, 68. 
 Slun-oek v. P.ii.ny. 'si:'., i. -190, 6,2. 
 
 N . Thorn's Exrs., ii, 510. 
 Styles \. I ruy, ii, 530. ^ 
 Suisse v. Lowther, i, 478. _ 
 Summers v. Simson, 1757, 1, 9o. 
 Suthi rland v. Cooke, ii,824. 
 
 , D( „ 1 , -| ■, .. L866, 1,882,681, 707. 
 
 v. Gordon, i, 117. 
 
 \ Graham, 1757. i, 96. 
 
 , Jeffrey, L805, i, 818 8,890 
 
 1 84, -. "I"
 
 liv 
 
 INDEX OF CASES CITED. 
 
 Sutherland v. Rosa, 1688, Li, 629. 
 
 7. Sinclair, L801, i, 840, 526,642,608. 
 
 v. Sutherland. ITSli, li. 463. 
 
 \. Sutherland's Exrs., 1825, i, 478. 
 
 \. Watson's Crs., 1724, ii, 409-12. 
 Suttie v. Ross, L888, i. 164, 237. 
 
 v. D. of Gordon, IT:'.;'., i, 104. 
 
 \. Suttie. ISO'.). i.lS'.i, (iOU, 634, 705. 
 
 v. Suttie's Trs., 1846, i, 300.. 310. 
 Sutton Colefield, ii. LOS. 
 Sutton v. Jours, ii. :'. is. 
 Swan v. Wright, L829, ii, 549. 
 Swayne v. Fife Banking Co., 1822, ii, 151. 
 Swinnock v. Crisp, ii, 259. 
 Swinton v. Gawler, 1809, i, 200. 
 
 \ . I luchess of Roxburghe, 1814, ii. 287. 
 
 Tr. v. Swinton, 1862, i, 348, 613-6; 
 ii, 150. 
 Sun v. Charles, 1830, ii, 243, 311-28, 
 
 520-33, 541-6. 
 Syme v. Dcwar, 1803, i, 564* ii, 457. 
 
 v. Dickson, 1799, i, 530. 
 
 v. Dickson, 1821, i, 526, 546. 
 
 v. Harvey, 1861, i, 185. 
 
 v. Henderson, 1835, i, 274. 
 
 Tuilzeour v. Tailzeour, 1787, i, 167. 
 Tail v. Lady Duncan, 1837, i, 632. 
 
 v. Kay," 1779, ii, 155, 311, 344, 469. 
 
 v. Wood, 1866, i, 58. 
 Tatham v. Drummond, i, 469. 
 Tatnall v. Hankey, i, 26. 
 
 v. Keid, 1827, ii, 571. 
 Taylor, 1850, ii, 241, 259, 319. 
 Re Taylor, i, 211. 
 Taylor v. Lord Braco, 1747, ii, 466-8. 
 
 v. Clarke, ii, 377. 
 
 v. Crawford, 1833, ii, 80-3. 
 
 y. Diploch, i, 61. 
 
 v. Sir William Forbes & Co., 1827, ii, 
 167, 311, 344. 
 
 v. George, i, 320. 
 
 v. Hutton, 1854, ii, 462. 
 
 v. Com. of Police for Kilmarnock, 1858, 
 ii, 570. 
 
 v. Noble, 1836, ii, 189, 430, 563. 
 
 v. Richardson, i, 379. 
 
 v. Tabrum, ii, 335. 
 
 v. Taylor, i, 211, 213, 262; ii, 97. 
 
 v. Taylor's Trs., 1857, ii, 448. 
 
 v. Veitch, 1796, i, 97. 
 
 y. Watson, 1846, ii, A 351-7, 361, 432, 
 577. 
 Tebbs y. Carpenter, ii, 306, 520. 
 Telford v. Jamieson, 1835, i, 476 ; ii, 44. 
 Templer v. Templer, 1828, i, 395, 403. 
 Tenant v. Tenant, 1688, i, 73. 
 Tench v. Cheese, i, 305 ; ii, 97, 263. 
 Tetlow v. Ashton, i, 704. 
 fie Tharp, i. 681. 
 Thetford School, ii, 101-5. 
 Thoirs v. Tolquhoun, 1686, ii, 47. 
 Thorn y. Mackenzie, 1864, ii, 319. 
 
 v. Thorn, 1852, i, 82; ii, 30. 
 Thomas v. Walker's Trs., 1829, ii, 333-9, 
 506, 543. 
 
 Thompson v. Finch, ii, 531. 
 Thorns v. Thorns, 1865, i, 94, 372-8. 
 
 v. Thorns, 1868, i, 314. 
 Thomson, 1857, ii, 443. 
 
 v. The Adv.-Gen., 1845, i, 48. 
 
 v. Angus, i, 80. 
 
 v. Campbell, 1838, ii, 243, 303-7, 529- 
 43. 
 
 v. Christie, 1852, ii, 172, 315, 325, 336, 
 520. 
 
 v. Cumberland, 1814, ii, 300, 322, 
 723-5. 
 
 v. Carling, i, 44. 
 
 v. Dalrymple, 1865, ii, 446. 
 
 v. Douglas, 1856, i, 393, 408. 
 
 v. Douglas, Heron, & Co., 1786, ii, 341. 
 
 v. Dove, 1811, i, 292-7 ; ii, 90. 
 
 v. Dudgeon, 1851, ii, 336, 416, 500. 
 
 v. Duncan, 1855, ii, 84. 
 
 v. Lyell, i, 313, 378, 466. 
 
 v. MacLachlan's Trs., 1829, ii, 506. 
 
 v. Miller, 1834, ii, 472. 
 
 v. Milne, 1839, i, 553-5. 
 
 v. Mowbray 1676, ii, 572. 
 
 v. Murray, 1824, ii, 577. 
 
 v. North British Ry. Co., 1867, ii, 339. 
 
 v. Smith, 1849, i, 135. 
 
 v. Thin, 1675, i, 123. 
 
 v. Thomson, 1801, i, 161, 646. 
 
 v. Scougall, 1835, ii, 19, 440, 656-695. 
 Thomson's Trs. v. Alexander, 1851, i, 34, 
 
 49-55. 
 Thomson's Trs. v. Robb, 1851, i, 672 ; ii, 
 
 554. 
 Thomson's Trs. v. Thomson, 1862, i, 673. 
 Thomson's Trs. v. Thomson's Exrs., 1867, 
 
 ii, 245. 
 Thorburn v. Martin, 1853, ii, 171, 346-53- 
 
 61, 432. 
 Thorburn v. Thorburn, 1836, i, 405; ii. 4. 
 
 v. Thorburn, 1858, i, 709 ; ii, 484, 493. 
 Thomhill v. MacPherson, 1841, i, 425, 686 ; 
 
 ii, 13. 
 Thornton v. Thornton, 1845, ii, 55. 
 Threshie, 1815, i, 284. 
 
 v. Threshie's Trs., 1845, i, 410. 
 Thurburn's Trs. v. Maclaine, i, 314 ; ii, 61. 
 Thwaites, ii, 351. 
 
 Tliyne, Lady v. Earl of Glengall, i, 451-4. 
 Tibbits v. Tibbits, i, 320. 
 Tiffin v. Longman, i, 727. 
 Tinnoch v. MacLewnan, 1867, i, 606-10 
 
 635, 709. 
 Titchfield, M. of v. Cuming, 1800, i, 528, 
 
 532. 
 Titchfield, M. of v. Horncastle, i, 313. 
 Todd v. Clyde's Trs., 1843, ii, 570-7. 
 
 v. Clyde, 1843, ii, 251. 
 Tod v. Wemyss, 1770, i, 135. 
 Todrick v. Sibbald, 1833, ii, 258. 
 Tofield. v. Tofield, i, 313. 
 Tolmie v. Cruickshanks, i, 257. 
 Tomison v. Tomison, 1839, i, 162. 
 Tomkins v. Tomkins, i, 642. 
 Torbet v. Borthwick, 1849, ii, 560. 
 Torrance v. Bryson, 1841, ii, 187.
 
 INDEX OF CASES CITED. 
 
 lv 
 
 Torrance v. Murdoch, 1842, ii, 468. 
 Torrie v. Munsie and King's Remembrancer, 
 1832, i, 287, 401-5, 644, 708 ; ii, 
 90-6, 526, 678. 
 Tovey v. Tennent, ii. 217, 445. 
 Towart, 1823, ii, 446. 
 
 v. Sellar. i, 273. 
 Townend v. Townend, ii, 520. 
 Townley v. Sherborne, ii, 529. 
 Townsend, Lord v. "Windham, ii. 272. 
 Trail v. Trail, 1737, i, 422. 
 
 v. Trail. 1805, i. 234. 
 Train v. Bell's Trs.. 1824, i, 388 ; ii, 325, 
 
 520. 
 Trafford v. Bcehm, ii, 321. 
 Traquair, Earl of v. Henderson, 1822, i, 
 
 241. 
 Traquair's Trs., E. of v. Henderson's Trs., 
 
 1835, ii, 538. 
 Treves v. Townshend, ii. 520. 
 Trimblestone v. Hammill, ii, 243. 
 Trimmer v. Bayne, i, 374. 
 Trot v. Vernon^ i, 320. 
 Trotter v. Cunningham, 1829, i, 199, 393; 
 ii. 263. 
 
 v. Rochead, 1681, i, 142. 
 
 v. Trotter, 1829, i, 42, 55. 193. 475-8. 
 
 v. Trotter, 1842, i, 252, 384. 
 Trotters Trs. v. Gordon, 1840, i, 545. 
 Trower v. Butts, i, 644. 
 Tuer v. Turner, i, 224. 
 Tullett v. Armstrong, ii. 65. 
 Tulliallan, L. v. L. Clackmannan, 1626, i, 
 
 647. 
 Tullis v. Mags, of Edinr., 1847, ii. 570. 
 Tulloch v. Welsh, i. 075-8, 681, 702: ii, 
 30. 
 
 v. Williams, 1846, i, 51. 
 Turn bull, 1864, ii 
 
 v. Cowan, 1848, ii, 96. 
 
 v. Doods, 1844, i, 230, 319. 
 
 v. Kerr. 1760, i. L99. 
 
 v. Hay Newton, i. 500. 
 
 L826, i. 251 : ii. 50-6. 
 
 v. Turnbtdl'fl Cr., 1700, ii. 57. 
 
 v. Turnbi 326, ii. 319. 421. 
 
 Turner v. Martin, ii. 1-1 . 
 
 v. Turner, 1807, i, 670. 
 
 v. Turner, 1811, i, 569. 
 Turner's Tn .. L862, ii, 243. 
 'i i ddale, M. of v. Bomner, 1816, i, 200. 
 i lie, 1868, ii. 384. 
 
 v. Loch, ii. 71-4. 
 'I . 'i Ii ii. i, 452. 
 
 Tyrel] v. Clark, i, 208. 
 II. i. 894. 
 
 Udny v. Udny, 1868 i, 668. 
 
 v. Udny, 1866, i, 9-11. 
 Dlrick v. Litchfield, i, 
 
 rwood v. Bl 580. 
 
 v. Wing, i. 81. 
 Union Bank v. !•"• i o l B67 
 United St f v.] taunmond, 
 
 i, 11. 
 Urch v. Walker, ii. 198. 
 
 Ure v. Earl of Crawford, 1756, i, 525. 
 
 v. Jeffrey, 1825, ii, 420. 
 Urquhart v. Brown, 1843, ii, 310, 316, 
 533-8. 
 v. Douglas, 1738, ii, 65-7. 
 v. Urquhart, 1803, i, 512. 
 v. Urquhart, 1851, i, 135, 247, 201, 
 479,533,577. 
 
 Vallance v. M'Dowall, 1709. ii, 57. 
 Vance v. East Lancashire Ry. Co., ii, 247. 
 Vans v. Malloch, 1675, i, 234. 
 Vans Agnew v. Stewart, 1822, i, 254. 
 Varley v. Winn, i, 394. 
 Vaughau v. Buck, ii, 58. 
 Vaux v. Henderson, i, 704, 718. 
 Veitch. 1632, i, 87, 108. 
 
 v. Irving, 1700, i, 46. 
 
 v. Young, 1733. ii. 454. 
 
 v. Young, 1808, i, 93, 187, 507. 
 Vere, 1804, ii, 331. 
 Vernon v. Vernon, i, 320. 
 Villiers v. Connell, i, 415. 
 Vincent v. Xewcombe, ii, 324. 
 Vines v. Hillou, 1860, i, 684, 691, 701 ; 
 
 ii, 20. 
 Vint v. Earl of Dalhousie, 1712, ii, 464. 
 
 v. Hawley, 1712, ii, 454. 
 Virginie, La, i, 7. 
 
 Waddell, 1851, ii, 242. 
 
 v. Colt, 1789, i, 316, 390. 
 
 v. Pollock, 1828, i, 639, 722; ii, 339. 
 
 v. Rymer, 1833, ii, 135. 
 
 v. WaddeU, 1812, i, 411. 
 
 v. Waddell, 1818, ii, 490. 
 
 v. Waddell, 1842, ii, 297. 
 
 v. Waddell, 1863, ii, 108. 
 
 v. Waddell's Trs., 1845. i, 104, 236, 
 274. 
 Waddell's Trs. v. Waddell, 1843, ii, 100. 
 Walker. 1837, ii. -1 16. 
 Walker, 1862, ii, 59. 
 
 v. Buchanan, Kennedy & Co., 1857, ii, 
 52-5, 79, 552. 
 
 v. Dean, i. 225. 
 
 v. Gavin, 1787, ii. 336. 
 
 v. Horne, 1827, ii. 453. 
 
 v. Masson, 1857, ii. 475, 482. 
 
 .. Park, 1859, i. 671, 684; ii, 24. 
 
 v. Steele, 1825, i, 263. 
 
 v. Svnionds, ii. 320. 
 
 v. Walker, 1744, i. 671. 
 
 v. Wetherell, ii. 259. 
 
 \. Wo dword, ii. 524. 
 Walker's Exrs. v. Low. 1833, ii, 77. 
 Wall v. Wall, i, 292. 
 Wallace, i, 89. 
 
 v. Att.-( ;.,,.. i, 48. 
 
 v. Ritchie's Trs. L846, ii. 484-7, 498. 
 
 v. Taylor, 1882, ii. 629. 
 
 v. Wallace, 1768, i, 80. 
 
 v. Wallace, L807. i. 671, 686; ii. 9. 
 Wal] v. Maxwell, 1700, ii. 689. 
 Walpole, Lord \. Lord I Iholmondely, i, 380. 
 Wampbi •/ L669, i, 87, 109.
 
 Ivi 
 
 INDEX OF CASES CITED. 
 
 Warburtol) v. Sandys, ii. 218. 
 Ward v. Butter, ii. 196. 
 Wardlaw v. Fraser, L663, i. 390. 
 
 v. Maxwell, 1715, i, 45; ii, 303. 
 Wardrop v. Fairholme, 1744, ii. 410. 
 Wardropei v. Outfield, i, 204. 
 Warren v. Rudall, ii. 209. 
 Warreiuhr v. Wanviuh-r, 1835, i, 13, 15. 
 Waterpark v. Fennel, i, 368. 
 Wati rs \. Groom, ii. 340. 
 Watherston v. Rontons, 1801, i, 646. 
 Watson, ii. 520. 
 Watson v. Blair, 1831, i, 467. 
 
 v. Crawcour, 1856, ii, 134, 204-14, 314- 
 
 20, 433, 520. 
 v. Glass, 17 11. i, 667. 
 v. Haliburton, 1656, ii, 472. 
 v. Hayes, i, 211. 
 
 v. Johnston, 1848, ii, 81, 408, 421. 
 v. M'Donald, 1794, i, 189. 
 v. MacDougall, 1856, f, 653-6, 700; 
 
 ii, 13. 
 v. Marjoribanks, 1837, i, 337, 656 ; ii, 
 
 5-8, 29, 284, 300. 
 v. Marshall, 1782, ii, 168, 302. 
 v. .Morrison, 1848, ii, 245. 
 v. Noble's Trs., 1827, i, 274. 
 v. Pyot, 1801, i, 512; ii, 261. 
 v. Robertson and Marjoribanks, 1837, 
 
 ii, 295. 
 v. Watson, 1856, i, 325, 648, 651. 
 v. Wilson (Alexander's Tr.), 1868, ii, 
 181. 
 Watson's Crs. v. Muirhead, 1825, ii, 409. 
 Watt, 1854, ii, 224, 446. 
 v. Forrest, 1702, ii, 18. 
 v. Greenfield's Trs., 1825, ii, 426. 
 v. Jervie, 1760, i, 258. 
 v. Tawse, 1829, ii, 277. 
 Watt's Trs. v. Pinkney, 1853, ii, 125. 
 Wauchope v. Ladies E. and M. Ker, 1812, 
 i, 178, 269. 
 v. Duke of Roxburgh, 1815, i, 583. 
 v. Wauchope, 1737, i, 221. 
 v. Wilson, 1724, i, 389. 
 W T eall v. Rice, i, 374. 
 Webb v. Earl of Shaftesbury, ii, 45, 173. 
 
 v. Wools, i, 320. 
 Webster v. Alexander, 1859, ii, 421. 
 v. Greig, 1802, ii, 455, 471. 
 v. MacCalman, 1868, ii, 506. 
 v. Rettie, 1859, i, 134, 140, 156, 460. 
 Weddel, 1849, i, 84 ; ii, 271. 
 Wedderburn v. Colville, 1789, ii, 278. 
 
 v. Scrimgeour, 1666, i, 333. 
 Wedderburn's Crs. v. M'Kenzie, 1742, i, 
 
 195. 
 Weedon v. Fell, i, 699. 
 Weir v. Lord Advocate, 1865, i, 217. 
 v. Drummond, 1664, i, 93. 
 v. Knox, 1791, i, 162. 
 v. Laing, 1821, i, 32. 
 v. Parkhill. 1738, ii, 473, 489. 
 v. Steele, 1745, i, 378, 605. 
 Weiss v. Dill, ii, 551. 
 Welby v. Welby, i. 475. 
 
 Weld v. Bradbury, i, 652. 
 
 v. Tew, i, 223. 
 Welsh v. Barstow, 1837, i, 582; ii, 44. 
 v. Cairnie, 1809, i, 312, 391, 493. 
 v. M'Arthur, 1816, ii, 556-9. 
 v. Milne, 1844, i, 53. 
 v. Robertson, 1820, i, 542-8, 550-5. 
 Wellwood v. Ross. 1831, ii, 328, 520. 
 
 v. Wellwood (Garvock), 1791, i, 532. 
 v. Wellwood, 1848, ii, 287. 
 Trs. v. Boswell, 1851, i, 590. 
 Trs. v. Boswell, 1856, ii, 525. 
 Wellwood's Trs. v. Hill, 1856, ii, 176, 553. 
 Wemyss v. Wilson, 1674, ii, 306. 
 Earl of v. Campbell. 1864, i, 94. 
 E. of v. E. of Haddington, 1815, i, 417. 
 E. of v. Montgomery^ 1824, ii, 348. 
 E. of v. Duke of Queensberry's Exrs., 
 
 1821, i, 571. 
 E. of v. Thomson, 1672. ii, 529. 
 E. of v. Trail, 1810, i, 326, 403, 665 ; 
 ii, 289. 
 West v. Jones, ii, 530. 
 Western Bank, 1862, ii, 532. 
 Westley v. Clarke, ii, 530. 
 West Nisbet v. Morrison, 1627, ii, 65. 
 Wharncliffe, Lord v. Nairne, 1849, i, 552. 
 Wharrie v. Wharrie, 1760, i, 322, 727; 
 
 ii, 298. 
 Wheldle v. Partridge, i, 224. 
 Whicker v. Hume, i, 3. 
 White, 1855, ii, 254. 
 v. Baker, i, 695. 
 v. Barber, i, 334. 
 v. Briggs, i, 320-4, 726. 
 v. Finlay 1861, i, 132, 226 ; ii ; 96, 144. 
 v. Hay, 1698, ii, 452. 
 v. Watson, ii, 410. 
 v. White, 1673, ii, 489. 
 v. White, 1841, i, 458 ; ii, 107. 
 v. White, 1860, i, 215, 707. 
 v. Williams, i, 380. 
 v. Wilson & Co., 1863, ii, 559. 
 White's Trs. v. White, 1860, i, 210. 
 Whitelaw v. Lang, i, 176. 
 Whitmore v. Turquand, ii, 422. 
 Whitton v. Russell, i, 38. 
 Whyte v. Ballantyne, 1823, i, 274. 
 v. Ballantyne, 1825, ii, 88. 
 v. Knox, 1858, ii, 55. 
 Trs. v. Burt, 1851, ii, 346-355. 
 Wick, Mags, of v. Forbes, 1849, i, 48, 51. 
 Wight v. Brown, 1849, i, 114. 
 v. Tnglis, 1798, i, 79. 
 v. Wight, 1818, ii, 284, 295. 
 Wightman v. Delisle's Trs., 1802, i, 20, 34, 
 
 40, 479. 
 Wildes v. Davies, i, 313. 
 Wilkie v. Chalmers, 1854, ii, 106. 
 v. Dalziel, 1688, ii, 567. 
 v. Jackson, 1836, i, 666, 673. 
 v. Wilkie, 1837, i, 580 ; ii, 123. 
 Wilkins v. Hogg, ii, 531-8. 
 Wilkinson v. Parry, ii, 226. 
 v. Wilkinson, i, 292-6. 
 Williams v. Nixon, ii, 530.
 
 INDEX OF CASKS CITED. 
 
 Ivn 
 
 Williams v. Powell, ii. 524. 
 
 v. Roberts, ii. 93. 
 Williamson v. Fraser, 1832, ii. 107. 
 
 v. Gardiner, 1865, i. 727. 
 
 v. Hay, 1855, i. 393. 
 
 v. Johnstone, 1848. ii. 419. 
 
 v. Kennedy, i. 232. 
 
 v. Paul, 1849. i, 223. 
 
 v. Sharp, 1851. i, 559, 5G4. 
 
 v. Suttie, 1843. i. 396; ii. 527. 
 
 v. Urquhart, 1688, i. 233. 
 
 v. Williamson's Trs., 1849, ii. 98, 
 Willison, i. 558. 
 
 v. Callender, 1724. i. 562. 
 
 v. Smart. 18G0. ii, 153. 
 
 v. Willison, 1726, i. 528. 
 Willock v. Auchterlonie, 1772, i, 27. 179, 
 
 248, 387; ii. 487. 
 Willox v. Farrell, 1846, i. 68, 101. 
 Wilmol v. Wilmot, 1841, i. 51. 
 Wilkie, 1688, ii, 327. 
 Wilson, 1864, ii. 217. 
 Wilson v. Alexander, 1807, ii. 55. 
 
 v. Beveridge, 1833. ii. 12. 46, 325. 
 
 v. I ampbell and Ors., 1819, ii. 257. 
 
 v. Dick, 1840, i, 479. 
 
 v. Mags, of Dunfermline, 1822. ii. 551. 
 
 v. Fleming, 1823. ii. 152. 
 
 v. Gibson, 1840, i, 139, 482. 
 
 v. Gilchrist's Trs., 1851, i. 101 ; ii, 313, 
 364. 
 
 v. Glasgow and S. W. I,'v. Co., 1851, 
 i. 246. 
 
 v. Glen, 1819, i. 637, 645-7. 
 
 v. Hi aderson, 1802, i, 475. 
 
 v. Jobson, 1771, i, 435. 
 
 v. Lumsdaine, 1837, ii, 119. 
 
 v. MacVicar, 1762, ii. 410. 
 
 v. Maddison, i, 394. 
 
 v. Niblie, 1825, i, 395. 
 
 i Paul, is:;::, ii, 376. 
 
 ■.. Pollock, 1839, i. 513. 
 . i:. id. 1827, i. 647. 
 
 v. Short, 1717. ii. 453. 
 
 mart, L809. i, 216, 227: ii. L31, 
 
 v. Stirling, L848, ii. 335, 345. 
 
 v. Taylor, 1866, ii. 172. 
 
 v. Whicker, L852, i, L01. 
 
 v. Wight, i. 415. 
 
 v. Wilson, 1742. ii. 122. 
 
 v. Wilson, 1783, ii, 577. 
 
 v. Wilson, 1808, i. 195. 
 
 v. Wilson, 1811, i. 639, 722. 
 
 v. Wilson, L842, ii, 26. 
 Wilsons v. Wilson, L769, i. 721 
 
 v. Wilson, L789, ii, 11 l. 172. 
 
 Trs. \. \v,l on, L848, i, 182, 
 
 L856, i,422; ii. 281 
 
 Tr . v. Stirlin -. i, 244, 25 1 166, 1 
 
 Tr . v. Wilson' I 1848, ii. 546. 
 Winch v. Bronton, i, 824. 
 Win. ' Q 177. 
 
 Winchi it r v. Smith.' 1868, i. 268, 
 i, 61. 
 
 .. Wink, 1867, ii 
 L94.206. 
 
 . r. 
 
 Wisbart v. Grant. 1763, i. 640, 672, 707. 
 
 v. Wishart. 1837. ii. 566. 
 
 !. 1856, ii, 331. 
 
 v. Aitchison, 1789. i. 669. 
 
 v. Anstruther, ii. 330. 
 
 v. Begbie, 1850. i. 420; ii. 12::. 
 
 v. Burnett's Trs.. 1813, ii. 25. 
 
 v. Cox, i, 320-5; ii, 93. 
 
 v. Fairley, 1823, i, 425. 
 
 v. Pendyre, i, 394. 
 
 v. Scott" 1833, ii, 467. 
 
 v. W 1, i, 651-6; ii, 5-8. 29. 
 
 Small & Co. v. Spence, 1833, ii. 80-2. 
 Woodmass v. Hislop's Trs.. 1825, i. 020. 
 
 W Lmeston v. "Walker, i, 296. 
 
 Woolan v. Kenwerthy, i, 312. 
 
 Won], iimb v. Woolcomb, i. 312. 
 
 Woollen Manufactory of Haddington v. 
 
 Gray, 1761, i, 414. 
 Worral v. Harford, ii. 551. 
 Wortbington v. M'Cr'aw, ii. 259. 
 Wotherspoon v. LaidlaW, 184:1, ii, 304, 313. 
 
 v. Winning, 1849, ii. 412. 
 Wrench v. Jutting, i, 313. 
 Wright v. Atkyns, i. 320. 
 
 v. Brown, i, 127. 
 
 v. Burns, 1835. i, 140. 
 
 v. Fraser, 1843, i, 691 ; ii. 20. 
 
 v. Harlev, 1847. i, 252, 295 ; ii, 50-0, 
 319, 421. 
 
 v. Inglis, 1796, i, 200. 
 
 v. Ogilvie, 1840, i, 353,663; ii. 19,24. 
 
 v. Shelton, i. 313. 
 
 v. Smith. 1710, ii, 483. 
 
 v. Turner, 1855. i. 160. 
 
 v. Wright, 1712, ii, 117. 171. 
 
 v. Wright, 1701, i, 384. 
 Wright's Exrs. v. Robertson, 1855, i. 680; 
 ii. 181. 
 
 Trs. v. Hamilton, 1843, ii, 118. 
 Wrightson v. Calvert, i, 642. 
 Wrigley v. Sykes, ii. 251, 339. 
 Wych v. Packington, ii. 93. 
 Wylie, 1850, i. 285; ii, 188, 236. 443. 
 
 v. Enohin, i, 38, 312-5; ii, 90, 166. 
 
 x. Laye, 1834, i. 5. 
 
 v. Smith. 1834. ii, 550-9. 
 
 v. Lochhead and SToung, 1859, ii. 18 . 
 
 v. Allan. 1830, ii. 96. 
 
 v. Ross, 1825, i. 260, 490; ii, 455. 
 
 Feamart , 3Ti aman, 1686, i. 126, 195. 
 t, 1835, i, 30, 43. 
 v. 7eats, i. 642. 
 v. Feat's Tr., 1833, i, L64. 
 Yelvi ' ■ 5Telv( rton, i, 11. 
 Y. oman v. Oliphant, 1666, i, 87, 106. 
 Y> I. r v. Lauderdale, 1688, i, 448. 
 York Buildings Co. v. Bremner, 1777, ii, 
 860 
 v. Mackenzie, ii. 88, 118, 170, 846 9, 
 
 850 8, 577. 
 and N. Midland Railv ay < !o. v. Hud- 
 i54. 
 l : 16, i. "1 ; ii. 571. 
 ■ Bui I tn Hi. 1669, i. 186.
 
 Lviii 
 
 INDEX OF CASES CITED. 
 
 roung v. Campbell, 1790, i, 192. 
 v, Darroch's Tra., 1885, ii, 364. 
 \. Dunn, ITS."., ii, 334. 
 v Grierson, 1849, ii. 335, 345. 
 \. Johnston's Tis., 1841, ii, 408, 498. 
 v. Leith, L844, i, 101. 
 v. Loudoun, 1855, ii, 61 8. 
 v. Marshall, 1831, ii, 472. 
 v. Martin, 1868, ii, 488. 490. 
 v. Tape, 1680, i, 468. 
 v. Ramage, 1838, i, 50. 
 v. Robertson, 1769, i, 273. 
 
 Vonng v. Robertson (Donaldson's Tra.) , 1862, 
 i, 682-8, 691-8 ; ii, 8-16. 
 
 v. Scott, 1777, i, 166. 
 
 v. Watson, 1740, ii, 181. 
 
 v. Watson, 1835, i, 418. 
 
 v. Young, 1761, i, 526. 
 Young's Trs. v. Ross, 1864, i, 245. 
 
 v. Young, 1867, i, 340, 494, 619. 
 Yule v. Ritchie, 1758, ii, 461. 
 
 v. Yule, 1758, i, 259. 
 
 Zuille v. Morrison, 1813, i, 499, 630.
 
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 Mylne and Craig, 5 vols.— 1836 to 1840. 
 
 Mylne and Keen, 3 vols.— 1833 to 1835. 
 
 Nelson, 1 vol.— 1625 to 1693. 
 
 Peere Williams, 3 vols.— 1695 to 1736. 
 Phillips, 2 vols.— 1841 to 1849. 
 
 Reports in Chancery, 1 vol. — 1615 to 1712. 
 Ridgeway temp. Hardwicke, 1 vol. — 1744 to 1746. 
 
 11, 5 vols.— 1826 to 1829. 
 Russell and Mylne, 2 vols.— 1829 to 1831. 
 
 Select Cases temp. King, 1 vol.— 1-724 to 1734. 
 Shower's Cases in Parliament, 1 vol. — 1694 to 1699. 
 Simons, 17 vols.— 1826 to 1849. 
 Simons, Now Series, 2 vols.— 1850 to 1852.
 
 LIST OF ABBREVIATIONS. lxi 
 
 Sim. & St. . . . Simons and Stuart, 2 vols.— 1822 to 1826. 
 
 Sm. & Gif. . . . Smale and Giffard, 3 vols.— 1852 to 1857. 
 
 Sw Swanston, 3 vols.— 1818 to 1819. 
 
 Taml Tamlyn, 1 vol.— 1829 to 1830. 
 
 Toth Tothill, 1 vol.— 1559 to 1646. 
 
 Turn. & R. . . . Turner and Russell, 1 vol.— 1822 to 1824. 
 
 Vern Vernon. 2 vols. — 1681 to 1720. 
 
 Ves. sen. . . . Vesey, senior, 3 vols. — 1747 to 1756. 
 
 Ves Vesey, junior, 22 vols.— 1789 to 1816. 
 
 V. & B Vesey and Beanies, 3 vols.— 1812 to 1814. 
 
 West, H. L. . . Wests' Appeal Cases, 1 vol.— 1839 to 1841. 
 
 West & H. . . . West, Cases temp. Hardvricke. 1 vol.— 1736 to 1739. 
 
 Wils. Ch. . . . Wilson's Chancery Cases, 1 vol.— 1818 to 1819. 
 
 Wils. Ex. Eq. . . Wilson, Exchequer Equity.— 1817. 
 
 You Younge, Exchequer Equity, 1 vol. — 1830 to 1832. 
 
 Y. & C. Ch. Ca. . Younge and Collyer's Chancery Cases, 2 vols. — 1841 to 1843. 
 
 Y. & C. Ex. Eq. . Younge and Collyer, Exchequer Equity, 4 vols.— 1833 to 1841.
 
 THE 
 
 LAW OF SCOTLAND 
 
 IN RELATION TO 
 
 WILLS AND SUCCESSION.
 
 THE LAW OF SCOTLAND 
 
 IX RELATION TO 
 
 WILLS AND SUCCESSION 
 
 PART I. 
 
 CHAPTER I. 
 OF DOMICILE. 
 
 1 I Generalities. — In the investigation of rights of succes- Sources . 
 
 ° ° thority 
 
 sion, the first question for consideration is, by what system of law law of d« 
 the succession is regulated. In relation to personal succession, the 
 law of the domicile of the deceased person is the governing law. 
 Hence the ascertainment of the domicile is an inquiry which pre- 
 cedes all others. The rules according to which the domicile of a 
 
 , M is to be ascertained are juris gentium; and, in their applica- 
 tion to practice, the courts of every country are bound to have re- 
 gard to the opinions of jurists, and to the decisions of foreign tri- 
 bunals, if consisted with the principles of general jurisprudence. 
 y, t in every country the greatesl reliance will naturally be placed 
 on the precedents established by the decisions of its own courts; 
 and, where the rules are conflicting, those which have been esta- 
 blished in any country are binding in the courts of that country, 
 and are to 1"- preferred to those which liuw In en adopted by foreign 
 tribunals. For this reason we shall confine our illustrations, as far 
 as possible, to the decisions of the Courts of Greal Britain, referring 
 
 itraneous authorities only upon doubtful or unsettled questions. 
 The authorities in the general literature of jurisprudence will be 
 found collected in the works of Burge (a) and Story.(6) It would 
 
 ( a ) I; Commentarii I aial (6) Story' Conflict of Laws, chap. 8. 
 
 and Fori ign Law, pari i. chap. 2. 
 
 Vol. I. A
 
 •_> OF DOMICILE. 
 
 ohaptbbi. be foreign to our purpose to paraphrase the researches of these 
 Learned authors; and we could not hope by independent investiga- 
 tion to make any material addition to the citations which they 
 have accumulated. (c) 
 
 idea of a national 2. National Domicile is a term employed to signify the relation 
 which an individual sustains to the country or place where he has 
 actually, or fictione juris, his principal and permanent residence. 
 We say actually or by fiction of law, because the determination of 
 this, as well as other legal relations, is governed by rules which are 
 more or Less arbitrary in their nature, and which, when applied to 
 particular cases, may fix the domicile of an individual in a country 
 which is not, in the ordinary acceptation of the term, the seat of 
 his principal and permanent residence. Nevertheless, it is neces- 
 sary, in the investigation of cases, to keep constantly in view the 
 primary signification of the term domicile, lest in the application 
 of those rules of law we should lose sight of the substance of the 
 legal relation to which they apply, thus introducing confusion in- 
 stead of order into the subject of inquiry. 
 
 Domicile as de- 3. The primary conception of a domicile has never been more hap- 
 
 e ' pily expressed than in the graphic description preserved by the com- 
 pilers of the Code : — "Et in eodem loco singulos habere domicilium, 
 non ambigitur, ubi quis larem, rerumque ac fortunarum suarum 
 summam constituit, unde non sit discessurus, si nihil avocet ; undo 
 cum profectus est, peregrinari videtur ; quod si rediit, peregrinari jam 
 destitit."(eZ) In this passage all the elements involved in the notion 
 of a domicile are distinctly specified : (1) the actual residence in the 
 locality as a home ; (2) the intention not to sever the relation un- 
 less something unforeseen should occur; and (3) the idea that the 
 person is a foreigner (peregrinus) in any other locality in which he 
 may have temporarily fixed his abode. 
 
 Domicile de- 4. It has frequently been observed that no perfect definition is 
 
 fined by its legal . x J . . . l . 
 
 relations. or can be given of a domicile ; and this is true m the sense that 
 
 we cannot, within the compass of a definition, embrace the whole 
 
 (c) The observations of the Civil Law aux Couturaes (ed. Dupin, vol. x, p. 1) ; 
 commentators on the subject of domicile Burge and Story, ut supra; Savigny, Tr. 
 will be found, in connection with those de Droit Romain, \\ 350-359, and special- 
 passages in the Pandects which treat spe- ly gg 358-9 ; Phillimore on International 
 daily of this subject — namely, Dig. lib. 5, Law, vol. iv, chap. 3-14 ; Fcelix and De- 
 tit. 1 (De judiciis, et ubi quisque agere vel mangeat, vol. i, p. 54, and passages noted 
 convonire debeat) ; lib. 50, tit. 1 (Ad muni- in index, voce Domicile; Bar, Intern. Rccht, 
 cipalem, et de incolis) ; and Cod. lib. 10, p. 73, and passages noted in index; Wil- 
 tit. 39 (De incolis, et ubi quis domici- liams, Executry, vol. ii, p. 1403 ; Jarman 
 lium habere videtur, et his qui studiorum on Wills, vol. i, chap. 1 ; Fraser, Pers. and 
 causa in aliena civitate degunt). Among Dom. Rel., vol. i, p. 716. 
 modern authorities reference may be made (d) Cod. lib. 10. tit. 39 (De Incolis. etc.), 
 to Pothicr. Pand. in loc. cit., and Introd. 1. 7.
 
 OF DOMICI1.K. 
 
 CHAPTER I. 
 
 pf the decided law on the subject. Domicile may. however, be de- 
 fined by its consequences, as denoting the relation which the person 
 has to the locality, by the law of which his status and the distribu- 
 tion of his personal estate are determined, (e) 
 
 5. The right of determining the national domicile of a deceased g^JJJJS. 
 person properly belongs to the courts of that country in which the 
 principal part of his personal estate is situated ; for it is to the 
 courts of that country that resort must be had for recovery of the 
 estate by those who claim the inheritance. Incidentally, the ques- 
 tion may be raised in many ways in the lifetime of the party, e.g., 
 when an action is brought against him in the courts of his supposed 
 domicile, jurisdiction being founded ratione domicilii. (/) 
 
 6 As residence is the basis of domicile, it follows that the place Presumption for 
 
 .,.,-,■, • T , place where last 
 
 where an individual was "commorant, or habitually resident, at res ident. 
 the time of his death, shall, in the absence of any contention to the 
 contrary, be presumed to be his domicile for all purposes connected 
 with the regulation of his succession, (gr) On this footing our Com- 
 missary Courts grant confirmations of executors-dative to the next- 
 nf-Trin of all intestates, inhabitants of Scotland at the time of their 
 death, where no competing claim is made by persons claiming the 
 character of personal representatives under the law of any other 
 d< imicile. And where the establishment of a right of succession de- 
 pends on domicile, the onus of proving a different domicile from that 
 indicated by the place of actual residence lies on the claimant. (A) 
 In the ordinary case of a competition between personal represen- 
 tatives claiming under different laws, it can scarcely be said that 
 the onus of proof lies upon either party. The presumption in fa- 
 v ,,i,r of the place of residence has place chiefly in non-contentious 
 jurisdiction ; and wherever the fad of domicile is brought in ques- 
 tion, the court of judicature is obliged, in the investigation of the 
 facts, to begin by determining the domicile of origin, which thus 
 becomes the presumed domicile through life, until it in its turn is 
 displaced by proof of an acquired domicile more proximate to the 
 period to which the investigation is directed.(a) 
 
 (, r - Domicile," said L o*d Ora aworth in that evidence" (p. 168); Bempde v. John- 
 
 Whicker v. Sum," meant permanent home, stone, 8 Ves. L98; Voet, in Pand. 5, L, 99. 
 and if that was not understood byitself.no (/<) A' mn-ihj v. 11,-n. 17 Dec 1859, 22 D. 
 
 illustration would help to make il intelli- '-' ^ >'■ , • 
 
 ■ ■■ 28 I.. -I. I ii. WO. (0 "Every person born in wedlock ac- 
 
 [ f 2, 16. quires by birth the domicile of bii father. 
 
 (.</) Bruce*. Bruce, 16 April 1790, 8 . . It is evidently, therefore peal 
 
 Lord Thurlow. "Aperson to commence an investigation of a no 
 
 a1 a place is prima facit evidence domicile from a igin, namely, his 
 
 thai hi i- domiciled at thai place; and it domicile al birth, than From an accidental 
 
 ; otherwi • to rebul circui ucb i hi plac< of r< id< aci 
 
 A 2
 
 OF DOMICILE. 
 
 I II U'TER I. 
 
 Only one proper 
 domicile. 
 
 Effect of resi- 
 dence in states 
 not belonging to 
 the European 
 community. 
 
 Regulation of 
 domicile by 
 convention. 
 
 7. Not-withstanding sonic doubtful expressions in the text of the 
 Civil Law. it is now a generally received opinion in modern juris- 
 prudence that a person can only have one true domicile at one and 
 the same time,(&) thought, for the purpose of founding jurisdiction 
 against him to certain effects, he may be considered as domiciled 
 wherever he has a proper residence. (?) Where a person divides his 
 time and his occupations between two places of residence, in such 
 a way that no sufficient grounds can be found for assigning a pre- 
 ference to either, that place is to be held his domicile to which he 
 first resorted animo manendi; but if no assignable distinction can 
 be found either in the commencement of the residences, or in their 
 quality or duration, it would seem that resort must be had, from 
 the necessity of the case, to the law of the situs of the succession, 
 and that in each domicile the court of distribution will divide the 
 personal estate situated within its territories according to the law of 
 intestate succession prevailing in its territory, (m) 
 
 8. The authorities upon the subject of the acquisition of a domi- 
 cile by residence have relation exclusively to residence in the States 
 of Europe and America, or their dependencies, nor are we aware 
 that it has even been suggested that a subject of an European State 
 could, by residence, become domiciled in a territory not belonging 
 to the community of civilised States ; so that his status and succes- 
 sion should be governed, for example, by the Mahommeclan or any 
 other system of law not recognised by the jus gentium. British 
 subjects resident within the Ottoman Empire have the privilege of 
 the statuta personalia secured to them by treaty, the law of Eng- 
 land being administered in the Consular Court ; and similar pri- 
 vileges, it is understood, have been conceded to other Christian 
 States, (n) 
 
 9. By the Act 24 and 25 Vict., cap 121, (o) provision is made for 
 the regulation of domicile by convention with such foreign States 
 as may be willing to treat with reference to this subject. The ob- 
 ject of its provisions is to prevent a British subject from acquiring 
 a foreign domicile until he shall have resided in the foreign terri- 
 tory/or one year immediately preceding his death, — with a reciprocal 
 
 at his death ;" per Wood, V.-C, in Forbes 
 v. Forbes, 23 L. J. Ch. 724,' 726. 
 
 (k) Among innumerable judicial dicta to 
 this effect, reference is made to the opinion 
 of the Judges of the Court of Session in 
 Lashley v. Hog, reported in 4 Pat. 586, 
 and of Lord Alvanley, M. K., in Somerville 
 v. Somerville, 5 Ves. 786, the earliest au- 
 thorities in the Jurisprudence of the United 
 Kingdom. 
 
 (t) Ersk. 1, 2, 16. 
 
 (?») Per Lord Alvanley in Somerville's 
 case, 5 Ves. 791. Savigny in this case de- 
 cides in favour of the place of decease in 
 relation to questions of succession, § 359, 
 ed. Ft. torn. 8, p. 107. 
 
 (n) See the references in Jarman on 
 Wills, 3d ed., vol. i, pp. 5-6; and Sa- 
 vigny, g 346, ed. Fr. p. 19. 
 
 (o) Sect. 1-3.
 
 OF DOMICILE. 5 
 
 qualification in relation to foreigners dying in Her Majesty's domi- chapter i. 
 nions. In the existing state of the case law, that object has been 
 very effectually accomplished without the aid either of the Legis- 
 lature or of the Corps Diplomatique. Q>) 
 
 10. II. ORIGO — Domicile of birth. — That domicile which every Origin a 
 person derives from his parents at birth was termed by the civilians {""^ ^ImCw-. 
 origo, and by modern jurists is denominated domicile of origin, or 
 
 of birth.(5) It is in no sense identified with the place of birth, (r) 
 but is, in fact, identical with the domicile of the father, being de- 
 rived from him as the head of the family. For, as domicile in its 
 primary and natural signification is nothing mure than the home 
 or proper residence of tin- individual, it is clear that an infant can 
 have ii'> separate domicile from its parents; and, fur this purpose, 
 Lomicile of the lather must be looked to, as it is his intention 
 that fixes the character of the residence of the wife and family. 
 Therefore, when a person is born in a foreign country, or at sea, 
 being born in wedlock, his domicile is determined by that of his 
 tather.(.s) Illegitimate children f< .How the domicile of the mother.(tf) 
 
 11. By statute law, the children of British parents,(¥) or of a whoare natural 
 father (a;) who is a natural born subject, though born out of the bom sub J ecls - 
 
 ! in,,, of tin- Crown, are declared to be natural born subjects. 
 The privilege extends to the children of persons naturalised by the 
 operation of these Acts.(y) And by an Act of the present reign 
 every person born out of Her Majesty's dominions, of a mother 
 being a. natural born subject of the United Kingdom, acquires for 
 himself and his heirs the right of taking any estate, real or personal, 
 by devise or purchase, or inheritance of succession. (z) 
 
 (p) Thuprovisions of the C< ,ac- originemunusquisquesequatur,"etc. "Les 
 cording to which French subj per- Romains appellent origo le droit de cite 
 mitted to declar, tb ; : bypublic acquis a un individu par la naissance. 
 m to be worthy of adoption. Such Nous appellons origo le domicile fictif at- 
 .itionia declared by the Code to be tribue a un individu dans le lieu ou a 
 conch istenceofthe l'epoque d< mce son pere 6tait do- 
 intention of the i" t on. See the whole micilie;" Savigny, \ 359, i d. Fr. p. 105. 
 
 •i in Arts. 102-10, (t) 1 Burge,p.83; Savigny, ed. Fr. p. 65; 
 
 and -Mr Bui »1. i. pp. Heritor oj Lasswade y. St CuthAerts,Q'M&T. 
 
 1844, G D. '.t"ii. "Pour les enfants trouves 
 
 {, n "Le forum Romains, on peui n mme domicile le lieu 
 
 ttiflcation primitive, n'existe ou ils ont ete recueillis, sauf aluisub tituer 
 
 -. ed. Fr. le lii i I"""' 
 
 p. 98. legalre- faire leur education, Boil dans un • 
 
 lation denoted by the term origo among lissement public irticuliers." 
 
 861 et Savigny, in loc. cit., i d. Fr. p. L07. 
 (u) 7 Anne, cap. 5. 
 ii .' / ... v 1 1 J . i :l 12 si,. [ Geo. II., < ip. 21, \ I. 
 
 /- Jonet . I T Ri p. 800. 
 
 («) Cod. Lib. 10,. tit, 81 Iris 7 >v 8 VI I 8. Bj the
 
 OF DOMICILE. 
 
 . II M'TEl! I. 
 
 Domicile during 
 the age of mino- 
 rity. 
 
 12. For the same reason that an infant does not obtain a domi- 
 cile distinct from that of his parents by the accident of birth, lie 
 cannot acquire an independent domicile during the period of nonage. 
 " I have no difficulty," said Lord Alvanley, " in laying down that 
 no domicile can be acquired until the person is suijuris."{a) And 
 in the leading case of Forbes v. Forbes, Vice-Chancellor "Wood states 
 it as an elementary proposition, that the domicile of an infant can- 
 not be changed by his own act. (b) But these observations must 
 be confined to the case of persons absolutely alieni juris; for it can- 
 not be doubted that, under those systems of law which recognise 
 the distinction of pupilarity and minority, a minor beyond the age of 
 pupilarity has the capacity of acquiring a domicile for himself, (c) 
 During the period pi pupilarity, or even of minority, if the minor 
 continue to live with his father, or to be supported by him , he may 
 lose his original domicile and acquire another, derivatively, through 
 his father ;(d) and it has been questioned whether a domicile so 
 acquired in minority should not be regarded as origo in a question 
 as to the revival of the domicile of origin consequent on death in 
 itinere. (e) 
 whether 13. A widow, after the death of her husband, has the capacity of 
 
 [he^urviviiigVa- acquiring a domicile by her own act ; and it was held by Sir W. Grant, 
 after elaborate argument, that minor children followed the domicile 
 of the surviving mother, if the change of domicile were not made 
 with a fraudulent intention. (/) But it does not seem to be agree- 
 able to reason or good policy that the marriage of a widow with a 
 foreigner should have the effect of changing the domicile of the 
 children of her deceased husband, (g) 
 
 14. The decisions in the earlier cases evince a just appreciation 
 of the difficulty of establishing the fact of the acquisition of a new 
 domicile, and the caution to be observed in drawing the inference that 
 a person had intended to abandon his domicile of birth. (h) Some 
 
 same statute it is provided that any woman 
 married, or who shall be married to a na- 
 tural born subject, or person naturalised, 
 shall be deemed and taken to be herself 
 naturalised, and have all the rights and 
 privileges of a natural born subject (§ 16). 
 
 (a) Somerville v. Somerville, 5 Ves. 787. 
 Voet, lib. 5, tit. 1, \ 100 ; 1 Burge, 38. 
 
 (b) Forbes v. Forbes, 23 L. J. Ch. 727. 
 
 (c) Arnott v. Stewart, 24 Nov. 1846, 9 
 D. 142. 
 
 (d) Per curiamin Wyliev.Laye, 12 Sh.928. 
 
 (e) As to the doctrine, see \ 15, infra. 
 (/) Potinger v. Wightman, 3 Mer. 79. — 
 
 See the opinions of the judges in Arnott v. 
 Stewart, 24 Nov. 1846, 9 I>. 112, to this 
 
 Origo not easily 
 
 effect ; and particularly the observations of 
 the Lord President, p. 147. 
 
 (g) Voet, lib. 5, tit. 1, § 100; 1 Burge, 39, 
 citing Scrimshirev. Scrimshire, 2 Hag. Cons. 
 Rep. 406. 
 
 (/<) See Colville v. Lauder, 1800, M. 
 " Succession," App. No. 1 ; Macdonald v. 
 Laing, 1794, M. 4627, and the English 
 case of Somerville, where it was laid down 
 by Lord Alvanley, M.R., that the domi- 
 cile of origin is to prevail " until the 
 party has not only acquired another, but 
 has manifested and carried into execution 
 an intention of abandoning his former 
 domicile and taking another as his sole 
 domicile " (5. Ves. 787).
 
 OF DOMICILE. I 
 
 of the subsequent cases betray a tendency to infer too easily an chapter i. 
 abandonment of the original domicile from the fact of lengthened 
 residence in a foreign country; a tendency which, as we shall see, 
 has been corrected by the latest decisions of the House of Lords. (J) 
 
 15. It has at all times been acknowledged that the native cha- Revival, by death 
 
 ° . . m ittnere. 
 
 racter easily reverts ; and therefore, where the intention to revive 
 the native domicile is established, the briefest residence will be 
 sufficient to satisfy the requirement of actual commorancy in fulfil- 
 ment of the intention, (k) But mere intention to resume the na- 
 tive character will not suffice if the person continue his residence 
 in the acquired domicile ;(/) there must be actual abandonment of 
 the acquired domicile, as well as the establishment of a home in 
 the original domicile, (wi) The favour shown to the domicile of 
 origin has K-d to the recognition of the doctrine, that where a per- 
 son bas finally abandoned an acquired domicile, with the intention 
 .a establishing himself in his native country, the domicile of origin 
 revives, if he dies in itinere.(n) If a person dies while in transitu to 
 a nor country, with the intention of making it his domicile, it does 
 not become so, and it is still an unsettled question whether, in such 
 a case, he is to be held to have retained his last acquired domicile, 
 or whether resort is to be had to the domicilium originis.(o) 
 
 16. III. Acquisition of a domicile. — The chief difficulty inci- Elements in the 
 drill to the determination of questions of domicile consists in the domicile— inten- 
 absence of any presumptions, or other criteria, from which the in- ^' l " ( : e an 
 t.iitimi to change, which is the main element in such cases, may 
 
 bo inferred. Every case resolves into a question of evidence, to be 
 determined according to the impression produced by the facts upon 
 tin- mind of the judge; little reliance therefore can be placed 
 
 (*) See \\ 19, 20, infra. (m) Per Sir II. Jenner Fust in Craigii 
 
 character i ri ; \. Lewin, ■'> Curt. 435,445, cited 1 > v Lord 
 
 and it req i circumstances to WenaLeydalemAikmanv. Aihman, SMacq. 
 
 fcute domicile, in Hi" case of a aative 879-80. Burge, vol. i, p. 34, and autho- 
 
 Bubject, than to impress the national cha- rities there cited. 
 
 on one who was originally of another («) Story, Confl. § 47 ; Burge, Com. vol. 
 
 character," per Lord Stowell, in l.« Vir- i, p. 34; 1 Fraser, p. 723, and caseB cited 
 
 5 Bob. Ad. Ca. '.''a; mid sir f.ns/i- in Ihc next note. 
 
 leg v. Hog, 12 July 1804, 4 Pat 681,621. (o) Lord Cottenham states, as the doc 
 
 (/) Adv.-Qen. v. Lamont, 29 May 1867, trine of the civil law, Hud in tin's case the 
 
 19 D. 779, ! E \. Bruce, 16 April domicile of origin revive ; Munrov.Munro, 
 
 1790, Lord Thurlow I Rob. 60G. A similar opinion was ox- 
 
 . |, with ref( r< ace to the ca e of an pres ed by Sir John Leach, V.-C, in Munroe 
 
 Indian officer preparing to return to Scot- v. Douglas, 6 Madd. 879, 406. The gufla- 
 
 l.ind, ■• II" n a. to r< turn to bis native fcion waa elaborately di cua i I in Lyall v. 
 
 country, it is .-aid. and lei it be granted; Paton, 26 L. J, < a. 7 Id; but the circum 
 he then meant to change hi dom id not admit of a deci 
 
 Ik. di ion being given on this point,
 
 OF DOMICILE. 
 
 ■ •it \rri i; i. 
 
 Effect of a 
 change of mo- 
 tive. 
 
 od precedents. The only general proposition as to which, jurists are 
 agreed is, thai in order to operate a change of domicile there must 
 be, in the first place, actual residence within the territory; and, 
 secondly, an intention to change the domicile, or to adopt the new 
 country as the principal and permanent place of abode. To con- 
 stitute a domicile no definite term of residence is required ; but the 
 duration of the residence is, of course, an important element in the 
 question of permanency of residence. " Of the few principles," 
 said Lord Stowell,(p) "that can be laid down generally, I may 
 venture to hold that time is the grand ingredient in constituting 
 domicile." And a domicile is not to be established by evidence of 
 intention, however strong, if the person did not actually fix his 
 residence in the intended domicile. The statements of the person 
 whose domicile is in question are admissible in proof of intention ; 
 and, where the question arises in his lifetime, he may be examined 
 as a witness ;(q) but it is apprehended that little weight ought to 
 be allowed to evidence on matters of opinion which is given by inte- 
 rested witnesses, (r) Letters and spoken declarations made at the 
 time are often valuable indicia from which an intention to abandon 
 an old domicile (and, by consequence, to acquire a new one) may 
 be inferred, (s) Actual residence is not indispensable to the reten- 
 tion of a domicile after it is once acquired ; but it is retained, 
 animo solo, by the mere intention not to change it, or to adopt 
 another, (t) 
 
 17. It is to be observed that the native domicile is presumed to 
 be continued until a new one has been acquired animo et facto, and 
 the abandonment of the domicile of origin is not necessarily co- 
 incident in time with the settlement in the new residence. A re- 
 sidence dictated by convenience or taste, without any view to per- 
 manent occupancy, may afterwards be adopted as a proper domicile ; 
 
 (p) The Harmon?/, 2 Kob. Ad. Eep. 324. 
 And see the observations of Kindersley, 
 V.-C, in Cockrell v. Cockrell, 25 L. J. Ch. 
 732. 
 
 (q) Maxwell v. M'Clure, 18 Dec. 1857, 
 20 D. 307 ; Kennedy v. Bell, 17 July 1863, 
 1 Macph. 1127. 
 
 (r) Per Lord Campbell, in Maxwell v. 
 M'Clure, 3 Macq. 853. 
 
 (s) See, among many other cases, the 
 recent cases of Aikman v. Aihnan, 21 D. 
 757, 3 Macq. 854 ; Lowndes v. Douglas, 
 24 D. 1391 ; Kennedy v. Bell, 1 Macph. 
 1127 ; and Udny v. Udny, 5 Macph. 164 ; 
 and, on appeal from the Court of Chancery, 
 Moorhouse v. Lord, 32 L. J. Ch. 295. In 
 
 a recent case it was observed by Kinders- 
 ley, V.-C, that in most cases the evidence 
 as to the deceased's declarations of inten- 
 tion was conflicting, — as it was in that case, 
 where there was evidence of the testator 
 saying he meant some day or other to go 
 back to France ; and, on the other hand, 
 evidence of his saying he meant to re- 
 main all his life in England. He (the 
 V.-C.) thought that, upon the cases, the 
 Courts were disposed to give less weight to 
 that sort of declaration than to the acts of 
 the deceased ; Breton v. Drevon, 34 L. J. 
 Ch. 131. 
 
 {t) Story, Conn, \ 44.
 
 OF DOMICILE, 
 and where this is so, the motive of choice in the first instance be- chapter i. 
 
 comes unimportant, (u) 
 
 18. As a general rule, however, the motive of residence is, of all Distinction of 
 the indicia of intention, that which is most anxiously sought and miningresi- " 
 most keenly criticised. Yet it is difficult to deduce from the de- dence ' 
 cisions any sound canon of criticism applicable to motives of re- 
 sidence, excepting this, that motives which are temporary in their 
 
 nature tend to qualify the residence in a sense unfavourable to the 
 acquisition of a domicile; while motives of an enduring character. 
 and chiefly that indefinable but most influential motive of attach- 
 ment to the country, or preference fur its manners and society, are 
 those from which an intention to adopt it as a domicile may most 
 reasonably be inferred. 
 
 19. Among instances of change of residence due to temporary Temporary mo- 
 motives, and not implying an intention to change the domicile, we tSat r6S1 
 may notice the cases of resort to a milder climate for the preserva- 
 tion or restoration of health ;(x) to a university town fur study; and 
 
 to a place chosen on account of the advantages it affords for the 
 e< 1 ucation of children, (y) The authorities are clear and consistent in 
 affirming that a domicile cannot be acquired by residence for such 
 causes, notwithstanding that it may have had a considerable dura- 
 tion, and have been continued to the period of death. Nor will a 
 constrained residence abroad — e.g.,hy a prisoner on parole;(a) or by 
 an Englishman staying in the Highlands of Scotland, or at Boulogne, 
 to be out of the way of creditors («■) — have any operation on the 
 domicile. 
 
 (u) ••Hesidence is often of a very equi- character of an English subject— without 
 vocal nature, and the intention to that losing the right to the intervention of the 
 -it-ii still more obscure. An English law in the transmission of his pro- 
 intention of permanent residence may perty after his death, and in the construe- 
 often be ingrafted upon an inhabitancy tionof his testamentary instruments? Such 
 originally taken for a special or a fugitive a proposition was revolting to common 
 1 "I'll, g 4-3. "' (p. 299). 
 (z) Story, Confl. g 11; 1 Praser, Pers. {!/) Cod. lib. 10, tit. 39, 1. 2: "Nee 
 & Dom. Bel. 719; Maedonald v. Laing, ipsi, qui studiorum causa," &c. Moorhoun 
 1794, M. b;i'7 ; Lowndes v. Douglas, 18 v. Lord, supra. Eere the original motive 
 July 18C2, 24 D. 1891; Johnstone v. of the foreign residence was connect. J 
 10 > I'm. 42, per Lord Camp- with tic education of the b tator's child- 
 bdl; Moorhou i x. Lord (<>u appeal), 32 1,. ren; bul Dc residi nee wa I ap- 
 .1. Oh. 295, where Lord Kingsdown ob- parently withoul any verj I 
 
 I:— "A man mighl leave England ami the testator died in France; ii 
 
 with no intention of returning, nay, with held thai he bad no! losl hi; national do- 
 
 a determination n ret to return — '■•.'/., a micile, which i [and. 
 
 man labouring ander mortal disea e, and (z) Story, Confl. 2 -17, ami authority 
 
 told thai to pr< erve hi life, or even to therecited; 1 Burge, 16. 
 alleviat >ad, (a) I'm v. Pitt, 6 April 1864,4 Ms 
 
 il to be Baid thai if he wenl 1- Ma- 627; Udnyy. Udny,\ I Dec 1866,6 Macph. 
 
 deira he could nol do so withoul losing hia 164; Bruct v. Hamilton, L804, il. 762.
 
 10 OF DOMICILE. 
 
 ohaptkbi. 20. The facility of travelling, and the increasing intercourse 
 
 with all parts of the world in modern times, lead many of our 
 nj^r^tey countrymen, especially those possessed of independent fortunes, to 
 spend a greal part of their time in foreign countries. The case of 
 a proper traveller, varying his residence from year to year, presents 
 no difficulty; in his case there is clearly no abandonment of the 
 native domicile. But put the case of a Scotsman fixing his resi- 
 dence in London or in Paris, without any motive of business or ne- 
 cessity, but merely on the score of convenience or preference for a 
 town life: this is evidently a case of difficulty, as it is one of fre- 
 quent occurrence. The cases of Aikman(b) and Udny y {c) confirmed 
 by the decision of the House of Lords in the parallel case of Moor- 
 house v. Lord,(d) are, it is conceived, conclusive of the proposition 
 that in such a case £he person does not lose his domicile if he keeps 
 up his connection with the parent country. And it is a sufficient 
 connection that he has an estate or a residence in the country of his 
 domicile, and visits it once a year, or at regular intervals, transact- 
 ing such business, if any, as his circumstances and station re- 
 quire, (e) And though the mere possession of patrimonial estate 
 in Scotland is not sufficient to prevent the acquisition of a foreign 
 domicile by residence, (/) yet it would seem, on the authority of 
 the above-mentioned cases, that the abandonment of the native 
 domicile will not readily be presumed in the case of a landed pro- 
 prietor, and that slighter circumstances will be admitted to esta- 
 blish an intention of retaining it than would be required in the case 
 of a person who had no local connection with the soil. 
 Residence deter- 21. Where the evidence establishes a residence in a foreign 
 e^e, J&bLn- capital, with the ordinary attributes of permanency, and without 
 the countervailing; element of connection with the national domicile 
 
 native country. <=> 
 
 by proprietorship and periodical visits, or other equivalent indica- 
 tions of intention, it appears to us that this amounts to a change of 
 domicile, (g) It is not necessary for this purpose that the person 
 should be naturalised in the foreign country, or that he should re- 
 nounce his allegiance, — though the phrase exuere patriam, which 
 has lately been introduced as synonymous with change of domi- 
 cile, (A) might be understood in that sense. It has, indeed, been 
 asserted by the jurists that a domicile is not acquired by residence 
 
 (b) Aikman v. Aikman, 21 D. 757; 12 (/) The Dree Gebrceders, 4 Kob. Ad. 
 March 1861, 3 Macq. 854. Rep. 235, per Lord Stowell ; Rose v. Ross, 
 
 (c) Udny v. Udny, 14 Dec. 1866, 5 16 July 1830, 4 W. & S. 289; Forbes v. 
 Macph. 164. Forbes, 23 L. J. Ch. 724. 
 
 (d) Moorhouse v. Lord, 19 March 1863, (g~) Forbes v. Forbes, 23 L. J. Ch. 724. 
 32 L. J. Ch, 295. (h) By Lord Cran worth in Moorhouse v. 
 
 (e) Cases of Aikman and Udny. supra. Lord, 32 L. J. Ch. 298.
 
 OF DOMICILE. 11 
 
 voluntatis causa ; and this is an observation properly applicable to chapteb r. 
 transitory residences for recreation or amusement, as well as to 
 those cases where the continuance of the residence is consequent 
 upon habits or connections of a less reputable character, and which 
 are not publicly avi >\ved.(i) But where, either on the ground of pre- 
 ference for foreign manners and society, or to be near relations, or 
 from similar motives, a person of independent means fixes his resi- 
 dence in a foreign city, we must hold, until corrected by competent 
 authority, that in such circumstances a foreign domicile is acquired, 
 although the nationality of the person is not thrown off. (A.-) 
 
 22. According to the doctrine of the Civil Law, a foreign domi- Residence^ pi 
 
 ., , i ... ,. e . • ,i sons in business, 
 
 cue is acquired by cultivating a farm, or engaging in the prosecu- and in pui.iic 
 tion of a business or profession in the colony or foreign place of em P lu - vmcnts - 
 residence, — which thus becomes the seat of the fortune and affairs of 
 the colonist. (T) With reference to employment in the service of 
 the Government, a distinction is taken between local appointments 
 and tho.se which do not connect the employe with any particular 
 locality. Kesidence on foreign service does not affect the domicile 
 of officers in the army or navy,(m) of ambassadors, (n) nor, as we 
 apprehend, of consular agents without local connections, and eli- 
 gible for promotion in the service.(o) But the appointment of a 
 merchant to a British consulate lias not the effed of preventing 
 
 ft) Si planatoi ce of the new doctrine mi cases of this 
 
 of the London residence in Aikman v. Aik- class may be traced in the judgment of 
 
 man, and the comments of the judges, 21 the Lords Justices in Joppw. Wood, 34 L. 
 
 D. 7';:. and 3 fitacq. 855. J. Ch. 212, where residence from 1805 to 
 
 fk) President of I'.S. v. l)rnmmon<l, 33 1830 in India, as a in< reliant and planter, 
 
 I.. J. < li. 501 ; and a e the circumstances was held nut to give an Indian domicile, 
 which were held no1 to constitute a fo- i ed having in his letters ex- 
 
 it n Capdevieile, 33 L.J. | te intention of returning to 
 
 16, and Att.-Oen. v. < ! Blucher,M Great Britain. 
 I.. J. Ex. 29. [f th ms of the (m) And a domicile in one part of the 
 
 f'ourt of Exchequer be Bound, we do not United Kingdom is not altered by mili- 
 
 .-'■'■ how it i^ possible that a change of tary service in anothei part; n Patten, 6 
 
 domicile can be i pi by natura- Jur., N.s. L51 ; Yelverton v. Yelverton, 2'.' 
 
 lisation in solemn form. L. J. Matr. 31. Hut tic tact that a pi i 
 
 Lament, 29 Maj 1857, boh boldin il appointmi I i 
 
 1'.' I •. 779; ' Douglas, is Jul;, officer in the British ervice, and is ob- 
 
 1862, 21 I'. 1891 ; Cocfcrell .. Coekrell, 26 liged, in order t" retain bis pay, 
 
 L. J. Ch. 730; Allardyce v. Onslow, 88 I.. and from tine to tin 
 
 J. Ch. 1-1. Butth character of the busi of absence, does noi prevent the acquisi- 
 
 important; t.g., if the party tion of a foreign domicile ; Clarh \. New 
 were engag d in o iducting tin- forei i, 18 Feb. L836, 11 Sh. 488; Coekrell 
 
 b ur Scotch mercan- v. Coekrell, 25 I.. J. Ch, 730, 
 tile l night noi (n) Story, Conn, g 48, and authoritii 
 
 follow; and the anthoril i hi re cited. 
 
 rendered doubtful bj the doctrines enun- Udny v. Udny, il Dec. 1866, 6 
 
 I in, Moor) Lord The infl M pi 164
 
 L2 
 
 OF DOMICILE. 
 
 en wn:i; i. 
 
 Anglo-Indian 
 domicile, 
 
 (ho acquisition of ;i foreign domicile, still less of restoring tlie Bri- 
 tish domicile if already abandoned. (p) Governors of colonies, (q) 
 of military stations,^) and other local functionaries of the British 
 dependencies, acquire the domicile of the station to which they are 
 attached.(s) 
 
 23. British suhjects entering into the civil or military service of 
 the East India Company, were held to acquire an Anglo-Indian 
 domicile, on the principle that their official duties bound them to a 
 residence of such an exclusive and permanent character as was in- 
 consistent with the retention of a domicile in the mother-country, (t) 
 And the acceptance of a permanent appointment under a foreign 
 government (not including, however, a consulship in one's own 
 country), is tantamount to the adoption of a foreign domicile. («) 
 Intention to 24. In observing upon the recent English decisions, the editor of 
 
 going to acoiony. the last edition of Story's Conflict draws a distinction between 
 change of national domicile (which, according to the cases, is tan- 
 tamount to expatriation) and change of domicile by removing to a 
 colony, or " from one place to another in the same state, province, 
 or kingdom," in which case the intention to change the domicile 
 may be inferred on slighter indicia, and notwithstanding the ex- 
 istence of an indefinite or floating intention of returning. (as) The 
 observations of Lords Cranworth and Kingsclown in Lord's case,(?/) 
 are evidently intended to apply to cases of alleged acquisition of 
 a strictly foreign domicile ; and the recent decisions of the Court 
 of Session tend to support the distinction there taken, (z) 
 Double resi- 25. Questions as to English domicile or Scotch are attended with 
 
 orS C co7ch Ughsh S reat difficulty, involving, as they generally do, the element of a 
 double residence. In this class of cases the Court has to ascertain 
 
 (ji) Story, Corifl., ut supra. 
 
 (q) Comrs. of Inland Revenue v. Gordon's 
 Ezrs., 2 Feb. 1850, 12 D. 657. 
 
 (r) Clarke v. Newmarsh, 14 Sh. 488. 
 
 (s) See Mr Burge's elaborate analysis 
 of the authorities on this class of cases, 
 vol. i, pp. 47-53. 
 
 (t) Bruce v. Bruce, 15 April 1790, 3 
 Pat. 163; 21 Nov. 1804, Hume, 762; com- 
 pare Hook v. Hook, 24 D. 488. English 
 cases of Bruce v. Bruce, 2 B. & P. 229 ; 
 Forbes v. Forbes, 23 L. J. Ch. 724; and 
 Moorhouse v. Lord, 32 L. J. Ch. 295. 
 
 («) Per Lord Campbell in Aihnan v. 
 Aikman, 3 Macq. 856. 
 
 (z) Story, Conn, 6th ed., §§ 49 (b), 49 (c) . 
 
 (y) E.g., that to change "the domicile" 
 a man must intend " to become a French- 
 
 man instead of an Englishman " (32 L. 
 J. Ch., pp. 298-9). The same observation 
 applies to Dr Lushington's judgment in 
 Hodgson v. De Beauchesne, 12 Moo. P. C. 
 Ca. 825. And see these commented on in 
 re Capdevielle, 33 L. J., Ex. 306, and Dre- 
 von v. Drevon, 34 L. J. Ch. 129. 
 
 (z) Compare Purvis' Trs. v. Purvis' 
 Exrs., 23 Mar. 1861, 23 D. 812, where the 
 residence was foreign, i.e., in the Nether- 
 lands, India, and the Scottish domicile 
 was held to be retained, with Lowndes v. 
 Douglas, 24 D. 1391, and Kennedy v. Bell, 
 1 Macph. 1127, where the residence was 
 in the British West Indies, and in both 
 cases a colonial domicile was held to have 
 been acquired.
 
 OF DOMICILE. 13 
 
 which of the two is the principal residence, taking all the circum- chapter i. 
 stances into view. In the case of Warrender, the domicile was 
 held to be in Scotland, where the pursuer had his estate and coun- 
 try seat, rather than in England, where he resided during the sit- 
 ting of Parliament, of which he was a member, (a) In Forbes v. 
 Forbes, the London residence was held to fix the domicile, because 
 that was the residence of General Forbes' wife, and there only he 
 kept an establishment suited to his rank and fortune. (b) In such 
 - considerable weight is allowed to the domicile of origin, (c) 
 In the absence of such indications, the place where a residence has 
 been first acquired is generally to be regarded as the domicile. (d) 
 A correct knowledge of the considerations upon which questions of 
 double residence are determined, can only be obtained by an atten- 
 : ndy of all the cases bearing on the subject. (e) 
 
 26. IV. Wife's derivative domicile. — The doctrine by which Principle stated. 
 the domicile of a married woman is identified with that of her hus- 
 band, is founded upon the same considerations which have led to 
 
 the recognition of derivative domicile in the case of minor children. 
 The supposition of actual identity of domicile is inferred from the 
 obligation incumbent on the wife to live in family with her hus- 
 band and to follow his fortunes; it may cease to hold under cir- 
 cumstances which release her from that obligation. (/) 
 
 27. The term "matrimonial domicile," which is sometimes Doctrine of "ma- 
 used (inappropriately as we think) to describe the true domicile c Ue"examined. 
 of a married woman, seems objectionable on the ground of ambi- 
 
 guity, ot defecl of precision. It has been defined to be the domi- 
 cile contemplated by the parties at the time of entering into the 
 married relation. But, in contemplation of law, marriage is not 
 contracted with reference to residence in any particular locality. 
 
 Warrender v. Warrender, -7 Aug. erville, 5 Ves. 749. Mr Burge makes an 
 
 2 S. & M'L. l-'il. important deduction from the lust cited 
 
 (A) Forbes v. Forbes, 23 L. J. Ch. 724; case: — "In the absence of any circum- 
 
 LauenvUU v. Anderson, 9 Moo. 1'. 0. Ca., stances wl to the residence in an- 
 
 826. t place than thai of the domicile of ori- 
 
 (r) Munro v. Mtmro, 10 Aug. is la. l Rob. gin a predominant character of pi rmanence, 
 
 492; Aikman v. Aikman, 1- Mar. 1861, if a cause can be I for an establish - 
 
 ; Lashley v. Hog. 4 Pat, 681, menl in the former, whilst none cai 
 
 Beep. 621; OampbeU ■.. Campbell, 9 .Ian. ae igned for keeping it up in the p 
 
 1861, 28 D. 266. According to Burge, vol. of In'- domicile of origin bul the d 
 
 i. p. 'I"), it is an important circum tance and intention t<> retain that domicile, the 
 
 only as it is so in tin- estimation of tli' domicile of orgin must prevail." (Vol. i. 
 
 1 1. 46.) 
 (</) Maxwell v. M'Clure, 'J'» l». 807 ; '•'< (/) '' Mulieres honore maritorum erigi- 
 
 Macq. 862. i < re nobilitamu -. 1 1 forum • 
 
 See, in addition to tin- preceding eorum |» i : el domicilium 
 
 Ommanney v. Bingham, 16 March mutamus;" Cod. lib. 10, tit. 89, 1. 9. 
 1796 8 Pat. 446
 
 1 \ 
 
 OF DOMICILE. 
 
 Warrendi r v. 
 Warrender. 
 
 and it is conceivable that the parties may never actually set foot in 
 ,l u , country which at the celebration of the marriage it was their 
 intention to choose tor their place of abode. If the husband did 
 n,,t actually fix his residence in the place contemplated, it would 
 be a strange, and we think an indefensible proposition, to assert 
 that, in respect of the mere inchoate intention, the parties should 
 be held to be domiciled in a locality where, according to the facts, 
 they are not actually domiciled. (g) If, on the other hand, the in- 
 tention entertained at the time of the marriage is carried out, and 
 the husband fixes his domicile in accordance with it, then it is 
 evidenl that the wife's domicile is determined solely by the will 
 of the husband after marriage, and is not dependent on any an- 
 tecedent agreement. It may well be that where a contract of 
 marriage is executed having relation to the rights of the spouses 
 as determined by the law of the country where it is intended that 
 the spouses shall reside, the construction of the contract shall be 
 regulated by the law of the intended domicile. It may also be that 
 the consistorial courts of the intended matrimonial domicile have 
 jurisdiction to dissolve the marriage, or to grant relief for breach 
 of its engagements, (h) But these are evidently cases of special 
 domicile grounded on equitable considerations, and subsisting for 
 special purposes only. There can be no general matrimonial do- 
 micile except the domicile which the husband acquires by resi- 
 dence in a particular locality, with the intention of fixing his domi- 
 cile there, (i) 
 
 28. The leading authority on the doctrine of the wife's deriva- 
 tive domicile is that of Warrender v. Warrender, (ti) decided by 
 Lord Brougham on appeal. But except as an exposition of the 
 general rule, which had long been settled in practice, and is dis- 
 
 (g) " The change by the husband of his 
 domicile, either of origin or of that which 
 was his domicile at the time of his mar- 
 riage, will necessarily operate as a change 
 of that of the wife ; and, indeed, it has 
 been said that a contract by the husband 
 that he would not change his domicile 
 without the consent of his wife was void ; 
 but there is no reason why it may not be 
 made the subject of a special contract that 
 the wife should not be prejudiced in her 
 rights by a change of the husband's domi- 
 " 1 Burge, 40. 
 
 (A) As to the circumstances which create 
 consistorial jurisdiction in Scotland ratione 
 domicilii, see Jack v. Jack, 7 Feb. 1862, 
 24 D. 467 ; Hook v. Hook, eo die, 24 D. 
 488 ; Hume v. Hume, 15 July 1862, 24 D. 
 
 1342 ; and, on appeal, Pitt v. Fitt, 6 April 
 1864, 4 Macq. 627, which practically nega- 
 tives the theory of a forensic, as distinct 
 from a true, domicile. 
 
 (i) In Arnott v. Stewart, 24 Nov. 1846, 
 9 D. 142, the circumstance that a lady, 
 previously domiciled in Scotland, was at 
 the time of her death under engagement 
 to be married to an Englishman, was held 
 to be of no materiality in a question as to 
 her domicile of succession. In Lashley v. 
 Hog it was laid down (4 Pat. 615) that 
 the place where a marriage was celebrated 
 afforded no presumption as to the future 
 domicile of the spouses. 
 
 (k) Warrender v. Warrender, 27 Aug. 
 1835, 2 S. & M'L. 154.
 
 OF DOMICILE. 15 
 
 tinctly laid down by Lord Stair,(?) this decision did little or no- chapter i. 
 thing to advance the principles of this department of the law. In 
 so far as it inculcates the doctrine that the wife is subject to the 
 courts of Scotland in respect of the husband's temporary residence, 
 it has been formally overruled,(m) and it throws no light on the 
 question whether the husband can arbitrarily change the wife's do- 
 micile for forensic purposes. (») 
 
 29. Upon the dissolution of the marriage, whether by death or Effect of dis>..iu- 
 by divorce, the identity of domicile is destro} r ed, and the domicile j^dof station. 
 of the parties, or the survivor of them, is no longer controlled by 
 the rule to which we have referred. (o) It maj^ now be regarded as 
 a settled point thai a married woman does not by voluntary d ceil 
 paration acquire the capacity of fixing her own domicile. (j:>) 
 Upon principle, it should seem that a judicial separation would 
 give tin's capacity, inasmuch as it destroys the consortium vitcewpon 
 which the notion of derivative domicile is founded; and there are 
 dicta in favour of this view. ((7) But, in a recent case, Lord Kings- 
 down, a great authority on such questions, stated that he considered 
 the question to lie entirely open.(r) 
 
 : tir, 1, 4, 9. dissolved, until she makes choice of, and 
 
 (m) First by the Court <>f Session, in establishes another domicile, or re-marrie ; 
 
 Ringer \. Churchill, 15 Jan. 1840, 2 1). 1 Burge, 35 ; Voet, 5, 1, 95. 
 
 307, and ultimately by the Houseof Lords (p) Dolphin v. Robins, 4 Aug. 1859, 3 
 
 it.-* If. in Pitt v. I'm. /// supra. Macq. 563. a unanimous judgment. Ami 
 
 (n) On tins point see the observations of see Lord Brougham's observations in War- 
 
 the Lav. Lords in Dolphin v. Robins, 3 render v. ~\Yarrcndcr, vt supra. 
 
 Macq. 579, et seq.; an. I in Pitt v. Pitt, 4 (</) Allison v. Catley, 15 June 1839, 1 D. 
 
 Macq. pp. 640 and 647. 1025 ; Dolphin \. Robins, '■'> Macq. 578, per 
 
 (o) But the wife retain.- tin.' domicile of Lord Cranworth. 
 
 her husband, even after the relationship is (>•) 3 Macq. 581.
 
 L6 INTERNATIONAL LAW IN RELATION TO 
 
 (■HATTER 11. 
 
 CHAPTER II. 
 
 INTERNATIONAL LAW IN RELATION TO WILLS 
 AND SUCCESSION. 
 
 I. Regulation of Intestate Succession. 
 II. Validity of Wills and Testamentary 
 
 Dispositions. ' 
 III. Interpretation of Wills and Testamen- 
 tary Dispositions. 
 
 IV. Election. 
 
 V. Administration of the Succession. 
 VI. Revenue Laws. 
 VII. Jurisdiction. 
 VIII. Ascertainment of Foreign Law. 
 
 personalia. 
 
 Limits of the 30. Tlie law of succession, which is concerned with the distribu- 
 
 tion of a man's entire estate and the adjustment of the claims of 
 his heirs and representatives without distinction of locality or na- 
 tionality, has many international relations, and involves in a greater 
 degree than any other branch of private right the consideration of 
 the question, What is the system of law governing the particular 
 right or relation ? In a work relating to the Scottish Law of Suc- 
 cession, it is proper that we should consider, in the outset, what 
 are the relations of succession which the law of Scotland is com- 
 petent to regulate. 
 
 Statute radio et 31. The general solution of cpiestions of this class is the province 
 of international law, and to this source it will be our object to trace 
 the authorities in the law of Scotland on the subject of foreign suc- 
 cession. For the purposes of this work, the principles of interna- 
 tional law upon which Our Courts have been in use to proceed, are 
 assumed to be consistent with the doctrines of general jurispru- 
 dence. In so far as these doctrines are still the subjecj of contro- 
 versy, reference is made to works expressly relating to the subject 
 of international law ; for the limits of our subject, already we fear 
 too widely extended, do not admit of our entering upon a general 
 discussion of the application of the statuta realia and statuta per- 
 sonalia. Upon this subject we shall only further observe, that 
 there is now a very general concurrence of opinion amongst jurists 
 upon the principles which regulate the relations of private interna- 
 tional right ; and that the divergence of opinion which is observ- 
 able in the writings of the jurists, is in a great measure due to the
 
 WILLS AND SUCCESSION. 17 
 
 fact of these principles being applied by different authors to differ- chapter n. 
 ent systems of municipal law. 
 
 32. F<>r example, in questions between England and Scotland, Divergence of 
 or between either of these countries and any of the states of nor- ',' :; 
 them Europe in which the distinction of real and personal succes- 
 sion prevails, an importance is assigned to the operation of the sta- 
 
 tuta realia, or leges loci rei sitce, which is not conceded to them by 
 the jurists of those states in which the distinction is not recognised. 
 From the point of view of those countries from which the institu- 
 tions of the feudal system and primogeniture have disappeared it 
 is not surprising that the tendency of opinion should be towards 
 the extension of the operation of the lex domicilii to the universitas 
 of the succession, without distinction of moveable or immoveable. 
 But this opinion, so ably advocated by Savigny(«) and other conti- 
 nental jurists, is quite inapplicable to international questions in- 
 volving the right of succession to real estate in Great Britain. 
 
 33. It must ever be remembered that although the principles of Division of laws 
 international jurisprudence are equally binding on all nations, yet liona! relations, 
 in their application to the relations of right which result from the 
 collision of different combinations of municipal laws, they also 
 necessarily give rise to distinct combinations of international ques- 
 tions, or, as they may be termed, systems of applied international 
 
 law. In this place, we are concerned with the applied interna- 
 tional law of Scotland in relation to succession, as established by 
 the decisions of our courts, and by the judicial expositions and 
 opinions of jurists of those countries whose administration of inter- 
 national jurisprudence admits of being identified with our own. 
 
 34. The Solution of the questions Of private international law Division of the 
 
 with which we are concerned, resolves into the application to the ^£ ofthe 
 particular question of right of one of the four systems of law, which 
 are designated, in virtue of their relation to the rigid in question, 
 as the lex domicilii, the lex loci rei sito?, the lex loci actus, and the 
 lex fori. Wit bold pretending to make an exhaustive division of the 
 subject, we shall be able to classify the questions which result from 
 the relations of rights of succession in Scotland with those of foreign 
 countries, under the following leads: — (1) Regulation of intestate 
 succession; (2) validity of the testamentary disposition (capacity 
 of the graater — Lawfulness of grant, and capacity of grantee— form 
 of the instrument); (3) interpretation of testamentary dispositii 
 (h election; (5) administration of successions (aditio hereditatis — 
 title — responsibility of executors) ; (6) revenue Laws; (7) jurisdic- 
 tion; (8) ascertainment of foreign Law. Several of the questions 
 
 D ■ mm. \\ 876 878 
 
 col.. I. I'.
 
 18 
 
 INTERNATIONAL LAW IN RELATION TO 
 
 OH win; ii. 
 
 which we shall have occasion to notice, may be studied to greater 
 advantage in connection with the branches of law to which they 
 belong than in their international relations; and they are so dealt 
 with in the body of the work. By referring to the chapter in which 
 the particular relation of right is discussed, the reader will, it is 
 hoped, be enabled to supply what is defective in the discussion of 
 the subjed in its international aspect. (&) 
 
 SECTION I. 
 
 Moveable and 
 immoveable 
 
 • ]■']). 
 
 REGULATION OF INTESTATE SUCCESSION. 
 
 35. With regard to intestate succession, the rules of international 
 law are simple and of easy application. The succession to the 
 moveable estate is wholly governed by the law of the domicile of 
 the intestate at the time of his decease ; that of the immoveable 
 estate (which, as regards estate situated in Scotland, is identical 
 with heritable succession) is governed strictly by the lex loci rei 
 sitce.{c) The rule is applied in precisely the same way, whether 
 its operation tends to subject the estate to the Scottish law of suc- 
 
 (b) By far the most comprehensive and 
 the hest exposition of the law of succession 
 inits international relations is that given hy 
 the late Mr Burge, in the fourth volume of 
 his Commentaries on Colonial and Foreign 
 Law. Among modern treatises, reference 
 may also be made to Story's Conflict of 
 
 aws, chapters 11 and 12 ; Phillimore on 
 International Law, vol. iv, chapter 43 ; 
 Karnes' Equity, book iii, ch. 8 ; Robertson 
 on Personal Succession ; Jarman on Wills, 
 chapter 1 ; Savigny, Traite de Droit Ro- 
 main, \\ 376-378; Fcelix and Deman- 
 geat, Droit International, 4eme ed., torn, i, 
 p. 260, I 115; De Chassat, Traite de Sta- 
 tuts, 1. 1, tit. 3, ch. 1, and 1. 1, tit. 4, ch. 6 ; 
 Bar, Internationale Privat und Stafrecht, 
 Abt. 3, \ 6 ; see also Huber. ad Pand. 
 i, 3, App. de Confl. ; Voet ad Pand. i, 
 4, pars 2, de Statutis. Ample references 
 to the older literature will be found in the 
 works of Burge and Story in the passages 
 indicated in our notes. We have therefore 
 thought it unnecessary to load our pages 
 with references which might easily have 
 been transcribed from the works of those 
 authors, but which would not contribute 
 in any degree to the advancement of the 
 science of jurisprudence. We venture to 
 state another reason, which those who are 
 
 the most familiar with the older literature 
 will best appreciate, namely, that the bear- 
 ing of its discussions upon such practical 
 questions as we have treated, is too indirect 
 to admit of their being irsed in the manner 
 of express authority for our propositions. 
 
 (c) Savigny, whose opinion has been 
 alluded to, maintains the general applica- 
 tion of the lex domicilii to the whole suc- 
 cession without distinction; but, to 3 accom- 
 modate his principle to the actual state of 
 international law, suggests that in those 
 countries where the right of succession is 
 based on tdie civil law doctrines of uni- 
 versal succession, the law of the domicile 
 should be decisive for the entirety of the 
 estate, while in countries, such as England 
 and America, where the principles of uni- 
 versal succession are not admitted, the 
 succession of immoveables ought to be re- 
 gulated by the lex loci rei sitce ; Droit 
 Romain, § 376, torn. 8, p. 300 ; also § 377, 
 torn. 8. p. 110. See Burge 's Commentaries 
 vol. iv, p. 150 et seq., where all the autho- 
 rities are cited, and extracts given from 
 the opinions of the jurists ; Story, § 480 
 et seq., as to moveable succession, and 
 # 484 et seq. as to immoveable ; De Chas- 
 sat, Traite de Statuts, p. 371 et seq., who 
 states very forcibly the reasons which
 
 WILLS AND SUCCESSION. 19 
 
 cession, or to that of a foreign country. " Where," says Erskine,(cT) chapter h. 
 " a Scotsman dies abroad sine animo remanendi, the legal succes- 
 sion of his moveable estate in Scotland must descend to his next 
 of kin according to the law of Scotland; and where a foreigner dies 
 in this country sine animo remanendi, the moveables which he 
 brought with him hither ought to be regulated, not by the law of 
 the territory in which they locally were, but by that of the pro- 
 prietor's patria or domicile whence he came, and whither he in- 
 tends again to return. This rule is founded in the law of nations ; 
 and the reason of it is the same in both cases." The early decisions 
 are conflicting, the Court having in some of them assumed the lex 
 loci rex sitae to be the universal law of succession ; but the law, as 
 stated by Erskine, was established by the final judgments in the 
 cases of Bruce v. Bruce (e) and Hog v. Lashley. (/) 
 
 36. The investigation of intestate succession in its international Questions as to 
 
 . , (1) quality <>t 
 
 relations involves two collateral questions which are antecedent to estate: (2) pro- 
 the application of the municipal law of succession : — First, by what ^ mi i ultJ - 
 law is the moveable or immoveable quality of the subject to be de- 
 termined ? secondly, what law has cognisance of the propinquity 
 of the person claiming the succession ? 
 
 37. (1) It is the function of the law of the situs to determine the Quality of estate 
 
 \ f ii •• it • determined Im- 
 
 proper character of a fund, i.e., whether it is moveable or lmmove- lex loci rei sitce. 
 
 able; and in the case of incorporeal subjects, as stocks or mortgages, 
 the country where the deed of security was granted, or where the 
 ih'bi mi- dividend is payable, is for this purpose to be deemed the 
 situs /■</'.('/) Thus, by the application of the municipal law of Scot- 
 land, bonds secluding executors, as also money secured on heritable 
 estate, are relegated to the (lass of immoveable subjects, and are 
 deemed incapable of being transferred by testament; international 
 law, accordingly, prescribes thai the succession to these subjects 
 shall be regulated by the Law of Scotland.(A) Conversely, bonds 
 bearing interest, and mortgages on real estate, payable in England, 
 or the colonies where the common law is in force, are moveable 
 
 justify the State in regulating thi 7 May 1 7'. >2, 3 Pat. 247. See the opinion 
 
 I of its own territory, and of Lord President Campbell, p. 264. 
 in decliuin jnise the law of the (g) Clarke v. Newmarsh, 16 Feb. 1836, 
 
 domicile; B Int. Recht. g 107, 14 Sh. 488, and cases cited below. The 
 
 who di decisions of the Courts of England are to 
 
 ofthi lex domicilii and lex loci ret the Bame effect; see Price v. Dewhurst, 
 
 8, 9, 1. citing Broun v. Broun, 4 Myl. & Or. 81 ; Jernmgham v. Herbert, 
 
 171 1 m. : ll;,; . 888, and dictum of Sir J. Stuart in 
 
 /. /; it-- M. 1617,15 Pearmain v. Twin, 2 Giff. 1 
 
 April 1790, 8 Pat 168. Lord Thurlow's (A) Roti v. Rote, I Jul] 1809, P.O.; 
 
 [UotedbyBui i (iv. 168) thi \feadv. Inderton, 16 Nov. 1880, 4 W. & S. 
 
 leading authority on this point. 828. Set also M urray v. E. of Rothes, oO 
 
 if) Hog v. Lathley, 1791, M. 8198; June 1886, 14 Sh. 1049. 
 
 B 2
 
 20 INTERNATIONAL LAW IN RELATION TO 
 
 i haptbb ii. estate ; and the Court of Session, applying the rule of international 
 law, holds the succession to those subjects to be according to the 
 law of the deceased person's domicile. (■&') But "where a fund is 
 alleged to have been converted from its natural character, e.g., 
 where it is an investment of the proceeds of property of a different 
 character, or is held by trustees subject to a direction to sell, then 
 its character, as converted or unconverted estate, is to be deter- 
 mined by the law of the domicile of the maker of the deed, (j) In- 
 corporeal I'm ids not classed as immoveable by the law of the situs, 
 e.g., bonds, bills, stock, &c, are moveable by international law, and 
 descend according to the law of succession of the domicile.(&) 
 Propinquity a 38. (2) Propinquity, in the ordinary case, is a simple question of 
 
 donee arising on fact, and, as such, will fall to be determined by the court which 
 i'util'." nas cognisance of the petitio hcereditatis upon its own rules of evi- 
 
 dence. This court, in the case of immoveable succession, is neces- 
 sarily the judicature of the situs of the estate ; for it alone has the 
 power of putting the claimant into possession of the estate. In 
 the case of moveable succession, the question, as we shall see here- 
 after,^) may be raised either in the court of the domicile or in 
 that of the country where the subjects are situated, and where they 
 are sought to be recovered. We speak here merely of the fact of 
 relationship, e.g., that A. B. is the son, brother, or first cousin of 
 C. D. ; for the computation of degrees is, of course, a part of the 
 general law of succession, and follows the rule stated in a previous 
 paragraph, (to) Where, however, the fact of propinquity depends 
 upon the validity of a marriage, or the legitimacy of issue, it is 
 necessary to distinguish. 
 Validity of mar- 39. Marriage, as a general rule, is to be held good all over the 
 macy of child- world if it has been validly contracted according to the law of the 
 place in which the ceremony was performed, or the contract made, 
 lex loci actus. (n) Children born ex justis nuptiis are legitimate all 
 
 (?) Newlands v. Chalmers Trs., 22 Nov. money secured on landed estate in Scot- 
 
 1832, 11 Sh. 65 ; Downie v. Downie's Trs., land was heritable as to succession ; and, 
 
 14 July 1866, 4 Macph. 1067. The prin- applying English rules of interpretation to 
 
 ciple had previously been recognised in the construction of a power of sale in a 
 
 the cases as to the respective liabilities of trust-settlement, found that the securities 
 
 the real and personal estates, such as in question had not been converted into 
 
 Wiffhtman v. DelisWs Trs., 1802, M. 4479 ; personalty. 
 as to which see chap. 72. (k) Ersk. 3, 9, 4. This subject is very 
 
 [j) HalVs Trs. v. Hall, 13 July 1854, fully discussed by Burge, Comm., part 2, 
 
 16 D. 1057; Murray v. Earl of Rothes, chap. 1. 
 30 June 1836, 14 Sh. 1049. Here the de- (I) Infra, section 7. 
 
 ceased was domiciled in England, accord- (m) Burge's Commentaries, vol. i\\, 
 
 ing to the law of which money secured on p. 157. 
 
 land is personal estate. Lord Fullarton, (n) The investigation of the interna- 
 
 applying the law of the situs ret. found that tional relations of marriage and legitimacy 
 
 ren
 
 WILLS AND SUCCESSION. 21 
 
 over the world ; and where the laws of all civilised communities chapter u. 
 are identical, no international question can arise. (o) But the 
 general investigation of the question of legitimacy pertains to the 
 lav/ of the domicile of the person whose status is in question ; and 
 to this law resort must be had where the legitimacy of any per- 
 son requires to be proved in order to establish a claim to a succes- 
 sion, whether real or personal, testate(p) or intestate. (q) By this 
 rule (subject to the exception to be immediately noticed) all ques- 
 tions of legitimation per subsequent matrimonium are solved. (■>-) In 
 the leading case on this subject, (s) Miss Munro was born illegiti- 
 in England, and the subsequent marriage of her parents was 
 contracted in England ; yet, in respect that her father was at the 
 time of her birth, and also of his subsequent marriage, a domiciled 
 chman, she was held to be legitimate, and to be entitled to 
 succeed as heir-female to an entailed estate in Scotland, (t) Where, 
 however, the law of legitimation per subsequens matrimonium is 
 held by the courts of the situs of the real estate to be repugnant to 
 
 the institutions of the country, the law of the situs is applied to 
 the effed of refusing to recognise such legitimation as constituting 
 a title to real estate. This was the ground of decision in the cele- 
 d English case of Birtwhistle v. Vardill, decided by the House 
 of Lords at the same time as the Scotch cases of Munro and the 
 ( 'ountess of Dalhousie.(u) On similar principles, it was held b} r the 
 House of Lords, on appeal from the Court of Session, that heri- 
 table estate in Scotland did not pass to the issue of a marriage, 
 which by the law of Scotland was deemed incestuous, although by 
 the law of England (where the marriage was contracted) the nnir- 
 ald not be challengi d after its dissolution. (a?) 
 40. The law of the domicile of the deceased, in virtue of its Legitim and jut 
 general function ol regulating the distribution of the personal estate, " 
 
 would lead us too far from our pn This was doubtless the principle of 
 
 mcerned only with ion in Goodman v. Goodman, 
 
 le which 3 Giff. 643, where an Englishman having 
 
 has jti removed to Holland, and th( re married 
 
 I tnistn it wa held thai the child- 
 made i" Mr i ii born in Holland were legitimated by 
 i i the subsequent marriage of their pan u\ , 
 (p) Munro o, 1<> Aug. 1840, bul thai tho i born in England had their 
 192. status irr< d by the law of the 
 t ' 11, domicile of birth. 
 16 Sh. 6; LO 175. Birtwhistle v. Vardill, reported an 
 (r) Savigny, Droil domain, \ 877, torn. 8, appendix to the abovi ■ med ca es in 
 p. 810; I B ... p. 158; and b< e the re- I Rob. 627. 
 
 marks of tb ithoi in referenc Fenton v. Living ••-.. 1 6 Ji ly L859, 
 
 the function of the forum ret L66 197 i jud mentofthe 
 
 /■ . '/• • mpra. < louri of Si ion.
 
 22 INTERNATIONAL LAW IN RELATION TO 
 
 ohaptbb n. determines the children's claims to legitim, and also the claims 
 competent to the widow.(y) The case of Hog v. Lashley (z) esta- 
 blished that proposition, and also this corollary from it — that inas- 
 much as the right to Legitim <\\\A jus relictce vest at death, regard 
 musl be had to the domicile of the person at his death, and not at 
 the date of his marriage, or of the birth of the children. The same 
 rule has been applied hy the judges of the Court of Chancery in 
 England in the distribution of the property of deceased persons 
 whose personal estates were situated partly in England and partly 
 in Scotland. (a) Where the deceased is proved to have died domi- 
 ciled in England, the Court of Session, in distributing his moveable 
 estate, necessarily applies the English law of succession, and recog- 
 nises neither the jus relictce (b) nor the claim of the wife's represen- 
 tatives to her share of the goods in communion, (c) 
 Collation an in- 41. Collation is regarded as an incident of the moveable rather 
 moTCaWesuc- ^ nan °f ^ ie immoveable succession, and it has place accordingly only 
 c ""'■ "■ where it is recognised hy the lex domicilii, (d) If, therefore, an intes- 
 
 tate dies domiciled in England (where the heir is entitled to a share 
 of the moveables without collation), the heir will not be bound to 
 collate the Scotch heritable estate as a condition of his claiming a 
 share of the personalty under the English Statute of Distribu- 
 tions, (e) But where an intestate dies domiciled in Scotland, his 
 eldest son, or other lineal representative claiming a share of the 
 personal succession under our law, is bound to collate the real estate, 
 whether situated in England or elsewhere, which he inherits from 
 the ancestor as his heir-at-law. (/) 
 vacantia. 42. According to Savigny,((/) the right to the perception of bona 
 vacantia is to be regarded as supplementary to the law of succession, 
 and it belongs to the fisk of the defunct's last domicile. This state- 
 ment may be admitted subject to the necessary correction for the 
 case of immoveable property. 
 
 ( y) 4 Burge, pp. 158-60, as to the widow's (b) Nisbett v. Nisbetfs Trs., 24 Feb. 
 
 rights, and p. 303 et seq., where legitim is 1835, 13 Sh. 517. 
 
 specially discussed in relation to interna- (c) Neivlands v. Chalmers 1 Trs., 22 Nov. 
 
 tional law ; Bar, Int. Recht, § 112. 1832, 11 Sh. 65; Maxwell v. M'Clure, 20 D. 
 
 (?) Hog v. Lashley, 7 May 1792, 3 Pat. 307 ; 7 March 1860, 3 Macq. 852. 
 
 247; 12 July 1804, 4 Pat. 581. See also Col- (d) 4 Burge, 730 ; Pothier, Successions, 
 
 ville v. Lauder, 1800, M. "Succession," App. ch. 4, art. 3, ed. Dupin, torn. 7, p. 219. 
 
 No. 1 ; M. of Breadalbane v. M. of Chandos, (e) Balfour v. Scott, M. 2379 ; 11 March 
 
 16 Aug. 1836, 2 S. & M'L. 377 ; 22 July 1793, 3 Pat. 300 ; Robertson v. Robertson, 
 
 1837, 2 S. & M'L. 402. The law of the 16 Feb. 1816, F.C.; Brodie v. Barry, 2 Ves. 
 
 domicile also regulates the claim of the & Bea. 130. 
 
 wife's representatives to her share of the (/) Robertson v. iLVcan, 18 Feb. 1817, 
 
 :- in communion ; Kennedy v. Bell, 2 F.C. ; Ditndas v. Dundas, 14 Jan. 1829, 
 
 ill. 18G4, 2 Macph. 587. 1 Jur. 7. 
 
 («) Sommerville v. SommerviUe, 5 Ves. 749, (g) Savigny, Droit Romain, \ 377, torn. 8, 
 
 Munroe v. Douglas, 5 Madd. 394. p. 311 ; Bar, Int. Recht, \ 114.
 
 WILLS AND SUCCESSION. 23 
 
 < HAl'TER II. 
 
 SECTION II. 
 VALIDITY OF WILLS AND TESTAMENTARY DISPOSITIONS. 
 
 43. A testamentary disposition may be null or ineffectual — (1) Validity in rek- 
 by reason of some disability personal to the granter; (2) by rea- granter ; (2) the 
 son of some prohibition of the municipal law applicable to the Sant^V) the 
 nature of the grant, or to the person of the grantee ; and (3) by iustrument - 
 reason of informality in the instrument itself, or in the solemnities 
 attending its execution. 
 
 44. (1) Incapacity may result from imbecility of mind ; from what law regu- 
 ni mage ; or from the restraints which are imposed by positive law jjj? iSJjJP 08 " 
 on the weaker sex, and particularly on married women. Prima 
 
 facie, the capacity to perform any legal act is to be determined by 
 the law of the domicile ;(h) but the strict application of this rule 
 is attended with many inconvenient consequences, and the better 
 opinion seems to be that, as regards the disability of nonage, a con- 
 tract shall be held valid if the party against whom it is to be 
 enforced is of an age to contract, either by the law of his domicile 
 or by the law of the place where the contract was made. As re- 
 g.-mls testamentary deeds, the same reasons do not exist for relax- 
 ing the rule; and in principle it would seem that the testament! 
 /actio, or capacity to make a testament, is governed by the law of 
 the domicile. (7) In the case of real estate, the law of the situs 
 seems to have the power of imposing disabilities in addition to those 
 which result from the application of the lex domicilii.Qc) Thus, we 
 apprehend thiit a married woman would nut be able to grant an 
 effectual disposition of her heritable estate in Scotland except with 
 her husband's consent, < \m though by the law of the domicile she 
 was of full age, and was not subject to any legal disability in respect 
 
 (A) In the case of a change of domicile, at the time of execution, without reference 
 
 the capacity of making a testament, ac- to subsequenl changes of domicile. The 
 
 cordin ny (Droit Romain, g 377, subject of personal capacity in its Lnter- 
 
 tom. 8, p. 807, a] o \ 893), i required al national relations is very fully treated by 
 
 two different peril ofthe Fcelix and Demangeat, \ 86, ie'me ed., 
 
 tent, and thai of the death ofthe torn, i, p. 196. See Burge, vol. iv, p. 576 ; 
 
 r. But the rule of • law (see Story, ch. iv, § 50 et seq. ; Fra er, Parenl 
 
 \ 66, infra), thai a will valid al the time and Child, 2d ed., p. 680 ; De Chassat, de 
 
 i invalidated by a subse- Statute, pp. 416-429; Bar, Int. Recht, 
 
 qu( i ■■ I domicile, would doubtless \ 108. 
 
 ap- (i) Burge 'si tommentarii , vol. iv, p, 579. 
 
 •le to the capacity of the t< tator. I i76 9, citing l>m din ad 
 
 The that the "per- Cod. torn. 8, p. 664, Peckius de Test. Conj. 
 
 Bona] caps ad the like, is 1. 28, 7. and other jui 
 mli 'I by the law of thi ti tator's domicile
 
 24 INTERNATIONAL LAW IN RELATION TO 
 
 ohaptkb ii. of coverture. Our Limits do not admit of our entering into any 
 
 detailed exposition of the law of personal capacity and status.(T) 
 Law which de- 45. (2) With respect to invalidity attaching to the subject or 
 wtj?5£?& nature of the bequest,(m) no good reason can be assigned for devia- 
 tion in tin's respect from the general rule, which assigns a para- 
 mount importance to the lex domicilii in all that concerns the 
 moveable, and to the lex loci rei sitce in relation to the immove- 
 able estate. Both branches of our proposition are supported by the 
 general tenor of the authorities in the law of Scotland. And first, 
 as regards personal succession, the case of Boe v. Anderson,(n) which 
 received greal and repeated consideration, is an authority for the pro- 
 position that the validity of a bequest is to be judged of by the law 
 of t lie domicile. This was a bequest by a domiciled inhabitant of the 
 State of Louisiana of a sum of money to the poor of the town of 
 Dunblane, in Scotland, "to be divided by the resident minister ot 
 the Presbyterian Church, and the two highest civil officers in the 
 town, to be paid upon due proof of their acceptance of the trust," 
 &c. The Court directed an inquiry as to the law of Louisiana in 
 reference to charitable trusts, and on proof that donations for chari- 
 table purposes to trustees, or persons other than municipal corpo- 
 rations, were ineffectual according to the laws of that State, they 
 sustained the defence, that the trustees had no title to maintain 
 their claim. In an early case(o) it was held by the House of Lords, 
 reversing the judgment of the Court of Session, that the validity ot 
 a condition in restraint of marriage fell to be decided by the law of 
 England, in respect that the testator was domiciled there. 
 Law which de- 46. The question of the lawfulness of the grant is closely identi- 
 fied with that of special incapacity attaching to the grantee, and, 
 for example, such restrictions as those of the English statute of 
 Mortmain, may, with equal propriety, be referred to either class. 
 Such restrictive laws may come under the cognisance of the courts 
 of Scotland in cases of foreign succession, and in this work it is 
 only necessary to state the principles on which they ought to be 
 decided. According to Savigny,(p) a distinction is to be taken 
 between (1) personal incapacity (depending on age, sex, marriage, 
 
 (l) Under the old law of Scotland, which would now receive effect in Scotland ac- 
 
 withheld the testimenti factio from bastards, cording to the capacity of the granter in 
 
 it was decided that the will of a bastard the place of his domicile. 
 
 domiciled in England did not carry move- (m) Savigny, Droit Romain, § 377, ed. 
 
 ablcsin Scotland; Pitrvisv. Chisholm, 1611, Fr. torn. 8, p. 308; Story, Confl., H 479(c). 
 
 M. 4494, cited by Ersk. 3, 2. 41. This 479 (d). 
 
 a .'ii '8 1" l>e at variance with (n) Boe v. Anderson, 8 March 1862, 24 
 
 international law. and although the statute D. 732. 
 
 6 WilL IV, cap. 22, applies only to bastards (o) Ommanney v. Bingham, 15 March 
 
 domiciled in Scotland, we apprehend there 1796, 3 Fat. 448. 
 
 be no doubt that the will of a bastard (p) Droit Romain, \ 377, torn. 8. pp. 
 
 take.
 
 WILLS AND SUCCESSION. 25 
 
 or the like), which is governed always by the law of the grantee's chapter n. 
 domicile, never by that of the defunct ; and (*2) incapacity resulting 
 from laws "strictly obligatory" {e.g., la Mort Civile in France, 
 Mortmain in England), as to which he says, the tribunal called to 
 pronounce will apply its own laws, and consider for itself whether 
 the incapacity is such as it ought to recognise. 
 
 47. With reference to incapacity of the second class, it has English Mort- 
 been decided, that legacies, by English will, of money to be laid 
 
 out in laud or heritable securities in Scotland, to be applied to 
 charitable uses within the country, do not fall within the prohibi- 
 tions of the existing Mortmain Act, 9 Geo. II., cap. 36.(^) But a 
 bequest of money to be laid out in the purchase of lands, with the 
 intention of appropriating the rents to charitable uses in Scotland, 
 was held by Lord Lyndhurst to be void under the Mortmain Act, 
 because it did not appear upon the face of the will that the tes- 
 tator bad not contemplated the purchase of binds in England for 
 the support of a charitable institution in Scotland, (f) The Court 
 of Session does no1 consider itself to be precluded by the Mortmain 
 Act from giving effect to settlements made in Scotland of stock 
 in the British funds for charitable purposes to be executed in Scot- 
 land. ('.-•) With reference to personal capacity, we have decisions to the Exclusion of 
 effect that the question whether a legacy carries with it the exclu- Mamage-con- 
 sion of the marital righN of the husband of the legatee (involving 
 necessarily the consideration of the competency of excluding such 
 rights) depends npon the law of the domicile. (/) The law of the 
 domicile, moreover, is held to be the governing law in relation 
 to the question whether the provisions of a marriage-contract are 
 or are not revocabl \.(u) 
 
 48. < »u one rather perplexing point touching the validity of tes- Nuncupati 
 tamentary dispositions, a decision was pronounced which evidently 
 proceeds on the principle of Savigny's second proposition, (x) that 
 laws of a strictly obligatory character must be enforced, irre- 
 
 stive of the rules of the law of domicile ; and this decision de- 
 rives weight from its being mentioned with approval by Erskine. (y) 
 
 809-10. The doctrim bed is 16 l>. 1057. Compare Clarke v. Newmarsh, 
 
 ed in Scot here the quest ion wa i \\ hether a > 
 
 aph. i E a© i ion, \> bich bad vested in a mar- 
 
 l, 16 880. ried lady domiciled in Scotland, fell under 
 
 (r) Attorney-den. ■■ . Mill, 2 Ru . C. C. the jus mariti (16 Feh. L886, 11 Sit. 488). 
 
 b, 698. I Cun t. Button, (u) Ramsay v. Cowan, 11 July Is:;::, 
 
 11. 11 Sh. '.(17. 
 
 (*) Mar, n, i ■.. Collegt of Iberdeen, IT pra, \ 46. 
 
 M. 16,946; Haili 976. Shaw v. Lewis, 1666, M. 1494, cited 
 
 i S I 80,8 sh. in Ersk, 8, 2, U. 
 ; 16 Hall • Trs. v. Hall, L8 Jul L864 
 
 tracts. 
 
 wills.
 
 26 
 
 INTERNATIONAL LAW IN RELATION TO 
 
 oHAPTBBii. We mean the decision that a nuncupative will (effectual accord- 
 ing bo the laws in force in England before the Statute of Wills) 
 could not carry moveable estate situated in Scotland. The law of 
 Scotland requires written evidence of a last will, and although as 
 regards the mere forms of attestation it may be willing to defer to 
 the laws of the domicile, it cannot, consistently with its own funda- 
 mental principles, recognise a will which is wholly defective in the 
 essentials of execution. 
 Validity of .tis- 49. As regards the application of the lex loci rei sitce to deter- 
 ffestate heri ' miue tnc validity of testamentary dispositions of immobilia,(z) the 
 
 ruled by the decisions of our courts are clear and consistent. Heritable estate 
 law of Scotland. pit i -n i 
 
 Exceptions. in Scotland cannot be transferred by a testament or last will ; and 
 
 numerous are the cases in which the wills of foreigners have 
 been found ineffectual for this purpose in spite of the clearest 
 evidence of intention to convey, (a) In other cases, wills in the 
 English form, and containing clauses of revocation of prior wills, 
 have been held ineffectual to revoke settlements of landed estate in 
 Scotland ; but these decisions probably turned on the construction 
 of the term " will," as not comprehending dispositions of lands ; (b) 
 and it is now settled that a settlement of heritage may be revoked 
 by a foreign will.(c) But letters of instructions to trustees of he- 
 ritage,^) and wills or codicils dealing with heritable estate in the 
 exercise of reserved powers, (e) are, as regards the validity of the 
 instrument and the form of attestation, subject to the same inter- 
 national rules as wills of personalty. (/) 
 
 (z) 4 Burge, 216-20: " The power of 
 making the alienation by testament is no 
 less qualitas rebus impressa, than that of 
 making the alienation by contract. When, 
 therefore, the question arises, whether the 
 immoveable property may be disposed of 
 by testament, recourse must be had to the 
 lex loci rei sitce" (p. 217). 
 
 (a) Melvil v. Drummond, 1634, M. 4483; 
 Burgess v. Stanton, 1764, M. 4484; Craw- 
 fur ds v. Crawfurd, 1774, M. 4486, Hailes 
 530; Henderson v. Selkrig, 1795, M. 4489 ; 
 Crs. of Robertson v. Mason, 1795, M. 4491; 
 Montgomery v. Innes, 1795, Bell, Fol. Ca. 
 203 ; Mead v. Anderson, 16 Nov. 1830, 4 
 W. & S. 328. The question of intention 
 is juris domicilii, as to which see section 4, 
 infra (Election). 
 
 (b) Dundas v. Dundas, 1783, M. 15,585, 
 21 May 1783, 2 Pat. 618. 
 
 (c) Purvis Trs. v. Purvis' Exrs., 23 Mar. 
 1861, 23 D. 812, infra, \ 53. 
 
 (d) Stewart v. Watson, 1791. Bell's Oct. 
 
 Ca. 225 ; Ker v. Lady Essex Ker's Trs. 
 24 Feb. 1829, 7 Sh. 454; Melvin v. Nicol, 
 20 May 1824, 3 Sh. 31, N. E. 21. 
 
 (e) Cameron v. Mackie, 9 Sh. 601, 29 Aug. 
 1833, 7 W. & S. 106. Kidd v. Kidd, 9 
 June 1843, 5 D. 1187. In Tatnall v. Han- 
 key, 2 Moo. P. C. Ca. 342, it was held that 
 a will in execution of a power may be 
 authenticated in the manner prescribed 
 by the law of the place where the power 
 was created. See also, Re Alexander, 29 
 L. J. Prob. 93. 
 
 (/) As to the application of the lex loci 
 rei sites in other countries, see the authori- 
 ties collected in 4 Burge's Comm. 218-20. 
 The law of the situs, which requires that 
 the testator should survive the execution 
 of his will for a certain number of days 
 (a rule which prevailed under the custo- 
 mary law of Normandy as well as of Scot- 
 land), is to be applied although the tes- 
 tator die domiciled in a country where no 
 such rule prevails.
 
 WILLS AND SUCCESSION. 27 
 
 50. The recent case of Richmond 8 Trs. v. Winton may be chapter n. 
 said to form the ke3 T stone of the structure by which the Court 
 
 1-1--1T it i i-ii i i> • Equital ile modi- 
 
 has bridged over the obstacles which the rules of conveyancing fication of the 
 
 interpose to the reception of foreign wills disposing of heritable 
 estate in Scotland ; and it would now appear that such a will is 
 effectual as a settlement of heritable estate wherever there is a Richmond's Trs. 
 subsisting dispositive settlement of the estate, even although that v ' ll '"'""' 
 dispositive settlement should not bear reference to purposes to be 
 afterwards declared, and although the will should not bear to be a 
 declaration of purposes, or to be addressed to the trustees of the 
 heritable estate. In this case (g) the testator, while domiciled in 
 Scotland, executed a mortis causa trust-disposition and settle- 
 ment, whereby he conveyed to trustees his whole heritable and 
 moveable estates for certain purposes. The testator afterwards 
 went to reside in Ireland, where he executed a last will and testa- 
 ment, — not probative by the law of Scotland, and not expressed in 
 terms sufficient to carry Scotch heritage, — wherein, without refer- 
 ring to the previously executed settlement, or to the trustees 
 therein named, he becmeathed to certain other parties, as his trus- 
 
 and executors, his whole estates, real and personal, whereso- 
 ever situated, and, inter alia, gave directions for the disposal of 
 his heritable estate in Scotland which were inconsistent with the 
 directions given by the previously executed settlement. The law 
 applicable to the construction of the two testamentary instruments 
 
 nbodied in the following declaratory findings : — (1) That the 
 last will and testament executed by the deceased W. K. did not 
 contain any valid conveyance of his Scotch heritable estate. (2) 
 Thai the trust-disposition and settlement, in so far as concerned 
 tin; conveyance of the said estate, was not revoked by the last will 
 and testament. ('■'>) That the trust-disposition and settlement 
 subsisted, and was effectual as a conveyance of such estate, for 
 the purposes therein declared or to be declared by any subsequent 
 writing. (1) Thai the trust-disposition ami settlement and the 
 will were to he taken as containing, together, the whole of the 
 
 ■or'- testamentary purposes, including his purposes with re- 
 aped to the distribution of the Scotch heritable estate. (5) That 
 the Scotch trustees were hound to give effeel to the purposes ex- 
 
 (>/) Richmond 1 1 Trt. v. ll'/,,/..,,, 26 Nov. executed will is made in Scotland or abroad, 
 
 Sfacph. '>•">. 'Ill'; authorities assuming that it is not in the form of a 
 
 chiefly relied "i> i ron v. M<i,-i.,., tl. im-nt containing a n.-w dispositive con- 
 
 rupra; Lath v. Leith, »; June 1848, 10 D. reyance. In this view of the qui Idon it 
 
 1187;and Willockv. Auehterlonie, M. 6689, is no Longer purelj an international one. 
 
 80 March 1772, 8 Pat. 669. It will be a chap. 29 (Wills of II 
 
 are precis* ly the same whether th<
 
 latos tli 
 tication of wills 
 
 28 INTERNATIONAL LAW IN RELATION TO 
 
 chapter n. pressed in the said will, by conveying the Scotch heritable estate 
 to the trustees named in the will forthe purposes therein expressed, 
 to the exclusion of the purposes declared by the trust-disposition 
 and settlement. (A) 
 TOtionson 51. The principle of the judgment was stated to be, that the 
 [* Tn - heir-at-law is absolutely excluded by a dispositive settlement, and 
 that such exclusion may be effected, not only by a single deed com- 
 plete in itself, hut also by means of two writings which, separately, 
 may be incomplete, but which, taken together, may constitute a 
 perfect exclusion of the heir by a dispositive act. Thus, a deed 
 conveying the heritage to trustees in the first instance, satisfies the 
 whole requirements of the law, by formally divesting the granter ; 
 and the heir being deprived of his interest in the succession, the 
 trustees are bound,'in a question between two parties, both claiming 
 as testamentary representatives, to give effect to the last expression 
 of a valid testamentary intention on the part of the defunct. (i) 
 what law r, 52. (3) According to the best opinion, a will disposing of move- 
 
 able estate may be authenticated either in the form prescribed by 
 the lex loci actus, or according to the forms of the lex domicilii; 
 testamentary dispositions or devises of immoveable estate, either ac- 
 Aathentication cording to the lex loci actus or according to the lex loci rei sitce.(k) 
 hefibteSte! But as regards the latter, it would not be safe to rely upon an au- 
 thentication according to the rules of the lex loci actus ; and the 
 Scotch authorities seem to require that deeds of settlement of heri- 
 table estate should be in the form prescribed by the lex loci rei sitai 
 in the technical requisites both of style and authentication. Thus, 
 a foreign will would not be held effectual to dispose of heritable 
 estate, even if it were tested according to our law, because it is not 
 a de presenti conveyance ;(l) while a dispositive conveyance exe- 
 cuted abroad would be equally invalid if any of the Scotch statu- 
 tory solemnities were omitted, (m) 
 
 (A) Abridged from the interlocutor of requires that deeds relating to real estate 
 
 the Second Division of the Court, 3 Macph. should be authenticated according to its 
 
 113. forms (p. 584). It is remarkable that 
 
 (t) See particularly the opinion of Lord Story, who brings forward an elaborate 
 
 Neaves, 3 Macph. 111. array of authorities to establish the appli- 
 
 (k) Savigny, Droit Romain, torn. 8, p. cation of the laws of the domicile (§§ 464- 
 
 351 : Fcelix, \\ 73-85, 4eme cd., torn 1, pp. 473) and of the locus rei sitce (§§ 474-479) 
 
 164-196; 4 Burge's Comm. p. 581 ; Bar, in relation to the form and attestation of 
 
 Int. Reeht, § 109. The authorities cited wills of moveable and immoveable estate 
 
 by Burge, pp. 582-587, clearly establish respectively, is silent as to the application 
 
 the applicability of the rule locus regit of the maxim locus regit actum to testa- 
 
 actum to settlements of immoveable as well merits or wills of moveables, 
 as of moveable estate; and, in Mr Burge's (I) Melvillev. Drummond, 1634, M. 4483; 
 
 opinion, the lex loci actus is applicable un- Crawfurds v. Crawfurd, 1774, M. 4486. 
 less in case- where the local law expressly (m) Ersk. 3, 2, 40. citing E. of Dalkeith v.
 
 WILLS AND SUCCESSION. 29 
 
 . 53. But the restrictive operation of the lex loci rei sitce appears ohaptebh. 
 
 to be confined to deeds of actual conveyance; and accordingly, it 
 
 ii Till it- t~i Distinction in 
 
 has been held that an obligation to convey Scotch heritable es- case of an cM- 
 tate ma}* be effectually undertaken in a deed framed in conformity g< 
 with the lex loci actus, even when the subject of the conveyance is 
 an inheritance. (n) On this principle it should seem that a man- 
 date or power of attorney, executed in conformity with the law of 
 the grantors residence, would be a good authority for the execution 
 of a regular conveyance. (o) It has been solemnly decided that a invocation of 
 settlement of heritage may be revoked by a deed executed accord- heritor* ° f 
 ing to the law of the testa tors residence (lex loci actus) at the time 
 of the execution of the deed.(/>) 
 
 54. With ngard to wills of personalty, the rule locus regit actum Authentication 
 is universally applicable. The general opinion of modern jurists able estate" 10 ™" 
 is also favourable to the recognition of wills executed according to 
 
 the forms required by the law of the testator's domicile;^) and, in 
 practice, the wills of British subjects resident abroad were always 
 admitted to probate or confirmation if executed in conformity with 
 the rules of our law. The Act 24 & 25 Vict., c. 114, declares valid 
 any will or other testamentary writing executed in conformity with 
 the forms prescribed " either by the law of the place where the same 
 was made, or by the law of the place where such person was domi- 
 ciled when the same was made, or by the laws then in force in that 
 part of Her Majesty's dominions where he had his domicile of ori- 
 gin. "(/•) This enactment does not apply to settlements of heritable 
 or real estate — the authenticity of which, not being originally de- 
 pended on the law of the domicile, cannot in this view he held to 
 he affected by a change of domicile. 
 
 55. In the case of Purvis' Trs. \. Purvis' Exrs. it was de- Effect of a 
 cided by the whole Court, after a most elaborate argument, thai a ^ eofdomi - 
 will executed in conformity with the requirements of the /,.,• i oc i 
 
 actus is not invalidated by reason of a subsequent change of domi- 
 cile en the pari of the testator.(«) This appears to he a necessary 
 
 Booh, 17:."'. M. 4464 ; Purvit' Trs. v. Pur- I Trs. v . I., HI,. C June 1848 10 D 
 
 m I . ., 28 Mar, 1861, 28 D. 822, per 1 187. 
 
 ""'"""■ ('/) 4 Burge, pp. 558-90; Story, 
 
 ngham y. Lady Semple, L706, gg 464-473, and cases there cited, [nthe 
 
 M.4462; Qovan v. Boyd, 1790, Bell's Oct. case of Nasmyth, 2 Addams, 6, the will oi a 
 
 •■ '1 iciled i l,,,t 
 
 (o) See Menzies' Convey. 8d ed. p. 146. authenticated accordii tland 
 
 made in < secution • I admitted to proh 
 
 ; ' •■''"• L14, U > and 2. 
 
 ''■"■ v - r " 28 («) 28 D. 812. On thequestion whether 
 
 Mar. 1861,28 D. 812,816, where all the n will executed it. conformity with th 
 
 English and foreign authorities are cited ; quiremente of th I . •.■,,, „m be
 
 INTERNATIONAL LAW IN RELATION TO 
 
 l II M'TF.K TT. 
 
 deduction from the proposition that the will is valid if authenticated 
 in the manner required by the laws of the place in which it is exe- 
 cuted. By the last mentioned statute (t) it is provided that no 
 will or other testamentary instrument shall be held to be revoked, 
 or to have become invalid, nor shall the construction thereof be al- 
 tered, by reason of any subsequent change of domicile of the person 
 making the same. 
 
 Law of the do- 
 micile the pri- 
 mary canon of 
 interpretation. 
 
 SECTION III. 
 
 INTERPRETATION OF WILLS AND TESTAMENTARY DISPOSITIONS, (u) 
 
 56. According to the principles of international jurisprudence, 
 the law of the domicile of the testator at the time of his death is 
 the primary canon of interpretation of his testamentary disposi- 
 tions.^) A rule so well settled and so generally received^) may 
 be supposed to require no elucidation ; but an attentive study of 
 the authorities leads to the conclusion that even this fundamental 
 doctrine of international right is not absolutely true for ever} 7 ' case 
 of interpretation of a will, and that it is only by admitting the doc- 
 trine of subordinate canons of construction that it can be main- 
 tained as a universal proposition. Accordingly, in the discussion 
 
 invalidated by a change of domicile, see 
 Story, g 473 ; 4 Burge, p. 580 ; Savigny, 
 I 377, torn, 8, pp. 306-8 ; Voet ad. Pand. 
 28, 3, 12-13 ; Rodenberg, de Stat. Confl., 
 tit. ii, par. 2, cap. 1 and 3 (pp. 104, 112 of 
 ed. 1653), and observations of Boullenois, 
 vol. ii, pp. 7, 68 ; Foelix and Demangeat, 
 § 117, 4eme ed., torn, i, p. 263. It is to be 
 observed that the questions discussed in the 
 passages cited have relation also to the in- 
 validation of testaments by defect of capa- 
 city in the granter consequent on change 
 of domicile. The questions are closely 
 connected in practice as well as in the con- 
 siderations upon which their resolution de- 
 pends. 
 
 («) 24 & 25 Vict., cap. 114, § 3. 
 
 («) On the subject of the construction 
 of marriage-contracts as affected by inter- 
 national law, we refer to Mr Fraser's able 
 exposition (vol. i, p. 736 et seq.). The 
 chief distinction is, that the construction 
 is regulated generally by the law of the 
 "matrimonial domicile," or domicile of 
 the spouses at the time of the marriage. 
 
 (x) Sir Charles Douglas' case {Ommaney 
 v. Bingham), 15 Mar. 1796, 3 Pat. 448. 
 " It is admitted," said Lord Loughborough, 
 " not merely in both parts of Great Britain, 
 
 but in all, at least most, of the civilised 
 countries in Europe, that it is the place of 
 a man's domicile which must give the rule 
 for the distribution of his personal pro- 
 perty. . . . The determination of your 
 Lordships " (alluding to the decisions in 
 Bruce v. Bruce, 3 Pat. 163, and Hog v. 
 Lashley, 3 Pat. 247), " which has been ac- 
 quiesced in and followed in Scotland, has 
 now settled it as law that the distribution 
 of an intestate's personal estate, or the con- 
 struction or effect of a will, must be governed 
 by the law of the place where the intes- 
 tate, or the testator, had his last domicile " 
 (3 Pat. 457). See also Lord Brougham's 
 observations in Yeats v. Thomson, 1 S. & 
 M'L., 835 et seq., as to the general appli- 
 cation of this rule. 
 
 (y) Savigny, Droit Romain, # 377, torn. 
 8, p. 308 ; and § 374 B., p. 260; Foelix and 
 Demangeat, 4e'ine ed. i, 260 ; Story, \ 479 
 (a), et seq. ; 4 Burge,'p. 590 ; Voet ad Pand. 
 28, 5, 16 and 17; 36, 1, 25; Boullenois, 
 Stat., ii, p. 419. With reference to the 
 effect of a change of domicile on the 
 meaning and construction of the will, see 
 Story, § 479 (g), and authorities there 
 cited.
 
 WILLS AND SUCCESSION. 31 
 
 of. this part of the subject, it will be our object to discover the mo- chapter u. 
 difications of the general rule, and the limits within which the ope- 
 ration of the subordinate rules are to be confined, (z) 
 
 57. The generality of the application of the law of the domicile Generality of 
 to the construction of testamentary instruments is illustrated by a application to 
 class of cases noticed in the preceding section, (a) where this law is testamentary 
 
 - 1 ° . . . provisions m 
 
 invoked to decide upon the validity or invalidity of a disposition or marriage- 
 
 contricts 
 
 bequest. For there can be no more authoritative application of the 
 function of construction than that which consists in applying to the 
 testamentary writing rules of municipal law by which its provisions 
 are annulled or rendered inoperative. It may safely be asserted 
 that the law of the domicile is primarily applicable, wherever the 
 purpose of the instrument, or of any of its provisions, is testamen- 
 tary, although the form of the instrument may be that of a de prce- 
 senti conveyance or of a contract — as, for example, where a testa- 
 mentary settlement is engrafted on a contract of marriage.(&) 
 And in a question of the construction of a testamentary instru- 
 ment or instruments, the dispositions of which have relation to 
 more than one system of laws, the law of the testator's last domi- 
 cile is to be accounted the paramount law of interpretation. It 
 alone takes cognisance of the succession as a whole ; it assigns to 
 the several parts of the will their places in the order of succession ; 
 it reconciles conflicting provisions and adjudicates upon all ques- 
 tions of implied revocation ; and by the application of the principle 
 of election it imparts unity and consistency to the entire scheme of 
 disposition, (c) 
 
 58. We proceed to the consideration of the limits within which Subordinate 
 laws other than thai of the domicile may be admitted as subordi- potation." 1 
 nate canons of interpretation. The exceptions to the application 
 
 of the law of the domicile which have been recognised in our prac- 
 tice are referable to one or other of the following propositions. 
 First, Where a will or settlement disposes of immoveable estate, 
 its construction, in so Ear as relates to thai estate, is to be deter- 
 mined by the law of the situs. Second///, A will expressed in the 
 technical conveyancing phraseology of the country in which the 
 succession is to be distributed, is to be construed by the judges of 
 thai country from their own knowledge of the meaning of its lan- 
 Thirdly, Idem as to wills expressed in popular language. 
 
 (z) Aa to Hi- i i "i' H >:i ■■■ Lathley, 1 May lt92, :"> Pat. 
 
 tion in the interpre- 247 (8d point); and see Abbey v. Railton, 
 
 tation of a foreign wil] tiou 14 May 1880, 8 Sh. 746; Re wan, 
 
 of this chapter. LI July L888, H Sh. 967. 
 
 > .).-,. (,-i Set Hi- ca i infra tion I
 
 32 
 
 INTERNATIONAL LAW IN RELATION TO 
 
 ohapteb n. to which the law of the domicile assigns no special interpretation. 
 Fourthly, A will expressed in the language, and using the techni- 
 cal phraseology of the place in which it is executed, seems, accord- 
 ing to the best opinion, to be subject to interpretation by the law 
 of that place rather than by the law of the domicile ; and, in any 
 view, effect must be given to such explanations as the lex loci actus 
 can give of its own technical phraseology, as a part of the scheme 
 of disposition to which the theory of interpretation furnished by the 
 law of the domicile is to be applied. Fifthly, Subject to the quali- 
 fication implied in the last-mentioned rule, the law of the domicile 
 controls, and in case of direct conflict overrules, the interpretation 
 furnished by the lex loci actus. (d) In conclusion, we shall direct 
 our attention to, some special cases of construction which are no- 
 ticed by international jurists. 
 Wilis of im- 59. (1) The simplicity and generality of the rule which assigns 
 
 hit^pretedty 6 to the law of the situs the function of the interpretation of disposi- 
 law of the situs ^ions of immoveable estate, renders any detailed exposition unneces- 
 sary. The decisions of our Courts furnish many illustrations of its 
 application to settlements, whether of heritage in Scotland (e) or of 
 real estate elsewhere. (/) 
 Interpretation 60. The operation of the lex loci rei sitce is confined to settle- 
 
 rectiy disponing ments disposing of the estate itself as an immoveable subject. But 
 testamentary provisions which are in their nature personal, al- 
 though affecting real estate, appear to be subject to the law of inter- 
 pretation of the domicile. Of this nature are instructions to trustees 
 of heritable estate, (g) wills in execution of reserved powers of 
 disposal, (Ji) obligations inter vivos to convey or burden heritable 
 estate, (i) and deeds of revocation. (A;) As to these, the law of Scot- 
 land pronounces in favour of the applicability of the lex domicilii. 
 
 of real estate. 
 
 (d) The international jurists for the 
 most part deliver too ahsolutely the doc- 
 trine of interpretation secundum legem do- 
 micilii. Bar alone, amongst the modern 
 writers whom we have consulted, alludes to 
 those elements which may modify the con- 
 struction suggested hy that law of the do- 
 micile, — such as language, local usage, and 
 the technical expressions of the system of 
 jurisprudence with which the testator was 
 familiar, or which he had in view in pre- 
 paring his will (Int. Recht, § 110). 
 
 (e) Blackett v. Gilchrist, 30 May 1832, 
 10 Sh. 590; Weir v. Laing, 6 Dec. 1821, 
 1 Sh. 192, N. E. 181 ; and the series of 
 cases cited supra, \ 49, on the invalidity of 
 English wills to convey heritage, ending 
 with Mead v. Anderson, 4 W. & S. 328. 
 
 (/) Macalister's JExrs. v. Macalister's Trs., 
 18 Dec. 1834, 13 Sh. 171 ; Ramsay v. 
 Cowan, 11 July 1833, 11 Sh. 967. 
 
 (g) Stewart v. Watson, 1701, Bell's Oct. 
 Ca., 225 ; Ker v. Lady Essex Eer's Trs., 24 
 Feb. 1829, 7 Sh. 454. 
 
 (/*) Cameron v. Mackie, 9 Sh. 601 ; 29 
 Aug. 1833, 7 W. & Sh. 106; Brack v. 
 Hogg, 25 Feb. 1831, 5 W. & S. 61, and 
 authorities there cited. 
 
 («) Govan v. Boyd, 1790, Bell's Oct. Ca. 
 223. See on this point, Ersk. 3, 2, 39-40; 
 Karnes' Equity (ed. 1778), vol. ii, p. 328 ; 
 1 Burge, 24 ; contra Story, Conflict, § 372 
 
 (k) Purvis' Trs. v. Purvis' Exrs.. 23 
 Mar. 1861, 23 D. 812.
 
 WILLS AND SUCCESSION. 33 
 
 And the construction of a bequest of a general residue, or share of chapter "■ 
 mixed real and personal succession, is in any case to be determined 
 by the law of the domicile, for it is not agreeable to reason that 
 distinct destinations should be impressed upon subjects which, 
 according to the language of the testator, are necessarily given to 
 the same persons. (T) 
 
 61. It may happen that, in the construction of a deed, resort Bywhatiawthe 
 must be had to different systems of law, — e.g., to the .law of the ^tatefedeter- 
 testator's domicile for the ascertainment of his intention regarding mined - 
 the disposal of his personal property, and to the lex hci rei sitcE 
 for the ascertainment of the effect to be given to his disposal of 
 real or heritable property. A question then arises, which we have 
 had occasion to consider in connection with the international regu- 
 lation of intestate succession, namely, which of these systems of 
 law is to determine the quality of a given description of property, 
 as real or personal.(m) The case of Newlands v. Chalmers Trs. was 
 properly one of intestate succession. Mrs Chalmers, one of the 
 persons whose succession was in dispute, left a trust-deed of settle- 
 ment, but both this and her contract of marriage were reduced, and 
 the succession of her husband, as well as her own, were thus left 
 to the operation of law. A multiplepoinding having been brought 
 in the Court of Session, the main point which arose was, whether 
 certain Jamaica bonds and negotiable paper left by the husband 
 (who had died domiciled in Jamaica) were to be deemed heritable 
 or moveable. The Court held, on the principle of the decision in 
 Egertoii v. Forbes,{n) thai the quality of the estate— that is, whe- 
 ther the securities were real or personal property— must be deter- 
 mined by the law of Jamaica, where they were executed, (o) 
 
 62. The principle that the quality of the estate falls to be deter- Ross v. Boss. 
 mined by the Law of the situs, is equally applicable whether the 
 question is to be determined for the purpose of fixing the distribu- 
 tion of i itself as intestate succession under the law of 
 the situ*, or for the subordinate but importanl purpose of resolving 
 whether a will or settlemenl disposing of the estate is to bo con- 
 strued by the law of the domicile or by the Law of the situs.(p) 
 
 i/j Tiu casi of Brown' « ZV*. v. Brov oi iica ion ■■'■ i testato, after the estate 
 
 -I \V. & S., 'J*, cited by Story, \ 490, ' read ■ ' ' : 
 
 ly touches Hi" point; and we l< i»<) See Story, \ 179 (a);4 Burge,691; 
 
 the propo ition to i ' md ot il own meril . Stewart v. Oarnett, 3 Sim. 298. 
 
 only observing thai t ! i divi ion of I Egerton v. Forbes,?!] Nov, 1812, F.C. 
 
 ; tractive (o) Newlanda \. Chalmers' Trs., 22 Nov. 
 
 convei "ii the qn I 82, II Sh. 66 ; and see the cases on in- 
 
 tion. // ,n cited, supra, g 87. 
 
 ining; there it is as tot! : -' I 
 
 VOL I. C
 
 language. 
 
 34 INTERNATIONAL LAW IN RELATION TO 
 
 chapter ii. This is illustrated by the case of Hoss v. Boss,(q) where it was 
 held, first, that a personal bond to heirs secluding executors was 
 heritable ex sua natura, though it was conceded that, by the law of 
 England, which was the locus actus of the testament, a destination 
 to heirs would not impart the quality of real estate to a personal 
 security ; and, secondly, that it was to be regarded as real estate in 
 Scotland, and therefore not capable of being carried by an English 
 will which was effectual to pass real estate in England.^) 
 Settlements ex- 63. (2) That the Scotch law may be legitimately employed to 
 technicailaw determine the construction of foreign trusts, when falling to be ad- 
 Scotfficon- ministered in Scotland and expressed in the phraseology of Scotch 
 stni. a by that conveyancing, is a doctrine well established in our law, although of 
 comparatively recent introduction. The cases of Cameron v. Mackie 
 and Norton's Trs. v. Menzies are examples. In both cases the set- 
 tlements consisted of a trust-disposition in the Scotch form com- 
 bined with an English will ; and the Court applied the rules of the 
 law of Scotland to the interpretation of the total settlement, (r) 
 Wilis in popular (3) In the case of Thomson'' s Trustees v. A lexander the same me- 
 thod of interpretation was applied by the whole Court (contrary to 
 the opinions of Lord Colonsay and a strong minority) to the con- 
 struction of a will made in Newfoundland, expressed in ordinary 
 colloquial language, and not containing any technical expressions, (s) 
 Principle of the 64. The principle of the decisions under consideration may 
 be thus stated : — There is a presumption that the testator makes 
 his will with a view to that law which determines his succession, 
 and which, in virtue of that presumption, may, to certain effects, 
 be imported into the settlement. But this presumption seems to 
 be overcome when the testator deliberately clothes the expression of 
 his will in the technical law language of his native country, or, it 
 maybe, the country of his adoption, though not of his domicile. If 
 it be granted that a testator may fix for himself a conventional 
 domicile of succession, the selection of the language of a particular 
 system of jurisprudence as the language of his will, is at least 
 strongly indicative of an intention to do so. The intention is, 
 of course, still clearer where an express interpretation clause is 
 introduced, as in the Earl of Stair's case, where in a marriage- 
 contract, the parties agreed " that the import and effect of this 
 contract, and all matters and questions connected with their in- 
 tended marriage, shall be construed and regulated by the law of 
 
 derson, 1G Nov. 1830, 4 W. & S. 328. See (r) Cameron v. Mackie, 19 May 1831, 
 
 WigMman v. Delisle's Trs., 1802, M. 4479, 9 Sh. 601 ; Norton's Trs. v. Menzies, 4 June 
 
 where the question was as to the respective 1851, 13 D. 1017. 
 
 liabilities of the real and personal estates. (s) Thomson's Trs. v. Alexander, 18 Dec. 
 
 (q) Boss v. Ross' Trs., 4 July 1809, F.C. 1851, 14 D. 217. 
 
 decisions.
 
 WILLS AND SUCCESSION. I'./) 
 
 .Scotland. "(0 But we think that a reference to the municipal law ' "after n. 
 of Scotland is to be implied when the testator expresses his will in 
 the technical language of that law. These considerations receive 
 some confirmation from the decisions in Rainsford v. Maxwell and 
 Ferguson v. MarjoribanJcs, which we shall immediately notice, 
 affirmatory of the rule of interpretation laid down in the Outer- 
 House by Lord Eutherfurd, whose extensive scholarship and great 
 knowledge of the principles of jurisprudence placed him above the 
 suspicion of being influenced, in a question of this nature, by local 
 i a- national prejudices. 
 
 65. In Bainsford v. Maacwell. Sir Samuel Hannay had executed Bainsford v. 
 
 .... p -i ■ i i l-ii n Hannay'8 77.-. 
 
 ;i dispositive conveyance of his whole property, heritable and move- 
 able, in favour of trustees, who were directed to convey the residue, 
 on the expiry of certain liferents, to the truster's niece. A mul- 
 tiplepoinding was raised, apparently to determine the question 
 whether the fee had vested ; and a plea was put upon record, to 
 the effect that the settlement ought to be construed according to 
 the law of Germany, where the deed was executed, and where the 
 testator had resided for thirty years prior to his death, without ever 
 having returned to Scotland. By Lord Eutherfurd's interlocutor, 
 affirmed by the Second Division, it was found "that the deed of 
 Sir Samuel Hannay must be construed according to the law of Scot- 
 land."(«) 
 
 66. In Ferguson v. 31arjoribanks,(x) a testator, domiciled in Ferguson v. 
 Jamaica, by his will executed in that island, bequeathed to trus- 
 
 iii Scotland the residue of his estate, consisting of real ami 
 nal property in Jamaica, to he applied by them in the erec- 
 tion and endowment of a free school in Scotland. The Court were 
 unanimously of opinion that the construction of the will, in rela- 
 tion to the execution of the trust, was to be determined by the 
 l;,w of Scotland, ami not by thai of Jamaica. "It were certainly a 
 very anomalous result," said Lord Rutherfurd, " and one not con- 
 si-tent with the best interests of such a trust, that the Scotch law. 
 which had the only direct jurisdiction, should he forced to dis- 
 charge its duty, noi by its own light, hut by the dim reflection of 
 the English law, as it might be gathered from the opinions of 
 English counsel. . . . The Lord Ordinary is more confirmed 
 in this view from two circumstances; one. that the Am\, espe- 
 pecially as regards the constitution of the Scotch trust, is ex 
 
 i/, /,'. of Stair . Head, 29 Feb. 1844, («) Rainsford < Maxwell, 6 I'M'. 1852, 
 
 r, D. 90 ■ G don » n orlie, 1688, MM. 160. 
 
 ' 160. """ v - Marjoribanki, I April 
 
 16 D 687
 
 36 INTERNATIONAL LAW IN RELATION TO 
 
 chaptebh. pressed in ap1 terms of the Scotch law, and that it is not neces- 
 sary for the Scotch Courts to refer to English law to give a meaning 
 to those terms; so that the Court is not driven to go elsewhere for 
 the explanation of words which are not immediately intelligible. 
 The other is, that the construction which would be put upon it by 
 the Scotch law seems to coincide with what is the plain intention 
 of the testator."(y) The fact that in this case Scotland was also 
 the forum of administration, was obviously a very material element 
 in the decision of the case. 
 Whether the 67. (4) Among the numerous decisions upon questions of mixed 
 
 cfleorSacerf 1 English and Scotch succession which are to be found in the Ke- 
 executjon should ])OY ^ ft i s remarkable that there should still be an absence of au- 
 
 prevail m rela- r > 
 
 tion to interpre- thoi'ity on the general question, whether the law of the domicile or 
 the law of the place of execution is to prevail in the case of wills 
 expressed in the technical language of the place of execution, (z) 
 The argument in support of the applicability of the law of the 
 domicile may be thus stated: — The lex loci actus is of authority 
 to prescribe the mode in which deeds of that country ought to 
 be authenticated, and may therefore be referred to for the pur- 
 pose of ascertaining whether a settlement is or is not duly au- 
 thenticated ; in other words, whether the deceased died testate or 
 intestate, so far as the instrument in question is concerned. But 
 as regards the interpretation of the deed, a different principle 
 comes into operation. If the maker of the settlement had hap- 
 pened to die intestate, his succession, beyond all question, must 
 have been distributed in conformity with the regulations of the 
 country of his domicile. Any testamentary settlement he may 
 make is, in truth, a conventional modification of the legal succes 
 sion, and will naturally fall to be construed by the light of the laws, 
 institutions, and forms of expression peculiar to that nation whose 
 prescribed order of succession it is the purpose of the testator to 
 alter. By some such train of reasoning the writers on public law 
 seem to have arrived at the conclusion, that the language of testa- 
 mentary settlements ought to be construed by the lex domicilii. 
 But the art of the conveyancer has everywhere set bounds to the 
 application of this theory of interpretation ; for in the majority of 
 cases settlements are expressed in the technical law language of 
 
 (y) 15 D. 639. meaning and the authenticity of the con- 
 (z) As to the interpretation of contracts tract. As regards wills, the method of 
 the greatest diversity of opinion has pre- construction established by the case of Di 
 vailed ; some writers maintaining the ap- Sora v. Phillips (infra, sect. 8) has re- 
 plication of the lex loci solutionis, while moved the chief difficulty attaching to this 
 others assign to the law of the place of class of questions, 
 execution the determination both of the
 
 WILLS AND SUCCESSION. 37 
 
 the territory of execution, without the least regard to the country chaptebh. 
 of the testator's domicile. Even if it were otherwise, the testator's 
 domicile might be changed subsequently to the execution of the 
 will without any corresponding change of testamentary intention. 
 [1 -terns, therefore, more agreeable to reason, as it is more con- 
 venient in practice, to construe testamentary instruments, where 
 construction is required, by the light of the law of the place of exe- 
 cution, and with the assistance, if necessary, of persons skilled in 
 the technical law language of the country. 
 
 68. (5) The most positive assertion of the authority attributed Dictum m Pur- 
 by our law to the law of the domicile in relation to the construction ','■,■ y,-,','' 
 and effect of wills is contained in the observations of the present 
 
 Lord President of the Court(a) in delivering the judgment of the 
 ad Division in Purvis' Trs. v. Purvis'' Ears.: — ''The law of the 
 domicile of the deceased at the date of his death must determine not 
 only what is the true meaning and construction and effect of any will 
 or deed of settlement he may have left disposing of Ins moveable 
 estate, but also, as regards his moveable estate, whether he died 
 testate or intestate; and if he died testate, the law of the domicile 
 musl further determine what paper or papers constitute the will of 
 
 the deceased That the law of the domicile can alone settle 
 
 what is the will, is a principle of international law of extensive, if 
 not universal, acceptation." We should infer from these observations 
 that, in the case of a difference as to the principles of interpretation 
 between the law of the domicile and that of the place of execution, 
 i be former is to be deferred to. 
 
 69. [tis accessary, however, to compare this distinct enunciation opinions of 
 
 of opinion with the more guarded and ambiguous responses of emi- LordMoncrefal!' 
 oenl judges in previous For example, in Trotter v. Trotter, and Lord Jef- 
 
 Lord Lyndhurst, avoiding the difficulty, observed — " A will musl be 
 interpreted according to the law of the country where it is made, 
 and where the party making the will has his domicile."(6) Equally 
 cautious was the remark of Lord Moncreiff in Hardman v. Rougefs 
 Trs., a case of a \V< si Endian will — " Nothing can be clearer in in- 
 ternational law than thai the construction of a will is to be regu- 
 lated by the law of the place when- it was made, and of the domi 
 cile of the party who made it."(c) The Lord Ordinary ( Lord Jeffrey I 
 bad tacitly evaded the difficulty in asserting thai "il was indis- 
 putable thai the radical question, as to who was truly entitled to 
 succeed, musl I"- wholly ruled by the law of the domicile, or of the 
 ■ where the instrumenl was made."(d) 
 
 / / /_•;]' Hardman l\ >"■ AD. 1508 
 
 :; W. & s. 415. ID. ]
 
 38 INTERNATIONAL LAW IN RELATION TO 
 
 .iiwti'k ii. 70. In Macpherson v. Tytler(e) where the maker of a settlement 
 
 in the English term was also the proprietor of a Scotch estate, and 
 Maephenm v. therefore in one sense a domiciled Scotchman, the Court took an 
 opinion of English counsel on the construction of the settlement, 
 the ultimate purpose of which was to consolidate into one fund the 
 whole of the testator's fortune and moveables, and lay it out in the 
 purchase of lands in Scotland, which he directed to be entailed. 
 In an English case, Enoliin v. Wylie, where the will was Russian 
 both in respect of execution and of the testator's domicile, the Court 
 of Chancery, on being advised by Russian counsel that their rules 
 of construction, as to the effect of specific in controlling general 
 words of bequest, were similar to .those of the English law, decided 
 the case on their ©wn view of the meaning of the will.(/) 
 
 Designate per- 71. CONSTRUCTION OF SPECIAL CLAUSES. The particular class 
 
 or description of persons entitled to take under a general designa- 
 tio personarum. — e.g., to "heirs," "next of kin," or the like,(g) — 
 ought on principle to be subject to the determination of the same 
 law which regulates the interpretation of the deed ; that is, at 
 least in the case of personal property, to the law of the domicile. (A) 
 As regards real property, it appears there is a division of opinion as 
 to whether the lex domicilii or the lex loci rei sitaz ought to prevail, (i) 
 
 < Jurrency. Legacies are held to be payable in the currency of the country in 
 
 which the testator was last domiciled, unless the testament affords 
 clear evidence that the testator meant another currency, (k) And the 
 rule is not varied by the circumstance that the legacy is to be paid 
 out of the proceeds of real estate situated in a country where the 
 
 interest. currency is different from that of the domicile.^) According to the 
 
 rules established by the Court of Chancery, legacies and shares of 
 succession bearing interest carry the interest of the state in which 
 
 (e) Macpherson v. Tytler, 19 Jan. 1850, also Story, § 479 (e) ; Boyes v. Bedall, 33 
 
 1 2D. 486. L. J. Cli. 283. 
 
 (/) Wylie v. Enohin, 29 L. J. Cli. 341 ; (i) De Ohassat, Tr. de St. p. 424, de- 
 
 and on appeal, 31 L. J. Ch. 402. cides for the application of the laws of the 
 
 (rj) Machary v. Blane, 1760, M. 4611; situs, contrary to the opinions of Burge (ut 
 
 Henderson v. Wilson, 1803, M. 15,953; and supra, citing Voet, 28, 5, 16; Sande, 4, 7, 7; 
 
 si e Earl of Stair v. Head (a special case), 2 Boullenois, 419, &c.) ; of Story, \ 479 (h) ; 
 
 29 Feb. 1844, 6 D. 904. and of Fcelix and Deinangeat, g 115, 4e'me 
 
 (h) 4 Burge, 590-594 : " The ground ed., i, 262. 
 on which this rule rests is, that as it be- (k) Burge, iv. p. 594, and authorities 
 
 comes necessary to ascertain the sense in cited; Story, § 479 (b); Saunders v. Drake, 
 
 which the testator has used the expression, 2 Atk. 465 ; Pierson v. Garnett, 2 Br. C.C. 
 
 and what laws of succession he contem- 39, 47; Malcolm v. Martin, 2 Br. C.C. 50. 
 plated, it is presumed that they were those (I) Burge, ut supra, and authorities there 
 
 of the country in which he was domiciled, cited. See particularly 2 P. Wins. 88; 1 
 
 ii ..use it must be supposed he was fa- P. Wms. 696; 2 Bligh P. C. Ca. 89; 2 
 
 miliar with those laws " (p. 590). See Atk. 465.
 
 WILLS AND SUCCESSION. 39 
 
 the assets have been placed by the executors or administrators since chapter n. 
 they became payable. This would also appear to he the doctrine of 
 the law of Scotland, (m) 
 
 72. With reference to words of discharge or renunciation of Words import- 
 legal claims in a foreign deed forming part of a general scheme of kfal provisions. 
 testamentary disposition, the question may arise whether such 
 
 words import an exclusion of legitim,(w) of jus relictce,(o) or of 
 terce.(p) In the two former cases the law of Scotland, the lex do- 
 micilii under which these legal provisions are created, pronounces 
 that they cannol be discharged by implication ; but the question 
 whether they are expressly discharged by appropriate words can 
 celybe said to pertain to any system of law, being truly a ques- 
 tion of the interpretation of ordinary language, in which no rule of 
 law is involved. In regard to terce, the law of Scotland, the lex 
 loci rei sitae, determines that it may he satisfied by a conventional 
 provision in a foreign settlement, without words of express dis- 
 charg . 
 
 73. The jus accrescendi under a testament depends on its being Jus accresemdi 
 conferred or refused by the law of the situs if the property be im- vestm s- 
 moveable, and by that >>i the domicile if it be moveable. (q) And 
 
 the same law will determine the correlative question whether a 
 legacy has lapsed by the predecease of the legatee.(r) 
 
 74. The tendency of the more recent decisions has been to con- Tendency of the 
 tine the function of the tea; domicilii within narrower limits than 
 were .-it one time assigned to it. The principle established by the 
 cases of Leith v. Leith and Purvis' Trs. v. Purvis' Exrs., and subse- 
 quently recognised by the Act of 1861, assigns to it only a joint 
 operation with the law of the place of execution in regard to the 
 requisites of authentication.^) The cases of Rainsford, Cameron, 
 and Norton bave restricted it- operation in cases where the lan- 
 
 Oraham v. Keble, I' 1 Juh 1820; Beet. 3, where the ubject of the discharge 
 
 en, : 1 I July 1830, -1 W. & S. 166; and satisfaction of] 
 
 )//„//, •-.. McAllister, 29 June L827, •"> Sh. treated. 
 
 \.K. 801 : 23 June 1880, 4 W. & S. (q) 1 Burge, 581, citing Matthi u . 18, 
 
 1 12; Palmer .v Co. v. Glass, 24 Jan. 1835, \ 26, and Vasq. torn. 2, p. 312. 
 ]■', Sh. 808. See also Pria v. Wise, 8 F< b. ra ; Anstrulher v. Chair 
 
 24 l>. 191. 2 Sim I . A rdingly the I o 
 
 / Trs. v. Marchioness of of Chancery has sen! b< un- 
 
 16,2 S. & M'L. 877 ; der the Law Ascertainment A.ct to the 
 
 Keith's Trs. v. Keith, i Court of i thi court ofthedomi- 
 
 /. / ..in!;, 1867,19 cile, u] the question whether ceri 
 
 I '. I" I". tool tider a will ; 
 
 I Seafield v. Earl of & Lordr. Colvin, L5 Julj L865, 8 Macph. 
 
 I, F.C.: N\ L088; Mitchell \. Mitchell, 17 March 1 65 
 
 ; Feb I 35, 18 Sh.517, and 8 Macph. 721. 
 
 chap. 7 ' upra, \\ 53 
 
 sions.
 
 40 INTERNATIONAL LAW IN RELATION TO 
 
 ( Haiti 1; ii. guage of the will is not that of the domicile ; and the case of Mar- 
 joribanks is a direct precedent for its exclusion in questions as to 
 the administration of continuing trusts.(tf) In Thomson's Trs. v. 
 Alexander, the jurists of both countries were agreed that resort 
 to its expositors was unnecessary in the case of wills expressed in 
 popular language.(w) Although, in a recent case, (a?) a trust was 
 held to he unlawful in deference to the special and exceptional pro- 
 visions of the law of the domicile, it must be admitted that there 
 is force in the view stated by the dissentient judge ; that the ques- 
 tion of the lawfulness of a will is one of public policy which ought 
 to be determined by the law of the place where the will is to be 
 carried into effect, rather than by that of the locality where it was 
 made. 
 
 SECTION IV. 
 ELECTION. 
 
 , . 75. In the application of the principle of election between legal 
 
 Election regu- xl x , * ■ . 
 
 lated by the lex and testamentary provisions, the principle, by whatever denomina- 
 tion it is known, is strictly confined within the limits assigned to it 
 by the law of the domicile, (y) The function of putting the heir to 
 his election is evidently one of those paramount and overruling re- 
 lations of law by which the conflicting claims of successors of diffe- 
 rent orders are reconciled, and which therefore can only pertain to 
 that law which takes cognisance of the succession as a whole. To 
 suppose that any other court than that of the domicile was compe- 
 tent to decide a question of election, were to introduce hopeless 
 confusion into the international relations of succession ; and so 
 strongly has that danger been felt, that in the very first case of the 
 kind that came before the Court of Session, the Lord Ordinary 
 (Glenlee), in respect the testator was domiciled in India, de piano 
 directed a case to be laid before English counsel for their opinions 
 on the question, — Whether the heir-at-law could take certain sub- 
 jects at Calcutta and Simla, and at the same time claim a legacy 
 bequeathed by the ancestor's will? And the report bears, that the 
 ( Jourt, being clearly of opinion that the law of England must decide 
 the case, " refused to listen to any argument founded on the law of 
 Scotland."^) 
 
 (t) Supra, '0, 63-65. (*) Wightman v. Delisles Trs., 1802, M. 
 
 ( u ) § 63. 4479. See Martin v. Martin, 17 June 
 
 (x) Boe v. Anderson, 24 D. 732. 1705, 3 Pat. 421. 
 
 | vi 4 Burge, 733; Story, § 479 (a).
 
 WILLS AND SUCCESSION. 41 
 
 76. Where, therefore, the Court of Session, in distributing the chapter h. 
 moveable succession of a testator who was last domiciled in Scot- ~~ 
 
 land, is called upon to consider the intention manifested by the theVr^cTpie" 
 
 itor with respect to immoveable estate not effectually disposed 
 of, it will be guided by the rules of the Scotch law of approbate 
 and reprobate, and that whether the immoveable estate is situated 
 in Scotland or in a foreign country. (a) If the same succession 
 should fall to be distributed by a foreign Court, that Court would, 
 to the same extent, necessarily be guided by the rules of the law of 
 land. Where, again, the testator dies domiciled in England, 
 the English law of election is applicable, without regard to the situs 
 of the property, or to the forum of distribution. (6) 
 
 77. Thus, in thi - of Dundas v. Dundas,{c) where the Dundas v. 
 testator had included in his trust-settlement an English estate of Dmda *- 
 considerable value, but the conveyance was ineffectual according 
 
 to the law of England, because it was not authenticated by three 
 witnesses, this property having been claimed by W. 1)., the heir- 
 at-law, who was also entitled under the settlement to a share of the 
 Scotch real and personal estate, the Court of Session were of opinion 
 that they were hound to deal with the English property under the 
 law of approbate and reprobate, and accordingly found, "that if 
 \Y. 1). shall ultimately take the estate situated in England without 
 surrendering the same for the purposes of the trust, he cannot be 
 entitled to claim, under the trust-deed, any share of the heritable or 
 moveable estates in Scotland thereby conveyed to the trustees."^) 
 In moving the affirmance of this judgment, Lord Brougham ob- 
 served, — "The Court of Session have dour nothing more to affeel 
 the real estate within the liberties of Berwick than the Court of 
 Chancery would do in the case I have put. They have only said, — 
 Yon come to us, uol for the real estate, uo1 to decide on the real 
 ■ in England, which we have no power to do; hut you come 
 to us a- a legate* — you want to enjoy your fourth share under the 
 will of the persona] funds, and the heritable funds in Scotland : we 
 have jurisdiction over them, and we pul yon to your election — either 
 
 take the whole aCCOrding to the principles of the Scotch law, OT 
 
 t the whole; take the legacy cum onere, or reject both the 
 burden and t he legacy ."i < ) 
 
 78. 'I'll- right of the Courts of England and Scotland so to deal Towhai 
 
 i he fori i ii 
 D Dundas, infra ; Alexander Robertson, 16 Feb. L816, !•'.<'.; Campbell jurisdicti 
 
 I July 1829, 7 Sh. v. Munro, 16 SI, 810 I with Scotch 
 
 ei tate. 
 "I i (c) ])iiii<I,i* v. Dundas, II Jan. is:"'. 7 
 
 .///,, } March 1828, 6 Sh. 241 ; 22 Dec. 1830,4 W. & S. 160. 
 
 Mi. 690 ; Wight . Trotter I \ & S. H','_'. 
 
 /' o 107; 1 /'• ■ fa \ I . , 1 W. & s. |i 6
 
 42 INTERNATIONAL LAW IN RELATION TO 
 
 ohapteb it. with the personal claims of heirs of real estate situated in the other 
 "country, is mutually acknowledged. For example, in the case of 
 Lamb v. Montgornerie,(f) where certain heritable estate in Scotland 
 | 1:1 ,1 been treated as personalty in an English will, the Court of 
 Chancery, dealing with the Scotch property under the English law 
 of election in a suit instituted for the administration of the trust, 
 obliged the heir-at-law to recognise the conveyance, as a condition 
 of bis claiming a share in the personal succession. The Court of 
 Session had in the meantime oppointed a judicial factor on the 
 heritable estate ; and thereafter a petition having been presented by 
 the executors, praying that the judicial factor might be authorised 
 to dispone the said heritable property to them in trust, for the uses, 
 ends, and purposes specified in the said will, Lord Kinloch remitted 
 to English counsel for their opinion, — Whether the proceedings in 
 England were competent and regular, and imported a final and ir- 
 revocable election on 'the part of the heir (a minor) of the provi- 
 sions under the will ; and whether, in respect of such election, he 
 was obliged to make over the heritable property to the executors ? 
 Having obtained an affirmative answer, the Lord Ordinary autho- 
 rised and empowered the judicial factor to execute a conveyance in 
 favour of the executors as desired. 
 English law of 79. In an earlier case, relating to a will executed in India, and 
 
 i Sfteram? d which indicated an intention (not effectually expressed) to convey 
 rights under a heritable estate in Scotland, the Court of Session sent a case to Eng- 
 he'ritabTesme. lish counsel for their opinion upon the construction of the will, in 
 which inter alia the following question was put : — If the will be 
 not sufficient to pass real property, does it so express the testator's 
 intention that it would put the heir to his election in any competent 
 Court in England, whether of law or equity, if he had claimed the 
 English real property as well as his share of the personal estate 
 under the will ? On obtaining an opinion that the will did not so 
 express the testator's intention as that it would put the heir to his 
 election in a court of equity in England, the Court found the heir 
 entitled to a legacy out of the personal estate, without obliging him 
 to communicate the heritage, (g) In a subsequent case, effect was 
 given to an opinion of English counsel affirmatory of the question 
 whether the heir was put to his election. (h) 
 
 (f) Lamb v. Montgomerie, 20 July 1858, see Robertson v. Robertson, 16 Feb. 1816, 
 20 D. 1323. See Loudon v. Loudon, 1811, F.C. ; Murray v. Smith, 4 March 1828, 6 
 Hume 23, and relative note, contrasting this Sh. 690. See chapter 27, infra, as to elec- 
 
 e with ~Wightman v. Delisle, M. 4479. tion generally. 
 
 (g) Trotter v. Trotter, 5 Dec. 1826, 5 Sh. (h) Campbell v. Hunro, 23 Dec. 1836, 15 
 78; 10 June 1829, 3 W. & S. 407; and Sh. 310.
 
 WILLS AND SUCCESSION. 43 
 
 CHATTER II. 
 
 SECTION V. 
 ADMINISTRATION OF THE SUCCESSION. 
 
 80. This subject embraces a wide range of inquiry. In a great Division of the 
 variety of cases connected with the law of trustees and executors, su Ject 
 the rules of law admit of being modified by international rela- 
 tions. Special cases, however, are best treated in connection with 
 the relations of law to which they belong ; and referring the reader 
 for such to the body of the work, we shall confine this section to a 
 brief enunciation of principles. The points to be noticed are these : 
 1st, Aditio Jiereditatis and Title of Administration ; 2dly, Kesponsi- 
 bilit} r of the Trustee or Executor, and Diligence Prestable ; 3c?/y, 
 The Liabilities of Estates situated in different countries. 
 
 81. (1) The most general rule in relation to the vesting of move- vesting of the 
 able succession is, that the inheritance vests in accordance with the succession or 
 
 i • neficial in- 
 law of the domicile ; but that the law of the situs has authority to terest - 
 
 determine whether any special title of possession or aditio heredi- 
 tatis be requisite to vest the specific estate. (7) As to immove- 
 able succession, it is entirely within the cognisance of the law of 
 the situs; so that if a person succeed as heir of provision to heri- 
 table estate in Scotland, and also to real estate in England, the latter 
 shall vest at once, while the vesting of the former remains in sus- 
 pense until the heir shall exercise the right of taking it up by ser- 
 vice.^) So also in relation to moveable succession which accrued 
 before the passing of the Act of Geo. IV., the character of executor 
 bed bysurvivance ; and although the moveable estate in Scot- 
 land did not vest without confirmation, ye1 .-is to effects in Eng- 
 land^ and other parts of the world, (m) no such proceeding for 
 
 The role is somewhal differently form. In such a ca e, possession via facti 
 
 Barge: — "The title by succ aode of completing a title of 
 
 to moveabl ing governed by which th nils. 
 
 the law of the testator's domicile, and to Ajid where, by the law of the domi- 
 
 immoveable property by thai of its situs, cile, probate is neo nder a will 
 
 the obligation imposed on the beir of admissible in evidence, this rule is nol 
 
 adiating or m pting the for binding npon the court of administration, 
 
 the purpose of perfecti which may, on the contrary, proceed upon 
 
 im with the active title of heir, the original will, or such evidence of its 
 
 would 1"- dependent on the laws which contents as its rules of evidence requ 
 
 date the i to Yeats v. i i June 1885, 1 s. & 
 
 of property " M Comm. M'L. 795. 
 
 We cannot concur in the (/) Craigie v. Gairdner, 12 June 1M7, 
 
 lion that th iation depend F.C.; Egerton v. Forbes, 27 Nov. 1812, 
 
 on the law of the domicile. It may well F.C. ; Milligan v. MiUigan, 9 Feb. L826, 
 
 in which pos- -1 Sh. 482, X. E. 488. 
 
 ■ be taken have Smith v. Lauder, 80 May 1834, 12 Sh. 
 chinery for
 
 44 
 
 INTERNATIONAL LAW IN RELATION TO 
 
 I'll W'TI K II. 
 
 Vesting of the 
 tate in 
 the executor or 
 administrator. 
 
 Ancillary ad- 
 ministration. 
 
 vesting the right was required either here or in the country where 
 the effects were held to be locally situated. On the law of the do- 
 micile will depend the effect of the acquisition of a vested right — 
 e.g., in the case of succession accruing to a married woman, whether 
 it wholly falls under the jus mariti,(n) or whether the legatee is 
 entitled to have a provision made for her out of the fund in a ques- 
 tion with the husband's creditors.(o) 
 
 82. A similar distinction prevails between the right of inheri- 
 tance and the right to the specific subjects, with reference to the 
 completion of titles of administration by executors and administra- 
 tors. In every country with which w r e are acquainted, some official 
 act is required, analogous to confirmation, in order to clothe the 
 executor with a title to administer. It belongs to the court of the 
 domicile to decide between competitors for the office of executor, and 
 to appoint to the office where the testator has omitted to do so ; but 
 the law of the situs of the executry estate is entitled to require the 
 executor administering to it to confirm his title within its terri- 
 tory, and to give such security as may be requisite. (p) The rule, 
 more briefly expressed, is, that the petitio liereditatis is to be brought 
 in the forum domicilii ; the petitio rerum singularum to be brought 
 in the forum, rerum sitarum.(q) 
 
 83. In Scotland it seems to have been the practice from time 
 immemorial to grant confirmations as of course to executors who 
 had previously proved the will in England or in a foreign jurisdic- 
 tion ; but the title of an administrator appointed by a foreign court 
 was not recognised as a matter of course. (r) This practice was 
 corrected by the decision of the Second Division of the Court in 
 the case of the Marchioness of Hasting s,(s) where the true interna- 
 tional principle was, for the first time, expounded by Lord Justice- 
 
 (n) Clarke v.Newmarsh, 13 Feb. 1836, 14 
 Sh. 488. Per curiam in Lashley v. More- 
 land, 21 Dec. 1809, 15 E.G. 468. 
 
 (o) Duchess of 'Buckingham v. Winterbot- 
 tom, 13 June 1851, 13 D. 1129. 
 
 (p) Preston v. Lord Melville, 29 March 
 1841, 2 Rob. 88, reversing 16 Sh. 472; see 
 Lord Cottenhain's dictum, distinguishing 
 between the right of succession and that 
 of administration, p. 105. A will proved 
 in the forum rei sitce, may nevertheless be 
 afterwards found invalid by the law of the 
 testator's domicile; see Thomson v. Carting, 
 8 Sim. 310, where the question arose with 
 reference to the restraints on the testa- 
 mentary power imposed by the law of 
 Franco, which was the testator's domicile. 
 
 (q) See this distinction explained, with 
 reference to the enactments of the Civil 
 Law upon which it is founded, by Savigny, 
 Droit Rom. g 376, ed. Fr. torn. 8, p. 305. 
 The right of suing intromitters with sub- 
 jects forming part of a succession in the 
 courts of the situs rei, was given by Nov. 
 69, cc. 1 and 3, which are general enact- 
 ments comprehending the case in question. 
 See also Bar, Int. Recht. \ 113. 
 
 (;•) See the information furnished to 
 the Court in the case of the M. of Hast- 
 ings, infra. 
 
 (s) Marchioness of Hastings v. Marquis 
 of Hastings Exrs., 10 Feb. 1852, 14 D.
 
 WILLS AND SUCCESSION. 45 
 
 Clerk Hope. The administration, lie observed, was to be that of the phai^er ». 
 domicile ; and where moveable funds are collected in a foreign coun- 
 try fir distribution, they are to he sent to the executor appointed 
 by the judge of the domicile, who alone has the title of administra- 
 tion. This had long been recognised in the case of executors to 
 whom probate was -ranted; hut, said his Lordship, letters of ad- 
 ministration are a title just as probate is, and when produced here 
 are equally authoritative as a warrant for granting confirmation.^) 
 
 84. Prior to the passing of the Confirmation and Probate Act Probate and 
 1858, it was ruled that probate, or letters of administration, were JLiistratioi 
 equivalent to a license to sue in the Scotch Courts ; the debtor, jjgjjj^g*' 
 however, being entitled to insist on confirmation before extract. (v) 
 
 Under the present law an executor founding on an English title 
 would, before extract, procure an indorsation of the probate or 
 letters of administration from the Commissary Court of Scotland. (as) 
 In like manner, the title of a Scotch trustee suing in England or 
 Ireland may be perfected by registration of the extract of confirma- 
 tion in the Court of Probate. (?/) 
 
 85. The executor or administrator appointed by the deceased Title of execu- 
 person, or by the jurisdiction of his last domicile, as the case may ^dLcharge ' 
 be, has a title jure gentium to ingather and distribute the moveable 3 ure ii^" 1 """- 
 estate of the deceased. Payment to him is a good acemittance to 
 debtors, all over the world. Accordingly, debtors in Scotland who 
 
 had paid to the English administrator of the estate of a domiciled 
 lishman, were held not liable in second payment to a person 
 win. had confirmed executor-creditor on the Scotch estatc.(V) 
 
 (t) 14 l>. 491. As to tin' duly of the 2 Rob. 88) jurisdiction, wive bound to ex- 
 
 forvm < grant ancillary adminis- ercise it when appealed to, unless it could 
 
 tration to the executor or administrator beshownthai inconvenienc would arise. 
 
 authorised by the forum domicilii, see the See infra, sect. 7 (Jurisdiction). 
 opinions of the Law Lords in Enohin \. (u) Clark v. Brebner, 1759, M. 4471; 
 
 a e , 81 L. J. Ch. 404 As to the course Wardlaw v. Maxwell, 1715, M. 4500; 
 
 oinistration, there was a difference Fraserv. Johnston's Trs. 11 July 1821, 1 
 
 of opinion. Lord Westbury affirmed that, Sh. 120-2; Stewart v. Macdonald, 21 
 
 in all cases, the i hi tohesenl to 182G, 5 Sh. 27-9, and cases in M. voce 
 
 the domicile to l„. thi re distributed either " Foreign," pp. 4497-4500. TheCourtsbf 
 
 judicially, or, if needful, under the England and America require probate 
 
 direction of th art of the domicil , Hi within their own jurisdictions as a title 
 
 though! gri to sue; Pric< \. / '■ whursi | Eng.), I Mj I. 
 
 I ial property in dif- and Cr. 76, 80; <'<iuti>h<U \. Sheldon 
 
 fereni it' an appeal should 1- (Amer.), and other cases cited in Story, 
 
 mad.' to the ec 6th ed. 
 
 will, with I the 21 x 22 Vict. cap. 66, \ 14. 
 
 of it. L01 I ■ orth I'l- Stat, gg L2, 18. 
 
 and < ■ itrary, held l '• v Co. v. Aberdeen Banking 
 
 ■ , <;,.. '.i .In! . 1.-::;, 16 Sh. 1 LOO. 
 / ,■
 
 46 
 
 INTERNATIONAL LAW IN RELATION TO 
 
 rii LPTBB 11. 
 
 Competitions of 
 diligenci 
 twees heirs and 
 creditor 
 lated by court 
 of the situs n /. 
 
 Executor pri- 
 marily respon- 
 sible to the 
 court of the 
 
 domicile. 
 
 86. In virtue of its exclusive authority in the matter of the 
 petitio rerum singularum, it is the province of the court of the 
 situs of moveable property to determine all competitions between 
 competing executors or executor-creditors, (a) as well as questions 
 of competition of diligence between executors and others claiming 
 the estate, (b) A fortiori questions of priority of diligence, or other 
 real rights to immoveable estate, are subject to the determination 
 of the law of the situs, (c) 
 
 87. (2) The primary responsibility of an executor is to the 
 court of the domicile from which his authority is derived ; and the 
 diligence prestable by him is that which is exacted by the law of 
 the domicile. "Where an executor, or judicial factor, or receiver, is 
 appointed by the judge of the place where the fund is situated for 
 the realisation and custody of the estate, it would seem that such 
 executor is discharged by paying over the fund to the executor or 
 administrator having a title from the jurisdiction of the domicile, (d) 
 The determination of the Court of the domicile in an administra- 
 tion suit is at once an exoneration to the executor who makes, and 
 a title to the beneficiary who receives payment of a legacy or share 
 of succession in virtue of its decree ; and the forum rerum sitarum 
 will not thereafter entertain the question of right, but will give 
 judgment in conformity with the decree, (e) 
 
 (a) Veitch v. Irving, 1700, 4 Br. Sup. 
 495. See on this subject, chapter 52 
 (Office of an Executor). 
 
 (b) Clarke v. Edgar, 1810, Hume, 175 ; 
 Smith's Trs. v. Grant, 27 June 1862, 24 
 D. 1142. 
 
 (c) Scott v. Allnatt, 10 Sept. 1831, 5 
 W. & S. 416. 
 
 (d) Story, 6th ed. § 491 (b), and case of 
 Parsons, there cited ; 3Iarchioness of Hast- 
 ings v. Marquis of Hastings' 1 Exrs., 14 D. 
 489, per Lord Justice-Clerk Hope. This 
 point must be held to be ruled by the 
 strictly analogous case of curators and 
 guardians appointed by the respective 
 courts of the situs of the property for 
 its administration. In such cases the 
 application of the funds falls to be made 
 by the guardian of the ward's domicile, 
 who has the control of his person ; and 
 the Court of Session, when exercising 
 the functions of the court of the situs of 
 the, estate, is in use to authorise the 
 payment of the necessary funds to the 
 guardian of the ward's domicile or resi- 
 dence ; Murray v. Baillie, 24 Feb. 1849, 
 
 11 D. 710; Allen v. Robertson, 24 Nov. 
 1855, 18 D. 97. In special cases the 
 authority of the Court of the domicile is 
 required ; Laing v. Robertson, 21 June 
 1859, 21 D. 1011. The practice of the 
 Court of Chancery is similar in relation 
 to funds under its control, and falling to 
 be applied in Scotland by a curator or 
 judicial factor ; Mathieson, petr., 26 June 
 1857, 19 D. 917 ; Re Johnston, 4 Hagg. 
 182. 
 
 (e) Brown's Trs. v. Brown, 8 March 
 1830, 4 W. & S. 28 ; Crispin v. Doglioni, 
 3 Sw. & Tr. 96; and see Williams on 
 Exrs., 6th ed. p. 357. In the case of the 
 M. of Breadalbane v. M. of Chandos, 7 L. J. 
 Ch. 28 (also in 2 S. & M'L. 402), an 
 attempt was made to restrain the execu- 
 tion of a decree of the Court of Session, 
 finding a claimant entitled to legitim (see 
 the case in 2 S. & M'L. 377), and to 
 obtain a re-hearing in the Court of Chan- 
 cery upon different grounds. Lord Cot- 
 tenham dissolved the injunction which 
 had been granted by the Vice-Chancellor, 
 as being contrary to international law.
 
 WILLS AND SUCCESSION. 47 
 
 88. Executors or trustees who are responsible to the Court of chapter n. 
 Session ought to be cautious about investing in foreign securities, _, 
 
 o .... Danger ot ln- 
 
 as they may render themselves personally responsible if the juris- vesting in 
 diction of that Court over that fund is ousted by the interference of rities. 
 the court of the situs. The fact of the assets having been reco- 
 vered in a foreign country will not release the executor who has 
 recovered them from his obligation to account to the court of the 
 domicile; for, as we have already seen, it is his duty to transmit 
 the funds without delay to the domicile, as the principal forum of 
 distribution, and not to allow the administration of the estate to be 
 subjected to a divided responsibility^/) As the completion of 
 a title of administration to special subjects is regulated by the lex 
 'tee, that law also will determine the measure of responsi- 
 bility for vicious intromission without a title.(g) 
 
 89. As to the diligence prestable by trustees and executors, the Rules in relation 
 rules of diligence of most civilised countries are substantially iden- p°restai>ie. ce 
 tical, being founded on the Civil Law ; and it is scarcely possible 
 
 that a case can arise in which a court of competent jurisdiction 
 would be controlled by foreign law in the enforcement of respon- 
 sibility as for a due administration. Nevertheless, in such cases 
 the Court of Session is so far guided by considerations of ex- 
 pediency or competency, that it will not allow an action to pro- 
 against a cautioner in Scotland until the question of his 
 liability has been investigated by the jurisdiction to which the 
 cautioner gave his security, (h) Trustees of heritable estate in 
 Scotland are not only subjed to the jurisdiction of the Court of 
 Session ratione rei sitce, but their responsibility is determinable 
 by thai court according to the law of the situs, and without refer- 
 ence to that of the domicile.^ i) 
 
 90. {'•'>) On the subject of the order of liability of estates situ- Order of liability 
 v . ii-i p of ,lir ,v:i1 :, " (1 
 
 ated in differenl countries for debts and legacies, we beg to rcler to pei 
 
 the subsequenl chapter on this subject, where the cases involving 
 international relations of Law are separately considered. (k) Eefer- 
 - to the foreign authorities will be found in the works of 
 Burge and Story. (Z) 
 
 <f\ Court v. Oeddes, 29 3 I derson v. Borthwick, 80 Jun< 
 
 1-:.- 20 l>. 1174; Fergu on \. ■ Bh. 879, N. E. 816. 
 21 M 2; Simpson v. Blackett \. Gilchrist, HO M I 
 
 D | | ; ;-.,.-, it D. 816. 10 Sh. 690; and see Bain v. Shand, 8 
 
 / ifidd, lit May June is:::;, 11 Sh. 688 ; 81 Jan. L889, 
 
 '.. E. in I : I d /' all 1 D. J89. 
 v. Fandosme, L619, M. 1449. lapter 72, infra. 
 
 (A) /. S iy, 17 Jan. 1811, F.I I I 
 
 Story, Confl., .
 
 4S INTERNATIONAL LAW IN RELATION TO 
 
 chapter ir. 
 
 SECTION VI. 
 
 REVENUE LAWS. 
 Distinction as to 91. "With respect to the law which ought to regulate the pay- 
 t!!rv-!Iutv 'in'a" 1 " mcnr oi duties to Government on testaments and successions, the 
 legacy-duty. Legislature of Great Britain imposes duties on probate or adminis- 
 tration (in which category inventory-duty is included), and duties 
 on legacies or shares of succession. The former are payable accord- 
 ing to the lex loci of the assets at the death of the testator or intes- 
 tate. The latter are payable according to the law of the domicile, 
 and into the exchequer of the country where the deceased person 
 was domiciled, wherever the legatees or successors reside. This 
 point, so far as relating to legacy-duty, is ruled by the decision of 
 the House of Lords in the case of Thomson v. The Advocate- Gene- 
 ral, (in) 
 incidence of the 92. After some conflicting decisions, it is now settled by a recent 
 judgment of the Court of Appeal in Chancery that succession-duty, 
 under the Act of the present reign, is not payable on legacies of 
 money or personal estate given by the will of a person domiciled in 
 a foreign country, (ri) Such duty is payable on all real estate within 
 the kingdom, without respect to the domicile of the deceased pro- 
 prietor, (o) 
 
 SECTION VII. 
 
 JURISDICTION. 
 
 Grounds of juris- 93. In the determination of craestions of succession the Court of 
 Session exercises jurisdiction either in rem or in personam. If the 
 subject of the succession be heritable estate in Scotland, that will 
 of itself give the Courts of Scotland jurisdiction in rem ; and even 
 with respect to moveable estate it would seem that the confirmation 
 of executors in Scotland, to estate situated there, is a sufficient foun- 
 dation for the exercise of jurisdiction in rem against the executors, 
 notwithstanding their absence from the territory at the institution 
 of the action, (p) 
 
 (>n) Thomson v. the Adv.-Gen. 18 Feb. (o) Ibid. 
 
 1845, 4 Bell, 1, reversing 3 D. 1309; and (p) Ferguson v. Douglas, Heron, $ Co. 3 
 
 see the Separate Reports of Exchequer Pit. 503, 510; M'Morinev. Cowie, 16 Jan. 
 
 Cases in Scotland; also Comrs. of Inland 1845, 7 D. 270; Mags, of Wick v Forbes, 
 
 Revenue v. Gordon's Exrs. 2 Feb. 1850, 12 11 Dec. 1849, 12 D. 299. But it would 
 
 D. 657; Adv.-Gen. v. Lamont, 29 May 1857, seem that the mere appointment of an exe- 
 
 19 D. 779. The older authorities are dis- cutor-dative by a Commissary Court of 
 
 cussed in a note to the 3d ed. of Jarman Scotland is not sufficient per se to render 
 
 on Wills, p. 2. the executor amenable to the jurisdiction 
 
 (?i) Wallace v. Att.-Gen.; Jeves v. Shad- of the Scotch Courts; Eobson v. Walsham, 
 
 well, 1 Law Rep. Ch. Ap. 1. 5 Nov. 1867.
 
 WILLS AND SUCCESSION. 49 
 
 94. The Court of Session lias jurisdiction in personam for the chapter n. 
 enforcement of the administration of the estates of persons deceased T , . 
 
 . — In relation to 
 
 where the trustee is within the territory, and an action is brought personal pro- 
 against him at the instance of some party having an interest.(g) pe 7 " 
 The Court of Session has also the right of enforcing the adminis- j^^'ofi^* 
 tration of trusts and obligations relating to foreign lands, where 
 the trustee, by residence or otherwise, is subject to its personal 
 jurisdiction, (r) The jurisdiction of the Court of Session over the Jurisdiction by 
 person of a trustee, executor, or residuary legatee, resident in Scot- dlncTwithm the 
 land, is analogous, in its origin and in its effects, to that which is terntor J"- 
 exercised over any ordinary debtor, (s) A foreigner cited in an ac- 
 tion of transference as the representative of a deceased defender, is 
 not, merely on that ground, subject to its jurisdiction. (t) 
 
 95. The jurisdiction of the Court in personam may be put in Limits of the 
 motion either in relation to the distribution of the succession, thTTOurt°against 
 whether as intestate or in terms of a will or testamentary settle- executor? 11 ° fthe 
 ment,(?^) or for the purpose of enforcing the performance of the 
 
 duties of the trustee or executor by action of accounting, or 
 action of damages for breach of trust. (x) With regard to proper 
 distribution suits, it may, however, be assumed that the Court would 
 not be inclined to exercise jurisdiction unless either the estate was 
 within the territory, or that judgment was desired with a view to 
 its being acted on by the Court in whose territory the succession 
 was 1" be administered. Nor will the Court allow an action to pro- 
 r< ed against trustees or executors in respect of the presence of one 
 of their number within the territory, where the other executors de- 
 cline to appear, and it is shown that they are amenable as a body to 
 the Courts of a foreign country from which their authority is de- 
 rive 'I.(.v) 
 
 96. The liability of the trustee or executor to be called to ac- Paramount an- 
 
 count in the forum of administration (that is, the court of the domi- forranof admi- 
 nistration. 
 
 (r/) Robertson v. Landell, 2 Dec. 1843, 6 (>/) In actions for the distribution of per- 
 
 D. 170; Cruicktihrtnk v. Cruickshank's Trs., sonal estate within the territory of the 
 
 2 1 I b. 1843, 5 D. 733. Court, the process of multiplepoinding su- 
 
 (r) Oruiekshank v. Cruickshank' s Trs., persedes the necessity of arrestment juris- 
 
 tupra ; Ferguson v. Marjoribanks, 1 April dictionis fundandce causa with reference to 
 
 16 I >. 687; Thomson's Trs. v. Alex- foreign defenders; Miller v. Ure, 23 June 
 
 andsr, 18 D c. L851 11 D. 217; Macalister's 1838, 16 Sh. 1204. 
 
 A'/r.'. v. Kacalistei Trs., 18 Dec. 1834, 13 (x) See the cases cited infra, ? 96, 97. 
 
 Bh. 171. (,V) ( '' ,// "" # ' '"■ v - Dttnlop, 27 Feb. 1864, 
 
 (#) Bot v.Anderson, 11 Nov. 1867,20 2 Macph. 776. We have already seen thai 
 
 D. 11; Ferriei. Woodward, 80 Jnn< 1881, the decision of the Couri of the domicile, 
 
 '.) Sh. 864. Bee Robertson v. Sfacvean, 18 when pronounced, is conclusive between 
 
 Feb. 1817, F.O. note. the parties, and binding upon all other 
 
 (i) M'Lachlanv. Iio/>. 14 Mny 1831. u Courts who may require totaki cognisance 
 
 Sh. . r .HH. ,,f ihr- question (supra \ 86). 
 
 VOL I. ,,
 
 ~> {] INTERNATIONAL LAW IN RELATION TO 
 
 ohaptkb n. t-ilo or of the res sitae, according to the nature of the case), is a good 
 
 reason for inferring that he should not be held liable to an action of 
 
 denuding, <»r be compelled to part with the custody of the estate by 
 
 the courts of a different jurisdiction. Accordingly, in the leading 
 
 case of Preston v. Preston's Trs.,(z) where one of the beneficiaries of 
 
 a Scotch settlement had taken out administration in England, and 
 
 was afterwards sued by the trustees in the Court of Session, who 
 
 demanded thai the English estate should be transferred, to be by 
 
 them applied in fulfilment of the purposes of the settlement, the 
 
 House of Lords directed that the action should be dismissed. 
 
 Jurisdiction of 97. But while it may be assumed that the legal administrator 
 
 miMNtnlt'i. miiot" cannot be deprived of the interim management and control of the 
 
 privative. estate by the courts of a jurisdiction other than that from which 
 
 his appointment emanates, it does not follow that he may not be 
 
 required to account for his intromissions or convened in an action 
 
 of denuding before any court to whose jurisdiction he may on other 
 
 Young v. grounds be subject. The case of Young v. Ramageia) has been cited 
 
 Ramage. . . . . . . . 
 
 as an authority for the proposition that foreign executors cannot be 
 subjected to the jurisdiction of the Courts of Scotland by the use of 
 arrestment jurisdictionis fundandce causa. But the case is really 
 not one of forum competens, but of administrative law. It appears 
 from Lord Corehouse's opinion, that the jurisdiction was sustained ; 
 for a remit was made, under which an opinion was obtained as to 
 the duties of executors under the law of Guernsey ; and on its being 
 ascertained that, by the law of that island (which on this point is in 
 accordance with the principles of our jurisprudence), the executor 
 was not bound to distribute the estate until a reasonable time had 
 been allowed for ingathering and realising the assets, the judgment 
 of the Court was pronounced, not dismissing the action on the 
 ground of defect of jurisdiction, but preferring the executors to the 
 arrested fund on the ground that they were entitled to proceed with 
 the realisation of the estate without interruption. In various cases, 
 both prior and subsequent, arrestment has been sustained as a 
 ground of jurisdiction in actions against executors, (b) 
 Plea of fomm 98. In those cases in which the jurisdiction has been expressly 
 
 noncompete™, declined, it will be* found that the ratio decidendi is either that the 
 
 (2) Preston v. Preston's Trs., 29 Mar. 1841, (a) Young v. Ramage, 16 Feb. 1838, 16 
 
 2 Rob. 88. The rule was thus stated by Lord Sh. 572. 
 
 Cottenham: — "The domicile of a deceased (b) M'Morine v. Coivie, 16 Jan. 1845, 7 
 
 party regulates the right of succession to D. 270 ; Campbell v. Sucker, 2 Mar. 1809, 
 
 his moveable property, but the administra- Hume, 258; Sigby v. Fletcher, 18 Jan. 1833, 
 
 tion must be in the country in which pos- 11 Sh. 256; Sunken v. Stewart, 29 Feb. 
 
 session of his property is taken under law- 1840, 2 D. 717; Innerurity v. Gilmore, 7 
 
 ful authority ;" and see Enohin V. Wylie. 31 Mar. 1840. 2 D. 813. 
 L. J. Ch. 402.
 
 WILLS AND SUCCESSION. 51 
 
 action was premature, (c) or that proceedings were already pending c-hapteb h. 
 in the forum of administration, which was accordingly deferred to as 
 being a more convenient forum for adjudicating upon the rights of 
 the claimants. (d) Such cases are by no means inconsistent with 
 the maintenance of the rule that the Court has a universal equit- 
 able jurisdiction in personam as well as in rem— that is, wherever 
 the administrator or the estate administered to is brought within 
 the sphere of its action upon any of the received grounds of juris- 
 diction.^) 
 
 99. Where the representatives of a defunct arc resident in aC^ment^ 
 different country from that in which the estate (if heritable) is courts of differ - 
 Bituated, or in which (if moveable) it falls to be administered in ei 
 
 virtue of the lex domicilii, jurisdiction maybe lawfully exercised 
 by the courts of either country. There will be jurisdiction in per- 
 sonam in the forum of the trustees' residence, and jurisdiction in 
 rem in the country where the estate is actually or constructively 
 situated. 
 
 100. To obviate the inconveniences which must result from a Whether P rr- 
 divided administration, the courts of either country(/) are under- ^" v 'in 
 stood to have the right to restrain the parties from taking proceed- 3SJJJSS 
 
 - in the other ; and the principle which has guided the Court of tion. 
 Session in the exercise of that right has been, to give effect to the 
 jurisdiction of that court in which proceedings were first instituted. 
 In Young v. Barclay,(g) an action of declarator was raised in the 
 Court of Session, on the allegation that the deceased had died 
 domiciled in Upper Canada, and had left heritable and moveable 
 property, " situated partly in Upper Canada, and partly elsewhere, 
 particularly in Scotland ;" and, pending that action, the pursuers 
 took proceedings in the curt- of Canada for the recovery of the 
 property situated there. A note of suspension was presented by 
 the defenders, praying for interdicl against the pursuers uplifting 
 
 (r } Catron Co. v. Stainton, '-'7 Jan. 1867, Cruickshank's Trs. 24 Feb. 1843. 5 D. 7:'.::. 
 
 is ]i. 818; / eand Fbun^case, affd. on another point, 4 Bell, 179; Magt. 
 
 tupra. of Wick v. Forbet, 11 Dec. 1 849, 1 2 1 >. 299 ; 
 
 (-/) Wibnot v. Wibnot, 6 Mar. 1841,3 Kirkpatricl 7. Irvine, 28 June 1888, 16 Sh. 
 
 I>. 816; Tulloeh 7. Williams, 6 Mar. L846, 1200; Forbet v. Forbes, 14 Feb. 1862, 1 I 
 
 8D.667; Hawkins v. Wedderburn, 9 Mar. D. : 
 
 IS 12, 1 D. 924 : Fordya \. Bridges, '1 June (/) See Carron Co. v. Maclaren, 24 L. .'. 
 
 L842,4D.1884; rv.Dick- Ch. 620, where tin E. of L. {diss. Lord St. 
 
 i ; , 384, l- Bh. 781. I irds) recalled an injunction againai 
 
 i/ Tarn h Lady Saltom • ind as being unneces- 
 
 BlaekeU ■ 29 Bary. 
 
 10 Sh. 690 ; Peters v. Martin, 21 [g) Young v. Barclay, 27 Maj 1846,8 
 
 June 1826, 4 Sh. 107; Vunro v. Qrahame, D. 774. A Jf'Oub- 
 
 a, .; L D. 1161; Cruickshank v. bin I • BD 22 D. 164 
 
 D 2
 
 52 
 
 INTERNATIONAL LAW IN RELATION TO 
 
 .HAPTKK II. 
 
 Datoson'8 7V.- 
 v. .1/(1.7! .(/(. 
 
 Effect due to 
 priority in the 
 institution of 
 process. 
 
 or receiving the Canadian property, or " moving or proceeding fur- 
 ther in an action, suit, or proceeding commenced in the Probate 
 Court at Toronto." The Court unanimously granted the interdict. 
 
 101. In Dawson's Trs. v. Maclean, (h) where interdict was 
 sought l>y the raisers of a multiplepoinding for the purpose of pro- 
 hibiting certain claimants from prosecuting a suit in Chancery in 
 relation to the same succession, the application was refused mainly 
 on the ground of the priority of the English action, coupled with 
 the fact that the respondents were resident outwith the jurisdiction 
 of the Court of Session. Lord President M'Neill(*) observed : " I 
 do not think that the mere fact of parties being furth of the country 
 is sufficient in all cases to exclude the jurisdiction of the Court. 
 The parties are he^e in proceedings dealing with the subject-matter ; 
 and if it appears, in the course of these proceedings, that, to do 
 justice to the parties — to prevent oppression upon the parties — to 
 prevent embarrassment from the course of the proceedings, it is 
 necessary or desirable to impose a restraint upon them as to follow- 
 ing out other proceedings elsewhere, which might either defeat or 
 embarrass what is going on here, I think that the parties being 
 themselves here in such suits, maintaining their interests and per- 
 severing in these suits, are subject to the control of the Court in 
 reference to proceedings which they may be carrying on elsewhere, 
 of the kind that I have alluded to." 
 
 102. Where the jurisdiction of both Courts is clear, the right of 
 proceeding in either will fall to be determined according to the 
 priority in the institution of the respective actions. Accordingly, 
 in the case of Mein v. Turner, the Court declined to pronounce in 
 favour of the right of a trustee in a sequestration, in respect that 
 there was already an undischarged adjudication in bankruptcy in 
 force against the bankrupt in England. (&) If, on the other hand, 
 it is clear that the foreign Court has not jurisdiction, the Court of 
 Session will, irrespective of any question of priority, restrain the 
 parties from resorting to it. On this principle, an interdict was 
 granted by the First Division of the Court against removing the 
 title-deeds of a Scotch heritable estate, which the trustees, by an 
 order of the Master of the Eolls, had been required to deposit in 
 the Record Office of the Court of Chancery. (I) 
 
 (h) Dawson's Trs. v. Maclean, 4 Feb. 
 1860, 22 D. 685. And see Carron Co. v. 
 Stainton, 27 Jan. 1857, 19 D. 318 ; British 
 Linen Co. v. Breadalbanes Trs., 24 Dec. 
 1836, 15 Sh. 356. 
 
 (») Lord Colonsay. 22 D. 691. 
 
 (k) Mein v. Turner, 15 Feb. 1855, 17 D. 
 435. See Rattray v. White, 8 Mar. 1842, 
 4 D. 880. 
 
 (I) Maclachlan v. Meiklam, 9 July 1857, 
 19 D. 960.
 
 WILLS AND SUCCESSION. 53 
 
 CHAFTE1". II. 
 
 SECTION VIII. 
 ASCERTAINMENT OF FOREIGN LAW. 
 
 103. The law of foreign countries is regarded as matter of Foreign law re- 
 fact for the purposes of judicial inquiry. It may either be proved of a fact. aS ' 
 
 by the evidence of skilled witnesses adduced by the parties respec- 
 tively interested in proving it,(m) or the Court may refer the ques- 
 tion of foreign law to a neutral person or persons, usually advocates 
 of the bar of the foreign country, for their opinion on a joint case. 
 The latter course is the one usually followed in Scotland.(w) 
 Opinions of foreign counsel are generally accepted as conclusive on 
 the questions submitted to thcm,(o) but in cases of difficulty, or 
 where there is a difference of opinion, the case may be sent back 
 to be reconsidered, or an additional opinion may be taken, (p) 
 The Court is not necessarily bound by the decision of the Court of 
 the country the law of which is in question, unless in circumstances 
 raising the plea of res judicata, (q) 
 
 104. The chief difficulty in relation to the ascertainment of Functions of the 
 foreign law, is in distinguishing the functions of the law adminis- f ™ n jgn taws'* 1 
 tered by the Court and that of the foreign law, in the construction distinguished, 
 of wills and deeds. And first, it may be safely asserted that the 
 
 ( !ourt has never in any case gone so far as to put a will into the 
 hands of a foreign counsel and ask him to construe its provisions. 
 In effect, however, this may have been done by setting forth in 
 the case the terms of the clause on which the question arose and 
 requiring a general opinion with reference to that clause. Tin's 
 practice, however, is erroneous, and in the more recent cases the 
 practice] to pu1 specific questions, reserving to the Court 
 
 the genera] construction of the will with reference to the opinion 
 obtained in answer to those questions. (r) 
 
 (m) In cases sent to trial by jury, foreign "> W. & S. 407; Thomson's Trs. v. Alex- 
 hex fulls to be proved by v.;- the under, 18 Dec. 1851, 14 D. 217. 
 trial; Maberly $ Co., ''• July 1834, 12 Bh. (o) Lord Cranstoun v. Cunningham, 16 
 902. Bui ee Rutherford v. Carruthers, 2A Feb. 1839, 1 D. 621 ; Welsh v. Milne, 12 
 ID. 111. Dec. 1844, 7 D. 213. 
 I facolony Kerry. Fyffe,4. June 1840, 2D. 1001, 
 which the E m, it Baird v. Mitchell, 11 July 1854, 16 
 is usual i" take the opinion of Engli b D. 1088; A'-"- v. Anderson, 11 Nov. L867, 
 1 <.f tin- rank of Crown Counsel or 20 I). 11; Robertson v. Landell, 'J, Dec. 
 Privy I incil in 1^ 18, 6 1>. 170. 
 colonial appeals ; See I < don, (r) See Bo< v. Anderson, 8 Mar. 1862, 
 16 No.-, l-ll. P.C.; Macalt I . -.-. '_'! D. 7:::.'; Campbell's Exrs. v. Clinton's 
 
 Maealister's Trs., 18 Dec. 1884, 18 Sh. Trs., 22 Ji [866, 4 Macph. 868 ; Enohin 
 
 171 ; Troth r v. Trotter, "» SI,. 7*. N.E. 7i' ; v. Wylie, 10 II. I.. Ca. 1 ; 81 LJ. Ch, 402
 
 54 INTERNATIONAL LAW IN RELATION TO 
 
 chaptek ii. 105. The duty of a Court of construction in relation to the inter- 
 
 pretation of foreign instruments was thus expounded by the House 
 Duehessdi Sora >■ . ° . , r n .. J 
 
 v. PfttBtps. of Lords, in a case which may now be regarded as the leading 
 
 authority on the subject: "Where a written contract is made in 
 a foreign country and in a foreign language, the Court, in order 
 to interpret it, must first obtain a translation of the instrument ; 
 secondly, an explanation of the terms of art used in it (if it contains 
 any) ; thirdly, evidence of any foreign law applicable to the case ; 
 and fourthly, evidence of any peculiar rules of construction (if any 
 such rules exist) of the foreign law. With this assistance the 
 Court must interpret the contract itself on ordinary principles of 
 construction." (s) 
 House of Lords, 106. Although the judges of our Court must give effect to the 
 s" I' !',i' -ud™e statements of foreign law laid before them in evidence, yet, where 
 of questions of the evidence relates to the law of England or Ireland, it maybe 
 rejected by the House of Lords, who, as the Supreme Court of 
 Appeal for the United Kingdom, are entitled to form an indepen- 
 dent opinion on any question of British law coming before them, 
 without reference to the jurisdiction of the Court in which the 
 case originated, (f) 
 Duty of court 107. Iii certain cases the duty of examining the foreign law 
 
 1 7?ne- m it g proper sources may even devolve upon the Court of first in- 
 concaeabiediffe- stance, as in the case of an irreconcileable difference of opinion 
 
 rence of opinion ' •i-iir • t 
 
 among wit- among the counsel whose evidence is laid before it. In such cases 
 the Court will consider the reasons assigned for the different opi- 
 nions, and examine the authorities cited in support of them. This 
 process, though it may be called a balancing of evidence, is practi- 
 cally not very different from the formation of an independent opi- 
 nion after hearing the arguments of counsel. The most instruc- 
 tive example is Lord Stowelfs celebrated judgment in Dalrymple 
 v. Dalrymple. (u) In other cases the Court maybe satisfied upon 
 the evidence that there are no peculiar rules of construction, and 
 no rules of foreign law applicable to the construction of the instru- 
 ment, in which case the Court may proceed to construe it without 
 
 (*) Duchess di Sora v. Phillips, 10 H. L. ton v. Livingstone, 15 July 1859, 3 Macq. 
 
 Ca. 624 ; 33 L. J. Cli. 129. The passage 497. It is doubtful whether this rule ap- 
 
 quoted is from Lord Cranworth's opinion, plies where the opinion on which the 
 
 10 H. L. Ca. 633, but the most complete Scotch Court proceeds relates to a point 
 
 exposition of the law of the subject will of English Ecclesiastical or Maritime Law, 
 
 be found in Lord Chelmsford's opinion, where the appeal is not to the House of 
 
 pp. 636-642. Lords but to the Privy Council; Geils v. 
 
 (t) Stein's Assignee v. Brown, 23 Feb. Geils, 1 Macq. 257, note. 
 
 1831, 5 W. and S. 47 ; Macpherson v. Mac- (n) Dalrymple v. Dalrymple, 2 Hag. Con. 
 
 pherson, 11 June 1852, 1 Macq. 243; Fen- Rep. 54. 
 
 nesses.
 
 WILLS AND SUCCESSION. 55 
 
 extraneous assistance. Thus, where the opinion of counsel upon chapter u. 
 a case stated by the Court was to the effect that "the import or 
 construction of the Avill is not purely or exclusively a question of 
 English law, — that it does not depend on any technical rule of Eng- 
 lish practice, — but that it is a question on which the judge of any 
 Court conversant with the language in which the will is written is 
 entitled and bound to give his judgment according to his understand- 
 ing and the plain interpretation of the words used," the Court, by 
 a majority of the whole judges, adopted the opinion in so far only 
 as it affirmed the validity of the will, and rejected the opinion as 
 regarded the construction put upon its provisions. (?/) 
 
 108. The determination of matters of foreign law has been put Law Ascertain- 
 
 ° . merit Act. 
 
 upon a new footing by two Acts of the present reign. (2) The ear- 
 lier statute provides for the ascertainment of the law of one part of 
 her Majesty's dominions when pleaded in another part by laying a 
 - before the Superior Court of the country the law of which is to 
 be ascertained, — the opinion so obtained being subject to review by 
 the House of Lords or Privy Council on appeal. By the more re- 
 cent statute similar relations are established between the Superior 
 Courts of her Majesty's dominions and those of "any foreign coun- 
 try or state, with the government of which her Majesty may be 
 pleased to enter into a convention" for that purpose. 
 
 (y) Thomson's Trs.v. Alexander, 18 Dec. ment Statutes several cases have been sent 
 
 1851, 14 D. 217; see also Trotter v. Trot- by the Court of Chancery for the opinion 
 
 ters, 10 June 1829, 3 W. & S. 407, affg. of the Court of Session. See, for example, 
 
 5 Sh. 78 ; Cranstoun v. Cunninghame, 1G Baroness dc Blonay v. Oswald's Representa- 
 
 Feb. 1839, 1 D. G21 ; Gowan v. Bradh;/. ///>•*, 17 July 1863, 1 Macpli. 1147; 1.,,,-d 
 
 . L845, 7 D.433. v. Cohin, 15 July 1865, 3 Macph. 1083; 
 
 (2) 22 and 23 Vict. cap. 63 ; 24 and 25 Mitchell v. Mitchell, 17 Mar. 1865, 3 
 
 Vict. cap. 11. D L A :ertain- Macph. 721.
 
 56 OPENING OF THE SUCCESSION BY SURVIVANCE. 
 
 CHATTER III. 
 
 PAKT II. 
 INTESTATE SUCCESSION, 
 
 CHAPTER III. 
 OPENING OF THE SUCCESSION BY SURVIVANCE. 
 
 Succession opens 109. To the acquisition of a vested interest in succession of 
 any description it is essential that the heir shall have survived the 
 person whose succession is claimed, (a) And where a right con- 
 stituted by deed vests in the grantee at a period which may happen 
 in the grantor's lifetime, as in the case of certain marriage-contract 
 provisions, it is not to be regarded as a succession, but as a trust 
 inter vivos.(b) 
 
 Character of 110. The persons who, on the opening of a succession by death, 
 
 heir fixed at an- . , , , , ,. -, . , -, ■, • , • 
 
 cestor's death, have the character of heirs-at-law, acquire by survivance certain 
 rights in relation to the succession of the deceased, and also the 
 right of taking in that character any estate which may be destined 
 designatively to the " heirs" of the deceased. In order to the ac- 
 quisition of a vested interest in estate given to the heirs of another 
 designatively, it is necessary that the heir should survive both the 
 ancestor to whom he claims to be heir, and also the maker of the 
 settlement under which he is called to the succession. Under such 
 a destination those alone are entitled to take who were heirs of the 
 
 (a) The case of the devolution of a succes- in form, the succession of the entailer as 
 
 sion, in consequence of the contravention long as it is subject to the destination and 
 
 of the prohibitions of an entail during the bound by the conditions which he has irn- 
 
 lifetime of the contravener, is scarcely an pressed upon it. 
 
 exception. The estate is in reality, if not (b) Infra, chapter 28.
 
 OPENING OF THE SUCCESSION BY SURVIVANCE. 57 
 
 party named at the opening of Ms succession and their represen- chapter m. 
 tatives.(c) 
 
 111. Subject to the exception created by Statute in the case of Questions of sur- 
 persons convicted of treason, (d) it may be asserted that the open- hlg^nVesump- 
 ing of a succession takes place universally at the moment of death, timoffife. 
 This, however, does not imply that the succession immediately 
 vests either in right or possession, but only that it may do so.(e) 
 The survivance of the persons claiming the character of heirs is al- 
 ways a point of the first importance in questions of succession. The 
 question of survivance presents itself in two forms : First, Whether 
 the person whose succession is claimed be actually dead? and 
 secondly, Of two persons actually deceased, which is to be held to 
 have survived the other ? The first of these questions is one into 
 which the presumption in favour of life largely enters ; the second 
 is purely a question of fact. 
 
 112. I. Questions as to the Death of the Ancestok. — Where How presump- 
 
 , , -. . i P tion overcome. 
 
 the person whose succession is claimed was a sealarmg man, or inferences from 
 
 engaged in military service, or was otherwise exposed to unusual ^ c e c c l Sd° U ° f 
 
 hazard — as by residing in an unhealthy locality, or in a remote or 
 
 unprotected settlement — the presumption of life will be more easily 
 
 overcome. Thus the claims of the heirs were held to be established 
 
 in a case where the party alleged to be dead was bred a sailor, and 
 
 had emigrated to British North America in 1803, and had not been 
 
 heard of between 1804 and 1841, when the action was raised ;(/) 
 
 and in another case where two parties, to whom annuities were due, 
 
 had gone abroad, the one as a sailor, the other as a private soldier, 
 
 and nothing had been heard of either for thirty-two years ;{g) and 
 
 again, in a case where the individual had been hired for service to 
 
 the East India Company's settlements in Bengal, and had not been 
 
 heard of for seventeen years, and was commonly reported to be 
 
 dead. (A) But the presumption of life was not held to be overcome 
 
 (c) Ma/Hill v. II ////>, 2"> May IX'M, 1"> in the sli:i !>«• of a resulting or lapsed into- 
 
 Sh. 1005; Pearson v. Corrie, 28 June 1825, rest, long after the death of the partywl 
 
 4 Sh. 119, X. E. 120; dicta in Lord v. heirs are entitled I" inherit. It will bo 
 
 i. 7 Dec. I860, 23 1). Ill; 15 July i renient to postpone the consideration of 
 
 1865,8 M . 1088, the vesting of this class of rights to a sub- 
 
 (<l) Bythi 7 Anne, cap. 21, the sequent chapter, in which die subject of 
 
 penalty of corruption of blood is attached Lapsed interests is treated in its entirety 
 
 aviction of treason; the effect of which (chapter 48). 
 is, that the attainted person cannot succeed (/) Garland v. Stewart, 12 Nov. 1841, 
 
 as heir to any one. and that neither his 4 D. L. 
 
 rity nor collateral kindred can inherit [g) Stirling v. Mackenzie, 11 Mar. 1847, 
 
 anything of or through him. Seel Hume 9 l>. 928. Bob bIbo French v. E. ofWemytt, 
 
 . B( U'i i d., 549. 1877, M. 12,644, a similar case. 
 
 (r) in ii ■ heritable b well a Hoggy. Hume, 1706, M. 12,645. And 
 
 ion may accrue see Sand* v. Her Tenante, 1678, M. 12,645,
 
 5S 
 
 OPENING OF THE SUCCESSION BY SURVIVANCE. 
 
 CHU'TRH III. 
 
 ( lase of passen- 
 g rs b'j ship 
 which is lost 
 
 at sea. 
 
 Presumption 
 may l«> over- 
 come by mere 
 
 elapse of time. 
 
 by evidence that the individual had gone out as a sailor to Tobago, 
 at the age of thirty, and had not been heard of for twenty years. (i) 
 According to the later decisions, it would appear that greater weight 
 is attached to the presumption of life now than formerly, and that 
 some positive evidence or counter presumption is requisite to over- 
 come it. 
 
 113. Whore the party whose survivance is in question is proved 
 to have sailed with a ship which never arrived at its destination or 
 was afterwards heard of, the presumption of life is overcome. (k) In 
 one of the cases, a suspension at the instance of a purchaser from 
 the heir, the latter, at the suggestion of the Court, agreed to find 
 security to repay, the bond of caution being limited to seven years. (J) 
 
 114. Mere elapse of time is not in general considered sufficient to 
 overcome the presumption of life in the case of a person who has 
 left the country. It is matter of notoriety that emigrants who form 
 new connections in their adopted domicile, frequently cease to cor- 
 respond with their friends or relatives in the mother country ; and 
 it would be unreasonable to conclude that such persons had ceased 
 to exist from the mere fact of their history being unknown to those 
 who may have no interest in tracing it. Upon this principle were 
 decided the comparatively recent cases of Fife and Barstow, where 
 the Court declined to hold that the succession had opened, although 
 the parties had been lost sight of for the respective periods of seven- 
 teen and thirteen years, with the additional element in the latter 
 case of great age.(m) But the elapse of a long interval of time with- 
 out the receipt of intelligence of the party is an important element, 
 if there be nothing in the circumstances to account for the discon- 
 tinuance of communications with his friends or family, and there 
 are cases which have been given against the presumption of life 
 upon no other ground than this, to the effect of putting the heir in 
 possession upon finding security to repay, (n) In the cases actually 
 
 where the husband of the pursuer, who was 
 in good circumstances, had joined a priva- 
 teering expedition at Jamaica, and had 
 not since been heard of. 
 
 (i) Campbell v. Lamont, 17 June 1824, 
 3 Sh. 145 (N. E. 98). See also Tait v. 
 Wood, 10 Feb. 1866, 4 Macph. 443. 
 
 (k) Erskine. v. Stephen, 1622, M. 11,656 ; 
 Forrester v. Boucher, 1670, M. 11,674 ; Lord 
 Ashburton v. Baillie, 7 Feb. 1811, F.C. 
 
 (I) Ashburton v. Baillie, supra. 
 
 \m) Fife v. Fife, 16 June 1855, 17 D. 
 951; Barstow v. Cook, 14 Mar. 1862, 24 
 D. 790. In Kenned;/ v. Maclean, 15 Feb. 
 1851, 13 D. 705, the party whose surviv- 
 
 ance was in question had been lost sight 
 of for nineteen years ; and the Court (on 
 the assumption that he was to be presumed 
 alive) sustained the title of his factor loco 
 absentis to sue a reduction of a service. See 
 also Lapsley v. Orierson, 18 Nov. 1845, 8 
 D. 34, where there was the additional ele- 
 ment of cessation of communication be- 
 tween the absent party and his wife ; ex- 
 plained by his dissatisfaction with his 
 wife's conduct before his departure, and 
 her subsequent cohabitation with another 
 man. Also Reed v. Brown, 14 Jan. 1834. 
 12 Sh. 278. 
 (n) Fcttes v. Gordon, 7 July 1N2.">. 4 Sh.
 
 OPENING OF THE SUCCESSION BY SURVIVANCE. 59 
 
 decided the age of the party has not been a very important element; chapter hi. 
 though, if the party were of great age when last heard of, the cir- 
 cumstance would he entitled to weight. (o) The rule of the law of 
 England, according to which the presumption of life is held to he 
 overcome by seven years' absence and cessation of communication, 
 is not admitted in the jurisprudence of Scotland, nor is there any 
 counter presumption corresponding to it.(/>) 
 
 115. Where elapse of time and cessation of communication are inference in 
 the chief circumstances which go to negative the presumption of probable period 
 life, no inference can be drawn from these as to the probable period of deatb ' 
 
 of cassation of life. In a case of this kind the Court held that the 
 absent party must be presumed to have survived his father, who 
 died four months after the disappearance; and the same result 
 must have followed although these events had been separated by a 
 longer interval of time. (//) In other cases it has been found pos- 
 sible to ascertain approximately the period of death, or to ascer- 
 tain that it must have happened before or after a particular event, 
 according to the nature of the question, and thus to determine the 
 conditions of the event upon which a succession or destination over 
 is dependent. The case of Fairholme v. FairJiolmes Trs., in which 
 the question was as to the survivance of Lieutenant -lames Fair- 
 holme, one of the officers of the ill-fated Arctic expedition of Sir 
 John Franklin, presents an interesting illustration. The Court found 
 thai the deceased gentleman could not have survived his uncle (who 
 died in May 1853), and decerned in favour of George Fairholme, 
 brother of James, who was the next instituted heir under the uncle's 
 will.(r) 
 
 116. In the undernoted cases the Court has admitted evidence Evidencethat 
 that the person whose survivance is in question was reputed to be If! aj." " '"" 
 
 1 t'.t. N. E. 160 (periods of absence, 34 and calculate the value of the life ouj hi to be 
 
 24 i ntioned); Hyslop proved as affording the datum poinl of its 
 
 or Gordon, L5 Juni 1830, 8 Sh. 919 (ab- probable duration. The Court could then 
 
 iix v, hat addil iona] yi ars they would allow. 
 
 \. Clark, 1628, M. 11,629 (absence, 17 according to the circumstanct lofthecase. 
 
 chambers Dirk. Kv., \ 299 (</). 
 
 \. Carrvthers, II Julj L849, 11 D. L359 (p) Fife v. Fife, 17 D. 954, per Lord 
 
 : age 63 if alive at the J .-C. Hope. As to the rule in question, see 
 
 the action); Campbell v. Campbell's 1 Phillips' Ev.lOthed., 478; Dick. Ev. § 809. 
 
 T,.. I (absence, 29 (j) Bruc ■ . Rol on, 25 F< b. 1884, 12 
 
 In all I!- Sh. 480. 
 
 the heir was required to And caution for (r) Fairholme v. Fairholme' s Trs., 18 
 
 repay) March 1868,20 D. 818. In Ommaneyv. 
 
 tair, I. 16, 17: Ei I:. I. 2, 86; Stilwell, 28 Beav. 828, Lord Romilly 
 
 • rol. i, p. 667, and cases there cited. M.I.'. held thai a sailor, who formed 
 
 Mr Dickson judi thai in of thi pedition, and who when he 
 
 depending on this : ion, the aili d wa ; ounj md d survived 
 
 number of ' tv would .Iain:.
 
 60 OPENING OF THE SUCCESSION BY SURVIVANCE. 
 
 chapter in. dead.(s) The fact that his succession has been taken up by ser- 
 vice or confirmation is an adminicle of evidence, but is not entitled 
 to much weight, except as part of the evidence of notoriety. (0 
 
 Burvivancenrast H7. H. QUESTION WHETHER ANCESTOR WAS SURVIVED BY AN 
 
 prXativJrf" alleged Heir.— Where a deceased person is alleged to have ac- 
 aiieged survivor. ^^ ccr t a j n rights by his survivance of another person, the fact 
 of survivance must be established to the satisfaction of the Court 
 as a condition of the vesting of the alleged right, Where, there- 
 fore, for want of evidence, the Court is unable to determine that 
 one of two deceased persons survived the other, the result is, that 
 the parties interested in proving his survivance {e.g., his heirs, 
 appointees, or substitutes under a destination) have failed to prove 
 their case, and their claim will fall to be dismissed. Where the 
 representatives of 'each of the deceased persons are interested in 
 establishing their ancestor's survivance of the other, and the fact 
 of survivance cannot be determined, neither party will be entitled 
 to a judgment. 
 Case of two per- H8. There is one case of indeterminate survivorship which, 
 iwLrnT from its peculiarity, has in some systems of jurisprudence been 
 calamity. jq^q the subject of presumptions of a purely arbitrary character. 
 
 We refer to the case of persons perishing by the same calamity, as 
 shipwreck, fire, or battle. It appears to us that in this case, also, 
 the representatives of the person alleged to have survived the 
 other must establish the fact of survivance by evidence. The cir- 
 cumstance that two persons met their death at the same place, 
 and nearly at the same time, may increase the difficulty of proving 
 survivance, but cannot shift the onus of proof, or make it less 
 necessary that the fact of survivance should be proved, if the 
 right asserted by the claimant is founded on survivorship, (u) 
 According to the Civil 0) and French Laws,(?/) the fact of sur- 
 vivance in this class of cases is determined upon certain arbitrary 
 presumptions, depending on the age and sex of the parties. But the 
 rules of the Civil Law are only binding in Scotland in relation to 
 new questions in so far as they are reasonable, and in this matter 
 we think the Court would probably disregard the special presump- 
 
 (.?) Sa?ids v. Her Tenants, 1678, M. N.E. 98; Bannerman v. Bannerman, 1738, 
 
 12,645; Forrester v. Boucher, 1670, M. M. 11.662; Burns v. Ogilvie, 1753, M. 
 
 11,674; Hogg v. Hume, 1706, M. 12,645; 11,667. 
 
 Lord Ashburton v. Baillie, 7 Feb. 1811, («) Dickson on Evidence, § 311; Best 
 
 F.C. ; Hyslop v. Gordon, 15 June 1830, on Presumptions, p. 201. 
 
 8 Sh. 919 ; Campbell v. Campbell's Tr., 1 . (x) Dig. lib. 34, tit. 5, 1. 9, \\ 1, 4 ; 
 
 Feb. 1834, 12 Sh. 382. id. tit,, 1. 22 ; See Mackeldey, Man. de 
 
 (t) Ashburton v. Baillie, supra; Camp- Dr. Rom., ed. 1846, p. 83. 
 bell v. Lamont. 17 June 1824, 3 Sh. 145 (,y) Code Civile, § 720.
 
 OPENING OF THE SUCCESSION BY STJRV1 VANCE. 61 
 
 tions alluded to, and adhere to the general rule, that proof of the chapter m. 
 fact of survivanee is incumbent on the party making the allegation. 
 
 119. In England the law was so fixed by the decision of the J ina ^ 
 House of Lords in Wing v. Angrave,(z) a case where a husband 
 
 and wife perished in a shipwreck, and were swept overboard by 
 the same wave. Each of the spouses had appointed the other, in 
 the event of his (or her) survivanee, to take certain shares of suc- 
 cession, of which they had respectively the power of disposal under 
 a deed of settlement. The husband's heirs claimed the estate 
 given to him by his wife's will. The wife's heirs made a similar 
 claim to the estate given by the husband to her. The judges, both 
 in the Court of Chancery and on appeal, were unanimously of 
 opinion that neither party had proved his case ; and in the result 
 the judgment of the House of Lords was to the effect, that the 
 whole succession in cmestion passed to the heirs named in a desti- 
 nation over in the deed of settlement giving the power of ap- 
 pointment. 
 
 120. In the application of the rule established by the case of Special appiica- 
 
 , . ,i tions of the rule, 
 
 Wing v. Angrave to questions of indeterminate survivanee, me that surv ivance 
 following consequences may be deduced. 1. Where two persons must be P roved - 
 stand in the relation of granter and grantee under a will or mortis 
 causa deed, and the heirs of the grantee are unable to prove that he 
 survived the granter, it will be field that the subject of the gift 
 did not vest in the grantee, but passed to the next institute, («) or 
 to the grantor's heir-at-law. 2. Where the party alleged to be the 
 survivor would have had right to a share of the intestate moveable 
 succession of the other, then, unless his survivance is proved, the 
 right will not be taken to have vested in him so as to be trans- 
 mitted to his heirs.(6) It is very doubtful whether his issue 
 would 1m ; entitled to the succession by representation ; for, under 
 the Statute, their claim only arises in case the parent has "prede- 
 
 (z) Wing v. Angrave, House of Lords, the fair inference from the evidence is 
 
 80 L. J. Ch. 66, where the previous cases thai the legatee survived the period of 
 
 are cited and commented on. See also vesting (although the date of his death 
 
 another branch of the same case, Under- is unknown), the fund will pass to his 
 
 v. Wing, 24 h. J. Ch. 298; also representatives (Hyalop or Gordon, 15 
 
 Mason v. Mn.vm, 1 M-t. 308, where an June 1830, 8 Sh. 919); or to the next 
 
 issue was directed to determine which of substitute under the destination, if there 
 
 two persons who perished in the same is an operative substitution (Campbell's 
 
 shipwreck Burvived; Taylor v. Diplock, Trt. v. Campbell, 1 Feb. 1884, -12 Sh. 882 ; 
 
 2Pbill. 261; Stamoix'a case there quoted ; Fairhobne v. Fairholme't Trs., 18 March 
 
 and - . Booth, 1 T. & 0. C.C. 117 ; 1858, 20 D. 813). 
 
 11 |„ .t.ch. \s.\. (b) Wing v. Angrave, 80 L. J. Ch. 66, 
 
 . Fette* v. Gordon, 7 July L826, i Bh. an 1 8 Clark'i H. L. Ca. 188. 
 1 19 . N. E 160. If. on the other I
 
 62 OPENING OF THE SUCCESSION BY SURVIVANCE. 
 
 chapter in. ceased" the intestate ; and in the case supposed it cannot be known 
 with certainty which of the parties predeceased the other.(c) 3. 
 Where the one party is heir-at-law of the other, the result is the 
 same as in the last case in relation to such heritages as vest with- 
 out service, except that the difficulty with regard to persons taking 
 by representation does not arise. (d) 4. Where the parties are 
 Dominated in succession as institutes or substitutes under the same 
 .Iced, and one of them was in possession at the time of his death, 
 no right vests in the other unless he is proved to have been the 
 survivor, (e) 5. Where the parties are respectively the heirs, re- 
 presentatives, or legatees of each other, and neither can be shown 
 to have survived, they are not held to have succeeded to each other, 
 and the nearest surviving heirs of either will have right to the suc- 
 cession of his ancestor. (/) 
 
 (c) See the Act 18 Vict. cap. 23, § 1. 12 Sh. 278; Chambers v. Carruthers, 14 
 
 {d) On the other hand, where a person July 1849, 11 D. 1359. In such cases it is 
 
 has heen absent from the country for sucli usual for the next heir to obtain service 
 
 a length of time as to overcome the pre- ex parte, in order to preserve his right to 
 
 sumption of life, it is often a matter of any succession which may afterwards be 
 
 uncertainty whether he was married and held to have accrued. See Campbell v. 
 
 has left heirs of his body, an element Campbell's Trs., supra. 
 
 which increases the difficulty of holding (e) See Fairholme v. Fairholmes Trs., 
 
 the estate to have vested in a collateral 20 D. 813. 
 
 heir. See Reed v. Broivn, 14 Jan. 1834, (/) Wing v. Angrave, supra.
 
 ORDER OF LEGAL SUCCESSION TO HERITABLE ESTATE. 68 
 
 CnAPTKR TV. 
 
 CHAPTEE IV. 
 
 OKDEK OF LEGAL SUCCESSION IN RELATION TO 
 HERITABLE ESTATE. 
 
 I. Succession of Ileirs-at-Law. III. Of Terce. 
 
 II. Division of Heritable Succession. I IV. Of Courtesy. 
 
 121 Destinations in settlements of heritable estate being for intestate succes- 
 
 -i • r> • c i 1 1 1 £ SIon P ro P er 'y 
 
 the most part founded on some modification ot the legal order ot antecedent to 
 succession, the study of the laws which regulate legal descent na- testate> 
 turaily takes precedence of the law of succession by destination. 
 The present chapter is confined to the subject of descent, strictly so 
 called; the vesting of the succession, and the rights and liabilities 
 of heirs, being reserved for discussion in subsequent chapters. 
 
 SECTION I. 
 OF THE SUCCESSION OF IIEIRS-AT-LAW.(a) 
 
 To the exposition of this part of the subject little more is re- 
 quisite than a distinct definition of the technical Language employed 
 in the description and classification of heirs. The rules of succes- 
 B ioB are for the mosl pari implied in the definition of the technical 
 terms, and are in themselves very simple. 
 
 122 I Definition of terms. — Heritable Succession. — The de- Explanation of 
 
 . terms used in 
 
 volution of heritable estate by death to the person or persons who definin 
 
 ordi r ot le ;al 
 
 It may 1"- remarked that the charac- the body ; Olencairn Peerage, 13 July 1 7 '. ' 7 , succession, 
 
 ter of heir-male, though not belonging to reported bj Macqueen I Ap. Ca. Ill: 
 
 the category of beirs-at-law in the strict Berries Peerage, 28 June 1858, 3 Macq. 
 
 oftheterm oral character, 588, 600. And this presumption is not 
 
 and carries with it certainli come by the circumstana that the 
 
 dependency of < tination. The famil re destined hy the ancient 
 
 mo t important of these i the right of sue- titles to hi irs female on the failure of heirs- 
 
 ceedingtop inheritable titles of male; Kennedy v. EarlofRuglen and March, 
 
 bonoor, whi ition is 26 Jan. 1762, 2 Pat. 55. Bei ■< to ervice 
 
 ribed bj the patent to ach in the g< aeraJ characti r ot fo in male, cb. 
 
 . . n . t ii.li ihi '1 '■''<'>. infra. 
 I to tin fu irs maU of
 
 G4 
 
 ORDER OF LEGAL SUCCESSION 
 
 CHArTF.Ii IV. 
 
 Terms descrip- 
 tive of heirs. 
 
 arc by law preferred to the inheritance in respect of proximity in 
 blood to the deceased, (b) 
 
 Line of Succession. — Any series or class of persons connected 
 with the defunct by descent from a common ancestor, or from the 
 defunct himself, and capable of succeeding to him, either imme- 
 diately or upon the failure of nearer heirs, (c) 
 
 Paternal Line. — Persons connected with the defunct by descent 
 from a common male ancestor, where the series of persons connect- 
 ing the defunct with the common ancestor consists wholly of males. 
 
 Maternal Line. — Persons descending from a common ancestor 
 with the defunct where the connection between the common ances- 
 tor and the defunct is not wholly by males. There is no succession 
 in the maternal line, and the term is only used in contradistinction 
 to the paternal line of succession. 
 
 Heirs. — The individual members of the various lines of legal 
 succession in the order in which they are entitled to succeed to the 
 defunct. 
 
 Ascendants. — The ancestors of the defunct in the paternal line ; 
 that is, connected with him wholly by males, (d) 
 
 Descendants. — The members of the line of legal descent flowing 
 from the defunct himself in the order of preference indicated by the 
 laws of primogeniture and preference of males. 
 
 Collaterals. — These are either collateral to the defunct himself, or 
 collateral to some ancestor in the paternal line. They are — 
 
 (1) The members of the lines of legal descent flowing from the 
 defunct's brothers and sisters german or consanguinean, in the 
 order established by the rules of collateral succession. 
 
 (2) The members of the lines of legal descent flowing from the 
 brothers and sisters german or consanguinean of any ascendant of 
 the defunct, in the order of collateral succession, (e) 
 
 Representation. — The rule of law according to which the issue 
 of any heir take rank in their order immediately after him in the 
 scheme of succession, to the exclusion of remoter heirs in the same 
 degree. (/) 
 
 123. LLeir-at-Law. — The nearest lawful heir of the defunct. 
 
 (5) Ersk. 3, 8, 2. 
 
 (c) Ersk. 3, 8, 4 ; Bell, Pr. § 1647. 
 
 (d) Ersk. 3, 8, 9. 
 
 (e) Ersk. 3, 8, 8-9 ; Bell, Pr. § 1655. 
 
 (/) The term is thus explained by an in- 
 stitutional writer, — " There is a right of re- 
 presentation peculiar to heritage, by which 
 one succeeds in heritable subjects, not from 
 any title in his own person, but in the place 
 of, and as representing some of his deceased 
 
 ascendants. . . . The word representa- 
 tion, when applied to this right, must not 
 be understood in that sense in which it 
 is commonly taken by lawyers, as if the 
 grandchild [succeeding to his grandfather] 
 were liable for the debts of his immediate 
 father, whom he represents ; he represents 
 him barely in his propinquity, and not in 
 his debts;" Ersk. 3, 8, 11.
 
 IN RELATION TO HERITABLE ESTATE. 65 
 
 Heir of Line. — The same. In the collateral line of succession, chapter iv. 
 the expression " heir of line" is used to denote the heir of the prin- ~~ 
 cipal line of succession, or heir of the heritage, in contradistinction 
 to the heir of conquest. The order of succession in conquest de- 
 viates from the principal line of succession in the branches collateral 
 to the defunct and to his father ; that is in the case of brothers 
 and sisters, uncles and aunts, and their issue. 
 
 Heirs-Portioners. — Sisters inheriting the succession pro indiviso, 
 or their issue taking by representation. 
 
 Full-Blood. — Brothers and sisters german (by the same mar- 
 riage) of the defunct ; also brothers and sisters german of any an- 
 cestor of the defunct in the paternal line, and their issue. (g) 
 
 Half-Blood Consanguinean. — Brothers and sisters consanguinean 
 of the defunct (by the same father but by a different mother) ; also 
 brothers and sisters consanguinean of any ancestor of the defunct 
 in the paternal line, and their issue, (h) 
 
 Hcdf-Blood Uterine. — Brothers and sisters uterine (by the same 
 mother only) of the defunct, or of any of his ascendants, and their 
 issue. Uterine relatives belong to the maternal line, because the 
 common ancestor from whom they derive their descent is a female. 
 I terine relatives, therefore, do not succeed to one another by the 
 law of Scut land. (?) 
 
 124. II. Lines of Succession. — Heritable succession in Scotland Heritable suc- 
 is not affected by considerations of tenure. The order of succession depend on* ' 
 is the same however the subjects may be held. The only exception, tenure " 
 
 if it may be so considered, is the rule that newly acquired property, 
 if feudalised, descends to the heir of conquest, but if otherwise, to 
 the heir of line.(fc) In former times the udal lands of Orkney and 
 Shetland were divisible in equal shares among the children or aext- 
 of-kin .f /) l>ut this custom s< ems to have gradually disappeared, and 
 tions of the intestate succession to such lands are now determined 
 in conformity with the ordinary rules of heritable succession. (///) 
 
 125. The following is a statement of the different lines of succes- Law of the 
 sion in the order oJ priority or preference. It will be seen that it se: 
 takes the form of a series, the law of which isapparenl from the firsl 
 
 four terms : — 
 
 (7/) See Erek. •"., 8, 8-9. whom the law o is (if a different 
 
 Ibid. faruil] fr the mother." Ersk. ut supra. 
 
 -: Alexander v.Clark, L696, I d, infra, § 182. 
 
 M. 1 1,878. "Tl ' bub to ■ i luthoi sit* 3 in Bel], Pr. 
 
 succession i" heritage, may be deduced \ 982. 
 
 thechoici or delect ial family Rendall v. Robertson, L5 Dec. L886, 
 
 made by the superior in his feudal grant, ISSh. 266; Beatton v. Qaudie, 2 Feb. I 
 
 which would 1"- elided if tl 10 Sh, 286. 
 [ible t" the kin m< □ of the mothi r, 
 
 VOL. I. EC
 
 66 
 
 ORDER OF LEGAL SUCCESSION 
 
 OB WTF.K IV. 
 
 From whom the 
 lini - of descent 
 
 are traced. 
 
 Descending line 
 of succession. 
 
 Law of the 
 series. 
 
 Fi rs t — Lineal descendants of the intestate. 
 
 tfecowd— Brothers and sisters of the intestate and their issue 
 (collaterals to the intestate). 
 
 Third— -The intestate's father. 
 
 Fourth — Brothers and sisters of the intestate's father (collaterals 
 to the father). 
 
 Fifth — The intestate's paternal grandfather. 
 
 Sixth Brothers and sisters of the intestate's paternal grand- 
 father (collaterals to the grandfather). And so on in 
 infinitum, (n) 
 
 126. In the civil law, in which the right of succession is found- 
 ed upon affinity reckoned by degrees, the degrees of descent are 
 reckoned from tlie common ancestor, (o) hut in the case of heritable 
 succession, in which proximity of bloody is reckoned not by degrees 
 but by lines, the collateral lines are considered as springing from 
 the first collateral of the line, who is necessarily a brother or sister 
 of one of the intestate's ancestors. This mode of considering the 
 subject of succession exhibits more clearly than the other the diver- 
 gence of the lines of the full and the half blood, and is in conformity 
 with the actual order of succession, (p) 
 
 127. III. Order of Succession in the Descending Line. — In 
 heritable succession by descent, the chief points are,— (1) the post- 
 ponement of female heirs to males of the same degree ; (2) primo- 
 geniture among male heirs, or the succession of the eldest lineal 
 representative of the intestate ; and (3) representation, by which 
 the issue of a predeceasing elder son take precedence of younger 
 sons and their issue. The operation of these rules is as follows : — 
 
 The estate descends in the first instance to the eldest son of the 
 person last seized, and failing him, to his eldest son or other issue, 
 
 (n) Stair, 3, 4, 3-7 ; Ersk. 3, 8, 5-9 ; 
 Bell, Pr. § 1657-1668. 
 
 (o) lust. 3, 6 ; Dig. 38, 10. 
 
 (p) The customary mode of tracing de- 
 scent in the collateral branches of heri- 
 table succession in Scotland, not from the 
 common ancestor hut from the highest 
 collateral, gives probability to the supposi- 
 tion that under our ancient law ascendants 
 were altogether excluded from the succes- 
 sion. As long as a feu continued in the 
 same family there could be no place for 
 the succession of ascendants, for the father 
 must have already enjoyed the estate be- 
 fore it could pass to his son. After land 
 came to be regarded as a subject of com- 
 merce, the propriety of recognising the 
 
 right of the father to succeed to the con- 
 quest of son, led to a modification of the 
 feudal rule in his favour, and ultimately 
 the right of succession was extended to 
 other ascendants in their order. Craig, 
 2, 13, 47, in a passage cited by Ersk. 3, 8, 7, 
 asserts that the first instance of a father 
 being served heir to his son occurred in 
 the sixteenth century. The Earl of Angus 
 had conveyed an estate to his son, after 
 whose death he obtained himself served 
 heir to the latter to the same estate. In 
 Stair's time, the succession of ascendants 
 was fully established, Stair, 3, 4, 35 ; and 
 seehis observations at 3,4,20,andErskine's 
 Principles 3, 8. 3.
 
 IN RELATION TO HERITABLE ESTATE. 6 
 
 male or female, in their order. Failing the eldest son and his chapter iv. 
 
 issue, the succession passes to the second son with his issue, male 
 and female, in their order; and so on, through all the sons (with 
 their issue) in their order. Failing sons and their issue, the daugh- 
 ters of the person last seized (whether by the same or different 
 marriages) inherit pro indiviso, as heirs-portioners,^) — the issue 
 of those who have died, if any, taking the mother's share. Where 
 one of the daughters has predeceased the intestate, leaving female 
 issue only, her issue inherit the mother's share pro indiviso, but 
 where a daughter dies leaving male issue, the law of primogeniture 
 applies, and the eldest sou becomes heir-portioner in place of his 
 mother, the succession being always taken per stirpes. Thus, if an 
 intestate have four daughters born to him, of whom the first pre- 
 deceases him unmarried, the second dies leaving sons, the third 
 dies leaving daughters surviving her, and the fourth survives her 
 r, the division of interests will be as follows : one-third of the 
 estate, />ro indiviso, will he taken by the eldest surviving son of the 
 second daughter, one-third will he shared by the female issue of the 
 third daughter, and one-third will go to the surviving daughter. (/■) 
 
 128. The order of succession among the issue of any of the in- Application of 
 testate's children is the same as that which obtains in relation to sc^SaSdfr'om 
 the children themselves. In tracing descent from a collateral re la- a coUateraL 
 tive of the intestate, the order of succession among the issue of such 
 
 relative is the same as that which prevails among the issue of the 
 intestate himself. 
 
 129. IV. Order of Succession in the Ascending Line. — Each Ascending line 
 branch oJ nding line consists of a single member only, who of successlon ' 
 
 - already explained, a paternal ancestor of the intestate. Pa- 
 ternal am acceed immediately alter, that is upon failure, of 
 their own descendants, (s) 
 
 130. It is in this branch of succession only that the question Effectof birth of 
 arises as to the righl of ;i nearer heir, born after the succession has nearer ******* 
 
 Mli'l'i NSli ill ll(*IS 
 
 vesto d. This case occurs when a person is served heir to his child, opened. 
 "i' grandchild, in consequence of tin- failure of collateral issue, and 
 afterwards has another child born to him. < lases of this kind having 
 arisen under successions constituted by deed of entail, the Court, 
 for reasons which may ho more appropriately considered when we 
 '■ouie to treal of thai subject,(£) established the rule thai the birth of 
 
 |:; - n by I" II, IV. \ 1656 
 
 immary 
 
 •rfth cend- Supra, \ 126, and infra, Table, p. 71. 
 
 ing line aa explained by the institutional \t) See chapter 86, § 1206 et seq. (Ser- 
 
 1 ad Entrj of Beira of I'm \ 
 I ler of 
 
 i. 2
 
 Sion 
 
 line. 
 
 68 ORDER OF LEGAL SUCCESSION 
 
 .iiAi'TKu m. the nearer heir divested the more remote. (u) The same question 
 having arisen in a case of intestate succession, — Grant v. Grant's 
 Trs.,(x) — the doctrine of conditional vesting was again, after an 
 interval of half a century, brought under the consideration of the 
 Court of Session. The result was that, without trenching upon the 
 authority of the earlier cases, the judges would not extend the doc- 
 trine to intestate succession. It was therefore ruled that a father, 
 I » y completing a title as heir to any of his descendants, acquires an 
 indefeasible right to the succession, — a decision which is clearly 
 well founded, when it is considered that the laws of heritable suc- 
 cession are purely positivi juris, and that the vested right acquired 
 by service on the part of an ancestor is identical in its nature with 
 that which may b'e acquired by any other heir. The element of 
 intention, which, was stated to be the ground of decision in the en- 
 tail cases, is of course inapplicable to the determination of cases of 
 intestate succession. (?/) 
 
 Special rules of 131. V. ORDER OF SUCCESSION IN THE COLLATERAL LlNE. — 111 the 
 
 Heir of collateral lines of succession two other rules come into operation : 
 (1) the full blood takes precedence of the half blood ;(z) and (2) 
 the succession descends before ascending. Therefore among col- 
 lateral relatives of the same degree, the immediate younger brother 
 of the intestate (or of his ancestor, as the case may be) succeeds 
 first, with his issue; afterwards the younger brothers in their order; 
 then the immediate elder brother ; after him the other elder bro- 
 thers in inverse order, with their respective issue in their order ; 
 lastly, the sisters, as heirs-portioners, in their order. On the ex- 
 haustion of the line of the full blood, the half blood consanguinean 
 in the same branch of the collateral line succeed, the brothers, if 
 younger than the intestate, in the order of seniority ; if elder, then 
 in inverse order, (a) with their respective issue in their order ; then 
 
 (ti) Bruce v. Melville, 1677, M. 14,880, and as well as born after the father's service. 
 
 Bannati/ne v. Lowrie (Blackivood's case), From the opinions expressed by the judges, 
 
 there cited; Lord Mountsteivart v. Mac- it is clear that a child in utero would have 
 
 kenzie, 1707, M. 14,903; Macldnnon v. Mac- been considered to have a vested interest 
 
 kinnon, 1756, M. 6566; Macldnnon v. Mac- sufficient to prevent the father taking bene- 
 
 donald, 1765, M. 5279, 5 Br. Sup. 904, fit by the service. 
 
 1765, M. 5290; Macdonald v. Macldnnon, (z) Ersk. 3, 8, 8 ; Bell, Pr. § 1664; Sten- 
 
 M. 5285; Middlemore v. Macfarlane, 5 Mar. house v. Dewar, 1686, M. 14,872. 
 
 1811, F.C. (a) Lady Clerkington v. Stewart, 1644, 
 
 (x) Grant v. Grant's Trs. 2 Dec. 1859, 22 M. 14,867 ; Stair, 3, 5, 10, citing Craig, 2, 
 
 D. 53. 15, 19. In Willox v. Farrell, 18 July 1 846, 
 
 (y) See also the opinions expressed by 8 D. 1226, it was said, arguendo, by the 
 
 Stair, 3, 5, 50; Bankton, vol. ii. p. 339; pursuer's counsel (Lord Rutherfurd) that 
 
 Bell, Pr. 'i 1642. In Grant's case, it is to the descendant of a brother consanguinean 
 
 be observed that the child was conceived would exclude the descendants of a sister
 
 IN RELATION TO HERITABLE ESTATE. G9 
 
 sisters of the half blood, with their issue as heirs-portioners. The chapter m. 
 succession then ascends to the ancestor in the next higher degree, 
 and failing him, to his collateral relatives and their descendants, in 
 the order already specified. (b) 
 
 132. The order of succession stated in the preceding paragraph Succession of 
 is that of the principal line of succession. The heir in the principal quest. 
 line of succession is called the heir of line. The line of succession 
 
 in conquest deviates from the principal line in the case of the suc- 
 cession devolving upon brothers of the intestate, or of his father — 
 that is, in the two proximate collateral branches. The succession 
 in conquest, failing issue of the intestate, goes to his immediate 
 elder brother and his issue, then to the next elder, and so to the 
 eldest, with their respective issue. Failing elder brothers of the 
 intestate, the succession in conquest passes to the principal line — 
 that is, the younger brothers succeed in the order of seniority with 
 their respective issue, and the sisters after them.(c) In conquest, 
 as in heritii-v, the full blood excludes the half. (7?) The order of 
 succession among brothers consanguinean is the same as in the full 
 blood.(e) A similar divergence occurs in the branch collateral to 
 the intestate's father. Failing the father, the conquest goes to his 
 immediate elder brother, and so upwards to the eldest with their 
 issue, after which the succession merges in the principal line. It- 
 does not appear that there is any corresponding division in the 
 higher branches of the collateral linc.(/) 
 
 133. Succession in heritage never passes to the maternal line, Exclusion of 
 and this exclusion applies not only to ancestors and collateral rela- jj',',','. materna1 
 tives oi the intestal 's mother, but also to the wives of his paternal 
 
 of the foil blood. But for the circumstance per saltum, but by the slowest degrees." 
 
 that the case is specially reported on the Ersk. ut supra, citing Grant \. Grant, 1757, 
 
 oould hav( con idered the sug- M. 14,874. On the succession of heirs- 
 
 tioners, sco the same author, 3, 8, 13; 
 
 Dot been abL to find any authority to coiin- Bell, Pr. g L659. 
 
 tenance the doctrine contended for. (c) Stair, 3, 5, 10 ; Ersk. 3, 8, 14; Craig, 
 
 (5) Ersk. 8, 8, 8-9; Bell, Pr.g 10G1-1G65. 2, 15, 10. 
 
 "As by til- law of Bcotland the Legal sue- {<!) Sec Sir J. Lockhart's opinion in 1 
 
 cession of I. not divided, except Fount, p. 6, and 8 Br. Sup. 241. 
 
 in tli" special cases to be soon explained, (c) Stair, 3, 5, 10; Lady ClerMngton v. 
 
 the brother t to the Stewart, 1664, M. 14,867. 
 
 : ir-at-law; (/j Ki k. ::. s. I I ; I:. II. IV. < 1 070. [fthe 
 
 Ling to the Datura! rule, heritage de- a come from the yi ither, 
 
 • Wherethi the the immediate elder brother is heir both 
 
 I rather of threeor more, the sue- of Line and of conquest, failing i i ue of the 
 
 to the immediate elder brother, defunct; Robertson v.Lord&alkerton, L676, 
 
 andnottoth eldi t of all; because, when M. 6606. Th< distinction between beri 
 
 there La do room for heritage to d( cend, ta i and conquesl arisi only where a 
 
 which i ii oatural coui e, it i thi leasi middle brother oi ister, or their i u 
 
 tionfromthi rule, that it ascends, nol dies int* tate and without i ivinir.
 
 ORDER OF LEGAL SUCCESSION. 
 
 OHAPTEB IV. 
 
 Explanation of 
 the table. 
 
 ancestors and their relatives. (g) Even where the intestate has in- 
 herited the property from his mother or other maternal relative, it 
 passes to his relatives on the father's side if there are no descend- 
 ants, the law taking no account of the source from which the es- 
 tate has come in a question as to its distribution, (h) The intestate 
 succession of females follows the same rule as that of males. When, 
 therefore, a heritable proprietrix dies without issue, her immediate 
 younger brother is her heir of line, and her immediate elder brother 
 her heir of conquest, (i) Her sisters succeed as heirs-portioners of 
 line and of conquest failing brothers, (k) 
 
 134. The annexed Table is intended to show the operation of 
 the rules of heritable succession within the ordinary limits. The 
 persons or branches succeed in the order of the numbers attached 
 to their names. The numbers within brackets show the order of 
 succession in relation to conquest. 
 
 (ff) Craig, 2, 17, 9, and Gilbert's case, 
 there cited ; Stair, 3, 4, 5 ; Lennox v. Lin- 
 ton, 1663, M. 14,867 ; Ersk. 3, 8, 9-10. 
 
 (h) Lennox v. Linton, supra, where it was 
 held that a brother uterine could not suc- 
 ceed to estate which had come from the 
 mother, for, says the reporter, " we have 
 no uterine succession, neither holds it with 
 us materna maternis, paterna paternis." 
 
 (?) Stair, 3, 4, 33 ; Robertson v. Lord 
 
 Halkerton, 1675, M. 5605 ; Cuninghame v. 
 Ouninghame, 1770, M. 14,875, where the 
 succession of a lady's conquest heritage 
 was found to belong to the son of her im- 
 mediate elder brother, jure representationis. 
 In this case it seems to have been errone- 
 ously assumed that the eldest brother was 
 the " heir general and of line." 
 
 (k) Ersk. 3,8, 15; Carse v. Russel, 1717, 
 M. 14.873.
 
 
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 71 
 
 CHAPTER IV. 
 
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 12 ORDEE OF LEGAL SUCCESSION 
 
 t uafter iv. 135. VI. Caduciary Eight of the Crown. — The Sovereign, in 
 
 the character of last heir, is entitled to the property, both heritable 
 
 the Sovereign ami moveable, of anyone who dies intestate and without lawful 
 ' lairs to take up his succession. (I) The Crown also succeeds as 
 last heir to a bastard who dies intestate and without heirs of his 
 body ; for, a bastard having no recognised descent, can have no heirs 
 cither in the ascending or collateral lines.(ra) The ground of the 
 Crown's title is the same in both cases, except that in the latter case 
 the failure of the ascending and collateral lines of heirs results from 
 bastardy, while in the former it results from the extinction by death 
 of these branches of the succession, or the impossibility of tracing 
 the line of succession in these branches. 
 
 Gifts to down 136. The Crown usually names a donatory, upon application by 
 the parties interested to the Officers of State. In the case of failure 
 of heirs by bastardy, a preference is usually given to the nearest 
 relatives in the paternal line — that is, of the reputed father. Gifts 
 of ultima Jiceres are usually bestowed on the nearest relatives in the 
 maternal line, in respect of the extinction of the paternal line, but 
 the Crown is not bound to conform strictly to the analogy of the 
 legal course of succession. A brother or sister uterine of the de- 
 ceased, if such exist, is considered to have an equitable claim. 
 
 Legal character 137. It has been observed by Professor Bell(w) that the right of 
 
 reign's right, ultima hares is not properly a right of succession. But it appears 
 that it has been so interpreted by the judges. Thus, it has been 
 repeatedly held that the donatory of the Crown may pursue a reduc- 
 tion ex capite lecti, though this is a privilege competent only to 
 heirs, (o) In the latest of the cases cited the Court intimated that 
 the point was settled by the decision in Goldie v. Murray, which 
 had been affirmed by the House of Lords, and would not entertain 
 any argument on the subject. The Sovereign, as ultima hares, does 
 not represent the deceased universally, and is only liable for his 
 
 (I) Stair, 3, 3, 47 ; More's Notes, 33 ; relatives. See the two lines of succession 
 
 Ersk. 3, 10, 2; Bell, Pr. \ 16G9. Accord- compared in Patersou's English and Scotch 
 
 ing to the law of England, freehold pro- Law, p. 254-7, and Table, p. 71. 
 
 perty, upon failure of heirs, escheats to (m) Stair, 3, 3, 44 ; Ersk. 3, 10, 5. 
 
 the Crown, unless an overlord can be (n) Bell, Pr. § 1669. The observation 
 
 traced, which is seldom the case. Copy- is correct in this sense, that the Crown 
 
 hold estate in the same circumstances es- will not succeed under a destination to heirs ; 
 
 cheats to the lord of the manor. But be- Torrie v. King's Remembrancer, 31 May 
 
 fore these rights take effect, the different 1832, 10 Sh. 597. 
 
 maternal lines of ascendants and collaterals (o) Goldie v. Murray, 1753, M. 3183: 
 
 must be exhausted, beginning with that Brock v. Cochrane, 2 Feb. 1809, F.C. ; and 
 
 mie which is nearest to the most remote see Bcgg v. Arnot, 1741, M. 3182. The 
 
 paternal ancestor, and proceeding down- rule extends to gifts of bastardy ; Stair, 
 
 wards to the intestate's mother and her 4, 12, 3; Ersk. 3, 10, 5.
 
 IN RELATION TO HERITABLE ESTATE. 73 
 
 debts secundum vires hcereditatis. The donatory has the benefit of chapter iy. 
 this privilege, (jp) 
 
 138. The donatory is subject to the disabilities of an assignee, Jjjgjjjj 1 ^ 
 and, consequently, cannot take up a lease which is granted to heirs assignee, 
 excluding assignees, (q) Mr Hunter is of opinion that the rule 
 would not extend to the donatory of a lease which had accrued to 
 the Crown by forfeiture, (r) 
 
 139 In order to complete a title to caduciary estate, the Crown Completion of 
 
 ■*■ -i-ii .,, the doiiatorv s 
 
 donatory must obtain a^gift from Exchequer with power to sue a me , 
 declarator of ultima hceres or bastardy, as the case may be. The 
 action is executed against the lieges. If the intestate leave a widow 
 she must be cited, she being a party interested to the extent of her 
 terce. After decree of declarator, the donatory obtains a letter 
 under the quarter seal charging the superior to give an entry. Cre- 
 ditors sometimes obtain a gift of their debtor's estate, or they may 
 attach it by diligence in the ordinary way, calling the Officers of 
 State as representing the Crown. (s) 
 
 140 The law of ultimus lucres appears to have undergone consi- Whether the 
 
 *■* . . right originated 
 
 derable changes since the time of the earlier institutional writers, m the King's 
 Craig, building upon the ancient theory of feudal property as hav- KjSJ. 
 ino- originated in voluntary grants, lays down that heritable estate 
 reverts to the superior on failure of heirs ;{t) and this assertion is 
 repeated by Lord Karnes, (u) although the true doctrine had pre- 
 viously been enunciated by Stair, who explains that the King by 
 his royal prerogative excludes all other superiors, unless by express 
 provision of the investiture the fee be provided to heirs-male or of 
 tailzie, which failing, to return to the superior.(a;) 
 
 141. The notion, derived from the Book of the Feus,(y) thai No limit recog- 
 Legal propinquity did no1 extend beyond the seventh degree, was commutation of 
 never the Law of Scotland.^) It was once, however, erroneously propmqm y " 
 decided thai an estate destined to heirs-male fell \<> the Crown on 
 the extinction of the male line, instead of resulting to the heir- 
 at-law.(a) This doctrine was condemned by Bankton,(6) and does # 
 not receive any countenance from modern decisions or from works 
 of authority. 
 
 ( P ) Qalbraith •.. D an L685, M. 1854 ; (0 Craig, 2, 17, 11. 
 
 :,,,! :;, io, 4. (») Si.it. Law, voce " Ultimtu Hceret." 
 
 (,,) Falconer v. Eay, 1789, M. L866, (x) Stair, 3, 3, 47. 
 
 (r) 1 Landlord and Tenant, 8d. ed. 187. (y) Lib. Feud. 1, 1, 4 ; and see Craig, 2, 
 
 {$) Ro Bell' I. > • Diet, voa I ; 17, 11. 
 
 o authority cited in Stair tair 8, 8, -17 ; Ersk. 8, 10, 2. 
 
 17 , : /,• | Mate, 17 17 (a Tenant v. Tenant, L688, M, M 
 
 M. | 1 ■.;! i.K t .. \,,1. ii., 284.
 
 OHAPTKB iv 
 
 ORDER OF LEGAL SUCCESSION. 
 
 SECTION II. 
 
 DIVISION OF HERITABLE SUCCESSION. 
 
 Division be- 
 
 beirs of 
 line and of con- 
 quest. 
 
 Ileir of con- 
 quest takes 
 estate acquired 
 by purchase or 
 
 singular title. 
 
 Succession to 
 estate disen- 
 tailed by heir or 
 acquired under 
 declarator. 
 
 142. I. Division between Heirs of Line and of Conquest. — 
 The difference between the lines of succession in heritage and con- 
 quest has been already explained, (c) We have still to consider 
 what parts of the succession fall to the heirs in these respective lines 
 in cases where the succession is divided. 
 
 143. The general rule is, that whatever the intestate acquired, 
 whether by purchase or by gratuitous disposition, from a stranger, 
 or from one to wliom he would not by law have succeeded, goes to 
 the heir of conquest, provided it is estate capable of being feudal- 
 ised ; while estate to which the deceased succeeded as heir-at-law or 
 heir of provision, as well as estate not requiring infeftment and titles 
 of honour, are inherited by the heir of line, (c?) Conquest, in de- 
 scending from the heir of conquest to his heir, becomes heritage, (e) 
 and this, whether it descends ah intestato or by virtue of a desti- 
 nation to the heirs and assignees, or heirs whatsoever, of the per- 
 son last seized. (/) But where an heir of conquest has possessed on 
 apparency only, and dies without having made up a title to his an- 
 cestor's estate, the succession remains in hcereditate jacente of the 
 ancestor and passes to his next heir of conquest, (g) 
 
 144. Questions of this kind are not unlikely to arise as a con- 
 sequence of the exercise of the disentailing provisions of the Entail 
 Amendment Act,(h) or of the acquisition of the estate in fee-simple 
 under a declarator. Estate acquired in fee-simple under the Sta- 
 tute by an heir-substitute of entail would appear to be heritage in 
 his person, because he would still hold under the entail, the effect 
 of the decree being merely to evacuate the ulterior destination. 
 
 (c) Supra, chap. 4, sec. 1. 
 
 Id) Lib. Feud. 2, 50; Craig, 1, 10, 26; 
 Stair, 3, 5, 10 ; Bell, Pr., § 1671 (5th ed. 
 I 1670). 
 
 (e) Stair, 3, 5, 10 ; Ersk. 3, 8, 15 ; Bell, 
 Pr. I 1675. 
 
 (/) Boyd v. Boyd, 1774, M. 3070 (2d 
 point). The case of conquest hecoming 
 heritage at the second change in the suc- 
 cession furnishes an example of an elder 
 brother succeeding to a younger as heir of 
 line. For, suppose the youngest of three 
 brothers to acquire property by purchase 
 and to die intestate, the immediate elder 
 
 brother succeeds him as heir of conquest. 
 On the death of the latter, the eldest 
 brother takes the succession (which has 
 now become heritage) in the character of 
 heir of line. The tendency of the com- 
 bined rules of succession in heritage and 
 conquest is ultimately to unite the pro- 
 perty acquired by different members of a 
 family, and thus to promote the aggrega- 
 tion Of estates. See Ersk. 3, 8, 14. 
 
 (g) Aitchison v. Aitchison, 7 March 1829, 
 7 S. 558 ; Boyd v. Boyd, supra (1st point). 
 
 {/<) 11 & 12 Vict, cap. 36.
 
 IN RELATION TO HERITABLE ESTATE. 75 
 
 Entailed estate similarly acquired by an institute who was not heir chapter iy. 
 to the grantor alioquin successurus, would, on the same view, be 
 conquest in his person. But it is at least open to question whether 
 estate acquired by an heir-substitute in fee-simple, by recording an 
 instrument of disentail under the Statute, is not descendible to his 
 heir of conquest, especially in cases where the consent of other heirs 
 is requisite. 
 
 145. Here it may be convenient to state the distinctions which Destinations, 
 
 . r m , i whether opera- 
 
 have been recognised m relation to the succession oi collaterals m, in favour 
 under destinations to heirs whatsoever, where the property is con- J ues ^ r 
 quest in the person of the disponee. The destination may either be 
 to the heirs of the granter or to those of a person previously nomi- 
 nated, and the heir designated may succeed either as a conditional 
 institute or as a substitute. These distinctions present four cases: 
 (1) Where the destination is to the granter's heirs, failing others 
 previously nominated, and the succession opens to heirs as condi- 
 tional institutes. This is the point decided in the first branch of 
 Boyd v. Boyd,{i) where it was held that, as the immediate disponee 
 had failed to make up a sufficient title to certain estate, the property 
 remained in hvreditate jacente of the granter, and therefore, and in 
 respect the said land was afeudum novum in him, the property there- 
 of devolved and fell to his heir of conquest, (/.•) This doctrine sub- 
 sequently received the sanction of Lord Neaves and the Second 
 Division of the Court in a case to which we are immediately to 
 refer. (J) (2) Where the destination is to the granter's heirs on the 
 failure of those previously nominated, and the succession opens to 
 the former as substitutes. This was the point decided in Robisons 
 case,(w) in favour of the heir of line. The principle is, that after 
 the estate has v. sted by inheritance in an heir, it ceases to be con- 
 quest of the granter; and that the expression, heirs of the granter, 
 must then be construed designative, and in that sense is applicable to 
 the heir of line. (3) En the case of Miller v. Millers Trs.,(n) the 
 destination was to a nominatirn disponee, whom failing to the heirs 
 whatsoever of the disponee. The disponee predeceased the granter, 
 and the succession therefore opened to his heir in the character <>l 
 condiUonal institute. The judgment of the Court was in favour oi 
 
 (»') Boyd\ '.Boyd, supra i 1 t point). It is (m ) / Ilohiwn, wj 
 
 here assumed thai John Boyd, the flar or (>i) Miller v. Miller'a '/',.-.. L9 Jan. 1831, 
 
 purchaser, i< rofthe des- 7 W ,*c S. 1. affg. '•' Bh. 296. TMb deci- 
 
 tinatioii. ion is iii conformity with the-judgment 
 
 (/,■) M. 8072. 'Ill- < the '1'- i Bo "/<>", on the third p 
 
 ci ionupon all the point ai bh M. 8072; Short v. Short, 1771, M. 5616 
 
 linary. is overruled. 
 // R 1869, 21 
 D '
 
 76 ORDER OF LEGAL SUCCESSION 
 
 chapter iv. the heir of line, and their judgment was affirmed on appeal. Here 
 the estate could not be conquest of the disponee, because the estate 
 never vested in him ; hence " heir" must be construed designative^nd. 
 is applicable to the principal line of the succession. (4) In the case 
 last cited, it was observed by the Lord Justice-Clerk that if the 
 succession had vested in the party named as institute, being con- 
 quest in his person, his heir of conquest would have been the party 
 entitled to take it up as first substitute under the destination to 
 heirs, and this principle was given effect to in the subsequent case 
 oiBroivnv. CampbeU.(o) It will be seen from the decisions that 
 these rules apply to heritable succession under trust-deeds as well 
 as under deeds of direct conveyance. 
 Distinction 146. Subjects to which the intestate might have succeeded as 
 
 I),!' liat! 'ancestor heir-at-law do not' become conquest in his person by reason of his 
 w ;'. s '" ir havina; actually acquired them from his ancestor by a gratuitous 
 
 disposition, whether inter vivos or intuitu morhs.(p) Estate pur- 
 chased from an ancestor is understood to be conquest. According 
 to Craig, (q) whose statement of the law is adopted by Erskine, it 
 would appear that estate acquired by gift inter vivos from a col- 
 lateral relative ought to be accounted conquest, because the donee 
 is not necessarily his heir presumptive at the time of the grant, 
 even if he should become so at the death of the granter.(r) 
 what subjects 147. With regard to the subjects which are comprehended in 
 
 pass as conquest conaues t, the following distinctions have been recognised: — As al- 
 
 succession. ~i> o nl . i-ii-j.il 
 
 ready stated, conquest includes only subjects to which a title lias 
 been completed by infeftment, or requiring infeftment to complete 
 it.(s) Under this rule are comprehended bonds and dispositions 
 in security, heritable bonds, (t) adjudications,^) property of which 
 the title is taken in the name of a trustee, although without any 
 written document of trust, (03) and also heritable rights under a 
 
 (0) Broivn v. Campbell, 16 March 1855, the date of the right the disponer's pre- 
 
 17 D. 759. The heir of conquest can sumptive beir, the disponer might have 
 
 never succeed under a destination to A. afterwards had issue of his own body, who 
 
 B. and his heirs, if his predecessor have would have been nearer in blood to him 
 
 served heir-substitute of provision under than the disponee." — Ersk. 3, 8, 15. 
 
 the deed. The principle of this decision (s) Supra, § 143. See Ersk. 3, 8, 16 ; 
 
 must therefore be confined to the case of Bell, Pr., § 1672. 
 
 an heir claiming as first substitute. (t) A v. B, 1676, M. 5608 ; Memoes v. 
 
 (p) Stair, 3, 5, 10 ; Ersk. 3, 8, 15 ; Bell, Menzies, 1738, M. 5614 ; Elch. Her. & C, 
 
 Pr 2 1673 ' 2; E. of Selkirk v. D. of Hamilton, 1740, 
 
 (q) Craig, 2, 15, 17 ; Ersk. ut supra. M. 5615, 5 Br. Sup. 684, 695, affd. 1 Cr. 
 
 (V) "An heritable grant by one who has St. & P. 271. 
 
 no lawful issue in favour of a brother, (u) A v. B, 1675, M. 5608 ; Anderson 
 
 ought to be accounted conquest in the v. Anderson, 1677, M. 5609 ; E. of Selkirk 
 
 grantee, unless the grant has been ex- v. D. of Hamilton, supra. 
 
 pressly made over to him as the granter's (*) E. of Selkirk v. D. of Hamilton, 
 
 successor. For though the disponee was at supra.
 
 IN RELATION TO HERITABLE ESTATE. Ti 
 
 trust-disposition. (y) Heritable estate which does not require infeft- chapter iv. 
 ment is not conquest, but belongs to the heir of line,— as leases, (z) 
 pensions, (a) and personal bonds to heirs secluding executors, (b) 
 These last are supposed to belong to the heir in heritage designative 
 on the principle already explained in treating of the succession in 
 heritage and conquest under destinations. (c) Under the head ot 
 rights requiring infeftment we may now include rights consti- 
 tuted by deeds which may be recorded in the Eegister of Sasines 
 under the provisions of the Conveyancing Statutes, (d) and perhaps 
 also leasehold property recorded in the same register.(e) 
 
 148. It is asserted by Erskine,(/) whom Bell has followed, (r/) T^ whether 
 that teinds do not fall under conquest, because they are a burden coming conqm i 
 not on the ground, but on the crop. But the authorities cited by Sl 
 these authors do not bear out the proposition. In the earliest case on 
 the point the question was us to a purchase of the teinds of the intes- 
 tate's lands, (li) and the Lords found, in respect of an indication of in- 
 tention in the title " that the teinds descended to the heir of line who 
 succeeded in the lands, and would have been of the same opinion 
 (without that specialty) wherever one purchases the teinds of his 
 own lands, that it is eo animo to let them descend to the same 
 heirs." The decision in the leading case of the Earl of Selkirk v. 
 The Duke of Hamilton (i) was put on the same ground. It would 
 appear, therefore, that the teinds of conquest lands, when sepa- 
 rately acquired, should descend to the heir of conquest ; and where 
 teinds are conveyed in the same instrument with the lands, they 
 will of course go to the same heir. Willi regard to rights of titu- 
 larity and teinds unconnected with the intestate's landed estate, it 
 would seen, that these, if not feudalised, are to be regarded as heri- 
 It has been held thai the purchase of the properly of lands 
 whereof the purchaser had inheriti d the superiority, with the inten- 
 tion of consolidating, impressed the character of heritage on the con- 
 quesl lands.(& 
 
 149. l''l;il property, which is held by possession on a disposition rjdai property. 
 
 (y)Miller .. bftZta . T, .. L9Jan. 1831,9 (e) Id. See tlio Art 20 and 21 Vict., 
 
 8b. 296, and 7 W. >v S. 1 ; /;/•-,»•/, v. ''</,„,,- cap. 26. 
 bell, 1''. March Is-"".. 17 I>. 769. I 8, 8, 16. 
 
 E.o/Dunba H ■ L625, M.66I \g) Bell, Pr., § 1672. 
 
 / / LI I, M. 6606. (/'j Greenock v. Greenock, 1786, Elch., 
 
 . 16. II. r. and Oon., 1 ; M. 6612. 
 /. / . L706, M. 6609; E (i) A', of Selkirk v. /'. of Hamilton, 
 
 .. j) , // I7<;u, M. 5616; 1 Cr. St. \ I'. 271. 
 
 16. See i i of {A i Sami ca e. 'I tie diffi renl poinl i I 
 
 thi ame anthor npon Wadsets, id. pi. the judgment are well summarised in 
 
 i: l i.i.. p. 1029, i ditor' Eli b B eril ' [Ui t," 
 
 No. 8. They wi re nil affirm* d on appeal.
 
 OKDER OF LEGAL SUCCESSION. 
 
 cn.\rTF.n iv. 
 
 Estates of heii- 
 portioners. 
 Jus prcecipui. 
 
 Division of the 
 succession 
 under brieves of 
 division. 
 
 without infeftment, and which vests without service, would seem, 
 according to the analogy of leases, to be excluded from the cate- 
 gory of conquest heritage. But we have not been able to find any 
 authority on the subject ; and in the only cases reported upon suc- 
 cession to udal property (I) the state of the pedigree was such that 
 the succession in heritage and conquest flowed in the same line. 
 
 150. II. Division among Heirs-Portioners. — Heirs -portion- 
 ers(m) take the succession as pro indiviso proprietors in equal shares. 
 Their estate is not of the nature of a joint interest, but, as the name 
 imports, that of part-owners or portioners. (V) There is therefore 
 no jus accrescendi in respect of their succession, but each heir-por- 
 tioner transmits her share to her heir-at-law. Another consequence 
 of the nature of the right is, that, as it is a right in severalty, each 
 heir-portioner has a title to pursue in questions with third parties 
 in relation to the property, (o) contrary to the rule in actions at the 
 instance of joint-proprietors. (p) And whilst the estate continues 
 to be possessed in common, the law recognises a separate right of 
 property on the part of the eldest heir-portioner in relation to those 
 indivisible subjects which would fall to her jure prcecipui on a divi- 
 sion of the estate. The eldest heir-portioner is therefore the proper 
 party to grant entries to vassals, (q) though, if the heirs-portioners 
 should concur in offering a charter in their joint names, the vassal 
 is bound to accept of it, for he is " not obliged to take infeftment 
 severally from the heirs-portioners of the superior, but either from 
 the whole jointly or from the eldest by the prerogative of her 
 birth."(V) 
 
 151. Any of the heirs-portioners may insist on having the suc- 
 cession divided, which is accomplished by the Sheriff and a jury 
 
 (I) Rendall v. Robertson, 15 Dec. 1836, 
 15 Sh. 266 ; Beattonv. Gaudie,2Feb. 1842, 
 10 Sh. 286. 
 
 (ni) For the rules according to which 
 heirs-portioners inherit, reference is made 
 to the preceding section, supra, § 127. 
 
 (re) Cargill v. Muir, 21 Jan. 1837, 15 Sh. 
 408 ; M'Neight v. Lockhart, 30 Nov. 1843, 
 6 D. 128, 136, per L. J.-C. Hope. " Heirs- 
 portioners are not joint-proprietors, but, as 
 their name imports, part-o%vncrs, or portion- 
 ed. They hold pro indiviso, while the 
 subject is undivided. But each lias a title 
 in herself to her own part or share, which 
 she may alienate or burden by her own 
 separate act. The condition of two joint- 
 proprietors in the fee is very different; 
 they have no separate estates, but only 
 one estate vested in both, not merely pro 
 
 indiviso in respect of possession, but alto- 
 g( ther pro indiviso in respect of the right. 
 The distinction is the same which the Lord 
 Ordinary believes is expressed by English 
 lawyers by the terms joint -tenants and 
 tenants in common." Lord Moncreiff's note 
 in Cargill, supra. 
 
 (o) See Lawson v. Leith and Newcastle 
 Packet Co., 26 Nov. 1850, 13 D. 175. 
 
 (p) Johnston v. Crawford, 3 July 1855, 
 17 D. 1023. 
 
 (q) Stair. 3, 5, 11 ; Ersk. 3, 8, 13 ; Lady 
 Luss v. Inglis, infra. 
 
 (r) Lady Luss v. Inglis, 1678, M. 15,028. 
 Joint-proprietors of a superiority must con- 
 cur in granting an entry, and if they do 
 so there is no splitting of the superiority; 
 Cargill v. Muir, si/j>ru.
 
 IN RELATION TO HERITABLE ESTATE. 79 
 
 under a brieve of division, (s) The brieve is not retourable to Chan- chapter iv. 
 eery, and, on this ground, it is held that the proceedings are not sub- 
 ject to review by advocation after the verdict, but only by way of 
 reduction. (<) The eldest heir-portioner is entitled to the portion 
 next the mansion-house ; the others cast lots for their choice. The 
 Court will not assign shares to the heirs ; they must either agree 
 as to the distribution, or let it be settled by chance.(w) 
 
 152. The rule of ecpial division amongst heirs-portioners suffers Titles of honour 
 an exception in the case of peerages and titles of honour, which, subjects. 
 unless otherwise limited, descend to the eldest ;(x) and also in the 
 case of the distribution of certain subjects which the law regards 
 as indivisible. With regard to indivisible subjects, the law appears 
 t<> be that, until a division takes place, they are to be enjoyed in 
 common by .-ill the heirs-portioners. Therefore, casualties of supe- 
 riority falling due whilst the heirs are possessing pro indiviso, arc 
 subject to divi>ioii.(//) and entries may be given to vassals by the 
 heirs-portioners jointly. (Y) Upon a division, the eldest heir-por- 
 tioner is entitled to indivisible subjects as a proscvpuum. The an- 
 nual profits of such subjects, when received in money, as feu-duties, 
 must be shared with the other heirs-portioners, or compensation 
 given. But subjects which are intended for the personal use of the 
 proprietor, as a mansion-house and its appurtenances, and subjects 
 yielding only casual profits, as blench superiorities, fall to the eldest 
 heir-portioner jure prcecipui, \\ ithout recompense. 
 
 153. In the application of these principles the following points what subjects 
 have been determined — (1) The benefit of a prcecipuum belongs hended^the 
 only to ili,- eldest sister (or her representative) succeeding as ;in> s J"'""/'"' 
 heir-portioner, uo1 to the eldesl of a family of sisters to whom pro- 
 pi ii_\ is destined as joint-disponees.(a) Sisters or their represeDta- 
 tiv< - succeeding to settled estate under a destination to heirs what- 
 soever, in a settlement, (b) or deed of entail, (c) take as heirs-portioners, 
 and the eldesl is entitled to a prcecipuum. (2) The mansion-house, 
 or principal messuage of a landed estate, with the offices and ground 
 
 (*) Stair, 4, 8, 10-12. For the form of Justice-Clerk Hope in M'Neight v. / 
 
 the brieve see 1 Jurid. Styles, Itb ed. 330, hart, <'. I». L36. 
 
 >■ >. 8, L2. (z) La,!,/ Luss v. Inglis, 1678, M. 15,028. 
 i/-.v ../'.' •. Lockhart, <• l». L3 I, per («) Cathcart \. Rocheid, 177-. .M. 53' i 
 Lord J Cathcart v. Bo- ('-) Wight v. Inglis, 1798, M. " Heir-Por- 
 c/ ""/. 1771'. M. 7668. tioner,"App. No. I ; Maclauehlanev. Mac- 
 Lady Houston \. Dunbar, 1742, M. lauchlane, 1807, Id. PI. No. 8. 
 6866; Inglisv. Inglis, 1781, Hume, 762. D iv, Welsh, 17 June 1880, 
 Ersk. ::. 8, L8; Bi 11, Pr. \ Ll 8 Sh. 985. Thi is n n all of the rule oi 
 (y) Fenton \. Dirleton Em . 1628, M I , take the estate 
 I i Lord iu i-
 
 80 
 
 ORDER OF LEGAL SUCCESSION 
 
 CHAPTER IV. 
 
 Division of 
 superiorities. 
 
 occupied in connection with it, belong to the eldest heir-portioner 
 as a prcecipuum,(d) — the garden, avenue and orchard(e) of the man- 
 sion, if not let,(/) being included. The second sister has no right to 
 a second messuage, (g) The eldest has no right to a house in town 
 or a country villa ; and if there is adjacent property capable of being 
 divided, the dwelling-house must be included in the partition, and 
 taken at its value, (h) In a recent case it was held that a country 
 house which had been let by the ancestor of the heirs-portioners, 
 but which had formerly been used as the mansion-house of a larger 
 estate, could not be claimed as a prcecipuum ; and the opinion was 
 expressed that no house could be claimed as such which had not 
 been used as a residence by the person to whom the heirs-portioners 
 succeeded. (0 (3)^ There is no p?recipuum of heirship-moveables. (k) 
 (4) Patronages, when falling to heirs-portioners, are to be exercised 
 in the same manner as by joint-proprietors. The heirs-portioners 
 will therefore present to the benefice, and levy the vacant stipend 
 by turns, the first vice or turn falling to the eldest. (I) Titularities 
 of teinds falling to the patron under the Statute 1693, cap. 25, 
 would, we presume, be divided like other property. (5) The eldest 
 sister has the custody of the title-deeds of the estate, and must give 
 transumpts when required, she herself bearing an equal- share of the 
 expense. (m) This right she does not lose although a younger sister 
 may have acquired a larger interest in the estate by a subsequent 
 arrangement. (?i) 
 
 154. (6) The eldest heir-portioner has a preferable right to a 
 superiority, with its casualties and feu-duties ; but with regard to 
 the latter, says Erskine, " because they are a fixed yearly rent, and 
 so of a different nature from the Casualties of superiority which de- 
 pend upon accidents, the younger sisters have compensation for 
 their shares of them out of the other estate of the deceased." (o) In 
 Lady Houston v. Dunbar, a leading case in this branch of the law, 
 
 (d) Stair, 3, 5, 11 ; Ersk. 3, 8, 13 ; Cowie 
 v. Cowie, 1707, M. 5362, 2453 ; Forbes v. 
 Forbes, 1774, M. 5378; Ireland v. Govan, 
 1765, M. 5373: Dennistounv. Welsh, supra. 
 
 (e) Pedie v. Pedies, 1743, M. 5367 ; Elch. 
 " Heir-Portioner," No. 1 ; 5 Br. Sup. 728 ; 
 Chalmers v. Chalmers, 1750, M. 5369, note ; 
 Elch. " Heir-Portioner," No. 5. 
 
 (/) Cowie v. Coivie, supra. 
 
 (g) Inglis v. Inglis, 1781, Hume, 762. 
 
 (h) Hawthorn v. Gordon, 1696, M. 5361 , 
 Wallace v. Wallace, 1758, M. 5371 ; Smith 
 v. Wilson, 1792, M. 5381; Rae v. Rae, 
 1809, Hume, 764, and Thomson v. Angus, 
 there cited. 
 
 (i) Halbert v. Dickson, 28 May 1857, 19 
 D. 762. 
 
 (k) Lady Garnkirk v. Grey, 1725, M. 
 5366 ; Maclauchlane v. Maclauchlane, 1807, 
 M. " Heir-Portioner," App. No. 3 ; Cruick- 
 shanks v. Cruickshanks, 1801, Id. Tit. No. 2, 
 overruling Ersk. 3, 8, 13 and 17. 
 
 (I) Ersk. 3, F, 13. 
 
 (m) Lady Cunninghamc v. Lady Car dross, 
 1680, M. 2449; Cowies v. Cowie, 1708, M. 
 2453 ; Ersk., supra. 
 
 (n) Denholm v. Denholms, 1638, M. 2447. 
 
 (o) Ersk. 3, 8, 13 ; Lady Houston v. 
 Dunbar, infra. And see Stair, 3, 5, 11, 
 and Lady Luss v. Inglis, 1678, M. 15,028.
 
 IN RELATION TO HERITABLE ESTATE. S I 
 
 the Lords found " that the eldest heir-portioner is entitled to one chapter iy. 
 of the superiorities and the feu-duties arising therefrom, and that 
 she is entitled to make her election : That the second heir-portioner 
 is entitled to the other superiority and the feu-duties arising there- 
 from ; and that the third heir-portioner is entitled to a recompense 
 from the other two heirs-portioners for her proportion of the feu- 
 duties."(p) In the subsequent case of Chalmers, where there was 
 also a plurality of superiorities, a hearing in presence was ordered 
 on the question whether these should be divided as far as could be 
 without splitting any one superiority, or if the whole must go to 
 the eldest, and the younger sisters have a recompense for the feu- 
 duties. The case was compromised without a decision being given 
 on the point, (q) 
 
 155. la the case of Eae v. Bae,{r) it was ruled that superiorities Casualties fall to 
 to which substantial feu-duties were attached fell to be equally portioner. 
 divided. The question as to the right to casualties of superiority 
 remained open until 1843, when it was finally determined, first, 
 
 that superiorities yielding feu-duties were to be divided; and, se- 
 condly, that the eldest heir-portioner was entitled to a blench supe- 
 riority as a prcecipuum, in addition to her share of the former, and 
 without making compensation.^) The case to which we refer was 
 decided on the view that the principle of division among heirs- 
 portioners is not that of perfect equality; that the law does not 
 contemplate contribution in the shape of money, with a view to 
 equal distribution ; and that while subjects yielding a fixed yearly 
 return may reasonably be merged in the general division, the eldest 
 heir is entitled to the advantages in expectancy which flow from 
 her general title as .superior, and which could only be compensated 
 by a money paynienl on the ha>is of the estimated presenl value of 
 the casuall i< .-.(0 
 
 156. In theevenl el' an intestate heritable succession being divi- Whether the 
 Bible between a younger sister and her nieces, being daughters ot longs to eldest 
 an elder Bisti r, succeeding by representation, it may be doubted ' 
 whether the jus /n-arij,,/,' would belong to the two nieces jointly 
 
 or to the eldesl only. This question does not appear to have hecn 
 I in any of the cas< s. 
 
 (//) Lady Houston v. Dunbar, 17 11. M. (>•) l,'<i' x. Roe, 1809, Hum.'. 764. 
 
 («) M'Neight \. Lockhart, 80 Nov. I«s43, 
 Chalmeri v. Chabner . 1150, Elch. 6 l». 128. 
 " Heir-Portioner," No. 6 ; Lord Dromoi (t) See the opinion of Lord Justice- 
 
 cited b; Lord ■' I Olerh Bopi , 6 D 1 8 i 
 
 Cleri Bope, 8D 
 
 \ OL. i
 
 82 ORDER OF LEGAL SUCCESSION 
 
 CHAPTER 1\ 
 
 SECTION III. 
 OF TERCE. 
 
 Definition of 157. Tercc is a liferent of a third part of the estate in which a 
 
 rightacSuTs* 8 proprietor dies infeft in fee, accruing to his widow as a legal pro- 
 vision. Terce and courtesy are termed legal liferents. At com- 
 mon law terce was not clue unless the marriage had subsisted for 
 a year and day, or had been followed by the birth of a living 
 child. (u) But by the Moveable Succession Act(a;) marriages dis- 
 solved within a year and day are placed upon the same footing, as 
 regards the rights of the survivor and of the representatives of the 
 predeceaser, as marriages which have subsisted for that period. At 
 common law terce was not claimable from burgage subjects, (y) but 
 by the Conjugal Rights Act (a) the widow of any person dying 
 infeft in property held by burgage tenure, after the date of the Act, 
 is entitled to claim terce, and may take proceedings for service and 
 kenning before the Sheriff. Terce is therefore now due irrespective 
 of the tenure of the property, and of the period of subsistence of 
 the marriage. It is grounded on the obligation incumbent on a 
 landed proprietor to make a reasonable provision for his widow 
 suitable to his circumstances and condition of life. («) 
 whether terce 158. It has not been expressly decided that terce is due upon 
 
 divorce UP ° U !l tne dissolution of a marriage on account of the husband's adultery. 
 By the operation of the Act of the Scottish Parliament 1573, cap. 55, 
 by which desertion was made a cause of divorce, the offending party 
 loses his or her conventional provisions. The same rule has been 
 applied in the case of divorce on the ground of adultery ; and the 
 authority of Stair and Bankton, cited with approval by the late 
 Lord Justice-Clerk Hope and Lord Medwyn in the modern case of 
 Thorn v. Thorn, may be regarded as conclusive of the proposition, 
 that legal as well as conventional provisions are due from the 
 offending to the injured party, upon a decree of divorce, (b) 
 Legal character 159. The nature of the right to this as well as other legal pro- 
 of the provision, yjgiong i ias ]3 een muc h discussed. (c) In substance it is, as we have 
 
 (u) Stair, 2, 6, 17 ; Ersk. 2, 9, 51 ; Bell (b) Stair, 1, 4, 20 ; 1 Bankt, 140; 1 
 
 Pr. I 1595-7. Fraser, 688 ; Greenhill v. Ford, 15 Feb. 
 
 (x) 18 Vict. c. 23, § 7. 1826, 4 Sh. 472, N. E. 478 ; Thorn v. 
 
 (y) Stair, 2, 6, 16 ; Ersk. 2, 9, 49 ; Thorn, 11 June 1852, 14 D. 861. And see 
 
 Lowthian v. Aglionhy, 1801, M. " Annual- Johnstone v. Bcattie-Johnstone, 5 Feb. 1867, 
 
 rent," App. No. 2. ' 5 Macph. 340. 
 
 (z) 24 and 25 Vict. c. 86, § 12. (c) See 1 Fraser, 603-5, and authorities 
 
 (a) 1 Bell's Com. 57, 6th ed. 805. here cited.
 
 IX RELATION TO HERITABLE ESTATE. 83 
 
 described it, a legal provision out of the heritable succession. In chapteb iv. 
 point of form it approaches most nearly to the character of a real 
 burden, being constituted by the husband's infeftment, which is 
 said to be the measure and security of the right, (d) In another 
 respect it resembles a real burden by reservation ; for while, on the 
 one hand, it is made effectual without any separate title in the 
 person of the tercer ; on the other, it gives no title of occupation or 
 active right until a separate title has been made up in the manner 
 afterwards mentioned. It will be afterwards seen that the right 
 vests absolutely by survivance, and cannot be defeated by any act 
 of the husband to which the wife has not assented. It is under- 
 stood that the old law, by which aliens were debarred from holding 
 heritable property in Scotland, extended to the right of tercc ;(e) 
 but by the Alien Act of the present reign(/) it is enacted that any 
 woman married, or who shall be married, to a natural born subject 
 or person naturalised, shall be deemed and taken to be herself natu- 
 ralised, and have all the rights and privileges of a natural born 
 subject. 
 
 160. Terce, unlike the correlative right of courtesy, is clue from From whai 
 conquesl as well as from heritage. (g) It is due whether the estate 
 
 was taken by the husband as heir-at-law or of provision ; and it ap- 
 pears that an exclusion of terce is not implied from the nature of a 
 settlement in strict entail, though the right ma}* be barred by a 
 clause of exclusion in the deed of entail. Where terce is not de- 
 barred, any heir of entail may grant an annuity or liferent by way of 
 locality within the amount of the Legal provision. (7t) In practice. 
 terce is excluded in modern entails. The decisions appear to be 
 conflicting as to the efficacy of an exclusion of terce in a settlement 
 defective in the essentials of a valid and effectual entail ;(/) but the 
 question is m.t now of much practical importance, as in all such 
 -the heir in possession has the power of acquiring the estate 
 in fee-simple under the provisions of the Entail Amendment Act, 
 which would make the estate subjeci to Legal provisions.^') 
 
 161. In the case <>i a Landed estate, the mansion-house and gar- Ornamental sub- 
 den, or other ornamental ground possessed with it, are held free oJ 
 
 : but the exception does no1 extend to fields or orchards capa- 
 
 2, 9, 16. '/,) Cant v. Borthwick, 1726, M. 16,554 ; 
 
 o; 1 I' 606; Stewart v. ffoome, Noble v. JDewar, 1758, M. 16,606. 
 
 1792.M.4649; it's Tr». t 16 A v. Reid, L795, Bell, Fol. Ca. 
 
 Jan. 1884, L2 Sh. 298. 195 ; Macgillv. VacgM, 1798, M. 16,451 ; 
 
 \ 16. and contra, Anderson \. Wishart, 1716, M. 
 
 (a) Ersk. 2, 9, 16; I B U, Com. 69, 6th 18,570. 
 
 07. In ancient time terce ■■■■< nol Hay Newton v. Newton, 18 July 
 
 due fro I I 607 ' icph. 1066. 
 
 r 2
 
 8 \ ORDER OF LEGAL SUCCESSION 
 
 , hapteh n. ble of being possessed with the mansion-house, but actually let.(&) 
 Terce may be claimed by the widow of a heritable creditor infeft ;(7) 
 and it appears that, in the event of the sum in the bond being paid 
 up, the widow would be entitled to have her share re-invested on 
 securities of the same kind in favour of herself in liferent, and the 
 heir in fee.(m) The widow of a wadsetter was held entitled to terce, 
 I tut the widow of the reverser was considered to have no claim unless 
 the loan were paid up by the heir and the burden extinguished. (n) 
 With regard to real burdens, Professor Bell has observed that these 
 do not seem to be comprehended within the description of subjects 
 liable to terce, (o) apparently on the ground that the infeftment in 
 property upon which a real burden is constituted is the infeftment 
 of the proprietor only, and not of the grantee of the burden. Tercers 
 have also been held entitled to the use of servitudes attaching to 
 the estate to an extent commensurate with their rights, (p) 
 Whether terce is \§2 The infeftment of a trustee for behoof of the real proprietor 
 
 due From estates . . . x 
 
 vested in trus- is in this question equivalent to the infeftment of the proprietor 
 renters. himself. In such cases terce is equally due, whether the trustee be 
 
 infeft on a regular deed of trust, (q) or upon an ex facie absolute dis- 
 position qualified by an unrecorded back-bond. (r) The principle 
 has been extended to various cases in which interests in heritable 
 estate have been created of a nature not inconsistent with the 
 retention and enjoyment of the substantial right in the property. 
 Thus, where an estate was disponed to the granter in liferent, and 
 his son nominaiim in fee, with a power of disposal reserved to the 
 granter, a claim for terce by the widow of the nominal fiar was re- 
 fused, upon grounds which implied that the widow of the liferenter 
 would have been entitled to claim terce, her husband being regarded 
 as the beneficial proprietor, (s) A different decision would doubt- 
 less be given in the case of a party vested by a testamentary dis- 
 position or grant with a liferent coupled with a general power of 
 disposal, as it has been decided that a right of this nature does not 
 amount to a beneficial iee.(t) Estate, the title of which is taken 
 
 (k) Moncrieffv. Newton, 1677, M. 15,733. (p) Ersk.2, 9,48; Littlejohn v. Weir, 1695, 
 
 (/) Stair 2, 6, 16 ; Ersk. 2, 9, 48 ; Ten- 4Br. Sup. 234; Mackenzie, 1628, M. 15,838. 
 
 ants of East Houses v. Hepburn, 1627, M. (q) Belshier v. Moffat, 1779, M. 15,863. 
 
 15,838. Under heritable securities we in- (r) Bartlett \ '. Buchanan, 21 Feb. 1811, 
 
 elude bonds of annuity and debts secured F.C. 
 
 by adjudication. («) Gumming v. Lord Advocate, 1756, M. 
 
 (ro) See Stair 2, 6, 17 ; Ersk. 2, 9, 48 ; 1 15,854, 5 Br. Sup. 843. 
 
 Eraser, 609. (t) Morris v. Tennant, H. of L., 27 Jut. 
 
 \n) See Stair, 2, 6, 17; Ersk. 2, 9, 48; 546. Re Weddell, 3 Feb. 1849; Excheq. 
 
 Dirleton and Stewart, 430. Rep. Alves v. Alves, 8 Mar. 1861, 23 D. 
 
 (o) Bell's Prin. \ 1598, and see note by 712. It would appear from these decisions 
 
 Mr Shaw in Coin.. 6th ed. p. 807. that, in the event of a lapse, the property
 
 IN RELATION TO HERITABLE ESTATE. 
 
 by the proprietor to himself in liferent and to Lis children nascituri chafteb iv. 
 in fee, is subject to terce, and so also is property settled intuitu 
 mortis, under reservation of a power to alter.(w) It appears to be 
 still an open question, whether terce can be claimed in respect of 
 heritable property vested by infeftment in trustees, but in which 
 the beneficial proprietor was never himself infeft. The opinion of 
 Mr Fraser and Professor More is adverse to the claim of the widow 
 in this case ;(x) and it appears to us that a title of this kind is dis- 
 tinguishable in principle from that of a title in the trustee flowing 
 from the beneficial proprietor. In the latter case the proprietor 
 retains the radical title to the property. The trust is extinguished 
 by a simple discharge, without the necessity of a reconveyance; and 
 even during its subsistence the truster may grant an heritable title 
 subject to the burdens created by the trust. He is therefore in 
 form, as well as in substance, a proprietor infeft in the estate, — a 
 proposition which cannot be predicated of a beneficiary under a 
 trust-disposition flowing from another party. (//) 
 
 163. The rule that the husband's infeftment is the measure of Terce due from 
 
 i lie terce, leads to this consequence also, that estate alienated by the S e d,°ifiMeft- 
 husband iivter vivos, to a singular successor, whether upon a irra- !'"'" t ""! u,k,u 
 
 a . . _ | , by purchaser. 
 
 tuitous or an onerous title, remains subject to his widow's terce, 
 unless infeftment is taken by the purchaser in the granter's life- 
 time. (2) By parity of reason, an adjudger, uninfeft in the lifetime 
 of the debtor, takes the estate subject to the claims of the widow, (a) 
 .von though he may have proceeded to charge the superior to give 
 him an entry.(fr) Snob cases are no1 likely to occur in practice, 
 adjudgers have now the moans of taking immediate infeft- 
 ment under the provisions of the conveyancing statm 
 
 164. By an equitable extension of the rule, the widow is entitled objection toan- 
 bo terce from the husband's estate in which he was infeft, notwith-j;' 
 standing objections to the title sufficient to support a reduction, pro- 
 vided the righl was uol challenged during his Lifetime, The reason 
 
 is, thai the heir is uol entitled to take a. I vantage of technical objec- 
 tions, which hie ancestor mighl have obviated had he boon required 
 
 would not pa to thi beii the (z) Carlyh v. Cartyle's Crs., L725, M. 
 
 party who bad the liferent with n |«>w<t "f la K '>1 . ('hiii/>/><// v. Campbell, 1776, 6 Br. 
 
 ,!,-,, Bup.627; Boyd v. Hamilton, 1805, M. 16,874; 
 
 1 ; 618. M'Culloch v. Maitland, 1788, M. 15,8 
 
 I ■ r. in tupra ; M Carruthers v. Johnston, 1706, M. 16,846. 
 
 Stair, p. 219. (a) Hamilton ■ n ■ od, L770, M. 16,1 
 
 1 (b) CarlyU v. Carlyles Creds. 1725, M. 
 
 1 ■ 1 ii Ux I ' ilas, 1 715, 
 
 M. 1
 
 86 ORDER OF LEGAL SUCCESSION 
 
 chapter iv. to do so.(c) And it has been held that a widow was entitled to 
 claim terce oui of estate of which her husband's father had bound 
 himself to grant an infeftment, although the obligation was not 
 implemented in the lifetime of the son.(cf) 
 inor not due 165. Terce is not due from leases nor from heritable estate pos- 
 
 hd?pnonSi. sessed on a personal title, under which we include property derived 
 from an ancestor and possessed upon the title of apparency ;(e) nor 
 from teinds, unless included in an infeftment in lands, (/) or stand- 
 ing on a separate title feudalised, {(f) 
 Not due from 166. Although, as formerly mentioned, the mansion-house and 
 
 superiorities^r'e- appendages are excepted from the feudal subjects liable to terce, (A) 
 versions, patron- {\ j s the general opinion of the writers who have treated of this sub- 
 
 ages, or mine- .,. -in 
 
 rais. ject, that a widow i$ entitled to a second mansion or messuage, it 
 
 there is <me,(i) or at least to a third of its annual value. (k) Houses 
 let by the proprietor are subject to terce, but it is not clear that this 
 rule would apply to a mansion-house. (I) Superiorities are not sub- 
 ject to terce either in relation to feu-duties or casualties, (m) Eights 
 of reversion, of which the case of wadsets has already been men- 
 tioned, are excepted from terce on the ground that they yield no 
 annual profit, (n) The same principle has been considered appli- 
 cable to patronages, (o) Coal and other minerals, as being the con- 
 sumption of the substance of the estate, and not proper revenue, are 
 not subject to the widow's claims. But though a widow would not 
 be entitled to work minerals herself, or to claim a share of the pro- 
 fits, it would seem that, as a liferenter, she is entitled to have from 
 
 (c) Rose v. Fraser, 1790, M. "Terce," Ap. the case of Mead v. Swinton, 1796, M 
 No. 1 ; and see a similar decision in re- 15,873. 
 
 ference to Courtesy, Hamilton v. Boswell, (I) Bell's Prin. \ 1598; Logan v. Oal- 
 
 1716, M. 3117. braith, 1665, M. 15,842. In Menzies v. 
 
 (d) Annandale v. Scott, 1711, M. 15,848 ; Menzies it was held that the value of shoot- 
 Stair 2, 6, 16, and authorities there cited ; ings must be allowed to the widow in a lo- 
 Ersk. 2, 9, 46. But see Carruthers v. John- cality ; 10 July 1855, 17 D. 1090. 
 
 ston, 1706, M. 15,846. (m) Stair, 2, 6, 16; Ersk. 2, 9, 49; La- 
 
 (e) 1 Fraser, 617, and authorities there mington v. Lamington, 1628, M. 8240; Nis- 
 cited. bet v. Nisbet, 24 Feb. 1835, 13 Sh. 517. In 
 
 (/) 3Ioncrief\. Tenants of Neivton, 1667, the last case the greater part of the estate 
 
 M. 15,844. consisted of feu-duties, but the Court re- 
 
 (g) Arbuthnott v. Arbuthnott's Trs., 1805, fused to admit an exception to the rule 
 
 Hume, 294 ; Dunfermline v. Dunfermline, already established by uncontradicted pre- 
 
 1628, M. 15,840 ; Stair, 2, 6, 16 ; Ersk. 2, cedents. 
 
 9, 48. (n) Stair, 2, 6, 16 ; Ersk. 2, 9, 49 ; Mac- 
 
 (h) Supra, \ 161. dougall v. MacdougalVs Crs., 1801, M. 
 
 (i) Ersk. 2, 9, 48 ; Bell's Com. 6th ed. 806. "Terce," App. No. 2. 
 
 (k) See authorities cited in 1 Fraser, (o) Stair and Ersk. tit stipra ; Bell's 
 
 618. The doctrine here stated was con- Com. 6th ed. 806. 
 sidered doubtful by the judges who decided
 
 IX RELATION TO HERITABLE ESTATE. 87 
 
 the workings a supply for her own consumption, (p) Terce is dimi- ohaptebiv. 
 nished by heritable securities on which infeftment has followed ;{q) 
 and, where the security is constituted by ex facie absolute disposi- 
 tion, terce is only due from the reversion, after deducting the value 
 of the debts intended to be secured, (r) 
 
 167. Although service is necessary to give a vested right to Tercer, without 
 
 SfirVlCB llilS tlic 
 
 terce, so that the profits may be assigned or transmitted to execu- right of appar- 
 tors,(6') the widow, without service, has the substantial rights of an oncy ' 
 heir pns>i_-siug on apparency. She is entitled to receive the fruits 
 of the subjects; her discharges to tenants will be valid to the extent 
 of her interest, and no action can lie maintained against her repre- 
 sentatives for repetition in the event of her dying without having 
 completed a title. (/) Before service a tercer has no active title. (u) 
 The title acquired by service draws back to the date of the opening 
 of the succession, ami enables the tercer to sue tenants for arrears, (x) 
 But it is a good defence that these have already been paid bona fide 
 to the heir,(y) against whom recourse cannot be lost, except by the 
 long negative prescription. (a) 
 
 168. A widow is entitled to compensation from the heir for her Rights of tercei 
 share of the value of lands sold by him before fixing her terce ^idbytheLir. 
 lands ;(a) and in the event of a sale after the completion of her 
 
 right, she seems to be entitled to require, either that a third part of 
 the price should be invested in such a manner as to secure her life- 
 renl right,(6) or to require that her right be made a burden on the 
 .'s title, which it will be at any rate, independently of con- 
 vention, unless Bhe joins in the conveyance, (c) A widow suing the 
 heir for arrears of terce i- entitled to the benefit of a rise in the 
 value of the property during the period for which she claims, (</) 
 
 (p) 1 Bell's Com. 68, 6th ed. 806 ; 1.,,- (x) Stair, 2, 6, l">; Ersk. 2,9,60; Veitch, 
 
 m v. Lomington, 1682, M. 8240; Bel- 1682, M. It;,0,s7; A v. B, 1G32, M. 15,842; 
 
 .. Moffat, 1 77'.*. M. 16,863; 1 Fraser, /•'-•/ v. Traill, supra. 
 
 621. <//) Bankt. 2, 6, L6 : Wamphray, 1669, 
 
 ( 7 ) 1 Bell, Com. 69, 6th ed. 808; 1 Fraser, 2 Br. Slip. 440; Dunfermlim v. Dunfermline, 
 
 ithorities there cited; Campbell 1628, M. 14,707, 15,840. 
 
 pbell, 1776, 6 Br. Sup. 627. (z) Stair, 2, G, 15; Ersk. '2, 9, 50; 
 
 (/•) Bell, ( ,''■'.' Bartlet v. /;»- Crighton v. Hamilton, 1682, M. 15,835; 
 
 chorion, 21 F< b. 1811, F.C. Semple v. Crawford, 1625, .M. 16,887; East- 
 
 \pLeish t. I: ,'JI Feb. 1826,4 houses v. Hepburn, 1627, M. 15,838 ;M'Leish 
 
 I.. 191); Stair, 2. 6, l">; Ersk. v. Rennie, supra. 
 
 2, '.1, 66. (") Bell \. Halliday, 8 Dec. 1825, 4 Sh. 
 
 Fea v. TraiXl, 1781, M. 16,115; 286, N. E. 289. 
 
 M/., / pra, per Lord Gil] (A) I Bell, Com. 60; 1 Frasei 628. 
 
 627. (n Boyd v. Hamilton, 1806, M. 16,874, 
 
 2, 6, 1 . ) Bartl tt ' kanan, 21 Feb. IM 1. 
 
 Oli 'hant, 1666, M. 16 I B ' , F.I 
 
 1675, M. 1 H Stair, 2, 6, 15 . I 327.
 
 gg ORDER OF LEGAL SUCCESSION 
 
 ohaptkb iv. but expenditure by the heir, in paying off debt, docs not operate in 
 
 her favour, (e) 
 Responsibility,* 169. By two Acts of the Scottish Parliament//) liferenters and 
 tercer for waste ... )n ; nnc t fiars were required to find caution that they should not 
 
 under Scottish ^"-'"j" • i - 
 
 statutes. was te or destroy the subject liferented, but deliver it, at the termi- 
 
 nation of the liferent, in the same situation as when received, sub- 
 ject to the usual tear and wear. In case of refusal, liferenters may 
 be charged personally to find caution, under pain of the profits being 
 confiscated to the King's use. These statutes have been held to 
 apply to the legal liferents ; and, in a comparatively recent case,^) 
 it was found to be incompetent to proceed against a tercer by way 
 of an action of damages, or otherwise than under the statutes, for 
 waste or mislabouring the lands during her possession. Nor can a 
 tercer be compelled to find caution, except upon grounds which 
 would have warranted an interdict at common law, — that is, upon 
 the allegation of injury already done, and the apprehension of further 
 injury, (/i) 
 Lesser terce. 170. Where a proprietor dies leaving a widow, and terce is al- 
 
 MMe of compu- ready payable out of tlie esta t e to the widow of a former proprietor, 
 the second or lesser terce is restricted to a third of the property 
 beneficially possessed by the late proprietor. In other words, the 
 value of the first terce is first deducted, and the lesser terce is al- 
 lowed out of the remainder. The liferent right of the second tercer 
 is enlarged to a third of the entire estate, in the event of her survi- 
 vance of the first tercer. There is no limit to the number of legal 
 liferents which may accrue out the same estate, but each right, as 
 it falls due, amounts to no more than a third of the free succes- 
 sion. (0 
 
 SECTION IV. 
 OF COURTESY. 
 
 Nature of the 171. Courtesy is a legal liferent accruing to the surviving hus- 
 right and rea- i i f a T) rc .T)rietrix of heritable estate in Scotland. It consists of 
 
 son for itsexis- uc tr i . . 
 
 tence. a liferent of all the heritable estate, not being conquest, m which 
 
 the wife was infeft in fee at the time of her death. (A;) Instead of 
 entering into the inquiries which have engaged the attention of 
 
 (e) Balmaghie v. Balmaghie, 1633, M. (ft) Stair, 2, 6, 19 ; Ersk., 2, 9, 52 ; 1 
 
 15 842. Bankt. 663 ; 1 Fraser, 635. The right is 
 
 (/) 1491, cap. 25, and 1535, cap. 15; by the older authors called the courtesy of 
 
 see Ersk. 2, 9, 59, 1 Fraser, 629. Scotland in contradistinction to the ana- 
 
 (q) Bell v. Bell, 7 Dec. 1827,6 Sh.221. logons, but not identical, rights existing 
 
 (//) Ralston v. Leitch, 1803, Hume, 293. under the same name in England and 
 
 (i) Stair 2, 6, 16; Ersk. 2, 9. 47 : 1 elsewhere. 
 Fraser, 622, and authorities there cited.
 
 IN RELATION TO HERITABLE ESTATE. 89 
 
 authors respecting the origin of courtesy, we shall merely observe chapter iv. 
 that the law is the natural result of the opinions of society, which 
 are shown to be favourable to the principle of this provision by two 
 considerations : — First, that courtesy in practice is never excluded 
 by convention, while terce frequently is ; secondly, that although 
 qo such right has been acknowledged by the law in reference to 
 moveable estate, it is customary, in settling the property of a mar- 
 ried lady, to give the husband a liferent of her moveable as well 
 as of her heritable estate. A sufficient reason for the law is, that 
 it would not be reasonable that a father should be deprived of the 
 status and emoluments of a proprietor by his son. This is what is 
 meant by the explanation, that courtesy is simply an extension of 
 ili'- jus mariti.(l) It is not so, strictly speaking, because the right 
 of courtesy is a proper liferent estate, its continuance is dependent 
 upon certain conditions, ami the right itself is not co-extensive with 
 that of the jus mariti, but is confined to heritage. 
 
 172. To entitle a husband to courtesy, it is essential that a viable Courtesy only 
 child shall have been born of the marriage, (m) who either is at the f an heir. 
 moment of birth, or becomes afterwards, the heir-presumptive to the 
 estate, (w) This rule is sometimes expressed by saying that cour- 
 tesy is given, not to the husband of an heiress, but to the father 
 of an heir. A person who marries an heiress, having a son by a for- 
 mer marriage, will therefore not be entitled to courtesy,(o) unless 
 the Bon "l the first marriage predeceases his mother, or dies with- 
 out having been served heir, survived by a child of the second mar- 
 .(/>) Where an heiress 'lies leaving daughters by both mar- 
 ! -. who succeed as heirs-portioners, ii is the opinion of some 
 authors thai the husband of the second marriage would not beentitled 
 to the courtesy "i the entire estate, hut only to that of the portion 
 to which his own daughters 8UCCeed.(g) Where the heiress is pre- 
 
 2 9,62. Prof. Bellpoinl out, mated per subseqtiens matrimonium gave the 
 
 Com. i. 61, tin- distinction between the widow a right to terce notwithstanding the 
 
 courtesy as an estate in '■ d the jut dissolution of the marriage within a y» ar 
 
 mariti, which is merel] a righi tothepro- ami day; Crawford'a Trs. \. //mi, ism 1 , 
 
 a M. 12,698. This ruling, while no loi 
 
 due and passed into the condition of per- important as regards tin righi of terco, 
 ilty. i authority for giving the hii 
 
 (in) Stair, 2, ii, 19, 2d par.; Ersk. 2, '•', courtesj if tin 1 case should ever occur of a 
 
 l Bell, Com. 61 : Stewart v. Irvine, proprietrix of landed estate bringing a 
 
 1682, M. 8112. 'l I of viability, in child to ber husband before marriage. 
 
 ■ ■ in other ■ el Fi iser, 688. 
 
 i l been beard to cry; (o) Eri k. 2, 9,68 ; Darleith v. Campbell, 
 
 Robert* E M 1702, M. 8118; compart Spena v. Durie, 
 
 SI,. 2 1610, M 8111. 
 
 i and Ersk, ut supra. It ■ (p) I ] 219 
 
 h< Id that the exisl a child legiti- (q) 1 ]
 
 90 ORDER OF LEGAL SUCCESSION 
 
 chapter iv. deceased by all her children of both marriages, the last survivor 
 being of (he second marriage, it would seem that courtesy is due to 
 the surviving husband, because he was at one time in the position 
 of being the father of the heir-presumptive, and it is not necessary 
 to the constitution of the right of courtesy that the heir should ac- 
 tually inherit. 
 From what sub- 173 While, as already stated, the courtesy extends over all 
 
 jects courtesy is " . . 
 
 due. heritable estate (excepting conquest) in which the proprietrix was 
 
 infeft in foe, the surviving husband has the benefit of her posses- 
 sion upon a defective title ; and therefore, if the title is reduced 
 after the wife's death upon defects which might have been rectified 
 in her lifetime, the husband will still be entitled to his courtesy, (r) 
 Courtesy is due from property held by burgage tenure (s) and from 
 feu-duties, (t) but apparently it is not due from casualties of su- 
 periority, (it) 
 From what sub- 174. Courtesy is not due from conquest heritage, or estate which 
 notdue UrteS7 * * ne w ^ e acquired by singular title, (x) but only from estate which 
 she inherited as heir of line or provision, (y) or which she acquired 
 from her ancestor in his lifetime prceceptione hereditatis.iz) The 
 origin of this exception is not well ascertained, and no good reason 
 can be assigned for it. Courtesy, as well as terce, attaches to en- 
 tailed property if it is not expressly debarred by the entail. 
 Vesting of cour- 175. Courtesy vests ipso jure, and does not require any process 
 to clothe the surviving husband with an active title, or to enable 
 him to assign or transmit to executors the rents accruing in his 
 lifetime. («) During its subsistence the heir is not bound to enter 
 with the superior, and is not liable to the casualty of non-entry, (b) 
 Rights incident 176. Courtesy carries with it the usual rights and privileges 
 sfou of Curtesy, pertaining to the estate of a liferenter,(c) including the right to 
 vote for a Member of Parliament. (d) The liferenter is liable to 
 find caution in terms of the Acts 1491, cap. 25, and 1535, cap. 15, 
 
 (r) This proposition, which is adopted (x) Stair, 2, 6, 19, in fin. ; Ersk. 2, 9, 
 
 by Mr Fraser (i. 639), rests upon a decision 54 ; Hodge v. Fraser, 1740, M. 3119, Elch. 
 
 in relation to terce; Hamilton v. Boswell, voce "Husband and Wife, "No. 13 ; Lawson 
 
 1716, M. 3117 ; Robertson, 192. v. Gilmour, 1709, M. 3114 ; Paterson v. Ord, 
 
 (s) Craig, 2, 22, 43 ; Stair, 2, 6, 19 ; Ersk. 1781, M. 3121. 
 
 2, 9, 54 ; Bull, Pr. § 1606, 1 Fraser 640. (//) Stair and Ersk., ut supra. 
 
 (t) 1 Fraser, 640, and authorities there (z) Stair, 2, 6, 19 ; Primrose v. Crawford, 
 
 cited. 1771, M. " Courtesy," App. No. 1 ; Kniyht 
 
 (u) Casualties are due to the party in- v. Robertson, 1798, M. 8815. 
 
 feft as superior, and to him only. The de- («) Stair, 2, 6, 19 ; Ersk. 2, 9, 52. 
 
 cision in the analogous case of heirs-por- (h) 1 Fraser, 641 ; Craig, 2, 22, 42. 
 
 tioners appears to be founded on this prin- (c) Ersk. 2, 9, 54 ; 1 Fraser, 641. 
 
 ciple. See the case M'Neight v. Lockhart, (d) Knight v. Robinson, 1786, M. 8815. 
 30th Nov. 1813, 6 D. 128.
 
 IN RELATION TO HERITABLE ESTATE. 91 
 
 in case of reasonable apprehension of injury to the estate by waste chapter iv. 
 or dilapidation actually commenced, (e) The courtesy is liable to 
 be diminished not only by the annual charge of heritable debts and 
 real burdens,(/) but also by the interest (not the principal) of per- 
 sonal debts, {g) to the same extent to which the estate would be liable 
 for such interest if it were in his possession as absolute proprietor. 
 The liability is limited to the amount of the rents, and there is re- 
 lief against the wife's executors, and also against her heir of con- 
 quest or successor in estate not subject to the courtesy. (A) Courtesy 
 does not subject the husband to liability for the wife's debts or obli- 
 gations, except to the limited extent we have stated.(/) 
 
 (e) Ersk. 2, 9, 59; supra, \ 169. \fenteitk, ut supra. 
 
 (f) See as to terce, supra, \ ICG. (/) See 1 Fraser, G43, and authorities 
 
 (g) See Ersk. 2, 9, 55 : and sec 1 Bell, there cited. 
 Com. G2 ; Menteithv. Next of Kin, 1717, 
 
 M. 8117.
 
 92 
 
 VESTING OF HERITABLE SUCCESSION, 
 
 i'ii u'l'i'.i: v. 
 
 CHAPTER V. 
 
 VESTING OF HERITABLE SUCCESSION, AND 
 TITLE OF THE HEIR. 
 
 I. Possession on Apparency. 
 II. Service and Entry of Heirs. 
 
 III. Vesting of Terce and Courtesy. 
 
 SECTION I. 
 
 Apparent heir 
 distinguished 
 from heir-pre- 
 sumptive. 
 
 Title of appar- 
 ency. 
 
 What subjects 
 vi t by appar- 
 ency without 
 service. 
 
 POSSESSION ON APPARENCY. («) 
 
 177. The person who, on the opening of a succession by death, 
 stands in the relation of nearest heir of the deceased, is denominated 
 an apparent heir. (6) Prior to the exercise of his privilege of ob- 
 taining himself served heir (which he may do at any time), the 
 heir is said to have the title of apparency, which, as will he seen, 
 is a good title of possession, though it does not vest the estate. An 
 eldest son is sometimes termed heir-apparent in his father's life- 
 time, because his right of succession cannot be defeated by the 
 birth of a nearer heir, but in contemplation of law he is then only 
 an heir-presumptive, (c) 
 
 178. I. Vested Rights of an Apparent Heir. — An heir-appar- 
 ent acquires, by survivance of his ancestor, a vested right to certain 
 descriptions of subjects, and as to the rest, he has a right of posses- 
 sion of the nature of a usufructuary interest. 
 
 179. Titles of honour and hereditary offices are said to vest in 
 the apparent heir jure sanguinis. They require uo service, the right 
 being constituted by survivance of the person last seized, (d) Leases 
 also vest by apparency without service, and pass to the heir-at-law 
 
 (a) It is to be observed that although, 
 for convenience, the subject of the rights 
 of the heir-apparent is treated in connec- 
 tion with intestate succession, the doctrines 
 here explained are equally applicable to 
 the relations of law arising in the case of 
 possession on apparency by an heir of pro- 
 vision. 
 
 (b) Ersk. 3, 8, 54; 1 Bell's Com. 5th 
 ed. 09 ; Bell's Pr. \ 1G77. 
 
 (c) See, for example, the use of the 
 word heir-apparent in the Entail Amend- 
 ment Act, II & 12 Vict. cap. 36, g 52. 
 
 (d) Ersk. 3, 8, 77; Bell's Pr. g 1679; 
 Cockburn v. Langtoris Crs., 1747, M. 150.
 
 AND TITLE OF THE HEIR. 93 
 
 of.the apparent heir.(e) Eights heritable, as having tractus futuri chaptek v - 
 temporis — < ..'/.. usufructuary interests in personal property, pensions, 
 &c.— are said also to vest by apparency. (/) Heirship moveables 
 vest in the apparent heir by possession ; if not claimed in bis lifetime 
 they pass with the estate to the next heir of the person last seized. (g) 
 ( lorporeal moveables, such as books, furniture, or pictures, which are 
 entailed or otherwise settled upon heirs in heritage, and so made 
 heritable by destination, vest by possession without service.(A) 
 
 180. Finally, apparency and possession, without any other title, Rents. 
 vesl the right to the rents and proceeds of the heritable estate. (i) 
 
 An heir possessing on apparency, therefore, transmits to his execu- 
 tors his right to arrears of rents, interest on heritable debts and on 
 the price of lands sold, and other unrecovered proceeds. (Jc) 
 
 181. Udal property in Orkney and Shetland vests in the heir Udal property. 
 by survivance without service.(Z) 
 
 182. By the Act for the Registration of Long Leases (20 & 21 Tenant's right 
 Vict., cap. 2d) provision is made for the completion of titles in the l^ges. 
 persons of heirs to the new description of leasehold estate created 
 
 by the Act. by a form of entry similar to that which obtains in re- 
 lation to feudal subjects. Heirs who have been served by general 
 or special service may obtain infeftment by recording a notarial in- 
 strument (§ 8), and the same object maybe accomplished without 
 service, by means of a writ of acknowledgment from the proprietor 
 infeft in the subjects, recorded in the Register of Sasines. The 
 machinery provided by the Act is necessary for the purpose of pre- 
 serving a record of the title to long leases, and securing the rights 
 oi purchasers. It i> not said to be requisite for the purpose of vest- 
 ing the right in the heir-at-law; and. in the absence of any express 
 
 prOVisiQP <>n tin- BUDJect, it would probably he held that the heir's 
 
 right vests at common law withoul service. 
 
 183. Conveyancers will keep in view that heritable rights accni- Estate to which 
 
 ingby intestacy to the heirs-at-law of beneficiaries under unexecuted a beneficiai'tnie. 
 
 // i . 1636, (g) Erek. 8, 8, 77; Bell's Pr. \ L909. 
 
 M. I I, .71: Boyd . Sinclair, 1671, M. (A) Veitch v. Young, 1808, M. " Service 
 
 ii:,// ./ \on, 1675, M. 14,875 ; and Confirmation," App. No. I. 
 
 Campbell v. Cunningham;, L789, M. 14,375; Ei I. 3, 8, 58; Bell's Pr. g 1682; 
 
 Murdoch v. Murd /' ,, 27 Jan. 1863, Weir v. Drummond, 1664, M. 5244. 
 
 IMacph. 830. tn virtue of his title of ap- (/■) Hamilton v. Hamilton, 1767, 2 Pat. 
 
 parency, thi I in ;> re- 137, n 7. M. 521 ' ted infra, \ 
 
 moving ithoul a title ; 190 ■ 
 
 Scott v, Baird, 1764, M. 1 1,876, 6 Br. Sup. (/) Thi i not di tinctly laid down bj 
 
 81 I. ]'fr\ [i . i. iii ii i a nmed b 
 
 upra : Bi Q's Pr. \ 1681 , in the cai i upon titles to thi 
 
 A to i ription of property. BeeBeattonv.Qau 
 
 77 die, 2 Feb. 1882, in Sh. 2
 
 94 
 
 VESTING OF HERITABLE SUCCESSION, 
 
 (II UTF.K V. 
 
 Limitations of 
 the right of ap- 
 parency. 
 
 Division of the 
 subject. 
 
 marriage-contracts and trust-settlements, require to be vested by 
 general service, notwithstanding that the feudal title is vested in 
 trustees. This is a point which is very likely to be overlooked in 
 practice, in consequence of service not being requisite, in the first 
 instance, to vest the right of the beneficiary primarily or condi- 
 tionally instituted under the cleed.(m) But the case is different 
 where a beneficiary acquires a vested interest by survivance of the 
 period of vesting, and afterwards dies without having received a 
 conveyance from the trustees. His heirs in that case do not take 
 the estate in the character of beneficiaries, but in that of heirs-at- 
 law of a party who has a vested right ; and that right can only be 
 taken out of the hcereditas jacens of the deceased by service. The 
 case of Buchanan. v. Angus (n) settled the point, that the right of 
 a substitute under an unexecuted trust-deed lapsed by reason of 
 his having died before connecting himself with the institute by a 
 general service ; and that decision necessarily rules the point under 
 consideration. 
 
 184. Except as to the special subjects above-mentioned, appa- 
 rency, even when coupled with possession, does not vest any right 
 of property in the heir entitled to succeed. In order to the acqui- 
 sition of a vested and transmissible interest in feudal estate, the 
 heir must make up a title by service, or by entry with the superior, 
 in the manner afterwards explained. In the event of his death 
 before having completed a title, the estate is held to remain in 
 licereditate jacente of the ancestor, and consequently passes to his 
 next heir, who is not necessarily the same person as the heir-at- 
 law of the apparent heir who died in possession. 
 
 185. II. Apparency as a Title to Feudal Subjects. — The 
 rights of an apparent heir in relation to feudal estate, are (1) the 
 right of deliberation ; (2) the right of possession, including per- 
 ception of the fruits ; and (3) the right conferred by the Statute, of 
 bringing the ancestor's estate to judicial sale for payment of debts. 
 These we shall examine in their order, (o) 
 
 (m) Gordons Trs. v. Harper, 4 Dec. heir whose claims involves a denial of th.e 
 1821, F.C., and 1 Sh. 185, N. E. 175; right of the late proprietor. Some weight 
 Broughton v. Fraser, 3 March 1832, 10 Sh. 
 418; Ogilvy v. Ogilvy, 16 Dec. 1817, F.C. 
 
 (n) Buchanan v. Angus, 15 May 1862, 
 4 Macq. 374, affirming, on this point, 22 D. 
 979. 
 
 (o) In the case of a competition for the 
 character of heir, the right of intermediate 
 possession is regulated by the Court on 
 equitable considerations. A preference is 
 given to a person claiming as heir of the 
 person last seised in a question with an 
 
 is given to actual possession. In cases where 
 the claims appear to be in pari casu as far 
 as regards the right to interim possession, 
 the Court will sequestrate the estate, but 
 this is a course which the Court is always 
 reluctant to adopt. See the recent cases 
 of Campbell v. Campbell (Brcadalbane Suc- 
 cession), 1 Macph. 991; 4 Macq. 711; 
 Earl of Wemyss v. Campbell, 20 Jan. 1864. 
 2 Macph. 461 ; and Thorns v. Thorns, 27 
 March 1865, 3 Macph. 776.
 
 AND TITLE OF THE HE IK. 95 
 
 186. (1 ) Iii order that the heir might duly consider the expedien- chapteb v. 
 ey of accepting the succession with the burden of responsibility for .^ f 
 the ancestor's debts, ho was allowed an interval of one year, com-beration: how 
 puted from the ancestor's death, (p) termed annus deliberandi, dur- compu ' 
 iug which he was not bound to enter or to respond in any action 
 directed against him in the character of heir,(g) except in relation 
 
 to the widow's provisions. (r) If the apparent heir should die in the 
 course of the year, the next heir had a full year from the time that 
 his right emerged, (s) Facilities arc now given by the Service of 
 Heirs Act(t) for limiting the responsibility of heirs to the value of 
 the estate contained in a specification annexed to the petition; and 
 the reason for delay having been in great measure removed, the 
 term of deliberation has since been cut down by statute to six 
 months.(w) It is understood that actions of adjudication and judi- 
 cial sale instituted against the ancestor may proceed against the 
 heir without waiting the expiration of the term of deliberation, to 
 tin' effect of making the estate liable for the ancestor's debts. (x) 
 Actions directed againsl the heir himself may be executed, but 
 cannot be brought into Court, before the expiration of the semes- 
 trial period, {y) 
 
 187. The heir may tacitly renounce his right of deliberation by Renunciation of 
 taking an entry {z) or assuming possession during the six months, in liberation, 
 which case he incurs the passive liability appropriate to his title of 
 possession, (a) 
 
 188. As an accessory to his right of deliberation, the apparent ^idbitionad 
 
 P ... ttt-t 7 ■ deliberandum. 
 
 heir may bring an action of exhibition ad deliberandum against cus- 
 todiers of the title-deeds, securities, books, or documents of debt 
 affecting the c-tate of the ancestor or the person of his representa- 
 tive.^) The action maybe raised at any time.(c) The deeds re- 
 
 (/>) Ersk. ::, 8, 54; BeU, Pr. § 1G85. (*) Campbell, 17ns. M. 6877. 
 
 'I'll- period ia computed from the date of (//) Summers v. Simson, 1757, M. G8S'_' ; 
 
 birth in the oa e of a posthumous heir; Mackintosh v. Macqueen, 9 July 1829, 7 Sh. 
 
 Summers \. Simson, 17-7, M. 6882. The 882. 
 
 tended by reason of the (z) Edgar v. Halliday, 10:24, 1 Br. Sup. 
 
 I I be b( ii from the countrj al the 17. 
 
 time i opens; llnnlerson v. (a) Hamilton v. Bonar, 1677, M. 6878; 
 
 Campbell, 1788 M. 6292. / : yuson v. M'Qachen, II March L829, 7 
 
 ( V ! : Stewart v. Anderson, Bh. 680. 
 
 1749, '■'.. I i- (b) Maxwell v. Maxwell, 1075, M.4009; 
 
 (r) Piteairn v. WaUtoood, 1702, M. 6876. Buchanan v. .'/. of Montrose, 1705, M. 
 
 («) & Fweedie, 1649, I Mr. Sup. 4010; Crawford v. Crawford, 1711. I\l. 
 
 8980; Spari \. Barclay, 171."., M. 8988; 
 
 (/) L0 & 1 1 Vict., o, 17. .1 , [dair, 1181, M. 8992. 
 
 i: ; . the Tit] to Land Ad 21 & (c) Vi bet v. Whitelaw, L625, M. 8982; 
 
 22 Vict. c. 70, \ 11. Macfarlan ■■ Buchanan, 177'.'. M. 8991.
 
 96 
 
 VESTING OF HERITABLE SUCCESSION, 
 
 I 11 M'TKl; V. 
 
 an apparent 
 heir. 
 
 quired must be specified. (d) In the case of deeds affecting particular 
 csliitcs of the ancestor, the defender's infeftment on an irredeemable 
 conveyance from the pursuer's ancestor constitutes an exclusive title 
 in virtue of which ho may withhold exhibition of the documents 
 called for.(e) Infeftment on a decree of adjudication does not con- 
 stitute an exclusive title until the legal has expired, and decree of 
 declarator has been pronounced, (/) nor is the heir's right to demand 
 exhibition excluded by a trust-deed or other limited title derived 
 from the ancestor. (g) 
 Active rights of 189. (2) Aii apparent heir may continue his ancestor's possession 
 without a title, (A) and has all the active rights necessary to enable 
 him to maintain his possession, except that he cannot remove ten- 
 ants holding on leases from the deceased proprietor,^') but only 
 those deriving right from himself. (Je) He lias a title to challenge 
 deeds of the ancestor as executed on deathbed ; (I) and it would 
 appear that an heir-at-law unentered has also a title to pursue re- 
 ductions of conveyances adverse to his right upon intrinsic nullities 
 or informalities, (m) in which respect he is more favoured than an 
 heir of provision, who must obtain himself served in the proper 
 character before he can be admitted to sue in that character. (n) 
 
 190. The heir is also entitled, as we have seen, to uplift the 
 rents and receive the fruits of his ancestor's estate which he posses- 
 ses on apparency. And it would seem that the husband of an heiress- 
 apparent has the right of possession irrespective of her consent, 
 and that, in virtue of his right of administration, he may bring an 
 action of maills and duties against tenants(o) though he cannot com- 
 
 Perception of 
 
 rents. 
 
 (d) Heron v. Heron, 1750, M. 4019. 
 
 («) D. of Hamilton v. Douglas, 1761, M. 
 3966; Cathcart v. E. of Cassillis, 1795, M. 
 3993, 31 May 1825, 1 W. & S. 240. 
 
 (/) Liddell v. Wilson, 19 Dec. 1855, 18 
 D. 274 ; Douglas v. Holmes, 19 July 1854, 
 16 D. 1116. 
 
 (g) Macfarlane v. Buchanan, 1779, M. 
 3991. As to the right of exhibition com- 
 petent to an heir or claimant of a title of 
 peerage, see Lady M. L. Crauford v. Camp- 
 bell, 2 Sh. 737, N.E. 615 ; 26 May 1826, 2 
 W. and S. 440. 
 
 (A) Ersk. 3, 8, 58 ; neron v. M'Kie, 1741, 
 M. 5239; Ogilvy \. Reid, 1727, M. 5242. 
 But Bell expresses the opinion that a dis- 
 ponee under a personal title might in cer- 
 tain circumstances be entitled to demand 
 sequestration of the estate; 1 Com. 99. 
 
 (i) Paton v. Mackintosh, 1757, M. 5273; 
 Sutherland v. Graham, 1757, M. 5276; 
 
 Campbell v. M'Kellor, 1808, M. " Eemoving" 
 App. No. 5 ; Johnstone v. Martin, 3 March 
 1810, F.C.; Scott v. Fisher, 2 Feb. 1832, 
 10 Sh. 284. See, as to using diligence 
 upon a decree obtained by the defunct, 
 Mackenzie v. Gillanders, 8 Dec. 1853, 16 D. 
 158. 
 
 (k) 2 Hunter on Landlord and Tenant, 
 3d ed., p. 3. 
 
 (1) Graham v. Graham, 1779, M. 3186 ; 
 Hailes, 823. 
 
 (m) Rutherford v. Nisbefs Trs., 12 Nov. 
 1830, 9 Sh. 3 ; Cochrane v. Ramsay (Mur- 
 dieston), 11 Maroh 1828, 6 Sh. 751. 
 
 (n) Bell, Pr., § 1683; Edmonston v. Ed- 
 monston, 1637, M. 16,089. But see Graham 
 v. Graham, supra. 
 
 (o) Per Lord President Hope in Fer- 
 guson v. Cowan, 3 June 1819, reported in 
 a note to 20 D. 662, 663.
 
 AND TITLE OF THE HEIR. 9 i 
 
 pel his wife to make up a title, (j)) The right to the annual income chapter v. 
 of the estate is in the strictest sense a vested interest. (q) The heir, 
 or his executor after his death, is therefore entitled to sue for ar- 
 rears of rent, and has the capacity of granting discharges for them 
 upon receipt of payment, (r) The apparent heir has also right to 
 cut the wood on the estate; but the right itself, and the benefit of 
 any current contracts for silvce ccechice are personal, and do not pass 
 to his executors.(s) 
 
 191. (3) The right of an apparent heir to bring his ancestor s es- Apparent heir's 
 tate to a judicial sale is strictly limited by statute, and it ceases to j^iciai sale. " 
 be competent after regular entry by special service. (7) But it is not 
 
 lost by intromission with the estate in virtue of the title of appa- 
 j,(u) nor by service as heir in general cum beneficio inven- 
 tarii,(x) or with a specification.^) A deed of entail not made real 
 by infeftment dues not bar a sale by the heir for the entailer's 
 debts ;(z) but, according to Professor Bell, an entail completed by 
 infeftment cannot thus be defeated by the heir at his own hand,(a) 
 but the creditors may take proceedings against the estate at their 
 own instance.(6) The instance of the apparent heir is preferable to 
 that of creditors, (c) and the creditors cannot interfere to prevent 
 the heir from exercising his privilege, (d) On the death of one ap- 
 parent beir the action may be insisted in by the next heir, if he re- 
 main unentered.(e) 
 
 192. Alter entry and infeftment it has been held that, in lieu of Equivalent pro- 
 the statutory procedure, the heir may bring an action of valuation, is entered, 
 concluding that, on payment of the value, he should be free of the 
 representation. If, however, the creditors object, they may insist 
 
 "ii baying the estate distributed in an action of ranking and sale at 
 
 Itnd. Tlio case is also reported in (y) Service with specification was intro- 
 
 Hume, p. 222. duced by 10 and 11 Vict., cap. 47, \ 25. 
 
 ('/) 1 B( 19; Ersk., 3, 8, 58; (z) Mitchell v. Tarbutt, 4 Feb. 1809, F.C. 
 
 Karnes' Law Tracts, No.6 (p. 173). ! Bell, Cora., 260. 
 
 (r) Hamiltonr. Hamilton, 8 April 1767, Bj Statute 1G81, c. 17, tbo Court 
 
 If. 5253; Stewart of Si apowered " upon process at 
 
 NicoUon v. //■<> ton, 1756, M. 5249 ; Joatt the instance of any creditor having a real 
 
 v. Lord Banff, 1766, 5 Br. Sup. 912. right" to value, sell and divide the prod 
 
 I Bell, Com., 99 ■ Taylor v. of the sale of estates whereof the heritor is 
 
 Veitch, 24 June 1796, Sir Day Campbell's notoriously bankrupt. Bi are 
 
 Pap. nol entitled like apparent heirs to bring 
 
 (*) 2 Bell, Com. 259, citing cases noted thei tate to al< irn pective of insolvency, 
 
 infra. See the Statuti 1696, cap. 24. and if the heir declii they can 
 
 Blair v. Stewart, 17::::. M. 6247. only attach the estate i.\ adjudication. 
 
 (j) Blair, petr., 1761, M. 6858, and (c) I < . His Apparent Heir, 
 
 v /' all v. Kelton'a Ore., 1 71 li, 1776, Br. Sup. 561. 
 
 and Rutherford, 1748, cited there, and in [d) Hamilton's Ore., 1749, .M. 18,828. 
 
 2 Bell's ( Anonymous case, reported by l'l 
 
 chies, " Ranking an. I Sale," No. 22.
 
 98 VESTING OF HERITABLE SUCCESSION, 
 
 chapter v. their instance. (/) Professor Bell lays clown that an apparent heir 
 may sell voluntarily if not interdicted by creditors ;(g) but it would 
 be necessary that he should complete his title in order to give a 
 conveyance to the purchaser. 
 Judicial sale does 193. A process of sale by an apparent heir does not infer a pas- 
 title!" erpaS e sive title ;(h) and where an heir had renounced in a previous action 
 of constitution instituted against him, it was held that he was not 
 thereby disqualified from prosecuting an action of judicial sale under 
 the statute. (i) 
 Passive liability 194. Possession on apparency renders the heir liable universally 
 heirs. " for his ancestor's debts, in the same way as possession upon an un- 
 
 limited title, (k) The estate is also liable for the ancestor's obliga- 
 tions, and may be adjudged as in hereditate jacente by the ancestor's 
 creditors, (Z) who have a preference over it in competition with 
 those of the heir.(m) The reversionary estate, however, may be 
 attached for the debts of the apparent heir, irrespective of his pos- 
 session, provided the decree is obtained in his lifetime ;(n) for if 
 he die unentered, before an adjudication is obtained, the estate 
 passes from him and his heirs to the next heir of the person last 
 entered, who is under no obligation to represent the apparent 
 heir.(o) This consequence of the rules of succession has been miti- 
 gated by the provisions of the Scottish statute 1695, c. 24, by which 
 persons passing over an apparent heir, who was three years in posses- 
 sion, and entering as heir to a remoter ancestor, are made liable for 
 the debts of the former to the extent of the value of the estate, (p) 
 
 SECTION II. 
 SERVICE AND ENTRY OF HEIRS-AT-LAW. 
 
 Personal rights 195. Subject to the exceptions noticed in treating of apparency, 
 
 service; real by heritable estate possessed by the ancestor on a personal title vests in 
 the heir by general service only, and heritable estate in which the an- 
 
 (/) 2 Bell, Com. 259, citing case of (I) Stat. 1540, c. 106, explained by Bell, 
 
 Kingsgrange; Ersk. 3, 8, 69. 1 Com. 711. 
 
 (g) Bell, Com., ut supra. (m) Stat. 1661, c. 24, explained by Bell, 
 
 (h) Stat. 1695, c. 24, 2 Bell, Com., 260. 1 Com. 727 et seq. 
 
 (i) Smith v. Harris, 3 Mar. 1854, 16 D. (n) Stat. 1621, c, 27, as modified by 
 
 727. See the exposition of the subject of 1661, c. 24 ; 1 Bell, Com. 709 and 727. 
 
 judicial sale for behoof of creditors by (o) This is a necessary consequence of 
 
 Prof. Bell, 2 Com. p. 253, et seq., to which the doctrine that the property does not vest 
 
 frequent reference has already been made. in the heir without a written title; as to 
 
 (k) Stair, 3, 6, 6 ; Ersk. 3, 8, 82 ; Bell, which see the next division of this section. 
 
 Pr. \ 1919. The subject of the passive (p) See Prof. Bell's observations on this 
 
 liability of heirs is discussed, infra, chap- branch of the Act 1695, c. 24, in 1 Com. 
 
 ter 71. 664; also chapter 71. infra. 
 
 iufeftment.
 
 AND TITLE OF THE HEIE. 99 
 
 cestor died infeft vests in the heir by infeftment only, which may pro- chapteb v. 
 ceed either upon a special service or upon a precept or writ of dare 
 constat from the superior. Estate to which the heir has not obtained 
 a vested right is said to be in hcereditate jacente of the deceased, and 
 it is the primary object of a service to transmit the estate from the 
 ancestor to the heir, or to vest the succession, (q) Service may also 
 be considered as a step in the completion of a title to heritable 
 estate ; but it is only in its relations as a mode of vesting the suc- 
 cession that it falls within the scope of this treatise. 
 
 196. A husband cannot compel his wife to make up a title by Husband cannot 
 Bervice to heritable estate to which she has succeeded, though one serve* 
 effect of her refusal is to deprive him of the courtesy in the event 
 
 of his survivance. (r) 
 
 197. The completion of a title by service as heir-at-law (followed Rights acquired 
 by infeftment in the case of special service) gives the heir an abso- dft^Meby 
 lute and indefeasible right to all estate included under it which be- j^ta of nearer 
 longed to the ancestor at the time of his death, provided the person 
 
 serving is really entitled to the character of heir. An heir cannot 
 be dispossessed, nor can his title be set aside in consequence of the 
 subsequent birth of an heir nearer in blood to the ancestor than 
 himself. In the case of Grant v. Grant's Trs.,(s) a father succeeded 
 and served heir to his only son (there being no nearer heir in utero) ; 
 after an interval of two years a daughter was born to him, who, 
 according to the rules of heritable succession, was the nearest heir 
 of her brother, and might have taken up the succession had it been 
 open. The Court refused to sustain a reduction of the service at 
 the instance of tin.' daughter, being of opinion that the precedents 
 relative to Bervice as heir of provision were not applicable to cases 
 (,) Legal succession. It was admitted on all hands that the father's 
 Bervice would have been bad if there had been a child inutero when 
 the succession opened ; and we should imagine that, in the case in 
 question, the hither could not have served heir to his son after the 
 birth "i ln's daughter. 
 
 198. 1. Vesting of Personal Rights. — General service isanactas Definition of 
 legitimue, by means of which the character or relation of heir-at-law : ' 
 is judicially established, (£) and the heritable estate of the ancestor, 
 
 (y) Stair, 3, 5, 2h el srq. ; 4, '■'■.'<: I> 1c, tin"' sulijcct is fully tivutrrl in tin 1 works 
 
 8, 8, &9et$eq.; Bell, Pr. \ 1 si 7 et seq.; above cited. 
 
 M. 11/ tncing, 792 etteq.; Shaw's (r) Ferguson v. Cowan, '■'< Jane 1810, 
 
 Bell, 1084 et $eq. tt has been thought un- Bume, 222; also Lord President Eo] 
 
 ary for the purpc noti , cited 20 D. p. 662. 
 
 ■•r ii]i'. 11 tl; Q -if the f<>] (s) Grant v. Grant'* Trt., 2 Dec. 18.V.1, 
 
 tii.- old procedure 22 I K 68. 
 
 under bri< I (t) " will I beerved thai we treat in 
 
 2g
 
 100 
 
 VESTING OF HERITABLE SUCCESSION, 
 
 iltAI'TKR V. 
 
 Procedure for 
 
 obtaining gene- 
 nil service. 
 
 Objections to 
 general service 
 and title to re- 
 duce. 
 
 so far as standing on personal titles, vested in the person of that 
 heir.(w) With respect to heritable rights not requiring infeftment, 
 tho heir's title is completed by general service. With respect to 
 feudal estate in which the ancestor was not infeft, general service 
 is equivalent to an assignation of the personal title, and enables the 
 luir to take infeftment upon the ancestor's unrecorded conveyance, (v) 
 or, where infeftment is not taken, to transmit the personal right to 
 heirs or assignees. A general service is also a title to the heir to 
 reduce infeftments prejudicial to his right. (;r) 
 
 199. General service is now obtained under the provisions of the 
 Statute 10 & 11 Vict., c. 47, by petition to the Sheriff of the district 
 within which the ancestor died domiciled, or to the Sheriff of Chan- 
 cery, and in all cases to the latter, where the ancestor was not 
 domiciled in Scotland. (y) The petition must be published within 
 the county of the ancestor's domicile, or edictally. (z) The peti- 
 tioner must aver and prove the death of the ancestor, the date at or 
 about which the death took place, and the propinquity of the peti- 
 tioner, (a) Where the service is unopposed, evidence on these 
 points is adduced before the Sheriff ex parte, who, if satisfied, pro- 
 nounces a decree serving the petitioner as nearest and lawful heir 
 in general. The petition and decree are then transmitted to the 
 Chancery record, an extract from which constitutes the title of ser- 
 vice. (6) 
 
 200. No person is entitled to oppose a general service except on 
 the ground that he himself is already served, or is entitled to be 
 served heir in the character alleged, (c) and in practice objections to 
 a service can seldom be effectually maintained except in the form 
 of a competing petition. (d) In cases of competition for service, 
 either of the parties, at any time before proof is begun in the in- 
 ferior court, may advocate the cause for the purpose of trial by jury 
 
 this section of service as a means of vest- 
 ing intestate succession only. The law in 
 relation to vesting by service as heir of 
 provision differs in some important parti- 
 culars from that of vesting in relation to 
 intestacy. It is considered, infra, chap- 
 ter 36. 
 
 (w) Stair, 3, 5, 25 ; Ersk. 3, 8, 63; Bell. 
 Pr. I 1848. 
 
 (v) By executing a notarial instrument 
 under 21 & 22 Vict., c. 76, \ 14, or 23 & 
 24 Vict., c. 143, 1 10. Formerly by exped- 
 ing an instrument of sasine on the unexe- 
 cuted precept or procuratory in the dispo- 
 sition. 
 
 (r) Horn v. Stevenson, 1746, M. 16,117; 
 
 Carmichael v. Carmichael, 15 Nov. 1810, 
 F.C. Where there has been a prior ser- 
 vice, a second service is incompetent, and, 
 from the necessity of the case, it is not re- 
 quired as a title to sue {infra, g 201). 
 
 (y) 10 & 11 Vict.,c. 47, U 3, 4. 
 
 (z) Id., § 10. 
 
 (a) Id., § 4. 
 
 (b) Id., \l 12, 13. Shaw's Bell, p. 1037. 
 
 (c) Aitchison v. Aitchison, 7 March 1829, 
 7 Sh. 558. 
 
 (d) Forbes v. Hunter, 3 July 1810, F.C. ; 
 Cochran v. Ramsay, 1 Sh. 91, N. E. 92; 
 4 W. & S. 128 ; Graham v. Graham, 23 
 Nov. 1850, 13 D. 125.
 
 AND TITLE OF THE HEIR. 101 
 
 .in the Court of Session ;(c) and, when the proof proceeds before the chapter v. 
 Sheriff, the cause may still be advocated after judgment is given in 
 the Sheriff Court for review by the Court of Session upon the 
 merits. (/) A general service is also liable to reduction at any time 
 within the period of the vicennial prescription of services at the in- 
 stance of any person claiming the character of nearest heir in gene- 
 ral.^) In an action of reduction of a service, the primary question 
 is the title, or, in other words, the propinquity of the pursue)' of the 
 reduction.(Ji) The defender has the advantage of a subsisting judg- 
 ment in his favour ; and although lie is not in fact the nearest heir, 
 — although he is not even so near as his competitor, — he may suc- 
 cessfully defend the action b} r showing that there is a nearer heir in 
 existence than the pursuer of the action. (/) 
 
 201. A second general service is not competent until after the Competency of 
 firsl is reduced.(/v) It was formerly supposed that the pursuer of second semce " 
 a reduction of a service must obtain himself served heir in general 
 to give him a title to sue. (7) But by the decision of the House of 
 Lords in Cochran v. Ramsay,(m) the law has been settled in an Murdieston case. 
 exactly opposite sense. A second service may be reduced on the 
 mere production of a subsisting and ex facie valid prior service.(rc) 
 As a consequence of this rule, it is now held that no written title 
 is required to enable a competing heir to pursue a reduction of a 
 service.(o) As already explained, (/>) he must prove bis title in the 
 process of reduction if it is disputed; and if he is successful in re- 
 ducing the subsisting service, he will then obtain himself served 
 heir for the purpose of vesting the succession in bis person, or of 
 challenging an adverse title.(g) 
 
 {>■) Service of Heirs Act, 10. v 11 Viet.. cording to the rubric of the report of Miller 
 
 ■■ 17. \ 17- v.M'JDonald, 21 June 1855, 17 D.978, the 
 
 (/) '''■■ 2 1 8. doctrine in question was denied in thai 
 
 in such ca i • case. The reporl it, i It' is very meagre and 
 
 i.-, whether the pursuer is aearesi and law- scarcely intelligible. 
 
 ful li>ir in of A. I:.; Willox v. (k) Cochran v. Ramsay (Murdieston Ca i (, 
 
 Farrell,\18 Julj L846, 8 D. 1226 ; M'Lean 11 March 1828, 4 "W. & S. 128 ; Young v. 
 
 v. Ml b. 1849, 11 D. 880. The Leith, 16 Jan. 1844, 6 D. 870; Maeara v. 
 
 is now Wilson, 15 Feb. 1848, 10 1». 707. 
 
 regulated by \ 19 of tl ..f n, j rri (/ f gee Shaw's Bell, p. lull. 
 
 ■V-t. (m) A W. & S. 128. 
 
 'ted in Shaw's Bell, (»j Youngv. Leith,6 I'. 870. Bui 
 
 p. 1089, • i fra, i Axscordingly, Wilson v. Whicker, 26 June 1862, II l>. 
 
 the propinquity of the pur u< r oughl to be 919, where mutual n ductions wi re i til t<> 
 
 sel forth in tin Vacgillivray \. trial together. 
 
 Souter, 21 Dec. I860 28 I». 212. Rutherford v. Nisbet's Trs., VI Nov. 
 
 (n Such al lea I bat b en thi univei a] 1880, 9 Sh. 8; Wilson \. Gilchrist's Trs. 
 undi rstanding ■ ill Feb. 1861, 18 I '. 6 
 
 clearly the logical resull of the form in [p) Wilson v. Gilchrist's Trs. supra. 
 
 which tli- i I the jury, A W . extract from th< opinion ol Lord
 
 L02 
 
 VESTING OF HERITABLE SUCCESSION, 
 
 niAI'TER V. 
 
 202. At common law an heir in general was liable in a univer- 
 sal responsibility for the debts and obligations of his ancestor with- 
 
 bmeficio invm- out regard to the value oi the succession. (r) (Jn considerations of 
 equity the rule was modified by the Act 1695, cap. 24, based on a 
 custom of the civil law, to the effect of enabling the heir to serve 
 cum benejicio inventarii, and thereby to limit his responsibility to 
 the value of the estate. By this Act it was provided that, on follow- 
 ing out certain proceedings directed to the object of ascertaining 
 the true value of the succession, the heir's responsibility should be 
 limited to the value of the heritage given up in the inventory, (s) 
 
 203. Under the new form of procedure introduced by the Service 
 of Heirs Act, (t) it is made competent to apply for a general service, 
 the effect of which ?s to be limited to lands or other heritages em- 
 braced in a particular specification thereof annexed to the petition ; 
 and it is declared that the decree of general service, with specifica- 
 tion annexed, shall infer only a limited passive representation of 
 the deceased, and that the heir shall be liable for the deceased's 
 debts and deeds only to the extent or value of the lands or heritages 
 contained in the specification. Under the ancient law, heirs were 
 bound to give up the whole heritable estate of the ancestor, under 
 
 President Inglis (then L. J.-C), in the 
 case of The Officers of Slate v. Alexander 
 (25 March 1866, 4 Macph. 741, 745) some 
 instructive ohservations on the theory of the 
 establishment of claims of propinquity: — 
 " It is a well-known principle of the law 
 of heritable succession in Scotland, that a 
 jJerson who is entitled jure sanguinis to 
 take up the heritable succession of a per- 
 son deceased, may do so at any time, pro- 
 vided he is not anticipated by somebody 
 else acquiring a right in the meantime, 
 and having the right fortified by prescrip- 
 tion. No lapse of time will prevent any 
 person from asserting his jus sanguinis, 
 and taking up the succession to a man who 
 died two or three hundred years ago. . . . 
 A man procures a brieve for serving him- 
 self heir in special to his ancestor, and he 
 fails in establishing his propinquity, and 
 the court of service refuses to serve him. 
 That is not res judicata ; he may purchase 
 another brieve, and a third brieve, and 
 twenty brieves in succession, and may fail 
 in all the nineteen, and succeed in the 
 twentieth. In like manner, he may ob- 
 tain himself served upon what turns out to 
 1>p insufficient evidence, and a competitor 
 challenges his service, and lias il reduced. 
 
 Still, even although in the process of re- 
 duction additional evidence is led and issue 
 is joined between the parties in this Court, 
 the decree of reduction is not res judicata. 
 The claimant may still sue out another 
 brieve of service, and try his case again. 
 . . . If both parties take out brieves, 
 and these brieves come up as competing 
 brieves by advocation, then a full and com- 
 plete trial of the case will no doubt be had 
 between the parties, and probably the re- 
 sult of such a decision as that would be to 
 constitute a res judicata ; but I know of 
 no other way in which the thing can be 
 brought to a final conclusion except in 
 that form." In accordance with these 
 views, it was found to be incompetent to 
 bring a declarator that another person is 
 not the heir of the deceased. 
 
 (r) 1 Bell's Com. 662. 
 
 (s) It is unnecessary to enter in this 
 place upon an examination of the decided 
 law in relation to the liability of heirs 
 serving in this manner. The subject is 
 fully discussed by Bell, in loc. cit. This 
 mode of entry is virtually superseded by 
 that of service with a specification. 
 
 (t) 10 & 11 Vict., c. 47. g 25. Shaw's 
 Bell p. 1042.
 
 AND TITLE OF THE HEIR. 103 
 
 pain of incurring universal liability in case anything were knowingly chapter v. 
 omitted, (u) Under the Sendee of Heirs Act there is no obligation 
 to include the entire estate in the specification. 
 
 204. II. Vesting of Eeal Eights. — For the purpose of vesting Entry of heirs 
 the right to estate in which the ancestor died infeft, the heir may writ of clare 
 either proceed by way of special service, the extract of which is now constat - 
 a warrant fur infeftment,(a;) or he may at once obtain infeftment 
 upon an entry from the superior under a writ (formerly a precept) 
 of dare constat. (y) The writ of dare constat, as its name implies, 
 is a form of entry properly applicable to cases of undisputed succes- 
 sion, by which the superior acknowledges the grantee to be the heir 
 entitled to succeed to the lands described in the writ. (2) Under 
 the old forms the writ contained a precept of sasine for infefting 
 the heir in the lands. Superiors were not bound at common law to 
 grant an entry by dare constat, but under the Titles to Lands Act 
 1858(a) they are bound to do so on production of the last charter, 
 ' _ ther with a decree of general or special service establishing the 
 propinquity of the heir. An entry by dare constat is invalid if 
 granted by a superior who is not himself duly entered ;(&) but it 
 may be validated by accretion, if the superior obtain infeftment in 
 the lifetime of the grantee. (c) Writs of dare constat are effectual 
 during the lifetime of the grantee, notwithstanding the death of 
 the superior, (d) but are not assignable ;(e) and if the grantee die 
 uninfeft, that is, without recording the writ in the Register of Sa>ines, 
 lie- is held to be unentered, and the estate does not pass to his heirs. 
 Entry by dare cons/at i- only a title to the specific estate, (/) it 
 only impli. - passive representation to the extent of the value of the 
 
 (") s . the fa rma of the Statute 1695, (z) Er.sk. 3, 8, 71 ; Bell, Pr. \ 1817 ct 
 
 , -I. SI a Bell, p. 1034. Where the 
 
 10 & 11 Vict., c. 17. \ 21. as modi- immediate heir has died without taking 
 
 'I ill. , to Land up the 1 uc& ion, the next heir ought to 
 
 (//) The old precept of clare w->~ often enter by service; Bell, Pr. £ 1819; Menzies, 
 
 combined with a charter of confirmation. Conv., 3d ed M 805. And see Landales v. 
 
 [t contained the usual 1 a charter, Landale, 1752, M. 14,465; ami Finlay \. 
 
 rocludedwithapreceptof eaaine. The Morgan, 177U M. 14,480. 
 
 Heritable Seem tituted for 21 .\ 22 Vict., ,-. 76, \ 11. 
 
 writ of acknowledgment whicb was Dickson v. Byrne, 1801, M. "Tailzie," 
 
 made registrable in thi ft 1 terofSa ines, App. No. 7. 
 
 thus dispensing with the necessity of an Stair, '1. 8, I ; Ersk. '_'. 7. :'. : 1 Bell, 
 
 instrument of sasine. Write of clare constat Com, 698. 
 
 und< r I Act, and writ (d) L0 & 11 Vict., c. 48, \ 15. 
 
 knowledgmenl under the Heritable Pi epl of clare constat are excepted 
 
 Becuril une from the pn oi the Aci 1698, 0. 85, 
 
 inform and effect, and the 1 in by which other warrant of infeftment were 
 
 the text "entry by elan <■■,„ /,,/" jg to b< ma ible. 
 
 imd( 1 ■ th. 71 Bi II, 1
 
 104 
 
 VESTING OF HERITABLE STJCCESSION. 
 
 (.HATTER V. 
 
 Completion of 
 ri i! right In 
 special service. 
 
 Defences to spe< 
 eial services, 
 and title to re- 
 duce. 
 
 estate,^) and it is not protected from challenge by the vicennial 
 prescription, (h) 
 
 205. Special service is a judicial proceeding for establishing the 
 right of inheritance in relation to estate in which the ancestor died 
 infeft. The procedure under the Service of Heirs Act(i) is similar 
 to that required in the case of petitions for general service, with 
 this difference, that as the object is to obtain infeftment, the lands 
 or heritages must be specified in the petition and decree, (k) Un- 
 der the Titles to Lands Act 1858 infeftment may be taken either by 
 recording the decree itself (in which a precept of sasine is not now 
 necessary) or by recording a writ of dare constat from the superior, 
 proceeding on the narrative of the decree. (I) The right of property 
 does not vest until infeftment is taken, (m) The declaration in the 
 Service of Heirs Act, that the decree of special service should be 
 equivalent to a disposition and assignation from the ancestor, ap- 
 pears to have been intended to save the right of the heir dying 
 before inf ef tment. (n) But the terms of the clause are ambiguous, 
 and it was ruled by a unanimous judgment of the First Division of 
 the Court that the decree is equivalent to a disposition only for the 
 purpose of enabling the heir to obtain infeftment, but not to the 
 effect of vesting any right before infeftment is taken.(o) A special 
 service implies a general one in the same character and to the same 
 lands, and will therefore be available for completing a title by nota- 
 rial instrument in the event of the ancestor's infeftment proving 
 defective or informal. (p) 
 
 206. Petitions for special service may be opposed by competing 
 claimants, (q) and also by disponees of the ancestor if infeft ; for a 
 recorded disposition is an exclusive title to the subjects, (r) Under 
 the old law possession on a disposition, without procuratory or pre- 
 
 (ff) Bell, Pr. § 1023 ; Farmer v. Elder, 
 1683, M. 14,003 ; Rosebery v. Primrose's 
 Exrs., 1766, 5 Br. Sup. 926. But see Ersk. 
 3, 8, 71. 
 
 (h) Ersk. at supra. The act establish- 
 ing the vicennial prescription of retours 
 (1617, c. 13) does not apply to entries by 
 dare constat. 
 
 (i) 10 & 11 Vict., c. 47. See § 199, supra. 
 
 (k) Schedule (B) of Act last cited. 
 
 (I) 21 & 22 Vict., c. 76, §§ 1, 11 ; 23 & 
 24 Vict., c. 143, I 3. 
 
 (m) Ersk. 3, 8, 78 ; Bell, Pr. g§ 1834, 
 847. 
 
 («) Per Lord Curriehill in Moretoris Trs. 
 v. Moreton, 16 D. 1110. note. 
 
 (o) Moreton' s Trs. v. Moreton, 19 July 
 1854, 16 D. 1108. 
 
 (p) 10 & 11 Vict., c. 47, I 23. At com- 
 mon law a special service was held to import 
 a general one in the same character for all 
 purposes. 
 
 (q) See Shaw's Bell, p. 1039. 
 
 (r) This appears from the nature of the 
 inquiry in the old form of service, as to 
 which see Ersk. 3. 8, 67 ; but the service 
 is not excluded by a disposition to another 
 party on which infeftment has not been 
 taken ; Suttie v. D. of Gordon, 1733, M. 
 14,457 ; Douglas v. D. of Hamilton, 1761, 
 M. 11.457.
 
 AND TITLE OF THE HEIR. 105 
 
 cept of sasine, could not be used to exclude a special service ;(s) CHAPTEIi Y - 
 and the disponee could only attack the heir's title indirectly by 
 bringing an action to compel him to convey, called an action of 
 constitution, which was followed by a separate action (in mo- 
 dern practice combined with the first action) fur adjudication in 
 implement. (tf) A disponee would not now require to oppose an ap- 
 plication for special service, as he has it in his power instantly to 
 put his disposition on record, or to expede a notarial instrument 
 upon it if it is a general conveyance, and thereby to acquire a pub- 
 lic title exclusive of that of the heir-at-law and his assignees. (w) 
 Applications for special service may be advocated, and decrees 
 brought under reduction, in the same manner as in the case of 
 genera] service ;(sc) and a subsisting decree of special service is an 
 absolute bar to the granting of a service, whether special or gene- 
 ral, t<> a different individual in the same character.(y) The impe- 
 diment may. as we have seen, lie removed by an action of reduc- 
 tion, to the successful prosecution of which the establishment of a 
 title preferable to all others is a necessary condition. (2) 
 
 207. The entry of heirs by adjudication on a trust-bond is some- Tentative title 
 times resorted to a- a tentative title for the purpose of challenging JjjJiJltJj!^ 
 an adverse right without incurring passive representation. (a) It 
 
 need never be resorted to where a title can be made up by general 
 service ; lor it is settled that general service does not infer passive 
 representation, unless the estate passes. (b) Indeed, it is probable 
 that this rule (which is purely an equitable exception) would be 
 extended to ineffectual entries by special service, if the question 
 should ever come to be tried. However that may be, adjudication 
 on a trust-bond i> a competenl mode of entry.(c) 
 
 208. According to Professor Bell, the heir grants a bond for a Form of p 
 Bum above the value oi the estate.(d) Od this hood the creditor dure- 
 
 ' • : • and Douglas, supra. (c) Gordon v. Ogilvie, 1761, M. 14,070; 
 
 io Erek. ■-'. 12, 60 ; 1 B I om. 749. Hepburn v. Scott, 1781, M. 1 1,487 ; Umhcr- 
 
 („) : 76, \\ 1, 12; ford v. Nisbet's Trs., 12 Nov. 1830,'.) Sh. 
 
 28 & -_'4 Vict cap. 1 18, '',/,. ■>. 8. '■'>■ This mode of entrj may be r< Mrted to 
 
 10 & It \ * t ■ ip. •!:. \\ 17. is. 19. by ;> party pending the trial ofhis right to 
 
 •v. 11 March 1828, make upa title by servici ; Craigiev.Ker, 
 
 4 W. ~\ s. 128. 1808, M. "Adjudication," App. No. \n. 
 
 (2)5a/wa,§200,wherethe( cited. ('/) A deed in trusl for r aveyance 
 
 Bell, ?t. I 1869. By Kc\ of Sede- does not afford a 
 
 runt, 28 Feh. 1662, confirmed hy Stat. 1695, pletion "fa tentative title, because the 
 
 c. 24, intromi ion oi thi title infers pas- granter is not tl radi- 
 
 Bive representation, correcting the doctrine cal title to thi estate; D nlop v. Cochrane, 
 
 laid down in Olendontoyn •. . /■:. of Nitht- :'.l March 1824, 2 Sh. (Ap. Ca.) 115. Would 
 
 dale, 1662, M. 9788 and '.'711. a trusl for sale bi ufflcient? 
 
 (b) /:. oj /','" /' 7 March 18! 
 e, Sh. '■'- ti 'I
 
 100 
 
 VESTING OF HERITABLE SUCCESSION, 
 
 CHAPTER V. 
 
 Exceptions. 
 
 Active title. 
 
 proceeds to adjudge the estate in implement, and, having completed 
 his title, is in a position to reduce the adverse title. If the action 
 is successful, the bond and decree of adjudication are conveyed to 
 the heir, in whose person the debt is extinguished confusione.(e) 
 
 209. In connection with the subject of apparency, we have al- 
 ready noticed the questions that have arisen in relation to the vest- 
 ing of long leases, and the vesting of beneficial interests under un- 
 executed trust-deeds in the person of the beneficiary's heirs-at-law. 
 In the former case service does not appear to be necessary to vest 
 the right ; in the latter it is so.(/) 
 
 210. We have seen that the proceedings requisite for vesting 
 the right of property in the heir are the same which give him an 
 active title. For a. more particular account of the method of com- 
 pleting titles to inheritance, reference must be made to treatises on 
 conveyancing, (g) 
 
 SECTION III. 
 
 Terce vests by 
 survivance and 
 
 service ; 
 
 Or by divorce. 
 
 VESTING OF TERCE AND COURTESY. 
 
 211. The right to terce, like the heritable succession itself, ac- 
 crues by survivance, but service is necessary to vest an assignable 
 interest. A tercer unserved has not even the rights of an apparent 
 heir in relation to her liferent interest. She may receive payment 
 of her third of the rents, but cannot use diligence against tenants 
 or possessors. (A) Without service the right to unrecovered arrears 
 does not transmit to the widow's representatives. The decision to 
 this effect in M'Leish v. Ben?iie,(i) although contrary to the rule 
 established in relation to the succession of apparent heirs, may be 
 supported on the ground that, as regards terce, the rights of posses- 
 sion and assignation constitute the whole liferent estate, and there- 
 fore to allow arrears to pass without service w r ould be virtually to 
 abrogate the rule that service is necessary to vest an assignable in- 
 terest, (k) 
 
 212. Terce also' accrues by the dissolution of the marriage by 
 divorce on the ground of adultery or desertion by the husband. (?) 
 The right acquired by the service of a tercer is of the nature of a 
 
 («) Bell, Pr. ut supra. 
 
 (/) Supra, H 182, 183. 
 
 (g) Mcuzies on Conveyancing, 3d ed. p. 
 792 et seq. 
 
 (h) Ersk. 2, 9, 50 ; 1 Fraser, 626 ; Yoc- 
 man v. Oliphant, 1666, M. 15,843 ; Barclay 
 v. Scott, 1675, M. 15,844. 
 
 (») M-Leish v. Rennie, 21 Feb. 1826, 4 
 Sh. 485, N. E. 491. 
 
 (k) As to the necessity of service to vest 
 the right, see Stair, 2, 6, 15 ; Ersk. 2. 9, 
 55; and contra, Bankt. vol. i. p. 661. 
 
 (/) Supra, § 158.
 
 AM) TITLE OF THE HEIR. 107 
 
 personal right tu heritable estate. A real right may be acquired ohaptebv. 
 by the process of kenning, or by a voluntary partition, usually car- 
 ried out through the medium of a submission. 
 
 213. I. Acquisition of a vested right by Service. — Service of Procedure in the 
 
 SCTV1C6 01 
 
 a tercer still proceeds under the ancient form of process commenc- tercet. 
 ing with a brieve from Chancery. The brieve(m) is in general 
 terms, and is addressed to the Sheriff of the county where the 
 lands lie, or to the Sheriff of Edinburgh if the lands are in different 
 counties, (n) The procedure is regulated by the Statute 1503, cap. 
 94. The (piestions remitted to the Assize are, Whether the claim- 
 ant was lawfully married ? and Whether her husband died last vest 
 and seised in the fee of the lands ? The widow presents a claim 
 affirming her marriage, and specifying the lands. (o) With refer- 
 ence to the first point, it is declared by Statute(p) that the appli- 
 cant is entitled to be served if the alleged marriage was not chal- 
 lenged in the lifetime of the deceased, and if the applicant was 
 habit and repute his lawful wife, though the heir should offer to 
 prove that she was not lawfully married. In practice it is held 
 that the Assize are not entitled to judge of this question ; the heir 
 must bring an action before the Coiisistorial Court, now the Court 
 of Session.^) 
 
 214. rpon the second point, the jury must be satisfied that the Questions as to 
 deceased proprietor was infeft in the lands mentioned in the claim, 
 
 the best evidence of which is the production of the sasine or regis- 
 tered disposition, or an extract from the record.(r) We have seen 
 that a proprietor is not held to be divested by the execution of a 
 trust for b( boot of creditors, or for purposes which do not exhaust 
 the estate, or by a deed in which his liferent is reserved together 
 
 with a power of disposal of the fee, and that his radical right is 
 
 sufficient to support a claim of terce.(«) In such cases, accordingly, 
 the right to terce is founded no1 on the infeftmenl upon the quali- 
 fied conveyance, but on the infeftmenl which preceded it, and which 
 constituted the granter's title. The subjeel from which it is claimed 
 is the value of the heir's reversionary interest. (/) 
 
 215. The judgment of the Sheriff, Lnterponing his authority to Judgment and 
 the verdict upon the brieve, is the tercer's title.. It is not ret our- !' 
 
 able to Chancery, and cannot be brought under review by advoca- 
 
 (m) For the form of the brieve and de- (</) Ersk. 2, 9, 50; 1 Fra ■ r, 623. 
 
 of procedure under it, reference id (r) Stair, 4, 8, 11 ; Erekine and Fraser, 
 
 to Stair, 1, 8, 1 1 ; and 1 Jurid. Styles, ut supra. 
 
 •1tli ed., p. 826, and Stat. L608, cap. 94. Supra, \ 162. 
 
 i 2 Geo. IV., cap. 88, \ 11. \t) Belshex . Moffat, 1779, M. 15,868 ; 
 
 if I. Styli Ith ed., p. 826, Bartlett v. Buchanan, 21 Feb. 1811, F.O. 
 1608 cap. 77.
 
 run 
 
 L08 VESTING OF HERITABLE SUCCESSION, 
 
 chaptbb v. tion after verdict.(«) In a reduction, the pursuer must take an 
 issue upon the points involved in his allegations ;(sc) and where 
 these relate to the state of the ancestor's title, he must prove not 
 only that the title was informal, but that the defects were such as 
 could not he rectified in the ancestors lifetime. (y) 
 Effect of service 216. Service vests in the widow a pro indiviso usufructuary in- 
 terest in the estate to the extent of her third, (z) Service vests the 
 right to arrears(a) which may be recovered from the tenants, or from 
 the heir if he has received them. (6) The tercer's rights commence 
 at the same time as the heir's, (c) and her means of enforcing pay- 
 ment by action and diligence are the same,(c£) except that, as her 
 right is subordinate to the heir's, she has not the power of removing 
 tenants, nor can she interfere with the exercise of that right on the 
 part of the heir.(e) 
 
 Form and appli- 217. II. ACQUISITION OF A KeAL ElGHT BY KENNING. — After ser- 
 
 cation of the . .,. .-,.. 
 
 process of ken- vice as a tercer, the widow is entitled to have her pro indiviso usu- 
 fructuary interest divided. (/) This is accomplished under an old 
 form of process called kenning to the terce, which differs in its pro- 
 cedure from an ordinary process of division. The Sheriff, or a valu- 
 ator selected by the parties, proceeds to the ground, and after deter- 
 mining by lot whether the division shall be commenced " by the 
 sun or the shade," he sets off the first two acres for the heir, and the 
 third for the widow, and so on till the whole terceable estate is 
 divided, (g) Indivisible subjects, as houses, pasturages, and other 
 
 (u) Stair, 4, 3, 17 and 18. See also (e) 1 Eraser, 628; Barclay v. Scot, 1675, 
 
 Cathcart v. Rocheid, 1772, M. 7663, and M. 15,844. 
 
 M'Neightv. Lochhart, 30 Nov. 1843, 6 D. (/) Mr Fraser (vol. i, p. 624), not without 
 
 139, per Lord Justice-Clerk Hope. some support from previous authorities, dis- 
 
 (x) Paxton v. Paxton, 13 June 1840, 2 tinguishes the rights acquired by service 
 
 L). 1102. and kenning respectively, as jus ad rem 
 
 (y) Rosev. Fraser, 1790, M. "Terce," App. and jus in re. But, in substance, the 
 
 No. 1 ; Campbell v. Brown, 17 Feb. 1829, widow's right is as real before division as 
 
 1 Jurist, 83 ; and see Hamilton v. Boswell, after. She may compel tenants to pay to 
 
 1716, M. 3117 ; affirmed, Roberts. 346. herself, and may personally use unlet sub- 
 
 (z) 1 Bell, Com. 60 ; 1 Fraser, 627. jects. Kenning is, in substance, merely a 
 
 (a) Stair, 2, 6, 15; Ersk. 2, 9, 55; process of division of estate previously held 
 M'Leish v. Rennie, 21 Feb. 1826, 4 Sh. pro indiviso. 
 485, N.E. 491. (g) Stair, 2, 6, 14 and 15 ; Ersk., 2, 9, 
 
 (b) Crighton v. Hamilton, 1532, M. 50. The authority of these authors is in 
 15,835; Semple v. Craivford, 1625, M. favour of a more convenient mode of divi- 
 15,837 ; Easthouses v. Hepburn, 1627, M. sion, e,g., by dividing the whole estate into 
 15,838, and authorities in preceding note. three portions, or assigning alternate sub- 
 
 (c) Belshier v. Moffat, 1779, M. 15,863; jects to the heir and the widow. In prac- 
 Easthouses v. Hepburn, supra. tice this is done under a submission to a 
 
 (d) Veitch, 1632, M. 16,087; A. v. D.. person accustomed to value lands. The 
 1632, M. 15,842; Fea v. Traill, 1731, M. parties may then execute a deed of divi- 
 16,115. siorj ; hut it is understood that the posses-
 
 AND TITLE OF THE HEIR. 109 
 
 .servitudes and heritable debts, are not divided in modern practice, chapter v. 
 but one-third of the annual rent or value is given to the widow. (/;) 
 The valuation being certified to the Court in writing, the Sheriff in- 
 terpones his authority, and afterwards proceeds to the lands and gives 
 personally, or by a mandatory, symbolical possession of the terce 
 lands by delivery of earth and stone of the ground. (7) The title is 
 completed by an instrument of possession, which does not enter the 
 Register of Sasines.(&) 
 
 218. The powers of a tercer, served and kenned, are those of a Eights of a 
 liferenter by constitution. She has the right of occupation, and the to her terce. 
 lowers of letting the terce lands and removing tenants.(t) She is, 
 therefore, under the same obligations as an ordinary liferenter(m) to 
 
 use the subject sdlva rei substantia, and to retrain from waste or 
 dilapidation. During her possession the terce lands cannot be 
 alienated except under reservation of her liferent, or upon such 
 terms as she may agree to.(n) 
 
 219. III. Vesting of Courtesy. — Courtesy vests by the hus- Courtesy vests 
 band's survivance of his wife, and requires no service or other pro- 7poss 
 ceeding either to vest the usufructuary interest or to give an active 
 titk.(o) It is said to be an extension or prolongation of the hus- 
 band's y«« mariti and right of administration ; but although the na- 
 ture of the right is similar, if not identical, the subjects over which 
 
 it extends are less extensive, for, as we have already seen, courtesy 
 does not extend to conquest. 
 
 220. It has been Laid down, (jp) on the authority of an ancient deci- Right to levy 
 sion, that the right of courtesy, like thejus mariti, only vests a title arrearso ren- 
 to the fruits of the estate after they have been actually received, and 
 
 that the righl to unlevied rents, etc., does not transmit to executors. 
 The i rred to, as Mr Fraser observes, was really decided upon 
 
 the plea of bona fide consumption :(</) and, in any view, the decision 
 can scare* ly be accepted as conclusive on the question of vesting. 
 
 sion of the widow upon the title of her ser- (I) Ersk. 2, 9, 60 ; 1 Fraser, 628; draw- 
 vice and decree of division is sufficient to well v. 7'« nants, 1030, M. 15,842. 
 ) i ■ r a real security over the rents. (m) Supra, \ 169. 
 
 I i ■ r. 626, and Boyd v. Hamilton, (n) 1 Bi II, Com., GO; 1 Fraser, 628; 
 
 L806, M. K. 374. Boyd \. Hamilton, L806, M. 16,874. 
 
 I . ■ 626,626; Bell, Pr. \ 1602 ; (o) Stair, 2, 6, 19; Ersk., 2, 9, 62; 
 
 Modern ie, L628, 81 L6.88S : Logan v. Gal- 1 Fra er, 641. 
 
 braitk, 1666, M. 16,842, I Br. Bup. 607. B( II, Pr. § 1608 ; I Fra ■ r, 641. 
 
 (i) St:iir, ErsHne, and IV. i i r, ut "j'ra; (yj M'Auley v. Watson, 1686, M. :; 1 1 2 ; 
 
 Wamphray, L669, 'l Br. Bup. 440. 1 Br. Bnp., 868. 
 (k) 1 Jurid. St. ; :., p. 827.
 
 CHAVTER VT. 
 
 OUDEH OF LEGAL SUCCESSION 
 
 CHAPTER VI. 
 
 ORDER OF LEGAL SUCCESSION IN RELATION TO 
 MOVEABLE ESTATE. 
 
 I. Success ion of Personal Represen- 
 tatives. 
 
 II. Of Legitim. 
 III. Of Jus Relictce. 
 
 What part of a 
 defunct's per- 
 sonal estate be- 
 comes intestate 
 succession. 
 
 221. Succession in moveables, or executry, may be defined to be 
 the devolution by law of the moveable or personal estate of a person 
 dying domiciled in Scotland, and intestate ; or the devolution by 
 law of so much of his estate as he was by the law of Scotland en- 
 titled to dispose of by will, (a) At common law no married person 
 was entitled to dispose of the entirety of his or her personal pro- 
 perty by will or testamentary disposition. The personal estate of 
 the wife merged by marriage in that of the husband, and the fiction 
 of a communio honorum was invented to explain the right of pro- 
 perty which the husband thus acquired over the wife's personal 
 estate, (b) But the theory of communio bonorum, however unmeaning 
 as applied to the rights of the spouses inter vivos, had important 
 consequences in relation to their succession. Upon the dissolution 
 of the marriage, the goods in communion were divided. The wife, 
 if she survived, and her heirs if she predeceased, took the one-half 
 of the joint-estate, limited to one-third in the event of there being- 
 issue of the marriage surviving at the period of division. The 
 husband or his heirs took the other half, if there were no issue sur- 
 viving. If there were children of the marriage surviving, and the 
 division took place upon the death of the husband, the widow had 
 one-third, under the name oijus relictce ; the children another, under 
 the name of legitim (portio legitima) ; the remaining third part only 
 was subject to testamentary disposition. If the division took place 
 upon the death of the wife, her share passed to her legatees, or, in 
 case of intestacy, to her children or next of kin. The two-third 
 parts of the joint-estate, which, in case of there being a family, re- 
 
 (a) Stair, 3, 8; Ersk. 3, 9; Bell, Pr. 
 § 1860 et seq. 
 
 (b) See 1 Fraser, Pers. and Dom. Rel. 
 322 et seq.
 
 IN RELATION TO MOVEABLE ESTATE. 1 1 1 
 
 mained with the husband, were subject to the children's legitim, chapter vi. 
 which, however, became payable only on the father's death, and 
 then resolved into a claim to one-half of his free succession. Such 
 is a brief, and necessarily imperfect summary of the law of division 
 of the goods in communion prior to the passing of the Moveable 
 Succession Act 1855. (c) 
 
 222. The Moveable Succession Act, (d) by depriving the wife's Effect of the 
 legatees and next of kin of their right to a share of the succession ^^r^Act" " 
 where the- wile predeceases the husband, has removed the only solid 
 support upon which the doctrine of communio bonorum was rested. 
 
 In the existing state of the law it will be convenient to disregard 
 that fiction, and to consider the jus relictce as a legal provision of 
 the same nature as terce, courtesy, and legitim. (e) 
 
 SECTION I. 
 OF THE SUCCESSION OF PERSONAL REPRESENTATIVES. 
 
 223. I. Succession accruing before 25th May 1855. — The lines Order of succes- 
 of succession in moveable estate at common law, and the order of j^ atcommon 
 preference among these lines, is the same as in heritage, but the 
 principle of the succession is that of equal distribution amongst the 
 
 nearest of kin or relatives nearest in degree to the intestate. The 
 children of relatives in any degree are considered more remote than 
 their parents ; grandchildren are a degree further removed; and so 
 on.(/) There is no representation^/) as in heritage; and, from 
 what lias been already said, it follows that there is no right of 
 primogeniture, no preference of males, and no distinction of herit- 
 age and conquest. The heirs entitled to the moveable succession 
 are called next of kin. 
 
 224. In each line of succession relatives of the full-blood ex- Probation of the 
 elude those of the half-blood consanguineaD and their descendants ; '" 
 
 Hi- half-h] I. 
 
 (c) The rules of division <>!' the gooda in g I- in communion, according to the rules 
 
 communion wen- still further complicated in force prior i" 1855, we beg to ret, i to 
 
 by the condition thai all ri^ht* acquired Mr Fraser's Treatise, vol. i, p. 528 et seq., 
 
 by marriage became void in thee;, e of the and Bell, Pr. U 1574 et seq. In ii 
 
 mania red. within a year and nil bearings the subject is not affected by 
 
 nil', ut tli.- birth of a living or viable recentdecii ions. The lawoflegitim aadjus 
 
 cliil'l. 'n^ test of viability, according to relictce is treated in a subsequent chapter, 
 the law of Scotland, was, that the child had [d) Is Vict., c. 28. 
 
 been hi ard to cry, and this criterion is still (. | Infra, Beet. '_' and '■'>. 
 
 applicable in other cases where questions (/) Ersk. 8, 9,2; Bell, Pr, \\ I860, 
 
 li pend <m t!i> birth et i( \ table L861 . 
 child. n.nl , Fowlit \. Gilmour, 1672, 2 
 
 <in Up- subject of Hi" division of tli" Br. Sup. 618
 
 112 ORDER OF LEGAL SUCCESSION 
 
 ohaptbb vi. but the half-blood of a nearer line of succession excludes the full- 
 blood of a more remote line. (A) The half-blood uterine and the 
 maternal relatives are altogether excluded from the succession. 
 
 225. The lines of succession are, (1) Descendants ; (2) Col- 
 laterals ; (3) Ascendants, with the collaterals of the different as- 
 cendants in their order. (/) 
 Table showing 226. According to the rules previously explained, the order of 
 Ss£nat?om- C ' succession will be as follows :- 
 
 mon law - I. (1) The intestate's children ; (2) his grandchildren ; (3) his 
 
 great-grandchildren, etc., etc. 
 II. (1) The intestate's brothers and sisters of the full-blood ; (2) 
 his nephews and nieces of the full-blood, or their descend- 
 ants of the. nearest degree ; (3) the intestate's brothers and 
 sisters of the half-blood ; (4) his nephews and nieces of 
 the half-blood, or their descendants of the nearest degree. 
 
 III. The intestate's father. 
 
 IV. Collaterals of the intestate's father, viz., (1) uncles and aunts 
 
 of the full-blood ; (2) first cousins, or their descendants 
 of the nearest degree ; (3) uncles and aunts, being half- 
 brothers and half-sisters consanguinean of the intestate's 
 father ; (4) cousins, being children of the above, or their 
 descendants of the nearest degree. 
 V. The intestate's grandfather. 
 VI. Collaterals of the intestate's grandfather of the nearest de- 
 gree as before, etc., etc. 
 No representa- 227. .Representation being admitted in heritable, but not in 
 
 ™°<!L^n Vea e moveable succession, it follows that an heir in heritage succeeding 
 by representation is not one of the next of kin. For example, if a 
 person should die intestate leaving younger children, and a grand- 
 son by an eldest son deceased, the grandson would be the heir in 
 heritage, but would not be of the next of kin, and would not be en- 
 titled to a share of the moveable succession, (k) 
 Principle of col- 228. Where the heir in heritage is also one of the next of kin, he 
 may claim a share of the moveable succession, but only on condition 
 of collating or sharing the heritage with the other next of kin. An 
 heir who is the sole next of kin will take both the heritable and the 
 moveable succession; and heirs-portioners who are sole next of kin, 
 will share both, not on the principle of collation, but of equal right. 
 
 (h) Ersk. supra ; Gemmil v. Gemmil, and see Anstruther v. Anstruther, 20 Jan. 
 
 1729, M. 14,877. 1836, 14 Sh. 272. The suggestion of 
 
 (i) This is more fully explained in con- Erskine, 3, 9, 3, that an heir taking by 
 
 nection with heritable succession, antea, representation may be entitled to collate 
 
 section 1 (1). is evidently erroneous. 
 
 (*) M'Caw v. M'Caw, 1787, M. 2383; 
 
 succession 
 
 lation.
 
 IN RELATION TO MOVEABLE ESTATE. 113 
 
 The subject of collation in its relations to the division of cxecutry ohapxes vi. 
 and legitim is elsewhere considered. (7) 
 
 229. The succession to the wife's share of the goods in commn- Succession to 
 nion falls, first, to the children (of whatever marriage), or their near- ^S^rani^ 
 est descendants; and next, to the relatives in the collateral and munion - 
 ascending lines in the order of law.(m) 
 
 230. While the children of a marriage succeeded to their Title of the 
 mother's share of the goods in communion, they were entitled, if of ^ves™ 1 "'"'" 
 full age, to demand payment immediately after her death, otherwise 
 
 as soon as they had respectively attained the age of majority. (n) 
 The wife's children by a previous marriage might demand imme- 
 diate payment, by themselves or their guardians. (o) The claim of 
 the wife's children or other next of kin was a debt in a question with 
 the head of the family or his creditors, for which they were entitled 
 to r.i nk as personal creditors in bankruptcy. (p) The fund to be 
 divided consisted of the husband's free estate, as at the date of the 
 dissolution of the marriage.^) 
 
 231. It is believed that, in practice, the claim of the wife's next operation of the 
 of kin was nol often insisted in. If there was no familv, and no Y ife ' 8 claim j n 
 
 J ' former pracl id 
 
 marnage-contracl renouncing the rigid, the wife would naturally 
 leave ber share of the common property to her husband by will. 
 If there was a family, the claim would not be made during the 
 father's lifetime ; and if the father made an equitable will it would 
 n.it be necessary to resort to it after his death. In many cases, 
 doubtless, the wile's collateral relatives were prevented from mak- 
 a claim through ignorance of the strange theory of law which 
 gave rise to it. In other cases the claim was made so long after 
 the opening of the succession as to give rise to questions of pre- 
 Bcription, of bar by mora, and of liability to interest. Under the 
 nt law such claims can only he made in respeel of successions 
 opening prior to the Moveable Succession Act L855, and as the 
 questions arising under them an- im longer of practical importance, 
 we shall confine our notice of them to a list of the authorities. (V) 
 
 / ■ chapter 8. 596 599; Hog \. Lashley, 15 Dec. L790 
 
 (m) 1 Fi - r, 696; Bell, Pr. \ 1680. and 7 May 1792, 8 Pat. 247; Steele's Trs. 
 
 (") Er k. 8, 9, 21 ; Bi ll. Pr. \ 1680; 1 v. Cooper, L6 June 1880, 8 Sh. 926; Bardie 
 
 696. v. Kay's Trs.. 12 Feb. L823, 2 Sli. 213, 
 
 (e>) 1 Fra r, 696. N.E. 1ST; Menzies v. Livingston, 6 July 
 
 I Bell, Com. 6th ed. < 1888, 16 Sh. 1268; Smith v. Barlas 15 
 
 (q) The wife's funeral expei havi Jan. 1857, 19 D. 267; Kennedy \. Bell, 
 
 been heldto I ion 17 Dec. 1869, 22 D. 269, 2 Feb. L864, 2 
 
 accruing to her : Marshall v. Macph. 587. On the plea oi bai bj mora, 
 
 I'n.hii/, 17 17. M i- / idlayv.Cald Lawson v. Lawson, 1777, M. "Legitim,' 
 
 1747, M. 59 App. No. I ; llardie v. Kay's Trs. supra; 
 
 (r) Bee on the subject generally, 1 Fra er Cullen v. Wetnyss, 16 Nov, L888, I D. 82; 
 
 VOL I. II
 
 L14 
 
 ORDER OF LEGAL SUCCESSION 
 
 OH W'TEK II. 
 
 Moveable Sue 
 session Act. 
 
 Representation 
 under the Sta- 
 tute. 
 
 Extension of 
 collation to case 
 where person 
 taking by repre- 
 sentation is also 
 the heir. 
 
 232. II. Succession accruing since 25th May 1855. — By the 
 Moveable Sueeession Act, which passed on the 25th May 1855, (s) 
 the law of intestate succession underwent a very important altera- 
 tion. The Act applies to all successions accruing after its date. (7) 
 The Act itself will be found in the Appendix. It may be sufficient 
 here to notice the effect of its provisions. 
 
 233. Section 1 introduces the principle of representation into 
 moveable succession in the descending line, and also in the principal 
 collateral branch, viz., brothers and sisters of the intestate and their 
 descendants, (u) The effect of this is, that in these lines the succes- 
 sion may devolve upon relatives in several different degrees. The 
 succession may, for example, fall to be divided between a son, a 
 grandson by a deceased child, and a great grandson whose father 
 and grandfather had both predeceased the common ancestor, this 
 common ancestor being either the intestate or his brother or sister. 
 Eepresentation under the Statute is not admitted among collate- 
 rals of the ascending line, but only among collaterals of the intes- 
 tate, (x) The next of kin have right to the office of executor in 
 preference to persons taking under the Statute, (y) 
 
 234. The principle of distribution under the first section of the 
 Moveable Succession Act is that of division per stirpes. Under 
 section 2, which enables heirs-at-law taking by representation to 
 collate the heritable estate with the executry, the principle of divi- 
 sion per stirpes is consistently carried out in the distribution of the 
 common fund resulting from the collation of these estates. The 
 Statute next proceeds to regulate the interest to be taken by the 
 issue of the person whom the heir represents, in the case where the 
 heir declines to collate. (Y) The principle adopted is, that the issue 
 of the person " represented," other than the heir-at-law, are to be 
 placed in the same position as they would have occupied if the per- 
 son represented had succeeded to the heritable estate and collated 
 its value with the executry, and his issue had inherited from him 
 the sum which he received as the difference between the value of 
 his share of the aggregate succession, and the value of the heritable 
 estate. This at least is what appears to have been in the mind of 
 
 Howden v. Howden, 20 Jan. 1841, 3 D. 
 388 ; Kennedy v. Bell, 2 Feb. 1864, 2 
 Macph. 987. In Wight v. Brown, 27 Jan. 
 1849, 11 D. 459, it was held that the in- 
 surance money due on a policy of insurance 
 effected by a husband on the life of his 
 wife did not fall within the scope of the 
 claim. See remarks on this ease, infra, \ 
 260. 
 
 (a) 18 Vict., cap 23. 
 (t) Section 1. 
 
 (w) See Omiston v. Broad, 11 Nov. 1862, 
 1 Macph. 10. 
 
 {%) Ormiston v. Broad, supra. 
 (;/) Section 1. 
 (z) Section 2.
 
 IN RELATION TO MOVEABLE ESTATE. 1 L5 
 
 the franier of the singularly involved proviso at the end of the cuaptku vi. 
 second section of the Act. 
 
 235. This right of succession, however, such as it is, has not heen Exclusion of 
 conceded to all the descendants of the party represented, other than ofTceasiJ 
 the heir-at-law. but only to " the brothers and sisters of the heir and j^in cases" 
 their descendants in their place/' Where, therefore, the party who 
 
 would have succeeded if he had survived the intestate is represented 
 by a grandson, his younger children have no right to a share of the 
 moveable estate, as they are not brothers and sisters of the heir, but 
 of the heir's father. This is a case which might actually happen, 
 where the brothers and sisters of the intestate and their descendants 
 were hi- personal representatives, and the heir was the grandson of 
 "in- of the brothers. 
 
 236. Where an intestate is survived by his father, and also by Extensioi 
 relatives of the principal collateral branch, the father has right to sion to intes- 
 
 " He-half of the -ileeession ;(«) and where the father does not BUT- mother^ and 
 Vive, but the mother does, the latter has right to one-third of the uterine'relatives. 
 
 succession. (6) Failing brothers and sisters german or consangui- 
 neaii. and their descendants, the collateral relatives uterine have 
 right to one-half of the succession, (c) 
 
 237. The next section(<f) takes away the right of the next of Aboiitionof 
 
 v ' J . o claim of the 
 
 kin. or testamentary representatives of a wile predeceasing her bus- wife's pi 
 
 band, to a. share of the g Is in communion. Under the two con- r ' 1 '"' 
 
 eluding sections the rule as to marriages dissolved within year and 
 day is abolished ;(e) and executors-nominate are deprived of all 
 right of succession in their character as such.(/) 
 
 238. The abolition of the claims formerly competent to theEffectofi 
 
 i reenters or next of kin of married women, and the distinction in d u ^fbythis 
 relation to marriages dissolved within year and day, has simplified Sn,u ""- 
 the division of the succession in the case of married persons. There 
 
 [fl now DO division except on the death of the husband. When 
 that event occurs, the succession is divisible into three shares, Legi- 
 t im. f/'/.s- Belictce, and Execul ry. I i the wife have predeceased, there 
 [a no jus relictce, and the Legitim and executry each amounl to a 
 half of the succession. Where the deceased li aves a widow but no 
 children surviving him, hall the succession is jue relictce ami hall 
 executry. Where the deceased Leaves neither widow nor children 
 surviving him. the whole succession i> executry. 
 
 239. I I 1. < \\l»i tiakv RIGHT or THE I 'rOWN. — In moveables, as in Crown is ufti 
 
 land, the Crown take- a- ultimu8 hceres on the failure "i heirs con 
 
 e/i Section 6 
 i lion 7. 
 
 i, :.. 
 
 n '_'
 
 116 ORDER OF LEGAL SUCCESSION 
 
 ohaptbbti. nected by blood with the defunct.^) The most frequent case is 
 ~ that of bastardy. The property of a bastard dying without issue, 
 and intestate, necessarily falls to the Crown for want of collateral 
 heirs. (A) The Crown usually appoints a donatory. The liability 
 of the Crown or donatory for the deceased's debts is limited to the 
 amount of the estate. (T) The Crown is not entitled to succeed as 
 conditional institute under a destination to heirs. (A;) 
 
 Confirmation 240. IV. VESTING OF MOVEABLE SUCCESSION. — 111 virtue of the 
 
 v2uh?rightof Act 4 Geo. IV., cap. 98, intestate succession vests in the personal 
 succession. representatives of the deceased by survivance without confirma- 
 tion.^) At common law moveable succession did not vest until 
 the next of kin obtained a title of possession by confirmation as 
 executors ;(m) and: therefore, when one of the next of kin died be- 
 fore he had completed a title by confirmation, his interest did not 
 pass to his executors, but fell to be divided as part of the general 
 succession amongst the surviving next of kin at the period of con- 
 firmation. 
 Right vests fur 241. The language of the Act only makes succession accruing 
 tkVSite! by to next of kin transmissible to " representatives ; " but this has 
 been interpreted to mean that the right vests by survivance for all 
 purposes. The right of next of kin unconfirmed is therefore trans- 
 missible to assignees, (n) and is subject to the diligence of arrest- 
 ment, (o) 
 Character of 242. Since the Confirmation Act of Geo. IV. (p) has come into 
 
 atMcest'r's^ operation, the characters of next of kin and of personal representa- 
 death. tives attach and are irrevocably fixed at the time of the death of the 
 
 predecessor. Where, therefore, an interest in succession devolves 
 at a subsequent period to next of kin, or representatives (as it may, 
 either in virtue of an express destination or in consequence of a 
 lapse), no person can lay claim to it in the character of next of 
 kin or personal representative of the predecessor who did not stand 
 
 ((/) See Erskine, 3, 10, passim; Finnie rule in heritable succession, where the right 
 
 v. Commrs. of the Treasury, 30 Nov. 1836, vests only by service as heir of provision ; 
 
 15 Sh. 165. Robertson v. Gilchrist, 25 Jan. 1828, 6 Sh. 
 
 (h) Stair, 4, 12, 1 ; Ersk. 3, 10, 8 ; Hal- 446. 
 
 cro v. Somervill, 1626, M. 1348. By 6 Will. (m) If any one of the next of kin had 
 
 IV, c. 22, bastards are enabled to bequeath confirmed, he was considered a trustee for 
 
 their moveable estate by testament, which the rest. See Spalding v. Farquharson, 15 
 
 formerly they were not permitted to do. May 1811, F.C. 
 
 (?) Ersk. 3, 10, 4. («) Frith v. Buchanan, 3 March 1837, 
 
 (k) Torrie v. Munsie, 31 May 1832, 10 15 Sh. 729. 
 
 Sh. 597. (o) Mann v. Thomas, 9 Feb. 1830. 8 Sh. 
 
 (I) 4 Geo. IV. cap. 98, § 1. Moveable 468. 
 
 succession by will or deed vests at common (p) 4 Geo. IV., cap. 98, \ 1. 
 law without confirmation, contrary to the
 
 IN RELATION TO MOVEABLE ESTATE. 1 1" 
 
 in that relation to him at the time of his death. (</) Whether, in chapter vi. 
 
 the case supposed, the executors of a personal representative dying 
 before the interest in question accrued would be entitled to a share 
 of it, would depend on the provisions of the will under which the 
 destination was made, or the lapse arose, — the question being, At 
 what period of time did the will vest a transmissible interest in the 
 beneficiaries ? 
 
 243. Where a fund which is the subject of a contingent destina- At what period 
 tion by will or deed, results to the granter's heirs in mobilibus, by E^wSfn"' 
 reason of the failure of all the legatees to whom it was destined be- cases " f lal ' > " 1 
 
 succession 
 
 fore the period of distribution, such heirs, although dying before 
 the period of distribution, transmit a quasi vested interest to their 
 executors. It is true that, in the case supposed, no right vests 
 under the testamentary disposition until the arrival of the period 
 appointed for distribution. But, in the case supposed, the personal 
 representatives do not take as legatees under the testamentary dis- 
 position ; their right is derived from the Statute, and, according to 
 it, their interest in the succession, so far as not excluded by will, 
 vests by survivance and transmits to their representatives. Un- 
 Less their interest were held to be transmissible to representatives 
 from the moment of the testator's death, it is not easy to see how 
 the lapsed succession could be disposed of. If all the immediate 
 representatives were to die before the arrival of the period of dis- 
 tribution, and without the faculty of transmitting their interest, 
 there would be no heir but the Crown to whom the succession 
 could devolve; and it is impossible to admit a view of the law of 
 vestingwhich would lead to a result so anomalous as the preference 
 of tlii- Exchequer to the kindred in the second degree of the prede- 
 
 SECTION II. 
 OF LEGITIM. 
 
 244. Legitim is a legal provision due from the estate of a father Definition of the 
 who dies domiciled in Scotland(s) to his children, amounting to n '" 
 one-third of the tree estate where the wife is the survivor of the 
 spouses, and to one-half where she predeceases. The right vests in 
 
 (y) S<f- t 1j.- authorities on this point in (*) Hog v. Lashley, 29 Nov. IT'.H), 7 
 chapfc Eeritable Sue© Maj L792, 8 Pat. '-'IT; 12 July 1804, 4 
 ■ion), and more folly in chapter 4J (Bi Pat.681; Cobrillev. Lauder, 1800.M. "Sue- 
 quests to Heirs and Next of Kin). cession," App. No, I; Vunrot \. Douglas, 
 
 (r) S<^ the oh on this poinl ■> tfadd. 894, and Cheine v. Sykei there 
 
 in Lordv. ('<>ii;„, L6 July 1866, '■'> Macph. 
 1088
 
 1 1 8 ORDER OF LEGAL SUCCESSION 
 
 ohaftbb \i. the surviving children without confirmation or other legal process, 
 and is divisible amongst them equally. The shares of predeceasing 
 children lapse. In other words, there is no right of representation 
 in relation to lcgitim. We do not think it necessary to enter upon 
 the discussion of the question, What is the nature of the right to 
 lcgitim ? We think it is properly described as a legal provision in- 
 capable of being defeated by the father's will. Rights of this na- 
 t ure have a known place in general jurisprudence, and nothing is 
 gained by attempting to assimilate legitim and jus relictce either to 
 rights of succession which depend upon the will of the deceased, 
 and are postponed to all other claims, or to debts which take prece- 
 dence in bankruptcy over rights of succession and legal provisions. 
 In a question with ^executors, legitim has many of the properties 
 of a debt, and its legal character is not inaptly indicated in the 
 maxim, that children are heirs among creditors, and creditors among 
 heirs, (t) 
 who are entitled 245. Legitim is shared equally by the children of the same 
 
 to legitim. ° . . J 
 
 father, though by different marriages, (u) A posthumous child is 
 entitled to legitimise) Since the passing of the Moveable Succes- 
 sion Act (y) the amount of the legitim and the jus relictce is not 
 liable to be diminished by the power of disposal formerly given to a 
 wife predeceasing her husband. There is no representation in legi- 
 tim ; it is not dne to grandchildren, but the claims of surviving 
 children pass to their executors. (z) 
 Out of what sub- 246. Legitim is payable out of the wdiole moveable estate of 
 able. b ' } which the father was possessed at the time of his death, including 
 succession to which he was entitled, assignable debts, etc., but not 
 heirship moveables. (a) Personal bonds bearing interest are, by the 
 Statutes 1641, cap. 57, and 1661, cap. 32, declared to be moveable as 
 regards executry and the rights of children, although after the elapse 
 of the term of payment they are heritable in relation to questions 
 between husband and wife, and consequently are not subject to jus 
 relictce. Where, therefore, moveable estate suffers a tripartite divi- 
 sion, such bonds, if the term of payment is past, are excluded from 
 
 (t) See the subject discussed in Fisher (>/) 18 & 19 Vict., c. 23, § 6. 
 
 v. Dixon, 16 Juno 1840,2 D. 1121; and (a) Ersk. 3, 9, 17; 1 Fraser, 543; 
 
 the subsequent case, 6 July 1841, 3 D. M'Murray v. M'Murray's Trs., 17 July 
 
 1181, 6 April 1843, 2 Bell, 63 ; see also 1852, 14 D. 1048. 
 
 Stair, 3, 4, 24; Bankt. 3, 8, 40; Ersk. (a) See, among other cases, Lee& v. 117/- 
 
 3,3, 15, and 30 ; Robertson v. Kerr, 1742, son, 1808, Hume, 191; H dining v. Young, 
 
 M. 8202; Morton v. Young, 11 Feb. 1813, 1808, Hume, 214; Breadalbane 's Trs. v. 
 
 F.C. Duchess of Buckingham, 26 May 1842, 4 
 
 (u) Chapman v. Gibson, 1631, M. 8163; D. 1259; M'Murray v. M'Murray's Trs., 
 
 Henderson v. Sanders, 1634, M. 8164. 17 July 1852, 14 D. 1048. 
 
 (.,) Jervey v. Watt, 1762, M. 8170.
 
 IN RELATION TO MOVEABLE ESTATE. 119 
 
 the general scheme of division, and are separately divided in equal chapteb vi. 
 shares between executry and legitirn.(6) 
 
 247. The division of the father's estate falls to he made accord- Computation I 
 ing to its condition and amount at the time of his death, irrespec- egltun " 
 fcive of any change in the character of the succession consequent 
 
 upon the acts of his executors or trustees. (c) The sworn valuation 
 made for the purpose of settling the inventory-duty is the proper 
 datum for fixing the value of the succession. (d) Where payment 
 is deferred, whether in consequence of the dependence of legal pro- 
 ceedings or otherwise, interest is due from the date of the father's 
 dentil, and payment cannot be resisted, or the rate of interest re- 
 stricted, on the ground of mora or lapse of time.(<?) Where trustees 
 have carried on a going business for the benefit of the general estate 
 pursuant to the truster's directions, children afterwards electing to 
 take legitim arc not entitled to profits in excess of the legal rate of 
 interest ;(/) but where a widow had assented to the employment 
 of trust-funds in business, it was held that her claim resolved into 
 a righl to a share of its value when realised, whether that had been 
 increased or diminished by the course of management assented to.(g) 
 
 248. The rule, that legitim is payable ou1 of the free estate, what debts fail 
 i ssarily implies that debts tor which the lather's personal repre- [£*$ 
 
 sedatives are liable fall to be deducted from the aggregate fund.(A) struck - 
 On the other hand, legacies and claims constituted by >\rcA mortis 
 causa, which are truly legacies in whatever form they may be ex- 
 jed, are burdens upon the executry only, or dead's part.(*) 
 Provisions to wives constituted by antenuptial contract, (k) and even 
 postnuptial provisions, if reasonable and moderate. (/) are charge- 
 
 (/>) Stair. ::. 4, 24, I i v.. and 8, 9, 22; Ross v. Masson, 3 Feb. 1843. 5 D. 
 
 Anderton v. Mortimer, 1682, 2 Br. Sap, 483. 
 
 27. (h) 1 Bell's Com., 648 ; Gordon v. Mel- 
 
 v. Kirkpatrick, 28 Maj 1833, drum, 1628, 1 Br. Sup. 57; Johnston \. 
 
 II Sh. 682; Fishery. Dixon, l6June L840, Cochran, 13 Jan. 1829, 7 SI,. 226. 
 
 2 I). 1121, and sequel, 6 July 1841, 3 D. Stair, 3, 8, 39; Ersk. 3, <>. 16 and 
 
 L181, affirmed, 6 April 1848, 2 Bell, 63; 22: 1 Fraser, 589. In Woncriefft v.Mony- 
 
 BallmgaU \. Robertson, 1808, Humi . 21 1. penny, 1713, M. 3945, ,, social , 
 
 i,/, Breadalban T . D ■'■ of held that tl of a monument, 
 Buckingham, 26 Maj 1842, 1 D. 1269 1264 lered bythe decea ed to be erected to hi m- 
 Balfour, L804, 11 '♦Heri Belf, was payable from the dead's part, con- 
 table and M App. No. 8; Ear- trarj to the general rule, thai funeral ex- 
 [2 F( b. 1828, 2 si,. I . the gem ral 
 I I ■ 1777. M. '■ I.. - SUCC1 
 
 gitim," App. No. I : '/ \. Living Erek. 8, 9, 22; Johnston \. Cochran, 
 
 3, 16 SI,, l ' l \:\ j an . [829, 7 Sh. 226. 
 
 infra, 261, i (V) Ersk. 8, 9, [6; Lawrit \. Edmonds 
 
 V Murray •.. & Murray's Trs., 17 Trs. 1816, Hum . 291; ai I i drewi 
 
 Julj 1862 1 I D. mis .,. Sawer, 2 March 1836, I 1 Sh. 689
 
 L20 ORDER OF LEGAL SUCCESSION 
 
 chapteb vi. able against the general succession. But in a case where a widow 
 successfully claimed her legal provisions, it was held that a sum 
 tobededucted. which had been paid to her for aliment and mournings for the 
 period anterior to the next legal term after her husband's death, 
 was not to be charged on the succession until after the amount of 
 the legitim had been ascertained, (m) Bonds of provision to child- 
 ren, if delivered in the lifetime of the father, or payable at a term 
 which may arrive before the dissolution of the marriage, are held 
 to be chargeable against the general succession, (n) "With regard 
 to obligatory provisions payable after the father's death, the rule ap- 
 pears to be the same, but the authorities are somewhat conflicting. 
 In an early case, a bond of provision found in the granter's repositories 
 at his death was found, contrary to the opinions of the institutional 
 writers, to affect the whole head of his executry, and not the dead's 
 part only ; (o) and this view of the law appears to derive support 
 from the judgments given in two more recent cases, (p) Provisions 
 in favour of the children constituted by antenuptial contract, like 
 provisions to wives, are chargeable against the general succession, (q) 
 But where the marriage-contract provision is given in satisfaction 
 of legitim, the one provision must be imputed pro tanto in payment 
 of the other, which is equivalent to the extinction of the lesser ob- 
 ligation, (r) Funeral expenses, (s) the widow's mournings, (t) and 
 aliment till the next term after her husband's death, (u) the ex- 
 penses connected with the birth of a posthumous child, (a;) and the 
 expenses of the executors, including confirmation, inventory-duty, 
 
 (m) Breadalbane 's Trs. v. Duchess of not come off the whole executry, and that 
 
 Buckingham, 26 May 1842, 4 D. 1259. they were to be imputed to legitim. The 
 
 (n) Stair, 1, 5, 6 ; Ersk., 3, 9, 22; Mur- decision appears to be erroneous on both 
 
 ray v. Murray, 1678, M. 2372 ; Fraser v. points. On the 2d, it is overruled by M. 
 
 Bishop, 1638, M. 3941. of Breadalbane v. 31. of Chandos, supra; and 
 
 (o) M'Kay v. Fowler, 1744, M. 3948. its authority was denied in Keith v. Keith's 
 
 (p) Breadalbane v. M. of Chandos, 16 Trs., 19 D. 1057. 
 
 Aug. 1836, 2 S. & M'L. 377, Sup. 385; (s) Ersk. 3, 9, 22; Moncrieffe v. 3Iony- 
 
 Johnstonv. Cochran, 13 Jan. 1829,7 Sh. j9e?my,1713,M. 3945;.4.v. j5.1708,M. 5927. 
 
 227. See the finding (page 233) as to Jean (t) Ersk. 3, 9, 22 ; 1 Bell's Com. 634; 
 
 Cochran's provision. Moncrieffe v. Monypenny, supra ; Countess 
 
 (q) Ersk. 3, 9, 22; Sandilands v. Sandi- of Caithness v. The Earl, 1767, M. 431; 
 
 lands, 1671, M. 3941 ; Dickson v. Young, Sheddon\. Gibson, 1802, M. 11,855 ; M'ln- 
 
 1678, M. 3944. tyre v. M'Intyre's Trs., infra. 
 
 (r) In the case of Nisbet v. Nisbet, 7 (w) Cases of Moncrieffe and Countess of 
 
 Mar. 1726, Robertson, 594, a father bound Caithness, supra; Palmer v. Sinclair, 27 
 
 himself by antenuptial contract to pay cer- June 1811, F.C. ; M'Intyre v. M'Intyre's 
 
 tain fixed provisions to his younger child- Trs., 9 July 1865, 3 Macph. 1074. 
 
 ren without declaring that they were to be (x) Ersk. 1, 6, 41 ; Kerr v. Hastie, 1671, 
 
 taken in satisfaction of legitim. The M. 5922, and 2 Br. Sup. 576 ; 3fuirhead's 
 
 House decided that the provisions should Relict v. Her Father-in-law, 1706, M. 5927.
 
 IX RELATION TO MOVEABLE ESTATE. 121 
 
 etc.,(y) are all regarded as debts of the deceased, and are payable chapter vi. 
 out of his general personal succession. 
 
 249. "Where heritable debts have to be defrayed out of the Heritable debts. 
 moveable estate in consequence of the exhaustion of the heritable bewwi^terest. 
 estate, they form a charge against the general succession. xVn ex- 
 ception has been admitted with reference to personal bonds bearing 
 interest, which by Statute 1661, cap. 32, are heritable as regards 
 
 the widow's claims. As the widow derives no benefit from personal 
 bonds where the husband is the creditor, since they are neither 
 subject to terce nor jus relictce, so, where the husband is the debtor, 
 they are not allowed as a charge against her legal provisions, (s) 
 Prior to the term of payment personal bonds are payable out of 
 the general succession, and therefore tend to diminish the amount 
 of the legitim and the jus relictae. 
 
 250. Legitim, being a legal provision, cannot be excluded or Deeds inter 
 diminished by the father's will or testamentary disposition. How l^tim fund! e 
 it may be satisfied or diseharged by express contract or equivalent 
 provisions in the children's favour will be considered hereafter. («) 
 
 Bu1 as the fund from which legitim is payable is simply the free 
 moveable succession accruing at the father's death, it follows that 
 (Ik- legitim fund is diminished by bona fide alienations inter vivos, 
 and by conversions of moveable estate into heritable during the 
 father's lifetime, (h) The legitim fund is therefore effectually dimi- 
 nished by deeds of alienation or conversion executed inter vivos 
 and in liege poustie, provided they are absolute and irrevocable, and 
 ii"t intended as a, mere device lor diminishing the children's legal 
 isions. The operation of these rules will be best understood by 
 an examination of the decided cases upon the subject. 
 
 251. In the <-ase of Lashley x. II<ig.{e) a leading case in this Secus, as to 
 branch of the law, the father, for the purpose of defeating the le- ttonVtfi 
 gitim. transferred to a trustee, shortly before his death, certain JScWms 
 shares of the stock of the Bank of Scotland, upon trust, that the 
 proceeds should bo laid out in tin.' purchase of land destined (o a 
 certain >uirs of heirs. Alter his death the question arose, whether 
 
 the purposes of the assignation were not truly testamentary ? The 
 Court "i Session, upon a proof, found thai the assignation was abso- 
 lute and irrevocable; but the Bouse of Lords, taking a differenl 
 
 tf ■■mil/, supra; (a Infra, chapter 7. 
 
 Breadalbane Tr$. v. Dim Buckingham, (b) Ei l;. 8,9, L6; Black v. Black, L796, 
 
 28 May 1842, 4 D. 1259. Eume, 290; ffayv. ingus, 17'.'">, Bume, 
 
 (z) Stair, ::. I, 24 ; Erek. 8, '.'. 22; Mac- 281 ; Lashley v. Hog, L800, M. " Li gitim," 
 
 M. 6784 ; Ross v. App. No. 'J ; L2 Julj L804, 4 Pat 
 in, 11 Nov. 1816, F.O. ; Ramsay v. (c) Lashley v. Hog 
 
 ' ine 1826, t Sh. 110.
 
 122 ORDER OF LEGAL SUCCESSION 
 
 ohaptsb vi. view of the transaction, directed that all such shares standing in 
 ~ name of the disponee, "under any agreement or understanding that 
 he would invest the same in land after the death of the said Koger 
 Ho-- (the father), and also all such shares, the dividends whereof 
 shall appear, notwithstanding the transfer of the same to have been 
 after such transfer ordinarily received for the account of, and ap- 
 plied for the use of, the said "Roger Hog, ought to be considered 
 as subject to the pursuer's claim of legitim."(cf) I n tne case of 
 . Nicolsons Assignee v. Hunter, (e) the question arose upon an assig- 
 nation of personal estate in favour of trustees, upon trust, in the 
 first place for the payment of the truster's debts and of a provision 
 to himself during his life ; and secondly, for payment of legacies, 
 the residue to be applied in the purchase of land to be entailed on 
 certain heirs. The Court held the first purpose of the deed to be a 
 proper alienation inter vivos, but were of opinion that the ulterior 
 purposes were testamentary, and therefore ineffectual to exclude 
 the claim of legitim. 
 implied trusts in 252. In another case, where promissory-notes were given over 
 2#tiir ,of in tlie lifetime of the granter to a trustee for behoof of the truster's 
 grandchildren, and the trustee admitted on examination that he 
 was bound to redeliver the renewal-note upon demand, it was held 
 that the purpose of the deposit was testamentary, and that the fund 
 was subject to jus relictce and legitim. (/) In a subsequent case, 
 where a personal bond was taken payable to the grandsons of the 
 creditor, under reservation of his own liferent interest, and the deed 
 was delivered to a trustee for their behoof, the claim of legitim was 
 disallowed, in respect that it was proved by parole evidence that 
 the transaction was irrevocable. The Court were of opinion that 
 the reservation of a liferent was not conclusive as to the testamen- 
 tary character of the provision. In one view it rather confirmed 
 the inference as to the intention to vest the fee irrevocably, because, 
 if the understanding were that the fund was still to be under the 
 command of the granter, the reservation of a liferent was unneces- 
 sary.^) In order to constitute an irrevocable trust, to take effect 
 after the granter's death, it is of course essential that the deed or 
 property should be delivered to the trustee, and therefore if delivery 
 has not been made in the father's lifetime, the claim of legitim will 
 not be barred. (A) In cases where fiduciary assignations have been 
 
 (d) 4 Pat. 647. 13 D. 506 ; and see Agnew v. Agnew, 1775, 
 
 (e) Nkolsorfs Assignee v. Hunter, 2 Mar. M. 8210. 
 
 1841 3 D. 675. (h) Craigie v. Craigie, 1811, Hume, 288. 
 
 (/') Milroy v. Milroy, 1803, Hume, 285. Putting the assignation upon record is not 
 (g) Collie v. Pirie's Trs., 22 Jan. 1851, equivalent to delivery, Millie v. Millie,
 
 IX RELATION TO MOVEABLE ESTATE. 123 
 
 admitted as effectual to exclude the legitim, much importance has chapter vi. 
 been attached to the fact of delivery as an evidence of intention to 
 place the fund out of the control of the granter.(t) 
 
 253. The rule requiring that the deed must be irrevocable in Legitim not 
 order to bar the claim of legitim, is plainly exclusive of all testa- r testamentary 
 mentary and mortis causa conve} T ances, such deeds being in their mstrumen,s - 
 own nature ambulatory and revocable. Indeed it is implied in the 
 definition of legitim, as a legal provision, that it it is not defeasible 
 
 1 iy will ; otherwise the children's claim would resolve simply into a 
 right to a share of intestate succession as executors of their parent. 
 It is unnecessary, therefore, to cite authority for the proposition 
 that legacies affecl only executry. We have already seen that the 
 circumstance <>t the term of payment being postponed until after 
 the father's death is no1 sufficient to negative the claim of the 
 grantee under an irrevocable and delivered deed, though it is a cir- 
 cumstance unfavourable to the claim of the party maintaining it. (k) 
 
 254. It is laid down by the institutional writers,(7) and the pro- Qucereasto 
 tion is frequently recognised in the decisions, that gratuitous £ SSute7 
 
 conveyances executed on deathbed are ineffectual to take the subject '" '"''"■ 
 
 nveyance out of the lather's succession, so that the property 
 shall not be subject to legitim and jus relictce. In many of the 
 - the deeds to which exception was taken were manifestly tes- 
 fcamentary in their conception ami effect,(m) and in such eases the 
 grounds of objection are so closely related that it would be difficult 
 to poinl to one in which the conveyance was held ineffectual to ex- 
 elude legitim upon no other ground than that it was executed with- 
 in sixty days <>i death. We apprehend, however, that if such a 
 were to occur, it would be impossible to resist the application 
 oi a. dor-trim • which has been so frequently recognised as one of the 
 grounds upon which deeds disposing of the legitim may be chal- 
 lenged.^) Anion- the cases in which effect has been given to the 
 
 J216; I- M .. L807, •"> I'. a. cited on this point, Thomson v. Thin, 1676, 
 
 160; M'Donaldv. McDonald, L808, Hume, .M. 8593; Grant v. Grant, 1679, M. ;!596 ; 
 
 SorUes v. Robertson, 1771. ,M. .",'.'17: Burden 
 
 '■ Black, 17'.'",. Hume, 290; v. Smith, Elch. " Mutual Contract," No. 7 
 
 gut, 1796, Hume, 281. Not- 27 April 1788, 1 Cr. St. & Pat. 214 ; Hog v.' 
 
 LashUy. M. si'.i:;, 7 M : ,j I 702, ;; |' :| |. 247. 
 Mori I) upon this and the case (I) Stair, 3, 4, 24; Bankt. ::. 8, L6 
 
 •■I Agn ■ ow In- held I , ::. 9, L6. 
 
 ignation i s, , for example the case of Burden 
 
 dthoughqua- v. Smith, '11 April 1788, a reported bj 
 
 lifled by thi n ervation of the Cr. St. and Pat. p. 214, and Hog v. Lash- 
 
 liferent, takes the subjeel oul of the legitim ley, '■'• Pat, 247, 
 
 fond. (,<) See an early case, Goodall v. Living- 
 
 lee, in addition to the cases already on 1681, M. 8176, where .-i child claim-
 
 124 
 
 ORDER OF LEGAL SUCCESSION 
 
 CHATTEli VI. 
 
 Doctrine as to 
 conveyances in 
 fraudem of the 
 
 letritim. 
 
 objection of deathbed, some relate to simple assignations of move- 
 able subjects and debts, (o) Others relate to discharges of debts and 
 advances. (p) Donations upon deathbed, by delivery of cash or 
 moveable effects, have uniformly been held insufficient to defeat the 
 rights of children claiming legitim. (g) In the opinion of Baron 
 Hume, as cited by Mr Fraser, a father would not be entitled on 
 deathbed to exclude his children from legitim by converting his 
 estate from moveable to heritable — e.g., by changing bills or pro- 
 missory-notes into heritable bonds. (?•) It is understood that deeds 
 of conversion of heritable estate into moveable are reducible ex 
 capite lectins) insomuch that even in a case of a sale the price was 
 successfully claimed by the heir-at-law ;(t) and if we admit that the 
 interests of children entitled to legitim are protected against gratui- 
 tous alienations on deathbed, there can be little doubt that a mere 
 conversion of moveable into heritable property is open to the same 
 objection as a conveyance to a stranger, or a trust. 
 
 255. It has frequently been asserted that alienations by the 
 father, with the view of defrauding his children of the legitim, are 
 ineffectual for that purpose. It is clear, however, that a fraud of 
 this kind must be inferred from the nature of the transaction, and 
 not merely from the purpose which the party is supposed to have 
 had in view. A deed of alienation executed in liege poustie, and 
 conceived in such terms- as to give an indefeasible right to the dis- 
 ponees, could not be set aside merely because the granter had. in- 
 tended to take the subject out of his moveable succession. An 
 examination of the authorities usually cited in support of the doc- 
 trine of alienation in defraud of legitim, will show that the proposi- 
 tion contended for is nothing more than a general statement of the 
 rule by which testamentary deeds simulating the form of absolute 
 assignations are reducible at the instance of children claiming legi- 
 tim. Such is in substance the conclusion at which Professor Bell 
 and Mr Fraser have arrived in their examination of this branch of 
 the subject, and to their observations the reader is referred, (u) 
 
 ing legitim was found to have a title, 
 without confirmation, to pursue a reduc- 
 tion of a deathhed deed granted in preju- 
 dice of his rights. 
 
 (o) Stair, 3, 4, 24, citing Ramsay v. 
 Pyrie ; Aikman v. Boyd, 1679, M. 3201; 
 Milroy v. Milroy, 1803, Hume, 285 ; and 
 see Cant v. Edgar, a case on an assigna- 
 tion of a right to relief, 1628, M. 3199. 
 
 (p) Grant v. Gunn's Trs., 28 Feb. 1833, 
 11 Sh. 484; Allan v. Allan, 1763, 6 Br. 
 Sup. 897, where it was held that a child 
 
 who had discharged his legitim could not 
 be reponed on deathbed. 
 
 (q) Brown v. Thomson, 1634, M. 3200 ; 
 Milroy v. Milroy, 1803, Hume, 285. 
 
 (r) 1 Fraser, 552, citing Hume's MS. 
 Lectures, and Henderson v. SaughtonhaU, 
 1683, M. 3202. 
 
 (a) Ersk. 3, 8, 98 ; 1 Bell, Com. 94 (6th 
 ed. 1061). 
 
 (t) Gillespie v. Gillespie, 1802, Hume, 
 145. 
 
 (w) 1 Fraser, 553 ; Bell. Prin. ? 1584.
 
 IN RELATION TO MOVEABLE ESTATE. 125 
 
 256. In conclusion, we may observe that the father cannot re- chapter yi. 
 strict the legitini of a child to a liferent, or limit the destination of D . , . . . 
 
 ° # Right cannot be 
 
 the legitim in any way,(a;) even for rational causes, such as the restricted or 
 bankruptcy, (y) incapacity, (2) or misbehaviour (a) of the child. The father. 
 power of doing so, however desirable in such cases, can only be 
 obtained by a discharge or exclusion of the right to legitim in the 
 father's antenuptial contract. 
 
 257. Legitim vests at common law by survivance of the father, (b) Vesting of the 
 Although there never was any doubt as to the general proposition, " g 
 
 it is only in recent times that it has been carried out consistently 
 to its Logical results. It was suggested by more than one eminent 
 authority that the right must in some way be claimed from the 
 executors in order to its constitution, (c) but this view is now aban- 
 doned. Accordingly, where all the children of a family of daughters 
 except one died in minority and without claiming legitim, the sur- 
 vivor successfully claimed the whole legitim fund, that is, one share 
 in her own right, and the remainder as the representative of her de- 
 ceased sisters, (d) A husband is entitled to claim legitim accruing 
 to his wife without her concurrence, if she has no adverse interest; 
 but where she has the option of taking a conventional provision, as 
 to which her husband's marital rights are excluded, the privilege of 
 election is personal to herself, and the husband cannot exercise it 
 for her.(e) A claimant of legitim may confirm as an executor- 
 creditor, and he would require to do so if there were no other exe- 
 cutor of the father already confirmed. (/) Without being confirmed 
 I. may sue the executors for legitim, and may prosecute an action 
 of reduction, on the head of deathbed, of d< eds granted to his preju- 
 dice, (gr) 
 
 L681, Bl 8197; (c) Dicta in Stewart's Trt. v. Stewart, 20 
 
 K. rr, 1 7 12, .M. 82 >2. Dec. 1851, 14 D. 298. 
 
 under, 1762, M. 8208. (d) M'Murray v. M'Murray, 17 July 
 
 (z) Morton v. Young, I I Fi b. L818, F.C. 1852, 14 D. 1048. See particularly Lord 
 
 (a) r. Miller, 1799, Hume, 282. Rutherford's nol 
 
 Stair. ::. 8, 50; Brsk. 8, 9, 80; 1 (e) Macdougal v. Wilson, 20 Feb. 1858, 
 
 15. 11, Com. 1 12; 1 F. isi r. 646; Yeaman v. 20 D. 658. 
 
 Yeoman, L686, M. 8176; Russell \. Brown, {/) En k. 8, 9, 80 ; 1 Fraeer, 540. 
 
 L687, 317*3 Watt, L762, M.8170; Qoodall v. Livingston, 1681, M. 8176. 
 
 and cases cited in immediate sequence. In a receni case, an action broughl to 
 
 The right veste a morte although paymeni recover legitim after the elapse of twenty 
 
 should auenceofthe years from the date of v< ting, was held 
 
 nt of his wholr not tobe ham-il l,y mora; (,'ourlay v. Wright 
 
 to his widowhy antenuptial contract. 28 June 1864, 2 Bfacph. 1284.
 
 126 ORDER OF LEGAL SUCCESSION 
 
 CHAPTER VI. 
 
 SECTION III. 
 OF JUS RELICTS. 
 
 Definition of the 258. Jus relictce is a legal provision accruing to the widow of a 
 person dying domiciled in Scotland (h) out of his moveable or per- 
 sonal succession, wherever situated, (i) amounting to one-third of 
 the free succession where there are children surviving the dissolu- 
 tion of the marriage, and to one-half where there are no surviving 
 children. (ft) The right vests by survivance ;(l) and it is indepen- 
 dent of the husband's testamentary provisions, (m) though, like legi- 
 tim, it may be renounced by contract, or satisfied by equivalent 
 provisions. The effect of the renunciation or satisfaction of jus re- 
 lictce will be considered in a subsequent chapter, (w) 
 Deductions from 259. We have already observed that legitim and jus relictce are 
 jusreictte. go £ ar ^ ^ ie nature of rights of succession that they are only pay- 
 able out of the free estate after deducting debts, (o) expenses of ad- 
 ministration, (p) and rational p ro visions (q) for which the deceased 
 had become bound by deed inter vivos. (r) These charges being 
 provided for out of the first of the personal estate, the remainder 
 constitutes the free succession, and is subject to a tripartite divi- 
 sion if legitim ancles relictce are both due, or to a bipartite division 
 if only one of these rights has accrued. 
 Diminution of 260. We have also seen that the amount of the succession is 
 
 {msband'^deeds liable to be diminished by the alienation of the husband's move- 
 
 tnter vivos. ^ ^^ y> Nigbefs ^ 24 Feb lg35) ^ In ^ c]lapter 7. 
 
 13 Sh. 517 ; supra, \ 244. On the subject (o) That is, debts for which the executry 
 
 of jus relictce generally, see Ersk. 3, 9, 15 estate is liable either primarily or by rea- 
 
 and 21 ; 1 Bell, Com., 632 (6th ed. 681) ; son of the insufficiency of the heritable 
 
 1 Fraser, 588. estate, Ersk. 3, 9, 22 ; Raith v. Meldrum, 
 
 (»') Breadalbane Trs. v. Breadalbane, 11 1628, 1 Br. Sup., 57 ; Johnston v. Cochrane, 
 
 March 1843, 15 Jur. 389. 13 Jan. 1829, 7 Sh. 226. 
 
 (k) Erskine, Bell, and Fraser, ut supra. (p) Moncrieffe v. Monypenny, 1713, M. 
 
 Under the old law this provision was not 3945 ; Breadalbane Trs. v. Buckingham, 26 
 
 due in the case of the dissolution of the May 1842, 4 D. 1259. 
 
 marriage within a year and day without (q) Murray v. Murray, 1678, M. 2372 ; 
 
 the birth of a living or viable child. In Fraser v. Bishop, 1638, M. 3941 ; M'Eay 
 
 successions accruing since 25th May 1855, v. Fowler, 1744, M. 3948 ; Breadalbane Trs. 
 
 the date of the Moveable Succession Act v. Buckingham, 11 Mar. 1843, 15 Jur. 389 
 
 (18 Vict., c. 23), the rule is as stated in (cases on Bonds of Provision). Sandilands 
 
 the text. v. Sandilands, 1671, M. 3941 ; Dickson v. 
 
 (1) Stair, 3, 8, 50; Ersk. 3, 9, 30 ; 1 Bell, Young, 1678, M. 3944 (cases on Antenup- 
 
 Com. 142; M'Aulayv. Bell, 1712, M. 3848. tial Contract Provisions). Also Anderson 
 
 (m) This is implied in the definition of v. Miller, 1799, Hume, 282. 
 
 jus relictce, as a provision due ex lege. If (?•) See this more fully explained, supra, 
 
 it were liable to be defeated by will, it \ 248. 
 would not be a legal provision, but strictly 
 a share of intestate succession.
 
 IX RELATION TO MOVEABLE ESTATE. 127 
 
 able estate in his lifetime, or by its conversion into heritage, (s) The chapter vi. 
 wife, although vested by a fiction of law with a common interest in ~~ 
 her husband's personal estate, has no power to control him in the 
 exercise of his right of disposing of it, Deeds executed on death- 
 1 »•< 1.(7) as well as gratuitous alienations which are either undelivered 
 or revocable by the grantee, (u) may be set aside by the widow in 
 so far as her claims arc thereby prejudiced or their amount lessened. 
 These points have been fully considered in treating of legitim ; and 
 as the rights of legitim and jus relictce may now be regarded as com- 
 pletely assimilated, it is unnecessary to pursue the discussion of the 
 subject. (x) In the recent case of Muirhectd v. Lindsay, (y) it was 
 held that sums due under policies of assurance effected by a hus- 
 band "ii hi- life were subject to jusrelictce, — distinguishing the case 
 from Wight v. Broum, where the claim was at the instance of the 
 wife's executors: Lord Deas intimated a doubt whether the latter 
 were well decided. 
 261. Jus relictce vests by survivance, and entitles the widow to Vesting of jus 
 apply for confirmation as executrix qua relict, if the executors, reliekB - 
 Dominate or at law, fail to make up a title. We refer to our obser- 
 vations on the vesting of legitim in the preceding section. (z) 
 
 (s) See Agnew v. Agnew, 1775, M. 8210; legitim may be said to govern jus relictce 
 
 Lady Balmain v. Graham, 1721, M. 8199; although there are some peculiarities of 
 
 and cases reported by Hume, voce - Legi- the former, arising from its being a fund 
 
 l ^"- divisible among several objects, which have 
 
 Hog v. Lathley, 7 May 1792, 3 Pat. uo counterpart in the law of jus relictce. 
 247; Vilroyy. Miiroy, 1808, Hume, 285. (y) Muirhead v. Lindsay, 6 Dec. 1867. 
 
 V .. Millie, 18 Mar. 1807, 6 Ps Wight v. Brown, 11 D. 459. 
 
 160; // : v. Hog oi La hley, as reversed, (z) Sue Stair, 3, 8, 50; Ersk. 3, 9, 30; 
 
 12 July 1804, 1 Pat 58] ; and ca ■ - cited 1 Bell, Com. 142; 1 Eraser, 590. As a 
 in Election 2, supra. lequence of the doctrine that jus n 
 
 (z) The complete identity of the prin- vests by mere survivar.ee, interest is due 
 ciplee which regulate the legal rights of upon it from the date of the husband's 
 the widow and children will be b< tter .-• i n di ath, where the estate is productively in- 
 to treat of the Satisfaction ■■■ ti I ; M'Iniyre v. M'lntyre't Trs., 9 July 
 andDischarg rights. The law of 1866, 3 Macph. 1074.
 
 L28 
 
 EXCLUSION OF LEGAL CLAIMS 
 
 OB WTKR VII. 
 
 CHAPTER VII. 
 
 EXCLUSION OF LEGAL CLAIMS BY WILL OK 
 
 CONTRACT. 
 
 I. Satisfaction and Discharge of Legitim. 
 
 II. 
 
 of Jus Relictce. 
 
 III. ■ of Teree and Courtesy. 
 
 IV. of Executry and Heritable Suc- 
 
 cession. 
 
 Legal relations 262. This chapter is concerned with the investigation of ques- 
 
 of the subject. . . . i-ii i • i 
 
 tions of a higher order of complexity than those which have hitherto 
 engaged our attention. It may be placed either in its present po- 
 sition in this work, or as a branch of the law of testamentary suc- 
 cession, according to the point of view which is chosen. We think, 
 however, that any exposition of the law of intestate succession would 
 be incomplete which did not embrace as an integral part of the sub- 
 ject the discussion of the exclusion of the legal claims of the de- 
 funct's widow and children, and of the right of succession of his 
 legal representatives. 
 DSar C ge°dis" d " 263 - The exclusion of legal claims is effected in two different 
 languished. modes, which it is necessary carefully to distinguish, and which are 
 termed Satisfaction and Discharge. A legal claim is said to be 
 satisfied when a testamentary provision is given in place of it, the 
 renunciation of the legal claim being made a condition of the gift. 
 In this case the legatee has the right of election between the legal 
 claim and the conventional provision. A legal claim is said to be 
 discharged when it is renounced inter vivos, either in the antenup- 
 tial contract of the deceased, or by the claimant personally, as after- 
 wards explained. 
 
 SECTION I. 
 SATISFACTION AND DISCHAKGE OF LEGITIM. 
 
 importance of 264. We shall begin with the subject of legitim, because the 
 
 the doctrine of ° ,.„.„,. 
 
 satisfaction in rules which regulate the discharge and satisfaction of that interest 
 
 legitim. ° are better understood and more precisely ascertained than is the 
 
 case with the other legal claims. 
 
 A clear perception of the opera-
 
 BY WILL OR CONTRACT. 129 
 
 tiou of the doctrine uf satisfaction upon legitim, will greatly facili- chapter vh. 
 tato the exposition of the same principle as applied to jus relictce, 
 terce, courtesy, executry, and the right of inheritance. In fact it 
 will only be necessary, in treating of other legal claims, to point 
 out the distinctions depending on the nature of the claim, which 
 control the application of those general rules that have been esta- 
 blished with reference to legitim. 
 
 265. The right of the individual member of a family may be How legitim 
 extinguished in various ways. (1) It may be expressly discharged cW.J.Ti'Ilrsa- 
 by the declaration of his parents in their antenuptial contract, or tisfied ' 
 
 by his own deed ; (9) it may be satisfied by acceptance of a tes- 
 tamentary provision declared to be in lieu of legitim, or by ac- 
 me,.- of a provision under a general settlement which disposes 
 ul' the legitim fund ; (8) it maybe extinguished wholly or partially 
 when the claimant, being heir-at-law to his father, succeeds to the 
 heritable estate, in consequence of the younger children's right to 
 require the heir to collate ; or again, (4) it may be satisfied or com- 
 pensated by advances made to the claimant by the father in his life- 
 time, which are imputed to account of legitim by the operation of 
 tlir doctrine of collatio bonorum inter liberos. 
 
 266. (1) With respect to discharges by deed ; in practice, express Express dis- 
 discharges of legitim only occur in marriage-contracts. Unless where faffh^mlr. 
 the father has married without a contract there is no necessity for a ried witI,0Ut a 
 personal <li-charge, as antenuptial contracts invariably exclude the 
 
 in. and such an exclusion is held to be equivalent to an oner- 
 ous discharge of the right, provided a certain sum, however small, 
 i- given in lieu of it.(") The exclusion must be made applicable 
 in express terms to the person, as well as to the right. The word 
 legitim is the most proper to denote the right, though "portion 
 natural" and '• bairn'- part," which are associated with it in the 
 ordinary style of marriage-contracts, would probably he held suffi- 
 ciently expressive of the intuition. (A) Since the decision in the 
 case of Keith's ZV*.,(c) it may ho assumed thai "children of the 
 marriage"is the expression most properly descriptive of the per- 
 sons, where the intention is to exclude the heir as well as the 
 younger children.(d) 
 
 28 : K.i, la. roL 'J. p. S88 ; tt is a sen, ke, and mi,' thai 
 
 Bell, I'r. l 1687; Maitland ■. Maitland, II has ;a ioi hardship to Eamih' 
 
 Do I - 1 I '.I'. I'M. t,, exclude the legitim <>t' the younger 
 
 (/-) Breadalbatu Trs. \. Marchioness < : /' children only. The effect of this mistake 
 
 Ohandos, 16 A,,;-. 1886, 2 B. & MI,. 877, is to give the heir an imdefeasible right 
 
 affirming 14 Sh. 809 t te-third "f the moveabli iccession ; 
 
 Keith's Trs. \. Keith, 19 D. mm Lord Panmtm \ Orokat, 22 Nov. 1864 
 
 ileo Maitland \ Maitland, supra. 17 I 1 B6 
 \ or., i. ,
 
 );U | EXCLUSION OF LEGAL CLAIMS 
 
 0HAP , 267. Further, aD antenuptial contract has the effect of construc- 
 
 tively discharging the legitim, when by its provisions the univer- 
 ES^tMcon- sitas of the parents 5 moveable estate is settled upon the children of 
 the marriage absolutely or subject to a power of division, express 
 or implied ;(e) or upon the wife in liferent and the children of the 
 marriage in fee ;(/) or even upon the wife in fee-simple; for 
 until marriage every man lias the uncontrolled power of disposition 
 of his whole fortune ; and if he settle it all upon his intended wife 
 by an onerous act — which an antenuptial provision to the wife is — 
 there remains no free fund from which legitim can be claimed.(^) 
 Legitim, it is scarcely necessary to add, cannot be extinguished or 
 diminished by a bequest, mortis causa donation, or trust conveyance 
 of the estate to another child, and still less to a stranger. (A) 
 Discharge when 268. Express discharge by the child occurs in practice when a 
 a^party tothf parent, who has not discharged his children's legitim on the occa- 
 ^UMsmarriage- ^^ Q ^ ^ g own marr i a ge ; becomes a party to the marriage-contract 
 of one of his children as granter of a provision, — which may either 
 be in the form of a present payment or of an obligation to pay, — 
 and declares that the provision is to be taken in satisfaction of 
 legitim. The acceptance of the provision is sufficiently signified by 
 the child's subscription of the contract, which is in effect a discharge 
 of the right to legitim. We have already observed that a discharge 
 of legitim is not to be implied, (i) — a rule which is illustrated by 
 one of the points in the Breadalbane succession case. One of the 
 daughters of the Marquis, by her marriage-settlement in the English 
 form, had accepted a sum secured to her " as her portion or fortune." 
 This was maintained to be equivalent to a discharge of the legitim ; 
 but it was held, both by the Court of Session and the House of Lords, 
 that the right to the portio legitima was not discharge by a form 
 of expression in which the significant part of the legal term was 
 wanting. (A;) 
 
 (e) Home v. Watson, 1707, 5 Br. Sup. Paton, 581 (5th point) ; see Lord Eldon's 
 
 330, overruling the principle laid down in speech reported at great length, p. 603. 
 
 Stirling v. Luke, 1732, 1 Or. & St. 215, The older cases on this point are noted in 
 
 and Burden v. Smith, 1738, 1 Cr. St. & P. Fraser 1, 551. 
 
 214. (j) Stair, 3, 8, 45 ; Ersk. 3, 9, 23 ; Clark 
 
 i /, Fisher's Trs. v. Fisher, 19 T$o\. 1844, v. Burns, 27 Jan. 1835, 15 Sh. 326, and 
 
 7 I>. 129. Sec Lawrie v. Edmond's Trs., cases there cited ; Breadalbane case, infra. 
 
 Hume, 291. (&) Breadalbane' s Trs. v. Marchioness oj 
 
 (y) Per curiam in Fisher's Trs., supra. Chandos, 14 Sh. 309, 16 Aug. 1836, 2 S. & 
 
 A partial settlement of the conquest by M'L. 377, overruling the early case of Nis- 
 
 traptial contract, upon the children of bet v. Nisbet, 1726, Robertson, 594, as to 
 
 tho marriage, does not of course imply an which see Lord Colonsay's remarks, 19 D. 
 
 LusioD of Legitim as to the remainder ; 1057. See also as to exclusion of legitim 
 
 Nisbet v. Nisbet, 1726, Robertson, 594. in the father's lifetime, Smith v. Elleis, 
 
 >/,) Lashley v. Hog, 12 July 1804, 4 1622, M. 4777.
 
 BY WILL OE CONTRACT. 131 
 
 269. (2) The exclusion of the right of legitim by antenuptial chapteevh. 
 contract, or by discharge executed in the lifetime of the lather, is 
 sometimes termed " foris-familiation." In either case it operates legitim by eiec- 
 in favour of the other children of the marriage whose right to legi- Lnd/r'Vwiii. 
 tim lias not been excluded,(Z) in the same way as if the child had 
 died during the lifetime of the father,and therefore before the right 
 vested.(»i) Where, on the other hand, the right to a share of legi- 
 tim is forfeited in consequence of the child electing to take his pro- 
 visions under a testamentary deed which disposes of the legitim. 
 the benefit of the share, which, if claimed, must have come out of 
 the residuary mud, enures to that fund.(w) The principle of the 
 distinction was thus stated by the late Lord President of the 
 Court :(o) " When the father, by transaction in his lifetime, extin- 
 guishes the claim for legitim which his child would, in the event 
 of survivance, have been entitled to make against the succession, 
 the effect of that transaction is to relieve the succession from the 
 eventual claim of that child, just as if the child had died, or been 
 foris-familiated. That relief to the succession is what the father 
 acquires by the transaction ; but the succession so relieved becomes, 
 on the death of the father, subject to the operation of the law, and 
 musl undergo the division which the law has appointed in regard 
 to the moveable estate and succession of every man. Whereas, 
 when no transaction binding on the child has taken place during 
 the father's lifetime, and when by the father's death the right to 
 legitim has opened to and become fully vested in the child, and such 
 child agrees to take in lieu thereof a provision which the father had 
 pul in his option,— thai is a transaction, nol with the lather, bu1 
 with the representatives, who in thai way satisfy the claim, and are 
 entitled to the benefit of the relief so obtained." If thelegitim of 
 all the children is discharged during the lifetime of the parent, the 
 im fund is aecessarily extinguished, and the succession is then 
 divisible in equal shares between the widow and next of kin. 
 
 270. The doctrine, thai the acceptance of ;i provision under a Aci 
 total settlemenl operates in satisfaction of legitim, is now so well atot5 settle- e ' 
 iblished thai it is unnecessary to refer in detail to the cases.(.p) ™eTeZn TOlen, 
 
 (0 Bog l 7 Ma; 1792, 8 Paton, M'Murrayv. M' Murray's TVs. 17 July 1852, 
 
 247, where the legitim was discharged bj 14 D. L048, and Mocdougallv. Wilson,20 
 
 the children in con id< ration of an immi Feb. 1868, 20 I 1 
 
 diate payment; and Lord Panmurev. Orokat, / r's Trs. v. Dixon, 6' Apr. 1848 
 
 29 Feb. 1866, is D. 708, whi re it was i 2 B( 11, 68, aft ;.2D. 1 121. 
 eluded by antenuptial contract in con ide- (o) Lord Colon ay, 18 D. 709. 
 ration of | i | iyabl< afti r the i i » e the following ca e . among many 
 
 ' ath. othi r . which illu trate the principli 
 
 Thai the i / ad /' v. Duchess of Buckingham, 
 
 rarvivana was authoritatively Bxed bj 5 Mar. 1840, 2 D 781 \ i 
 
 i 2
 
 132 
 
 i:\Cl.USION OF LEGAL CLAIMS 
 
 uhaptkh mi. \ t » > t ; 1 1 settlemenl is in effed a disposition of the legitim, and the 
 legatee musl therefore elect between his rights under the settle- 
 ment and his legal claims. As to the effect of election upon the 
 rights of other henelieiaries, reference is made to the subsequent 
 chapter upon Election, (q) 
 Appointment of 271. It has been laid down, however, on high authority, that 
 legatee does noi the acceptance of a legacy or special provision under a partial settle- 
 * nient of moveable estate, does not preclude the legatee from claim- 
 ing his legitim.(r) In the case of White v. Finlay,(s) where the 
 lather 1 if a family appointed his widow " sole executrix and universal 
 legatee," it was ruled by a unanimous judgment of the Second Divi- 
 sion that the testament, although operative as a conveyance of the 
 entire legal estate for the purposes of administration, disposed of the 
 Ik neficial interest in the dead's part alone ; insomuch that the child- 
 ren, after executing a ratification of the testament, were entitled to 
 legitim in competition with the trustee on the executrix's estate. It 
 follows, therefore, that where a universal legacy of the moveable 
 e>tate is given to one child, under burden of provisions to the other 
 children, legitim may be claimed by the general legatees in addi- 
 tion to their provisions. A provision of heritage will not be pre- 
 sumed to be in satisfaction of legitim. {t) 
 
 272. (3) The right to legitim may also be extinguished or compen- 
 sated where the other children meet the claim by the counter claim 
 of " collation," directed either against the heritable estate to which 
 the child sustaining the character of heir-at-law has succeeded, or 
 against moveable funds advanced to the child by the parent during 
 his lifetime. Collation as between heir and executor, we may re- 
 mind the reader, extends to property to which the heir succeeds by 
 singular titles, e.g., entailed estate, provided he is heir alioqui suc- 
 
 Compensation 
 of claim to 
 legitim. 
 
 ion 1 e- 
 tween heir and 
 executor. 
 
 Macalister's Trs., 2 Mar. 1841, 3 D. 675 ; 
 Minto v. Kirkpatrick, 20 May 1842, 4 D. 
 1224 ; Wilson's Trs. v. Wilson, 1 July 1843, 
 15 Scot. Jur. 549 : Collier v. Collier, 6 July 
 1833, 11 Sh. 913, and F.C. ; Henderson v. 
 Henderson, 1782, M. 8191. 
 
 (q) Chapter 27. 
 
 (r) Collier v. Collier, ut supra, per Lord 
 Glenlee; Hoivdenv. Crighton, infra, and see 
 r. murks in note to report of Collier's case ; 
 Henderson v. I/citderron, ut supra, decree. 
 
 («) White v. Finlay, 15 Nov. 18G1, 24 D. 
 38. 
 
 (t) Howden v. Crighton, 18 May 1821, 
 1 SL. 18, N.E. 10; Matshall v. Marshall's 
 Trs.. 21 Nov. 1829. 8 Sh. 110. On the 
 
 subject of the satisfaction of legitim by tes- 
 tamentary provisions, and by payments 
 after the father's death, reference is also 
 made to the cases of Ross v. Mackenzie, 18 
 Nov. 1842, 5 D. 151 ; Paterson v. Moncrieff, 
 15 May 1866, 4 Macph. 707 (as to Dis- 
 charge in Ignorance of the Eight) ; Steven- 
 son v. Hamilton, 7 Dec. 1838, 1 D. 181, and 
 Lowson v. Young, 15 July 1854, 16 D. 1098 
 (as to Election) ; Gourlay v. Wright, 23 
 June 1864, 2 Macph. 1284 {mora pleaded 
 as a defence to the claim) ; Lord Panmure 
 v. Crokat, 18 D. 703, and J/' Murray v. 
 M'Murray's Trs., 14 D. 1048 (as to Ho- 
 mologation and personal Bar).
 
 BY WILL OR CONTRACT. L33 
 
 cessurus.(u) That it operates practically in the way of compensa- chapter th. 
 tion, is evident from the import of the two leading modern cases, 
 Anstruther v. Anstrutlier, and Fishers Trustees v. Fisher.(x) In 
 the former case, the heir, who succeeded to the estate in virtue of 
 an entail executed by an ancestor of his father, could not convey 
 the fee to the younger children ; but nevertheless they were held 
 entitled to impute the value of his life interest in the estate in ex- 
 tinction of his share of the total succession. In the latter case, 
 it was expressly found that the heir was not bound to execute a pro 
 i, ( , If ci's" conveyance of the heritable estate in favour of the family ; 
 but that it was competenl and sufficient to have the value of the 
 estate ascertained, with the view of imputing it in part payment 
 of the eldesl son's share of the total succession, {y) 
 
 273. Referring to the next chapter for an exposition of the law CoUatiobono- 
 ol coUatio bonorum ink r lib ros, it is only accessary here to observe \';'h,',-Z." 
 that the object of such collation is to secure an equitable division of 
 the legitim fund. The principle, as stated by Erskine,(g) is, that all 
 provisions given by a father to his children during his lifetime are 
 imputed in satisfaction of legitim, including not only the tocher 
 given mi his child's marriage, hut sums bf money advanced, though 
 without any written acknowledgment, or obligation to account. 
 "Advam ; Professor Bell,(a) " will be imputed to the legi- 
 
 tim in the following circumstances: — if made for the purpose of 
 setting the child up in trad-: or for a settlement in the world; or 
 for a marriage portion." In conformity with this principle, it was 
 hold, in Johnston v. Cochran,(b) that a daughter who had received 
 marriage portion from her father, and in Kay v. Kay,{c) 
 that a son to whom advances had been made to establish him in 
 business, were bound to impute these provisions, with interest, in 
 satisfaction of legitim. The exceptions are, — (1) advances in- 
 tended as a recompi use for services rendered :(</) (2) advances for 
 
 (hi Anstruther v. Anstruther, 20 Jan. 7 Sh. 226; see Nicolsoris Tr. v. Macalister, 
 
 1886, I 1 Bh. 272. 2 Mar. 1841, :; I'. 675. See Cod. Lib. 6, 
 
 (si Anstruther's case, supra; Fisher's lit. 'JO. 1. ]7 and "20 (Pr. and § 1) ; Cod. 
 
 r, 6 Dec. L850, L3 I >. 245. lib. 8, tit. 28, I. 29 and 80 (g 2). 
 (,/, /'• T, , . / r, decree, 13 I). (c) Kay \. Kay, 12 Julj ls|(. l<; s< 
 
 261. te chapter on ''"11a- Jur. 550; Campbell v. Instruther, Id .Fun.' 
 
 lion (chapfc 1887, P.O.; Duke of Buccleugh \. .»/. of 
 
 . 26. Tn-' i. hlil-. liiTT. M. 2869. 
 B Pi ide ('/) See Minto \. Kirkpatrick, 28 May 
 
 rat of tli" . heritable L888, 11 Sh. 682, where it was decided 
 
 property donol tend to diminish the legitim thai ■■' son taken into partnei lii|> witb In 
 
 i ii in 1, they do not fall to be collated (Ersk. fathers t bound to collate th< pali 
 
 //' tupra ; '/•" hall Vat hall Trs '-'I I in the itoch in ti tedto 
 
 - si,. I in,. him ; also '.'"»» v Ounn T 28 Pi b 
 
 I ! Bh 1 ^ »
 
 \;\\ EXCLUSION OF LEGAL CLAIMS 
 
 ohaptkbvu. maintenance and education in minority, or prior to emancipation, 
 and which are due ex debito naturali; (e) and (3) advances made in 
 loan, and for which the child was liable in repayment to the father 
 and his executors.(/) in short, collation applies to provisions as 
 distinguished from payments under obediential obligations, or on 
 the footing of contract. 
 
 274. The right of collation must not be confounded with the 
 '':,'"'" righl ol the children to reduce conveyances to a favoured child not 
 completed by possession, as being in defraud of legitim. (g) 
 
 SECTION II. 
 SATISFACTION AND DISCHARGE OF JUS RELICTS. 
 
 Limits of the 275. Jus relictce, like legitim, may be either discharged by 
 
 agreement, or satisfied by acceptance of an equivalent provision. 
 There does not seem to be, in relation to this particular claim, any 
 room for the application of the doctrine of satisfaction by advances. 
 As the husband is legally bound to maintain his wife during the 
 Mihsistence of the marriage, the presumption is, that monies ad- 
 vanced to her during his lifetime must have been given in fulfil- 
 ment of the husband's obligation to support her, and not as a pro- 
 vision for future maintenance. Our remark does not apply to funds 
 settled by way of postnuptial provision. Such provisions are sub- 
 ject to similar rules of interpretation with antenuptial provisions, 
 and, as will be seen, are in certain cases held to be given in satis- 
 faction of legal provisions. (A) 
 
 276. (1) Discharges of jus relictce may be either express or implied ; 
 
 reUcta by ante- in consideration of a provision, or of the onerous obligation implied 
 ' ' in marriage. It does not seem to be correct to say that jus relictce 
 may be gratuitously discharged ; for a discharge by antenuptial 
 contract, although it were granted without a pecuniary equivalent 
 — which in practice is never done — is, in contemplation of law, an 
 onerous discharge ; and a discharge granted after marriage, without 
 adequate consideration, is not binding. (t) 
 i r « i* — 277. As we had occasion to remark with reference to legitim, 
 
 ■ tual, 
 
 ■ relicta musl (<?) Irving v. Irving, 1694, 4 Br. Sup. Hume, 290 ; Balmainv. Graham, 1721, M. 
 
 be named. 144 See Stair, 3, 8, 26. 8199. 
 
 (/) Webster v. Rettie, 4 June 1859, 21 (h) The fact that such donations are re- 
 D. 915. Sue the English cases on the vocable during life, does not interfere wit) i 
 trine of advancement, cited in this re- the application of the principle under con- 
 port, 21 D. 921. ^deration. 
 
 (g) Hogv.Lashley,7 May 1792, 3 Paton, (i) Hunter (Roughead's Tr.) v. Dickson, 
 
 L'JT ; Johnston v. Johnston, ■!■'< June 1841, 5 Sh. 267, N.E. 248; 19 Sept. 1831, 5 W. 
 
 & S. 455.
 
 BY WILL OR CONTRACT. 135 
 
 the right intended to be discharged ought to bo described by its chaptbb yh, 
 proper name.(&) A widow to whom an annuity bad been provided 
 in her antenuptial settlement in the English form, which annuity 
 she accepted " in lieu and full bar and satisfaction of the dower or 
 thirds, which at common law or by custom she can or otherwise 
 might claim from the estates of her husband," and also "•in full 
 bar and satisfaction of terce," was hold not to have discharged her 
 jus relictce under that expression, but to be entitled to claim it in 
 addition to tin- provisions settled upon her by the contract. (?) It 
 had previously been held that a general discharge, as of "any ali- 
 ment or other provision of the law competent to her as a wife,"(m) 
 or of "all thai she or her next of kin could claim in the event of 
 her predecease," (to) was sufficiently broad to comprehends^ relictce. 
 
 278. A.e:ain, jus relictce. equally with legitim. may be construe- Constructive 
 
 ii-i , , • i i ' • o i ' ■ i i discharge by 
 
 tively discharged during the subsistence ol the marriage, by the acceptance oi 
 acceptance of a provision under a contractor settlement, under pa y a bie out oi 
 which the husband disposes of the fund which is subject to the the entire e 
 widow's claim, — that is, under a settlement dealing with the total- 
 ity of the moveable succession. (o) Simple acceptance of a provi- 
 sion inter vivos, however large, does no1 bar the right to claim jus 
 relictce out of the husband's undisposed-of estate. Q?) The rule has 
 i applied to provisions of every description, including simple 
 money provisions, (q) settlements of conquest, (r) annuities, (Y) and 
 provisions of heritage.(tf) 
 
 279. In the case of Thomson v. Smith,(u) the question was Whether dis- 
 raised whether the acceptance of a liferent of the husband's whole fromacccpt 
 
 of a lifen nl oi 
 the husband's 
 (k) Erak, :;. 9, 16. Collier v. Collier, G July 1833; Fraser \. w hole< 
 
 /. t. Keith, 17 July 1857, RanJcine, 17 Dec. is:;':.. 14 Sh. 171 
 
 19 I'. L040 a, \ 280, as to the M'Aulay v. Bell, 1712, M. 3848. 
 
 I p. which /u relictce i compatible (r) Tod v. Wemyss, 1770, M. 64-M ; 
 
 with the acceptance of tesl provi- Bailes, 884. 
 
 : ions. (s) Ross \. Masson, •'! Feb. 1848, 5 1>. 
 
 (m) Miller v. I',c, mi. 177<'>. .M. 6456; •") 483; Dunlop v. Greenlees' TVs., 2 June 
 
 Br. Sup. 17-; ; Hailes, 678. L865, 3 Macph. II. I.. 46. 
 
 1770, M. 6451; and (t) Cross v. Boyes, 16 Jan. 1801, Hume, 
 
 upra, and Bank. vol. ii. p. 886. 184. It is obvious thai even a universal 
 
 The form of expTi I quoted in the legacy of heritage lias do effeci upon the 
 
 iuld seem to be applicable in terminis right a in mobilibus ( Urquhart 
 
 i.nly to tip- wit.'., share of the goods in \. Urquhart, 20 Feb. 1851, 13 I'. 742) 
 
 communion, which, prior to the Moveable / v. Smith, 8 l>.'-. 1849, 12 
 
 atitled t<. I"- l». "J7'i. See Leighton \. Russell, 1 Dec. 
 
 queath. ! 15 l». 126, an. I Baroness >b Blonay 
 
 ('■) See tfa iim. supra. v. Oswald's Reps., 17 .inly 1868, I Macph. 
 
 Keith '/','. •.. Keith, supra, an. I 1147, where thi 
 
 v, nli r< fere to the claim of tin' - 
 
 f'/i ll : ' :■ i •. and H ■ '■■ ■ claim oi interim 
 
 I Sh. It; Faculty aliment
 
 [36 EXCLUSION OF LEGAL CLAIMS 
 
 . BAFTKBvn. estate implied a discharge oijus relietas. The negative was pleaded 
 as a defence to an action by the husband's representatives against 
 the widow ; hut it was held, that as all the parties had acquiesced 
 in a distribution of the estate upon a different footing, the represen- 
 tatives were barred from making a claim of repetition. Conse- 
 quently the point was not decided. Lord Moncreiff observed that 
 it was a debateable question, whether jus relictce was merged in a 
 disposition of an entire liferent of all that the husband had. The 
 rase of Cross (x) came very near to that point; and the cases re- 
 ferred to by Mr Fraser seemed to support the proposition, that 
 where the wife had been a party to a deed or mutual contract, 
 whereby she accepted of a liferent of the whole or a portion (y) of 
 the funds, a discharge of her own share might be legally implied. («) 
 Satisfaction of 280. (2) The jus relictce will be satisfied by a testamentary pro- 
 
 '"Vunrni'ir'- vision in favour of the wife, and declared to be in satisfaction of 
 provisions. j us relictce, either expressly, or by being given as part of a general 
 settlement under which the husband disposes of the totality of his 
 moveable estate. And it is immaterial that the wife's provision is 
 contained in a separate writing, if such writing form part of a total 
 settlement, (a) The leading case is Keith's Trustees v. Keit7i,(b) 
 where the distinction was taken between a marriage-contract pro- 
 vision and testamentary provisions by the husband. The former 
 was considered not to be in satisfaction of jus relictce, because it 
 was not given under that condition, and the contract did not dis- 
 pose of the husband's whole estate ; the latter formed part of a uni- 
 versal settlement. The wife was therefore held bound to elect be- 
 tween the testamentary provisions in her favour, and the jus relictce, 
 increased by her marriage-contract provision. (c) 
 , f ais. 281. We refer to the chapter on Election with reference to the 
 
 question as to the effect of discharge or satisfaction of the claim 
 
 _ r the 
 interests "t 
 other claimants. ^ Cross v. Boyes, supra, (a) Stewart v. Stephen, 29 Nov. 1832, 
 
 (y) It is clear that a bequest of a por- 11 Sh. 189. 
 tion of the moveable estate would not im- (b) Keith's Trs. v. Keith, 17 July 1857, 
 
 ply u discharge of legal claims ; see Keith's 19 D. 1040; see Bennet v. Bennet's Trs., 
 
 Trs. v. Keith, and other cases cited above. 1 July 1829, 7 Sh. 817 ; Johnstonev. Cold- 
 
 (z) 12 D. 282. The cases here referred stream, 30 June 1843, 5 D. 1297. 
 to are, — Riddell v. Dalton, 1781, M. 6457 ; (c) In the case of the Baroness de Blonaij 
 
 Tod v. Wemyss, supra ; Holmes v. Marshall, v. Oswald's Reps., 17 July 1863, 1 Macph. 
 
 1677, M. 6448, 3 Br. Sup. 116 ; Mcnzies v. 1147, it was held (1) that a widow's claim 
 
 Burnett, 1666, M. 6448, 1 Br. Sup. 543 ; for interim aliment or " alimony" to the 
 
 Young v. Buchanan. 1669, M. 6447. The first term after her husband's decease was 
 
 last case is referred to by Fraser (i. 594) not excluded by annuities granted by the 
 
 as authoritative See also Milne v. Far- husband inter vivos; but (2) that the claim 
 
 quharson, 5 Dec. 1822, 2 Sh. 66, N.E. 59 ; was excluded by acceptance of a liferent 
 
 Krsk. 3, 3, 30. of hi.- testamentary estate.
 
 BY WILL OR CONTRACT. 131 
 
 upon the rights of other claimants of the succession. (d) The prin- cn.u>TEn vn. 
 ciple is, that a discharge of the jus relictm in the husband's lifetime 
 extinguishes the right, so that the moveable succession comes to 1 e 
 divisible in equal shares betwixt the children entitled to legitim 
 and the husband's representatives; but that the acceptance of a 
 testamentary provision in satisfaction of the jus relictce, after the 
 husband's death, operates in favour of the representatives alone.(e) 
 
 SECTION III. 
 SATISFACTION AND DISCHARGE OF TERCE AND COURTESY. 
 
 282. Terce and courtesy, like other legal claims, may be made 
 the subject of discharge or satisfaction. 
 
 283. The interest of either of the spouses in the property of the How these 
 
 i t • i ■ i j_ l / -*-\ rights ma v l' e 
 
 <4her mav be renounced simpliciter by antenuptial contract ;(/; satisfied or 
 and even after marriage these rights may be discharged for an &c Mge ' 
 equivalent provision, subject to this qualification, however, that if 
 the consideration in a postnuptial contract is inadequate, the dis- 
 charge mav be revoked.(</) Terce and courtesy are of course liable 
 to be affected by the diminution or conversion of the estate which 
 forms the subject of these rights, but this matter, which relates 
 to the nature of the interest and not to its effect in competition 
 with testamentary rights, has already been considered. 
 
 284. "With reference to the doctrine of satisfaction, it is neces- Exciusionof 
 
 ilif tcrcc inul'T 
 
 Bary to distinguish between terce and courtesy. In the former statuti L68i, 
 
 . the doctrine is established by the provision of the Scottish c " " 
 statute 1 681, cap. 10, which enacts "thai in time coming, v here there 
 shall be a particular provision granted by an husband in favours of 
 his wife, either in a contract of marriage, or some other writ, before 
 or after the marriage, that the wife shall be thereby secluded from 
 a terce oul of any lands or annualrents he lunging to her husband, un- 
 less it be expressly provided in the contrad of marriage, or other writ 
 containing the said provision, that the wife shall have right to a terce, 
 hy and attour the particular provision conceived in her favours." 
 
 285. In the case of the courtesy, the righl is no1 excluded by a Distinction in 
 conventional provision, unless accepted subject to a declaration that i 
 
 it is in lieu ot courtesy.(A) It is doubtful whether the acceptance 
 
 Infra, chap. 27. (.</) Chapter 28 (Marriage-Contract 
 
 2 Bi II, 68, 78; am Set Vowa C% Lauda 16 ■/. M. 6896. 
 
 '/ v. Campbell, 24 D. 1821 ; (A) Bee 1 Bell' Com. (6th ed.) 686; 
 
 overruling Andrews v. Sawer, 11 Sh, 689 1 Fro r, 642; Primron v. Crawford, 1771 . 
 
 (/) Bee Hamilton • Botwell, 8 Feb M. "C iesy,' App. No. l ; Hamilton v. 
 
 [I Bo " ■ 11, mpra.
 
 8 
 
 KXCLI'SION OF LEGAL CLAIMS 
 
 IIAIM ! 
 
 Acceptance of 
 
 I ho special pro- 
 vision i 
 sarv to the 
 exclusion of 
 terce. 
 
 Satisfaction of 
 terce by con- 
 ventional pro- 
 vision under 
 
 even of a mortis causa provision forming part of a universal con- 
 veyance of the wife's heritable esta I e, would deprive the husband of 
 his courtesy, unless the jus mariti and right of administration were 
 i deluded; lor the righl to the courtesy is in a sense a continuation 
 of the jus mariti after the death of the wife, and not strictly a right 
 ,.|' succession ;(*') and it is not to he presumed that a proprietrix, in 
 disposing of her estate, means to dispose of her husband's vested 
 interest iii it. Eowever, it may be assumed that a trust for imme- 
 diate division, giving a, portion of the estate to the husband in lieu 
 of his liferent, would put him to his election. 
 
 286. Although by the terms of the statute 1681, cap. 10, terce is 
 excluded by any provision granted by the husband, it has been held, 
 as an equitable c< instruction of the enactment requires, that the 
 wife's acceptance is necessary to an effectual exclusion. Where she 
 has not accepted the conventional provision stante matrimonio, her 
 righl of election at the husband's death is indisputable. (Je) And 
 the infeftment of the wife in the fee of a part of the estate, without 
 her consent, will not deprive her of her right of election. (I) 
 
 287. Whether terce is satisfied by a conventional provision un- 
 der a foreign settlement, depends upon the question, whether that 
 provision is effectual and binding according to the law of the country 
 in which it is made ? The acceptance of a sum of money as a join- 
 ture under an English settlement, has been held sufficient to bar the 
 right of terce. (m) On the other hand, where the conventional pro- 
 vision included the liferent of the price of the granter's Scotch 
 estate, which, by the form of the deed, was not effectually con- 
 veyed to her, the Court found the widow entitled to terce, on the 
 principle that she had not succeeded to the full measure of the 
 conventional provision intended for her.(w) In a more recent case, 
 where a wife, by a contract of separation executed in America, re- 
 ceived from the husband an annuity of £300 per annum, and after- 
 wards received from the Court of Chancery of South Carolina a sum 
 in name of alimony of 20,000 dollars, the terce was held not to be 
 satisfied by the settlement of the annuity, as it was evident from 
 the judicial proceedings which had since taken place that the pre- 
 vious arrangement was only temporary, (o) 
 
 (i) Ersk. Pr. 2. 9, 31 ; 1 Bell's Coin. (5th 
 ed.) 01-2 ; 1 Fraser, 637. 
 
 (k) Stair, 2, 6, 17; Cowan v. Kerr, 15 
 I li c. 1 830, 9 Sh. 188; Douglas, Heron, $ Co. 
 v. Cant, 1783, M. 11,461. 
 
 (1) Belschier v. Moffat, 1779. M. 15,863. 
 Countess of Seafield v. The Earl, 8 
 Feb. 1814, F.C 
 
 (n) Jankouska v. Anderson, 1791, M. 
 6457 ; and see Ross v. Aglionby, M. 4631 ; 
 M. "Foreign," Appx. No. 5; 15 Dec. 1797, 
 3 Pat. 621. 
 
 (o) Nisbett v. Nisbett's Trs. 24 Feb. 
 1835, 13 Sh. 517.
 
 I'.Y WILL OK CONTRACT. 139 
 
 . HATTER VII. 
 
 SECTION IV. 
 
 SATISFACTION AND DISCHARGE OF EXECUTRY AND HERITABLE 
 SUCCESSION, (p) 
 
 288. Notwithstanding some observations by Mr Fraser of a con- Whether right 
 trary tendency,^) it is more than doubtful whether the right to mo^ble'suc- 
 undisposed-of execntry can be cut off by a discharge, or satisfied ScEmS 1 * 
 by a special provision. The passages in Stair and Erskine which 
 have been supposed to countenance the proposition(r) seem rather 
 to imply that the right will snbsistj unless it is either defeated by 
 a conveyance of the dead's part to some other person, or by an ex- 
 press renunciation on the part of the child himself in favour of the 
 other members of the family. The principle, that an heir cannol 
 be excluded from the succession by disinherison, has been given 
 t to in several cases relating to heritable succession ;(s) and 
 although it was held in an old case that a beneficial interest might 
 
 i iven to testamentary executors by words of nomination, coupled 
 with words excluding the testator's uext of kin.(/) there is no autho- 
 rity for holding thai the interest of a child in his lather's intestate 
 succession can be taken away by words of mere exclusion, whether 
 occurring in a marriage-contract or a testament. 
 
 289. The case of Wilson v. Gibson,(u) and that of Maitland, are Estimate of the 
 direct authorities to the contrary. In the former case, a father, r ecent*autho- 
 by two testamentary dispositions in favour of his daughters, gave to ntles " 
 each of them a liferenl interest in certain heritable property, and 
 the fee to their children, and declared in both cases that the con- 
 veyances should be accepted "in full satisfaction of all iegitim, 
 portion natural, bairn's part of gear, executry, or other claims what- 
 
 i • <>f the children to claim of the deceased wife's share of executry 
 
 from the father's estate the share of the musi be deducted, in accordance with the 
 
 in Communion which might have declaration in the will. Leighton v. Russell, 
 
 ithed by their deceased mother, 1 Dec. 1852, 15 D. 126, decided that a life- 
 
 • ii abolished by the Moveable Sue- ri nl of universitas m , 1 not bar 
 
 18 & 19 Vict., c. 23, \ 6), and thi claim of the wife's executors. Seethe 
 
 we have thought it m to treat in d infra, chap. 25, sect. 3. 
 
 i i 600. 
 
 ; i. Stair, 8, 8, 54 ; Ei k. 3, 9, 23. 
 
 vol. i, pp. 595 699. Thi l.e I ■ thai Blackw J v. Dykes, 26 Feb. 1 833, 
 
 / Rorison II Sh. 448; Sinclair v. Traill, 27 Feb 
 
 Ml Dec. L862 L6 D. 212 . .i n a father 1840,2 D. 694 ; Stoddartv. Thomson, 1784, 
 
 having titer in Elch. "Succession," No. 1. 
 
 liferent, and her children in fee, adding [I) Beizley v. Napier, 1789, M. 6691 
 that he included her mother's share in thai (m) Wilson v. Gibson, 80 June 1840,2 
 
 - and th toi having repudiate d D. 1286, 
 
 ttlemi nt. it wa • b< M l L . t the value
 
 10 
 
 EXCLUSION OF LEGAL CLAIMS BY WILL OK CONTRACT. 
 
 II U'l 
 
 Mititiand 
 Maitland. 
 
 Dischai 
 ri.L'ht to exe- 
 cutry op 
 in favour of 
 brothers and 
 
 of colla- 
 tion I" I 
 heir and 
 executor.! 
 
 soever which Bhe or her heirs can ask or demand through my death 
 ,„. the death of my deceased wife, or in any other manner of way ; 
 an d thai in case recourse shall be had to any of the said claims, 
 whether Legal or conventional, the rights of both liferent and fee 
 hereby granted shall fall and become null and void." He died in- 
 testate as to his moveable succession, leaving a widow, who was sepa- 
 rately provided lor, her legal claims having been discharged. The 
 C,,ml held that the daughters were entitled to the entire moveable 
 succession in equal shares. This case disposes of the theory of 
 satisfaction as applied to executry. In Maitland v. Maitland,{x) 
 the interest of the children of the marriage in legitim and executry 
 was excluded by antenuptial contract ; and in this case also, the 
 widow having predeceased her husband, the children of the marriage 
 were held entitled, to the entire succession. The principle appli- 
 cable to such cases, is, that an heir or personal representative can 
 only be excluded by giving the estate to another person. 
 
 290. It has, however, been determined that a child may re- 
 nounce his right to executry to the effect of devolving it upon his 
 brothers and sisters, in the event of intestacy. (#) But it would 
 seem that such a renunciation will not operate in favour of more 
 distant relatives. (z) And such renunciation must in express terms 
 apply to executry; for a discharge of legitim, coupled with such 
 2-eneral words as " all he can ask or demand," will not apply to 
 executry, which is not a claim to be demanded, but a right of suc- 
 cession, (a) 
 
 291. In conclusion, it is to be observed that the heir's right to 
 a share of executry is held to be satisfied if he accept the heritable 
 succession, in virtue of the doctrine of collation, which is elsewhere 
 discussed. (6) Collatio bonorum inter liberos (which has relation to 
 gratuitous advances) does not affect the child's claim to executry ; 
 hut the share of executry accruing to a child is of course subject 
 to abatement in respect of proper debts incurred to the father, 
 including money advanced in loan and entered in the father's books 
 as a debt due to his estate. (c) 
 
 (-/) Maitland v. Maitland, 14 Dec. 1843, 
 6 D. 244. 
 
 (y) Johnston v. Miller, 26 June 1847, 9 
 D. 1389 ; Campbell v. Campbell, 1738, Elch. 
 •' Legitim," No. 4; M. 8187 and 9265; 
 Wright v. Burns, 27 Jan. 1835, 13 Sh. 326. 
 
 (z) Ersk. id supra ; Bankt. vol. 2, p. 
 382; I Fraser, 601, and cases there referred 
 ,,,; Campbell v. Campbell, 1738,-M. 8187, 
 9265 ; Elch. I.' gitim," X". 4. 
 
 (a) Sinclair v. Sinclair, M. 8188 ; 13 Feb. 
 1770, 2 Pat. 199; Anderson v. Anderson, 
 1743, M. 5054; Hepburn v. Hepburn, M. 
 5056; Elch. "Executor," No. 12; Pringle 
 v. Pringle, 1741, Elch. "Legitim," No. 5 ; 
 and cases in Morrison, voce " General Dis- 
 charge," p. 5046 et seq. 
 
 (b) Chapter 8. 
 
 (c) Webster v. Rettie, 4 June 1859, 21 IX 
 Ul.-,.
 
 OF COLLATION. HI 
 
 t'llU'IEB VIII. 
 
 ( 1IAPTEE VIII. 
 OF COLLATION. 
 
 II. Among Children claiming Legitim. 
 
 SECTION I. 
 COLLATION BETWEEN HEIR AND EXECUTOR. 
 
 292. The heir-at-law, if entitled to succeed as one of the next Collation appii- 
 of kin, or under the Moveable Success! >n Act, to a share of the exe- executry and to 
 cutry estate, can only lay claim to it upon condition of collating or egl m 
 communicating the heritable estate with the other personal re] >re- 
 sentatives, who must then collate the executry estate with him. (a) 
 
 The heir is subject to the same obligation as a condition of claim- 
 ing legitim, where he is one of the children of the predecessor. (b) 
 But as he cannot collate the same estate twice, his obligation is 
 held i" be fulfilled by throwing the heritage into the combined legi- 
 tim and executry funds for the purpose of distribution according 
 to the rules of personal succession. Collation is a privilege of the 
 heir which he is not hound to exercise for the benefit of the per- 
 sonal representatives; bul it would seem thai an heir maybe com- 
 pelled to collate by his creditors where his doing so would increase 
 the value of the succession, (c) « 
 
 293. Where, upon an agreement to share heritable and move- Distinction li- 
 able Succession, any Conditions are interposed which the law does andaereemenl 
 
 no1 prescribe, this is not held to be collation, bu1 a conventional* 
 arrangement, in which the agreemenl of the parties is the measure 
 oi their rights. Therefore, where the curator of a lunatic heir-at- 
 law agreed with the next of kin to share the heritable and move- 
 
 (a) Ersk. 8, 9, 8 ; I Bell, Com., 6th ed. Collatii f legitim is not mentioned in the 
 
 100; Pr., §1910; 1 Eraser, 681. "Institute," and indeed he expressly states 
 
 (6) /.mi- v. Law, L668, M. 2866; Mm- thai Legitim belong to the younger child- 
 ray v. Murray, 1678, M. 2872 ; Sinclair \. r< d i t thi familj ; En k., 8, 9, 28. 
 
 'air, 1768, M. 8188. Ei Irineappeai (c) See 1 Bell, Com., 6th ed., 104 
 
 have i
 
 L42 
 
 OF COLLATION. 
 
 ,11 VPTKH \ III. 
 
 Heir ool liable 
 to collate with 
 the ri'liot. 
 
 International 
 relations of the 
 law of collation. 
 
 ts which 
 
 t'llll tO 1 
 
 able succession, on condition thai his ward's share should be paid en- 
 tirely in money (the objecl being to avoid the objection of alienage), 
 this was held to be a conventional arrangement, and not to have 
 the effect of converting the ward's succession from heritable to 
 moveable.(d) And where the eldest son of a farmer, in pursuance 
 of a family arrangement, obtained himself confirmed executor, and 
 entered on the mangement of the moveable estate, which was almost 
 entirely absorbed in the payment of debts, it was held that the heir 
 was nol liable to account to his sister on the footing that he had 
 collated.(e) 
 
 294. Jus relictce is not diminished by reason of the heir claiming 
 moveable succession, since the fund divisible amongst children or 
 representatives remains the same, whatever the number of claim- 
 ants ; consequently the heir, even where he is the sole next of 
 kin(/), is not liable to collate with the relict. (g) 
 
 295. The heir's right to participate in the personal succession is 
 a part of the law of personal succession, and is therefore regulated 
 by the local law of the domicile. The correlative obligation to col- 
 late real estate is a rule of the law of personal succession in Scot- 
 land, and is therefore an obligation binding on any heir who lays 
 claim to the personal succession of a person dying domiciled in 
 Scotland, irrespective of the situation of the real estate which he 
 may be required to communicate. In the application of the rule 
 by which collation is subjected to the operation of the law of the 
 domicile, it has been determined, first, that inasmuch as collation 
 is unknown to the law of England, an heir who takes a share of a 
 personal succession under the English statute of distributions, is 
 imt bound to communicate heritable estate situate in Scotland which 
 he inherited from the same ancestor ;(Ji) and, secondly, that a per- 
 sonal representative of an intestate dying domiciled in Scotland is 
 bound to collate or communicate real estate in a colony to which 
 he succeeded as heir under the local law of that colony, (i) 
 
 296. The subjects of collation are, on the one hand, the whole 
 
 1843, 
 
 1852, 
 
 (d) Kennedy v. Kennedy, 15 Nov. 
 6 D. 40. 
 
 (e) Mitchell v. M'Michan, 13 Jan. 
 14 D. 318. 
 
 (/) Trotter v. Rochead, 1681, M. 2375. 
 Balmain v. Glcnfarquhar, 1719, M. 
 2378 : Murray v. Murray, 1678, M. 2374-5; 
 Trotter v. Rochead, supra. 
 
 (A) Balfour v. Scott, 1793, 3 Pat. 300, 
 reversing the judgment of the Court of 
 Session, M. 2379. In the caae of Dove/las 
 
 v. Douglas, 1763, 5 Br. Sup. 896, the true 
 principle appears to have been followed, 
 but the report is very brief and somewhat 
 obscure. Robertson v. Robertson, 16 Feb. 
 1816, F.C., and Trotter?. Trotter, 5 Sh. 
 78, N.E. 72, which are indexed under the 
 head of Collation, were cases of Election 
 under the doctrine of Approbate and Re- 
 probate. 
 
 (i) Robertson v. Macvean, 18 Feb. 1817. 
 F.C.
 
 OF COLLATION. 143 
 
 of the free heritable succession, including heirship-moveables ;(//) chapter vm. 
 and, on the other, the whole of that part of the free moveable suc- 
 cession upon which the heir has a claim — that is, executry or legitim, 
 <>r both, as the case may be.(l) In the heritable estate leases are, of 
 course, included ;(in) and it is of no consequence that assignees are 
 excluded by the terms of the lease, for, as will be seen hereafter, 
 the obligation 1" collate may be fulfilled by crediting the common 
 fund with the value of the heritable property which is to be col- 
 lated.^) 
 
 297. The questions which arise in the distribution of estate may Questions stated. 
 be classified as follows: — (1) What heirs arc subjected to the law 
 
 of collation; (2) The mode of giving effect to collation; and (3) 
 Collation as affected by Testamentary Provision, Contract, or Dis- 
 
 char. 
 
 298. I. What Heirs are subjected to the Law of Collation. General mi.' 
 — The case which bests illustrates collation between heir and exe- relation to 
 cutor is thai of an eldest son and heir-at-law claiming legitim and ^ecutry!" 1 
 exi entry along with his brothers or sisters. In this case the heir 
 
 may. as a condition of his sharing in the distribution of these 
 
 funds, either convey to himself and the other children all the real 
 
 estate, wherever situated, which he inherited from his father, or 
 
 he may credit the family with its value, and receive in money the 
 
 difference between its value and that of the share of the aggregate 
 
 real and personal estates to which he is entitled. Collateral heirs, 
 
 whether of line or of conquest, being of the next of kin of the 
 
 predecessor, are entitled at common law to collate to the effect of 
 
 sharing the executry;(o) and by the Moveable Succession A.ct(p) 
 
 an heir-at-law succeeding by representation, and being within the 
 
 class oi persons entitled to share in the distribution of the personal 
 
 estate, may collate to the effeel of receiving lor himself, and the 
 
 other issue of the person represented, the share of succession which 
 
 that person would have taken, had he survived the intestate. (</) 
 
 An heir-at-law who is the sole surviving child of the predecessor 
 
 takes the Legitim fund without collation, and if he is also the sole 
 
 persona] representative he of course takes the executry also, in his 
 
 proper right. 
 
 / 11 Pollod 1667, M. 5402. [p) I - Vict., cap. 28, \ 2. 
 
 bject treated infra, hunc tit. {q) Infra, hunc tit. A.n heir-at-law, who 
 
 effect to Collation), is not also one of the next of kin, ha no 
 
 Stewart v. BP Ifatigkton, 2 Dec, 1824, righl ai common lav to hare in the <lis- 
 
 :: Sh. 861, N. !•'.. 250. tribution of the pi i onal i tate; V'Caw \. 
 
 / / 6 Dec. I860, L8 D. VCaw, L787, M. 2388, overruling Ersk. 
 
 ted infra, \ 800. 8, 9, 8 
 Chancellor v. Chancellor, L742, M.
 
 ! || OF COLLATION. 
 
 .huth; viit. 299. Heirs of provision alioqui successurus arc subject to the 
 law of collation. In other winds, an heir-at-law who claims a 
 
 (. Dilation in- 
 cludes subjects share of the personal succession must collate whatever he has re- 
 
 tm'.Tin'^ ceived from the predecessor as a gift, whether byway of testament- 
 ary settlement or by deed inter vivos. (r) Where the provision comes 
 in the shape of a settlement to a parent or parents in liferent, and 
 the heir of the marriage in fee, it is necessary to consider in whom 
 the fee is vested in the first instance. If the liferent is merely 
 nominal, the parent being truly a fiar, then the person succeeding 
 under the destination of the fee would not be bound to collate as 
 a condition of claiming a share of the personal succession of the 
 gra nter ; but he would be bound to collate if he claimed personal 
 succession of the nominal liferenter to whom he succeeds as heir of 
 provision, being heir alioqui successurus. And conversely, in the 
 case of a proper settlement in liferent and fee, the heir alioqui suc- 
 cessurus is entitled to a share in the liferenter s personal succession 
 without collating the provision, but must collate as a condition of 
 sharing in the personal succession of the granter.(s) 
 
 Collation by an 300. An heir of entail, who is at the same time one of the next of 
 
 heir of entail. . . . i • n 
 
 km and the heir 01 lme of the person to whom he serves heir of pro- 
 
 vision, if he claims a share of the moveable succession, must collate 
 the entailed estate. It appears, from the opinions of the judges 
 in the leading case of Little Gilmour, (t) that an heir of entail would 
 not be required to collate the value of the entire estate, but only the 
 rents falling to himself or the value of his life interest ;(u) and this 
 view is in accordance with the principle established by the recent 
 case of Fisher's Trs. v. Fisher, (x) that the heir is only bound to 
 
 (r) Murray v. Murray, 1678, M. 2374 ; personal succession from a stranger under 
 
 Baillie v. Clark, 23 Feb. 1809, F.C. ; a destination to " heirs and executors of 
 
 Fisher v. Fisher, 19 Nov. 1844, 7 D. 129. A," he is not obliged to collate the herit- 
 
 Entail cases of Gilmour, Anstruther, and age derived by succession from A. 
 Breadalbane, cited infra. An heir of pro- (s) Fisher v. Fisher, 19 Nov. 1844, 7 D. 
 
 vision who is not heir alioqui successurus, 129. It need scarcely be added that the 
 
 e.g., a younger son of the intestate, is not heir is not obliged to collate where he 
 
 obliged to collate his provision with the claims personal succession under a will or 
 
 executry or legitim, and may without col- deed. Thus, where lands were destined to 
 
 lation take the share of personal succession the heir of a marriage " and the conquest 
 
 to which his character entitles him ; D. of to the bairns,"' the heir, being a child of 
 
 Buccleugh v. E. of Tweeddale, 1677, M. the marriage, was held to have right to a 
 
 2369 ; Rae Crawford v. Stewart, 1794, M. share of the conquest without collation ; 
 
 2384. It may be noticed that where the Brown v. Brown, 1680, M. 2375. 
 heir-at-law of one person succeeds as per- (t) Gilmour v. Gilmour, 13 Dec. 1809, 
 
 sona designata under -the settlement of an- F.C. 
 
 other, that heir takes as a singular succes- («) See p. 458-9 of the Faculty Keport. 
 
 sor; and conversely, if the heir-at-law of (x) Fisher's Trs. v. Fisher, 5 Dec. 1850, 
 
 A, who is also one of his next of kin, takes 13 D. 245.
 
 OF COLLATION. 145 
 
 communicate the value of the interest which he actually acquires chapter vm. 
 •by succession. The rule, that entailed estate in the person of an 
 heir alioqui successurus is subject to collation, was confirmed by the 
 House of Lords in the case of Anstruther v. Anstrufher ;(y) but the 
 question as to the mode of giving effect to it was not raised, pro- 
 bably because it was not for the advantage of the heir to collate in 
 any shape or way. 
 
 301. The subject of collation between heirs-portioners and next- Collation by 
 of-kin would appear not to have been fully understood by our lead- heirs -P ortloners - 
 ing writers. Erskine had evidently only considered the case of 
 heirs who are daughters of the predecessor, which was the condi- 
 tion in i: 36 oi Bickart, to which he refers ;(z) but it is singular 
 that Bell, writing in full view of the case of Balfour v. Scott, should 
 have failed to notice tin- distinction, to which we are about to ad- 
 vert, (a) depending on whether the heirs-portioners are or are not 
 the sole next of kin. 
 
 (1) Daughters of the predecessor, who are at once the sole heirs- Bickart v. 
 portioners and the sole next of kin, are entitled, each in her pro- 
 per right, i<> an equal share of the heritable as well as the moveable 
 succession; and in that case it is a mere truism to say that collation 
 does not take place. Collation, which is a mode of maintaining 
 equality in the distribution of the moveable estate, can have no 
 place where the whole heritable and moveable estates are already 
 equally divided by the law of the succession. (b) So, also, where 
 heirs-portioners, although not daughters of the predecessor, are his 
 sole next of kin, the division is equal, and (here can be no collation. 
 Now, it in such a case the predecessor Bhould settle his whole heril - 
 able estate upon one of the heirs-portioners, e.g., upon the son oi 
 his eldest daughter, to the exclusion of his other grandchildren, no 
 valid reason can he assigned tor requiring the favoured heir to col- 
 late with the heirs-portioners who are disinherited. As regards the 
 portion wln'eh the heir takes alioqui successurus, in virtue of the law 
 of equal distribution in the female Line, we have already seen that 
 collation is excluded by the nature of the succession. As regards 
 the portion which would have fallen ex lege to the other heirs-por- 
 tioners, collation is equally excluded, because the property is ac- 
 
 ' uthery. Aniniil„r, 10 n,,i ihu heir of line of the en- 
 
 2 s. &M«L. 8l t pre- taller. 
 
 is \^ SI,, l 10, 1 S.& M'L.468, (z) Ei I . 8, 9, 8. 
 
 and 11 Sli. 272. Bee also th< i l Bell, Com. 6th ed. 108 I ind 
 
 ■n. 28 Jnne 1st 1. Hume, 0. .Mr Fra i r, vol. 1. p. 68 I. also overlooks 
 
 3readalbant .. '/. oj Chan- the consideration thai heii -arc 
 
 & M !•■ 877, vhi re aol h I kin. 
 
 held immal rial (p. 898), that the (6) I kart v. Bickart, 
 
 infra. 
 
 VOL I. K
 
 1 to 
 
 OF COLLATION. 
 
 . ii mi ■ r ii v 1 1 1 
 
 Balfour v. 
 
 S 
 
 .4 nstruiher 
 A nstrtUher. 
 
 quired by singular title from the ancestor, and is therefore not a 
 proper subjecl of collation. This is the point which was decided in 
 the case of Rickart,(c) and although the authority of the decision 
 has been questioned, (<0 it appears to us to be perfectly unassailable 
 in principle. 
 
 302. (2) In the ease oi' Balfour v. Scott{e) we have an instance of 
 a succession devolving to heirs-portioners who were not the sole 
 in xt of kin. Mr Scott of Scotstarvet, whose succession was in 
 question, died survived by two nieces, daughters of his brother, his 
 heiresses-portioners, and by children of his sister, who succeeded 
 to his personal estate in conjunction with their cousins. Under 
 Mr Scott's settlement the eldest daughter succeeded to the heri- 
 table estate without division. In the argument the case was dis- 
 tinguished from that of Rickart by the circumstance that, although 
 all the heirs-portioners were next of kin, some of the next of kin 
 were not heirs-portioners. The Court found that the defender, 
 Miss Scott, was not entitled to claim any part of the executry 
 of her uncle without collating his heritable estate, to which she 
 succeeded as heir.(/) The judgment was reversed in the House 
 of Lords, but upon a ground which does not affect the principle of 
 the decision of the Court of Session ;{g) and the distinction there 
 taken between heirs-portioners who are and those who are not sole 
 next of kin, was approved by the House in the leading case of 
 Anstruther v. Anstruther.(h) " In the case of Rickart," said Lord 
 Cottenham, Ch., " the question arose between two sisters, so that, as 
 to two-thirds, the eldest sister was not heir-at-law, but took by spe- 
 cial destination. But in the Scotstarvet case, in 1787, the circum- 
 stances w T ere the same, except that the sisters were not sole next 
 of kin ; and there it was held by the Court of Session that the 
 eldest sister, being heir of entail, must collate with those who were 
 next of kin, but not heirs-portioners. The distinction between the 
 two cases is obvious ; the eldest sister was not in competition with 
 heirs-portioners only, but with others, next of kin, who were not 
 so. This judgment was reversed in this House, but merely upon 
 the ground that, the domicile having been in England, the law of 
 Scotland did not apply. "(t) 
 
 (c) Rickart v. Rickart, 1720, M. 2378. 
 
 (d) 1 Bell, Com., 5th ed. 103; Gilmour 
 v. Gilmour, \Z Dec.l809,p:r Lord Meadow- 
 Lank, p. 457 of Faculty Report. But see 
 Lord Cottenham's observations, cited infra. 
 
 (e) Balfour v. Scott (Scotstarvet Case), 
 1787, M. 2379. 
 
 (/) M. 2383. 
 
 (g) Balfour v. Scott, 1793, 3 Pat. 300, 
 304. A portion of the judgment of the 
 House of Lords is omitted in Morrison's 
 Report, leaving the sense incomplete. 
 
 (h) Anstruther v. Anstruther, 16 Aug. 
 1836, 2 S. & M'L. 369. 
 
 (i) 2 S. & M'L. 374. The Moveable 
 Succession Act, in the clause giving heirs
 
 OF COLLATION. 147 
 
 303. Collation only arises as a condition of the right to claim chapteb vm. 
 
 heritable and moveable succession of the same ancestor. Where, 
 
 lr ,, ..,.,. , . Iln'r not bound 
 
 tnereiore, moveable succession is claimed trom the estate of a person to collate, where 
 who died in apparency, the heir in heritage cannot be required to bmie2 
 collate, because his title as heir-at-law is made up by service to a ancestor - 
 remoter ancestor, and so the heritable and moveable successions are 
 derived from different sources. (/>•) And, conversely, a younger 
 brother serving heir to his father in consequence of his elder brother 
 having died in apparency, will be bound to collate if he have taken 
 a share of his fathers moveable succession. (I) 
 
 304. II. Mode of giving effect to Collation. — It is now settled Heir may either 
 that the heir has the option of retaining the estate and paying over j^ratethT"" 
 it- value in money to the executors as part of the fund for division ralue of the 
 amongst all the personal representatives, (m) But he is not bound 
 to Bettle on the footing of a money-payment. Collation is described 
 bythe institutional writers as a communication of the heritable estate 
 itself with the other next of kin, who. in their turn, it is said, must 
 collate or communicate the executry with him.(w) And in an early 
 it is expressly stated that "the Lords admitted the heir to a 
 share with the other bairns, providing that he communicate all that 
 he had of the heritable estate by disposition or succession, by being 
 infeft, and disponing to the children an equal share with himself 
 of the said heritable estate, with the burden of an equal share of 
 the heritable debt."(o) It cannot therefore be doubted that the 
 heir sufficiently discharges his obligation to collate with the exe- 
 cutors by making up a till- to the heritable estate which he ac- 
 quired from his ancestor either as heir-at-law or by disposition, and 
 executing a conveyance of it in favour of himself and the other per- 
 sonal representatives pro indiviso, in proportion to the values of their 
 respective interests. Where the estate is heavily burdened it may 
 be more for his interesl to convey in forma specified, than to make 
 a payment as for an estimated value which might not be realised. 
 
 taking by representation the right to a 664, it would appear thai the son of an 
 
 share of the u ion (§2), heir-apparent was required to collate with 
 
 t to heirs-portioners, but bis father's executors; but flu's finding 
 
 on condition of their collating with only occurs in an interlocutor of the Lord 
 
 the <.tli' r next of kin. This provision is Ordinary, which was recalled by the Court, 
 
 •re in consonance '.'.i:li the common (/) Law v. l.mr. 1663, M. 2866. As to 
 
 ined in thi collation between heirs and executors tak- 
 
 \k) Spalding v. Spalding, L812, Hun under a designative bequ t, ee note 
 
 7 June 1822, at • nd of this ch ipter. 
 
 1 Sli. N. E. 486, note, both cited in 1 Bell, (m) 5 D< c. 1 
 
 .-I, ed. p. 102, and by Lord Cotten- 18 D. 246. 
 
 I truther't case, 2 Sh. & M'L. 878 (n) ] 8, Bell, Pr. § 1910. 
 
 ling to the rubric of the case of '•/ 1678, M. 2 I 
 I Maj 1884 12 Sh. 
 
 K 2
 
 [48 OF COLLATION. 
 
 CHAPTER Till, 
 
 305. In many cases the heir might be desirous of keeping the 
 estate; collation is founded upon equitable considerations, and it 
 would be against equity that the executors should have the power 
 " of insisting for a specific conveyance merely to compel the heir to 
 v - buy back the family estate at an exorbitant price, or of insisting on 
 sharing, pro indiviso, subjects which would be better managed by a 
 single proprietor. It is true that the heir as a pro indiviso proprie- 
 tor would be entitled at common-law to insist for a sale; and where 
 heritable estate is actually vested pro indiviso in a plurality of pro- 
 prietors, there is no other mode of effecting a separation of inte- 
 rests, because, in the case supposed, the rights of all the proprie- 
 tors are of the same character. But the object of collation is to 
 throw the value of what the heir receives of heritage into the shares 
 drawn by the next of kin of the executry, and no injustice is done 
 t.> the executors by obliging them to receive their share of the uni- 
 versitas of the succession in money. These considerations, which 
 apply with peculiar force to the case of an heir of entail collating 
 his life-interest in the entailed estate, (p) induced the Court in the 
 case of Fisher's Trs. v. Fisher (q) to establish the rule that an heir- 
 at-law was entitled to receive his share of the personal estate upon 
 accounting to the executors for the value of his interest as at the 
 date of the opening of the succession, and it was accordingly found 
 that the executors, in a case of collation, are not bound to hold the 
 heritable property as pro indiviso proprietors, nor any one of them 
 entitled to require that the property shall be conveyed over pro in- 
 diviso with a view to being held in that state until a period arrived 
 when, at the termination of a liferent lease, its value might be ex- 
 pected to increase, (r) In that case the value of the heir's interest 
 was left lobe ascertained extrajudicially upon the principles settled 
 by the interlocutor of the Court. If the parties could not agree, it 
 may be presumed that the Court would remit to a valuator ap- 
 pointed by themselves, upon whose report they would ascertain and 
 lix the amount to be paid by the heir to the executors as compen- 
 sation for the value of the heritable succession. 
 TCr.k of aistri- 306. In the distribution of collated estate the mode of division 
 
 would be as follows: — One-third of the free executry estate (debts 
 and obligatory provisions being deducted), or one-half of that estate, 
 as the case may be, will be set apart for payment of the^s relictce. 
 The remainder will then be massed with the free heritable estate. 
 
 (p) Sic Anstrutherv. AnstrutherAb Aug. (q) Fisher's Trs. v. Fisher, 5 Dec. 1850, 
 
 1836, 2 S. & M'L. 369 ; Breadalba?ie's Trs. 13 D. 245 ; see 253. 
 
 v. Marquis of Chandos, 2 S. & M'L., 377. (r) See the terms of the judgment, 13 
 
 D. 261.
 
 OF COLLATION. 149 
 
 or its value. Upon this common fund heritable debts will form a chapter vm. 
 • first charge if the}* have not been already allowed for in the esti- 
 mated value of the collated heritage. Legacies rank next in order. 
 The residue constitutes the divisible fund. Where all the parties 
 are in the relation of next of kin to the predecessor, the division 
 will be in equal shares, whether the succession consist of executry 
 and legitim or entirely of executry. Where some of the parties 
 take by representation, it is necessary to distinguish between these 
 two l 
 
 307. First, Where the succession consists exclusively of exe- Computation, 
 entry ; if the heir be one of the next of kin, and the other execu- ^/personal 
 tors, or any of them, take by representation under the Moveable SSSflJdtT 
 
 n Act, the common succession is divisible per stirpes, legitim. 
 Where the heir succeeds by representation, the division is also 
 per stirpes, such being the effect of the provision in the Moveable 
 ton Art under which the heir in heritage taking by repre- 
 sentation is entitled to collate, to the effect of claiming for himself 
 alone, or in conjunction with the other issue of the person whom 
 3ents, the share of moveable succession which might have 
 been claimed by thai person if he had survived the intestate, (s) 
 Eeirs-portioners succeeding by representation take among them 
 the share of the common fund which would have accrued to the 
 party represented. (t) Secondly, where the succession consists of 
 executry and legitim, and the heir is a son of the intestate, one- 
 half of the succession is executry, and is divisible according to the 
 rules already explained ; the other half is legitim, and is divisible 
 amongst the surviving children to the exclusion of the issue of pre- 
 deceasing children. In this case it must be observed that legacies 
 are chargeable exclusively upon that half of the common fund 
 which constitutes the executry or dead's pari. Thirdly, where the 
 succession consists of executry and legitim, and the heir succeeds 
 by representation. In this rase i he principle of division is entirely 
 dissimiliar to thai which has beeii described. An heir succeeding 
 by representation has no righl to any share of the legitim Fond, but 
 is bound to collate the whole heritage with the executry or dead's 
 part. The legitim as well as the jus relictce, it' any, must therefore 
 
 ■t aparl out of the free moveable estate before the heritable 
 
 (.») 18 Vict., c. 28. Buch share of the whole estate, heritable 
 
 (<) § 2. Under this section the brothers and moveable, a their] rent, 
 
 of an heir who shall no! col- bad he urvived the intestate, would have 
 
 ad their d< in their pi , taken on collation." See this provision 
 
 right to •■' share of the moveable commented on, aupra, chap. 6, sect. 1 (In- 
 ■ ■ lunl in amonnl to tl 
 
 r tli- value of thi hi ril i •
 
 L50 
 
 OF COLLATION. 
 
 . u \ri i 1; mil 
 
 How the value 
 of the heritable 
 
 is to be 
 estimated. 
 
 Modifications of 
 the law of colla- 
 
 Where the per- 
 
 • - of 
 executry only. 
 
 estate is communicated. The heritable estate, or its value, will 
 thru be massed with the executry or dead's part, and the value, 
 under deduction of debts and legacies, will be shared by all the 
 persona] representatives, including the heir, secundum stirpes. 
 
 308. Where collation is effected by communicating the value of 
 the heritable succession, the proper course will be to allow for debts 
 and provisions which are chargeable in the first instance upon the 
 heritable estate. In the rase of Fisher, already cited, it was found 
 that in ascertaining the value of the heir's interest, the burden of 
 a liferenl Lease must be ascertained and deducted as a liferent held 
 by the particular individual according to the actual value of his in- 
 dividual life. The heir was also found entitled to a deduction for 
 meliorations. In that case the widow of the predecessor had a life- 
 rent of the heritable estate, and the action having been brought 
 alter her death, it was held that the value of the subjects must 
 be computed as at the period of her death when the succession 
 opened.(w) Where collation takes place during the subsistence of 
 a liferent interest in the heritable estate, the heir having only the 
 reversion, the proper mode of computation would be to value the 
 life interest as at the death of the predecessor, to deduct its value 
 from the gross value of the estate as at the same date ; the balance, 
 with interest from the death of the predecessor, would constitute 
 the collatable fund. Where heritable estate is conveyed in forma 
 specified, the debts and provisions affecting it will form a burden 
 upon the common fund, and the heir will be a creditor of the pro 
 indiviso proprietors for any debts or burdens which he may have 
 discharged before the execution of the conveyance. 
 
 309. III. How affected by Testamentary Provision, Contkact, 
 or Discharge. — The right of collation and the mode of distribution 
 of the collated estate are liable to be affected by those voluntary ar- 
 rangements under which legitim and, to a certain extent, executry 
 may be satisfied or discharged. We shall endeavour to classify the 
 conditions under which collation may be modified by contract or 
 settlement, and to indicate, as briefly as possible, the special modes 
 of distribution which may result from such arrangements. 
 
 310. (1) Where the personal estate consists wholly of executry. 
 — This may happen either where the personal representatives are 
 not children of the predecessor, or when, being children, their right 
 to legitim is barred by antenuptial contract or discharged in the 
 parents' lifetime. (Y) Executry, being within the power of the pre- 
 decessor up to the last moment of life, may be barred at any time 
 
 (u) Fisher's Trs. v. Fisher, 13 D. 261. (.>) See chapter 7 (Exclusion of Legal 
 
 Claims).
 
 OF COLLATION. 151 
 
 by disposing of the estate in a manner different from the legal order chapter vm. 
 ■ of succession, and it would seem that a declaration that a legacy is 
 to be accepted in satisfaction of exeeutry, is equivalent to a bequest 
 of the legatee's share of exeeutry to the other personal representa- 
 tives. (?/) But where all the children of a family or other personal 
 representatives are debarred from exeeutry, the exclusion is of ne- 
 cessity ineffectual, unless the succession is otherwise disposed of, 
 there being no other persons, except the Crown, to whom the suc- 
 ssion can devolve. (2) 
 
 311. In the application of these considerations, we deduce the General rules 
 following results with reference to collation: — 1. If legitim is this case. 
 wholly barred, the heir collates the heritage with the exeeutry. 2. If 
 
 the exeeutry is also barred, without being given to any one, the ex- 
 clusion is ineffectual, and the result as to collation is the same. 3. 
 L some of the executors only are excluded from participation in the 
 :i. the value of their shares is to be regarded as testate suc- 
 'ii, and \<< thai extent the heir would seem to be entitled to 
 share in the exeeutry without collation. 4. If the heir is excluded 
 from participation, the executors may decline to collate with him. 
 
 312. (2) "Where the personal estate to be collated consists of Where the per- 
 Legitim, or exeeutry and legitim, and the children have the right of includes legitim 
 election. — This may happen where testamentary or postnuptial pro- ^tion* 
 visions are settled upon them in satisfaction of legitim. The re- 
 nunciation "I legitim. by acceptance of a conventional provision in 
 
 lieu of it. enures to the hen, lit of the general succession, (a) and the 
 right of requiring the heir to collate the heritage as a condition of 
 sharing the Legitim passes with it. (b) Where legitim is claimed 
 by the heir-at-law, the trustees or residuary legatees of the prede- 
 <r will therefore be entitled, as assignees of any legitim re- 
 nounced by younger children, to require the heir to collate, and to 
 take benefil by his collation. It would seem an exception must be 
 admitted to the rule, that renunciation of legal provisions enures to 
 the benefil of the general estate, in the case where the party elect- 
 in..;- to renounce is the heir-at-law. For the trustees could only 
 claim the Legal provision renounced in their favour on condition of 
 
 (y) Clarl Burn 27 Jan. L835, 13Sh. fected by any conventional exclusion on the 
 
 826; Johnston v. Mill r. 'J.1'1 .linn: 1847, 'J i>;n'l of :i t' .-l:il'ii\ 
 
 D. L8 Fisher v. Dixon, 6 April 1848,2 Bell, 
 
 (*) Maitland v. Maitland, 14 Dec. 1848, 68. See chap. 7, ect.l (Exclusion of Le- 
 
 8D.244. The collateral relatives could no! gal Claim 1, 
 
 (b) Robertson \. M'Vean, 16 Jan. 1818, 
 
 of theexclu ion of the children, becau ethe cited bj Lord Cottenham in Fish* r v. Dixon, 
 
 characb rof pei onal re] 1 I thai 1 
 
 peration of law, and cannoi be af- 2 Bell, 87,
 
 152 or COLLATION. 
 
 . vni, collating the heritage; and this, in the case supposed, they would 
 not ho able to do. 
 
 Partial election. 313. This exhausts the consideration of the effect of renuncia- 
 tion where the fund to lie collated consists of legitim alone. Where 
 it embraces both legitim and executry, and certain of the children 
 eleel to take conventional provisions in lieu of legitim, the aggre- 
 gate heritable and moveable succession is divided; one moiety, re- 
 presenting Legitim, will he dealt with in conformity with the pre- 
 ceding suggestions; the other will be divided according to the 
 rules Laid down in the second subdivision of this section. 
 
 Wh , ri . | 314. (3) Where the fund consists of legitim, or executry and 
 
 '• Legitim, and the claimants have no right of election. — This happens 
 
 i ighl of o ' ° x A 
 
 election. ' where the right to legitim subsists as to some of the children, and 
 is barred by antenuptial contract or discharge inter vivos as to the 
 others. In such a case the shares of the children whose legitim is 
 barred or discharged lapse in the same manner as by death ;(c) and 
 the benefit of the discharge enures to the surviving children whose 
 legitim is not barred or discharged. And first, if all the younger 
 children have discharged their right to legitim, the heir takes the 
 entire legitim fund without collation ;(d) but if he should also claim 
 executry, he would be obliged to collate the heritable succession 
 with that part of the moveable succession which falls to the per- 
 sonal representatives. Next, if some only of the younger children 
 have discharged their legitim, the heritage will fall to be collated 
 with the combined legitim and executry fund, whereof one-half 
 will be divisible amongst the children (including the heir) whose 
 legitim is not discharged ; and the other half among the personal 
 representatives of the predecessor, including the heir. Lastly, if 
 the heir have discharged his legitim, there is then no place for col- 
 lation of legitim ; but if the heir wishes to share in the distribution 
 of the executry, he must collate the heritage with that part of the 
 moveable succession. 
 
 SECTION II. 
 COLLATION AMONG CHILDEEN CLAIMING LEGITIM. 
 
 Principle of 315. We have seen in the preceding chapter that a discharge of 
 
 ^j OT legitim during the father's lifetime, in consideration of provisions 
 
 mces. settled upon the child, or advances made for his behoof, enures to 
 
 the benefit of the other children who have not discharged their 
 
 legal rights. The application of this principle to the case of partial 
 
 (c) Hog v. Lashlry, 1792, 3 Pat. 247; (d) Panmure v. Crockat, 28 Feb. 1826, 
 
 Panmure v. Crockat, infra. 8 D. 703. and cases there referred to.
 
 OF COLLATION. 153 
 
 provisions, not given as a full equivalent for the share of legitim Iqhapteb vm. 
 falling to the donee, constitutes the doctrine of eollaUo bonorum inter 
 liberos. The principle is, that the value of such advances or provi- 
 sions is to be added to the legitim fund, out of which the donee will 
 then receive such a sum as, when added to the advances already re- 
 ceived, will place him on a footing of equality with the other children. 
 The fund available for division among the children entitled to legi- 
 tim remains the same, whether the rights of those children who have 
 received pr< (visions in anticipation be wholly extinguished, as in the 
 a of exclusion by antenuptial contract and express discharge 
 inter vivos, or be only partially compensated, as in the case of ad- 
 vances which are not expressly given in consideration of legitim. 
 In the fanner ease the child is held to have received a full equiva- 
 lent for the legitim due to him. In the latter the Court take cog- 
 nisance of the value of what has been actually received, treating 
 it as a partial payment to account of legitim, the object being, as 
 stated by the institutional writers, to preserve a fair proportion be- 
 tween the shares obtained by the children out of the moveable 
 estate of their father, in accordance with his presumed inten- 
 tion. (e) 
 
 316. The doctrine of collation among children claiming legitim Doctrine of the 
 appears to have been borrowed from the provisions of the Praetorian reiatioiTtothe 
 la\v.( /') which in their origin were intended to secure an equitable Mancipation of 
 partition of the succession between emancipated children and those 
 
 who had continued subject to their father's patria jpotestas, but was 
 afterwards extended to marriage-portions and donationes propter 
 nuptia8. Children not emancipated were incapacitated from ac- 
 quiring any property of their own, and, as their earnings during the 
 father's lifetime tended to augment the value of his succession, it 
 provided by the edict that the emancipated children should 
 collate their private property as a condition of sharing the paternal 
 inheritance. The following summary, which we transcribe from 
 Biackelde/s Manual. {g) embraces all thai is necessary to be ob- 
 served for the purposes of tin's treatise respecting the provisions of 
 the later civil law <!<■ collatione bonorum. 
 
 317. Where descendants were called to the succession of their what subjects 
 ancestor they were bound to collate(A) or communicate to the com- mun icatedimder 
 inoii succession everything which they had respectively acquired ** dvil law - 
 
 («) Stair, 8, 8, 46 ; Erak. 8, 9, 24 ; Bell, (h) Ulpian, 28, I GneiBt' Syntagma, 
 
 ]'r. \ 1688; l Fra er, 670. p. 824 ; Dig. 87, 6 8; Cod. 6, 20; Nov. 
 
 (/) Authorities cited in p Dte. L8, c. 8; Nov. 97, c. 8. For the biblio- 
 
 Maokeldey, Manuel de Droit Roraain, grape abject Bee Mackeldey *'n 
 
 cit
 
 L54 
 
 OF COLLATION. 
 
 •HAPTEB \ 111. 
 
 IV.um the ancestor during his life to the extent to which they Lad 
 been benefited.^) This was done cither by direct conveyance or 
 l.\ imputing the value of the gift. According to the later law, no 
 distinction was made between sui heredes and emancipated children, 
 ,„.!■ between heirs testamentary and ab intestato. Among the num- 
 ber oi things which were subjected to collation the more important 
 were the dos and donationes propter nuptias.(k) 
 
 318. Among the tilings excepted from collation were (1) by 
 ciNil operation of law, aliment and the expenses of education, the pecu- 
 lium castrense or quasi-castrense which the son received from his 
 parents ;(/) also everything which the descendant acquired upon the 
 death of the ancestor by legacy, trust, or donatio mortis causa{m) ; 
 the fruits and interest of things subjected to collation \{ri) finally, 
 donationes inter vivos simplices (yel mortis causa) which a child re- 
 ceived from his parents, provided that another child had not re- 
 ceived a donation sub causa {e.g., dos, vel donatio propter nuptias) ; 
 for, in this case, the simple donation must also have been col- 
 lated.^) 
 Exemption from 319 - ( 2 ) Besides, the testator had the right of exempting one 
 or more of his descendants from the collation, provided that in so 
 doing he did not encroach upon the legitim oi the others ;{p) and, 
 conversely, he could order the collation of provisions which were 
 not properly subject to it, provided that he had given them without 
 being bound to it by the law, and that the obligation to collate had 
 been imposed at the time when the donation w T as made.(#) 
 Collation accord- 320. Eules of equity more or less analogous to the doctrine of 
 jnnsprudence! collation in Scotland have obtained a place in the jurisprudence of 
 other countries. According to the law of England, children claim- 
 ing personal succession from their father's executors are bound to 
 
 (i) One who is not the heir-at-law is not pr. If the thing subjected to collation has 
 
 bound to collate, Dig. 37, 7, fr. 9. Grand- perished without the fault of the heir, he 
 
 children inheriting from a grandfather are is not bound to collate its value ; Dig. 37, 
 
 bound to collate not only what they them- 6, fr. 2, \ 2 ; Nov. 97, c. 6. 
 selves received, hut also that which their (?) Dig. 37, 6, fr. 1, § 15 ; Cod. 6, 20, 
 
 predeceasing father or mother ought to const. 12, 20, pr. The peculium which the 
 
 have collated, even when they are not children acquired, under the ancient law 
 
 In irri of the latter. This results from the for the father, in the later law for them- 
 
 t< rma of the 118th Novel, c. 1, " Tantam selves, was not required to be collated. 
 de hereditate morientis accipiunt partem, (to) Dig. ibid, fr. 1, § 19 ; Cod. ibid, 
 
 quantum eorum parens, si viveret, habuis- const. 10, 13, 15. 
 
 lint tli is rule suffers exception where («) Provided that the party liable in col- 
 
 the grandchild has only been instituted by lation is not in mora; Dig. 37, 7, fr. 5, \ 1. 
 the grandfather for his legitim; Cod. 6, 20, (o) Cod. 6, 26, const. 20, § 1. 
 
 t. 20. Ascendants and collaterals of (p) Nov. 18, c. 6. 
 the defunct were never subjected to the law (?) Cod. 6, 20, const. 20, \ 1, in fine; 
 
 of collation. Dig. 5, 2, Pr. et fr. 25 ; Cod. 3, 28, const. 
 
 (k) Cod. 6, 20. const. 12. 16, 17. 10, -JO, 35. ? 2.
 
 OF COLLATION. 155 
 
 communicate provisions received by way of advancement in their chapter vm. 
 lifetime, (>) and an equitable rule of the same nature existed under 
 the common law of France.(s) It does not appear to us, however. 
 that in the application of the principle of collation to the special 
 questions which arise under the Scottish law of succession much 
 assistance has been derived from the civil law or from foreign sys- 
 tems of jurisprudence ; and indeed on the last occasion when the 
 subject came under the consideration of the Court of Session this 
 kind of authority was distinctly repudiated. We shall therefore 
 confine ourselves to the consideration of the subject in the light of 
 municipal law, referring the reader to Mr Fraser's treatise for an 
 exposition of matters deducible from the civil and French law of 
 collation.(6) 
 
 321. The sole object of collation in the law of Scotland is to GoiiaLiobono- 
 secure an equitable division of the legitim fund, irrespective of the applies oniyto 
 claims of other parties interested in the distribution of the father's J™*J 
 estate. The right to require collation of advances pertains, there- 
 exclusively to the claimants of legitim, who alone take the 
 fit of the imputed advances. Accordingly, children claiming 
 legitim are not bound to collate with the father's residuary legatees 
 or trustees ;(w) and where one of the children of the family is en- 
 titled to the whole legitim fund in consequence of the rights of the 
 other children having been excluded or discharged, the claimant 
 cannot be required to impute ;i provision received during the fa- 
 ther's lifetime to account of the legitim. (x) So also, in a question 
 with the widow, children claiming Legitim are not hound to collate 
 so as t" increase her share \{y) and conversely, where a widow is 
 entitled to provisions from her husband, by contract or deed, which 
 are not declared to be in satisfaction oi jus relictce, these arc not to 
 be deducted from ber legal share of succession, but, in so far as not 
 already satisfied, form a preferable burden upon the entire sua 
 sion.i z) 
 
 (r) Williams' Ex. <•.]. p. L888 ; 2 Pei re 326 ; M. of Breadaliane v. M. of Chandot, 
 
 William . 189, WO; Gilbert v. Wetherell, 16 Aug. 1886,2 S. & M'L. 877. In this 
 
 'J. Sim. & St. 264 ; Berry v. Morse, L CI. case i lighter) had re- 
 
 H. L. Ca. 71. ceived the sum df'i;:;o. (Mil) en In r marri 
 
 Pothier, Traits des Sue© ions, chap, ae her " portion or fortune." These words 
 
 2 (ed. Dupin, torn. 7, p. 192). were held not to apply to legitim, and the 
 
 Merlin, Repertoire, Art. "Rapport a Sue- legitim of the other children of the family 
 
 tom. X, p. "_'I7. \\ 15, 16). have ■in an) was 
 
 (/j l l: ei 510 et ,.: held to be entitled to the entire legitim 
 
 Com. vol. ■». pp. 671- 7l'_'. t unci, in addition to the Bpecial provision. 
 /' Keith, 17 July 1867, I 1627, M. 2866 ; Bal- 
 
 L9 D, L040. pp. 1061 1067. mam v. 01 nfarquhar, 1719, M. 2 
 
 i Cla ■' . Burn ~~ fan 1886, L3Sh, K I ■ /' v. Keith,' stipra. Wli
 
 OF COLLATION. 
 
 ohajtrb vnt. 322. The questions which have arisen in the application of the 
 ~~ law of collation have relation chiefly to the description of advances 
 and provisions which fall within its scope. The general rule is, 
 fin iVk ' ' " thai all sums actually advanced by the father to the child, or for 
 hthe his behoof, musl be. collated, though no written acknowledgment 
 lias been exchanged.(a) The nature and amount of the advances 
 may be the subject of proof by such evidence as is usually admitted 
 in actions of accounting, (b) or, in default of other evidence, pay- 
 ment may be proved by the oath of the party. (c) "Advances," 
 says Professor Bell, "will be imputed to the legitim in the follow- 
 ing circumstances: — If made for the purpose of setting the child 
 u}» in trade, or for a settlement in the world, or for a marriage por- 
 tion."^ In conformity with this principle, it was held in John- 
 ston v. Cochran (t) that a daughter, who had received £500 as a 
 marriage portion from her father, and in Kay v. Kay,(f) that a 
 son to whom advance had been made to establish him in business, 
 were bound to impute these provisions, with interest, in satisfaction 
 of legitim. Money advanced to a son to assist him in circumstances 
 of pecuniary embarrassment was held to be an advancement, and 
 to be subject to collation ; but it was thought doubtful whether an 
 annuity of £15 a-year, settled upon the son's wife, fell within the 
 same category.^) Provisions to children by bond or deed are 
 clearly of the same nature as marriage portions, and must be col- 
 lated.^) 
 Provisions by 323. "With regard to unpaid provisions constituted by ante- 
 
 tract. np C0 "" nuptial contract, and not declared to be in satisfaction of legitim, 
 we are not in a position to state with confidence the actual result 
 of the authorities. Two principles, apparently inconsistent, but 
 capable of being reconciled, are deducible from the decisions ; first, 
 marriage contract provisions are debts, though postponed to the 
 debts of onerous creditors, and, if not paid in the lifetime of the- 
 
 the right to a claim of legitim devolves to (d) Bell's Prin. § ] 588. 
 
 the residuary legatee in consequence of (e) Johnston v. Cochran, 13 Jan. 1829, 7 
 
 the claimant having elected to take a tes- Sh. 226; and seeMcolson's TV. v. Macalister, 
 
 tamentary provision in lieu of it {Fisher v. 2 March 1841, 3 D. 675 ; Russell v. Brown, 
 
 Dixon, 6th April 1843, 2 Bell, 63), it would 1687, M. 8177. 
 
 seem that the legatee, who as assignee of a (/) Kay v. Kay, 12 July 1844, 16 Jur. 
 
 share of legitim has the right of requiring 550. See also Campbell v. Anstruther, 16 
 
 tin heii in heritage to collate (Robertsony. June 1837, F.C. ; D. of Buccleuch v. E. of 
 
 .1/' Vean, 2 Bell's Appeals, p. 87), would Tweeddale, 1677, M. 2369. 
 
 also have the right to compel collation of (y) Skinner v. Skinner, 1775, M. 8172. 
 
 advances, and would himself be liable to (h) Stair, 3, 8, 45 ; Bankt. vol. 2, p. 
 
 collate advances received by his cedent. 381 ; Ersk. 3, 9, 24. Interlocutor in Hen- 
 
 (o) Ersk. 3, 9, 24. derson v. Henderson, cited by Lord Core- 
 
 (b) See Lord Ivory's opinion in Webster house, 14 Sh. 596. The case is reported 
 
 v Rettie, 1 June 1859, 21 D. 915-24. of date 1782, M. 8191. 
 Ei -I. ut ■ upra
 
 OF COLLATION. 
 
 157 
 
 father, form a charge against the whole succession ;(i) secondly, chapter tih. 
 such provisions, if paid in the father's lifetime (the time of pay- 
 ment being immaterial to the question, we may say, whether paid 
 in Ins lifetime or after his death), are advances which the grantee 
 may be required to collate. (J) In a question, therefore, with the 
 father's trustees or executors, provisions not declared to be in satis- 
 faction of legitim are payable out of the first of the estate, and the 
 claim to legitim remains entire ; but in a question with the other 
 children, claiming legitim, the}" must be collated. The result is, 
 if we have correctly estimated the bearing of the authorities, that 
 provisions inter vivos, not declared to be in satisfaction of legitim, 
 increase the Legitim fund, and are divisible amongst all the 
 children who have claims upon that fund. 
 
 324. Collation does not extend to testamentary or deathbed (k) in general, 
 
 • • n i i ii i l 1> money received 
 
 provisions, lor these are chargeable upon the executry or dead s u, i oa n, or 
 part, ami do not tend to diminish the legitim fund ; nor to funds j^otsiSbjSto 
 given by the father in his lifetime as a donation in addition to bo collat ' d - 
 legitim (Z), or with the equivalent explanation that the grantee is 
 not to collate(m), or that he should have an equal proportion of his 
 goods at hi- d oath, (n) or should be considered a bairn in the house, (o) 
 
 (*) Stair. 1. 5. : Ersk. 3, 9, 22; Mur- 
 ray v. Murray, 1G78, M. 2372; Fraser v. 
 ... 1638, ML 3941 ; M^Kay v. Fowler, 
 1744, M. 3948. And this we understand 
 t.. havi b< en tin- import of the final de- 
 cision in the case of the .'/. of Breadalbane 
 v..)/. ofChandos, 16 Aug. 1836, 2S.& M-L. 
 :;77. 'I'll'- interlocutor of the Second Divi- 
 : ! i irt, which wa 3 affirmed on 
 ]. 1m are that. •• in r< pi ci th< 
 
 Marchi •-- of Ghandos is theonlyyoung- 
 
 < r child of the late Marquis of Breadal- 
 bane who has not renounced tin- right of 
 legitim, find that her claim exti ads over 
 one-third part of th( 
 
 of her said father, and thai it is not to he 
 reduced in amount by imputing th 
 any part of tin- sums provided to her by 
 her s.i i « 1 father in her contract of man 
 .//../ whu /< 
 
 ,i deduction from the trust fund* 
 in medio," 2 X. & M-L. 385. 
 
 . A .. /.. /. 1 726 : Rol 
 69 1 600, ■ : ich, o far as it affirms this 
 proposition, i not ail', cted by the Lord 
 ■ rvations in K< ith't < 
 idy cited upon bonds of provi- 
 sion and in. in The point 
 
 appi ' i in Keith'* 
 
 Trs. v. Keith, 17 July 1857, 19 D. 1040, 
 1051, 1057. 
 
 (k) A father cannot relieve his child 
 from the obligation to collate by a dei 1 
 executed on deathbed; Grant v. G tout's 
 Trs., 28 Feb. 1833, 11 Sh. 484. Deathbed 
 conveyances fall within the description oi' 
 which may he reduced in so far 
 as prejudicial to Legitim, as to which 
 Hog v. Lashley, 7 .May 1792, 3 Pat. 247, 
 and other cases cited, supra, # 254. 
 
 (I) Advances charged upon the father's 
 heritable property, or provided out of its 
 revenues, do not tend to diminish the le- 
 gitim fund, and accordingly do not fall to 
 be collated; Ersk. :;. '.», 2-".; />. of I 
 cleugh v. /J. of Tweeddale, 1C77. M. 2369; 
 Marshall v. Marshall'* Trs.,21 .Nov. 1829, 
 S Sh. 110. 
 
 Per curiam in Grant v. Gunn't Trs., 
 supra. 
 
 (n) Corson v. Corsan, 1631, M. 2367. 
 /.'.../v. Lapraik, 1 7-7. M. 2879, Elch. 
 ...... •■ l'"i i familiation," No. 1 and i. 
 
 Spencev. Stevenson, 1,766, M.8178. " But," 
 Er him . •■ 1 1.. fat i ration 
 
 in tin bond of |.i-,,\ ision, t bat the chil 
 
 itinue in his family, and coi 
 to be i ntithd I 1 1 j in ,
 
 OF COLLATION. 
 
 oHAPTBRviii Some other exceptions have also been recognised by the decisions, 
 which ni.i v be reduced to the following heads: — (1) advances in- 
 tended as a recompense for services rendered ;(/>) (2) advances for 
 maintenance and education in minority or prior to emancipation, 
 and which are due ex debito naturali ;(q) and (3) advances made 
 in lean, and for which (he grantee was liable in repayment to the 
 father ami his executors, (r) In short, collation applies to provi- 
 sions as distinguished from payments under obedential obligations, 
 or on the footing - of contract. (s) 
 
 seems to be but a slight evidence of his 
 purpose that the child is not to collate, for 
 collation is admitted only among those who 
 are entitled to legitim," 3, 9, 25. 
 
 l/i Minto v. Kirkpatrick, 23 May 1833, 
 11 Sli. 632, where it was held that a sun, 
 taken into partnership with his father, was' 
 not bound to collate the value of the share 
 in the stock-in-trade assigned to him. 
 
 (q) Irving v. Irving, 1694, 4 Br. Sup. 
 Ill; Stair, 3, 8, 26 ; Erst. 3, 9, 24, infin. ; 
 Bell, I'r., § 1588; 1 Fraser, 575. Under 
 the same principle fall these inconsider- 
 able presents which are given rather as 
 tokens of affection than as substantial con- 
 tributions towards the maintenance or up- 
 bringing of the child, as to which see Lord 
 Ivory's observation in Webster v. Rettie, 21 
 D. 92G, second paragraph. 
 
 (/■) Webster v. Re/tie, 4 June 1859, 21 D. 
 915. Here the payment was held to be a 
 
 loan, because the father had ranked for the 
 amount in bankruptcy, and entered the 
 dividend, with accruing interest, as a debt 
 due by the son in his books. See also 
 Grant v. Gunns Trs. 28 Feb. 1833, 11 Sh. 
 484. 
 
 (s) [It may be proper to notice, in con- 
 clusion, the case of collation between heirs 
 and personal representatives taking under 
 a designative bequest to the heirs of A. 
 Under such a designation of heirs, the 
 heritable estate devolves to the heir-at-law, 
 the moveable to the personal representa- 
 tives ; and, on the principles that the suc- 
 cession is given to them as if it was intes- 
 tate sucesssion of A., it has been deter- 
 mined that, in such a case, the heir cannot 
 claim a share of the moveable succession 
 except upon condition of collating the heri- 
 tage ; Blair v. Blair, 16 Nov. 1849, 12 I). 
 97.]
 
 THE LAW OF DEATIIBEK 159 
 
 CHAPTER IX. 
 
 CHAPTER IX. 
 
 LAW OF DEATHBED. 
 
 I. Incapacity, how arising. 
 II. Deeds liable to challenge. 
 
 III. Title to challenge ox capite lecti. 
 
 IV. Exclusion of Heir's Title, and Effect 
 
 of Revocation. 
 
 325. By the common law of Scotland, a person labouring under General state- 
 mortal disease was held not to have the capacity of executing deeds of deathbed. 
 of importance in relation to his estate and succession. A testator 
 
 might indeed at any period of our history have executed a testa- 
 ment or disposition of moveables upon deathbed; but in those 
 earlier times, when the law of deathbed originated, the property 
 which might be the subject of bequest would be of a very incon- 
 siderable value in comparison with the landed estate. There was 
 the less reason for extending the law of deathbed to dispositions of 
 moveable property, because such dispositions, when granted mortis 
 cattsa, would onlyaffed the dead's part, and would not diminish the 
 portions of the wife and children. The state of legal inca- 
 pacity resulting from mortal Bickness applies to all deeds, preju- 
 dicial to the succession of the heir-at-law or of provision, to the in- 
 t of the grantees children in the legitim fund, (a) and to the 
 widow's rights, whether in relation to terce(6) or tojus relictce.(c) 
 
 326. At common law a lather had the capacity of appointing Statutory exten- 
 
 sion of the rule 
 
 : ! 1,9,16. The by the same rules as challenges at the in- *f t ^° s btments 
 
 illustrative of the doctrine thai alien a- the heir. 
 
 tending to diminish the (6) 1 Fraser, 613. [t cannot be doubted 
 
 i fund, an ipiu lecti that both ten \ are within the 
 
 -. \ 264, in connection principle of the law of deathbed ; but ex- 
 
 \miIi the Bubjecl of legitim. It i . bow- cepi the bare statement of the institutional 
 
 as to heritable property writers, thai deathbed deeds do noi preju- 
 
 t Iiit t] aief im- dice the rights of the r< lici and children, 
 
 ■ thi application of the law we have noi been able to find any autho- 
 
 orai ol tinly confined, rity for the doctrine. The case cited by 
 
 I tionsatthi f the widow or Mr F have relation to pei 
 
 younger children are new arily govern 
 
 (c) Stair, 8, t 29 ; Ersk. 8, 9, 16.
 
 [60 THE LAW OF DEATHBED. 
 
 chafth. iv. tutors I" his children by testament or mortis causadeed upon death- 
 bed \(d) but the power of appointing tutors with limited responsi- 
 bility, conferred by the Statute 1G9G, cap. 8, must, in terms of the 
 Statute, be exercised in liege poustie; and the power of appointing 
 curators to children, which was first given by this Statute, is subject 
 to the Like condition as to the father's capacity.(e) 
 Division of the 327. In the further investigation of this branch of the law of 
 
 succession w « i propose to consider — (1) How the incapacity resulting 
 in >m deathbed arises ; (2) as to the deeds liable to challenge ex capite 
 hcti; (3) as to the title to challenge deeds executed upon deathbed ; 
 and (4) how the operation of the law of deathbed may be excluded. 
 In this division of the subject we follow substantially the order of 
 arrangement of Professor Bell, to whose luminous and accurate, 
 though, at this date, no longer exhaustive discussion of the subject, 
 we have been largely indebted. (/) 
 
 SECTION I. 
 HOW 7 THE INCAPACITY KESULTING FKOM DEATHBED ARISES. 
 Theory of the 328. Viewed in relation to his capacity to dispose, a person in 
 
 common law in ,.,. piii i 
 
 relation to inca- his ordinary state of health, and not a minor nor subject to any 
 Erranmortal mS legal incapacity, is said to be in " legitima potestate" or in " liege pous- 
 tie" because he has the full and uncontrolled power of disposal of 
 his property. The restraint on this power begins with the com- 
 mencement of his mortal disease. The decay of the vital powers 
 is usually accompanied with a certain infirmity of the will render- 
 ing the moribund person more or less accessible to the importuni- 
 ties of interested attendants ; and this facility or liability to impo- 
 sition was, by the ancient law of Scotland, converted into a legal 
 presumption, according to which all deeds executed during the 
 granter's last illness were reducible in so far as prejudicial to the 
 rights of the heir. At common law the presumption of incapacity 
 in relation to deathbed deeds (that is, deeds executed while the 
 granter was ill of the disease of which he died) could only be re- 
 dargued by the counter presumption of convalescence arising from 
 the granter having been at kirk or market after the execution of 
 the deed. But by the Statute 1696, cap. 4, the survivance of the 
 granter during the space of sixty days " is a sufficient exception to 
 -x elude the reason of deathbed." The statutory exception appears 
 
 (d) Ersk. 1, 7, 2; Fraser on "Parent (e) See the terms of the Statute. The 
 
 iin.l Child," 2d ed., p. 17G, and authorities distinction appears to have been overlook- 
 there cited. ed by Fraser in he. cit. 
 
 (/) 1 Bell's Com., 6th ed., pp. 84-08. 
 
 illuess.
 
 THE LAW OF DEATHBED. 161 
 
 to proceed on the supposition that the infirmity of the will, which chapter is. 
 is associated with the final decay of the physical powers, is not to 
 be presumed to have commenced at a period more remote than the 
 limit which the Statute assigns. Incapacity at a period more remote 
 than sixty days may be proved ; but the presumption will be in 
 favour of the party interested in maintaining the settlement as hav- 
 ing been executed in liege poustie. 
 
 329. Three topics of inquiry are thus presented, namely, (1) as 
 t" the evidence of mortal disease which is requisite to raise up the 
 presumption; and ( - 2 and 3) as to the two counter presumptions to 
 which we have referred. 
 
 330. I. Proof of Mortal Disease. — In order successfully to Evidence in sup- 
 challenge a deed ex copile lecti, it must be averred and proved not deathbed. 6 * ° 
 onlythat the deed was executed within sixty days of death, but also 
 
 that at the time of its execution the granter was ill of the disease 
 which caused his death.(gr) This is to be established by the evi- 
 dence of medical practitioners or other persons, to the satisfaction 
 of the Court or a jury.(//) It is not necessary to prove the con- 
 tinuity of the disease during the whole period subsequent to the 
 execution of the deed ; for, says Erskine,(/) " if the two extremes 
 be proved, of sickness going before, and of death following, the rest- 
 is inferred ;" but evidence of the continuing of the original disease 
 ten the best proof of its identity with that which was the im- 
 mediate cause of death. (A;) 
 
 331. Although labouring under sickness at the time of making Exception where 
 tin- deed, this is not held to be his mortal disease if the granter ^m ^^ t or 
 should perish by an accident; nor will the original disease be re- supervening 
 
 1 J p ills. axe. 
 
 garded as mortal, it' the actual cause of death is a new disease un- 
 connected with thai which existed at the execution of the deed.(/) 
 Bui where the disease which is the immediate cause of death, 
 
 E .. :;. 8, 96; 1 Bell, Com. 6th causa cognita, maybeanea sarypartofthe 
 
 ed. 86. title ; and for this r< a on the I 
 
 (h) Iii Cogan v. Lyon, 18 March 1834, aro in use to grant proof and to ad 1 
 
 12 Sh. 569, the Court admitted the testi- Buch cases ex parte, if requested by the 
 
 1 1 1 «■ 1 1 v of medical men as to the nature of pursuer. See the Last reported case on 
 
 the di d I of death, al- this point, Easonv. Eaton, is Julj L868, 
 
 though tin ir ..pinion- were rested solely 1 Macph. 1168. 
 
 on tl. ted by unprofessional per- (I) Paterson't Trs. v. Johnston, 24 June 
 
 and acquaintances of the L816, 1 Mur. 71, and cases in Eume, 
 
 deo i " Deathbed," particularly Thomsons. Thorn- 
 
 I 1801, |. 1 12, and Gray v. Gray's Trs., 
 
 (I,) .'. ranted on deathbed are 1818, p, III: Mackay \. Davidson, 6 Sh. 
 
 not null, but are only r< ducibli at the in- 867, 26 March 1881, 6 W. & S. 210, \\ hi re 
 
 r, a decree of reduction the granter died from di 
 from dram-drinl 
 
 Vol.. I. I,
 
 L62 
 
 THE LAW OF DKATIIBED. 
 
 not limiti'il to 
 disease. 
 
 « «. though distinguishable from the original disease, is cither a second- 
 ary or ulterior form of the malady, or induced by it, it will bo held 
 in be a continuance of (ho same malady. " If," says Professor Boll, 
 •• (he diseases are convertible, or found inclose connection and rela- 
 tion with each other, or where the last disease is an ordinary con- 
 sequence of the first, it will be sufficient to make out a case of 
 deathbed.(m) 
 Plea of deathbed 332. Reduction ex capite lecti is not confined to cases of disease 
 which physicians call mortal; nor is it implied in the name of 
 dea t hi ied that the illness should be such as actually to confine the 
 patient to his bed,(w) or to his chamber, (o) or to interrupt busi- 
 ness. (/>) It is sufficient that the maker of the deed is at the time 
 in that state of infirm health which, esjjecially when occurring in 
 a person of advanced age, may be regarded as the precursor of final 
 decay, and that the infirmity results in death. (q) A surgical or 
 organic malady or accident causing death is regarded as a mortal 
 disease, (r) 
 
 333. II. Survivance for Sixty Days. — At common law, if the 
 gra liter of a deed was affected by mortal disease at the time of its 
 forTheperiod nM execution, and convalescence was not proved, the deed was held to 
 of sixty days. have been executed on deathbed, irrespective of the period of sur- 
 vivance. (s) Attendance at kirk or market unsupported, was con- 
 clusive evidence, but not the only competent evidence, of convales- 
 cence. On a consideration of the inexpediency of that state of the 
 law, it was enacted by the Scottish legislature, (t) " That it shall be 
 a sufficient exception to exclude the reason of deathbed, as to all 
 bonds, dispositions, contracts, or other rights, that shall be hereafter 
 made and granted by any person after the contracting of sickness, 
 
 Statutory pre* 
 sumption of 
 
 c invalescence 
 
 (m) 1 Bell's Com. 5th ed., p. 86 ; Hid- 
 dlestone v. Goldie, 12 April 1819, 2 Mur. 
 115, 120 ; Weir v. Knox, 1791, Hume, 135 ; 
 
 Brock v. , 25 May 1813, Hume, 137; 
 
 Black v. Brown, 21 Nov. 1816, Hume, 
 154. 
 
 (») Shaw v. Gray, 1624, M. 3208. 
 
 (o) Robertson v. Fleming, 1622, M. 3290; 
 Black v. Black, 1787, M. 3302. 
 
 (p) But confinement contrary to the 
 usual custom of the granter is an indica- 
 tion of illness, and may go far to establish 
 the existence of mortal disease when; the 
 party was withdrawn from the observation 
 of neutral witnesses. 
 
 (a) Primrose v. Primrose, 1756, M. 3300; 
 on v. M'Caiff, 1 Dec. 1823, 2 Sh. 
 544, N. E. 474; Tomison v. Tomisi I 
 
 Dec. 1839, 2 D. 239. Compare the cases 
 of Speirs and Gray, Hume, 144, and Lillie 
 v. Lillie, Hume, 153. "A man may grow 
 weaker and weaker, and die without any 
 funned disease at all, and yet his settle- 
 ments may be reduced ex capite lecti." — 
 Per Lord Braxfield, in Crawford v. Kin- 
 caid, 1 782, Hailes, 907. 
 
 (r) Dun v. Dun, 1668, M. 3291, a case 
 of a broken leg, afterwards amputated; 
 Scotston v. Drummond, 1694, M. 3297, a 
 case of a sore leg occasioned by accident. 
 
 (a) See Gordon v. Gordon, 1696, M. 3299, 
 where the Court were asked to reduce a 
 deed ex capite lecti although the granter 
 had survived three years. This appears to 
 have been the last case under the old law. 
 
 (t) Stat. 1696, rap. 4.
 
 THE LAW OF DEATH: 
 
 that the person live for the ore days after the mak- qhapi 
 
 ingand granting of the said deeds, albeit, during that time, they 
 did not go to kirk and mercat ; but prejudice always, as of beJ 
 to quarrel and reduce the said rights and deeds, if it shall be alle 
 and proven that theperson was so affected by the sickness, the time 
 of the loing of the said deeds, that he was not of sound judgment 
 and understand^ 
 
 334. The presumption of convalescence, or rather of strength Computai 
 
 , . . . • , • ,11-iti ,1 l time in n 
 
 of will sufficient to resist importunity, is established by the elapse todeat ] 
 of the statutory period of sixty days, the period of survivance being 
 ling to the ordinary rule of computation of civil 
 time. The date of execution, being punctum temporis, is excluded 
 from the computation, and the date of death is reckoned among the 
 nrvivanee according to the maxim, Dies inceptus pro com- 
 Accordingly, where a settlement was executed mi 
 22 February 1791. about 8 p.m., and the granter survived fifty-nine 
 - and two hours, and died en the 22d April between 10 and 1 1 
 p.m., being the fifty-ninth day after the execution of the deed, it 
 held by the House of Lords that the statutory period of sur- 
 vival] QOt completed. (") Lord Thurlow observed. (.#;) "The 
 terminus a quo mentioned in the Act, is descriptive of a period of 
 time, and Bynonymous with the date <>r day of the d<'C>\. which is 
 indivisible, and sixty days after is descriptive of another and sub 
 quent period, which begins when the first period is completed. The 
 
 day of making the d 1 must therefore be excluded : so the maker 
 
 only lived fifty-nine days of the period required. Had lie seen the 
 morning oi the sixtieth or subsequent day, it would have b 
 sufficient ; the rule of law above mentioned (dies inceptus pro com- 
 plete habetur) then applying, and making it unnecessary and im- 
 propi r to |, ckon by hours, or to Inquire ii the last day was com- 
 I." Conversely, a deed was sustained when the date of execu- 
 tion was 23d May L799, a1 2 cm., and the granter survived fifty- 
 nine days and twenty-three hours, and died on 22d July at 1 P.M., 
 '/-/// day after ihr </<u/ of execution, (y) 
 
 335. A deed is therefore sale from challenge ex capite lecti if tin i the 
 granter has survived the hour of midnight which separates the fifty- 
 
 ninth from thesixtii th day after the execution of the deed. It is not 
 
 alwa- tie to determine with precision the moment of thi 
 
 tion of vital action; and the validity ot b settlement may come to 
 
 Ogilvie, 17:'::. M. 8886; 1 8 Pal 142 
 
 ■ >./. ■■ 1 l tthbi I," \
 
 THE LAW OF DEATHBED. 
 
 eb ix. depend on thequestion whether the testator is proved to have been 
 inanimate at the momenl of the commencement of the sixtieth day. 
 In such cases the genera] presumption of life seems to be applicable. 
 On principle, it appears that the hour of midnight must be deter- 
 mined according to the civil or mean solar time of the meridian of 
 the place, although, for convenience, it is customary in this country 
 to reckon time according to the meridian of Greenwich; and in 
 other European countries, according to the mean time of the prin- 
 cipal national observatory. 
 Evidence in 336. In the case of a probative deed, the testing clause affords 
 
 v *' prima facie evidence of the date of execution ; (z) but it is competent, 
 in a reduction, to prove the true date by extrinsic evidence. (a) An 
 untested holograph deed does not prove its own date, and if the 
 date cannot be instructed by extrinsic evidence, the deed will be 
 presumed to have been executed on deathbed. (b) But an excep- 
 tion must be admitted in the case of death resulting from accident 
 or external violence, or even, as it should seem, in the case of in- 
 stantaneous death from natural causes, where there were no premo- 
 nitory symptoms; for in these cases, as there is no apparent pre- 
 existing disease, there is no room for the application of the law of 
 deathbed. 
 
 Kirk and mar- 337. III. CONVALESCENCE — GOING to KlKK OK MARKET. We 
 
 , have already seen that actual convalescence obviates all objection 
 on the score of deathbed, insomuch that, although the granter 
 should die within sixty days after the date of execution, but of a 
 new disease, the deed will be held good. But convalescence fol- 
 lowed by a relapse of the same disease will not save a deed from re- 
 duction ex capite lecti, unless the fact of convalescence is established 
 in the manner required by our ancient law — that is, by proof of the 
 person having been at kirk or market unsupported after the exe- 
 cution of the deed. Presence at kirk or market unsupported, is, 
 in fact, a legal criterion of convalescence in the degree required 
 to support a deed previously executed ; as it is presumed that a 
 
 (z) See Dickson on Evidence, gg 714, "Writ," App. No. 3, 5 Pat. 101, as to 
 
 715, and cases there cited ; also Gibson v. which see Mr Dickson's observations in 
 
 Pott, 2 March 1813, Hume, 150. loc. cit. 
 
 (a) Arnott v. Gairdon, 1730, M. 12,285 ; (b) Cunningham v. Ramsay, cited in note 
 
 May v. Ross, 1007, M. 12,279; Teats v. to Haddoway v. Inglis, 1673, 3 Br. Sup. 
 
 Tr. 6 .Inly 1883, 11 Sh. 915 ; Camp- 200 ; Stair, 3, 4, 29 ; Ersk. 3, 8, 96. Per 
 
 bell v. Fisher, 7 July 1838, 16 Sh. 1279. Lord Moncreiff in Waddell v. WaddelVs 
 
 But where the deed has been misdated, for Trs. 16 May 1845, 7 D. 605; Sultie v. 
 
 purpose of evading the law of death- Ross, 3 Feb. 1838, 16 Sh. 429, Macf. 
 
 bed, it ha Ld that persons who are Rep. 139 ; Fairholme v. Fairholme's Trs., 16 
 
 ory to tin- fraud cannot take benefit Dec. 1856, 19 D. 178. 
 
 1 )ferry v. Howie, 180G, M.
 
 THE LAW OF DEATHBED. 
 
 165 
 
 CHAPTER IX. 
 
 person who has strength sufficient to enable him to go about In- 
 ordinary avocations has also the capacity to settle his affairs, and. 
 if necessary, to cancel or revoke any gift which may have been 
 improperly obtained from him while under the influence of disease. 
 The principles of the law or custom in relation to kirk and market 
 are declared in an Act of Sederunt of date "29th Feb. 1002, the text 
 of which will he found in the subjoined note.(c) 
 
 338. The first point to be noticed in the construction of the Act Object and 
 lerunt is the inferential declaration, that the object of coming rule in relation 
 to kirk or market is to afford evidence of convalescence. By this ma&et. and 
 it is not meant that the person shall be restored to his ordinary 
 health, but merely that he is so far recovered as to give attendance 
 at kirk or market in the manner required by the Act ; and the 
 legal presumption resulting from such attendance cannot be over- 
 by proof that the person was ;it tin; time suffering from the 
 disease of which he died. In the case of diseases attended with 
 mental incapacity, as acute fevers, some forms of paralysis, and the 
 like (termed morbus sonticus), going to kirk or market would not 
 prove capacity for making a will. It would be an answer to the 
 objection of deathbed, but would still leave the disposition exposed 
 
 r ail' lit persons going to church 
 ami mercate after granting of dispositions; 
 29 February VV.rl. " The Lords of Coun- 
 cil ami Session taking 1" their serious con- 
 on that the excellent law of death- 
 bed securing men's inheritan 
 
 y happen to 
 
 te if their coming 
 
 to church or mercate be not done in such 
 
 - 
 without sup- 
 iing of nai 
 ie may think it sufficient if parties, 
 ibscriving such disposition . 
 to tin- church at any time, and make a 
 turn nr two therein, though there were no 
 
 Ejation at i: 
 if thi y i ily in a 
 
 I 
 hen tic re i-> no public m 
 and all this p< rformed 1" fore th 
 
 ■ 
 parly in who ition is 
 
 Lition of hia 
 health i little under 
 
 ■ii of oth< r indif- 
 fi reni i 
 which :i. 
 
 merly there were publick prayers morning 
 and evening in thechurch in many places, 
 to which those who apprehended any con- 
 troversie might arise upon the validity of 
 their dispositions were accustomed to come 
 ayer : Ami some thought 
 they might come to the church though 
 then- were no publick n reat, 
 
 since these publick pray* rs v.. re not accus- 
 tomed, ami to take instruments >•( their ap- 
 pearing there: For remede whereof, tie- 
 Lords declare they will not sustain any 
 such parties going to church ami mercate, 
 where it is proven that he was side I 
 his Bubscriving i □ quarrel- 
 
 1< '1, as done in I i med 
 
 in the daytime, ami when people an 
 thered together in the church or churchyard 
 for any publici 
 tick, or when people an 
 tin- mercate-plaoe, for publickmercate: Ami 
 further declares, v, henever instrument 
 
 i for the end 1 
 
 ar, That it 
 
 i in the i ad view of the 
 
 people gatb id.othi i 
 
 I ' tile
 
 
 THE I.WV OF DEATHBED". 
 
 
 ince 
 either :it kirk or 
 :it mark 
 
 y the 
 
 5 
 
 mce 
 •• witli- 
 ont sup] 
 
 An> ndance 
 must be public. 
 Reason of this 
 rule. 
 
 balleuge on the ground of incapacity, or facility' and circumven- 
 tion.^) 
 
 339. The Art of Sederunl speaks of attendance at "church and 
 mercate," but attendance at either, with the precautions there pre- 
 Bcribed, is held to be sufficient. (e) 
 
 340. Next, it is required that the granter shall appear "without 
 supportation or straining of nature." The degree of support is a 
 qu< stion el fact ; and it is unnecessary to enter on an examination 
 of t!n i decisions upon such questions. It may, however, be observed 
 that very slight indications of weakness will be sufficient to invali- 
 date an appearance at kirk and market when made for the purpose of 
 supporting a particular deed; whereas, if the evidence relates to the 
 ordinary attendance of the deceased at church, or the resort to a 
 public market for "purposes of business, it will not invalidate the evi- 
 dence that the person has received such aid as he or she would re- 
 ceive en ordinary occasions. A lady, in walking to church, takes 
 the arm of a member of her family; the jury would be directed to 
 consider, on the whole evidence, whether the arm was offered for the 
 purpose of affording necessary support.(/) "The rule," says Pro- 
 Eessor Bell,(<jr) " is, that the granter shall be seen in the same con- 
 dition, in so far as regards aid from others, as while in good health ; 
 and the rule in this respect is tightened or relaxed, as the act of 
 going to kirk or market is done in the ordinary course of business 
 or for the mere purpose of giving effect to the deed." 
 
 341. The Act of Sederunt requires that the appearance shall be 
 public, in church or market, while the people are assembled ; and 
 any instrument taken on the occasion (and therefore any proof 
 offered) must show that the appearance was made " in the audience 
 and view of the people gathered together." The purpose of requir- 
 ing the granter's presence on occasions so public, is that his state 
 of health or sickness may be under the view and consideration of 
 " indifferent persons," instead of being confined to " picked out wit- 
 nesses," brought by the party in whose favour the disposition is 
 made. (h) Where attendance is given at church or market for the 
 
 (d) Crawford v. Brichen, 1711, M. 3312; 
 
 . Kirkwood, 1763, M. 3315; Faichncy 
 v. Faichney, 1 770. M. 3316, 5 Br. Sup. 422 ; 
 i. 5th ed. p. 89. 
 
 (e) Balmerino't Crs. v. Lady Couper, 1671, 
 M. 3305, 3292; Ragg v. Forbes, 1725, M. 
 
 isi i- upon this point in 
 
 itionary, pp. 3303- 3318; al > Young 
 
 !•' bigus v. 
 
 Monylaws, 1793, Hume, 137; Ilarvie v. 
 Reston, 1799, Hume, 139; Cowan v. Cowan, 
 20 Feb. 1817, Hume, 142; Smyth, 2 July 
 1812, Hume, 148 ; Ormiston v. Grdg, 1 7 
 May 1821, 1 Sh. N.E. 14. note. 
 
 [g) 1 Bell, Com. 5th ed. p. 89 ; and see 
 Stair, 3, 4, 28 ; Ersk. 3, 8, 96. 
 
 (h) Preamble to Act of Sederunt cited, 
 supra.
 
 THE LAW OF DEATHBED. 167 
 
 purpose of validating a deed executed in lecto cegritudinis, it is not chapteb ix. 
 necessary that the granter should either attend the service of the 
 church, or make bargains in the market ;(/) but if he do either, he 
 must be careful not to betray symptoms of weakness, as by leaving 
 the place of worship before the service is over, or taking the assist- 
 ance of a companion in making a purchase. Attendance at a meet- 
 ing of heritors in the church, or at a funeral in the churchyard, is 
 within the terms of the Act. "Whether attending service at a dis- 
 senting place "1 worship is sufficient to satisfy the law has not 
 been expressly determined ; though in the case of Livingstone v. 
 . I it was observed from the Bench that the maker of the 
 deed. " being a quaker, was not obliged to go to church to ratify his 
 deed." It is - 1 that attendance by a dissenter at his proper 
 
 place of worship for the purpose of divine service, should be re- 
 ceived as equivalent to attendance at church: but attendance at a 
 secular meeting in a chapel would clearly not be sufficient. 
 
 342. It is imt dearly settled what shall be held a market in the Whai is held to 
 of the rule of law. The Act of Sederunt seems to intimate Uttenda 
 that any simp or warehouse where goods are publicly sold. had marketl 
 
 considered a market for the purpose of satisfying the rule; 
 and at the present time, when markets have in many towns been 
 entirely supplanted by retail shops, i1 may safely be asserted that 
 appearance in any of the principal thoroughfares of business in a 
 city or town for the purposes of business, would be received as 
 proof of convt The decisions so far support this view of 
 
 the law. Thus, the Cross of Edinburgh was held to be a market- 
 I appearance in the market-place of Dumfries, though 
 d tin- regular market-day, was held sufficient.!///) And the 
 ting business in the Commercial Dank of Aberdeen, situ- 
 ated in one of the principal streets of tin- city, and making pur- 
 chases in two shops in the vicinity, were held equivalent to attend- 
 ance a1 market. <//) Attendance unsupported at an election (o) or 
 racing-meeting,(p) or at any similar concourse of people, is suffi- 
 cient evidence of convalescent 
 
 our l M. .' Rait, 21 Nov. 1818, F.C. 
 
 Iii Id thai walki . . L69 1, 
 
 while market M. 3822. 
 to was Laird v. Kirkwood, 17<'>::. M. 8816. 
 
 h i other hand, u 
 / ". 3821. 
 
 1786, and at a i 
 
 k. not admitted 
 
 14 Sept. 1 121, Vaitland v. Naittand, Hi May l-l i p.i
 
 
 TI1K LAW OF DEATH I '. LI). 
 
 . II UMTli i\ 
 
 SECTION II. 
 
 (•!•' THE DEEDS LIABLE TO CHALLENGE EX GAP1TE LECTI. 
 
 Objection of 
 deathbed applies 
 to all deeds pre- 
 judicial to trie 
 heir. 
 
 lentary 
 dispositions. 
 
 Deeds of pro- 
 vision in favour 
 of wiJows and 
 younger cluld- 
 ren. 
 
 343. I. Gratuitous Dispositions and Provisions. — The gene- 
 ral rule is. that no deed granted or act done spontaneously on death- 
 bed, to the prejudice of the heir, will be sustained if challenged by 
 the heir, or by those in his right. (#) The rule excludes deeds 
 which the party was under an obligation to grant; and deeds 
 which, although disposing of the succession, are not prejudicial to 
 the interests of the heir ; as, for example, where the reduction of 
 the deathbed deed would have the effect of opening the succession 
 to a beneficiary irnder a prior deed. It is immaterial whether the 
 right to be vindicated was vested in the person of the ancestor or 
 in trustees for his behoof, provided it is heritable as to succession. 
 The law of deathbed is in an especial manner directed against tes- 
 tamentary dispositions. It is not enough that a settlement exe- 
 cuted on deathbed should be supported by rational considerations. 
 In order that the deed may be within the exception, it must be in 
 fulfilment of an antecedent obligation which might be made effec- 
 tual by adjudication, (r) 
 
 344. When a widow has by law a right of terce out of anestate, 
 a conventional provision in her favour by her husband, as proprie- 
 tor of that estate, is effectual to the extent of such terce. The rea- 
 son is, that to that extent the provision is not prejudicial to the 
 heir.(-s) But where the right to terce is excluded by the entail or 
 deed of provision regulating the succession to the estate, which it 
 may be where the clause of exclusion is a condition of the grant, (t) 
 any conventional provision which an heir in possession may grant 
 to his widow under the powers of the entail is obviously a gratui- 
 tous alienation to the prejudice of the heir, and is liable to reduc- 
 tion ex capite lecti.(u) Provisions to widows and children granted 
 
 Such meetings, however, are distinguish- 
 able from racing-meetings and the like, to 
 which the public at large are accustomed 
 to resort. 
 
 (q) 1 Bell, Com. 5th ed. p. 98. 
 
 (r) See the case of Jack v. Jack, 20 May 
 1857, 19 D. 747, on the question whether 
 a disponee, under a deed purporting to be 
 onerous, may found upon the conveyance 
 in his favour to the effect of maintaining 
 rit \ or satisfaction <<( a prior 
 
 (s) Stair, 3, 4, 30; Ersk. 3, 8, 97; Schaw 
 v. Calderwood, 1688, M. 3196 ; Strachan v. 
 Baldwin, 1736, M. 3227; Hay Newton's 
 case, infra, per curiam. 
 
 (0 Gibson v. Reid (Hoselaw), 1794, M. 
 15,869. 
 
 (u) Hay Newton v. Hay Newton, 18 July 
 1867, 5 Macph. 1056. The proposition 
 stated in the text is, of course, equally ap- 
 plicable to children's provisions, and it was 
 so applied in the cas .
 
 THE LAW OF DEATHBED. 169 
 
 on deathbed, are, moreover, effectual when within the amount which chapter ix. 
 the granter was hound to provide by his contract of marriage ;(\r) 
 otherwise they are incapable of being enforced against the heritable 
 estate. (y) With reference to the rights of the heir, it is immaterial 
 whether such provisions are contained in testamentary settlements 
 or are constituted by bond of provision or deed inter vivos. But it 
 would serin that a provision by deed inter vivos is effectual when 
 ited in liege poustie, though it should not be delivered until 
 the grantor is on deathbed, (a) The heir is entitled to relief against 
 an indirect alteration of the succession upon deathbed, e.g., where a 
 charter, containing a now destination, is obtained from the superior, 
 or where estate is purchased in liege p&ustie, and the purchaser ob- 
 3 a title on deathbed containing a destination in favour of a 
 younger son.(a) 
 
 345. Bonds secluding executors cannot be assigned upon death- Deeds indirectly 
 bod to the prejudice of the heir.(ft) Legacies and provisions grant- heritawl suc- 
 ed in lecto are not only incapable of being made to affect the cesslon - 
 heritable estate, but the heir may prevent the executor from paying 
 
 them, in so far as such payments may tend to reduce the fund for 
 payment of moveable debts to the prejudice of his right of re- 
 lief.(e) 
 
 346. II. Onerous Dispositions. — The principle in such cases is, Heir's right of 
 that the heir may have the deed set aside on condition of refunding f^f*^ 61 ' 
 the consideration money, (d) If the price have been invested in ^^^f ti * e 
 heritable securities, and the transaction is a fair one, the heir loses money. 
 
 not] ling, and he may, if he pleases, hold the purchaser to his 
 ■ in. If the price is extant in the form of money or personal 
 be, the heir will have relief againsl the executors ; but the right 
 of relief would not, as we think, extend to any part of the price 
 which had been consumed by the ancestor in the course of his ordi- 
 nary expenditure; for thai is not an alienation to the prejudice of 
 the heir, but a deterioration of the subject. 
 
 (x) Edmonstone v. Edmotutone, 1706, M. (c) Shaw v. Gray, 1624, M. 3208. The 
 
 8219. plea of deathbed was Btated in the case of 
 
 / '/' . 4 June Ewen v. Eweria Tra., — a n >f a 
 
 L729, 7 Mi. Tot: Riddell v. Richardson, settlement of personalty, — but th 
 
 1687, M. 8212; Foulit v. Foulit, 17-1. M. does nol sei m to have been n ited on thai 
 
 /. , -.. /. lie, 1717, M. 8229; ground : see the reports in 2 Sh. 612, N.E. 
 
 I .,-'■//. 1767, M.8280. 622, 1 W. & s. 695, 6 Sh. 179, and 17 
 
 i Bell, Com. 6th ed. p. 94, citing Nov. L880, 1 W. & B. 846. Earl 
 
 toot's Children \. Sherwood, L669, I o/Leven v. M ontgomery 1688, M. 8217, and 
 
 Br. 8np. 697. I Brown, 1707, M. 8220; 
 
 / ■/ .,,,, 2 Di c. 1819, 8, B, 97; 1 B 6th 
 
 ed. ', 
 ■■ i 1726, M, 82 
 
 / Trt., 1 79 7, W
 
 I7Q THE LAW OF DEATHBED. 
 
 .11 in 
 
 347. It may be suggested for consideration, whether the right 
 f the heir to reduce a sale of land in respect of deathbed is abso- 
 , fa lute, or is confined to cases where tie is in a position to prove lesion 
 ;"„'""" or fraud. On this subject, the dicta of Erskinc(e) and Bell(/) are 
 unsatisfactory ; and their distinctions, unsubstantial. But neither 
 of these eminent writers asserts that the heir has an absolute 
 righl to challenge a sale for a fair price ; and the existence of such 
 a right has not, so Ear as we are aware, ever been affirmed by a 
 decision of the Court. We therefore feel warranted in stating the 
 Law to be, that a purchaser can only be dispossessed where the heir is 
 able to shew unfairness in the transaction. ((/) With regard to the 
 terms on which reduction is granted, Professor Bell(/0 distinguishes 
 the following cases: (1) If the ancestor has died with the price 
 unpaid, a bond granted for it, or bills in his repositories, the heir 
 will have his challenge on discharging the price or cancelling the 
 bond or bills ; (2) If the purchaser has been favoured to the heir's 
 prejudice, reduction is competent on restitution of what has been 
 paid ; (3) Where the purchaser has granted bond or bill to younger 
 children, this is an indication of mala fides sufficient to support a 
 reduction ; but the heir must repay to the purchaser the sum dis- 
 bursed, or relieve him of the obligations granted to the younger 
 children ;(i) (4) Where the price has been paid to the ancestor, the 
 heir, as his representative, must indemnify the purchaser as a con- 
 dition of the decree of reduction, and seek his remedy against his 
 ancestor's executors or grantees. (A*) 
 , ity nan- 348. The creation of burdens or securities is a virtual aliena- 
 ,/ tion ; but the heir can always disburden the estate of a security by 
 rthc " paying the debt; and, as a reduction would only be granted on 
 similar terms, it does not appear that the element of deathbed makes 
 any difference in Cjuestions between heirs and heritable creditors. 
 The true remedy is by an action against the executor for repayment 
 of the loan as heritage converted contrary to the law of deathbed. 
 In the case of heritable bonds granted in lecto in security of prior 
 debts, it has been held that the heir has no action against the herit- 
 able creditor. (T) 
 i. far 349. Leases exceeding the ordinary term of duration are re- 
 
 reduci 
 
 lecti - (e) Ersk. 3, 8, 97. (*') Richardson $ Riddel v. Sinclair, 
 
 (f) 1 Bell's Com., 5th ed., p. 92. supra. 
 
 (g) See, on the subject of reduction of (k) Gillespie V. Gillespie, 18 June 1802; 
 sales, the cases of Gilbert, 1608, M. 3290; Hume, 145. 
 
 v. Rankin, 1805, M. "Deathbed," (I) Shaw v. Gray, 1624, M. 3208 ; Pol- 
 
 No. 5; 5 Pat. 573; Richardson A lockv. Fair holm, 1632, M. 3209 ; J)arling 
 Riddel v. Sinclair, 1635, M. 3210. v. Hmj. 1709, M. 3222.
 
 THE LAW OF DEATHBED. 171 
 
 ducible ex capite lecti,(m) but where granted in the exercise of a ohaptbbix. 
 due course of administration, they are not reducible, (n) "Where a 
 grassum is taken on deathbed it is challengeable, according to Pro- 
 r Bell, in so far as the money is given to executors to the pre- 
 judice of the heir ; but it is apprehended that an action could not 
 be maintained against the tenant to the effect of compelling him, 
 without restitutio!) of the grassum, to pay the full rent.(o) A sale 
 of growing timber has been sustained as an act of ordinary admi- 
 nistration in a question with the purchaser, (p) 
 
 350. In a question between heir and executor, the assignation Discharges of 
 of an heritable debt by the ancestor on deathbed is the same in ritJLnotreT" 
 principle of land : hut the rule does not extend to the ex- ducible - 
 tinction of securities by discharge : for. according to the judgment 
 
 in an early case, "though one hi- restrained from convoying an 
 heritable debt on deathbed in prejudice of his heir, he may take 
 paymenl thereof on deathbed, and so dissolve the obligation he 
 could not transmil on deathbed."^) 
 
 SECTION III. 
 OF THE TITLE TO CHALLENGE DEEDS EXECUTED ON DEATHBED. 
 
 351. The ride i-. that the title to pursue a reduction belongs to General rule as 
 the heir who. hut tor the deathbed deed, would he entitled to make '" mle ' 
 
 lip a title to the subjects as heir at Law or of provision. 
 
 352. The heir at law. whether of line or of conquest, is entitled title of the 
 to challenge a deathbed deed unless his title is excluded by an an- 
 terior disposition, (r) And where the nearest apparent heir dies 
 without making up a. title, the righl of challenge passes to the next 
 heir,! though the heir dying [n apparency is alioqui succes- 
 mruq, and has no interest to challenge.(tf) Thus, where a trustor left 
 bia whole i state in the Brsl place to his eldesl son, and failing him 
 by death in minority, appoint d it 1 . . he distributed among various 
 
 . and the institute tools benefit under the trusl and died in 
 minority, the Iruster's nephew and next heir was held entitled to re- 
 IE .: I. 8226; duced. Thus, in Grant v. Grant's Tra., 2 
 I 1759, M. i Dec. L869, 22 l>. 63, where a father had 
 ii 1818, I-'.' !. raadi up a title as heir -->\ la\( I 
 ■".:ii ed., |'. '■'■'■. and ratifii d hi held 
 . 1 7-1. M. ■ that had no title 
 / R 1712, M. 16,930 i her broth ition. 
 
 I. M. 3200, ' . M'l/iinn, i 1 ::;'.», 
 ■ 
 
 -i" I buthi "', I 722, M
 
 I.™ THE LAW OF DEATHBED. 
 
 ohaptbb -x. duce the Bettlemenl ex capite lecti ; but the judges were of opinion 
 " that, ii the intestate had attained majority, his approbation of the 
 settlement would have barred reduction at the instance of a remoter 
 heir, (w) But in special circumstances, where a settlement for dis- 
 tribution was expressly ratified by the eldest son and apparent heir 
 of the truster, the next heir was held to be barred from reducing 
 the settlement ex capite lecti.(x) 
 
 353. The heir of provision, whether by tailzie, marriage-con- 
 bract, ov destination in the investiture, (?/) whether nominated by 
 the maker of the deathbed deed,(» or by a remoter ancestor, is en- 
 titled to pursue for reduction on this ground ; and that even where 
 the person favoured by the deathbed deed is the heir of line ;(¥) 
 the principle being, that the order of succession, as settled by law 
 or deed previous-ly to deathbed, is not to be altered on importunity 
 during that period of weakness, (a) An heir of provision does not 
 require to complete a title by infeftment to qualify himself to in- 
 stitute a reduction. (b) The heir-substitute under an imperfect en- 
 tail or deed of simple destination has therefore a good title to chal- 
 lenge an alteration of the succession by deed executed on deathbed, 
 whether made by the institute under the destination or by a prior 
 substitute, (c) And it is no objection to his title to reduce, that 
 the grantor of the deathbed deed was expressly authorised to alter 
 the destination, for the ground of reduction is not the want of power, 
 but the presumed want of capacity or of firmness on the part of 
 the granter of the deed, (d) A prior effectual alteration of the set- 
 tlement may be pleaded by the heir under the deathbed deed to 
 exclude the title of the heir of the settlement. (e) 
 
 {u) Irvine v. Tait, 3 June 1808, M. to the effect produced by an express revo- 
 
 " Deathbed," App. No. 6 ; Heddertoick v. cation of the prior deed. 
 
 Campbell, 1740, Elchies, " Deathbed," No. (a) 1 Bell, Com. 5th ed. p. 97. 
 
 13. (6) Porterfield v. Cant, supra ; Marquis 
 
 (x) Leith v. Leith, 6 June 1848, 10 D. of Clydesdale v. Earl of Dundonald, 1726, 
 
 1137. M. 3180. 
 
 (y) Hepburn v. Hepburn, 1663, M. 3177; (c) Cogan v. Lyon, 4 Dec. 1830, 4 W. & 
 
 Porterfieldw. Cant, 1672, M. 3170 ; Howie S. 391 ; Ibid., 28 Jan. 1832, 10 Sh. 267. 
 
 v. Merry, M. "Writ," Appx. No. 3, 17 In the first case the pursuer failed because 
 
 .March 1806, 5 Pat. 101, and cases cited he had erroneously described himself as 
 
 infra. heir of provision to the settlor, when he 
 
 (z) See Crawford v. Coutts, 14 March should have been designed heir of provi- 
 
 1806, 5 Pat. 73, where the contention lay sion to the institute, by whom the succes- 
 
 behveen the beir-at-law and the heir of sion was altered on deathbed, 
 
 provision under a previous deed of the (d) Pattison v. Dunns Trs., 9 March 
 
 deceased, and the title of the latter to sue 1866, 4 Macph. 555 ; and see M'Ewen v. 
 
 as an heir of provision was admitted to be Pattison, 27 March 1865, 3 Macph. 779. 
 
 incontestable, the only question being as (e) Duke of Hamilton v. Douglas, 27 
 
 March 1779.2 Tat. 449.
 
 TIIK LAW OF DEATHBED. 173 
 
 354. We are not aware of any case in which it has been held qhapteb ix. 
 that a person claiming as institute, or immediate disponee of the _ , ,. 
 
 1 ° ' x Keduction ex 
 
 defunct under a prior settlement, would not have a title to reduce a capite UcH, 
 subsequent deed of settlement executed on deathbed to his preju- pe tent to a dis- 
 dice ; and though there is a general understanding that the remedy P ouee? 
 is confined to proper heirs of provision, the case of Merry v. Howie 
 is a direct authority in favour of the title of a disponee. (/) In one 
 case it was observed that the right of challenge in respect of death- 
 bed only belongs to heirs whose titles fall to be completed by ser- 
 x\r, ■:(</) a definition which would include an heir who is a first 
 taker, but who, in respect of his not being named in the deed, but 
 merely designed as heir, requires a service to establish his relation- 
 ship. Li - ad beneficiaries under trust-settlements of heri- 
 table estate, have been held to have no claim to the character of 
 heirs of provision in a question of title to reduce. (/<) Claimants 
 under marriage-contracts are in the same position ; but, as they are 
 creditors in a question with heirs, they have a remedy by action 
 against the heir in Ids representative character. (/) 
 
 355. It is laid down by Professor Bell, on the authority of anTitieofan 
 early case, thai the privilege of reduction ex capite lectiis compe- appar ' 
 tent to an heir-at-law possessing on apparency,^) though it is 
 doubted whether it can be exercised Ivan heir of provision who 
 
 has not made np a title. (?) There does not appear to be any solid 
 ground for distinguishing between the two cases. Where a writ- 
 ten title is necessary, a general service not followed by an entry from 
 the superior has been considered insufficient, (m) 
 
 356. During the Lifetime of the heir, and within the period of Heir's righi 
 prescription, his right of challenge maybe made available to his creditors. 3 
 creditors either by adjudication orbydirecl action libelling on their 
 
 right as eivditors. "This," says Professor Bell, "seems to rest on 
 
 (/) ll'.iin v. . Viiii/, 1801. M. "Writ," The observations in the texl apply to the 
 
 Appx. No. 3; 17 March 1806,6 Pat. 101. ca of direct di positions to heirs, reserv- 
 
 The pursuer, who ned in the granter's liferent. 
 
 the deed, was one of (/>) Shaw v. Campbell's Exrs., 2 March 
 
 two joint dis] I - 1M7. '.i I ». 78-; and see Morison v. Mori- 
 
 mi nt of thi person. Bui L2 Fi b. L808, Hume, 147. 
 
 (i) Maxwell v. Neilson, L722, M. 3194 ; 
 
 Campbell, infra, per Lord Cam]>!><ll \. <'•> m/>f,<//, 1 7ns. VI . :;i *i. r ). 
 a. Ii ii' rved C/.j 1 Bell, Com. 6th ed. p. 97, citing 
 
 thai in th Graham v. Crulmm, 177'.», M. :; 1 86. 
 grantee himself, and other | I med (/> I Graham v. Graham, supra, 
 
 ill.- in titute, where the heir-ai he,. in h- of in- 
 
 and tl t after bim an heir of vestiture, with Edmonston \. Edmon 
 
 on. Such an hi ir wi uld I 1 687, M. 16,089. 
 
 (/«) 1 B< II. < '"in. -"'ill ed. p. 98.
 
 17-1 THE LAW OF DEATHBED. 
 
 
 
 theground thai the creditors may competently have a declarator that 
 their debts should have free course to attach the estate unobstructed 
 by the deathbed deed."( % ) The husband of an heiress cannot insti- 
 tute a reduction ex capite lecti in her name without her consent.(o) 
 The donatory of the Crown has a title to insist in an action of re- 
 duction on this -'round. (p) The right of an heir duly entered 
 passes to his representatives, (q) but that of an apparent heir of 
 course dies with him, if it is not made effectual in his lifetime. 
 Ratification by 357. An heir may elect to ratify a deathbed deed, and having 
 
 " ! ," .lone so, lie lias exercised his option, and there is no longer any 
 tluT effectual ... , -. . 
 
 ; "" right of challenge capable of being attached by creditors or trans- 
 
 with creditors. . . . , . m , ■ . , , n .-, 
 
 nulled to heirs, (r) This, of course, is stated on the assumption 
 
 that the ratification has been made in good faith ; for if the heir 
 should gratuitously ratify a deed to his prejudice, while in a state of 
 insolvency, his creditors may have the transaction set aside under the 
 1 lowers of the Statute 1621, c. 18 ; or, if the person favoured by the 
 deathbed deed be a creditor of the heir, and the effect of the ratifi- 
 cation is to constitute a preference in his favour, reduction will be 
 competent under the Act 1696, c. 5, or at common law. Katifica- 
 tion may either be by express deed or by tacit homologation, (s) 
 In the former case, the construction of the deed is for the Court, (t) 
 in the latter, the question is one of evidence, which may be left 
 to a jury.(tf) Mere lapse of time, even to the extent of seventeen 
 years, (u) or, as in another case, twenty years, (a;) is not conclusive 
 on the question of homologation. A deed executed on deathbed 
 may be ratified at the time, but the signature of the heir as witness 
 does not import approbation of the contents, (y) Homologation 
 will not easily be inferred where the heir was ignorant of his legal 
 rights, and any unfair practice or dissimulation on the part of those 
 
 (n) Com. ut supra; Ersk. 2, 12, 6, and (r) Leith v. Leith, 6 June 1848, 10 D. 
 
 3, 8, 100 ; Balmerino's C'rs. v. Lady Couper, 1187. 
 
 1669, M. 3203. (s) Under the Act 1621, c. 18, the tes- 
 
 (o) Greenhillv.Aitken, 15Feb. 1826, 4Sh. tator's creditors will also have a remedy 
 
 N. E. 478 ; Aitkens v. Orr, 1802, M. 16,140. against deeds prejudicial to their just 
 
 The privilege^therefore, does not fall under rights; Lindsay's Crs. 1714, M. 3204. 
 
 the jus mariti, hut is analogous to the case (t) Richardson v. Richardson, 8 March 
 
 of electing between legal and conventional 1848, 10 D. 872 ; Murray v. Murray's Trs., 
 
 provisions, where the wife is held to have 21 Jan. 1826, 4 Sh. 374, N. E. 377. 
 
 a personal right of choice, preferable to that (u) Brodie v. Brodie, 6 July 1827, 5 Sh. 
 
 of her husband or his creditors ; see Low- 835. 
 
 son\. Young, 15 July 1854, 10 D. 1098; (x) Gardner v. Gardner, 3 Dec. 1830, 9 Sh. 
 
 and Stevenson v. Hamilton, 7 Dec. 1838, 1 138. On the point of bona fide possession 
 
 D. 181. see Moir v. Mudie, 16 June 1826, 4 Sh. 
 
 Brock v. Cochrane, 2 Feb. 1809, F.C. 725, N. E. 731. 
 
 I See Smitk v. Shield*, 18 Feb. 1830, (y) Ersk. 3. 3,48; Dallas v. Paul, 1704, 
 
 M. 5677.
 
 THE LAW OF DEATHBED. L75 
 
 interested in obtaining a ratification of a deathbed deed will usually i haptek ix. 
 be fatal to the transaction, (z) A deed of ratification executed on 
 deathbed was held not to be challengeable on that ground. (a) As 
 the effect of reducing a deed of settlement ex capite lecti is to defeat 
 
 the intention of the testator in all cases where actual incapacity is 
 not proved, the law of approbate and reprobate is applicable. The 
 
 heir is held to repudiate the settlement if he brings it under reduc- 
 tion on this lie.nl. and consequently, he is barred from claiming any 
 interest in the moveable estate under its provisions. (b) 
 
 HON IV. 
 
 , HE EXCLUSION (iF THE HEIR'S TITLE AXD THE EFFECT OF 
 DEEDS OF REVOCATION. 
 
 358. (1) We have seen that a settlement executed on deathbed Privilege of re- 
 may be ratified or homologated by the heir after the ancestor's be renounced in 
 d.aili.fc) It has be< 11 settled by a series of judicial decisions thai | 
 
 the privilege of reduction on the head of deathbed cannot be re- 
 nounced in the ancestor's lifetime. (d) " The heir," says MrErskine, 
 "can by no antecedent general writing renounce bis right of reduc- 
 tion, and thereby give validity to all dispositions that maybe after- 
 wards granted in lecto to his hurt ; for few heirs, for fear of being 
 disinherited, would dare refuse to sign such renunciations." (e) But 
 in the opinion of the same author, and of Mr Bell, the heir's assent 
 particular deed, if fairly obtained, bars his right of challenge 
 in the event of the grantor dying within the sixty days :(/') and in 
 the absence oi any adverse authority, their opinions would probably 
 be held to lix the law.(^) 
 
 359. (2) Dispositions granted in the exercise of a power of dis- Deeds executed 
 posal given by a proprietor to a person who is no1 the absolute pro-d 
 
 ible ex 
 capiti lecti. 
 Vurrayv. Murray's Trs., 21 Jan. bell, 1728, M. 3327; Irvingv. Irving, 17 11. 
 I - . 37 I \. E. 877. M. 3882 ; Murray v. Murray's Trs. 2] Jan. 
 
 L744, M. 8182. The L826, I Sh. 374, N. E. 377. 
 effect of this decision is mi apprehended (e) Ersk. 8, 8, 99. 
 
 by Professor Bell, 1 I ed. p. 98. (/) Ersk. ut supra; 1 Bell, Com. 
 
 Tli'' R t "the Lord oil- ed. pp. 96, 96. 
 
 zied from thi (>/) In tl Murray \. Murray, 
 
 Loud LI, 1 Sandford supra, the < lonrl i i of a 
 
 en Heritable Succi don, p. 146; Lad\ I . deathbed deed under which the heir was to 
 
 and V.Kerr. D T ,28 receive 640 10,000; but the 
 
 1816, Humi 26 ; 6 M I : L9, I judgmi al ■ [ on the unfaii ni ol 
 
 .1. the transaction, and thepui 
 
 of bis li gal rights al the time oi 
 U M. 8827, into ii i thi point, Murray v. / 
 
 " D( nthh
 
 L76 
 
 THE LAW OF DEATHBED. 
 
 ,ii w ; i i; i\. 
 
 Deeds of revo- 
 u i redu- 
 cible : effect of 
 this rule. 
 
 prietor of the estate, arc not subject to the operation of the law of 
 deathbed. The law of deathbed contemplates the protection of the 
 heir of ll„' granter against deeds granted to his prejudice; hut, in 
 the case supposed, the granter is not the proprietor, and his heir 
 would take nothing bythe reduction of the deathbed deed. Where, 
 therefore, estate is given to one person in liferent and to another 
 in ire, subject to a power of disposal on the part of the liferenter, 
 the exercise of that power is not challengeable ex capite lecti.(Ji) 
 And if a proprietor convey his estate to his son in his lifetime, 
 reserving his own liferent, together with a power to burden or dis- 
 pose,^') or settle his estate in strict entail, reserving only a liferent 
 and power to burden, (A') the exercise of such reserved powers, by 
 granting provisions to younger children, is not liable to challenge 
 under the law of deathbed. The distinction is obvious between 
 mi eh eases and the attempted reservation of a power to dispose 
 etiam in articulo mortis by a person who retains the fee of his 
 estates, or such powers as the law holds to be equivalent to a fee. 
 It is an inflexible rule that a proprietor cannot, by direct reserva- 
 tion of a power, obtain the capacity of disposing of his estate on 
 deathbed. This rule applies even to the case of a proprietor who 
 lias divested himself of some of the powers of a fiar by executing 
 and recording a deed of entail of his estates ; and in such a case, 
 where the entailer was constituted the institute or disponee under 
 the deed of entail, and subsequently on deathbed granted to his 
 widow and younger children certain provisions, being in the exer- 
 cise of the powers of the entail, those provisions were held to be 
 reducible at the instance of the heir of entail. (I) 
 
 360. (3) The revocation of a voluntary settlement is not chal- 
 lengeable under the law of deathbed, (m) The reason is, that a 
 mere revocation in its direct operation (n) is not prejudicial to the 
 rights of an heir, whether of line or of provision, while in some 
 
 (h) Somervell v. Geddie, 1743, Elchies, 
 "Deathbed," No. 1G; Morris v. Tennant, 
 7 June 1853, 15 D. 716; 6 July 1855, 18 
 D. (Ap. Oa.), 42; 27 Jur. 546. 
 
 (i) F, -ingle v. Pringle, 29 Jan. 1767, 2 
 Tat. 130, reversing M. 3287. 
 
 (k) Forbes v. Forbes, 29 Jan. 1756, 2 
 Pat. 8, reversing M. 3281 ; cited, along 
 with the case of Pringle, by the Lord Pre- 
 sident in Morris v. Tennant. 
 
 {I) Hag Newton v. Jlag Newton, 18 July 
 1807, 5Macph. 1056. 
 
 O) Ersk. 3, 8, 98; Coutts v. Crawford, 
 14 March 1800, 5 Pat. 73; Mudie v. Moir, 
 
 1 March 1824, 2 Sh. (Ap. Ca.), 9 ; White- 
 laiv v. Lang, cited in note to Mudie' 's case, 
 p. 13 ; Millar v. Marsh, infra. 
 
 (ri) That it may be indirectly prejudicial 
 to the interests of the heir of line is suffi- 
 ciently obvious, e.g., where under the re- 
 voked deed he is entitled to the succession, 
 and the effect of the deed of revocation is 
 to revive a previously executed deed in 
 favour of a stranger. The case of Millar 
 v. Marsh, infra, is an example of a deed of 
 revocation operating indirectly to the pre- 
 judice of the heir of provision.
 
 THE LAW OF DEATHBED. 177 
 
 cases it may operate in his favour, by displacing the deed or deeds chapter ix. 
 which excluded him from the succession. As regards the disponee 
 under a settlement which is the subject of revocation, he is not 
 regarded as an heir of provision, he has no legal title to chal- 
 
 _<■ a deed executed on deathbed ; and therefore, in this question, 
 his interest is not regarded. The general rule was strikingly exem- 
 plified in the case of Miller v. Marsh,(o) where an entailer was 
 held entitled, by a deed executed on deathbed to convert a tailzied 
 succession into a simple destination, by merely revoking the re- 
 straining clauses of the deed of entail. The effect of this proceed- 
 ing was to raise the interest of the institute to a fee-simple estate, 
 and to reduce that of the heirs-substitute from a vested interest to 
 a mere expectancy ; yet. as the object was accomplished by revoca- 
 tion, tin- heir was held to have no title to reduce. In this case the 
 revocation was made under a reserved power; hut it would seem 
 that when a deed is in its nature revocable, the non-reservation of 
 a power to revoke would not affect the granter's right of revocation 
 upon deathbed. 
 
 361. (1) A deed of alteration, or codicil to a settlement, if it is Effect of revo- 
 anything more than a simple revocation, total or partial, of the pro- with^ewsettie 
 visions of the settlement, is to the extent of the alteration a new ment- 
 disposition. By the law of deathbed, the dispositions contained in 
 a deed of alteration or new settlement are liable to reduction at the 
 instance of the heir of provision of the previous settlement in liege 
 poustie; or, if there be no heir of provision, then at the instance of the 
 heir-at-law. Bui here it is necessary to distinguish the case of a set- 
 tlement in favour of heirs of provision not alioquin successurus from 
 that of a disposition to the heir-at-law. For, by an extension of 
 the rule already noticed in relation to deeds executed under powers. 
 the doctrine has been recognised I hat, in the case of a settlement in 
 favour of a stranger, the reservation of a power to alter or revoke 
 on deathbed i> effectual as a condition of the grant ; so that its ex- 
 i rcise cannot bechallenged by the disponee or heir of provision^ p) 
 
 HiUar \. Marsh, L6 1>. 823; 22 thai thie Uegi poustu deed must be in fa- 
 
 1866, '1 afacq. 284 vour of a Btranger, and noi in favour of 
 
 .8,8 98; l Bell, Com. 6th ed. the heir all urue. A deed in his 
 
 96; / v 1 711.",, M. 8261. favonr would 1"' held to be an eve ion of 
 
 In addition to these authorities, we cite the Law, and noi effectual. This is obvi- 
 
 the ob al in Lord Kl- ous in principle ; thi 
 
 judgment in Crawford v. bound t" bold good any power reserved 
 idmitted thai if a valid h pow< r be dulj 
 
 ■■■I al the death of cuted, he cannol complain" (6 Pat. 96). 
 
 the grant r. the deathbed deed would al io Bee Lord Presidi qI < lampbell's opinion to 
 
 I d. It is to I ' «ne < Sect, reported 6 Pat. 7 1 76 
 
 VOL. I. m
 
 THE LAW OF DEATHBED. 
 
 . ii mm n; i\. 
 
 Trust for pur- 
 unde- 
 
 And it would Beem thai such reserved powers may be exercised 
 upon deathbed though the words etiam in articulo mortis are not 
 used, provided there is no limitation of time expressed in the 
 power.fa) But in the case of a settlement in favour of the heir- 
 at-law, as his right is uol derived from the disposition in his favour, 
 neither is it controlled by the conditions of the settlement. The 
 most positive reservation of a power to burden or dispone etiam in 
 articulo mortis, in a disposition to the heir, is therefore wholly ino- 
 perative as regards the heir's right of challenge, and is of no effect 
 in validating any subsequent deathbed deed.(Y) 
 
 362. Nor is it possible to give validity by anticipation to a deed 
 to be executed in articulo mortis, by conveying the estate to trustees 
 in liege poustie, leaving the purposes to be declared in the deathbed 
 deed. A conveyance for purposes undeclared is truly a resulting 
 trust for the heir-at-law ; and such a settlement is in legal effect 
 precisely the same as one in favour of the heir-at-law, with a re- 
 served power of alteration, (s) The same principle governs the deci- 
 sions of those cases in which it has been unsuccessfully attempted 
 to retain the power of disposal on deathbed by executing a deed 
 blank in the name of the disponee, and filling it up upon deathbed.(^) 
 The principle of resulting trust requires that the name of the heir- 
 at-law should be read into the blank. And where in a trust-settle- 
 ment in favour of a stranger, with reserved powers of alteration, the 
 trust lapses through the predecease of the beneficiary, a resulting 
 
 (q) Ersk. ut supra ; Buchanan v. Bu- 
 chanan, 1758, M. 3285 ; per Lord Justice- 
 Clerk Hope in Shaw v. Campbell's Exrs., 9 
 D. 787. But a general power of altering 
 the succession given to a disponee does not 
 imply that the alteration may he made 
 upon deathhed ; Paltison v. Dunns Trs., 9 
 Mar. 1806, 4 Macph. 555. Lord Justice- 
 Clerk Inglis was of opinion that such a 
 power might have heen effectually given 
 hy means of a condition, — i.e., by provid- 
 ing that the substitution contained in the 
 original settlement should not take effect 
 if the institute conveyed the estate in lecto. 
 But, quazre, would not this let in the insti- 
 tute's heir-at-law '? 
 
 (r) Hepburn v. Hepburn, 1663, M. 3177; 
 Davidson v. Davidson, 1687, M. 3255; Ber- 
 tram v. Vere, 1706, M. 3258. In D. of 
 Hamilton v. Douglas, 2 Pat. 449, a chal- 
 lenge at the instance of an heir of provi- 
 
 sion under a prior deed was held incompe- 
 tent, in respect that the deed challenged 
 was granted in pursuance of a reserved 
 power. 
 
 (s) Wauchnpe v. Ladies E. and 31. Ker, 
 21 Feb. 1812, 5 Pat. 559. Here the resi- 
 due was directed to be held in trust for 
 such persons as the truster should appoint; 
 and the appointment having been made 
 on deathbed, was held ineffectual. Erskine 
 v. Erskine's Trs., 3 Dec. 1840, 13 D. 223 
 In this case the purposes relating to the 
 disposal of the truster's heritable estate 
 were recalled by a codicil executed in liege 
 poustie, thus letting in the heir's resulting 
 interest ; and a subsequent codicil, direct- 
 ing a distribution of the heritage, was re- 
 duced on the head of deathbed. 
 
 (t) Bcnnycookv. Thomson, 1687, M. 3243; 
 Birnies v. Laird of Polmais, 1678, M. 3242, 
 3 Br. Sup. 325.
 
 THE LAW OF DEATHBED. 179 
 
 interest accrues to the heir-at-law, which cannot be defeated by chapter «. 
 deed or codicil executed upon deathbed. («) 
 
 363. (5) "We now see that it is possible to give validity by anti- Effect of re- 
 cipation to a deathbed deed of appointment, and that this may be revoke, P <OTpM° 
 accomplished bv executing a settlement in liege poustie, containing a " Ith a ies } ilia - 
 
 1 J _° . . tion over, in case 
 
 power to appoint at any time, with a destination over to beneficiaries of ineffectual 
 other than the heir in default of appointment. Such beneficiaries, power. 
 not being proper heirs of provision, would not have a title to reduce 
 a deed of alteration subsequently executed. But their interest might 
 be pleaded by the deathbed disponee as being a preferable right to 
 that of the heir-at-law, and therefore sufficient to exclude him. The 
 t of this is best seen in examples. In the case of Ker v. Lady 
 '■ 1\< r's Trs.,(x) a testatrix, by deed executed in liege poustie, 
 convey* '1 her heritable estate to trustees, with directions to sell and 
 to pay 1 etc., and finally, to pay over the residue to such 
 
 persons as she should direct by any writing under her hand, and in 
 default of Buch writing, to pay over the residue to her next of kin, 
 according to the law of England ; and she thereafter, upon death- 
 bed, executed a memorandum of directions to trustees, disposing of 
 the residue of her said estate. On a challenge of this instrument 
 at the instance of the heir-at-law, it was held that, as the reduction 
 of the memorandum of directions, ex capite lecti, would occasion the 
 default in the event of which the property was to go to the next of 
 kin, the heir was barred, by want of interest, from maintaining the 
 challenge-. (// ) 
 
 364. (6) The unconditional revocation in express words of a pre- Effect of clause 
 viously executed testamentary disposition, has the effect of reviving ^,'- t ■";;'{ '''„ 
 the right of the heir, and with it the power of challenging deeds new settlement 
 
 uted en deathbed to his prejudice. (a) And where such a re-tuai. 
 vocation is combined with a new disposition of the estate, but the 
 revocation Is no1 expressly made conditional on the subsistence of 
 
 (>/) Clytu v. Clyne't '/;■.. ]•_' May 1887, on ly reported in 3 Sh. 530, N. E. 3G7 ; 7 
 
 l5Sh.911; 18 Mar. L839, M'L. & Rob. 72. Sh. 454; and 8 Sh. 094. 
 
 It will be observed that the objection to (y) The rule has been applied even in 
 
 for u i and purpo i to be after- cases where the lir-t executed BettlemenJ 
 
 ired, only arises in the i venl of did aol i spressly contemplate and pro- 
 
 ■ de< 'I or will vide for the case of the failure of a ub a- 
 
 • objection on the ground of quent attempt to alter its provisions. See 
 
 deathbed. Where both deed have been the ca • i of D. of Roxburghev. Wauchope, 
 
 ■ d in liegu pou tie, they will be con- and Stewart v. Neihon, infra; E. of Strath- 
 
 Btrued a tlement; WiUoel luck- mori v. Strathmore's TVs., 23 Mar. 1881,6 
 
 terlony, 8 Pat. 869; Brack v. Hogg, 6 sh. W. & s. 170, affirming 8 Sh. 680. 
 
 118. (j.) | Bi l; Com., 6th ed., p. 96; Find- 
 
 I dy I ■ Ker't '/',-.. 1 Oct. lay v. Birkmire, 1779, M. 8188; Stewart v. 
 
 1881, 6 W & s. 718. The case is previ- Neilton, 8 Feb. I860, 22 D, 646; Enkine 
 
 v. Enkine' /' 8 Di I860, 18 D 
 M L'
 
 ISO 
 
 TIIK LAW OF DEATHBER 
 
 .11 \ri ru i\ 
 
 of new 
 settlement 
 where previ- 
 ously ex< cuted 
 settlemenl is 
 Dot expressly 
 revoked. 
 
 Wlif-re heir is 
 is also a bene- 
 ficiary. 
 
 the new disposition, (a) the same effect follows; the revocation is 
 effectual; and the heir, being nO longer excluded by a subsist in g 
 disposition, is entitled to avail himself of his right of challenge ex 
 capite lecti to cut down the new disposition. (b) This result has 
 been held to followeven where there is substantial identity between 
 the provisions of the revoked and the revoking settlements. (c) But 
 where the revocation, whether in the same, or in a separate deed, 
 is expressed to be conditional, and the previously executed disposi- 
 tion is declared to be effectual in the event of the new disposition 
 proving ineffectual, the heir will be debarred of his challenge, (rf) 
 
 365. We have seen that in certain cases the interest of the 
 grantee under a disposition executed in liege poustie is sufficient to 
 bar the heir's sight of challenge ; such disposition not being ex- 
 pressly revoked by a subsequently executed will or disposition. 
 We may now add, that the implied revocation of a disposition made 
 in liege poustie, which results from the execution of a subsequent in- 
 consistent disposition on deathbed, does not operate in favour of the 
 heir. Implied revocation, which arises from the necessity of re- 
 conciling the provisions of two inconsistent dispositions, is admit- 
 ted only when the posterior of those dispositions is effectual, and not 
 where it is liable to the objection of deathbed. Where, therefore, a 
 testator leaves the revocation of a previously executed settlement to 
 be effected by legal implication*, he is considered to have virtually 
 declared that the subsistence of the second disposition shall be a con- 
 dition of the revocation of the first. In such a case, it is obvious, 
 that the heir cannot qualify an interest to set aside the deathbed dis- 
 position, (e) When the heir is himself a beneficiary under the liege 
 poustie disposition, it might be supposed that his title to reduce was 
 not excluded by it, but was rather confirmed. But here the law of 
 approbate and reprobate interposes its regulating function for the 
 
 (a) Crawford v. Coutts, 1795, M. 14,958, 
 as reversed by Lords Rosslyn, Thurlow and 
 Eldon, 14 March 1806, 5 Pat. 73; Battley 
 v. Small, 2 Feb. 1815, F.C.; Moirv. Mudie, 
 2 March 1820, F.C., 1 March 1824, 2 Sh. 
 App. Ca. 9. 
 
 (b) The recent cases of Leith v. Leith, 
 19 June 1863, 1 Macph, 949, and Cameron 
 v. West's Trs., 2 Feb. 1864, 2 Macph. 584, 
 raise the interesting question, Whether the 
 heir can found upon a revocation of an heri- 
 table provision for the purpose of challeng- 
 ing a now settlement of the estate, if the 
 effect of a simple revocation would be to 
 make the subject of the provision fall, into 
 
 residue ? Upon principle, it would seem 
 that the interest of the residuary legatees 
 is sufficient, in such a case, to exclude the 
 heir. 
 
 (c) Anderson v. Fleming, 17 May 1833, 
 11 Sh. 612. 
 
 (d) Lawrie v. Lawrie 's Trs., 22 Jan. 
 1830, 8 Sh. 379 ; per Lord Eldon in Craw- 
 ford v. Coutts, 5 Pat. 96 ; 1 Bell's Com. 
 5th ed. p. 96. 
 
 (e) Ker v. Lady Essex Ker's Trs., supra; 
 Rowan v. Alexander, 1775, 5 Br. Sup. 423, 
 Hailes, 659 ; Duke of Roxburgh v. Wau- 
 chope, 13 Dec. 1816, F.C., 25 May 1820, 6 
 Pat. 548.
 
 THE LAW OF DEATHBED. 181 
 
 protection of the ultimate intention of the testator, and declares chapt er ix. 
 that the deathbed disposition, though reducible as a conveyance, is 
 effectual as a will. If, therefore, the heir insists for reduction of 
 the deathbed conveyance, he shall have his decree, but only on the 
 condition of surrendering to the uses of the will the provisions in 
 his favour which are contained in the liege poustie disposition. (/) 
 
 366. (7) The cancellation or physical destruction of a Arcd con- Cancellation 
 taining a positive provision, is equivalent to express revocation inj^^f^^. 
 relation to the rights of the heir, because a deed which is non- ti ™ » relation 
 
 ° , .to deathbed. 
 
 existenl cannot be held to create an interest adverse to the heir's 
 title to reduce. But iii a ease where it appeared that the prior 
 ! had been cancelled without the granter's authority, and that 
 its provisions were so far similar to those of the subsequent death- 
 bed deed that the two instruments were capable of standing to- 
 gether, the Court admitted the cancelled instrument in support of 
 the other, and the Eouse of Lords affirmed the decision. (g) 
 
 367. The cancellation or destruction of a deed of revocation is Cancellation of 
 
 undersl 1 to have the effect of reviving the instrument which SjSwroS 
 
 the cancelled deed purports to revoke, in this respect the effect tion r , evives P re - 
 
 . viously executed 
 
 of cancellation differs materially from that of a written revocation, settlement. 
 The i Kerv. ErskineQi) is an authority for the proposition, 
 
 that where a settlement of heritable estate has been effectually re- 
 v >ked, even by an ambulatory >\<-^<\. a second <\rf<\ of revocation, 
 revoking the first, will not. if executed on deathbed, have the effect 
 of reviving the settlement, so as to rear up a title preferable to 
 that of the heir-at-law. Apparently the settlement is held as exe- 
 cuted of the date of the deed by which it is revived, just as a me- 
 morandum incorporated by reference in a will is held to be inserted 
 in. and to bear the date and attestation of the incorporating in- 
 strument. "A deathbed i\<n\." it was observed, "can operate no 
 effectual conveyance of heritable property, or exclude the heir-at- 
 law, unless he stands already effectually excluded by an existing 
 settlement. The testator revoking his revocation with the view of 
 reviving an extinguished deed, cannot make it operative to the 
 prejudice of the heir who had been excluded by the extinguished 
 deed."(/) But by the phj sical destruction or cancellation animo et 
 facto oi a de< d oi revocation, i ^erything t hereby revoked will be as 
 effectually revived as if the revocation had never been executed. 
 
 i/i Black v. Walton,^ Feb. 1841,8 D. Kerv. Erekine, L6 Jan. 1861, 18 D. 
 
 622. 192. 
 
 '/ v. Mure, 1 Jum 1818, I' i 18 D 196, pet Lord Pn id til Boyle 
 
 9 Jun L81
 
 L82 THE LAW OF DEATHBED. 
 
 mix. The deed of revocation being, as we assume, undelivered, can only 
 become operative by being found in the maker's repositories at his 
 death, [f if has by the Avill of the maker ceased to exist in the 
 form of a perfed and authenticated deed, it is of no more efficacy 
 than a draft, nor can it be held to offer any impediment to the re- 
 ception of the deeds which it purports to revoke, as of their proper 
 dates, (k) 
 
 (fc) See Howden v. Howden, 8 July 1815, F.C.
 
 RIGHTS OK HEIR AND EXECUTORS DISTINGUISHED. 183 
 
 CHAPTER X. 
 
 CHAPTEE X. 
 
 RIGHTS OF THE HEIR AND THE EXECUTORS 
 DISTINGUISHED. 
 
 poreal Subjects. 
 II. Incorporeal Subjects. 
 
 III. Conversion under Uncompleted Con- 
 
 tracts. 
 
 IV. Rights in relation to Termly Pay- 
 
 ments. 
 
 368. The general rule in relation to the distinction of Heritable Division of the 
 and Moveable Succession is thai which is pointed out by the legal su Jec 
 character or quality of the estate: heritable estate descends to the 
 
 heir; moveable estate to the executors. Estate may, however, in 
 certain circumstances, descend to the heir, or to the executors, in 
 a character different from that whirl) naturally belongs to it. The 
 topics to be treated under this chapter maybe divided as follows: 
 ■first, succession in relation to corporeal subjects ; second, succession 
 in incorporeal rights ; third, conversion under uncompleted con- 
 tracts; and fourth, rights of heirs and executors in relation to 
 termly payments at common law and under the Apportionment 
 Act. 
 
 SECTION I. 
 CORPOREAL SUBJECTS. 
 
 369. In relation to corporeal subjects, the distinction of heri- Things move- 
 
 ii i ii • ,i l ret ,i l l i j j- n able or immove- 
 
 table and moveable ID tic- law ol Scotland corresponds substantially aD le by nature 
 
 with the distinction of moveable and immoveable of the civil law, 
 and of general jurisprudence. Land; and the several parts and per- 
 t Inentfl of Land, and generally everything in its nature immoveable, 
 or which, though susceptible of being moved, is properly con- 
 sidered as attached to the soil, are heritable. Whatevi r in its own 
 nature, or in relation to commerce, may be regarded as a moveable 
 subject, capable of following the person and domicile of its owner. 
 oi "i being removed without injury to the subject itself, or to that
 
 184 RIGHTS OF THE HEIR AND 
 
 chapters, to which it is connected, is moveable. (a) In relation to the pro- 
 ducts of heritable property, the general rule is, that trees and na- 
 tural fruits, before separation from the soil, are regarded as perti- 
 nents of th«' estate, and are therefore heritable. But, in relation to 
 the produce of agriculture, the rule is different. Industrial fruits, 
 which are the joint product of the natural powers of the soil and of 
 the skill and capital of the agriculturist, are regarded as manufac- 
 tures, and arc moveable as to succession. (b) Growing crops there- 
 fore belong to the executor of the tenant, and not to the heir, (c) 
 But trees, although the product of industrial cultivation, are deemed 
 partes soli, and descend to the heir, because, from the lengthened 
 period requisite for the growth of plantations, they are regarded as 
 meliorations made for the benefit of the estate, (d) Trees, of course, 
 become moveable, as soon as cut down and separated from the 
 ground ; and where a proprietor, entitled to cut timber, had sold a 
 growing plantation, but died before the whole was cut down, it was 
 held that the price of the part cut down belonged to his executors. (e) 
 And it would seem that shrubs and other perennial plants growing 
 in a nursery ground for sale are to be regarded as moveable in a ques- 
 tion between heir and executor, in respect of their being a subject 
 of commerce. (/) With regard to subjects not attached to the soil, 
 they fall universally to the executor, irrespective of the considera- 
 tion whether they are held by the title of possession or by written 
 title, of which latter class ships are a well-known example. 
 Things move- 370. By connection with, or annexation to, land, things which, 
 
 aSeby™ne°^" in their own nature, are moveable, become part of an heritable 
 tion - estate. Houses, walls, and buildings, and whatever is so fixed to 
 
 them for permanent use that it cannot, without injury to the struc- 
 ture, be removed, are part of the property of the land, in accord- 
 ance with the Civil law rule, incedijicatum solo, solo cedit, 
 Effect of acces- 371. The chief difficulty in the determination of the rights of 
 hnusr/machi- h e "' s ail( l executors, in relation to corporeal subjects, results from 
 nery, furniture, the application of the doctrine of accession. Subjects which are 
 partes soli, as stones and minerals, become moveable by separa- 
 tion.^) On the other hand, building materials collected for the 
 
 (a) 2 Bell's Com. (5th ed.), 2. 16 Sh. 232; Gordon v. Gordon, 1806, Hume. 
 
 (6) Stair, 2, 1, 2; Ersk. 2, 2, 4; 2 Bell's 188. Dunghills, in questions between land- 
 Corn. (5th ed.), p. 2, and cases there cited lord and tenant, are moveable, and the 
 in note (4). suggestion of Professor Bell, that they 
 
 (c) Ibid. should be regarded as heritable in relation 
 
 (d) Ersk. vt supra. to succession, does not appear to be well 
 
 (e) Stewart v. Stewart's Exrs., 1761, M. founded. See 2 Bell's Com. 5th ed. p. 3 ; 
 5436. Lees v. Wilson, Hume, 191. 
 
 (/) See BegMr x. Boyd, 15 Dec. 1837, (g) Lady Marti Bruce v. Erskine, 1707.
 
 THE EXECUTORS DISTINGUISHED. L85 
 
 purpose of being incorporated with an heritable subject would ap- chapteb x. 
 pear not to become heritable until they have been actually used in 
 the erection of the structure.(A) Money required to complete a 
 house according to the plan adopted by the deceased, has been held 
 to be heritable destinatione in a question with a child claiming le- 
 gitime*) Certain temporary erections, not attached to the soil, and 
 susci ptible of being easily removed, have been held to be moveable 
 in a question between landlord and tenant. Such are greenhouses. 
 forcing-pits, and hot-bed frames.(&) In relation to machinery, a 
 distinction has been recognised between fixed machinery (a term 
 which comprehends everything constituting the motive power of a 
 manufactory) and the moveable machinery which is adapted to the 
 
 ial purpose of the manufacture ; and which, although connected 
 with the moving power, is susceptible of being disjoined from it and 
 removed. Professor Bel] and otherwriters class thrashing-machines 
 and corn-mills, as well as spinning machinery and looms, in the 
 category of moveable machinery.(2) The machinery requisite for 
 the application of water-power has always been regarded as fixed; 
 and steam-engines, although not so clearly connected with the land, 
 have usually been dealt with as fixtures.(m) So also the machinery 
 of a coal-work is held to be heritable by accession to the soil. (n) 
 Furniture, although attached to the building by bolts or screw-. 
 such as counters, shelves, and tables, as well as grates built into the 
 fire-places in the usual manner, are not regarded as fixtures.(o) 
 Lead* d vessels fitted to a buildingfor the manufacture of sulphuric 
 acid, and uol removable without cutting them to pieces, were held 
 fixtures, and heritable, (p) Where machinery constituting a 
 motive pow< r is attached to the soil in any of its principal works or 
 bearings, it must be dealt with as an entire subject, and therefore 
 as heritable by annexation. 
 
 372. Where property is taken on lease for mining or manu- Effect of agree- 
 facturing purposes, and the machinery required is provided by JSiftoS 
 the tenant, it is not unusual to stipulate thai he shall be entitled ' 1 I "'.' i " 
 move the machinery al the expiration of the lease. In such 
 
 M. 14,092; Stewart v. Stewart,! 761, M.64 (m) M'Gregor v. Tolmie, 13 Juni I860 
 
 Paul v. Cuthbertson, 8 .In!;. 1840, 2 D. 22 D. 1188. 
 
 Ford, 16 .in!;, 1844, 6 (n) Dirleton and Si warl voa " Exe- 
 
 D. 1816. outry ;" and Bee the Engli h ca eof Lawton 
 
 11 /■' ■ al, 7 Jan. v. Salmon, 1 H. Blackstone, 269, note j 
 
 24 D. 266. //, ; r v. Eitlop, Is Jan. 1811, F.C 
 
 (*') Malloeh v. V' Lean, 29 Jan l Vi 7. •'. a to the machinery of a thrashing-mill. 
 
 Macph M'Kniffhl v. Irving, 1806, Hui 
 
 Synu v. Harvey, 1 I Dec. 1861, 24 U2 
 
 ''• '-'" Fitcairn, I March 1828, 2 
 
 IB Com 5th i d. 758 sh. 270 N K
 
 L86 RIGHTS OF THE HEIR AND 
 
 ohaptbb \. cnscs the ,'i g ;reenierj t of tlio parties has been held to fix the charac- 
 ter of the machinery as heritable or moveable, not only in a ques- 
 tion with the landlord, but also with reference to the rights of the 
 heirs and executors of the tenant. Thus in Dixon v. Fisher (q) it 
 was hold that machinery erected by a mineral tenant upon the pro- 
 perty leased to him, and immoveable by him at the termination of 
 his lease, was moveable estate in a question as to legitim. With 
 regard to machinery of a similar description erected by the mineral 
 tenant in adjacent lands which were his own property, the rights 
 of his heirs and executors were held to be governed by the doctrine 
 of accession ; and, accordingly, the machinery (which in this case 
 consisted of engines and apparatus for the working of minerals, in- 
 cluding loose articles not physically attached to the engines, but 
 necessary for theic working) was held to be heritable in a question 
 between the heir of the proprietor and the other children claiming 
 their legitim. The application of the doctrine to questions of this 
 description appears to be precisely the same, whether the question 
 is raised in relation to the rights of heir and executor, or between 
 landlord and tenant, or in a competition as to the use of heritable 
 and moveable diligence. But it must be confessed that it is very 
 difficult to lay down any criterion for the determination of such 
 questions in practice, (r) The doctrine of Professor Bell, which 
 Doctrine of the we have endeavoured to summarise in the preceding observations, is 
 v of England. ^ n ^ e ma j n i n accordance with the rule which has long been settled 
 in the law of England, and which appears to be still regarded as 
 authoritative — namely, that machinery is to be considered as per- 
 sonal or real according as it is accessory to the trade, or to the pos- 
 session and use of a particular subject, (s) 
 Moveable sub- 373. By express destination a moveable subject may be rendered 
 
 heritaUe by heritable in a question of succession. Thus jewels, arms, and pic- 
 
 ('/) Dickson v. Fisher, 6 March 1843, 5 trade. This decision was not considered 
 
 D. 775 ; 26 Jan. 1845, 4 Bell, 286. satisfactory at the time ; and its authority 
 
 (r) In Ilislop v. Hislop, 18 Jan. 1811, has been impeached by Professor Bell (1 
 
 F.C., a large telescope, solidly fixed in a Com. 5th ed. 755). See the observations 
 
 building erected to contain it, was held to in this case in Nivenv. Pilcairn, 2 Sh. 270, 
 
 be subject to poinding, apparently on the N. E. 239. 
 
 principle that, although physically attach- (s) See Poole's case, 1 Salk. 368 ; Law- 
 ed to the building, it was not by its nature ton v. Lawton, 3 Atk. 13 ; Lord Dudley v. 
 or uses identified with the local situation Ward, Ambler, 113, where moveable ma- 
 in which it happened to be placed. But chinery used in working a colliery was 
 in the case of Arkwright v. Billinge, 3 Dec. held to be removeable by the tenant ; and 
 1819, F.C., the security of an heritable Lawton v. Salmon, 1 H. Blackst. 259, note; 
 bond was held to cover not only the build- and Elwes v. Maw, 3 East, 38, where sub- 
 ing and the steam-engine which furnished jects incident to the use of salt works and 
 the motive power, but also the working agricultural purposes were held not to be 
 machinery used for the purposes of the removeable. 
 
 destination.
 
 THE EXECUTORS DISTINGUISHED. 187 
 
 tures,(/) or even Looks and furniture, (u) may be included in an en- CHA1 ' TER x " 
 tail, or made the subject ofan heritable destination. And although 
 such subjects are not protected from the diligence of creditors by 
 force of the statute concerning tailzies, (x) there seems no reason to 
 doubt that such destinations would be binding inter hceredes where 
 the subject was of the nature of an heirloom, or where, from its 
 situation and use, it admitted of being made an accessory to the 
 heritable estate. By tacit and implied destination, materials de- 
 posited for the purposes of a structure in the course of erection, or 
 pertaining to a building accidentally thrown down, are heritable in 
 relation to succession ;Qy) but this principle is not extended to the 
 determination of questions of contract,(z) nor, as it should seem, to 
 questions in relation to the use of diligence. (a) 
 
 374. Heirship-moveables are heritable by an implied destina- Heirship-move- 
 tion, resulting from the rule of law that the heir is entitled to the 
 
 best of certain kinds of moveable goods belonging to his predeces- 
 sor, (b) It would appear that articles falling within the proper desig- 
 nation of heirlooms — e.g. . a silver cup presented to a deceased proprie- 
 tor — may pass as heirship-moveables when such are specially destined 
 to the heir.(c) But where such subjects were disponed to a person 
 other than the heir, they were held not to have retained their heri- 
 table character in a question as to the succession of the disponee;('/) 
 and in the same case a cabinet of coins and books relating thereto 
 was held not to be heirship, as not having any special interest in 
 relation to the person from whom they descended. 
 
 SECTION II. 
 IN> ORPOREAL SUBJEI TS 
 
 375. Incorporeal rights, like things corporeal, are heritable or incorporeal 
 moveable in respect of their nature or of their connection with table when 
 some other subject of which they form an integral part. All real secured on land ' 
 rights to land, whethei proprietory or in security; whether abso- 
 lute or Limited i" ;• term of years or for life, including feu-duties 
 
 /. Grant, 21 May 1859,21 D. (//) See the list of heirship-moveables in 
 
 Bopi a Minor Practicks, ed. 1734, 538; 
 
 („) Fetich v. Young, 1808, M. " Service Darg v. Darg, 23 Dec. 1808, P.O.; and 
 
 and Confirmation," App. No. 1. in Mot. Die. voce " Heir ship Move 
 (x) Cases of Veitch and Baillie, supra. 
 
 i'v) l'.r !:. 2, 2, M : 2 B( ll'a Com. p. 2. (c) Leith •■ . Letih, supra. 
 
 R //,//.,/. :MI >. 256. \d) Leith v Letih, 19 Juni 1868; I 
 
 Forbes v D 1772, 6 Br Macph 949 
 Sup
 
 incurs of tiik heir and 
 
 OH IPTEB \ 
 
 and casualties of superiority, debts heritably secured, servitudes, 
 real burdens, reversions and faculties to burden, as also leases, arc 
 heritable in succession, and descend to the heir-at-law. Titles of 
 honour and heritable offices also descend to the heir. The character 
 of a right as heritable or moveable does not depend on the nature 
 of the title or possession had by the ancestor. Accordingly, heri- 
 table rights to Land, although not made real, e.g., heritable bonds 
 on which infeftment has not been taken, are heritable in rela- 
 tion to succession, (e) And where an heritable bond was granted 
 for £500, whereof only £400 had been paid, it was held that in- 
 feftment might have been effectually taken so as to make it a 
 valuable security to the extent of the sum advanced ; and that the 
 bond was therefore heritable quoad the succession. (/) But if the 
 connection of the Tight with land is conditional, the right remains 
 moveable in the meantime ; and therefore where an heritable bond 
 contained a warrant for infeftment failing payment at the term, the 
 right, which by the infeftment would have become heritable, was 
 held to remain moveable until the term of payment, (g) Where an 
 heritable security is constituted in favour of the proprietor's credi- 
 tors, the character of the security as heritable or moveable would 
 appear to depend on considerations similar to those which deter- 
 mine the quality of an interest in a trust-estate of heritable pro- 
 perty.^) Where the lands are conveyed to the creditors by name, 
 either directly or through the intervention of a trustee, for security 
 of the payment of their debts, and the creditors or the trustee are 
 infeft, the debt would seem to be in the same position as a debt se- 
 cured by bond and disposition in security, (i) But where the lands 
 are conveyed to the trustee for the purpose of sale, and the right of 
 the creditors is merely a right to a share of the proceeds of the sale, 
 their interest in the estate is moveable, and descends to their exe- 
 cutors, (k) 
 
 376. Eights having tractus futuri temporis, by which is to be 
 understood the right to periodical payments as a separate estate, 
 and not as incident to the enjoyment of the capital, are heritable 
 as to succession. (I) To this class of rights belong annuities, whether 
 the annual payment be in the nature of a fixed sum,(m) or the 
 
 (e) Ersk 2, 2, 5 ; 2 Bell's Com. 5th ed. 
 p. 4 ; Menzies v. Menzies, 1738, M. 5519. 
 
 (./") Haulaway v. Barker, 25 May 1830, 
 8 Sh. 800. 
 
 (ff) Fisher v. Pringh, 1718, M. 551G. 
 
 (h) See this subject treated at length in 
 chapter 11 (Constructive Conversion). 
 
 (i) Cave's Crs. v. Murray, 1730, Elch. 
 ■■ Heritable ami Moveable," No. 4 ; as cor^ 
 
 rected in Smith v. Smith, 1737, Elch. ut 
 svpra, No. 6 ; 2 Bell's Com. 5th ed. p. 5. 
 
 (k) Hawkins v. Hawkins, 23 May 1843, 
 5 U. 1035 ; M'Ewen v. Thomson, 1793, M. 
 5596. 
 
 (1) Ersk. 2, 2, 6 ; 2 Bell's Com. 5th ed. 
 p. 4. 
 
 (»») See Earl of Dalhousie v. Gilmour, 
 1789, M. 15,915.
 
 THE EXECUTORS DISTINGUISHED. 189 
 
 jisufruct or life interest of a fixed capital fund, the reversion of chapters. 
 which belongs to another.(w) The husband's jus mariti in his wife's 
 heritable estate is heritable in this sense.(o) Such a right can only 
 be attached by heritable diligence ;{p) and if assigned, the right 
 transmits to the purchaser's heir-at-law or heritable disponee.^) 
 A debt is not considered as having a tract of future time merely 
 because the term of payment is postponed, although interest in the 
 meanwhile is periodically payable, nor because it is payable by in- 
 stalments. In such eases the character of the succession is deter- 
 mined by the nature of the subject. (r) 
 
 377. Debts originating in an obligation to pay money, or which Debts how 
 on other grounds are in their own nature personal or moveable, lat^i h< 
 may become heritable by a collateral security being given for them, secunty- 
 though not completed into a real right, (s) Thus personal bonds 
 containing an assignation to an heritable subject in further security 
 are heritable. (/) And a family provision, when declared to be a 
 real burden en the granter's heritable estate, will transmit to the 
 heir and aot to the executor of the legatee, if the latter lnwe sur- 
 vived the period of vesting.(w) The assignation of a lease in secu- 
 rity of a debt previously constituted, does not work a conversion 
 from moveable to heritable in a question of succession, (x) though 
 it lias been held that a debt so secured would not be attachable by 
 arrestment. (y) Again, a testamentary provision, moveable in its 
 constitution, does not become heritable in consequence of the trust- 
 or having in his settlement granted heritable security in respect of 
 I And although an accessory heritable security converts a 
 moveable into a heritable debt, yel an accessory moveable security 
 'I-- noi change the nature of an heritable debt. So a personal 
 bond of corroboration does not alter the nature of a debt heritably 
 secured.(a) 
 
 (n) Evringv. Drummond, 1762, M. 6476. i state, bul to tlic effect only of assigning 
 
 < 0, , ■.. Sinclair, IT:; 1 .'. M. the lauds for payment of the debt. 
 
 71.;. (u)Napierv. Orr, Is Nov. L864, ■) Macph. 
 
 upra. 67. 
 
 upra. Duncanv. Roe, 16 Feb. 1810, I.e. 
 
 (/•) / , Hume, '-'Ui: Hogg Watson v. M'Donald, 1794, .M. 781 ; 
 
 f. Grieve, 1807, Hume, 189; ca e of Camp- ai to the question of diligence, 
 
 bell there cited. Smith's Trs. \. Grant, 27 June 1862, 24 D 
 
 i. 6th ed. p. 6; Stair, 11 12. 
 
 2, 1. 8 2, 12. (z) Meiklam't Trs. v. Mrs Sfeiklam's Trs., 
 
 (/. / i I a er, 1749, M. 2 Dec. 1852, 15 D. L69. 
 
 5491 . I th< • ' '/ ■ Trs. (a Ei k. 2, 2, 16; Duke of Hamilton v. 
 
 •.. i/ - 1816, Hun,.. L98, to theeffeel Earl of Selkirk, 1740, M. 6664, 1 Cr. ! 
 
 of an infeftmenl in tl tailed P. 271 ; Crawv. Earl of Kellie, and other 
 
 cit( 'I in M. pp. 6660
 
 L90 RIGHTS OF THE HEIR AND 
 
 ohaptbb \. 378. The quality of personal bonds bearing interest, in relation 
 
 to the creditor's succession, is regulated by statute. By our ancient 
 
 quaiityasto ' law, personal bonds bearing a clause of annualrent, were held to be 
 - lute! 11 " quasi feuda, as having by their yearly produce something of the 
 character of permanent rights. But, inasmuch as the obligation 
 of annualrent was held to be conditional on the not payment of the 
 bend at the appointed time, such bonds were considered moveable 
 for the period anterior to the term of payment; (6) and that even 
 where interest was stipulated from the date of the bond, but was 
 not made payable until the arrival of a future term.(c) It would 
 appear that such bonds were regarded as heritable from the com- 
 mencement, where interest was by express stipulation made pay- 
 able before the term of payment of the principal, (d) By Statute 
 1641, cap. 57, revived by 1661, cap. 32, in order to enlarge the pro- 
 visions for younger children, such bonds are declared to descend to 
 children and nest of kin ; but in other respects, their character is 
 regulated by the common law ; and they are therefore heritable, 
 after the term of payment, in relation to the rights of husband and 
 wife, and questions of forfeiture, (e) By Statute 1661, cap. 51, debts 
 due on personal bonds may be attached either by arrestment or ad- 
 judication during the lifetime of the debtor ; but after his death, 
 heritable diligence is alone competent. A cautionary obligation, 
 which in its own nature is moveable, is held to be rendered herit- 
 able quoad the jus relictce of the creditor's widow, by the interven- 
 tion of a subsequent bond of corroboration bearing a clause of inte- 
 rest.(/) 
 
 Bonds secluding 379. The principle, that subjects moveable in their nature may 
 be rendered heritable by destination, is exemplified in the case of 
 bonds taken to the creditor and his heirs, secluding executors. Such 
 
 (b) See Ersk. 2, 2, 9 and 10; Smith v. laid down to be, that such, bonds are move- 
 Anderson, and other cases in M. pp. 5503- able by force of the Statute, and that the 
 5506. rights of widows and the fisk are excepted 
 
 (c) Porteous v. Veitch, 1627, M. 5463; from the operation of the Statute. 
 Hughson v. Hughson, 22 Nov. 1822, F.C. (/) Ross v. Graham, 14 Nov. 1816, P.O. 
 
 (d) See Common Agent in Ranking of The distinction which prevails in relation 
 Rarton v. Ramsay, 23 June 1825, F.C. to such bonds in reference to rights accru- 
 
 (e) See Ersk. ut supra ; and the case of ing before and after the term of payment, 
 Downie v. Downies Trs. 14 July 1866, 4 is well illustrated by the case of Gray v. 
 Macph. 1067, where a mortgage granted by Walker, 11 March 1859, 21 D. 709. Ob- 
 Parliamentary Commissioners in favour of serve, that the heritable character of per- 
 A. B., his executors, administrators, and sonal bonds, quoad the widow's rights, is 
 assigns, was held equivalent to a move- not extinguished by an action for payment 
 able bond. Exception was taken by Lord at the instance of the creditor ; Munro v. 
 President M'Neill to the statement of the Munro, 1735, Elchies, "Heritable and 
 doctrine in relation to moveable bonds in Moveable," No. 2. 
 the institutional writers; and the law was 
 
 executors.
 
 THE EXECUTORS DISTINGUISHED. 191 
 
 bonds not only descend to the immediate heir of the creditor in chapter x. 
 virtue of the express destination in his favour, hut, upon the death 
 of the heir, they transmit as heritage to the person representing 
 h'm, whether as heir-at-law or as general disponee.(^) 
 
 380. We have already noticed the chief peculiarities in the clas- Moveable incor- 
 sification of incorporeal rights as heritable or moveable. These for Actionffpro- 
 the most part depend on the effect due to the nature of the se- copyrights?" 
 curity, and to its duration. Subject to the exceptions which have 
 
 1 e -n already pointed out, it may be asserted, generally, that all in- 
 corporeal rights not secured upon landed estate, or connected with 
 it, are moveable, ami descend to executors. Eights of action of 
 every description, excepting real actions, are moveable rights in 
 this sense.(A) Beneficial interests in landed estate are heritable 
 or moveable according as the estate of the beneficiary consists in 
 the right to a specific conveyance of the subject or to a share of 
 the proceeds of it when sold.(i) It was long considered a doubtful 
 question whether copyrights and patent rights were not heritable, 
 in respect of their duration. As regards patent rights, — including 
 in that category lie. -use duties and sums reco\-ered from infringers, 
 as well as the value of the patent right itself — the point is now set- 
 tled by the case of the Advocate-General v. Osicald ,{k) where it was 
 held that tin- right of a patent invention was personal property; 
 that legacy duty attached to it; ami that such duty was chargeable 
 upon the whole profits of the invention in whatever manner accru- 
 ing. This decision virtually rules the analogous coiestions in relation 
 to the copyright of books, pictures, and engravings. 
 
 381. The distinction in the law of succession betwixt corporeal Interestsin 
 i ■ i • i . • i • i • i • estates ol 
 
 and incorporeal rights is nowhere more conspicuous than m the in- ties or partner- 
 Btance of property forming pari of a partnership estate. The right ps " 
 partner in th< oJ a mercantile company is purely incor- 
 
 d ; and the interest which a deceased partner transmits to his 
 representatives is of the same nature. That right is one and indi- 
 visible; and. having regard to the nature of the property which 
 usually fanns the bulk of the assets of trading societies, it is held 
 
 fa) Ei !:. 2, 2, 12; Statuti 1661, cap. (i) The application of this simple prin- 
 
 82; Kennedy v. Kennedy, 1717, M.6499; ciple to the construction of clauses in truBt- 
 
 /.'■• .. Re - 1 Jul] 1809, F.O., for ments con titul 
 
 a fuller exposition of this subject. A.bond and very importanl doctrine in 
 
 aeir without mention of the law of construction, which, for con- 
 
 ita h( ritable characti t a \, nil ace, we 1 
 
 i : chapter; Si echapt r 1 1 (Com tractive Con- 
 
 Kennedy v. Kennedy, •nun. rersii 
 
 (//i See M' Michael v. Queentberry'a Ext., (k) AdvoccU General v. Oswald, 'J<» May 
 
 L829,78b.24i claim of 1848, 10 D. 969, and Exchequer < 
 damaj nan! n <_ti i ti. t his landlord.
 
 L92 
 
 RIGHTS OF THE HEIU AND 
 
 rii \i- 11 i; \ 
 
 Shares, stock, 
 mid public 
 funds. 
 
 to be personal. As a consequence of the rule that the partner's 
 interesl in the estate is personal, it follows that heritable estate, 
 vested in trustees for the benefit of a mercantile company, is by its 
 destination excepted from the rules of heritable succession. The 
 lega] estate remains vested in the trustees of the firm; and the 
 right of the deceased partner, which is merely a right to demand a 
 share of its value as part of the assets of the company, is a per- 
 sonal right descending to his executors. (?) And where property 
 vested in the person of a partner of a mercantile company is proved 
 to be truly an estate in trust for the company, the beneficial interest 
 is assets of the company ; and the share or interest of a deceasing 
 partner in it belongs to his executors. (m) The succession is not 
 held to be altered by a declaration in the contract of copartnery, 
 that on the death of a partner his share shall belong to his heir ; 
 for in such cases the word heir is construed secundum subjectam 
 materiam, and means executors or heirs in mobilibus. (n) 
 
 382. Shares or stock of public companies are in the same posi- 
 tion, with regard to succession, as interests in private partner- 
 ships, (o) And, even where, by the charter of erection of a bank or 
 other public company, the stock is declared not to be subject to 
 arrestment or other personal diligence, the nature of the estate in 
 relation to succession is held to remain unchanged, (p) Govern- 
 ment stock, although generally classed with the stock of private 
 companies as an investment, is obviously of a different nature in 
 its legal relations. Strictly speaking, a fundholder is simply an 
 annuitant; foi, by the terms of the Government loans, he has no 
 right to demand payment of the principal, and can only convert 
 his right into money by a sale in the stock market. The Statutes 
 constituting the public debt declare that the annuitants shall be 
 possessed thereof as of personal estate, (q) Bank of England stock 
 is personal, in respect of the law r of the country in which the con- 
 cern is locally situated, (r) 
 
 (I) Rae v. Nelson, 1742, M. 716 ; Young 
 v. Campbell, 1790, M. 5495 ; and cases of 
 Corse v. Corse, Sime v. Balfour, and Murray 
 v. Hurray — in M., " Heritable and Move- 
 able," App. Nos. 2, 3, and 4; also Sime v. 
 Kirkpatrick, 22 July 1811, 5 Pat. 525. 
 
 (m) Minto v. Kirhpatrick, 23 May 1823, 
 11 Sh. 632. 
 
 (u) Irvine v. Irvine, 15 July 1851, 13 D. 
 1367. 
 
 (o) 2 Bell's Com. 5th ed. pp. 3, 4. 
 
 O) 1 Bell's Com. 5th ed. p. 106; Dal- 
 rymple v. Halkett, 1735, M. 5478. 
 
 (q) 25 Geo. 111., cap. 32. g 7. and sub- 
 
 sequent Acts ; and see Hog v. Hog, 1791, 
 M. 5479. 
 
 (r) In the case of Downie v. Downie's 
 Trs., 14 July 1866, 4 Macph. 1067, the gene- 
 ral principle was recognised that, in rela- 
 tion to the rights of successors, foreign 
 securities, forming part of the estate of a 
 domiciled Scotchman, are to be regarded 
 as heritable or moveable, according to the 
 lex loci rei sita?. See also Murray v. Earl 
 of Rothes, 30 June 1836, 14 Sh. 1049 ; 
 Newlands v. Chalmers" Trs., 22 Nov. 1832, 
 11 Sh. 65.
 
 THE EXECUTORS DISTINGUISHED. 193 
 
 CHAPTER X. 
 SECTION IK. 
 
 CONVERSION UNDER UNCOMPLETED CONTRACTS. 
 
 383. We proceed to the consideration of the rights of heirs and Contracts inter- 
 executors under contracts in relation to heritable property involv- of'^arty? d< "** 
 ing a conversion of the estate from heritable to moveable, in which ^ r| '» c . v mui 
 
 ' trusts. 
 
 the completion of the contract has been interrupted by the death 
 of one of the contracting parties. (s) It is necessary to premise, 
 that in the case of conversion under a contract entered into by 
 a commissioner or trustee duly authorised, the consequences are 
 the same in relation to succession as if the contract had been by 
 the d in his own name. Thus, where a fund is invested on 
 
 heritable security by the agent of a creditor acting under instruc- 
 tions, the debl will vest on the death of the creditor in his heir- 
 at-law.^) But the investment of funds by a trustee, tutor, or 
 factor on heritable security, has not the effect of converting move- 
 able estate into heritable in a question as to the succession of the 
 ward or beneficiary, because it would be contrary to equity to give 
 to the act of a trustee the consequence of effecting any alteration 
 in the character of the succession to the trust-estate ; and because 
 investments of trust property are for the greater security of the 
 immediate beneficiary, and are made in virtue of the rule of law, 
 which requires that trust property should be invested safely, ami 
 not with any view to the interests of remoter heirs, (w) So also, 
 where an heritable security belonging to a married lady was real- 
 with the intention of re-investing the proceeds, it was held 
 that the fund did nol fall under the jus mariti, although the nun icy 
 had been paid to the husband and mingled with his private funds. 
 It was observed from the I5ench, that the fund was distinctly trace- 
 able troiii the time of the marriage to the date of the action, and 
 that, as the lady bad doI done anything to abandon or impair her 
 interest or that of her children, the destination in their favour 
 could not be held to be affected by the act of her husband.(tc) 
 
 (*) With reference to the mode of try- 16 Maj 1798, I Pat. 68; Trotterv. Trotter, 
 
 ing qi ind, it would appear 6 Dec. 1826, 6 Sh. ~'l ; 10 June 1829 8 
 
 the holder of a fund, the quality of \V. & s. lay. 
 which i ■ spc ed to doubt, i not i ntitled («) Ross v. Ross, L793, M.6645; Graham 
 
 ■I of an action of v. Earl of Hopetoun, 1798, M. 6699; Won 
 
 multiplepoinding unless competing claims crieffv. MiVn, 16 July 1866, 18 D. 1286. 
 been intimated to him; Great North (x) Nisbet \. Rennie, 18 Dec. I I 
 
 land Ry. Co. ■■ . Gauld, 8 July 1868, Hume, 221. See the oh i rvation of Lord 
 
 Jusl ' ik Hop on thi point in ti 
 
 (i) Davidson ■■. Kyde, 1797, M. 6697; v. Espie, 18 D. 
 
 VOL. t, 
 
 v
 
 I .1 i RIGHTS OF THE HEIR AND 
 
 ohapteb x. Heritable property purchased on behalf of a person resident abroad 
 by his agent, without special instructions, is, by parity of reasoning, 
 held to be moveable in a question of succession.^) The executor 
 takes the estate as a surrogatum for the money paid for it. And 
 on this principle a money debt was held to belong to the executor 
 of the creditor, although the debtor had, for the greater security of 
 his creditor, taken a disposition of certain property which he had 
 purchased in his name, in respect it was not proved that the de- 
 ceased considered the disposition in his favour a security for the 
 debt. 0) 
 Heir is bound to 384 The most simple case of constructive conversion under un- 
 S^inunX completed contracts, is that of a sale of heritable estate, where one 
 ment. Executor or ^fa f the parties to the contract dies before the disposition is 
 
 is entitled to the L . . 
 
 price. executed. In this case the heir-at-law is bound to complete the 
 
 sale by executing a disposition in favour of the purchaser or his 
 heir ; but the right to the price is moveable, and descends to the 
 seller's executor, (a) In the earlier cases the judgment of the Court 
 was supposed to have proceeded to some extent upon the declared 
 intention of the seller with respect to his succession, and the ques- 
 tion as to the quality of the right of succession to the price re- 
 mained doubtful until the determination of the whole Court in the 
 
 Heron v.Etpie. case of Heron v. Espie.{b) In that case the fund in question was 
 the price of heritable subjects taken possession of by a railway 
 company under the compulsory powers of the Lands Clauses Act. 
 The price was ascertained by arbitration, and the conveyance was 
 prepared and revised by the agent of the proprietor ; but, before 
 the disposition was signed, the proprietor died, leaving a settlement, 
 which was reduced ex capite lecti. The specialties of the case 
 were all in favour of the right of the heir-at-law ; but these were 
 disregarded, and the principle asserted that the price of lands 
 sold but not conveyed belongs to the seller's personal representa- 
 tives.^) 
 
 Sale by an ap- 385. The case of Emslie v. Groat established an exception to 
 
 this rule in the case of lands sold by an apparent heir who died 
 without making up a title and conveying the property. In this 
 case the price was found to be a surrogatum for the lands, and to 
 belong to the next heir who made up titles, passing over the ap- 
 
 (y) M'Millan v. M'Millan's Exrs., 23 {b) Heron v. Espie, 3 June 1856, 18 D. 
 
 Nov. 1814, 3 Sh. 308, N. E. 217. 917. 
 
 (z) Marshall v. Lyall, 18 Feb. 1859, 21 (c) The subject of the liability of exe- 
 
 D. 514. cutors for payment of the price of lauds 
 
 (a) Chiesly v. Chiesly, 1704, M. 5531 ; sold but not conveyed, is considered in 
 
 M'Intosh v. Primrose, 1685, M. 5087 ; and chapter 72 (Order of Liability of the Real 
 
 see Currie v. Shortreid, 1818, Hume, 200. and Personal Estates).
 
 THE EXECUTORS DISTINGUISHED. 195 
 
 parent heir. (d) Where a truster destined the whole free proceeds chapter x. 
 of his unentailed lands to one person, and his moveable estate to 
 another, the price of lands sold under an uncompleted contract in his 
 lifetime was held to pass under the first mentioned destination, (e) 
 It would appear, however, that a mere contract to give security is not 
 sufficient to impress an heritable character upon a personal debt. 
 Where an heritable bond has been granted, or where the creditor 
 has adjudged in security, the debt becomes heritable, although in- 
 feftment may not have passed upon it ; but should the creditor die 
 before the bond is delivered, or before decree of adjudication is pro- 
 nounced, the debt retains its moveable quality. (/) 
 
 386. The rights of heirs and executors in relation to money due Proceeds of sale 
 under heritable securities are governed by the same general prin- JlK^eredi. 
 ciple which regulates the succession to the price of land. But in tor under a 
 
 i • i c t power. 
 
 tin- class ol cases a distinction has been recognised between the 
 s of a conversion at the instance of the creditor, and that which 
 results from a voluntary payment by the debtor. The mere re- 
 solution of the creditor to recover payment of an heritable debt is 
 not equivalent to conversion ;(</) but it is settled by a series of de- 
 cisions that the use of personal diligence, under a clause of regis- 
 tration, renders the fund moveable. (h) A charge, followed by ad- 
 judication, has the effect of reconverting the fund into heritable 
 i 9tate, in respect of the new security acquired by real diligence. (i) 
 In any case, if the estate be actually converted at the instance of 
 the creditor, as by a sale under a power in the bond, the right to 
 the price i> held to be moveable, aotwithstanding that the pur- 
 chaser was not actually vested in the subjeel ai the time of the 
 creditor's death.(&) And where an heritable estate, burdened with 
 debts, is sold by the proprietor, with the consent of the heritable 
 
 [d Groat, 25 Feb. 1817, Hume, 5571; Montgomery \. Stewart, 1666, .M. 
 
 197; "TheCourl were of opinion that the 6584; Seaton \. Seaton, 1672, M. 5572; 
 
 have been sold is a and see Douglas v. Dickson, 1751, M. 6577 
 
 able fund, l>ut only when they have (Kilkerran's report), for the opinions 
 
 old by the owner, which an apparenl pressed on this poinl in a special cusp, a 
 
 heii is cot; that, in the latter case, the distinction is taken in the case of bi 
 
 price comes in place of the lands, and thai secluding executors, which are held to re- 
 
 ' 1696 does not affect the interest of main heritable destinations notwithstand- 
 
 after I ing the use of pi n onaJ diligence ; Ba 
 
 Breadalbane'tTrs.v. Pringle, 19 Jan. tyne \. Bonnar, 1688, M. 6681; Gray \ 
 
 ! I 16 D. 859. Panton, L706, M. 5581. Mere registration 
 
 (/) Ersk.2, 2, 14; 2 Bi I I om. 5th ed. of a bond for execution does art opi rat 
 
 ,1700,M. 6587, and conversion into moveable estate ; Teaman 
 
 Wedderbx <■ v. VKenzie, 1742, v. Teaman, 1687, M. 6484, 6681. 
 Elchies, " Am tment," No. 21. (t; Reid v. Campbell, L728, M. 6588; 
 
 ifonro-v. Xonro, 1786, M. 11,857 Douglas v. Did on, 1761 M. 6677. 
 I' ■' ' Donald 1624 M. (*) Wilson v. Wilson, 29 Nov. 181
 
 96 
 
 RIGHTS OF THE IIEIK AND 
 
 CHAPTER \. 
 
 Distinction 
 where sale 
 
 I by the 
 
 creditors, the debts of those creditors who have consented to the 
 sale are divested of their heritable character by the completion of 
 the contract, although the price is unpaid, and the conveyance un- 
 executed. (I) 
 
 387. The decisions in relation to sales at the instance of the 
 debtor point to the conclusion, that the quality of the creditor's estate 
 is not affected by any proceeding upon the part of the debtor short 
 of actual payment. The transference of the debtor's reversionary 
 interest in the estate by a voluntary sale leaves the security title 
 unimpaired ; and until the creditor shall have accepted payment 
 and discharged the debt, he cannot be held to have abandoned his 
 real right, or changed the quality of his succession. Even in the 
 case of a judicial sale, the debts secured on the estate continue 
 heritable until payment of the price ; and, conversely, the produc- 
 tion of a claim for a personal debt in a ranking and sale has not the 
 effect of making the debt heritable, (m) It lias been held that the 
 seller's reversionary interest in estates sold for the payment of debts 
 is heritable both in relation to diligence (n) and to succession ;(o) 
 but on the last point the doctrine in question may require recon- 
 sideration, in consequence of the decision in the analogous case of 
 Heron v. Espie. Where a purchaser at a judicial sale has con- 
 signed the price in bank, in terms of the Statute, it would seem, on 
 the authority of the above-mentioned case of Garland, that, as re- 
 gards the interests of the heritable creditors and their successors, 
 their securities are to be held as converted into personal estate for 
 all purposes.(p) 
 Quality of sue- 388. In the recent case of Napier v. Orr it was held by the 
 
 changedby col- whole Court that the collation by an heir and next of kin of his 
 lation ' heritable interest in a succession which vested in his lifetime, but 
 
 was not payable until after his death, had not the effect of chang- 
 ing the quality of the succession in a question between the heirs 
 and executors of one of the other next of kin. The result is ob- 
 viously different where the collation is made in the form of a money 
 payment, (q) 
 
 (l) See Smith v. Smith, 1737, M. 5534, 
 Elchies, " Heritable and Moveable," No. 6. 
 In this case the purchaser was infeft, though 
 the price remained unpaid. 
 
 (m) 19 & 20 Vict., c. 79, § 102, re-enact- 
 ing the provisions of the Statute of Geo. 
 [II. Henderson v. Stewart, 1796, M. 5534. 
 
 (») Gardiner v. Spalding, 1779, M. 730. 
 
 (o) Garland v. Stewart, 12 Nov. 1841, 4 
 D. 1. 
 
 (p) The doctrine here stated has been 
 recognised in relation to actions for the 
 redemption of wadsets. See Ersk. 2, 2, 
 16. Stormonth v. Robertson, 24 May 1814, 
 F.C. 
 
 (?) Napier v. Orr, 24 Jan. 1868.
 
 THE EXECUTORS DISTINGUISHED. 111? 
 
 CHAPTER X. 
 
 SECTION IV. 
 
 RIGHTS OF HEIRS AND EXECUTORS IN RELATION TO TERMLY 
 
 PAYMENTS, AT COMMON LAW. AND UNDER THE 
 
 APPORTIONMENT ACT. 
 
 389. Although the right of the proprietor of heritable estate Arrears of rent 
 necessarily comprehends the jus crediti, or prospective interest in moveaia 
 
 the rents and profits of the estate, yet the accruing payments or commonlaw - 
 profits, after they have actually vested in the proprietor, are re- 
 garded as having lost their connection with the land, and are there- 
 fore moveable. On this principle, arrears of feu-duty, rent, or in- 
 terest due to a deceased proprietor, are part of his executry estate, (r) 
 A\ ith respect to fruits and growing crops unreaped, and rents cur- 
 rent at the date of the proprietor's death, certain distinctions have 
 been recognised which, although arbitrary in their result, depend 
 on the consideration whether the ancestor had a vested right in the 
 subject. 
 
 390. The law in relation to the distribution of fruits and termly Curreni pay- 
 payments involves two distinct cases, which we shall consider sepa- ,i 
 rately. The firsl case relates to the right of the executor in com- 
 petition with the heir-at-law or heritable disponee of a fee-simple 
 proprietor, and is regulated wholly by the common law. The 
 
 seco] id case relates to the right of the representatives of a person 
 having only a limited interest in real or personal property in com- 
 petition with the person succeeding to the reversion. In this class 
 of cases the profits of the current period of possession (if derived 
 from termly payments) are divisible under the provisions of the Ap- 
 portionment Act. [fnot payable at termly periods, they are regu- 
 lated by the common law; and ii does not appear that the rule of 
 distribution depends in any degree on the quality of the estate, as 
 hei itable or moveable. 
 
 391. I. Rights of the Executors of Fee-simple Proprietors. — subjects in the 
 Where the Biibjecl is in the natural occupation of the proprietor— as KoflheTro*" 
 a mansion-house, pleasure-grounds,. or shootings — the usufructary P rietor - 
 interest coincides with the actual possession, and vests de die in 
 
 diem. The proprietor has had the mil benefit of the subject to the 
 period of his death, and the heir is entitled to continue the po 
 siou from that period. N- right, therefore, accrues to the executor. 
 An annuity or other usufructory interest, if conditioned to be paid 
 
 71, M 5448; Campbellv. Campbell, 1748, M "'-JIT; \f a 
 '■'■■>■■' '/A". 171] M. 6462; tin v. Agneu I ■•"• M 5467
 
 l.'.s 
 
 RICiHTS OF THE HElli AND 
 
 , ii VPTBB x . 
 
 or enjoyed daily and continually, vests de die in diem, and the exe- 
 cutors are entitled to claim the profits to the date of the ancestor's 
 death.(s) Erskine lays down that, in a question between liferenter 
 ami liar, the duration of the usufructary interest in fishings, col- 
 lieries, salt-works, mills, and such other subjects, the profits whereof 
 arise Prom continual daily labour, is not governed by any legal terms, 
 hut is determinable at the actual date of the liferenter's decease. (t) 
 This principle of division is equally applicable to the determination 
 of the interest of a fee-simple proprietor in a question between his 
 heirs and executors. In a modern English case, it was held that 
 royalties, payable under mining leases, did not fall within the scope 
 of the Apportionment Act as termly payments, but vested in the 
 proprietor, according to the extent of the workings, up to the time 
 of his death, (u) 
 Rents and inte- 392. Bents and interests of heritable estate, which was fee- 
 from fee-simple simple in the person of the ancestor, are not subject to apportion- 
 estate ' ment, but are payable to the executor only in so far as vested and 
 
 unpaid at the ancestor's death. Here it is necessary to distinguish 
 between the vesting of the rents of arable farms and interest of 
 heritable debts, on the one hand, and the rents of grass farms and 
 houses on the other. 
 
 393. Subject to the exception to be immediately noticed in the 
 case of grass farms, the rents of lards vest half-yearly and termly, 
 beginning at the first legal term after the date of entry ; and pay- 
 ment is due at the same time as the right vests. The customary 
 period of entry being at the separation of the crop (which cannot 
 be held to be completed until after Martinmas), the first half-year's 
 rent, accordingly, vests and is payable at Whitsunday, the second 
 at Martinmas next ensuing. Hence executors have no right to the 
 rents which become payable at terms subsequent to the death of the 
 proprietor, — because they did not vest in the ancestor's lifetime, (x) 
 Rents payable in victual or other produce of land, if payable at 
 termly periods, are governed by the same rule as money rents, (y) 
 
 394. Interest accruing under heritable bonds at the legal terms 
 of Whitsunday and Martinmas is as rent due at those terms. The 
 executor is only entitled to arrears payable for terms preceding the 
 ancestor's death. If conventional terms be stipulated, the question 
 
 Rents of arable 
 farms. 
 
 Interest of heri 
 table debts. 
 
 (*) Ersk. 2, 9, 66 ; Bell's Prill. \ 1498; 
 and case of Dalhousie there cited, M. 15,915. 
 See sec. 4 as to annuities payable at terra- 
 Ij periods. 
 
 (i) Ersk. hi supra. 
 
 (u) St Aubyn v. St Aubyn, 1 Drew & Sin. 
 611, 30 L. J. Ch. 917. 
 
 (x) Bell's Prin. § 1499 ; 2 Com. p. 8. 
 (y) Ersk. 2, 9, 66; Baillie v. Outhbert, 
 
 1684. M. 15,900.
 
 THE EXECUTORS DISTINGUISHED. 199 
 
 is ruled by the stipulations, (s) Provisions and debts charged upon chapter x. 
 heritable estate, as well as feu-duties, follow the same rule when- 
 ever the payment is due at ternary periods, and the interest of the 
 payee does not terminate with his death, (a) 
 
 395. In the case of grass farms, the rule is different from that Rents of grass 
 applicable to arable farms. The period of entry is at or preceding 
 Whitsunday. The first half-years rent is therefore held to vest at 
 Whitsunday, being the term next ensuing the date of entry; the 
 
 il at Martinmas. But it is customary to postpone payment of 
 the rent to the terms immediately following these periods respec- 
 tively. Where, therefore, a proprietor dies between Whitsunday 
 and Martinmas, bis executors have right to the rent due at Whit- 
 sunday ami payable at Martinmas; where he survives the term of 
 Martinmas, they have right to the second half of the year's rent due 
 at Martinmas and payable at the following Whitsunday. (&) House Rents of urban 
 rents follow the same rule as the rents of grazing farms ; the rents su jec 
 are payable half-yearly at the terms subsequent to the date of entry, 
 but the right of the proprietor to each balf-} r early payment vests 
 at the term preceding and transmits to his executors, who are there- 
 fore entitled to uplift the rents accruing at the term next ensuing 
 the ancestor's death.(c) 
 
 396. Rents of land, when conventionally postponed, are in the Effectof con- 
 same situation as arrears in relation to the rights of executors. poSement^the 
 Rents postponed are held as being vested in the proprietor at the ^ t ofpa7 " 
 Legal terms, although payment cannot be demanded until the arri- 
 val of the terms stipulated. In all cases, therefore, such rents, if 
 
 Vi ted prior to the ancestor's death, are part of tho executry 
 estate, (d) 
 
 397. Rents payable by anticipation, or forehand rents, are in a Effect of pay- 
 din'ereiit position. The right in this case necessarily vests at the j"S,!.'' v ,U,,ICI " 
 term of payment, and arrears of such rents, it' payable in the ances- 
 
 (z) Kinninmound v. Rochead, 1739, M. day and Martinmas, and payable at Mar- 
 
 6415, KI'li. "Heritable and Moveable," tinmaa and the follow in:,' Whitsunday, 
 
 No. 10; Lord Daerv. Lord I In mil inn. 1740, were " conventional^ " po tponed, appears 
 
 Elch. " Heritable and Moveable," No. IE to be inaccurate, the facl being, thai these 
 
 6 Br. Sup. 695. are the customary periods of payment. 
 
 (a) 2 Bell's 6th ed. p. 8. The law is correctlj laid down by Lord 
 
 Pringle v. Pringle, 1711. U. 5419; Fullerton.p. L454. 
 
 ull -.. Kerr, 1760, M. 6480; Johnston Binnyv. Binny,28 Jan. 1820, F.O.; 
 
 \. M. of Annandale,1721, M. 16,918 : Elliot King v. Jaffray, 24 Jan. L828-, 6 Sh. 422. 
 v. Elliot, 1792, M. 16,917; Campbell v. I gy v. Carnegy'a Crs. L668, M. 
 
 Campbell, 18 Julj 1849, II D. 1427. The 16.887; Tnneev. Duke of Cordon, 18 tfo 
 
 ' ■'•■ Hunt made bj some of the judges in 1822, 2 Sh. 8, X. E. 2; Trotter v. Cunning 
 
 this case, that the rente dui at Whitsui ham 26 Nov. 1889 2D 140
 
 200 
 
 RIGHTS OF THE HEIR AND 
 
 en U'TKi; x. 
 
 Distinct ii 
 
 tween crops and 
 
 natural 
 
 w here subject 
 
 is unlet. 
 
 Effect of ad- 
 judication j>< r 
 gi . and in com- 
 petition with 
 arrestment. 
 
 Law antecedent 
 to the Appor- 
 tionment Act. 
 
 tor's lifetime, belong to his executor.(e) Where, in a grass farm, 
 the whole rent is made payable at Martinmas ensuing the term of 
 entry, if the proprietor dies before Martinmas, his executor is only 
 entitled to the half of the rent which vested ex lege at the preced- 
 ing Whitsunday. If the proprietor survive the term of Martinmas, 
 the executor is entitled to the whole.(/) 
 
 398. We have already seen that growing crops are regarded as 
 moveable property, and therefore, on the death of an heritable 
 proprietor who was in the occupation of his own estate, these 
 form part of his executry estate. (g) But the executors have no 
 right to the use of the natural grass during the remainder of the 
 term current at the proprietor's death ; for that is a fruit which re- 
 quires no yearly seed or industry. (Ji) Hay of the second crop from 
 grass seeds grown with wheat crops has been held heritable in a 
 question of succession, (i) 
 
 399. In all cases of termly payment an adjudication before the 
 legal term will carry the right which vests at that term. An arrest- 
 ment after a term will carry the rent due at that term, and an 
 adjudger after an arrestment will be postponed to the arrester in 
 relation to the termly payment in question. But a distinction has 
 been recognised between interest payable on a heritable bond, and 
 interest falling due under an adjudication. In the former case an 
 adjudication of the bond and debt is held to carry the principal sub- 
 ject and future interests, but not the arrears ; in the latter the adju- 
 dication of the debt and diligence carries the adjudication with the 
 whole accumulated sum and interest, including arrears. This dis- 
 tinction was established on the view that an adjudication was equiva- 
 lent to a sale under reversion ; and although the case of Cochrane 
 v. Bogle(F) appears to have discountenanced that doctrine, and re- 
 duced adjudication to the category of a pledge, the rule that the 
 diligence incorporates interest with the principal is well established 
 in practice, and cannot be considered to have been shaken by that 
 decision. (?) 
 
 400. II. Division under the Apportionment Act. — We have 
 to consider the right of the executor of a person whose interest ter- 
 
 (e) 31. of Queensberry v. Montgomery, 18 
 Feb. 1814, F.C. ; and see Swinton v. Gaw- 
 ler, 20 June 1809, F.C. 
 
 (/) Pctley v. Mackenzie, 1805, Hume, 
 186; Campbell v. Campbell, 1745, M. 15,908. 
 
 (g) Supra \ 369. 
 
 (h) Ersk. 2, 9, 65. 
 
 (i) Wight v. Inglis, 1796, M. 5446; M. 
 of Tweeddale v. Somner, 19 Nov. 1816, F.C; 
 Keith •■. Logie's Heirs, 3 Dec. 1825, 4 Sli. 
 
 267, N.E. 272 ; and see Gordon v. Gordon, 
 1806, Hume, 188. 
 
 (k) Bogle v. Cochrane, 25 March 1850, 7 
 Bell, 65. 
 
 (I) See 2 Bell's Com. 5th ed. p. 9, Earn- 
 say v. Brownlie, 1738, M. 5538 ; Elchies, 
 " Arljudication," 20 ; Baikic v. Sinclair, 
 1786, M. 5545 ; Ryder v. Boss' Crs., 1794, 
 M. 5549.
 
 THE EXECUTORS DISTINGUISHED. 201 
 
 minates at his death (as a lifereuter, heir of entail, or annuitant), chapter x. 
 in competition with the reversioner or successor. The rules by 
 which the interest of the executor of a lifereuter is distinguished 
 in a question with the fiar, as laid down by Erskine,(m) are identi- 
 cal with those which have already been explained in treating of 
 the right of heirs and executors of a fiar. Where the subject was 
 in the natural possession of the proprietor, the executor had right 
 to the growing crops and to the proceeds of mineral subjects, fish- 
 eries, and the like, in so far as actually realised by the ancestor. 
 In the case of annuities, whether secured on heritage or constituted 
 by personal bond payable at the usual termly periods, the executor 
 had right to the arrears of interest vested and unpaid. Eents of 
 heritable estate were understood to vest in accordance with the 
 rules formerly explained, and the executor was entitled to the out- 
 standing arrears. O) In all cases to which the Apportionment Act 
 is inapplicable, the rights of the executors of a liferenter, or other 
 person whose interest is determined by his death, are still regulated 
 by the common law, on the principles which have been explained 
 in the first subdivision of this section. 
 
 401. The rights of the executors of deceased persons whose inte- Object of the 
 rest is determined by their death, was extended by the second section Act. 
 
 of the Apportionment Act 1834,(o) a statute which appears to have 
 been framed with exclusive reference to the law of England, but 
 which was found, in the case of BridgesY. Fordyce,(p) to extend to 
 Scotland. Notwithstanding the severity of the criticisms which this 
 statute has evoked from the sages of the law,(</) it appears to us to 
 be beneficial in its operation, inasmuch as it enlarges the right of 
 the younger children of life renters and proprietors of entailed estates, 
 whose families in many cases are too scantily provided for. Al- 
 though the statute does contain expressions which have relation to 
 the law of England alone, yel its general provisions, with which we 
 are now to deal, are neither unintelligible nor inappropriate to the 
 relations ol heir and executor under our own legal system. The 
 primary question for consideration is the extent of the application 
 of the act. Two propositions, one of them of the utmost importance. 
 have been Bettled, no1 withoul some conflict of opinion and authority. 
 
 402. In the firsl place, it Is now to be deemed a settled point Actnotappti- 
 th;it the Statute does nol apply to the regulation of the interests oi Smpie eatates. 
 
 (in) Er!:. 2, 9, 64-66. See Lord Cuning] ervations 
 
 I . 2, '■', 66 ; 2 !'• U' Com. p. 8 ; in Bridget v. Fordyce, supra; those of Lord 
 
 BaiUieY. Cuthbert, 1684, M. 16,900. Justice-Clerk Hope in Campbell v. Campbell, 
 
 (o) 4 & 6 Will. IV., c. 22, § 2. II D. L440 ; and of Lord Cockbum in 
 
 i/i) Bridges v. Fordyce,7 March l ^ 1 1 6 Blaiku v, Farquharton, 111' 1467. 
 
 I . ! 1847 6 Bell, 1.
 
 202 RIGHTS OF THE HEIR AND 
 
 ohaptkbx. the heir and executor of a fee-simple proprietor. This becomes ap- 
 parent on a careful consideration of the somewhat involved phrase- 
 ology of the second section of the Statute, which is as follows : — 
 " And be it further enacted, That from and after the passing of this 
 Act all rents service, reserved on any lease by a tenant in fee, 
 or for any life interest, or by any lease granted under any power (and 
 which leases shall have been granted after the passing of this Act), 
 and all nuts charge, and other rents, annuities, pensions, dividends, 
 nioduses, compositions, and all other payments of every description in 
 the United Kingdom of Great Britain and Ireland, made payable or 
 coming due at fixed periods under any instrument that shall be exe- 
 cuted after the passing of this Act, or (being a will or testamentary in- 
 strument) that shall come into operation after the passing of this Act, 
 shall be apportioned so, and in such manner, that on the death of any 
 person interested in any such rents, annuities, pensions, dividends, 
 nioduses, compositions, or other payments as aforesaid, or in the 
 estate, fund, office, or benefice, from or in respect of which the same 
 shall be issuing or derived, or on the determination by any other means 
 whatsoever of the interest of any such person, — he or she, and his or 
 her executors, administrators, or assigns, shall be entitled to a propor- 
 tion of such rents, annuities, pensions, dividends, moduses, composi- 
 tions, and other payments according to the time ivhich shall have 
 elapsed from the commencement or last period of payment thereof re- 
 spectively (as the case may be) including the day of the death of such 
 person, or of the determination of his or her interest, all just allow- 
 ances and deductions in respect of charges on such rents, annuities, 
 pensions, dividends, moduses, compositions, and other payments 
 being made ; and that every such person, his or her executors, ad- 
 ministrators, and assigns, shall have such and the same remedies 
 at law and in equity for recovering such apportioned parts of the 
 said rents, annuities, pensions, dividends, moduses, compositions, 
 and other payments, if entitled thereto, but so that persons liable to 
 pay rents reserved by any lease or demise, and the lands, tenements, 
 and hereditaments comprised therein, shall not be resorted to for 
 such apportioned parts specifically as aforesaid, but the entire rents 
 of which such portions shall form a part shall be received and re- 
 covered by the person or persons who, if this Act would not have 
 passed, would have been entitled to such entire rents ; and such 
 portions shall be recoverable from such person or persons by the par- 
 ties entitled to the same under this Act, in any action or suit at law 
 or in equity."^) 
 
 (;■) The Act consists of three sections. sions of the English Statute, 11 Geo. I., 
 Sect. 1. which is explanatory "f the provi- c 10. does not apply to Scotland (see Bridges
 
 THE EXECUTORS DISTINGUISHED. 203 
 
 403. Rejecting the redundant phraseology, the substance of the chapter x. 
 provision may be expressed as follows :— All rents, annuities, and Apportionment 
 other payments due at fixed periods under any instrument that arises on the 
 
 • <• ^ • r.Li\ ini death of person 
 
 shall come into operation after the passing of the Act, snail be WQO se interest 
 opportioned, so that on the determination by death or otherwise {^Sj£ ,Md 
 of the interest of the person entitled thereto, he or his executors 
 shall be entitled to a proportion of the payment due in respect of 
 the current termly period corresponding to the time which shall 
 elapse from the date of the last termly payment, such proportion 
 to be recovered by the executor from the person entitled to the re- 
 version. The apportionment contemplated by the Act only arises 
 therefore upon the death of a person whose death causes the deter- 
 mination of his interest, i.e., whose interest is not transmissible to 
 his heirs. This was held to be the correct reading of the Aet in 
 Brotunt v. Amyott,(s) where Yice-Chancellor Wigram decided that 
 Statute did not apply to the case of a tenant in fee (fee-simple 
 proprietor), or provide for the apportionment of rent between the 
 real and personal representative of such person whose interest is 
 not terminated at his death. The words, "determination by any 
 other means." occuring in the immediate context, were held to limit 
 the meaning of the ^vord " death/' in such a manner as that it must 
 be understood in the sense of a death occasioning the determina- 
 tion of the interest. (0 These decisions are impliedly confirmed by 
 that of the House of Lords in Baillie v. Lockhart,(u) where it was 
 determined that the Statute applied to the representatives of an 
 heir of entail, the argument on the other side proceeding on an 
 attempt to assimilate the position of an heir of entail to that of a 
 
 dyce, supra); sect. 2 is quoted in served, " the whole scope and object of t lie 
 
 i s "That the provi- -1 & 6 Will. IV., c. 22, seems quite beside 
 
 herein contained -hull not apply to any dealing or interference with the rights 
 
 a which it shall be expressly sti- of the tenant in fee, as between him and 
 
 pulated thai no apportionment Bhall take the personal n presentative of his ancestor. 
 
 . ..r to annual sums made payable in Thai Btruck me as tho proper view when 
 
 policii ranee of any description." 1 first read the Statute, and 1 am con- 
 
 The words " expressly stip ap- finned in that impression by the decision 
 
 plied to a will, haw been held to require of Sir James Wigram, V.-C., in Broto 
 
 either an . sprees 'Hi-' ction that th< re -hall Amyott, of tho soundness <>f which I can- 
 
 l. i,,, apportionment, or Language so ex- not entertain a doubt." 
 
 .1 in thetermsof Hi'- gift that appor- («) Baillie v. Lockhart, '2:', April 1856, 2 
 
 tionment is cl< rly in ntly Macq. 258. These decisions have been 
 
 with it. [nferenci from the whole tenor aon-appli- 
 
 : , ii-i context of tho will is not sufficient ; imple pro- 
 
 Tyrell ■-. Clark, 2 prietors; and accordiii 
 
 (,) /. Imyott, 8 Hare, IT-:. I by the Hoard of Inland !.'• 
 
 /, . /;,,-. \-j. c. I;, i. ii. /// re venue in such cases, on the proporti f 
 
 ri„!., i ' In thecurrent rent corn I tthep riod 
 
 il,,. form, i ■ ■ ' ■ "^T i Jnstici M : ' the i roprietor.
 
 estate. 
 
 204 RIGHTS OF THE HEIR AND 
 
 ohaftbrx. i\ v-sim i >le ] no] >riet< >r. On the other hand, it was determined in 
 Lock v. (/c Burgh,(x) that where real estate was settled upon a 
 truant for life, with remainder over, the Act applied. 
 Application of 404. The Act appears to be applicable to the apportionment of 
 
 itafediriarasta tcrmly payments due upon investments or other personal estate,he- 
 !",',"! " onal I ween the liferenter's executor and the fiar or person entitled to the 
 reversionary interest. Thus, where a testator, after directing a fund 
 to be formed by the investing the rents of his estate in the purchase 
 of 1 >ank annuities, charged it with payment of £150 a-year to his wife 
 during her life, it was held by Shad well, V.C., that, though the £150 
 was not a continuing payment, the executors of the wife — she having 
 outlived the testator — were entitled under the Statute to a proportion- 
 ate part of the £150 a-year for the interval between her death and 
 the last preceding' yearly day of payment, (y) Dividends declared 
 by joint-stock companies, subject to the Companies Clauses Consoli- 
 dation Act, are held not to fall within the scope of the Act, as not 
 being due at fixed periods ;(s) but where the deed of settlement of 
 a joint-stock company directed that the profits should be divided 
 half-yearly, each dividend to be paid in two specified months, it 
 was held that such dividends were apportionable under the Act 
 with reference to the days on which they were made payable, (a) 
 The Act does not apply to royalties payable on minerals at so much 
 per ton, or to payments to be made at uncertain periods, (b) 
 import of the 405. It will be observed that the Statute refers to the determi- 
 
 other means" 7 nation of the interest by death or " by any other means whatso- 
 ever." What are the " other means," besides death, which may ter- 
 minate an interest, on the determination of which the apportion- 
 ment is to take place ? This question does not appear to have been 
 resolved by any authority, although there is one decision which 
 shows what does not fall within this part of the Statute. A person 
 was hired by deed to undertake " the offices of auditor and superin- 
 tending manager of the estate of another person, at a salary of £1800, 
 payable half-yearly on the 7th July and 7th January in every year." 
 The employer revoked the appointment in the middle of a current 
 year. It was held that the manager could not recover under the 
 Statute a proportionate part of the salary in respect of that portion 
 of the year during which he held the offices. The Court were of 
 opinion that the Statute applied only to cases where payment for 
 
 (x) Lock v. de Burgh, 20 L. J., Ch. 384. («) Re Maxwell's Trusts, 1 Hem. & M. 
 
 (y) Carter v. Taggart, 16 Sim. 447 ; Ward- G10. 
 
 roper v. Outfield, 33 L. J. Ch. 605. (h) 1 St Aubyn v. St Anhyn, Drew & Sm. 
 
 (z) Williams on Executors, 6th ed. p. 611 ; 30 L. J. Ch. 917. 
 781. 
 
 than death.
 
 THE EXECUTORS DISTINGUISHED. 205 
 
 the whole year must be made to some person, and did not include a chapter s. 
 payment under contract between employer and employed for ser- 
 vices where payment entirely ceased upon the determination of the 
 claimant's right to receive it. (c) The words " by any other means " 
 may possibly have relation to the case of the death of an assignee 
 of a life-interest during the lifetime of the cedent on whose life it is 
 dependent. They have been held applicable to the case of the ex- 
 piration of a term of years during which trustees were directed to 
 accumulate rents fur payments of debts, etc., with remainder to a 
 liferenter.(d) 
 
 406. Further, it will be observed, the Act speaks of rents " re- import of the 
 served by any lease," and, again, of annuities, etc., payable under ^aylbiTunder 
 any instrument "thai shall be executed after the passing of this ^^f tru " 
 
 ..r (being a will or testamentary instrument) that shall come 
 into operation after the passing of this Act." Inconsequence of 
 these words, it was long considered a subject of doubt whether the 
 " instrument " referred to was the lease, bond, etc., under which the 
 money was payable, or the deed of settlement creating the limited 
 interest at the determination of which the money was to be appor- 
 tioned. The result of the cases, as stated by Mr Justice Williams, (e) 
 is. that the Act applies where either the lease or the settlement is 
 subsequent in date to the Statute. It was ruled in Knight v. Bou<jli- 
 hjit(f) that the words of the section apply to all cases where the 
 instrument creating the life interest has been executed since the 
 passing of the Act; while, in other cases, the Court has applied the 
 Act to the apportionment of rents due under leases granted after 
 the Aei. under powers in settlements executed before the passing 
 of the Aoi.(7) The Scotch decisions, with reference to apportion- 
 ment bel ween heirs of entail and executors of the ancestor, are con- 
 clusive in favour of the latter construction. (&) 
 
 407. The chief difficulties in the application of the provisions of Campbell*. 
 the Apportionment Ad to Scotland have arisen from the arbritrary BMide ▼. -Far- 
 distinctions established by the common law in relation to the vest- SJJJJ* cn " 
 
 , Lord Stamford, is Q. B. and Bee MicMl v. Miehell, 1 Beav. a49 ; 
 
 126, 2] I... I..'.'. B. 871. And it would Wardroper v. Outfield, 33 L. J. Ch. 605. 
 
 appear that the Ad does not apply to the (</) Plumner \. Whittley, Johns. -185; 
 
 ofalei i by the act of the pro- Loci v. dt Burgh, 20 L. J. Ch. 384. The 
 
 prietor, under a power to thai effect; 01- Actdoei not apply to renl payable on ver- 
 
 Eolt, 12 Ad. \ B. 690. ball from year to year. In re Mark- 
 
 ■i St Aubyn v. St Aubyn, 1 Drew& Sm. by, 1 .My. & Cr. 484 ; Cattley v. Arnold, 1 
 
 61 1. John . & II. 661. 
 
 : 6th ed. p. Bailliev. Lockhart, supra, Campbell 
 
 781. v. Campbell, L8 Julj L849, II D. 14 
 
 Knight v, Boughton, 12 Beav, 312; Blaih », L8July If 19, 11 D. 
 
 l i ■
 
 206 RIGHTS OF HEIR AND EXECUTORS DISTINGUISHED. 
 
 ohaptkbx. ing of rents of different descriptions of property. The decisions of 
 the Court of Session in the two cases of Campbell v. Campbell and 
 Blaikie v. Farquharson (decided at the same time) appear to pro- 
 ceed upon different principles, and are in other respects unsatisfac- 
 tory. The case of Campbell (?) had reference to the rents of a grass 
 farm, where the proprietor died in the interval between Whitsunday 
 and Martinmas, and where, therefore, his executors were entitled at 
 common law to the rent which vested at Whitsunday, and was pay- 
 able at Martinmas. It appears to us that this was the rent which 
 fell to be apportioned under the Statute, because it was the rent 
 "payable or coming due" for the term current at the death of the 
 proprietor. The Court, however, considering that the object of the 
 Statute was to enlarge the rights of the executors, or younger child- 
 ren of landed proprietors, found them entitled to the whole of that 
 term's rent, together with a proportional part of the rent due at the 
 ensuing term of Martinmas, and payable six months thereafter. In 
 the case of Blaikie v. Farquharson, (k) the rents were postponed for 
 half-a-year ; and, as we read the case, the rent, which was held to 
 be subject to apportionment, was the postponed rent applicable to 
 the termly period during the currency of which the death took 
 place. This decision appears to be correct in principle. In Paul 
 v. Anstrutlier ,{V) the personal representative of a deceased heir of 
 entail was held bound to allow a deduction out of the share of the 
 rents accruing to him under the Apportionment Act, on account of 
 an annuity, payable in advance, to the widow of the heir of entail 
 represented, and commencing at the period of his death, (ni) 
 
 (i) Campbell v. Campbell, supra. had no right to repayment of a proportion 
 
 (k) Blaikie v. Farquharson, 11 D. 1496. of an annuity, payable to the widow of a 
 
 (I) Paul v. Anstruther, 15 Feb. 1864, 2 former proprietor at half-yearly terms, and 
 
 Macph. App. Ca. p. 1, affirming 1 Macph. one-half of which had been paid by ad- 
 
 14. vance shortly before the date of the de- 
 
 (m) In the same case, it was held that cease, 
 the deceased heir's personal representative
 
 OF CONSTRUCTIVE CONVERSION. 207 
 
 c-h \rxF.n xi. 
 
 CHAPTER XI. 
 OF CONSTKUCTIYE CONVERSION. 
 
 I. Converted Estate as Succession of the 
 
 T '''tor. 
 II. as Succession of the Beneficiary. 
 
 III. Reconversion or Election. 
 
 IV. Properties of Converted Succession. 
 
 408. The subject of the constructive conversion of estate in Legal relations 
 virtue of directions contained in testamentary instruments, al- of contractive 
 
 conversion. 
 
 though properly pertaining to the Law of Heritable and Moveable, 
 was. on account of its difficulty and importance, reserved for dis- 
 cussion in a separate chapter. Questions of conversion, as these 
 are presented in the Law of Scotland, resolve into competitions be- 
 f ween heirs and executors for the right of succession to trust-estate. 
 The right claimed is therefore a right of intestate succession; but 
 the relation of law which determines the quality of the succession 
 and the description of heirs entitled to succeed, is one which has 
 little or no affinity to other cases of intestate succession, — thai re- 
 lation being simply the intention of the person by whose will or 
 t rust-deed the pari icular character is impressed upon the succession. 
 
 409. The doctrine of constructive conversion is founded on the Construct 
 principle thai estate may be settled by bequest or voluntary grant, founded' on pre- 
 bo thai moveables shall be given as heritable succession, and berit- sumed intention - 
 
 ahall be given as moveable succession. The estate when so 
 givm is said to 1"' constructively converted by the settlement. 
 The conversion of testamentary estates is most usually accom- 
 plished through the intervention of trustees, who are directed l>\ 
 the deed of settlement to make the desired conversion of the estate, 
 and to pay or convey the residue in its impressed character to the 
 beneficiaries. And wherever an intention to convert by testa- 
 mentary instrumenl is clearly manifested, i1 will be carried into 
 i Heel by the Courl for the purposes of the settlement. A general 
 direction to converl is held to be applicable to all the testamentarj 
 purposes. Il no testamentary purpose i- expressed, or if an es 
 pressed purposi fail from any cause, there is no constructive con
 
 208 OF CONSTRUCTIVE CONVERSION. 
 
 ohaptkb si. version ; and the distinction of these cases, as we shall proceed to 
 show, constitutes a very important element in the doctrine of con- 
 st nu-tive conversion. 
 
 SECTION I. 
 CONVERTED ESTATE CONSIDERED AS SUCCESSION OF THE TESTATOR. 
 
 Distinction be- 410. Where heirs of the truster claim the succession as bene- 
 ficiaries, i.e., under a grant to " heirs whatsoever," " heirs and 
 under the trust, ussi-nees" (or under any general expression comprehending heirs 
 
 and by operation . ° 7 . 
 
 "i law. in moveable as well as heritable succession), the quality of the suc- 
 
 cession, and the description of heirs entitled to succeed, is deter- 
 mined by the direction to convert. But where such heirs claim 
 the succession as accruing to them by operation of law, by reason 
 of the failure of the truster to dispose of the beneficial interest in 
 the property directed to be sold, the direction to convert is entirely 
 inoperative. Accordingly, land directed to be sold for the benefit 
 of the truster s heirs will accrue to his personal representatives ; 
 but land undisposed of will devolve to the heir-at-law notwith- 
 standing a direction to convert. 
 
 Whether con- 411. I. EFFECT OF DIRECTION TO CONVERT UNDER A DESTINATION 
 
 i for the T0 h eirs AND Assignees. — The distinction between questions of 
 heirs-at-law is immediate succession to trust-estate, arising in consequence of the 
 
 to be presumed. ■ : . , . , 
 
 failure of the truster to distinguish the class of heirs to whom the 
 estate is given, and questions as to the succession of a beneficiary 
 who dies before receiving payment of his share, was first brought 
 under the notice of the Court by Lord Curriehill in the case of 
 
 Pearson v. Pearson v. Ogilvie.(a) The truster directed her trustees to dispose 
 of the residue of her estate, which consisted partly of heritable pro- 
 perty, in such way as she might afterwards appoint ; and failing 
 such appointment, then to her " nearest heirs or representatives," 
 with power to the trustees, if necessar}^ to sell her said estate for 
 carrying the trust into execution. No appointment of residuary 
 legatees having been made, the next of kin claimed the succes- 
 sion, founding on various expressions in the trust-deed, which were 
 said to indicate an intention that the power of sale should be 
 carried into execution. As the Court were of opinion that there 
 was no implied direction to sell, but merely a discretionary power, 
 it was not necessary to determine what effect should be given to a 
 direction to sell for the benefit of heirs and representatives. Lord 
 
 Opinion of Lord Curriehill observed, " The assumption that a direction to testamen- 
 tary trustees to sell the testator's heritage after his death, imports 
 
 (a) Pearson and Gardner v. Offilvie, 25 Nov. 1857, 20 D. 105.
 
 OF CONSTRUCTIVE CONVERSION. 209 
 
 a destination of the price of such heritage to his next of kin, does chapter xi. 
 not appear to me to be warranted either by authority or principle. 
 . . . Care must be taken not to confound such a case with other 
 two cases, belonging to different categories and regulated by differ- 
 ent principles. One of these is the case of the succession to the heir 
 himself ; for although he be the party who succeeds to the heritable 
 estate which belonged to his ancestor at the time of his death, even 
 although subsequent to his death it he converted into money by 
 the testator's direction, yet, as what he is entitled to demand is 
 the price, it might be held that, were he to die before receiving 
 payment, his claim for the price would be included in his moveable 
 succession."(6) The other class of eases to which his Lordship re- 
 ferred were the Exchequer eases upon legacy-duty, which we shall 
 afterwards have occasion to consider. 
 
 412. Lord Deas dissented from the opinion, and observed, that Opinion of Lord 
 as the doctrine of constructive conversion depended on the inten- 
 tion of the truster, the question, whether the succession was to go 
 
 to heirs or executors, depended simply on the circumstance whether 
 the truster had or had not directed the heritable property to be 
 sold : for it' he had. the result upon succession was the same as if 
 he had sold it himself. "I can see qo difference," he said, " in this 
 respect, between those cases which related to the immediate suc- 
 cession of the truster and those which related to the succession of 
 one or more of the beneficiaries." 
 
 413. The earlier authorities on the question arc neither very Direction to sell 
 r nor consistent. In Patrick v. Nichol,(c) a power was given proceedsto 5 
 
 to trustees to sell heritable estate for the benefit of certain parties, li " M,r ' s heirs 
 
 . . . and assignees 
 
 including the testator S nearest heirs whatsoever (tO whom the sue- operates in 
 
 on ultimately opened), and the inheritance was held to accrue .^km." 
 to the heir-at-law ; hut ii is assumed in Lord MoncreifPs note thai 
 a direction to sell, expressed or implied, would have carried the 
 estate to the executors. The same view had keen taken iii several 
 of succession accruing to lairs of third parties claiming as 
 heredes designates of the truster. Thus, in Cathcart v. Cathcart,(d) 
 where the lair- of an institute substituted to him in the succession, 
 succeeded to the i state as conditional institutes of the granter, the 
 word •■ heir" was held to apply to the heir in heritage, hut only on 
 the ground that while the trusi conferred a power of sale, a neces- 
 sity had not arisen for carrying thai power into execution. It will 
 he observed that this was not a case of succession to a vi sti d inte- 
 
 20 l>. tin. Cathcart v. Cathcart, 2G M 1880 
 
 Patrick \. Kichol 7 Dec 1888, I D. 8 si, 
 
 •JM7 
 
 Vol. |. ,,
 
 'JIM OF CONSTEUCT1VE CONVERSION. 
 
 rest under a trust deed, but of immediate succession to the truster 
 himself, under the clause of conditional institution. Again, in the 
 case of Meiklam v. Meihlam's Trs.,(e) where the succession to a 
 fund settled by marriage-contrad devolved, in terms of the desti- 
 nation, to the "heirs and successors whomsoever" of the husband, 
 it was held that the character of the succession, as heritable or 
 moveable, was regulated by the settlement, and not by the nature 
 of the actual investment of the fund. So also in the case of Angus 
 v. Angus,(f) where the parties instituted nominatim predeceased 
 the granter, heritable estate directed to be sold was held to belong 
 to the executors of those parties as conditional institutes in virtue 
 of a destination to " heirs, executors, and assignees." 
 Analogon 414. One obvious reason for extending the principle of construc- 
 
 the destination tive conversion tt> the case of heirs nominated designatively, is the 
 and°assLnees S of inconvenience of assuming a different construction of the term 
 ^beneficiary. " heirs," according as the succession happens to assume the form 
 of a substitution or of a conditional institution. In the case of a 
 succession accruing by way of substitution, the clause of conversion 
 undoubtedly affects the quality of the succession, and makes it ne- 
 cessary that the generic term " heirs "should be taken in the sense 
 of personal representatives ; and consistency requires that the same 
 construction should be given to it in the case of succession by con- 
 ditional institution. The cases appear to point to these conclu- 
 sions ; first, that effect must be given to the principle of construc- 
 tive conversion in all questions between heirs and personal repre- 
 sentatives of a beneficiary, whether claiming in the character of 
 substitutes or of conditional institutes ; and, secondly, that it is 
 impossible to distinguish between the effect of a direction to con- 
 vert for the benefit of such heirs, and the case of a direction to con- 
 vert for the benefit of the heirs of the truster himself, in default of 
 appointment. The latest case is that of Whites Trs. v. White, (g) 
 where the judgment of Lord Neaves was affirmed by the Second 
 Division. The trustees were directed to set apart £1000, and to 
 invest the same in heritable or personal security, for behoof of the 
 truster's daughter in liferent, and her " heirs whomsoever " in fee. 
 Their Lordships were clearly of opinion that, as the power of in- 
 vestment gave the trustees an option to invest either upon real or 
 personal security, it was impossible to suppose that there could have 
 
 (e) Meiklam' 8 Trs. v. Mrs Meiklam' s Trs., there was no implied direction to convert 
 
 2 Dec. 1852, 15 D. 159. In Buchanan v. within the settlement. 
 Angus, 15 May 1862, 4 Macq. 874, where (/) Angus v. Angus, 6 Dec. 1825, 4 
 
 there was a destination over to the "heirs" Sh. 279, N. E. 283. 
 
 of the legatees, the question did not arise, (g) White's Trs. v. White, 28 June 18G0, 
 
 t!i" Hon i of Lords having decided that 22 D. 1335.
 
 OF CONSTRUCTIVE CONVERSION. 
 
 211 
 
 been any fixed intention to convert. Although Lord Justice-Clerk chapter xi. 
 Inglis, in his opinion, expressly reserves the question whether a 
 direction to convert money into land would in this ease have af- 
 fected the quality of the succession, yet the observations of the 
 judges, so far as they go, support the view which has been ex- 
 pr< — '!.(//) 
 
 415. II. Effect of Direction to Convert upon Undisposed of Conversion is 
 
 presumed to be 
 
 in.(* ) — The extension of the principle of constructive con- directed for the 
 
 purposes of the 
 T. 2d ed. p. 704, 3d ed. p. 797). And if a sett!ement - 
 
 (A) It would appear that the Court of 
 mcery, in the interpretation of 
 tions to rsonal property into 
 
 ntrary, doi - not recognise 
 any distinction between cases of imme- 
 ii under the will, and de- 
 nt through a beneficiary. The due- 
 trine is thus stated in 1 White and Tudor's 
 Leading Cases, 2d ed. p. 668, 3d ed. p. 
 750 : — •• Where money lias In en bequeath- 
 ed to be invested in land, for the i 
 the id his heirs; or where, on 
 
 the marriage of the ancestor, money has 
 n deposited, either by him or by a 
 . . iii the hands of trusi 
 laid out in land, to be settled upon him- 
 self for his life, remainder to his wife for 
 her life, with remainder to their issue, and 
 in default of issue to the a d his 
 
 : or if, on the marriage of the i 
 there be a covenant on the part of a 
 Btranger to lay out money in the pun I 
 of land to 1 . and 
 
 the lie without issue. — in all 
 
 heir of t! tor, and 
 
 :1 represent ill be 
 
 entitled t" 1 1 j « - money laid out in the pur- 
 ■ of land. 
 
 Ch. 548 : 1 1 P. Wins. 
 
 204; < i. Horner, 1 P. Wins. I 
 
 ' f Warwick, '1 P. Wms. 
 
 171 ; Knights v. Vern. 20. 
 
 Since the c oyd v. Smith- 
 
 I Br. •'.('. 608," ■;■ thi learned edi- 
 ■id Tudor's Leading < ' 
 
 orate argument 
 ;•'! Eldon, then Mr Scott, it : 
 doubted tl 
 
 I, and the prodi 
 plied for a purpose v. bich 
 either w holly or partially fails, the un 
 
 • to 
 
 of kill, althouf li the land 
 
 fund, previously impressed with the cha- 
 racter of realty by the force of a direction 
 to invest it in the purchase of real pro] 
 
 Leficiary's general dis- 
 position or devise, it will he regard 
 realty; and therefore, aIthough,jwtraaj 
 
 neral direction to convert the benefi- 
 ciary's whole estate into money would suf- 
 rt the fund impressed with 
 the character of realty, yet a lapsed in! 
 in this portion of the beneficiary's succes- 
 sion will fall to the beir-at-law, agreeably 
 to the principle of Achroyd's case ; Re Tay- 
 lor's Settlement, 9 Han-. 596, G04 ; and si e 
 Salt v. Chattaway, 3 Beav. 576. 
 It is immaterial whether tin I 
 in consequence of the predecease of the 
 beneficiary, which was the case in Ack 
 v. Smithson, in consequenci ttlor 
 
 having failed to dispose of a portion of the 
 estate which be bad desired his trustees to 
 sell, or from a'ny other cause. In Watson 
 v. Hayes, 6 My. & Cr. 125, the 1 
 from the si ttlor having omitted to 'li 
 of a portion of the estate which he ap- 
 pointed to be sold. In Jessop v. Watson, 1 
 My. & K. 665, the produce of the settlor's 
 was directed to be dividi d among 
 his children on their attainment of majo- 
 rity or marriage, and the testator's only 
 child died unmarried and in minority. In 
 both ca i the pur] i i rsion was 
 
 held to have failed, and the real estate 
 found to belong to the heir-at-law. 
 
 n v. Taylor, '_' Bro. I 
 : Tayloi v. Taylor, 22 L. J. Ch. TIL', 
 and cases there cited. 
 
 In Fitch v. Weber, 6 Hare, I I 5, 
 
 tfter direct i tate, 
 
 red that her tru tei hould I i 
 I of the proceed of th fund 
 
 of pi rsonal and not ol i hich 
 
 purpose - he di cl uch procei ■ 
 
 II not in 
 
 o -J
 
 'J I -J 
 
 OF CONSTRUCTIVE CONVERSION. 
 
 fll.WI Ell SI. 
 
 version to the case of destinations to "heirs" claiming the estate 
 as personal designates, is, as we have seen, based on the considera- 
 tion i | i; ,t, in directing a conversion of his estate, the testator must 
 have contemplated the effect which such conversion, when actually 
 carried into effect, would have upon the quality of his succession ; 
 and that, in the absence of any direction to the contrary, he must 
 be held to have intended to give the converted estate to the heirs 
 to whom estate of that quality would accrue by operation of law. 
 But this consideration is inapplicable to the class of cases which 
 arc now to be examined. 
 
 416. If a truster, while directing his trustees to convert his 
 estate into property of a different quality for the purposes afterwards 
 expressed, should either inadvertently or by design, leave a certain 
 
 the heir-at-law; - 1 . " . r 
 
 1 (l share of the succession undisposed of, no inference can be drawn, 
 ian,i ,'''u1n i'..'" s<> far as that share is concerned, of any testamentary purpose, and 
 the nrxi of km. ^ ma y ^ e aggTime( } that in directing a conversion the truster had no 
 other object in view than that of facilitating the realisation and ad- 
 ministration of his estate. The same reasoning is applicable to the 
 
 If the purpose 
 fail, land 
 directed to be 
 sold results to 
 
 lapse or result /or the benefit of her heir-at-law. 
 She died without having disposed of the re- 
 sidue ; and the Court of Chancery, disre- 
 garding the disinheriting words, gave the 
 surplus proceeds to the heir-at-law. Vice- 
 Chancellor Wigram observed, that accord- 
 ing to the settled course of decisions the 
 heir could only be held to be excluded for 
 the purposes of the will ; and that, as the 
 testatrix had failed to say who should take 
 the surplus, the law must dispose of it. 
 
 The principle, that conversion only 
 changes the succession for the purposes 
 of the settlement, applies also to the con- 
 verse case of money directed to be laid out 
 in the purchase of real estate ; in which 
 case, any undisposed of interest results for 
 the benefit of the settlor's next of kin. The 
 leading case is Cogan v. Stevens, 1 Beav. 
 482, note, 5 L. J. Ch. 17, 1 Wh. & T. 803, 
 decided by Lord Cottenham, M.R. In this 
 case the testator had directed that £30,000 
 should be laid out on the purchase of an 
 estate for the ultimate benefit of certain 
 persons in succession, who all died before 
 the period of vesting, with remainder to a 
 charity. The gift to the charity was held 
 to be void under the Statute of Mortmain, 
 and the question then arose, as Lord Cot- 
 tenham states it, " Whether, when a testa- 
 tor directs money to be invested in land for 
 
 certain purposes, some of which are lawful 
 and take effect, but others fail and become 
 void, the property so given, after satisfying 
 the lawful purposes, belongs to the next of 
 kin, or to the heir of the testator. . . . 
 Upon principle, and upon analogy to se- 
 veral well-established rules in equity, it 
 would appear that there is no doubt as to 
 the proper solution of this question." And 
 accordingly his Lordship, overruling some 
 dicta of a contrary tendency, gave decree 
 in favour of the next of kin. 
 
 The question, in what quality a resulting 
 or lapsed interest descends to the legal suc- 
 cessors of the settlor's heir or next of kin 
 — as the case may be — has been much dis- 
 cussed in England. We cannot say that 
 the reasoning, upon which the quality of 
 the succession is held to be changed in the 
 person of heirs of the second order, though 
 not changed in the person of immediate 
 heirs, is satisfactory to ourselves. The 
 point has never been raised in Scotland, 
 and we do not think it incumbent upon us 
 to cite foreign authority in support of what 
 is at best not a very substantial distinction. 
 The reader is referred, however, to 1 White 
 & Tudor, p. 708, 3d ed. p. 801, for an ac- 
 count of the English doctrine. See also 
 Lord Curriehill's dictum, si/pra, § 411.
 
 OF CONSTRUCTIVE CONVERSION. 213 
 
 case of a direction to convert for the benefit of parties who fail hy chapter xi. 
 predecease or otherwise ; for when the purpose fails, the intention 
 dedncible from that purpose fails also. Upon these general consi- 
 derations, Lord Loughborough, in Collins v. Wakeman,(k) and after- 
 wards Lord Cottenham, in the important case of Gogan v. Stevens,(l) 
 decided that, in the absence of any direction as to the disposal of the 
 proceeds of real estate, and also in the parallel ease of a failure of 
 heirs under a destination of personal estate directed to be invested 
 inland, the succession remained unconverted. It is now settled, by 
 the leading case of Taylor v. Taylor, (m) that land directed to be 
 sold with a view to tin.' execution of certain purposes, results to the 
 heir-at-law, whatever be the cause of the failure of the trust purpose. 
 
 417. The principle <>i' the English decisions appears to be sound, 
 and Ave- see no reason to doubt its application to questions of the 
 right of succession to lapsed interests under Scotch testamentary 
 instruments. There is, however, an express decision to the conttary 
 
 in the well-known case of Dick v. Gillies.(n) That case has been Dick v. auue* 
 
 \y overruled on another point by the case of Lord v. Golvin;{6) ' 
 and on this point also its authority must be regarded as greatly 
 shaken 1 >ythe observations of Lord Colonsay in Neilson v. Stewart,(p) Lord Coionsay's 
 whose opinion is clearly expressed to the effect thai a mere direc- opmion ' 
 fcion to convert an heritable estate into moveable, without giving it 
 to anybody, was a mode of proceeding which could not affect the 
 interests of the heir-at-law. This dictum can scarcely be said to be 
 obiter of the case under consideration, for the main argument of the 
 executors was. thai a direction to sell (called'a " power" by some of 
 tic jmlg.-s) ought to be carried into execution in order that they 
 might receive the proceeds in their character of personal represen- 
 tatives of the deceased. 
 
 418. A similar opinion was expressed by Lord Corehouse in the Lord' 
 
 of Finnie v. T7ic <!,„„>»*. n/ the Treasury.(q) In that case the house ' s opi,,ion 
 
 Cottin* v. Wakeman, 2 Vi i. jun. 083. (n) Dirk v. Oillies, decided bythe whole 
 
 (I) Cogan v. Stevens, I Beav. 482, "> L. Court, I Julj 1828, 6 Sh. 1005. 
 J. Oh. 17 ; see previous uote. (o) Lord \. Colvin, 7 Dec. 1860, 23 D 
 
 Taylor v. Taylor, 22 L. J. Ch. 742 111. 
 ruling PhilliptY. Phillips, 1 My. & K. [p) Neilson v. Stewart, 8d Feb. I860, 22 
 
 ' ! • ' iltoftheauthoritii D. 646 ; ■ e his Lordship's opinion, p. 
 
 Lord Cran ■.'. that where there i i 666, 
 
 direction i ,andthatthe (q) Finnu \. Comms. of Treasury, 80 
 
 la shall form pari of the personal Nov. 1886, 15 Sh. 165 ee al i Murray v. 
 
 the true construction is, that the con- E. of Rothes, 80 June 1886, 14 Sh. 1049; 
 
 try Orindlayy. Grindlay'a Trs., 16 D. 85, per 
 
 oul the object and intentions of the Lord I 
 ir; butwhi 
 ti.,n d 22 I J I ; .. ; 1 1
 
 •J14 OF CONSTRUCTIVE CONVERSION. 
 
 ohaptebxi. Clown was found to hi- entitled to the resulting interest in the 
 estate, and the distinction between heritable and moveable did not 
 arise ; but Lord Corehouse, who bad taken no part in the decision 
 of Dirk v. Gillies, was clearly of opinion that a direction to sell 
 heritable estate wouldnot have the effect of converting lapsed inte- 
 rests in the succession from heritable to moveable to the prejudice 
 of the heir-at-law. (r) 
 
 SECTION II. 
 
 CONVERTED ESTATE CONSIDERED AS SUCCESSION OF THE 
 BENEFICIARY. 
 
 Moveable estate 419. I. CONVERSION OF THE BENEFICIAL INTEREST FROM MOVEABLE 
 directed to be TT m i • -.li j i r <• 
 
 invested in land into Heritable. — lo begin with the case of conversion from move- 
 heritage ^ a ^ e m ^° heritable : It is a well-known rule of law that a direction to 
 invest money in landed estate, to be settled upon the testator's heirs 
 of provision, so impresses the character of heritable succession upon 
 the estate, that not only the principal fund, but also the interest or 
 annual proceeds accruing from it, will descend to the heirs of the 
 destination. (s) We refer of course to such interest and proceeds as 
 come into the hands of trustees, which follow the estate as accesso- 
 ries, and are either accumulated with the principal, or are payable, in 
 default of a direction f to accumulate, to the heir of the destination 
 for the time being ; (t) for as to interest already paid, that must go 
 as personal estate to the executors of the heir to whom it has been 
 paid or is due.(?i) 
 in trusts for the 420. On this principle, where a testator directed his executors to 
 the purchase 11 ' purchase the estate of C. in F., or another estate of equal value, and 
 thraJstoation. to settle it upon certain heirs-male, specified in the will ; and the free 
 fund, after payment of debts and legacies, amounted to only £750, 
 which was obviously insufficient for the purpose ; and the institute, 
 after attaining majority and drawing several years' interest on the 
 
 (r This point is more fully examined son's case ; Dicksoti's Tutors v. Scott, 2 Nov. 
 
 in chapter 48 (Resulting Trusts). 1853, 10 D. 1; Moncrieff v. Menzies, 25 
 
 (s) Stair v. Stair's Trs., 29 Mar. 1825, 1 Nov. 1857, 20 D. 94. 
 W. & S. 72, affirming 2 Sh. 205, N.E. (t) See chapter 65, § 2. 
 
 182; see the second action, 2 W. & S. 414, («) In the Advo.-Gen. v. Stairs Trs., 
 
 reversing 4 Sh. 483, N.E. 488; and 2 15 July 1850, Exch. Rep., it was decided 
 
 W. & S. 614, reversing 5 Sh. 476, N.E. that legacy-duty was exigible under 36 
 
 449; Iloivat's Trs. v. Howat, 17 Feb. Geo. III. cap. 32, in respect of the enjoy- 
 
 1838, 16 Sh. 622 ; Campbell's Trs. v. Camp- ment by an heir of entail of the interest 
 
 bell, 30 June 1838, 16 Sh. 1251 ; Macpher- and proceeds of trust-money directed to be 
 
 son v. Macpherson, 11 June 1852, 1 Macq. invested in land, as on an annuity for life 
 
 243; Sitwell v. Barnard, Ves. 520, refer- of the annual amount of such interesl and 
 
 red i- by Lord Si Leonards in Macpher- \ n ceeds.
 
 OF CONSTRUCTIVE CONVERSION. 215 
 
 above sum, died, leaving a daughter, who claimed the succession as chapter xt 
 his executor; the Court repelled her claim. (x) and adjudged the 
 fund to belong to the heirs who were entitled to succeed to the en- 
 tailed estate under the destination, on the ground that the money, 
 so long as it remained in the custody of the trustees, was a surro- 
 gatum for the landed estate which the testator had intended to 
 givc.O) 
 
 421. It is uot by any means certain that a mere direction to Direction to in- 
 invest trust money upon heritable security would impress the qua- ^ur% does not 
 lity of heritable succession upon the beneficial interest. There is q^fy f e the 
 clearly room for a distinction between the cases of a direction to succession. 
 purchase land and a direction to invest upon heritable security. 
 In a question of intention, the object of the proposed investmenl is 
 not to be overlooked. Heritable security is the recognised legal in- 
 vestment for trusl money. Such an investment, if made by the 
 trustee in the ordinary course of administration, would not have 
 any effect upon the succession to the estate : nor do we think that 
 any good reason can be assigned for giving a testamentary effect to 
 a direction to a trustee to invest the trust-funds in the manner re- 
 quired by law. It has been decided that a direction to invest upon 
 heritable security, "for securing" payment of an annuity, leaves 
 the fund in the condition of personalty. (a) It was also held, by a 
 unanimous judgmenl of the Second Division,(a) that a direction to 
 invesl money in heritable or personal security led the succession 
 unaltered, on the ground that an alternative direction had only the 
 force of a power, although the trustees had defacto lent the money 
 on a bond and disposition insecurity. Lord Justice-Clerk Inglis 
 observed, thai he was not prepared to admil that even an express 
 direction to invesl trust-funds on heritable security would have 
 fixed the term "heir whomsoever''" to mean heir in heritage.(fc) 
 The recenl case of Romanes \. Riddell,(c) finding that a direction 
 to invesl in heritable security changes the succession from move- 
 able to heritable, can scarcely he regarded as a final settlemenl of 
 the question; and considering the injurious social consequences 
 which musl result from the recognition of such ;i rule, and the ini- 
 
 L6 Feb. 1834 ordi r that Buch ;i direct ion should have the 
 166. ill', i i ag the fund uei itable, there 
 
 i I must 1"- an : inatioD of the i 
 
 in tin- particular sum. 
 ■ ded ill' doctrim H u kite, 28 June I860, 22 D. 
 
 ' 
 . ity for th 22 I ». 1838. 
 
 ii<>ii. /' /. I 
 
 . ; i. 1842,4 P 
 ■ in
 
 •J 1 6 
 
 OF CONSTRUCTIVE CONVERSION. 
 
 CHAPTER XI 
 
 Land directed 
 Id de- 
 scends as | : - 
 sonalty. 
 
 Implied direc- 
 tion has the 
 same effect as 
 express. 
 
 probability that it can ever represent the intention of the testator, 
 we trust that the question of the effect of such a direction may be 
 again considered on its merits. 
 
 422. II. Conversion of the Beneficial Interest from Herit- 
 able into Moveable. — No proposition in the law of conversion is 
 better established than that a direction to sell operates a conver- 
 sion of the beneficial interest from heritable to moveable. The rule 
 in question does not depend upon any technical consideration, but 
 is, in the proper sense, a rule of construction. Where a truster 
 directs, or expresses a wish, that his property should be converted 
 into money, and the proceeds either divided into shares or appli- 
 ed in the payment of legacies, the effect of a strict compliance 
 with the direction is to put an end to the trust, and to vest in 
 each of the legatees a certain sum of money, which, in the event of 
 his death, descends by the ordinary rules of succession to his per- 
 sonal representatives. In the case we put, the property is actually 
 converted. It is said to be constructively converted where the sale 
 or investment directed by the testator has not been actually accom- 
 plished in the lifetime of the beneficiary, and where therefore the 
 quality of the beneficiary's succession is fixed, not by the actual 
 situation of the estate, but by the terms of the settlement. In 
 such a case, equity forbids that the quality of the succession should 
 be contingent on the actual accomplishment of the conversion, 
 which may depend on the degree of diligence exercised by the 
 trustee, and upon other elements which do not enter into the tes- 
 tator's scheme of disposition. 
 
 423. From such considerations the maxim is deduced, that con- 
 version takes effect from the time the direction is binding on the 
 trustee, without regard to the period of its actual execution. (d) 
 Further, as the change in the quality of the succession flows from 
 the intention of the testator, that intention will be effectual accord- 
 ing to the ordinary rules of construction of testamentary instruments, 
 in whatever form it may be expressed. Thus, if the purposes of a 
 settlement impose upon the trustee the duty of realizing the estate 
 and dividing the proceeds, the character of the succession in the 
 person of the legatees is changed as a matter of fact by a payment 
 in money, and is constructively held to be changed if a money pay- 
 ment is due. A purpose of conversion is implied wherever there 
 is an express direction to sell, although, but for such direction, the 
 property might conveniently and with advantage have been convej'- 
 ed specifically. 
 
 {d) Durie v. Coutts, 1791, M. 4624; 
 
 Wilson v. Smart, 31 May 1809. F.C. ; 
 
 on v. Ramsay, 1780, M. 759, Hailes, 
 
 855; Ramsay v. Lady White, 26 June 1833, 
 1 1 Sh. 786 ; Angus v. Angus, 6 Dec. 1825, 4 
 Sh. 279, N.E. 283.
 
 OF CONSTRUCTIVE CONVERSION. 217 
 
 424. In order that a trust may have the effect of an implied chapter xi. 
 direction to sell, it is not enough that it should appear that the tes- p owerinter . 
 tator contemplated that the power of sale should he carried into ] , ; v, ; ,la<an im - 
 
 T -, TT , . plied direction 
 
 execution. It must appear, as Lord Westbury observed (ad« ipf ing where the exer- 
 the language of Lord Fullerton), that the exercise of the power is power is indis- 
 indispensable to the execution of the trust; or, as in another pas- executiono/the 
 . that the trust is imperative, and not optional. (e) trust - 
 
 425. In the consideration of the question, whether the purposes Presumption for 
 of the settlement impose upon the trustees the necessity of selling ^hereestete 
 in order to effectuate its provisions, the circumstance that the divisibl ® 
 
 i amongst a great 
 
 settlement contemplates the division of the estate amongst a great number of 
 number of objects, although not conclusive of the question, is always 
 an important clement ; and in certain cases may even he sufficient 
 toiinpart to a power of -ale the force of an express direction.(/) The 
 of Weir v. The Lord Advocate(g) affords an excellent illustration 
 of the application of this doctrine. In this ease, the primary pur- 
 ttlement was the payment of certain pecuniary lega- 
 to a great number of objects, some of which were given abso- 
 lutely, others to the legatees in liferent and to their children in 
 and the residue of the estate was made divisible amongst the 
 legatees in the proportion of their respective legacies. It was held 
 that such a division could not he accomplished without the realisa- 
 tion of the heritable securities in which the truster's funds were in- 
 vested; that the estate was converted by the will; and consequent- 
 ly, that tin- claim, which was for repayment of legacy-duties, ought 
 to he repelled. (7/) As regards conditional trusts, it may well be 
 doubted, notwithstanding Lord Westbury's dictum in this case, 
 whether the quality of the succession can he held to he affected by 
 tip- emerging circumstances which determine the condition. 
 
 426. Under the former revenue laws, by which real and heritable Le-acy-duty 
 
 i i . f .i cases: to what 
 
 succession were exempted from duty, it was frequently necessary to 
 determine whether such estatedid no1 fall to he treated as personal authontatlve - 
 succession by reason of its constructive conversion under a testamen- 
 tary instrument. Doubts have been expressed as to the authority of 
 
 j. Blackburn's Trs., 3 April version of the estate may hen b( regarded 
 
 1-17. per Lord Fullerton, pp. :;■_'. :;:; of to thi execution of the 
 
 Rep. ; Buchanan ' 1 ■"■ May tru t, yet, in point of fact, the estate never 
 
 l v '.j. I Macq. '-'>~\. 87 Lord is cob ted the division having actu- 
 
 bury. ally been mad aing heritable 
 
 (/) Adv.-Qin. v. Blackburn's Trs., supra; bonds; and this without any view of evad- 
 
 ' .. 1 I I ». 686, 1 in" the legacy-duty, for the duty was paid 
 
 760. w ithoul question, and the claim for i 
 
 il eir v. J tit 22 Juni tition - [\i< at to the di tribu- 
 
 ph. 1007, Hon i ite. 8 uch for the value 
 
 Although, in a legal on- of the pro] lity."
 
 is 
 
 OF CONSTRUCTIVE CONVERSION. 
 
 rn uti'i; SI. 
 
 the revenue cases, in relation to questions affecting succession. (*) But 
 "on the simple question, whether a certain provision in a deed of 
 settlement expresses arj intention to change the quality of the suc- 
 cession, the authority of the Exchequer cases seems to us to be di- 
 rectly in point. The Statutes impose a duty upon the residue " of the 
 monies to arise from the sale, mortgage, or other disposition of any 
 real or heritable estate directed to be sold, mortgaged, or otherwise 
 disposed by any will or testamentary instrument." (A*) The ques- 
 tion arising upon the construction of these Acts is, whether the will 
 or testamentary instrument contains expressly or by implication a 
 direction to sell, which, as we have seen, is precisely the point upon 
 which the quality of the succession, as heritable or moveable, hinges. 
 This estimate of the bearing of the cases derives support from a re- 
 mark of Lord Brougham(Z) in a leading Exchequer case, where, 
 after observing that if the instruments, taken as a whole, amounted 
 to a direction to sell the heritable estate, it was to be dealt with as 
 money at the testator's death in all respects, he adds, that by that 
 criterion must be determined " both the rights of private parties, 
 with which we have nothing to do except by way of argument and 
 illustration, and the rights of the Crown." (w) 
 Construction of 427. However, it must be admitted that the Courts of Ex- 
 JSSifaMve. chequer in England and Scotland have extended the doctrine of 
 nue and succes- constructive conversion to cases in which it is difficult to suppose 
 
 sion cases. ( , x x 
 
 that the quality of the estate could be altered in relation to the 
 right of succession. Keeping in view the criterion of Lord Fuller- 
 
 («) Thus, in White v. White, Lord Jus- does not occur here — I mean the precise 
 
 tice-Clerk Inglis said, " The reference to 
 the cases under the Revenue Statutes 
 seems to me perfectly worthless. The ex- 
 pressions in the judgment of Lord Neaves 
 (who delivered the judgment of the Court 
 in The Adu.-Gen. v. Hamilton), when taken 
 in connection with the case be was con- 
 sidering, are quite easily explained. Ques- 
 tions under the Revenue Statutes are not 
 whether the subjects are heritable or move- 
 able. In these cases all turns on the ex- 
 pression of the trust-deed, whether there is 
 a direction, or something equivalent to it, 
 to sell, mortgage, or otherwise dispose of 
 heritable subjects, so as to convert them 
 into money," 28 June 1860, 22 D. 1335, 
 1339. And the observation of Lord Colon- 
 say, in Buchanan v. Angus, is to a similar 
 effect : — '■ I am not, however, disposed to 
 place my opinion entirely on the result of 
 the Exchequer ca lu there is an 
 
 element introduced into these cases thai 
 
 does not occur here- 
 phraseology and meaning of the Revenue 
 Acts;" 13 Mar. 1860, 22 D. 979, 981 ; nom. 
 Buchanan v. Young. 
 
 (k) 48 Geo. III. c. 149, Sch. Part 3; 
 and see 55 Geo. III. c. 184, Sch. Part 3. 
 
 (I) Adv.-Gen. v. Williamson, 16 March 
 1843, 2 Bell, 89, affirming 23 Jan. 1840, 
 Exch. Rep. 
 
 (m) In the Adv.-Gen. v. Blackburn's TVs., 
 3 April 1847, Exch. Rep. p. 35, Lord Ful- 
 lerton, in reference to the succession cases, 
 said that the same rule of construction by 
 which a power was in that Court held 
 equivalent to a direction, had been applied 
 in our practice in cases of a different kind, 
 but involving the same general principle. 
 And the applicability of the Exchequer 
 cases to the illustration of questions on 
 succession was very forcibly pointed out 
 li\ Lord Deas in Gardner v. Ogilvy, 25 
 Nov. 1857, 20 D. 105.
 
 OF CONSTRUCTIVE CONVERSION. 219 
 
 ton, adopted by the House of Lords, we may assume that a discre- chapter xi. 
 tionary power, as distinguished from a direction, has uo convertive 
 operation. Such powers are frequently given to provide for the 
 payment of debts out of the estate in case of necessity, and are 
 quite compatible with an intention to preserve the estate. (n) It is 
 clear, therefore, that the cases of Simcox and Hamilton, in which it 
 was held that if the trustees had an arbitrary discretion to sell, the 
 incidence of legacy-duty was determined by the event, are of no 
 authority in questions as to succession. (o) Where the direction is 
 not to sell unless with the consent of the beneficiaries, there is no 
 conversion unless such consent be given.(p) 
 
 428. A power given to trustees to sell heritable estate and to construction of 
 "pay over" the residue is not conclusive evidence of an intention "^J",^' 
 to convert the estate into money; and therefore, even in a question ponee," etc 
 as to legacy-duty, a power so expressed was held not to have the 
 force of ;i direction where the trust was tor payment of the whole 
 residue of the estate to one residuary legatee, and the power was 
 not granted with any special reference to the ultimate purposes of 
 the trust. (q) A for/tori, a trust of heritable and moveable estate, 
 with a power of sale for payment of debts and legacies, and an 
 ultimate direction "to dispone, assign, and pay over" to one re- 
 siduary legatee and his heirs, does not alter the legal order of suc- 
 C( -.-ion ; for the words of disposition fall to be construed applicando 
 singula singulis : the heritable property is to be disponed, and the 
 moveable to be paid over.(r) The case of S^petrs,^) where trustees, 
 intrusted with a power of sale, were directed, after payment of an- 
 nutiee ami provisions to the grantor's children, " to make payment 
 of, or dispone, convey, and make over." the residue to the truster's 
 eldest son, and hi- heirs or assignees, was, on similar principles, 
 decided in favour of the heir in heritage, on the ground, as Mated 
 by Lord Presidenl Boyle, that there was "a total want of any pro- 
 
 (n) Oath ' ieart, 25 May 1830, (/.>) Gray's Trs. \. Robertson, 19 June 
 
 8 M-. 808: Sinclair?. Traill, 'J7 Feb. 1*40, 18G:J, 1 Macph. 936. 
 2 1». 694; Strachan \. Mowbray, 21 Feb. (</) Adv.-Gen. v. Smith, Exch. Rep.; 
 
 L848, 6 I'. 687; Grindlay v. Grindlay's ami 11 l>. 585; Bee Lord Rutherfurd's 
 
 16 \>. -1 ; Adv.-Gi n. \. opinion, pp. :;•'/, '■'>! ; affi i. 16 June 
 
 8mith,l Mar. 1862, 14 D. 586, Exch. Rep.; 1854, I Macq. 760; Somen Trs. v. 
 
 u v. Burrell, 14 Di c. L825, 1 Bh. 81 I. I 6 Julj L859, 2] 1». 1 1 is. 
 
 X. E. -17. Cathcart \. Cathcart, 26 Maj L830, 
 
 . I W. II. ,v s Bh. 808; and Bee Buchanan v. Angus, 
 
 G, Tl'o Adv.-Gen. \. Hamilton, 22 Feb. L6 Maj 1862, I Macq. 874; Ramsay v. 
 
 ■I • , . . Lady White, 26 June Is:;:;. 1 1 si 
 •'. M. & Wei. 120. Bet 22 I ». L840 per 21 N I860, \ ■ I' 
 
 Jiord -In jtici Clerk 1 i 81 . 
 
 1791. M. 1624
 
 220 
 
 OF CONSTRUCTIVE CONVERSION. 
 
 OH IPTEB SI. 
 
 Power 
 
 with direction 
 t.> apply the 
 ■■ proceeds " 
 
 Power to sell 
 "if necessary." 
 
 Result of the 
 
 authorities upon 
 implied direc- 
 tions. 
 
 vision for dividing the proceeds of the lands and personal estate 
 embraced in the trust, and that no individual except the eldest 
 son was created a beneficiary under it." 
 
 429. In Grindlay v. Grindlay's Trs.,(£) a power of sale was 
 given to trustees for payment of debts and legacies; and the ulti- 
 mate direction was to hold and possess the residue, to give- the life- 
 rent of it to the truster's widow, and, in the event (which happened) 
 of no children being left, to sell the wdiole property and effects, 
 heritable and moveable, and to apply the " free proceeds" to reli- 
 gious purposes. By a codicil the truster declared — " I hereby re- 
 voke the destination of residue under purpose lastly, and now leave 
 the entire free proceeds to my said wife." Lord Anderson was of 
 opinion that the, terms of the codicil did not operate a revocation 
 of the direction to sell. But on a reclaiming note, the First Divi- 
 sion held that the direction in question was auxiliary to the pur- 
 pose of distribution amongst religious institutions ; and that, as 
 the purpose of the codicil was a bequest to one beneficiary, and as 
 the contemplated sale was no longer necessary for the accomplish- 
 ment of that purpose, and might even be prejudicial to the party 
 whom the testator intended to benefit, the direction was no longer 
 binding. It w r as accordingly found that the land and other herit- 
 able subjects conveyed by the trust-deed in question, w T ere to be 
 deemed and held as heritable subjects in all questions relating to 
 the widow's succession, (w) 
 
 430. The addition of the w r ords " if necessary" to a power of 
 sale, rather militates against the supposition of an absolute inten- 
 tion to convert ; for the necessity is held to refer to payment of 
 debts, and the like. (as) In Buchanan v. Angus, (y) where the power 
 was qualified by the words " if necessary," and the ultimate direc- 
 tion w T as to " pay over" the estate, the Judges of the First Division 
 of the Court considered that the intention of the testator was that 
 the produce of his estate should be divided between the benefi- 
 ciaries, and therefore held the estate to be moveable ; but the judg- 
 ment was reversed by the House of Lords, on the ground that the 
 terms of the deed of settlement were not incompatible with the 
 supposition of a purpose of specific conveyance. 
 
 431. The import of the cases upon implied directions may be 
 
 (t) Grindlay v. Grindlay' s Trs., 8 Nov. 
 1853, 16 D. 27. 
 
 (w) 16 D. 37. 
 
 (a;) Gardner v. Ogilvie, 25 Nov. 1857, 
 20 I). 105; Strachan v. Mowbray, 21 Feb. 
 1843, 5 D. 688. In this case the contexl 
 
 showed an intention of keeping up the 
 estate in the family. 
 
 (y) Nom. Buchanan v. Young, 13 March 
 1860, 22 D. 979; reversed, 15 May 1862, 
 4 Macq. 374.
 
 OF CONSTRUCTIVE CONVERSION. 221 
 
 stated to be, that where a power of sale is given with a view to chapter xi. 
 the realisation of the estate and the distribution of the proceeds 
 amongst the beneficiaries, and that at such times or under such 
 circumstances that the trust cannot be executed without selling, 
 such a power falls to be construed as a direction to sell, and has 
 the effect of mobilising the succession in the persons of the bene- 
 ficiaries, or their personal representatives. (z) 
 
 SECTION III. 
 RECONVERSION OR ELECTION BY THE BENEFICIARY. 
 
 432. In point of principle, it is clear that, as the omission on Act of the trus- 
 
 top Ciiiiiit >t ;ilt cr 
 
 the part of the trustee to effect the conversion of the trust-estate the quality oi 
 
 s the force of the truster's direction unimpaired, so, on the or^fihe Sue- 6 ' 
 other band, the actua] conversion of the estate by the trustee, cession t0 it - 
 whether in pursuance of a power or on the ground of supervening 
 ssity — e.g, where the free funds are insufficient for the pay- 
 ment of debts — will not alter the quality of the succession. («) It 
 has been decided in several of the Exchequer cases that the inci- 
 dence of legacy-duty does not depend upon the actual situation of 
 the estate at the expiration of the trust ;(b) and a fortiori it may 
 be assumed thai the rights of the beneficiary's heirs and executors, 
 while the estate remains in the hands of the trustees, depend solely 
 upon the nature of the succession as fixed by the testamentary in- 
 strument. ('•) An heir in heritage, burdened with payment of money 
 provisions to younger children, is a trustee for their interests; and 
 therefore, although he assign heritable bonds in lieu of a payment 
 in money, the interest of the younger children will continue move- 
 able, and will descend to their executors. (d) 
 
 433. The succession of minors, as regards heritable property, "Where trustees 
 ... . , , ' , . . . . ,' are directed to 
 
 JSarily Hows m the cnanneJ Ol law. and is not Subject to the purchase heri- 
 
 testamentary disposition of the minor. Accordingly, it is though.1 aminor,whether 
 
 (z, See Ramtay v. White, 26 June Is:;::, pul ory ales, 8 Vict. cap. 19, \ 67-8; Pet. ^"g 
 
 11 Sh. 786; Adv. -Gen. \. Williamson, L6 Blair's Trs., II Feb. 1852, II D. 196. sion in money. 
 
 Mar. 1843, 2 Bell, 89, and 23 Jan. 1840, (b) Adv.-Oen. v. Williamson, 23 Jan. 
 
 Rep.; Adv.-Gen.v. Blackburn's Trs., L840, Exch. Rep.; L6 March 1848, 2 Bell, 
 
 :: April 1-17. i: eh. Rep.; R< Ramsay's 89; Idv.-Qen. v. Anstrutker, 2 Jul] L842, 
 
 '/v.. 2 «'r. M. & I.'. 224, note ; and other Exch. Rep.; Adv.-Gen. v. Blackburn's Trs., 
 
 cited in this cha] - April 1847, I 
 (a) Wauchopev. Wauchope, 14 June 1787, Weiklam's Trs. v. Mrs Meiklam's Trs.. 
 
 I I St. & Pat. 200; Davidson v. Kyde, -2 Dec. L862, L6 D. 169; Nisbetv. Rennie, 
 
 IT'.iT. M. 6697; Berfordv. Brown, 1 June is Dec. L818, Hume 221. 
 
 Grayv. Walker, II Mar. Scott v. Scott, 26 June L846, 8 D. 
 
 21 D. 709. Seethe provisioi 
 
 Clfl ' ' ' tO l "in-
 
 222 OF CONSTRUCTIVE CONVERSION. 
 
 m.M'TKH xr. that, in the rase of a direction to purchase an estate for a minor, 
 the quality of the succession would no1 he altered by the election 
 of the latter to take payment of the legacy in cash, but would still 
 be regulated by the ancestor's settlement. In Scott v. Scott, (e) a 
 husband bound himself by marriage-contract to lay out and secure 
 £5000 to bis wife in liferent, and the children of the marriage in 
 fee. lie died without laying out the money, and his heir, in im- 
 plement of the obligation, assigned two heritable bonds for the 
 amount to the widow and children, on which they were infeft for 
 their respective interests. It was held that the share of a child 
 who died in minority was moveable as to succession, on the ground, 
 as stated by the Lord President and Lord Mackenzie, that an option 
 given to invest in heritable or moveable security could not affect 
 the succession, and that the rights of heirs were not to be altered 
 or modified by the operations of parties in the position of adminis- 
 Whethera trators. However, it has still to be determined, in the case of a sale 
 
 minor can elect r> i • , i -\ , , i ± ± i • c a • 
 
 to take the spe- of heritable estate by a trustee under a power, if payment m money 
 estate in place of * s maf l° to a minor beneficiary, whether that will not change the 
 proceeds of sale, character of his succession. It would seem that, as a minor pos- 
 sesses the testamenti /actio, the fact of his dying intestate, after 
 having had the money paid to him in terms of the will, is pre- 
 sumptive of an intention that he intended to leave the money to 
 bis next of kin. 
 Conversion by 434. The conversion of a lunatic's estate by his curator will not 
 
 lunatic. in ordinary circumstances affect the succession ; and so it was held 
 
 in the case of a compulsory sale of land belonging to a lunatic pro- 
 prietor, under the powers of an Act of Parliament. (/) But the 
 conditions of the question are materially altered when the sale is 
 carried through at the instance of creditors, or even by the curator 
 himself, under judicial authority, upon the ground of legal neces- 
 sity. The late Lord President,^) in Moncrieffv. Miln, accordingly 
 reserved his opinion as to the disposal of surplus funds arising from 
 a sale under such circumstances. (A) 
 
 (e) Scott v. Scott, supra. personal property of lunatics has been ap- 
 
 (/) Moncrieff v. Miln, 16 July 1856, 18 plied, under the authority of the Court of 
 
 D. 1286; Kennedy v. Kennedy, 15 Nov. Chancery, in ameliorating the condition of 
 
 1843, 6 D. 40. the real estate — e.g., in paying off mort- 
 
 (g) Lord Colonsay, 18 D. 1295. gages (Oxenden v. Lord Compton, 2 Ves. 
 
 (h) It was observed by Lord Eldon (ex jun. 74), in necessary improvements (Ser- 
 
 parte Phillips, 19 Ves. 124), that if it was geson v. Sealey, 2 Atk. 414; Dormers case, 
 
 for the advantage of a lunatic, whose real 2 P. W. 262), repairs, or fines for renewals 
 
 estate was embarrassed by debt, the Court of leases or admissions to copyholds (ex 
 
 would authorise the Bale of the estate rather parte Grimstone, Amb. 708; Re Badcock, 4 
 
 than allow the personalty to be exhausted; M. & Cr. 440). We may observe that in 
 
 and it appears that in various cases the the latter case the judgment authorising
 
 OF CONSTRUCTIVE CONVERSION. 223 
 
 435. In the case of Emslie v. Groat,(i) it was decided that an chapter xi. 
 apparent heir selling his ancestor's estate without having made up conversion by 
 a title by service (and having therefore no vested interest), did not apparent heir 
 thereby alter the character of the succession, but that the price the statute, 
 enured to the next heir as a surrogatum for the landed estate. 
 
 436. It appears that if a beneficiary sui juris elect to take the Beneficiary may 
 trust-estate in its actual condition, instead of taking it in the cha- convert 
 racter impressed upon it by the trust, the exerciseof his right of JjJJj|? t £ nginal 
 election is sufficient to determine the character of his succession in 
 
 the event of his death before the transference of the estate has h, en 
 accomplished. This was one of the grounds on which Lords Ivory 
 and Rutherfurd, in the case of Grindlay v. Grindlay's Trs.,(k) were Grindlay v. 
 
 ipinion that certain urban subjects retained their heritable cha- '""" "''' 
 racter iii aquestion as to the beneficiary's succession, notwithstand- 
 ing that the truster had appointed and authorised his trustees to 
 dispose of them by public or private sale. The beneficiary, who 
 was also trustee, instead of selling the property, had let it on a ten 
 md in her trust settlement had referred to it as her 
 heritable < conveyed to her by her late husband. Those cir- 
 
 cumstances, in the opinion of their Lordships, amounted to an elec- 
 tion on the part oi tin- lady to take the estate in its character of 
 heritage.(Z) 
 
 437. If a trust-* state is sold after the death of one or more of Effector 
 the beneficiaries by the direction of the survivors, their election to clary of a class. 
 take the land as money, although it will he available tor the pur- 
 pose of determining the quality of the succession of those who eon- 
 sen ted to the sale, will not operate as a conversion of the succession 
 
 of the' predeceasing beneficiaries. (m) 
 
 438. It Is almosl superfluous to add thai the revenue cases can Revenue* 
 throw no light upon questions of succession depending upon recon- 
 
 ion. The Legacy-Duty Acts impose duty upon personal pro- 
 perty direct, d to be sold ; and the circumstance ojf the beneficiary 
 having accepted a disposition of the heritage in forma specifica is 
 do reason for depriving the Exchequer of the duty which has ac- 
 
 the h of the money in impro (k) Grindlay v. Grindlay's Tra., 9 Xov. 
 
 qualified I L863, 16 D. L'7. The principle of election 
 
 "it would be right that the sum bo laid out tive re cog 
 
 onalty;" oisedinthecasei of Nicolson's Assig. \. Ma 
 
 and this dictum is confirmed by the deci- Vr., 2 Mar. 1841,8 D.676; Wil- 
 
 '. I: I 7 .lur. N.8. 116, and liamson v. Paul, 16 Di :. 1849, !'_' D. 872; 
 
 / I. .in and Gray's Tra. v. Robertson, 19 -June 1868, 
 
 on Trusts, 5th ed. p. I I Ma \\ h. ! 
 
 / C 1-17. Bume, (J) 16 D. pp. 84, 86. 
 
 1 • ' 7 Strac) m v. \fowbray, 21 Fi b, I ■ 
 
 6D I
 
 22 1 
 
 OF CONSTRUCTIVE CONVERSION. 
 
 ohaptebxi. crued under the terms of the .testamentary direction, (n) By parity 
 of reason, a sale made on the authority of the beneficiary, and not 
 in virtue of a testamentary direction, does not render the estate 
 Liable to Legacy dnty.(o) 
 
 (n) Adv.-Oen. v. Williamson, 16 March 
 1843, 2 Bell, 89, affirming judgment of C. of 
 s.. 23 Jan. 1840, Ex. Rep.; Att.-Gen. \.Hol- 
 ford, 1 Price, 426 ; and see Re Ramsay's 
 Trs., 2Cr. M. &R. 224, note. 
 
 (o) The principle of reconversion by the 
 election of the beneficiary has been much 
 discussed in England, and the decisions 
 throw light upon many questions which, 
 under our law, are still regarded as unset- 
 tled. The following summary embraces 
 the more important points which have been 
 determined : — 
 
 1. Election may be made by a person 
 sui juris, either in writing or by parole. 
 Lord Eldon and other judges have ex- 
 pressed the opinion that, although the de- 
 claration of the cestui que trust would not 
 be admissible in a question with third par- 
 ties, it was binding inter hceredes; Wheldle 
 v. Partridge, 8 Ves. 286 ; Pulteney v. Dar- 
 lington, 1 B. C. Ca. 237 ; Edwards v. Coun- 
 tess of Warwick, 2 P. W. 174; Chaloner v. 
 Butcher, cited in Crabtree v. Bramble, 3 
 Atk. 685. 
 
 2. Election to take real property in that 
 character may also be made constructively, 
 — as, for example, by the cestui qui trust 
 entering into possession of the property, 
 and taking the title-deeds into his custody; 
 Dames v. Ashford, 15 Sim. 42, 14 L. J. 
 Ch. 473; Griesbach v. Fremantle, 17 Beav. 
 314. In Dixon v. Gay/ere, Sir John Ro- 
 milly, M.-R., observed that slight circum- 
 stances might be sufficient to raise a pre- 
 sumption of reconversion, and that, in the 
 absence of other facts, the retaining of the 
 lands for a great length of time would 
 be sufficient to induce the Court to come 
 to that conclusion ; but in that case the 
 length of possession was insufficient, and 
 the death of the cestui que trust, without 
 having sold the property, was adverse to the 
 supposition of reconversion, 23 L. J. Ch. 
 60, see p. 64 ; and see KirJcman v. Myles, 
 13 Ves. 338. And so, where money is to 
 be turned into land, reconversion may be 
 implied from the receipt of the principal, 
 but not of the annual income; Gillies v. 
 Longlands, 20 L. J. Ch. 441. Reconver- 
 
 sion may also be effected by changing 
 the securities on which money is invested, 
 as was found in Harcourt v. Seymour, 2 
 Sim. N.S. 12, 20 L. J. Ch. 606, where 
 Lord Cranworth said it was sufficient if 
 the Court saw that the party meant the 
 estate to be dealt with as money, and that 
 it was immaterial whether he knew that, 
 but for his election so expressed, it would 
 have been turned into land. 
 
 3. As a general rule, there can be no 
 reconversion by a person subject to legal 
 incapacity ; Carr v. Ellison, 2 B. C. Ca. 
 56 ; Padbury v. Clark, 2 M'N. & G. 298 ; 
 Ashby v. Palmer, 1 Mer. 296. But although 
 at common law a married woman could not 
 have elected to reconvert, it was afterwards 
 held, in consequence of the powers given 
 by 3 & 4 Will. IV., c. 74, §g 40, 71, and 
 77, and 8 & 9 Vict., c. 106, § 6, to married 
 women to dispose, with the concurrence of 
 the husband, of any estate or interest at 
 law or equity, — that land devised upon 
 trust in terms amounting to a conversion 
 might be disposed of by a married woman 
 as an interest in land ; Briggs v. Chamber- 
 lain, 11 Hare, 69; 23 L. J. Ch. 635 ; Tuer 
 v. Turner, 20 Beav. 560, 24 L. J. Ch. 663. 
 A legatee having only a contingent or de- 
 feasible interest cannot effectually discharge 
 a trust for sale, so as to operate a reconver- 
 sion of the estate ; Sisson v. Giles, 32 L. J. 
 Ch. 606. 
 
 4. In Lingeti v. Sowray, 1 P. Wms. 172, 
 it was held by Lord Harcourt that a re- 
 mainder-man might elect to reconvert the 
 trust-estate, so as that his election should 
 be binding inter hceredes. But such elec- 
 tion would of course be subject to the right 
 of the owner of the prior estate to call for 
 the actual conversion of tbe land or money 
 in accordance with the instrument of trust, 
 Gillies v. Longlands, 20 L. J. Ch. 441, 
 which, in Mr Lewin's opinion, would ren- 
 der the intended election ineffectual (Le- 
 win on Trusts, 4th ed. 625, 5th 'ed. 690), 
 According to Scotch principles, it is con- 
 reived that the efficacy of such an inten- 
 tional reconversion by the party entitled 
 to a reversionary interest, would depend
 
 OF CONSTRUCTIVE CONVERSION. 225 
 
 CHArTEK XI. 
 
 SECTION IV. 
 PROPERTIES OF CONVERTED SUCCESSION. 
 
 439. In the preceding suctions of this chapter, the quality of the To what -.1 di 
 converted estate has been considered chiefly in relation to the rights Son retains 
 of heirs and executors. Its other properties have heen but slightly jjjjjj ^^ ies 0< 
 touched on, and that only in illustration of the general argument, i 
 
 It is sufficiently obvious that an estate in succession, although con- 
 structively, or even actually converted by virtue of a testamentary 
 direction, may yet retain certain of the properties of the original 
 Moveable estate converted into heritable at the request of 
 the beneficiary, and personal interests in land reconverted in con- 
 sequence of the election of the beneficiary fco take over the estate 
 specifically, retain their moveable quality so far as to be liable in 
 payment of legacy-duty. On the general properties of the con- 
 verted estate — the mode in which it is capable of being affected by 
 diligence, its transmissibility by will or assignation, and its liability 
 to Legal claim-, some further observations are necessary. 
 
 440. In principle, it is clear that the legal claims affecting a Distinction be- 
 ti stamentary estate musl be determined by its quality in the person ]; 
 
 of the testator ; for if the rule were otherwise, the rights of the legal 
 
 claimants mign1 be defeated by a mere expression 01 the testator s to transmission. 
 
 intention that his estate should be taken in a different character 
 
 from thai which actually belonged to it. The mode of transmission 
 
 of the beneficial interesl in the converted estate alter it has vested 
 
 in the beneficiary, would seem to depend mainly upon the character 
 
 of the interest which he acquires in it. 
 
 441. I. Legal Claims affecting the Converted Estate. — Con- Converted heri- 
 stractive conversion, which is the creature of intention, can have no s 
 effect whateover upon the legal claims of the truster's successors. ° f heir ' ?" d t0 
 
 J i _ terci and cour 
 
 For example, the insertion of a direction to sell in a disposition oft 
 
 npon whether thi ted. If 5. According to English deci ion ,wher< 
 
 the prior estate w< re a mi re Lifi renl inte- an estate is dir at d to bi old for the bi n< 
 
 n 1 in Land, it is thought thai the fiar fit of several persons, il is nol inthepi 
 
 t eleel t" take the lands specifically of any single beneficiary to prevent the 
 
 caring the liferenter's int. 1 ; Holloway \. Radcliffe, 28 Beav. 168; 
 
 bond and di po ition in ecurity. Bui i! Chalmer v. Bradley, 1 .1. & W. 69 ; bul 
 
 the prior estate in qo a fee of if money !"• directed to be laid out in 
 
 the 1 : I land din cted t" be Bold, land of the 1 fii - I. cl 
 
 with a Bubstitul retty clear thai to take his own for in o 
 
 I a., could nol interfere to pre- doii o1 come into conflicl with 
 
 rent the sale, because thi institute in tin the in ten ; Sceley v. 
 
 apposed would 1 Jago, 1 P. W.J R v. Denm.l 
 
 to take the 1 tati in • junr. 182, pn Lord Loughl 
 
 the sub titution. 
 
 VOL. I. V 
 
 
 1 1 1
 
 226 
 
 OF CONSTRUCTIVE CONVERSION. 
 
 i'H.\rTi:i: xi. 
 
 Converted per- 
 sonalty remains 
 subject to legi- 
 tim and jus 
 relictoB. 
 
 heritable estate would not bar the right of reduction ex capite lecti. 
 In this aspect the subject has been already discussed in treating of 
 the interest of the truster's heirs and executors in the converted 
 succession. (p) The same principle necessarily regulates the in- 
 cidence of terce, jus relictce, and legitim. Tercc, for example, is 
 exigible out of all the lands in which the proprietor died infeft.((/) 
 Consequently, no direction to convert those lands into money after 
 the truster's death is of any avail to exclude the rights of the widow ; 
 and accordingly, in a case where a part of the lands of a deceased 
 proprietor was sold for payment of his debts, it was found that the 
 widow was entitled, as tercer, to a share of lands equal in yearly 
 value to a third of the whole lands in which her husband died in- 
 feft, inclusive of what had been sold.(r) The case referred to may 
 be contrasted with another, (s) where a proprietor having disponed 
 his estate by an ex facie absolute conveyance inter vivos, in security 
 of borrowed money, it was held that terce was only exigible out of 
 the reversion ; that reversion being the measure of the husband's 
 title and interest at the time of his death. (t) 
 
 442. Jus relictce, again, being an absolute right to the capital of 
 one-third or one-half, as the case may be, of the husband's free perso- 
 nal estate, it is clear that any direction to invest such estate in the 
 purchase of lands can only receive effect as a disposition of the residue 
 after allowing for that claim. (V) The remark is equally applicable 
 to legitim. A truster, in contemplation of law, disposes only of the 
 dead's-part — his own share of the succession, (x) It was solemnly 
 determined in the case of Hog v. Hog,(y) that the right to legitim 
 could not be disappointed except by means of an actual beneficial 
 conveyance inter vivos ; and that if a disposition of moveables 
 should be made in the form of a de presenti conveyance, yet if it 
 appeared that the assignment was upon trust to invest the proceeds 
 in land after the truster's death, the fund would remain moveable 
 and would be subject to legitim. 
 
 (p) Supra, section 1. 
 
 (q) Ersk. 2, 9, 46 ; Bell's Pr. \ 1598. 
 
 (r) Arbuihnott v. Arbuthnotfs Trs., 23 
 June 1805, Hume 294. And see Bell v. 
 Halliday, 8 Dec. 1825, 4 Sh. 286, N. E. 289. 
 
 (*) Bartlet v. Buchanan, 27 Nov. 1812, 
 F.C. On the same principle, terce is dimi- 
 nished by all heritable securities and real 
 burdens completed by infeftment in the 
 husband's lifetime ; Campbell v. Campbell, 
 1776, 5 Br. Sup. 627 ; Stewart, 1792, cited 
 1 Bell's Com. 686, note 3. 
 
 (t) On the subject of the truster's rever- 
 sionary interest, see chapter 45. 
 
 (u) See Ramsay v. Cowan, 11 July 1833, 
 11 Sh. 967. 
 
 (x) White v. Finlay, 15 Nov. 1861, 24 
 D. 38 ; see Lord Justice-Clerk Inglis' ob- 
 servations, p. 49. 
 
 (y) Hog v. Hog, 14 May 1800, M. "Le- 
 gitim," App. No. 2; 12 July 1804, 4 Pat. 
 581. On the point, that an absolute con- 
 veyance inter vivos takes the property out 
 of the legitim fund, see Milroy v. Milroy, 
 31 May 1803, Hume, 285 ; Collie v. Piries 
 Trs., 22 Jan. 1851, 13 D. 506.
 
 OF CONSTRUCTIVE CONVERSION. 227 
 
 443. Conversely, legitini and jus rdictce are not exigible out of chapter xi. 
 the proceeds of land disponed to trustees upon trust for sale and Legitim, etc., 
 division of the proceeds. This point was determined with refer- "f^f^f 
 ence to a trust for sale, under which a sale had been carried through converted heri- 
 in the truster's lifetime, but the purchaser had not obtained a con- 
 veyance.^) We have already seen that in the case of a lapse the 
 
 lands result to the heir-at-law notwithstanding the direction to 
 sell, (a) a proposition which is obviously inconsistent with the no- 
 tion of any claim on the part of personal representatives. But a 
 moveable interest in landed estate, e.g., the right of a partner to a Seeusastomoye- 
 share of lauds(6) or heritable bonds(c) forming part of the company i a nd. 
 
 - of course subject to the legal claims of the widow and 
 children. 
 
 444. II. Transmission of the Converted Estate. — In one sense Question stated. 
 of the term every beneficial or equitable interest in a trust-estate 
 
 may be described as a "personal" right ;(d) but in this sense, personal 
 interests in land are heritable, and are not susceptible of transmis- 
 sion by testament. A conveyance of beneficial interest in a trust 
 of heritable estate must therefore be in the dispositive form;(e) and 
 it was laid down in a recent case, that the heirs interest can only 
 be taken up by service. (/) Such being the general rule, it remains 
 to bo seen how far the requisites of effectual transmission of a bene- 
 ficial interest are affected by the character impressed upon it in 
 virtue of a direction to convert. 
 
 445. It may safely be asserted that beneficial interests in the Ben^cial inte- 
 proceeds of land held by trustees subject to a direction to sell, are f land directed 
 transmissible by assignation <>r testament, and liable to be attached J',.'.,,^, 
 
 by arrestment. This lias been assumed in several of the succession assignation or 
 
 J m arrestment. 
 
 - in which the imporl of such directions was under considera- 
 tion. For example, in Speirs v. Speirs,(g) Lord Cuninghame said, 
 " When a trusl has been executed for payment of creditors, and 
 
 (z) I; T . '..',. , 2 June 1832, other real arli.m ; linniiiinmilx. Mackenzie, 
 
 . 617. (Redcastli >. L768, M. 16,206. 
 
 on v. Stewart, % Feb. I860, 22 (e) Sei Crawford-*. Earl of Dundonald, 
 
 D. 646; ■ Lordi rvationB, 22 May 1888, 16 Sh. 1017. Lord Cuning- 
 
 hame indicated an opinion thai the righl 
 
 (//) Sime v. Balfour, 1 Mar. isni, M. to rail on a trustee t ovey a heritable 
 
 "Heritable and Moveable," App. No. 8, Bubject was itself heritable in a question 
 
 affirmed 22 .Inly 1811 B \. b to the form of transmission, 16 Sh. 101$); 
 
 :, Paton, 525; equel, as Minto v. Wilton v. Smart, 81 Maj 1809, F.C. 
 
 /. L888, 11 Sh. 682. (/) Buchanan v. Angus, 16 .May 1862, 
 
 i i 302, M. " Heritable 4 M icq. 874. 
 
 and Moveable," App. No. 2. (g) Speirt v. Spein, 21 Nov. 1850, 18 
 
 the l>. 81 ; < e p. 87. S i Bi U I om. 8 ••'■. 
 
 proprietor, and cannot, for example, 5th ed. 1,87. The point was decided in 
 
 ii of maillsand duties, or Qray't '/'<■«.. v/^ra. \ 127. 
 
 r 2
 
 228 OF CONSTRUCTIVE CONVERSION. 
 
 chapter xi. thereafter for division of the surplus, when realised, among a mul- 
 tiplicity of legatees, the interest of the latter, whether realised or 
 not, is held as moveable, because the trust is viewed as granted 
 solely for the purpose of Liquidation and division, and the benefi- 
 ciaries have only a jus crediti or personal claim against the trus- 
 tees, which is arrestable." It is true that in Gardner v. Ogilvie,(h) 
 Lord Curriehill, adverting to the possibility of completing a title 
 by confirmation to the proceeds of heritable property directed to 
 be sold, indicated an opinion that converted estate could not be 
 dealt with as moveable succession in a question as to transmission. 
 However, in the previous case of Ramsay v. Lady White, (i) it was 
 ruled by a unanimous judgment of the Second Division, that an in- 
 terest in heritable and moveable property, held by trustees under a 
 trust for sale, was carried by the will of a beneficiary ; and though 
 some doubt was expressed as to whether a share in a house form- 
 ing part of the trust-estate passed under the will, the difficulty 
 seems to have had reference rather to the terms of the destination 
 than to the question of subsequent transmission. 
 Beneficial inte- 446. It may easily be shown by general reasoning that such in- 
 
 rest in converted ••iii r> • c 1 ' o -n 
 
 heritage is terests are transmissible by testament; tor, it not, they tail, as we 
 testament! e 7 have already seen, to the beneficiary's next of kin ; and to hold 
 that the next of kin are preferable to the testamentary executors, 
 is an error too palpable to call for refutation. The mode of trans- 
 mission of such interests must be similar, whether the purpose be 
 testamentary or that of a disposition inter vivos, whence we con- 
 clude that moveable rights of succession to heritable property are 
 transmissible by simple assignation in the same manner as rights 
 of partnership, which are well known to be assignable without the 
 use of dispositive words, although comprehending interests in herit- 
 able property, (k) 
 Beneficial inte- 447. As regards beneficial interests in money rendered heritable 
 rendered herit- destinations, it is doubtful whether they would be carried by a testa- 
 tion: Lwtrans- men t- The case of Bossy. Boss,(1) where the question was decided 
 muted. j n |] 1C , negative with reference to bonds secluding executors, is not 
 
 conclusive, because the opinions of the judges proceeded partly on 
 the ground that money bonds were in their own nature heritable, 
 except in so far as affected by the Statute 1661, cap. 32, and the 
 exclusion of executors was, in their opinion, an exclusion of the 
 
 (h) Gardner v. Ogilvie, 25 Nov. 1857, Minto v. Kirkpatrick, 23 May 1833, 11 
 
 20 D. 105, see 110. Sh. 632; Irvine v. Irvine, 15 July 1851, 
 
 (i) Ramsay v. Lady White, 26 June 13 D. 1367. 
 
 1833, 11 Sh. 786. (I) Ross v. Ross, 11 July 1809, F.C. ; 
 
 {k) See 2 Bell's Com. 5th ed. p. 3 ; and pee oases in Br. Syn. 2329.
 
 OF CONSTRUCTIVE CONVERSION. 229 
 
 Statute. The question, however, is virtually decided by the case of chapter xi. 
 Crawford v. The Earl of Dundonald.(m) The truster had granted 
 an assignation of the right to a bill debt with a view to the trustee 
 leading an adjudication in her favour, and subject to an obligation 
 to denude in favour of the truster, her sister, or assignee. On the 
 death of the truster's sister, an action was brought by her heirs, 
 tinder certain testamentary Instruments, to have it found and de- 
 clared thai the trust had expired, and that the right to the debl 
 in them. The < lourt held that the debt, having been rendered 
 heritable in the person of the truster's sister by the decree of ad- 
 judication, could not be transmitted by testament. This decision, 
 we think, must rule the case of money rendered heritable by a 
 direction to invest it in the purchase of Lands. 
 
 (vi) ' v. Earl of Dundonald, 22 May 1838, 16 Sh. 1017.
 
 230 
 
 FORM AND CHARACTERISTICS 
 
 i'H MIF.H xn. 
 
 PART III. 
 
 CONSTITUTION AND INTEKPKETATION OF 
 WILLS AND SETTLEMENTS. 
 
 CHAPTER XII. 
 
 FORM AND CHARACTERISTICS OF TESTAMENTARY 
 
 WRITINGS. 
 
 I. Authentication of Wills and Settlements. 
 II. Alteration of the Text of a Will. 
 
 III. Of Codicils and Writings authenticated 
 by Reference. 
 
 Form of will. 448. Genekalities. — The law of Scotland does not prescribe 
 
 any special form which can be regarded as indispensable to the due 
 expression of a testamentary intention, but custom has established 
 certain forms of testamentary instruments by which estates of any 
 description may be most conveniently settled or bequeathed 
 
 Testament— 449. Where the estate consists of personal or moveable pro- 
 
 General disposi- ,- . ,..,.. 
 
 tion— Trust-dis- perty, and the testator contemplates an immediate distribution of 
 settlement 1 — n ^ s estate after his death, his will may be conveniently expressed 
 Deed of entail. { n ^g f orm f a testament containing an appointment of executors. 
 A will of mixed heritable and moveable estate, with a purpose of 
 immediate succession, may take the form of a general disposition 
 and settlement. Where the final distribution of the succession is 
 postponed to a period which may not occur until a considerable 
 time after the testator's death, provision must be made for the in- 
 terim custody and management of the estate ; and for the accom- 
 plishment of this purpose a conveyance of the estate to trustees is 
 requisite. As the purposes of modern wills usually require the pre-
 
 OF TESTAMENTARY WRITINGS. 231 
 
 servation of the testator's estate for a period of uncertain duration, chapter xn. 
 the machinery of a trust has come to he regarded as a necessary 
 part of a will, insomuch that the trust-disposition and settlement 
 has, in Scotland, superseded all other forms of settlement for the 
 distribution of mixed succession. Settlements of landed estate in 
 favour of a series of heirs are sometimes made by immediate grant 
 in the form of a deed of entail, sometimes by way of a direction 
 to trustees to execute an entail in favour of heirs named and de- 
 signed, the last mentioned form being often chosen where the set- 
 tlor contemplates the acquisition of additional property. Testa- 
 mentary purposes may, besides, be contained in other deeds, as, for 
 instance, in marriage-contracts, of which we shall have frequent 
 occasion to speak. 
 
 450. The formal discussion of the clauses of wills and settle- Limits and 
 incuts in their relations to each other pertains to conveyancing, and rition°of°the 
 need net here engage our attention. The consideration of the sub i ect - 
 meaning and Legal effect of testamentary provisions is the chief 
 object of this treatise, to which a knowledge of what properly be- 
 longs t<> conveyancing may be regarded as introductory. In some 
 parts of our subject, notwithstanding, we shall occupy common 
 ground with the writers on conveyancing, and particularly in some 
 of the topics discussed in the present chapter, in which we have to 
 consider those elements in the constitution of wills and settlements 
 which have relation simply to their validity as testamentary writ- 
 ings without affecting their purpose or meaning. 
 
 SECTION I. 
 AUTHENTICATION OF WILLS AND SETTLEMENTS, (a) 
 
 451. I. Statutory Attestation. — For many purposes it is ne- where date im- 
 v to determine the order, in poinl of time, of (he execution of 1°^^ bTwit- 
 
 testamentary instruments, for this reason, a will should, if pos- nessed " 
 sible, he executed in presence of witnesses, since a holograph will, 
 not executed before witnesses, does not prove the date of its exe- 
 cution. 
 
 452. The Bubjecl of the formal authentication of testamentary statutes i 
 
 11 i j i i ■ i I, l o in/ the authen- 
 
 writings belongs properly to the Law oJ evidence. It may he sul- ,,.. 
 
 liei'ent to refer very briefly to the regulating statutes which are now wills and deeds 
 
 in force. The Act L555, cap. 29, made subscription imperative, sub- 
 
 i,i\ On the Bubjecl of the rali troductory chapter od International Law 
 
 authenticity of t< tamentary writings exo- (chapter 2, 
 
 to thi lie
 
 232 FORM AND CHARACTERISTICS 
 
 r \u. jed i" certain conditions as to notarial subscription, which were su- 
 perseded by the more specific regulations of the Act 1579, cap. 80. 
 Thai Act requires the attestation of two notaries and four witnesses to 
 writs not signed by the granter. By the Act 1584, cap. 4, as extended 
 by custom, sealing is dispensed with. Under the Statute 1593, 
 c. 179, the name and designation of the writer must be inserted in 
 the body of the writ ;(/>) with reference to which, and to the later 
 Statute L681, it lias been held that the addition of "writer hereof" 
 to the name of one of the witnesses (designed in the testing-clause) 
 is a sufficient compliance with the terms of the statute. (c) Where, 
 in a testing-clause, the grantee declared that he had subscribed 
 these presents, consisting, etc., stamped according to law, by W. M., 
 therein designed, „the omission of the word "written" was held not 
 to be material. (d) By the Act 1681, cap. 5 (Lord Stair's Act), it 
 is enacted, -" that only subscribing witnesses in writs to be sub- 
 scribed by any party hereafter shall be probative, and not the wit- 
 nesses insert not subscribing, (e) and that all such writs to be sub- 
 scribed hereafter wherein the writer and witnesses are not designed 
 shall be null, and are not suppliable by condescending upon the 
 writer, or the designation of the writer and witnesses." The sub- 
 scription is declared not to be effectual unless they either saw the 
 party subscribe, or give warrant to the notary, or heard him acknow- 
 ledge his subscription at the time.(/) It is not necessary that the 
 acknowledgment should be made to the two witnesses in presence 
 of each other, (r/) 
 Modem statutes. 453. The Act 1696, cap. 15, regulating the subscription and 
 pagination of deeds written book-ways, has been repealed as regards 
 pagination by the Act 19 & 20 Vict. cap. 89. By the Titles to 
 Land Act 1858, (A) " all deeds, writs, and instruments whatever,(z) 
 mentioned or not mentioned in this Act, having a testing-clause, 
 may be partly written and partly printed or engraved ;" the provi- 
 
 (b) Callander v. Callander's Trs. 17 Dec. (/) In Morrison v. Maclean's Trs., 27 
 1863, 2 Macph. 291. Feb. 1862, 24 D. 626, it was held that the 
 
 (c) Dronnan v. Montgomerie, 1716, M. averment, that the instrumentary witnesses 
 16,869; Macpherson v. Macpherson, 7 Feb. neither saw the subscription adhibited nor 
 1855, 17 D. 358. heard it acknowledged, must be proved ; 
 
 (d) Johnston v. Pettigrew, 16 June 1865, that a non memini was not proof; and (23 
 3 Macph. 954. Jan. 1863, 1 Macph. 304) that a verdict 
 
 (e) A trustee does not seem to be dis- discrediting the uncorroborated testimony 
 qualified from being an instrumentary wit- of the instrumentary witnesses on the 
 ness to the trust-deed ; Mitchell v. Miller, matter, and supporting the attestation, 
 1742, M. 16,900, nor a legatee to a small ought not to be interfered with. 
 
 amounl ; Ingram v. Steinson, 1801, M. (g) Hogg v. Campbell, 12 March 1864, 
 
 '• Writ," App. 2, nor perhaps even a gene- 2 Macph. 849. 
 
 nil legatee; Graham v. Montrose, 1685, M (h) 21 & 22 Vict. c. 76. \ 34. 
 
 16,887. But \\ is hotter not to select a (i) Pencil writing seems to he admis- 
 
 party beneficiallj interested for a witness, sible; Williamson v. Kennedy, 19 D. 443.
 
 of testa mentary writings. 233 
 
 sions in regard to authentication being similar to those of the older chatter xn. 
 statutes. The limits of this treatise preclude us from attempting to 
 give even an outline of this branch of the law of evidence as settled 
 by decisions.^) The subject is fully treated in Mr Dickson's trea- 
 tise "ii Evidence, and in the works of Menzies and Bell on Convey- 
 ancing. (J) 
 
 454. It is necessary here to take notice of the subject of thepri- PrivUegesof 
 
 ;orded by custom to deeds of a testamentary nature ; un- deeds in relation 
 der which description are comprehended wills of moveable estate ^"^"n! 
 and deeds containing provisions intuitu mortis. On this subject 
 Erskine has observed, in a passage frequently cited, that " testamen- 
 tary deeds are so much favoured, that if the testator's intention ap- 
 3 sufficiently, they are sustained although not unite formal, espe- 
 cially if they be executed where men of skill in business cannot be 
 had."(m) In practice, the privileges of testamentary deeds are con- 
 fined to the Bingle case of notarial execution. By a custom referred 
 to by all the institutional writers,(w) and which has now the force 
 of law, .-i testamenl of moveables by a party unable to write may be 
 executed by one notary in presence of two witnesses. (o) And by 
 the Statute 1684, cap. 133. which prohibits cli rgyinen from acting 
 as notaries, there is an exception in regard to "the making of tes- 
 taments." The elfect of this Act, as limited by judicial construc- 
 tion, is. that a will signed for the testator by the clergyman of his 
 parish, before two witnesses, is valid and probative, (p) The pri- 
 
 :•■ in question does extend to a dispensation with the statutory 
 requisites of authentication. Wills executed by the intervention of 
 clergymen have in various instances been set aside, in respect of 
 
 (k) It may be kepi in view that the (o) See Bog v. Hepburn, 1623, M. 16,960; 
 
 Aoctrine of reiinterventus, which is of course Stodart v. Arkley, L799, M. 16,857; and 
 
 inapplicabl to testamentary writii contra, Galletlyv. Macfarlane, 1 Aug. 1843, 
 
 aded i.ii to Bupporl the provisions of 6 D. 1. In the case of Ferrie v. Ferrie, 23 
 
 tract of marriage in so far ae these Jan. 1868, 1 Macph. 291 , where a notarial 
 
 are onerous. Bena the mere suhscrip- attestation of a trust-settlement of heritable 
 
 tion of tin; party may I"- sufficient. See and moveable estate was beld aull on the 
 
 Kibble v. Stevenson, L8 Dec. L830, 9 Sh. ground that one of the subscribing notaries 
 
 288; Dunlop v. Gh / , 2 Macph. was a trustee with the power of appointing 
 
 1 : :; Macph. i II. I himself factor, and receiving remuneration 
 
 (/) Dicks. Kvi'l., \ 636 el teq. ; Menzies' for his services, — it was held that the instru 
 
 i I )'."_'; Bell' Lectun on ment could not be sustained even as a set- 
 
 the form and tlementof veables, the deed being in its 
 
 of trust-di the Juridical inceptions deed of importance, and deal 
 
 : i. p. 267, md i ! ' 'I itl( ing with the grantee's whi ion. 
 
 s. • th( ch ■ i Kere cited, and also 2 Pat. 
 
 I ,8,2,28. s,,-.\. 415; 3 Pat. 865; 8 Pat. 671. 
 IT'.:. M 12,290; Kei Hay, 1708, Hepburn v, Waughton, L606, M 
 
 . 7 ii illic n v. Urquhart, L688, M 
 
 I 
 ■
 
 234 FOliM AND CHARACTERISTICS 
 
 ohaptbb xii. the omission of certain of the statutory requisites, e.g., the omission 
 to state that the clergyman's subscription was adhibited by the au- 
 thority of the testator ;{q) or the adhibition of the name of the tes- 
 tator instead of that of the clergyman, (r) 
 
 455. II. Holograph Writings. — At common law a deed or tes- 
 
 (. omnion law 
 
 requisites of the tamentary writing- holograph of the granter does not require to be 
 holograph wills, attested, but is completed by the mere subscription of the writer. 
 Such writings being wholly regulated by the common law(s) admit 
 of the application of a very liberal rule of criticism in the determi- 
 nation of questions relating to their authority or validity. As 
 early as the time of the institutional writers, (t) the privileges of 
 holograph deeds had been extended to such as were holograph in the 
 substantial clauseg, — as, for example, in the case of testaments holo- 
 graph in the sums bequeathed and in the names of the legatees ; (u) 
 while, conversely, holograph writings in which sums or names were 
 inserted by another hand were deemed invalid. In many of the 
 subsequent cases relating to holograph wills, questions have arisen 
 regarding the materiality of words and clauses written in a different 
 hand from that of the maker of the deed. 
 Holograph writ- 456. The chief difficulty in such cases consists in the determina- 
 te^edfara 1 m " ^ on °^ the question whether a holograph writing is a will or is merely 
 will, or as a a memorandum or paper of instructions. The case of Uunro v. 
 
 paper of instruc- . . . , . . 
 
 tions. Coutts(x) is an instructive example. A testator having previously 
 
 executed a trust-settlement of his whole estate, and also a will in the 
 English form, and wishing to alter his testamentary dispositions, 
 wrote to his solicitor, saying " I send you the codicil I wish to be 
 made to my last will and testament." The inclosure, which was 
 dated and signed, began — " I wish a codicil to be made to my last 
 will and settlement in the following manner." It was held by 
 Lord Eldon, on a consideration of the correspondence between the 
 deceased and his solicitor, and other facts and circumstances, that 
 the paper was intended as instructions for the preparation of a 
 codicil, and was not testamentary. In Loicson v. Ford{y) three 
 
 (q) Mackenzie v. Burnett, 1688, M. 16,838; reconcile the decision in Scott v. Sceales, 5 
 
 Williamson v. Urquhart, siipra. Feb. 1864, 2 Macph. 613, giving effect to a 
 
 (r) Trail v. Trail, 1805, M. 15,955. See letter by the deceased lady to her man of 
 
 Gray v. Ballegerno, 1678, M. 16,296. business ; but these are cases admittedly 
 
 (s) Stair, 4, 42, 6 ; Ersk. 3, 2, 22 ; 1 Bell's of great difficulty. 
 Com. 5th ed., 324. (y) Lowson v. Ford, 20 March 1866, 4 
 
 (t) See Stair and Ersk., supra. Macph. 631. Another paper of a similar 
 
 (ii) Vans v. Malloch, 1675, M. 16,885, character was sustained, in respect that it 
 
 and case of Uartree there cited ; Panton v. bore an indorsation in the hand of the de- 
 
 Gillies, 22 Jan. 1824, 2 Sh. 632, N.E. 536. ceased that her trustees would act upon it 
 
 (x) Munro v. Coults, 3 July 1813, 1 Dow, in case she should be taken away sud- 
 
 437 ; with this authority it is difficult to denly.
 
 OF TESTAMENTARY WHITINGS. 235 
 
 signed papers, containing lists of names with sums of lnone}- written chapter xn. 
 opposite to them, were held to be mere memoranda. 
 
 457. It is to be observed that there are two elements in the Extrinsic evi- 
 question, whether a writing is of a testamentary character — the one effectadmfesibie. 
 intrinsic, and the other extrinsic. Where a holograph will or co- 
 dicil is drawn in proper form, and either contains a regular nomi- 
 nation of executors or trustees, or bears reference to a previously 
 executed will or trust-deed containing such a nomination, it would 
 
 seem that extrinsic evidence is not admissible for the purpose of 
 proving that it was not intended to have a testamentary opera- 
 tion.^) On the other hand, where a writing contains no words of 
 
 mentary disposition or intention, but is simply (as in the case 
 of Lowsori) a list of names and sums, it would seem to be incompe- 
 tent to set up such a writing as a will by extrinsic evidence of in- 
 tention.(a) Within the limits of these two extremes extrinsic evi- 
 dence has been liberally admitted, for the purpose of ascertaining 
 whether papers which are expressed in testamentary language are 
 
 mentary writings, or are merely of the nature of drafts, mi- 
 nutes, or instructions for the preparation of such writings.(i) 
 
 458. A mutual contract or settlement inter vivos, written by one B a atera i deeds, 
 of the parties and signed by all, will not always receive effect as a holograph of 
 
 iii..-, ' one of the par- 
 
 holograph writing even of the party who wrote it ;(c) though it may tics. 
 be validated rei interventu; the principle being that there is no con- 
 tract unless all the parties are bound. But in the case of Macmil- 
 Idn v. MacmiUa?i,(cJ) an entry on the fly-leaf of a family Bible, 
 signed by husband and wife, the entry being in the handwriting of 
 the husband, and bearing that " the longest liver is to have all that 
 n ni.iiiis ai't.-r our debts arc paid," was sustained as a bequest of the 
 
 (z) In the case of Munro, Lord ELlon "To" was held to import testamentary 
 
 ic evidence waa pro- disposition. There is a clearly marked 
 
 periy admitted, "as the paper waa of a distinction between the cases noticed in 
 
 doubtful and amh iracter, and re- the introductory part of the chapter on 
 
 quired explanation," 1 Dow, 451. Uncertainty (chapter 18), where a wish or 
 
 (a) " I know of no instance in the whole request is held equivalent to a v. ill. and giv- 
 
 in which amere ing the same effed to the dativeceue, which 
 
 enumeration of names and figures was held is not neci overned bj a verb of 
 
 an effective declaration of t( stamentary in- wishing or willii 
 
 nwhenth tive (b) Bee the cases examined In chapter 
 
 thai the names were intended to 1"' those 21 (Admisi ion of Extrinsic Evidence), 
 of parties to be 1" oefltted by the b tator, (c) Miller v. Farqyharton, 29 May 1886, 
 
 and tl. ' i be indicative of bequests 18 Sh. 889 ; Spreul v. Wilton, 1809, li 
 
 I parties were to re- 920. 
 ;" /■•/■ Lot : ' I Macph. 038. (rf) Bfacmillan v. MocmiUan, 28 Nov. 
 
 ) venture to oggi t the propriety of I860, 18 D. 187; and •■ Lawrie v. Lawrie, 
 
 idering the decision in the case of 14 Jan. 1869,21 D.240; Wilton' » ZV«. v. 
 
 Baird ■■ _ .!„„,,. is D. 124! 1 Stirling, 18 Dec. 1861, 24 D. L68.
 
 •j:;r, form and characteristics 
 
 oHAPTBBxii. husband's moveable property. On this case Lord Cuninghame ob- 
 served : " In an ordinary agreement inter vivos, where one party is 
 set free, there is generally a presumption that the other had the 
 will to be se1 free too. But here there is no such presumption. There 
 is no ground for inferring that the man himself wished his money 
 to go otherwise than as this paper plainly says."(e) It would seem, 
 therefi ire, that a mutual will, holograph of one of the parties, is effec- 
 tual as a testamentary writing of the party by whom it is written. 
 And it may be added that a docquet holograph of the other party 
 would operate as a ratification of his part of the settlement. (/) 
 in what cases a ^59. It appears to be settled by authority that a writing purport- 
 testamentary m o- to be holograph is receivable as such until the contrary is prov- 
 
 vratmg is pre- ~ ~ 1 . - . 
 
 sumedtobe cd,(g) though it is difficult to see why, when the instrument is 
 challenged, the burden of proof should not be thrown on the party 
 supporting it. In the absence of any statement in a will that it 
 was written by the granter, an executor applying for confirmation 
 undertakes the onus of proving its validity. On this subject Erskine 
 has observed: (h) " Holograph writings ought regularly to mention 
 that they are written by the granter ; in which case, they are pre- 
 sumed holograph unless the contrary be proved. But though this 
 should be neglected, a proof of holograph would be admitted, either 
 comparatione literarum, or by witnesses who saw the deed written 
 and signed." In the case of Anderson v. Gitt,(i) the appellants, 
 founding upon a dictum of Lord Jeffrey in the case of Turnbull v. 
 Doods,(k) attempted to maintain that the onus of proving the will 
 to be the deed of the testator was shifted by merely proving that 
 the signature was in the same handwriting as the body of the deed. 
 But it was ruled by Lord Chelmsford, affirming the judgment of the 
 Court of Session, that it is incumbent on the executor to show that 
 the will is in the handwriting of the deceased whose name it bears ; 
 in other words, that it is holograph of the granter. (I) This rule 
 applies to marginal alterations and additions to holograph writings, 
 and also to words written on erasures ; and therefore a general state- 
 ment by the granter, that the will was written by himself, does not 
 
 (e) 13 D. 190. Robertson v. Ogilvie's Trs., 20 Dec. 1844, 7 
 
 (/) Johnstone v. Coldstream, 30 June D. 236 ; Waddell v. WaddelVs Trs., 13 May 
 
 1843, 5 D. 1297 ; Lawrie v. Lawrie, 14 Jan. 1845, 7 D. 607, per Lord Moncreiff. 
 
 1859, 21 D. 240 ; Macintyre v. Macfarlane's (h) Erskine, supra. 
 
 Trs., 1 Mar. 1821, E.G., Dunlop v. Green- (i) Anderson v. Gill, 16 April 1858, 3 
 
 lees Trs. ; 2 Macph. 1 ; 2 June 1865, 3 Macq. 180. 
 
 Macph. H. L. 46. (k) Turn/mil v. Doods, 29 Feb. 1844, 6 
 
 (g) Ersk. 3, 2, 22; 1 Bell's Com. 5th I). 903. 
 
 e.l 324. Rothes v.Leslie, 1635, M. 12,605; (I) 3 Macq. p. 186. 
 
 Turnbull v. Doods, 29 Feb. 1844, 6 D. 8!)6;
 
 OF TESTAMENTARY WRITINGS 237 
 
 relieve the executor from the necessity of showing that the will in chapterxh. 
 its altered condition is an authentic testamentary writing. 
 
 460. A holograph settlement is not to be received as authentic Signature essen- 
 
 t ■■ i -,. ,.,,.. „ tial to the au- 
 
 unless the granter has authenticated it by his signature ; for it not thentication of a 
 subscribed, such writs are, as Lord Stair observes. - ' understood to be r codicil. W1 
 incomplete arts, from which the party hath resiled;" though he 
 adds, " if they be written in count books, or upon authentic Writs, 
 they are probative, and resiling is not presumed. "(m) In accordance 
 with this opinion, an unsigned holograph will, though commencing 
 with the name of the party, was unanimously held to be incomplete 
 and ineffectual. (n) Lord Fullerton justly observed : " The neces- 
 sity of subscription toa will is a matter which depends on no tech- 
 nical rule, such as the use of dispositive words in conveying herit- 
 bul is familiar to all the lieges without exception. Everyman 
 knows the difference between a deed thai is signed and one that is 
 unsigned. It appears to me, therefore, that the deceased must have 
 believed and understood that the writing was not effectual so long 
 as he withheld bis subscription from it, and that, if we now sus- 
 tained it as a valid instrument, we should be making a will which 
 the party died believing to be ineffectual."(o) But a notary's holo- Exception in 
 graph docquet, authenticating the deed of a person who cannot ^ e °g t notarial 
 write, has been sustained although not subscribed, when it contain- 
 ed the notary's name in gremio.(p) And an unsigned codicil may 
 be adopted by a holograph docquet.^) 
 
 461. It has been Laid down by some authors, perhaps a little too whether hoio- 
 broadly, thai holograph settlements, as they do not afford proof of pjete^tobe 
 
 their own date-, are presumed to have been executed on deathbed, affected by the 
 
 obji etion "t 
 
 and are therefore qo1 i li< ctua] tor the purpose of conveying herit- deathbed. 
 
 li is no doubl true that in order to overcome the presump- 
 tion of deathbed, the dale musl be supported by adminicles of evi- 
 dence ;(r) bin the testator's statemenl as to the dale is an elemenl 
 of evidence which a jury is entitled to take into view, and which 
 will not require very strong corroboration, unless there is reason to 
 apprehend thai the testator had a motive for antedating the writ- 
 ing.^) Lord Moncreiff was of opinion, thai when a reduction of Pi 
 a holograph Bettlemenl is broughl on the ground of insanity or ° sup< 
 facility, there ig n„ presumption thai the deed was executed at a '" >l ""- v - 
 
 Stair, 4, 42, 6. relal 
 
 Dunlop v. Dunlop, 11 June L839, 1 ection 8. 
 D. 918; I'ut Bee Gillespie v. Dm 8, 2,22; I, 
 
 rr«.,22 Dec. 1881, 10 Sh. 171. 29; Ei k. 8, E 
 
 l D. 921. Waddell v. WaddelVt Trs., 16 I 
 
 QuUen v. Ti 1781, M. ll i ' I - 15, 7 I ». 606; and 
 
 I7C6, M. H Lord IV i
 
 238 
 
 FORM AND CHARACTERISTICS 
 
 CHAPTKB XII. 
 
 Pr if of date of 
 settlements inter 
 
 Statutory nul- 
 lity of deeds 
 blank in the 
 name of the 
 grantee. 
 
 Precautions to 
 be taken in fill- 
 ing up blanks in 
 wills. 
 
 time when the granter is proved to have been in a state of mental 
 incapacity ; but that it is the duty of the holder of the deed to bring 
 such eyidence as may satisfy a jury that the deed was executed at a 
 time when the granter was capable ; and " in the absence of any 
 proof to the contrary, if he does bring before them pregnant circum- 
 stances of real evidence, these, when combined with the date ex- 
 pressed in the deed, will be sufficient to warrant a verdict against 
 the ground of reduction."(0 
 
 462. Reduction ex capite lecti being a privilege personal to the 
 heir, it follows that a holograph settlement of heritage is effectual 
 if the privilege is renounced, (u) And it maybe added that the 
 date of a settlement inter vivos can neither be questioned by the 
 granter of the settlement, (V) nor by a grantee who has accepted 
 the conveyance in his favour. (as) 
 
 463. III. Filling up of Blanks. — By the Act 1696, cap. 25, it 
 is enacted, " That for hereafter no bonds, assignations, dispositions, 
 or other deeds be subscribed blank in the person or persons' name 
 in whose favours they are conceived, and that the foresaid person 
 or persons be either insert before or at the subscribing, or at least 
 in presence of the same witnesses who are witnesses to the subscrib- 
 ing before delivery. Certifying that all writs otherwise subscribed 
 and delivered blank, as said is, shall be declared null." This Act 
 applies to trust-settlements blank in the names of the trustees, (y) 
 According to Erskine, the names of the disponees will be presumed 
 to have been filled in before delivery, unless the contrary be 
 proved, (z) It has been made matter of question whether this pre- 
 sumption would hold good though the name of the disponee were 
 inserted in a different handwriting from that of the body of the 
 deed. The case of Donaldson v. Donaldson is an authority in the 
 negative ;(a) and Professor Menzies justly observes, (b) that it would 
 be dangerous to risk the validity of a deed on the insertion of a dis- 
 ponee's name by a party not designed in the testing clause. 
 
 464. In consequence of inattention to the provisions of the Sta- 
 tute in relation to the filling up of blanks, deeds of settlement have 
 in several instances been defeated. In Pentland v. Hare,(c) the 
 
 (t) Waddell v. WaddelVs Trs., 7 D. 611 ; 
 and see Suttie v. Ross, supra. 
 
 (u) Tait on Evidence, 106 ; Dickson on 
 Evidence, § 764. 
 
 (v) E. Dunfermline v. E. Callander, 1674, 
 1 Br. Sup. 703. 
 
 (x) Scott v. Douglas, 1737, M, 12,616, 
 Elch. "Prescription," No. 12. 
 
 (y) Pentland v. Ilare, 22 May 1829, 7 
 SI i. 640. 
 
 (z) Ruddiman v. Merchant Maiden IIosp., 
 1746, M. 11,462. 
 
 (a) Erst. 3, 2, 6 ; Donaldson v. Donald- 
 son, 1749, M. 9080. 
 
 (6) Menzies on Conveyancing, 3d ed. 
 p. 131. 
 
 (c) Pentland v. Hare, 22 May 1829, 7 
 Sh. 046.
 
 OF TESTAMENTARY WRITINGS. 239 
 
 testator, who was in India, executed and sent home two trust- chapter xn. 
 settlements in the same terms, one of them being left blank in the 
 names of the disponees, but with instructions to his agent to com- 
 plete the duplicate in the event of the perfect copy not arriving. 
 The agent accordingly filled up the blanks as directed. The per- 
 fecl deed never arrived. The duplicate which had been filled up 
 by the agent was afterwards challenged as a blank deed under the 
 Statute 1696, and the objection was sustained. In Abernethy v. 
 Forbes,(d) the validity of a deed of entail was called in question on 
 the ground that the name of the last substitute had been inserted 
 outwith the presence of the testamentary witnesses. But the en- 
 tail was held to be effectual in relation to all the heirs other than 
 the party whose name had been irregularly inserted. 
 
 465. A settlemenl for charitable purposes is not necessarily in- Blanks in settle- 
 effectual by rests,, ii of the occurrence of blanks in the specification ^We pure^es? 
 of the persons intended to be benefitted, or the property or sum of 
 
 money intended to be applied ; these being regarded as matters of 
 detail, which may competently be left to the discretion of trus- 
 tees, (e) But it would seem that a legacy of an indefinite sum to 
 an individual would be void for uncertainty, unless it were in the 
 nature of a recompense for services rendered, or for a rational 
 cause. (/) An indefinite bequest maybe made effectual by being 
 conjoined with a power to trustees to fix the amount of the pay- 
 ment.!, 7) 
 
 SECTION II. 
 LLTERATION OF THE TEXT OF A WILL. 
 
 466. In considering the effect of alterations upon wills, it is ae- 
 ry to attend to the distinction which has been recognised be- 
 twixt tested wills and wills holograph of the testator — adistinction 
 which has many importanl results in relation to the law of inter- 
 pretation of wills, and which tends in some degree to neutralise the 
 tendency of such decisions as thai of the Morgan case, (A) and others 
 aboul to be noticed. 
 
 : neihy v. Forbes, L6 Jan. 1886, of Montrose, 17 Nov. L880, -I W. & S. 846. 
 
 18 si,. 268. See«'«/ra,chapt( t 24 (CharitabL B( qui 
 
 • Uil , Burnt, 11 April 1826, 2 W. 1/) Stewart v. Stewart, 26 Nov. L818, 
 
 39, N. K. 27^; P.O. 
 
 26 Julj 1828, 8 W. & («/) Murray v. Fleming, 1749, M. 4076; 
 
 B. 829, affirming 1 si,. 668, N.E. - r ,''.l ; Snodgrassv. Buchanan, 1806, M. "Service 
 
 Mags, of Dunde* Morris, L May I 68, 8 of Heirs," App. No. 1. 
 
 Macq. l.;l. 164, overruling Ewenr. Mags. Wags, of Dundee v. Morris, 1 " ! 
 
 1868 184
 
 Ih rd 
 
 '-'l (l FORM AND CHARACTERISTICS 
 
 c HAn-KR x ir. 467. i. Alterations 1 pon Deeds not Holograph. — From an early 
 Authenticity of l"' 1 ' 1 "' ' ll '' K ' history of imr law it has been regarded as a settled 
 wiiisnoi hoio- proposition ih;i( substantial alterations in instruments not holoqrapli 
 
 graph how far ' , , . ... , , . , , J r 
 
 r are tatal to their authenticity, the reason being that they are pre- 
 sumed to have been made after execution. (f) We are not aware 
 that any good ground exists for the distinction (recognised, cer- 
 tainly, in some of the cases) between alterations on such deeds 
 written manu aliend, and alterations holograph of the granter. On 
 the question, What is a substantial alteration? much diversity of 
 opinion has prevailed. Some points, however, are clearly settled. 
 Thus, the name of the grantee, if he takes a beneficial interest, is 
 substantial. (Je) The date at which an obligation is prestable is a 
 material part of the deed ;(7) so also is the sum stipulated to be 
 paid.(m) Alterations in the testing clause are almost always de- 
 structive to the deed ; as, for example, in the date of execution, (?i) 
 or in the statement of the number of the pages, (o) In a deed of 
 entail, the restraining clauses are, of course, substantial, (p) 
 Grant v. siiep- 468. In Grant v. Site2)lierd,(q) where an entail was cut down 
 because the name and designation of the first heir substitute in the 
 destination was found to be written on an erasure, Lord L} r nd- 
 lmrst observed : " The deed therefore being clearly improbative, no 
 evidence can be admitted to prove when or by whom the altera- 
 tions were made ; and there is nothing on the face of the deed it- 
 self to show that the alterations w r ere made before the execution. 
 . . . The presumption of law therefore is, that they were made 
 afterwards." (r) But to this statement of opinion, which would 
 seem to predicate the absolute nullity of all conveyances vitiated 
 in the name of any of the grantees, a qualification was adjected. 
 " There is no doubt," his Lordship continued, " that a deed may 
 be good in part and bad in part. Where there are two independ- 
 ent provisions, the one may be vitiated by erasure and the other 
 may prevail, as in the case of a deed giving a legacy to A. and an- 
 other to B. If the legacy to A. be vitiated by erasure, yet the legacy 
 
 (i) Stair, 4, 42, 19 ; Ersk. 3, 2, 20 ; (n) Smith v. Rankine, 30 July 1840, 1 
 
 Balfour's Practicks, 368 : Mags, of Dun- Rob. 173. 
 
 (be v. Morris, 3 Macq. 152, per Lord (o) Morrison v. Nisbet, 30 June 1829, 
 
 Chelmsford. 7 Sh. 810; Gaywood v. M'Keand, 19 June 
 
 (/r) Grant's Trs., v. Shepherd. 21 July 1828, 6 Sh. 991 ; Cassilis v. Kennedy, 2 
 
 1847, 6 Bell, 153, affirming 6 D. 464; June 1831, 9 Sh. 663. 
 
 Eeidv. Redder, 30 July 1840, 1 Rob. 183, (p) Eraser v. Fraser, 11 Mar. 1854, 16 
 
 affirming 13 Sh. 619. D. 863. 
 
 (I) Kirkwoodv. Patrick, 25 June 1847, (q) Gra7it's Trs. v. Shepherd, 21 July 1847. 
 
 9 D. 1361 ; Howie v. Merry, M. " Writ/' 6 Bell. 153. 
 
 App. No. 3 ; 17 March 1806, 5 Pat. 101. ,(r) 6 Bell, 171. 
 
 (m) Lawrie v. Reid, 1712. M. 12,284.
 
 OF TESTAMENTARY WRITINGS. 24 1 
 
 to B. would remain good. So also, where there is a grant of an es- chapter sit. 
 
 tate with a series of substitutions, and one of the later substitutions 
 fails by reason of an erasure, that would not affect the previous es- 
 tates. This was decided in the BalbeitJ/on case,(s) and, as it would 
 seem, on the ground of those estates not being dependent on the 
 subsequent limitation." (t) 
 
 469. It i- on the principle here enunciated by Lord Lyndhurst Erasure in tms- 
 (that vitiations in the name of a grantee affect only the estate or ^"..^'X'ti'.'ii ''."'' 
 interest given to him) that we may most satisfactorily rest the ".■' t 'j a J'| y j li , . 1, ( '! ..,,,_ 
 decisions sustaining deeds of trust, notwithstanding the entire 
 destruction of the clause of conveyance to trustees. In the earlier 
 
 the difficulty appears to have boon avoided by holding 
 that the deletion of the name of one trustee was immaterial whilst 
 there remained a sufficient conveyance in favour of the others. In 
 Robertson v. Ogilvie's 7'r».stees,(x) — where the names of three out 
 of seven trustees were deleted — the decision proceeded partly on 
 the same ground, and partly on the ground that the writing in 
 which the deletion occurred was holograph. But the principle, 
 thai the beneficial interest may subsist notwithstanding the de- 
 struction by deletion of the conveyance of the legal estate, was dis- 
 tinctly enunciated by Lord Fullerton in the following passage: — 
 '• In the first place, the whole beneficial interests created by the 
 deed an- left uncancelled and untouched. They remain the un- 
 equivocal expression of tin- grantor's intentions, and form, in truth, 
 the substantial of such a deed. Tin.' trust is nothing but the ma- 
 chinery for carrying those intentions into effect; ami. so far from 
 being essential to the supporl of the beneficial interots.it is well 
 known that these interests are protected, ami means taken for 
 carrying the granter's intentions regarding them into effect, after 
 the whole apparatus contrived by him for that effed has irrecover- 
 ably falli d to the ground. This consideration would go tar to sup- 
 port a defence much more general than is necessary in the presenl 
 
 . as it affords a strong analogy in favour of the proposition, 
 that a total failure "i the appointmenl of trustees in consequence 
 
 rasure in all the names mighl qo1 he fatal to the deed."(y) 
 
 470. The opinion expressed in this passage received complex 
 effect in ; , subsequent decision of the bir-t Division of the Court, (z !,, ','•'',' 
 where a trust-disposition of heritable property, nol holograph, v< h wheth<r 
 
 i 
 
 I , L6 Jan. L886, .. Ogilvie's 7V«:, 20 Di 
 
 I It. 7 I' 
 172. 
 
 I B02, M. 16,9 1' 1 /.' yal Inj v of Edin. I 
 
 I! ,.. 26 J ; 1861,28 D. 1218. In 
 
 Vol, I.
 
 ■J I -J 
 
 FORM AND CHARACTERISTICS 
 
 OHAPTEB Ml. 
 
 Vitiation of part 
 of a settlement 
 consisting of 
 sevi nil 
 writings. 
 
 Entail cases. 
 
 sustained, notwithstanding the deletion of the names of the whole 
 of the trust-disponees. The ease is an authority also in favour of 
 the competency of supplementing the provisions of a tested deed 
 by holograph additions on the margin. The truster had indorsed 
 on the margin of the deed, and opposite the deletion, the words, 
 ■' Managers of the Royal [nfirmary for the time being," and it was held 
 thai those words might receive effect as a holograph memorandum 
 appointing the Managers of the Infirmary for the time being trustees 
 of the settlement. (a) On the same principle, a marginal note, holo- 
 graph of the testator, added to a tested deed, leaving "to A. B. the 
 sum of £20 a year, provided she has not already got it in my life- 
 time," was sustained to the effect of qualifying an annuity of the 
 same amount specified in the body of the deed, (ft) 
 
 471. The case of PeddieY. Doig's Trs.,(c) in which a codicil was 
 attempted to be reduced on the ground that the precept of sasine 
 was written on an erasure, raises the important question, whether, 
 in the event of a codicil being vitiated in essentialibus, the settle- 
 ment to which it is annexed can receive effect as a subsisting testa- 
 mentary writing ? The judges seem to have been generally of 
 opinion, that if the vitiation were absolutely destructive to the codi- 
 cil as an authentic expression of the testator's last will, it would be 
 equally fatal to the settlement. The case was distinguished from 
 that of a codicil insufficiently authenticated, and which is therefore 
 null ab initio ; whereas in the case where the testator has actually 
 altered his settlement by a codicil, the true import of which, by 
 reason of the vitiation, cannot be ascertained, it would seem that 
 the revival of the antecedent settlement would be virtually making 
 a new will for the testator, (d) In the case under consideration, 
 the judges were of opinion that the insertion of the precept was 
 not an alteration in essentialibus, and the question remained unde- 
 cided. 
 
 472. The cases upon erasures and alterations in deeds of entail 
 are examined in the subsequent chapters specially treating of the 
 law of entail, and it has been thought unnecessary to notice them 
 here, enough having been said for the exposition of this part of the 
 subject, (e) 
 
 revocation of a nomination without naming 
 others, the machinery of administration is 
 supplied by the Court; Melville, petr. 8 
 Mar. 1856, 18 D. 788. 
 
 (a) See Kennedy v. Arbuthnot, 1722, M. 
 1681 ; Richardson v. JJiggar, 19 Dec. 1845, 8 
 D. 315, where a nomination of A., whom fail- 
 ing, B., to be the testator's executor, was 
 
 sustained, although the word "whom" was 
 written on an erasure. 
 
 (b) Horsbrugh v. Horsbrugh, 1 Mar. 1848, 
 10 D. 824. 
 
 (c) Peddie v. Doig's Trs., 12 June 1857, 
 19 D. 820. 
 
 (d) 19 D. 828. 
 
 (e) Chapter 32, infra. The latest cases 
 are Borthwick v. Glassford, 15 Nov. 1853,
 
 OF TESTAMENTARY WRITINGS. 243 
 
 473. II. Alterations on Holograph Deeds.— The principles cnArTER xn - 
 applicable to the alteration of tested deeds after subscription have Holograph alter- 
 never been applied with the same strictness to holograph writings, j^^eau- 
 And since the decision of the House of Lords in the Morgan will thenticity of a 
 
 holograph will. 
 
 case,(/) it may he doubted whether any conceivable extent of alte- 
 ration upon the text of a holograph will would have the effect of 
 rendering it ineffectual. A tested deed, to be effectual in law, must 
 appear to be a deed that has never been changed, so that the sub- 
 scriptions of til.- \\ itnesses and granter may [trove the whole writing. 
 If part of it appear to have been changed, it cannot he known with 
 certainty what was the state of the document at the time when it 
 was authenticated by the granter's subscription. But the authen- 
 ticity of a holograph deed docs not wholly depend on the signature. 
 In the case of Robertsons. Ogilvie's Trs.,(<j) Lord Mackenzie ob- 
 served, in a passage quoted with approbation in the Morgan case, 
 — " A holograph i\v\-A depends mainly on the handwriting of the 
 granter in which it is proved or admitted to be. Then the ordir 
 nary doctrine of erasure and superinduction cannot apply; for there 
 is no room to say that the alteration or change was not made by 
 the -ranter. On the contrary, being in his handwriting proves thai 
 it was made by him ; so that it stands in the same situation as an 
 ordinary deed when it has an express clause mentioning that the 
 alteration was made by the granter."(A) 
 
 474. In the case of the Magistrates of Dundee v. Morris,(k) the Effect of memo- 
 House of Lords gave effect to a holograph memorandum indorsed ( ' 1 ',',"'n' l "''ii"i'h;.i" 
 on a will, annulling whal was written on the previous pages, and ;'' '''''• 1 ".,' 1 "' , 
 
 p -i r o > Ii.mmIw ntmg "I 
 
 declaring the granter's intention to establish an hospital in Dundee, thetestator. 
 as theivin described. A portion of the clause descriptive of the 
 foundation was deleted, including the word "hospital;" so that. 
 Hide-- tin- deleted passage were read, there was no specification oi 
 the purpose of the trust. Their Lordships sustained the memoran- 
 dum ; and being of opinion that the deletion of the word "hospital" 
 
 accidental, they held themselves entitled to read i1 for the pur- 
 
 ■ •\ completing the sense of the preceding passage ; although, 
 
 in construing the writing, they held th.it the deleted portion could 
 
 not receive effeel as a substantive provision. In the subsequenl 
 
 of Chapman \. Macbean's Trs. } (t) the C "t sustained the 
 
 16 D. .7: Oollan Qollan, 28 Ji the last pa i are a fortiori confirmatory of 
 
 1 Macph. II. I,. 66; and Howden \. Glass- thi aent. 
 
 1864, 2Macph. L817. Wags, of Dundee v. Morris, I May 
 
 infra. 1868, 8 Macq. L84. 
 20 Dec. Chapman \. Macbean's '!'•■.. 10 Fob. 
 
 l-i I. : |. i860, 22 D. 746. See ^ 
 
 7 D. 242. The <■ < ea mentioned in 1 March 1852, 14 D. I id point).
 
 2 ii 
 
 FORM AND CHARACTERISTICS 
 
 IMIAVTI'R XII. 
 
 Authentication 
 ami date of 
 
 iph addi- 
 o testa- 
 mentary writ- 
 ings. 
 
 validity of a short codicil which, besides being so ungrammatically 
 expressed as to be almost unintelligible, contained a material error 
 in the name of the legatee, partially corrected by deletion. Lord 
 Justice-Clerk Inglis, referring to the case of Morris, said, "If it 
 is necessary to make sense of the deed, you must read the part of it 
 obliterated as if it was not obliterated, — a doctrine very new to me 
 certainly, but which I must now subscribe to." 
 
 475. It is almost superfluous to add, that unsigned marginal 
 additions and interlined passages in holograph writings maybe read 
 as part of the deed; the validity of which they do not in any way 
 affect, (m) But in a epiestion of deathbed, the date of such altera- 
 tions must be established by independent evidence, (n) We have 
 already seen that unimportant holograph additions to tested deeds 
 may receive effect as memoranda of alterations, if it appear that the 
 testator intended them to have that effect, (o) 
 
 SECTION III. 
 
 Adoption of in- 
 
 f. : 111 ll V. l':tlll J S 
 
 in a formal will 
 
 or settlement. 
 
 Adoption of 
 
 asly exe- 
 cuted writings. 
 
 OF CODICILS AND WRITINGS AUTHENTICATED BY REFERENCE. 
 
 476. No description of writings furnishes so many examples of 
 the danger of neglecting the formalities of attestation as that of 
 wills and testamentary settlements. Prior to the case of- Wilsone's 
 Trs.(p) there is no instance of a testamentary deed signed by the 
 testator having been sustained which was neither holograph, tested 
 in terms of the statutes, nor adopted by reference in a subsequent 
 authentic testamentary writing. In the case of Rankiney. Reid,(q) 
 an attempt was made to support a codicil, neither tested nor holo- 
 graph, upon the plea of favour to testamentary writings, but the plea 
 was overruled. In other cases, a deed may be set up by the aid of 
 the plea of rei interventus ; but objections to the formality of testa- 
 mentary settlements are almost always fatal, (r) 
 
 477. The adoption or authentication by reference of informal 
 writings may be in either of the following modes : — (1) A testator 
 may, in his holograph or tested settlement, adopt a previously written 
 
 (m) Robertson v: Ogilvie's Trs., sujwa ; 
 Grant v. Stoddart, 27 Feb. 1849, 11 D. 
 860; Kemps v. Ferguson, 1802, M. 16,949; 
 Bruce v. Stewart, 1666, 2 Br. Sup. 427. 
 
 (n) Burie v. Gibson, 1667, M. 16,927 ; 
 Johnstone v. Johnstone, 1688, M. 17,063. 
 
 (o) Suj)ra, \ 469. See also Horsbrugh v. 
 Horsbrugh, 1 Mar. 1848, 10 D. 824, and 
 Nasmyth v. Hare, 27 July 1821, 1 Sh. (Ap. 
 Ca.) 65. 
 
 O) Wilsone's Trs. v. Stirling, 24 D. 163. 
 Here the codicil was holograph of one of 
 the granters only. 
 
 (q) Rankine v. Reid, 7 Feb. 1849, 11 D. 
 543. 
 
 • (r) It seems, however, that an informal 
 testamentary writing may be homologated ; 
 Bogan v. Logan, 27 Feb. 1823, 2 Sh. 253, 
 N. E. 222. See also Macmillan v. Macmillan, 
 28 Nov. 1850, 13 I). 187.
 
 OF TESTAMENTARY WRITINGS. 2 L5 
 
 paper, which may be either holograph and unsigned, or signed but chapter xn. 
 not holograph, or neither holograph nor signed. The adoption, to 
 be effectual, must be in express terms, and the writing intended to 
 be adopted must be so described as to admit of identification, (s) 
 (2) A testator may declare that informal memoranda, to be after- Adoption by an- 
 ivar<J* written, shall be binding on his trustees in the same manner whether'compe- 
 as if they had formed part of the settlement. As documents not ^h™tf r ^ e 
 yet written cannot be identified by reference, the same necessity statutes, 
 would seem to exist for the authentication of such memoranda as 
 in the case of any ether testamentary writing. However, it was 
 held that a testator might by anticipation give authenticity to in- 
 Formal memoranda, to the extent of validating a subscription by 
 initials. (/) And by the decision in the case of Wilsone's Trs. the 
 rule is so far relaxed (erroneously as we venture to think) that a 
 testator may now adopt by anticipation a signed codicil not holo- 
 graph. (//) It appears to us thai the attestation of a will cannot, in 
 any reasonable sense, be held to apply to a codicil subsequently 
 
 suted; that the decision in question is contrary to principle, 
 and a direct violation of the provisions of the Attestation Statutes; 
 and we think it is very doubtful whether its authority would, even 
 at this interval of time, be recognised in the court of ultimate 
 appeal. (.r) 
 
 478. The questions that have arisen upon the adoption orrecog- Adoption by in- 
 nition of testamentary writings relate chiefly to the identification ors 
 of memoranda referred to in regular testamentary writings, subse- 
 quently executed. The best mode of adopting an informal writing 
 is by a holograph docquet on the writing itself. In Macinty re v. 
 Macfarlxxne's Trs.Qf) a will, which was neither holograph nor tested. 
 
 was held to be Validated by the addition of a shoil codicil ill the 
 
 testator's hand, commencing with the words, "I add to this." And 
 where a testator, by his deed of settlement, provided thai bequests, 
 to be afterwards declared, should be effectual if written, dated, and 
 signed by himself, and he Left inter alia two holograph codicils on 
 
 («) Inglis v. Harper, 18 Ocl L881, 6 W. (x) The precedent has been followed 
 
 & Sh. 7--"', i 6 8h. 864; Callander by the I'm i Divi ion in Young's Trs. v. 
 
 'mder't Trs., 17 D 1 68,2 Blacph. Roes, 8 Nov. L864, 8 Macph. It). In Oros- 
 
 291 : Baird v. Jaap, infra. bie v. Wilson, 2 June 1865, 8 [tfacph. 870, 
 
 • /; Wd v. Jaap, L5 July L866, 18 l>. an antecedent dispensation with the forms 
 
 12 16. of attestation was, bj the Second Divi ion, 
 
 Wii Trs.v.Stirlt beld ineffectual to validate a codicil sub- 
 
 Reid, 7 Feb. I s la. ii D. 648; mark in the pn ence of wit- 
 
 /' I . I I DIM' .'0 7, I 
 
 If, "Writ," A.pp. No. 6; and com] Vaeintyi '' ■'■■< /' •.. 1 
 
 Jh. 81, Mar. 1821, l I
 
 2 16 I't »i;M and characteristics 
 
 ohafteb xii. one sheet of paper, dated at the commencement and signed at the 
 end of the second codicil, the Court held that the signature was 
 sufficienl to validate both the codicils, (a) 
 tionbyre- 479. Winn the recognition is hy a separate testamentary writ- 
 : of date mg, it is usual to refer to the paper by its title ; and m practice, it 
 lias liccn considered snllicient, in the case of contracts, to refer 
 to signed plans and specifications as writings signed in relation to 
 the contract, (a) In this manner, also, may a signed inventory of 
 titles be incorporated hy reference in a conveyance of property. On 
 the same principle, where a testator appointed an executor to hold 
 his estate, " subject to the payment of such bequests as I may in- 
 struct him to pay, in a letter signed by me of this date, to the 
 several persons therein named," — the residue to go to the executor 
 — and the testator died two days afterwards, leaving a signed letter 
 of instructions not holograph, the House of Lords decided that the 
 adoption of the letter in the probative will made it effectual, and 
 they directed an issue to try the question, whether the letter founded 
 on was the one referred to in the will, (b) 
 Whether signa- 480. It is not necessary that the document adopted by reference 
 
 tui'G is c^st*iititii • 
 
 should be subscribed by the party. The mere signature of the party 
 to a document written by a different hand is not authentication ; 
 nor is it needed to denote the completion of the writing, that being 
 fixed by the reference in the principal deed. The signature of the 
 
 (z) Gillespie v. Donaldson's Trs., 22 Dec. of three codicils on the same sheet of 
 1831, 10 Sh. 174. See Bryson v. Craw- paper was sufficient to validate the whole 
 ford, 1833, 12 Sh. 39; Hamilton v. Moir, series, without words of express reference. 
 1710, M. 17,028. By the law of England (a) See Wilson v. Glasgow $ S.-W. Eg. 
 an attested codicil validates an unauthenti- Co., 25 July 1751, 14 D. J ; Aberdeen Eg. 
 cated will written on the same paper. In Co. v. Blaikie, 28 Jan. 1851, 13 D. 527. 
 Be Bathe v. Lord Fingal, 16 Ves. 167, a {b) Inglis v. Harper, 18 Oct. 1831, 5 W". 
 will was attested by only one witness; but & S. 785, reversing 6 Sh. 864 ; Stewart v. 
 a codicil having been appended, attested Watson, 1791, Bell's Oct. Ca. 225. In the 
 by three witnesses, in terms of the 10 English case of Aaron v. Aaron, 3 De Gex 
 Car. II., cap. 24, which was declared to be & Sm. 475, where an unattested codicil was 
 a codicil to the will thereunto annexed, referred to in a subsequent duly executed 
 the attestation was held to apply to the codicil, written on a separate paper, it was 
 will. And where a will was left blank in held that the former was thereby rendered 
 the attestation clause, and, a fortnight effectual for the devise of real estate. A 
 afterwards, the testator appended a short detached attested codicil, of course, will 
 codicil undated, but signed by three wit- not cure the defects of a prior unattested 
 nesses, the Court of Exchequer held that writing not referred to ; and a general re- 
 tire attestation applied to the whole of ference to prior wills and codicils will be 
 what was written on the paper, on the held to apply only to such as are regularly 
 ground that the codicil contained an ex- attested, if there are such in existence ; 
 press reference to the will. Doc d. Wil- Croker v. Marquis of Hertford, 4 Moore, 
 Hams v. Evans, 1 Cr. & Mees. 42. In the P.C. Ca. 339 ; Allen v. Maddock, 11 Moore, 
 later case of Guest v. Willascy, 2 Bing. P.C. Ca. 427. 
 ' n 4 , it was ruled thai the execution of one
 
 OF TESTAMENTARY WRITINGS. 247 
 
 granter ifi a very important element in the proof of the identity of chapter xii. 
 the writing to which it is adhibited with that referred to in the 
 will; though, of course, the identification might be established by 
 other evidence, (c) 
 
 481. A mere reference narrative to a previously executed writ- Recital noi equi- 
 ing is not equivalent to adoption. In order to give validity to an tion. 
 informal writing, it must appear that the reference was made for 
 
 the purpose of importing that writing into the operative part of the 
 wilL(d) 
 
 482. Li the case of Blair v. Blair, (e) it was decided, after very Paper of in- 
 anxious consideration, that a holograph memorandum of instruc- ^"be'r' 
 tions to prepare a settlement leaving residue to an eldest son, could P ur P° se of con- 
 
 11 ° ' trolling the will. 
 
 not be read for the purpose of controlling the settlement itself, by 
 the terms of which the residue was given, not to the eldest son, but 
 to the whole children equally. "I think," said Lord Moncreiff, "it 
 is mo>t dangerous to say that a regularly executed deed shall be 
 c"ht roll.d and perverted from its legal import by reference to an 
 unauthenticated instrument, said to contain instructions of the de- 
 - d for making a deed of settlement. Whatever were her in- 
 structions, the deed was executed by the testatrix in the terms in 
 which it stands ; and we can get her intention nowhere else but in 
 that deed. We know not what circumstances or what considera- 
 tions may have occurred between the time when the paper of in- 
 structions was written and the date of executing the dced."(/) 
 There is however, some authority for holding that a draft may be 
 referred to Eor the purpose of correcting clerical errors. (g) 
 
 483. Although, as we have seen, the reservation of a power to Liberal con- 
 alter, by any informal writing, will no1 obviate objections to the ci 
 formality of such writing- in resped of execution, it will entitle ^onlo'styie 6 " 
 them to a favourable construction in a question as to style. Inde- ai " 1,x i 
 pendently indeed of any reserved power, deeds of alteration are so 
 
 far privileged thai they are binding on trustees of heritable pro- 
 perty although informal as to style. For example, the purposes of 
 a trust of heritable property may be declared by testamenl if an 
 effectual conveyance has been made by a previous settlement. (A) 
 
 [e) Russell v. Freen, 14 Ma] 1885, 18 SL (;j) Barstow v. Kilvington, ■"> V< . jun. 
 
 762; Gordon v. Anderson, L6 Feb. 1828, 698; Milncr v. Mi/wr. 1 \Y,. „ n. I of, ; 
 
 8W. &8h. 1. As to the suffii na- Blackwood \. Darner, u Phil. 458, a 
 
 • i. lee Mason v. Skinner, Castellv. Tag, 1 Curt. Eccl. 298. 
 
 L6Jur. \-^. (A) Ballantyne \. Mags, of Ayr, 17 Jan. 
 
 /■ ■ . /.' s#,28Jan. 1852,14 L888, L6 Sh 825; Panton v. Qillies, 22 
 
 - Urqvhartv. Urquhart, 20 Feb. Jan. 1824, 2 8b. 682, N. E. 686 ; Cameron 
 
 L861, 18 D. 742. v. Vackie, 29 Ug. L888, 7 W. \ s. 106, 
 
 Blair v.Blair, 16 No' L849, 12D. 97 affirminj 9 Sb. 601. And a will may be 
 
 12 D. 108 to for I
 
 2 18 FORM AND CHARACTERISTICS OF TESTAMENTARY WRITINGS. 
 
 chapteb mi. The trust conveyance itself may also be revoked by a testament ;(*') 
 bul in that case, it' the testator, instead of engrafting new purposes 
 on his subsisting settlement, begins by revoking it, and proceeds to 
 make a new settlement of his heritable property without using dis- 
 positive words, that will not be operative. The revocation will be 
 effectual, but the estate will result to the heir-at-law. (k) The case 
 of Barclay v. Griffiths is an example of a declaration of trust in a 
 holograph letter engrafted on a settlement of heritage. (J) A holo- 
 graph alteration or declaration of purposes will bind the heritable 
 estate, though it should at the same time revoke the appointment 
 of trustees contained in the settlement, (to) 
 
 Forum. 484. The question, whether a document is a testamentary writ- 
 
 ing, or a mere instruction to prepare a will, is for the Court, not for 
 a jury, (n) 
 
 trust-settlement, where the two writings (k) See infra, chap. 18, sect. 6 (Revoca- 
 
 are parts of a connected scheme of disposi- tion). 
 
 tion; Campbell v. Campbell's Trs., 21 Dec. (I) Barclay v. Griffiths, 4 Mar. 1830, 8 
 
 1866, 5 Macph. 206. Sh. 632. But see, contra, Stewart v. Baillie, 
 
 (i) Willoch v. Ochterlony, 1772, 3 Paton, 27 Jan. 1841, 3 D. 463. 
 
 659, affirming M. 5539 ; Brack v. Hogg, (m) Kidd v. Kidd, 9 June 1843, 5 D. 
 
 23 Nov. 1827, 6 Sh. 113 ; Leith v. Leith, 6 1187. 
 
 June 1848, 10 D. 1137 ; Purvis' Trs. v. (n) Maclean v. Maclean's Trs., 14 June 
 
 Purvis' Exrs., 23 Mar. 1861, 23 D. 812. 1861, 23 D. 1099 ; Munro v. Coutts, 1 Dow, 
 
 437.
 
 REVOCATION OF WILLS AND TESTAMENTARY DISPOSITIONS. 
 
 249 
 
 CHAPTER XIII. 
 
 CHAPTER XIII. 
 
 REVOCATION OF WILLS AND TESTAMENTARY 
 DISPOSITIONS. 
 
 I. J' oke. 
 
 II. Revocation by Birth of Children. 
 
 III. by Ademption or Alteration of 
 
 Title. 
 
 IV. by Cancelling or Destroying the 
 
 Test am < ntary I 1 ~rit ing. 
 V. by a Subsequent inconsistent Testa- 
 
 mentary Writing. 
 VI. Effect of the Law of Deathbed. 
 
 SECTION I. 
 
 POWER TO REVOKE. 
 
 485. The granter of a will or deed of settlement is in general wm or settle- 
 entitled to revoke or alter its dispositions whilst the instrument and "ered'fctSmia- 
 
 3tate conveyed by it remain subied to his control, which they are ton-, and subject 
 
 • , to granter's 
 
 held to be so long as the instrument is undehvered. And where by a power of revo- 
 contract <>i marriage the husband's estate is disposed of only in a cer- 
 tain event, e.g., by giving it, in the event of his wife's survivance, to 
 her in liferent, and to the children of the marriage in feu, the settle- 
 ment is revoked by the occurrence of t lie alternative event of the wife's 
 predecease, and a new settlemenl may then lie made for different 
 purposes. (a) A gettlemenl of heritable estate containing a clause 
 dispensing with delivery,(6) and ;i will or disposition of moveables 
 without such a clause, are effectual when found undelivered in the 
 granter's repositories, or in the custody of a friend or agenl to whom 
 the instrument was intrusted for safe keeping. Up to the last 
 moment oi Life a voluntary settlemenl of the granter's estate is hold 
 t<> he ambulatory and revocable, if it has not previously been de- 
 • I to the grantee. 
 
 486. Delivery, it maybe affirmed, will not constitute a bar to Delivery a bat 
 
 to n \< cation 
 /' • / 8 Macph. <li'I not contain ;i clause dispensing with u. 
 
 II I.. 69. d< li Id aol receive eff< i aterrei 
 
 : held thai ;i i til. mi ntary insi Robt rt 
 
 ment of horitabli not de- ton, 21 Feb 1867, 6 M
 
 250 REVOCATION OF WILLS AND 
 
 rnvr-ri-ii xiu. the revoca I ion of a settlement which reserves the granter's liferent, 
 unless a beneficial and indefeasible right is conferred by the settle- 
 ment on a person in existence at the time of delivery. For exam- 
 ple, where a mutual postnuptial settlement by spouses was revoked 
 by the wife as donatio inter virum et uxorem, and the deed of revo- 
 cation was objected to on the ground that the settlement thereby 
 revoked conferred certain rights on the lady's daughter, for whose 
 behoof the settlement was alleged to be retained, it was found that 
 the right claimed, not being a vested interest but only a spes suc- 
 cessions, did not bar the granter's power of revocation. (c) Again, 
 illustration of where a young lady, at the suggestion of her friends, immediately 
 a'ii\ 'rv l ° f on coming of age and shortly before her marriage, executed a trust- 
 Murison v. settlement inter vivos of her whole estate for the benefit of the chil- 
 
 JJtck. 
 
 dren of her then intended marriage, whom failing, for her next of 
 kin, reserving her own liferent, which deed she soon after revoked, 
 and granted in place of it an antenuptial contract of the ordinary 
 description, the revocation was sustained, (d) On behalf of the grand- 
 er, it was argued that she was entitled to have the deed reduced as 
 having been granted inconsiderately. Lord Rutherfurd, while ex- 
 pressing doubts as to the sufficiency of that ground of action, held 
 that the deed was revocable in its own nature, on the ground that 
 there was no jus qucesitum in the parties for whom the trustees were 
 to hold. " That a party may grant an irrevocable deed," he ob- 
 served, " and put it beyond his power by delivery, and vest effec- 
 tually the property so conveyed against his own subsequent acts and 
 deeds, for the benefit of existing parties in whom by that deed he 
 creates an interest, there can be no doubt. But such a case has no 
 resemblance to the present. . . . There was no beneficiary in 
 whom a jus qucesitum could be vested. Upon the principle now 
 contended for, it must have remained good all her life ; and w r as it 
 to be held that by such a deed she could reduce herself directly to 
 the state of an alimentary liferenter merely of her own property, in 
 favour of parties not existing, who never might exist, and whose 
 possible existence was not yet the subject of any contract with any 
 existing party ? " The judgment was affirmed by a majority of the 
 judges in the Inner-House for the same reasons, (e) 
 •Settlements by 487. It is not to be doubted that the delivery of a deed to a 
 
 deed inter vivos 
 
 by delivery ( c ) ^ ern ^ e v - Colquhoun's Trs., 20 Dec. by the spouses and the heir or immediate 
 
 1854, 17 D. 233. The questions in what issue, are considered infra, chap. 23, sect. 
 
 cases heirs of children take a Jus crediti, or 2 (Marriage-Contract Provisions). 
 
 vested right, under marriage-contract obli- (d) Murison v. Dick, 10 Feb. 1854, 16 
 
 gations, and whether grandchildren or sub- D. 529. 
 
 stituted heirs take any such interest as (e) 16 D. 532. Compare this with Torry 
 
 would prevent a discharge of the contraci Anderson's case, 2 June 1837. 15 Sh. 1073.
 
 TESTAMENTARY DISPOSITIONS. 251 
 
 party beneficially interested in its provisions, or to trustees for his chapter xm. 
 behoof, will completely deprive the granter of the power of revoca- 
 tion, if the right to exercise that power be not expressly reserved. 
 Thus, in the case of Turnbulls v. Taicse,{f) a trust was created by 
 a lady for the purpose of conveying the residue of her property to 
 her children nominatim, after payment of a certain debt, and under 
 reservation of an annuity to herself. By a supplementary trust- 
 deed she attempted to increase the amount of the debt forming a 
 burden upon the property. Delivery having taken place construc- 
 tively by infeftment, it was held that the second deed could not 
 t the interest given to the children. Deeds of provision con- 
 veying special subjects to a child or children, are not unfrequently 
 delivered to the grantees in the lifetime of the granter, and when 
 so delivered they confer a vested right on the objects of the grant, 
 of which they cannot be deprived by a subsequent revoking or in- 
 consistent will "i- deed of provision, (r/) 
 
 488. In the case of Smitton v. Tod,(h) a proprietor of heritable Smitton v. Tod. 
 subjects, on the narrative that he was incapable, from facility, of 
 profitably conducting bis affairs, conveyed all bis property to trus- 
 tees for the purpose, after payment of debts, of providing an ali- 
 mentary annuity to bis wife, to be continued on her death to him- 
 self, the residue being destined to the children of the marriage, of 
 
 whom there were two already bein at the date of the deed. The 
 trustees took delivery by infeftment. It was strenuously main- 
 tained that this deed was revocable as a postnuptial contract ; but 
 the' Court held that the children had acquired a vested interest in 
 the estate, which was sufficient to exclude the power of revoca- 
 tion. 
 
 489. In the luii her consideration of this subject it is to be ol>- whether grant- 
 served, that although a settlor may, as we have seen, divest himself 'jj^renda fe* 
 <<\ property already in hi- possession by a delivered gratuitous deed, ® x j clu tar by ttie- 
 it has never been decided that he may dispose of ac<jN/r< itda in the '"cut. 
 
 same manner. It appears to he contrary to good policy to permit 
 sueh an absolute renunciation of the rights of property by a party 
 I • 9s< — I oi capacity to execute a deed. In the case of Wright v. 
 
 (/) TurnbuUt \. Towie, 1 "• A.pri] L826, Miller?. l>tck.«<m, 11 July 1826, 4Sh.822, 
 
 W. ,\; s. 80 Qg 2 Sh. 1. On the N. E. 829; and Fernit v. Colquhourii Trs.. 
 
 other hand, in I Sommerville \. 20 Dec. 1854, 17 D. 233. 
 
 SommerviUe, IS M L819 P.O. adeeddie- Napier v. Orr, 1m Not. L864, 3 
 
 of heritage, and recorded in Hm; Macph. 67; Spend v. Ross, 17 Nov. L826, 
 
 held t" 1" pre- 6 Mi. is, N. E. L6. 
 ramably revocable on tin- ground thai ii (/') Smitton \. Tod, I'-' Dec, 1889,2 le 
 
 | 226; Braidwood v Braidwood, 21 Noi 
 i 985 I I
 
 252 
 
 REVOCATION OF WILLS AND 
 
 ilIATTKR XIII. 
 
 Father no1 en- 
 titled to defeat 
 
 rights of minor 
 
 children. 
 
 Obligation or 
 will. 
 
 Constructive 
 
 delivery of 
 settlements. 
 
 Harley,(i) where there was a general trust conveyance of acquisita 
 </ acqum nda for the purpose of alimenting the granter, and appro- 
 priating the balance of the annual income to the support of his wife 
 and family, it was held by a majority of the Court that the inter- 
 ests of the wife and children were preferable to the right of the 
 creditor in a debt contracted subsequent to the publication of the 
 dwd. The Judges seemed to have found great difficulty in recog- 
 nising the husband's alimentary interest to any effect ; and there is 
 much force in the observations of Lord Fullerton, who held that 
 the deed was ineffectual against creditors, that it was in substance 
 a mere trust for managing the husband's property, on the ground 
 that he was not able to manage it himself, and that it was incap- 
 able of operating a divestiture of the property. (j) 
 
 490. A settlement conferring a vested right upon pupil children, 
 cannot be revoked by a deed consented to by their father in his 
 character of tutor and administrator. And accordingly, where such 
 a revocation was executed by the parents of the children, the Court 
 set aside the deed in an action at the instance of the children's 
 representatives. (Je) And it was observed, that the children's know- 
 ledge of their legal rights during minority lent no support to a plea 
 of homologation in a question with their representatives. 
 
 491. A letter promising payment of a sum of money to the per- 
 son to whom it is addressed after the writer's death, will in general 
 be presumed to be a testamentary writing, so that the gift will be de- 
 feasible either by a subsecpient revoking instrument or by the death 
 of the grantee in the granter's lifetime. (I) But where words of obliga- 
 tion are used, it will be construed as a binding provision, (m) 
 
 492. In considering the question, whether a particular settle- 
 ment has become irrevocable by delivery, it is necessary to keep in 
 view the various modes in which the granter may give delivery 
 constructively without transferring the custody of the writing. 
 Without entering on a formal discussion of the subject, it will be 
 sufficient to refer briefly to such cases of constructive delivery as 
 illustrate the law in regard to the revocation of settlements. The 
 cases of Smitton and Wright, already referred to, are examples of 
 constructive delivery by giving infeftment and putting the settle- 
 ment upon record, (n) Delivery by infeftment is effectual, on the 
 
 (0 Wright v. Harley, 2 June 1847, 9 D. 
 1151. 
 
 (j ) 9 D. 1159. See Morrice v. Sprot, 27 
 June 1846, 8 D. 918. As to the validity 
 of such trusts, see chap. 16, sect. 1. 
 
 (k) Macgibbon v. Macgibbon, 5 Mar. 
 1852. 14 D. 605. 
 
 (/) Trotter v. Trotter, 1 Dec. 1842, 5 D. 
 224 ; Miller v. Milne's Trs., 3 Feb. 1859, 
 21 D. 377. 
 
 (m) Duguid v. CaddaVs Trs., 29 June 
 1831, 9 Sh. 844. 
 
 (n) See also Ersk. 3, 3, 91 ; Leckic x. 
 Leckie, 177R. M. 11,581.
 
 TESTAMENTARY DISPOSITIONS. 253 
 
 principle that the subject itself is transferred to the grantee. And, chapter xm. 
 on the same principle, we think that delivery of amoveable subject 
 in implement of a settlement would be held equivalent to the de- 
 livery of the settlement itself as regards the right to that sub- 
 ject, (o) 
 
 493. The doctrine has been laid down in general terms by Presumed deii-_ 
 writers on the law of evidence,(p) that deeds in favour of the famii^ ""' 
 grantees wife or children are effectual without delivery, on the 
 ground that the father of a family is the proper custodier of writ- 
 
 in their behalf. An examination of the authorities will show 
 that nothing more is intended by this proposition than that provi- 
 sions in favour of members of the granter's family, though con- 
 ceived in the form of deeds inter vivos, are effectual if found unde- 
 livered in his repositories after his death. (q) It never could be 
 
 asly maintained that the retention of the custody of deeds of 
 gratuitous provision by the granter could have the effect of barring 
 his right of revocation ; and for this obvious reason, that it could 
 not be known until after his death whether he intended to hold 
 them as delivered deeds. Accordingly, in the case of Downii v. 
 MackiUop,(r) ii is assumed in the judgm< nt that a bond of provi- 
 sion in favour of the granter's daughters, purporting to be irrevoc- 
 able, would not have been effectual as a deed inter vivos had it re- 
 mained in the father's possession, though, inconsequence of the deed 
 being delivered to the trustees, who put it upon the record, it was 
 held to be irrevoc 
 
 494. The power of revocation possessed By the -'ranters of mutual To what effects 
 
 , , , . the granter oi a 
 
 settlements depends upon the nature oi the instrument, whether B 
 voluntary or obligatory; and the same deed may he obligatory a , , l lWI ? r 
 
 regards the mutual or reciprocal provisions contained in it, and re- of revocatlon - 
 vocable as regards the provisions which it makes for third parties.(s) 
 In the case of si ttlements by spouses, the element of reciprocity has 
 rally h. en considered to impart an obligatory character to the 
 settlement as a whole ;(#) and. on the same principle, mutual settle- 
 
 ] B • m. 6th ed. 276, as to («) Hogg \. Campbell, 24 Feb. 1868, 1 
 
 tradition ofmovi Macph. 017; Langy. Brown, 24 Maj 1867, 
 
 I ' n on Evidenci . \ 989, and 6 Macph. 789. Eere a mutual postnuptial 
 
 th< re refi rred to. Bettlemenl was held to I"- binding in rela- 
 
 (y) Stair, 1, 7, 14 ; Ei 2 14; Bell's tiontothi proi isi h it contained in 
 
 I'r. \ 24; 1 i, 1 July IS ible in re- 
 
 20 D. I 2 I] . lation to its pr< □ favour oi 
 
 i/-) D ". Hop, 6 Dec. 1848,6 children of the marrio 
 
 D. 180. In Forr H w, 1 July U i 602; L6 
 
 20 D. 1201, the rule ii o far May 1867, 6 Macph. H. I 
 
 I deed of {t) Kiddy. Kidd, 10 Dec. 1868, 2 Macph. 
 
 ■•"r- 'S-'i ; A ' ran. 18! J' 
 
 ch it narrated.
 
 25 1 REVOCATION OF WILLS AND 
 
 ohapteb xiii. merits by strangers in favour of each other are held to be onerous 
 deeds, so as not only not to be revocable by one of the parties with- 
 out the consent of the other, (««.) but in certain cases to be binding in 
 questions with creditors, (a-) The granters of a mutual settlement 
 may, however, reserve to themselves the power of separate revoca- 
 tion under such conditions as they think fit.Q/) The reservation is 
 sometimes in the form of a power to each of the parties to revoke 
 to the extent of their respective interests. In the construction of 
 a power so expressed^) it was held, that a general revocation of a 
 mutual settlement by one of the parties implied a revocation of 
 every bequest contained in it to the extent of that party's interest in 
 the subject of conveyance, and not a mere withdrawal of one-half of 
 the estate from the operation of the settlement. Had the latter con- 
 struction been adopted, all the pecuniary legacies must have been 
 paid in full, and the loss would have fallen wholly on the residuary 
 legatees, whereas, on the construction which was adopted, legacies 
 as well as shares of residue were diminished in rateable proportion. 
 Postnuptial con- 495. The most important application of these principles is to 
 ria g e ? in what the case of postnuptial contracts of marriage. The general rule is, 
 andto what™ 6 ' *hat where provisions are granted by both spouses, and such provi- 
 effect. sions are rational and equal, the mutual considerations render the 
 
 contract onerous, so that it cannot be altered by either without the 
 consent of the other, (a) But where the provision is without con- 
 sideration, or where the counter provisions are inadequate, the con- 
 tract is revocable on the part of the spouse who suffers prejudice as 
 being donatio inter virum et uxorem. The right of separate revoca- 
 tion in such a case is not excluded by a declaration requiring the 
 consent of both parties, (b) In the case last cited, it was observed 
 that strong inequality was required to set aside the contract ; and 
 a clause, forfeiting the wife's provisions in case of a second marriage, 
 was held to constitute such inequality as entitled her to revoke. In 
 this case also the question was raised (with reference to the equal- 
 ity of the provisions), whether the husband's means were to be 
 looked to as at the time of the execution of the contract, or as at 
 the time of his death — the judges being divided in opinion on the 
 point, (c) The question was again raised in the case of Nisbett v. 
 Nisbett' s Trs.,(d) where a majority of the judges expressed an opi- 
 
 (u) Hogg v. Campbell, supra. (a) Hepburn v. Brown, 6 June 1844, 2 
 
 (x) Vans Agnew v. Stewart, 31 July 1822, Dow, 342. 
 
 1 Sh. (Ap. Ca.) 320. (b) 31'Neill v. Steel's Trs., 8 Dec. 182 , 
 
 (y) Niuimos Trs. v. Hogg's Trs., 24 June 8 Sh. 210. 
 
 1840, 2 D. 458. ( c ) MNeill v. SteeVs Trs., supra. 
 
 (z) Wilsone's Trs. v. Stirling, 13 Dec. 1861, (</) Nisbett v. Nisbett's Trs., 24 Feb. 1835, 
 
 24 D. 1G3. Compare this case with Bisset v. 13 Sh. 517. 
 Walker, 1799, M. " Deathbed," App. No. 2.
 
 TESTAMENTARY DISPOSITIONS. 255 
 
 nion that the state of the husband's affairs was to be regarded as at chapter xm. 
 the time of the execution of the contract. What degree of inequa- 
 lity in the provisions of a postnuptial contract will be sufficient to 
 authorise a revocation, is necessarily a question of circumstances. 
 It may, however, be observed that where the parties have entered 
 into an antenuptial contract of marriage, that contract is held to 
 satisfy their onerous obligations in respect of the marriage ; and 
 gratuitous alterations on the antenuptial provisions, whether by way 
 of extension or of restriction, are regarded as donations, and are 
 therefore revocable, either by voluntary act(e) or by the bankruptcy 
 of the husband. (/) 
 
 496. Mutual settlements are usually classed amongst the de- Doctrine of c, , n - 
 BcriptioD of deeds which arc hold to be either constructively deli- very of mutual 
 
 I, or to be effectual without delivery.^) The case of Brown v. settlements - 
 The Advocate-General(h) maybe referred to in illustration of the 
 principle of the constructive delivery of mutual settlements. The 
 appellants, along with their deceased sister, had executed a mutual 
 settlement of (heir whole ..state and effects in favour of each other, 
 and of the heirs and assignees of the last survivor. Lords Jeffrey 
 and Cuninghame, in the Court of Exchequer, decided that this was 
 a testamentary disposition, and therefore chargeable with legacy- 
 duty, but the judgment was reversed in the House of Lords, on the 
 -round that the disposition was delivered, and therefore an irrevoc- 
 able conveyance inter vivos of the joint estate. Lord St Leonards 
 observed, — '-The debts provided for by this instrument are such as 
 mighl he contracted by any of the sisters during their lives ; and 1 
 think it .deal- that those debts were a charge not Upon the share of 
 each only, hut a charge upon the whole fund. It was argued al the 
 bar that il,<it would lead to great absurdity and inconvenience. It 
 mighl ; hut ii was no1 an illegal provision, and it must he remem- 
 bi red that these ladies were not likely to feel any embarrassment 
 from Buch a stipulation.! i) 
 
 497. 'I he effed Of actual delivery of an instrumenl to the gran- Conveyance 
 
 a distinguished from mere retention for his be! f), in divest- ordTrkTSi 
 
 ing the granter and excluding the claims of his creditors, is seen?] 
 
 in 'In latin- to conveyances in fraud of legitim. Thus, in ! 
 
 J Curri . IT June 1830, 8 Wemie v. Colquhom'a Tn., 80 Di 
 
 Sle 987 : MoclochUm \. Walton, July 18o4, 17 l>. L':;:;. 
 
 I l'- 1177. i !.. 1,6, 80; -1 (A) Broum v. The Adv.-Oen., 28 June 
 
 . ng, 860. ! 1 Macq. 7'.t ; r< a\ of 
 
 GaUowayy. Craig, 17 July 1861, I I ,oi E 8 Feb. 1849, Exch. Rep. 
 
 267; and see Dunlop v. Johnston, 2 I Bffacq. '■»<». Sei WiUone't Trt. v. 
 
 Apl. 1867, I I.. Rep. 8c. Ap. L09,6Macph. Stirling, L8 Dec. 1868,24 I'. L68. 
 II. I.
 
 256 
 
 REVOCATION OF \\ ILLS AND 
 
 CHAPTEB XIII 
 
 Deeds in the 
 custody of a 
 trustee pre- 
 sumed to be 
 held for behoof 
 of the grantee. 
 
 Qualification of 
 Erskine's doc- 
 trine. 
 
 Hog v. Hog,(k) where a father conveyed hank stock to his son inter 
 vivos, subjeel to a latent understanding that the produce should be 
 invested in land after the father's death, the dividends being drawn 
 in the meantime by the father, it was declared by the House of 
 Lords, reversing the decision of the Court of Session, that the shares 
 in (|iicsli()ii "ought to be considered as subject to the pursuer's 
 claim of legitim." But in the subsequent case of Collie v. Pirie's 
 Trs.,(l) where a bond of provision was delivered to trustees, with 
 the explanation that the granter wished it to be made an irrevoc- 
 able and final deed, such delivery was held sufficient to withdraw 
 the subject from the legitim fund. 
 
 498. With reference to the doctrine of Lord Stair, (m) that deeds in 
 the hands of a third person are presumed to have been delivered for 
 the grantee's behoof, unless the contrary be proved by the want- 
 ing or oath of the granter, it is observed by Erskine(w) that in 
 special cases the purpose of such depositation may be proved, not 
 only by the grantee, but by the oaths of the writer and testamen- 
 tary witness. But he adds : — " After a deed appears in the custody 
 of the grantee, the presumption of delivery to him is so strong that 
 it can in no case be elided but by his own oath or writing, and if 
 the delivery be confessed by the granter or his representatives, the 
 deed becomes the absolute right of the grantee, not to be defeated 
 under the pretence of its having been granted in trust, unless the 
 trust be proved either by the signed declaration or by the oath of 
 the trustee." (o) 
 
 499. On this passage the observation of Lord Colonsay in the case 
 of 31' Asian v. Glen, appears to be well founded : — " The doctrine of 
 Erskine upon this subject," he says, " is not to be taken without 
 qualification, otherwise it is not very clear on what ground an issue 
 could be granted ; for the matter would be reduced to a presump- 
 tion in favour of the grantee, which is not the state of the law as 
 an absolute proposition. A party may have possession of a deed, 
 and the presumption of law may generally be that — that party being 
 the beneficiary under the deed — it w r as delivered to him for the pur- 
 pose of being so held by him. But that proposition may undergo 
 many qualifications, and the whole circumstances of each case must 
 be looked at."(p) In the case in which these observations were 
 
 (k) Hog v. Hog, 1804, M. " Legitim," 
 App. No. 2, 4 Pat. 581. 
 
 (I) Collie v, Pirie's Trs., 22 Jan. 1851, 
 13 D. 506. See also Kerr v. Kerr, 1G76, 
 M. 3248 ; Lindores v. Stewart, 1714, M. 
 7735 ; Milroy v. Milroy, 31 May 1803, 
 Hume, 285. 
 
 (m) Stair, 4, 42, 8. 
 
 (n) Er.sk. 3, 2, 43; Dickson on Evidence, 
 \ 977, and cases there cited. 
 
 (o) See Dickson on Evidence, § 960 et 
 seq. 
 
 {)>) M' Asian v. Glen, 17 Feb. 1859, 21 
 1*. 513. See also the cases upon the law
 
 TESTAMENTARY DISPOSITIONS. 257 
 
 made, the question was between the grantee of the deed and the chapter xm. 
 
 beneficiary under a subsequent settlement, and the issue put the 
 
 question, whether the deed was, prior to a certain date, delivered 
 
 by A. to B., thereby throwing- the onus of proving delivery upon 
 
 the grantee in possession. The evidence being to the effect thai 
 
 the granter had handed the deed to his niece in returning from a 
 
 visit to his agent, apparently for the purpose of being taken care of 
 
 along with his other papers, a verdict was returned finding that then 
 
 was no delivery, with the approbation of the Court. 
 
 500. The depositation of a voluntary settlement or other gratui- Deeds in cys- 
 tous deed with the agent for both parties, is presumed to have been both parti- no i 
 made for the purpose of delivery only if the deed is produced unre- v | re ^° 
 voked at the granter's death. (7) Where a husband and wife exe- 
 
 d a mutual settlement in favour of the survivor, and the wife 
 afterwards deposited with her agent a deed bearing to be with the 
 husband's consent, and conveying part of the estate to his relations, 
 the deed was held in the circumstances to be undelivered and re- 
 vocable.^) 
 
 501. In the case of postnuptial deeds of provision, conferring a Donatio inter 
 benefit upon one of the spouses at the expense of the other, another 
 element enters into the question of the power to revoke — namely, 
 
 the doctrine that such provisions are revocable as donations inter 
 uirum et uxorem. The rule of law winch forbids the granting of 
 irrevocable donations between spouses, ne mutuo amore invicem sjoo- 
 Marentur, belongs to the subject of the law of husband and wife, 
 and the limits of our subjeel do noi admit of our entering on its 
 exposition, (s) 
 
 SECTION II. 
 REVOCATION BY BIRTB OF CHILDREN 
 
 502. Where .1 testator dies leaving a will Or general settlement Definition and 
 
 which was executed at a time when he had no issue, and a child or f tLeruie. 
 children are born to him, either posthumously or within a short in- 
 
 potb.ee, where the deeds I (s) Bee I Fraser, Pers. and Dom. Re] 
 
 ited with an agenl who acts n>r 471. Theraore recenl ca 1 are -Barclay 
 
 Digi a. v. Fairly, 11 D. II".:;; Fernu v. Colquhoim't 
 
 at and eh TV*., 17 I >. 282; Tohnit v. Oruickthanks, 21 
 
 8,2,48; Bell's Pr. § 28; Sam- D. 840; Craig v. Galloway, 22 D. 1211 I 
 
 tayv. Cowan, 11 July L888 LI Bh. 967; Macq. 267; Cuthillv. Burns, 24 D. 849; 
 
 1 Moncreifl mr Macdonald v. Macdonald't 7V.-.. 1 Rfacph. 
 
 of the more general application of the pre* L066; Kiddv. Kidd,2 Macph. 227; R 
 
 mmption in Stewart v. Stewart, 29 Jan. v. Smith, 8 Macpfa 878; Dunlopy. John- 
 1 1 Bh. 827. 8 Macph. 758, L. R. 1 Be. A.p I"'.' . 
 
 I II'. i,i,i,ii. 22 N,,-. 1881 /' D i 6 Macph 710 
 
 10 Bh 
 
 VOL i. i;
 
 •JoS 
 
 REVOCATION OF WILLS AND 
 
 Colquhoun v. 
 
 Campbell. 
 
 ohaptkb xm. tcrval before his death, there arises a very strong presumption that 
 the disinheritance was unintentional. (t) For this reason, equity 
 imports into the settlement the implied condition, si testa tor sine 
 (iben's deccsserit, which is said to be borrowed from the civil law,(«) 
 and is at any rate supported by the analogy of the civil law rule 
 applicable to substitutions. 
 
 503. The benefit of the implied condition is confined to the tes- 
 tator's children whose interests are affected by the settlement, and 
 in case of their death without having obtained a judgment finding 
 them entitled to the benefit of the condition, it would appear that no 
 right passes to their representatives, (a?) The leading case is Col- 
 quhoun v. Campbell.{y) The testator, who had been twice married, 
 and had no prospect of a family, bequeathed one-half of his personal 
 property to his widow, and the other half to his collateral relations 
 in the proportion of certain specified sums of money, and also as- 
 signed his interest in the lease of a farm to his widow. Three years 
 after the execution of the settlement, a daughter was born ; the 
 testator survived the period of her birth only three months, during 
 which time he was suffering from ill-health. The Court held that the 
 condition was applicable, and accordingly reduced the settlement. 
 The judges differed as to the extent to which the doctrine of pre- 
 sumed revocation should be carried. Lord Glenlee held that the 
 condition would apply, unless it were " as plain as a pike-staff that 
 the testator did not intend the succession to go to the child ;" while 
 the other judges seemed to rely rather on the special circumstances 
 of the case, and particularly that the period of survivance was very 
 short, that the deed was a total settlement, and that the reduction 
 was at the instance of the daughter personally, suing by her factor. 
 
 504. In Colquhouns case, all the legacies were in effect shares 
 
 Whether pecu- 
 niary legacies 
 are revoked by 
 birth of child- 
 
 Ersk. 3, 8, 46 ; Bell's Prin. \ 1776. 
 (w) Mr Erskine, in the passage cited 
 above, appears to confound the doctrine of 
 implied institution of a legatee's children 
 with that now under consideration ; the 
 passages which he cites from the text of 
 the civil law are applicable to the former 
 doctrine. The fact is, that the equitable 
 privileges accorded by the civil law to 
 children for whom no testamentary pro- 
 vision had been made, were greatly more 
 extensive than those which the Courts of 
 Great Britain have received as part of their 
 municipal law. By the civil law, every 
 child, whether born or unborn at the date 
 of the settlement, must have been either 
 ■ expressly instituted heir, or expressly dis- 
 inherited. Accordingly, if a Roman citizen 
 
 made a will, passing over any of his child- 
 ren without words of express disinherison, 
 the will was broken (ruptum) ; Inst. lib. 2, 
 tit. 13, 1 ; lib. 2, tit. 17, 1. As one appli- 
 cation of this principle, the force of a settle- 
 ment was held to have been destroyed by 
 the birth of children after the date of the 
 settlement — liberi postumi — unless such 
 children had been expressly disinherited 
 by such words as, " Whatever children 
 may hereafter be born to me, I disinherit 
 them." Even in that case, it would seem 
 that the settlement was liable to be set 
 aside, as improvident, under the querela in- 
 officiosi lestamenti. 
 
 (x) Watt v. Jervie, 1760, M. 6401. 
 
 (y) Colquhoun v. Campbell, 5 June 1829, 
 7 Sh. 709.
 
 TESTAMENTARY DISPOSITIONS. 259 
 
 of residue. The question, whether the condition attaches to pecu- chapter xm. 
 hiary legacies, was formally reserved ; but it is difficult to find a 
 principle on which the settlement could be upheld for the benefit 
 of legatees of quantity when the destination to the more favoured 
 legatees was cut down. There is perhaps greater reason for ex- 
 cluding the application of the implied condition in the case of a 
 specific legacy, or destination contained in the titles of a special 
 subject. (2) 
 
 505. The condition fails where there is a manifest or presumable Rule fails 
 intention to disinherit. "If," says Erskine, "the testator had ^idence e Jtm 
 afterwards children, and, notwithstanding their existence for some "^j" 11011 10 ex ~ 
 competent time before his death, made no alteration of the settle- 
 ment in their favour, it is presumed that he neglected them from 
 
 design, especially if the settlement was not of the whole or the great- 
 est part of his estate. "(a) On this principle, a provision to a brother 
 was sustained, where the granter had survived the birth of his child 
 two years without revoking the provision. (6) 
 
 506. It has yet to be determined, with reference to the case of Whether a set- 
 a general settlement by a father in favour of all his children no/ni- piiediy revoked 
 natim, whether, in the event of a posthumous child being born (or, a^osthunwlus* 
 what is the same in legal effect, in the event of the father dying chM - 
 suddenly after the birth of a child), the condition si sine liberis 
 
 would operate so as to give a right to a share of the succession to 
 such subsequently born child.(c) In the case of Olipliantv. Oli- 
 phant, reported by Mr Bell,(c?) the Court sustained the claim of a 
 posthumous child to a share of a bond of provision destined to the 
 grantees two elder daughters normnatirri, on the ground that the 
 question was one not of the interpretation, "but of the extension 
 of a will. "(/j In poinl of principle, there is no difference between 
 the extension of a special provision and that of a residuary desti- 
 nation, the difference being merely one of amount. The posthu- 
 mous child would, in any view, I"- entitled to legitim. 
 
 507. Tli'- casi 3 r< ferred to in another pari of this treatise on the Bearing of the 
 
 subjeet of the Condition 8l institutus sine Vilxris i/cccssi ri/.( /') may htTiiut'ionroder 
 
 (z) i V . of M Robertson, Pol. Ca. 125 ; 6 Br. Sup. C48. See Ander- g^ Uberis. 
 
 1788, M. 6898; Yule v. Yule,infra; Gallo- son v. Anderson, 1729, M. 6690; 1 Pat. 
 
 way v. Grant, 'Jl Fi 1.. 1861, L8 1». 766. 186 ; Dempster v. FP»Mwon,1799, M. 16,947. 
 
 K. (e) Bi 11' Fol. Ca. 12G. 
 
 Yuh v. Yule, 1758.M.6400 (/) Chapter 89. Bee particularly the 
 
 In tin' language <>f of '•'/■hk/'.s Trs. v. Grant, 24 D. 1-11, 
 
 all children born after the execution of the where it was held thai tin' condition ap- 
 
 ment were denominated Uberipostumi. plied to settlements of hei lias 
 
 2, mov( able 1, and that, in relation t" the for- 
 
 tit. 18, 1, and 2, 17, 1 Di . lib. 28, tit. 8, fr. mer, it operated in favour of thi 
 
 3; and 28, '-'. l" or hi ir-at-law. 
 
 mt 1794, I 
 
 R
 
 260 
 
 REVOCATION OF WILLS AND 
 
 chapter xiii. bo consulted with advantage on account of the close analogy which 
 ~~ subsists between the two conditions. But inasmuch as the conditio 
 si insiitutus gives merely a right of conditional institution to the 
 issue, there is less room for the supposition of intentional disin- 
 herison in the event of their being passed over.(j/) 
 
 Revocation by 
 ademption of 
 legacy. 
 
 SECTION III. 
 REVOCATION BY ADEMPTION OR ALTERATION OF TITLE. 
 
 508. The doctrine of the ademption of legacies, and their satis- 
 faction by provisions or gifts inter vivos, may also be regarded as a 
 species of revocation by legal implication, as, for example, where 
 the revocation o! a legacy is implied from the payment of an equi- 
 valent sum of money to the legatee,(A) or where, from any subse- 
 quent act of the testator, fulfilment is rendered impossible — e.g., by 
 selling the subject, or bequeathing it to another person. (i) Thus, 
 a special legacy of " the sum of £1000, lent on bond to E. and J.," 
 was held to be evacuated in consequence of the debtor having vo- 
 luntarily paid up the bond, two years before the testators death. (&) 
 And where a testator, by his settlement, directed four houses to be 
 conveyed to his four nephews respectively, and one of these houses 
 was thereafter acquired by a railway company under their compul- 
 sory powers, — on the death of the testator without having altered 
 his settlement, it was held that the nephew to whom the house 
 was destined had no claim for its value. (T) 
 
 509. The doctrine of the ademption of special legacies was first 
 e % established in England by the decision of Lord Thurlow in the 
 
 by conversion 01 ° ^ 
 
 the subject. leading case of Ashburton v. Macguire,(m) where a legacy of a bond 
 debt was held to be partially adeemed by the testator having re- 
 ceived dividends on the debt in bankruptcy ; and a legacy of £1000 
 East India Stock was held to be adeemed in toto in consequence of 
 the testator having sold the stock. In the subsequent case of Stan- 
 
 Ademption of 
 
 (g) See remarks in chap. 39 as to the 
 extension of the doctrine to the case of 
 grandchildren. 
 
 (h) Robertson v. Robertson's TVs., 15 Feb. 
 1838, 16 Sh. 554 ; Mollison v. Buchanan, 
 22 Feb. 1822, 1 Sh. 34G, N. E. 324 ; Bur- 
 rell v. Burrell, 15 May 1828, 6 Sh. 801. 
 But see contra, Hume v. Stewart, 26 Nov. 
 1834, 13 Sh. 90. 
 
 (i) Paul v. Paul's Trs., 5 July 1821, 1 
 Sh. 101 ; Wyllie v. Ross, 12 Nov. 1825, 4 
 Sh. 172. N. E. 174. 
 
 (k) Pagan v. Pagan, 26 Jan. 1838, 16 
 Sh. 383. 
 
 (I) Chalmers v. Chalmers, 19 Nov. 1851, 
 14 D. 57. See also Jack v. Lauder, 1742, 
 M. 11,357 ; Presbytery of Kirkcudbright v. 
 Blair, 1742, Elch. " Legacy," No. 10, M. 
 8066 ; Panton v. Gillies, 22 Jan. 1824, 2 
 Sh. 632, N. E. 536 ; Forlong v. Taylors 
 Exrs., 15 Sh. 126 ; 3 April 1838, 3 S. & 
 M'L. 177. 
 
 (m) Ashburton v. Macguire. 2 Br. C. Ca. 
 108.
 
 TESTAMENTARY DISPOSITIONS. 261 
 
 ley v. Potter,(n) the same eminent judge remarked that the test of chapter xm. 
 ademption was, whether the thing remained at the testator's death; 
 as, if the testator had given a particular horse, which died or was 
 disposed of in his lifetime, when of course there was nothing on 
 which the bequest could operate. " The idea of proceeding," he 
 continued, "on the animus adimendi, has introduced a degree of 
 confusion into the casts which is inexplicable, and I can make out 
 no precise rule from them upon that ground. ... It will be 
 a safer and clearer way to adhere to the plain rule before mention- 
 ed, which is to inquire whether the specific thing given remains or 
 not." A specific legacy of corporeal moveables is considered to be 
 adeemed by their total loss or destruction during the life of the tes- 
 tator, although they may have been insured, and their value re- 
 covered from the insurers, (o) 
 
 510. The gencralit} r of the principle has been subjected to a Ademption, how 
 severe test in some of the English cases in relation to changing se- intention. y 
 curities. In Barker v. Eayner{p) a testator bequeathed two poli- 
 cies of assurance upon the life of his wife to his executors, upon cer- 
 tain trusts; and his wife having predeceased him, he received the 
 amount, and after paying out of the proceeds a debt, in security of 
 which they had been assigned, invested the balance in securities, 
 upon which it remained until his death. Sir John Leach, V.-C, 
 held that the legacy was adeemed, on the principle that the Court 
 could only inquire whether the specific thing remained at the death 
 oi the testator, and could not enter into the consideration whether 
 it had or had not ceased to exist by an intention on the part of the 
 testator to adeem it. Tins decision was affirmed by Lord Eldon on 
 appeal. (q) In (Jorrfncrv. Hatton,(r) the testator bequeal lied £7000, 
 Becured by the mortgage of a particular estate. After the date of 
 the will the principal sum and interest were received by the tes- 
 tator's agent, on bis account, who immediately afterwards invested 
 £6000 of it upon another mortgage, upon which it remained at the 
 death. Sir L. Shadwell, V.-C, ruled that the legacy was 
 Bpecific, and that, as the testator had received the whole of the 
 debt, it was a clear case of ademption. It has been considered an 
 open question, wheth r a testator, who having made a specific be- 
 quesl oi stock sells it. and afterwards purchases the same or a less 
 amounl of the Bame stock, thereby revives the bequest ;(«) but we 
 do i mi aee upon whal principle thie poinl carj be distinguished from 
 the case ol reinvestment of money on mortgage noticed above. 
 
 / II . 182. (?) 2 Ru i. 122. 
 
 / /. '. I). G. & Sin. (r) Gardner v. Hatlon, 6 Sim. 98 
 
 Bee •-' Wh T I I 249, 8d ed. 
 /■ \ M p, 272,
 
 262 
 
 REVOCATION OF WILLS AND 
 
 OHAPTKB Mil. 
 
 I ' \ pi tonal 
 
 Ademption by 
 the re-settlement 
 of estate on 
 which a provi- 
 sion is charged. 
 
 511. The conversion of Government stock from one denomina- 
 tion Into another by Act of Parliament, or of railway shares into 
 consolidated stock, is not ademption. (0 A destination will not be 
 affected bj a mere alteration of title, as by a transference of the 
 Bubjecl of beqnesl from the name of a trustee to that of the tes- 
 tator.^) Nor will the unauthorised act of the testator's agents, or 
 of his guardians in the event of supervening incapacity, have the 
 effed of disappointing the special legatee.(^) 
 
 512. On a principle identical with that of the ademption of spe- 
 cial Legacies, it has been considered that if a testator make a re- 
 settlement of his estate, this imports a revocation not only of the 
 previous destination of the estate, hut also of all provisions consti- 
 tuted in the form of burdens upon the estate. Accordingly provi- 
 sions charged upon an entailed estate under the Aberdeen Act, were 
 held to be revoked ademptione by the execution of a new deed of 
 entail in favour of the same series of heirs, and with the same con- 
 ditions, etc., under the powers of the 4th section of the Entail 
 Amendment Act.(^) But a mere renewal of the investiture in 
 favour of the granter and his heirs, or the taking of a security in 
 the same form to a subject to which a title had not previously been 
 made up, does not, in general, operate as an ademption of a prior 
 specific destination.^) Where a testator, without expressly revok- 
 ing a subsisting destination of his heritable estate, executed a new 
 settlement of a certain part of it, for the purposes of constituting a 
 life interest and of charging certain debts upon the estate, and took 
 the title in favour of his heirs and disponees in fee, this was held to 
 amount to a revocation of the prior destination. («.) In such cases it 
 is necessary to look to all the circumstances for the purpose of dis- 
 covering whether there was or was not an intention to adeem, (b) 
 
 (t) Oakes v. Oalces, 9 Hare, 666, and 
 cases there cited. 
 
 (u) Dint/wall v. Askeiv, 1 Cox, 427. 
 
 (x) Taylor v. Taylor, 10 Hare, 475, de- 
 cided by Wood,V.-C, where the principles 
 previously recognised as to conversion by 
 trustees and guardians, in questions be- 
 tween heirs and executors, were held to be 
 Mr to the defeasance of the rights 
 of specific legatees. 
 
 (y) Hay Newton v. Hay Newton, 18 July 
 1867, 5 Macph. 1056. See the opinions of 
 th( I ourt on this point, p. 1075. 
 
 (2) 31' Arthur v. Jamieson, 2 Sh. 23, N.E. 
 20; 22 March 1825, 1 W. & S. 00; Hay 
 v. Cratcford, 1678, M. 14,899; Earl of 
 Kelly v. Duncan, 1725, M. 10,660. See, 
 as to moveable estate, North British Insur- 
 ance Co. v. Tunnock, 1 Nov. 1864, 3 
 Macph. 1. 
 
 (a) Murray v. Smith, 2 Feb. 1831, 9 Sh. 
 378. 
 
 (b) See chap. 29, sect. 3 (Evacuation of 
 Substitutions), on the subject of the evacua- 
 tion of substitutions by the institute or 
 heir,, where the title is made up in the cha- 
 racter of heir-at-law.
 
 TESTAMENTAKY DISPOSITIONS. 263 
 
 CHAPTER XIII. 
 
 SECTION IV. 
 REVOCATION BY CANCELLING OK DESTROYING THE WRITING. 
 
 513. A settlement may also be de facto revoked by physically Cancellation 
 destroying or cancelling it ; the requisites of which are (1) a final equivalent to ex- 
 intention to revoke, and (2) an act of cancellation indicating such press revocatlon - 
 anintention.(c) The rule is illustrated by the case of Nasmyth v. 
 
 Hare, where a testator cancelled his will by tearing off his seal, 
 which was prescribed as a solemnity in the testing clause of the 
 will ;(d) ami by the more recent case of Falconer and Doiv.(e) 
 Where the mutilation of the will is proved to have been acci- 
 dental,^/') or the result of insanity or of passion, (g) — revocation 
 not being intended, (h) — in any of these cases there is no cancel- 
 lation animo, ami therefore no revocation. 
 
 514. A testator may empower another person to cancel his set- Cancellation by 
 tlement ; but such a power will not be raised by implication ; nor pr °' 
 
 will an improbative authority to cancel be sustained. (7) In Doug- 
 h's v. Douglas' Trustees, the testator had added a postscript to a 
 codicil, stating, " I am aware how very incorrect all these writings 
 are, and I hereby empower my brother to alter any part of them he 
 may deem proper." It was held that this direction referred only to 
 corrections in point of form, and that the brother was not thereby 
 empowered to alter the disposal of the residue of the property. (/.•) 
 
 515. Where it is proved that a testator intrusted his will to the Acts equivalent 
 keeping of an agent, with instructions to destroy it, and his instruc- 
 tion-: were disobeyed,(Z) or where the intention to revoke is de- 
 
 I by th- conduct of an interested person, the act of cancel- 
 lation has been beld to be accomplished, the testator having done 
 all in his power to effeel it.(m) And where a will is executed in 
 duplicate, the cancellation of one of the duplicates, with the inten- 
 
 of revoking it- dispositions, is effectual as an act of revoca- 
 tion.^) lint where a will was executed in duplicate, and after the 
 
 (r Did "ii on Eyidi qc . \ 901. (?) Logan v. Logan, 27 Feb. 1823, 2 Sh. 
 
 \ . // sr«,27 July 1821, 1 Sh. 253, X.K. 222. 
 
 (Ap. Ca.) 65. (k) Monteath Douglas v. Douglas' Trs., 
 
 Falconer v. Stephen, % Dec. L848, LI 80 June 1 ^-"..<. !_' 1 D. 10GC. 
 
 D. 220; /■ /' ■' 1848, 10 D. (Z) Chitholm v. Chisholm, 1678, M. 12,820. 
 
 1466. / t. Shaw, 1711. Bui see contra, Walker \. Steele, If, Dec. 
 
 52,561 : Donald v. Kirkaldy, 8 April L826; 1 Bh. :;■-.':;, N.K. 827. 
 
 l" : '. (m) Buchanan v. Paterson, 1701, M. 
 
 (/) Cunninghame t. Mouat's Tr., 17 July 1 ■">,'•'■"-' ; Bibb v. Thomas, 2 W. Blackst. 
 
 1 B61, I- 1'. 1876 ; / .. / . 6 M b I'M.:. 
 
 1 E l". "J 1». 804. (n) Burtonshaw v. Gilbert, 1 Oowpi r, 49; 
 
 {g)Laing ID.69. P r. Pemberton, 18 V< 810, cited 
 
 (/') Doe ■, i ■ !-:■ J,, Winehestei
 
 •j,; | REVOCATION OF WILLS AND 
 
 a xin. death of the testator one of the duplicates was found mutilated, but 
 the other was preserved intact in the custody of the testator's agent, 
 who had no knowledge of any intention to revoke the will, it was 
 held that in such a rase the presumption was in favour of the sub- 
 sistence of the will, in the absence of evidence that the cancellation 
 of the copy was done by the testator with intention. (o) 
 claim- 516. Where a will known to have been in existence is not forth- 
 
 IouX'.'m'u' i coming alter the testator's death, it is necessarily presumed to be 
 non-existen1 until its subsistence is established by a process of pro v- 
 ing t lie tenor. It has been observed that this presumption does t not 
 arise unless there is evidence to satisfy the Court that the will was 
 not destroyed after the testator's death.(^>) A similar presumption 
 arises where a deed is found cancelled in the testator's repositories 
 after his death. .In such a case, according to the most recent au- 
 thorities, the onus of proving the subsistence of the will rests with 
 the party claiming under it. The question was raised in an action 
 of proving the tenor of a mutual settlement by spouses in favour of 
 the survivor, and providing for the distribution of the means and 
 estate of the survivor after the decease of both the spouses, which 
 was found, on the death of the husband, with the signatures of the 
 wife and of the instrumentary witnesses cancelled. A proof hav- 
 ing been allowed, at the instance of a party having an interest un- 
 der the ulterior destination, the widow deponed that she had can- 
 celled the signatures in a fit of passion, and without her husband's 
 knowledge. A majority of the judges of both Divisions of the Court 
 were of opinion that it was incumbent on the pursuer of the action 
 tu prove that the cancellation took place in a way that did not affect 
 the validity of the instrument ; that the uncorroborated testimony of 
 the widow was not legal evidence of the subsistence of the deed, and 
 that the action accordingly fell to be dismissed, (q) 
 
 517. A deed when cancelled leaves the estate in the same situa- 
 t inn as if it had never existed 5 (r) though the instrument may per- 
 
 (o) Crosbie v. Wilton, 2 June 1865, 3 access to, and make a search in the reposi- 
 
 Macph. 870. tories before they were searched by any 
 
 (p) The mode in which this qualifica- other person. Coupling these facts with 
 
 lion of the presumption is applied is well the non-appearance of the person inte- 
 
 exemplrfied in a recent English decision, rested in the intestacy, the Court of Pro- 
 
 A will which laid been in the testator's bate refused to presume that the will had 
 
 custody could not be found in his reposito- been revoked, and granted probate of the 
 
 ries after his death, but there was evidence draft of the will ; Finch v. Finch, LawKep. 
 
 of declarations recognising its existence up 1 Prob. and Div. 371. 
 
 ili in three weeks of his death; there (q) Winchester v. Smith, 20 March 1863, 
 
 was no evidence of any change of intention 1 Macph. 685. 
 
 duringthose t luce weeks, and theonlyper- (r) But see contra, Mvrev. Mure, 1 June 
 
 son who wa ' in an intestacy had 1813, F.C. 
 
 iellation.
 
 TESTAMENTARY DISPOSITIONS. 265 
 
 be looked at for the purpose of ascertaining what was in the ohaptkbxhi. 
 inin J of the testator before he altered his purpose. (s) Assuming 
 that the cancelled deed is to be regarded as non-existent, it follows 
 that the cancellation of a deed containing a clause of revocation 
 may have the effect of reviving a previously executed will. When 
 it is considered that the revoking deed could not have any legal 
 effect while it remained undelivered in the hands of the granter, 
 the revival of the previously executed deed is a consequence which 
 may be admitted without any legal or practical objection. (t) 
 
 518. The revocation of wills and testamentary writings made in Effect of can- 
 England, by way of cancellation or physical destruction, was origi- ^ to^Wof 
 n ally legalized by the Statute of Frauds, (u) and now rests upon the En s lamL 
 authority of that Act of Parliament and of a Statute of the present 
 
 reign, which permits the revocation of testamentary instruments, by 
 •• burning, tearing, or otherwise destroying the same by the testator, 
 or by some person in his presence and by his direction, with the 
 intention of revoking the same."(x) The cases are very numerous ; 
 and considering that decisions on the construction of a Statute are 
 never of any great authority as regards the elucidation of a cognate 
 rule resting on the authority of the common law, we have not 
 thought it necessary to enter more fully into the subject, or to at- 
 tempt a resume of the English authorities, (y) 
 
 SECTION V. 
 
 REVOCATION BY A SUBSEQUENT INCONSISTENT TESTAMENTARY 
 
 WRITING. 
 
 519. Revocation by deed or testamentary writing maybe ac- Express and im- 
 complished in a variety of ways. The intention to revoke may be S 
 distinctly declared, in which ease, it will be effectual if contained 
 
 in a holograph ortested writing.(z) A revocation contained in a 
 foreign will, executed according to the forms of the place of execu- 
 tion, has been found effectual to recal a previous conveyance of 
 heritable estate in Scotland.(a) Revocation, total or partial, as the 
 
 Aiv.-Oen, v. Smith, 1 Mar. 1862, 14 (z) Ersk. 3, 9, 6; Bell's Prin. § 1864; 
 
 ■ Rep.; 16 June 1854, 1 Barclay v. <lrh)iil,s, 4 .Mar. 18:50, 8 Sh. 
 
 Ten; Vags.oJ Dundee*. Mom.--,:) 682; Kiddy. Eidd,Q June 1848, 6D. 1187; 
 
 Macq. 164, 171. Stewart \. NeUson, 8 Feb. I860, 22 D.646. 
 
 (t) See Howden v. Howden, 8 July 1816, («) Purvis' T . r , 28 Mar. 1861, 
 
 F.C. 28 D. 812; Leith v. Leiih, 6 June 1848, 10 
 
 '■. I 6. D. 1187, — overruling the earlier cases, as 
 
 L Vict. cap. 26, § 20. Dwndas v. Dundat, 1788, M. 16,685, 
 
 i l Jar- Lang v. Whytlaw, 16 Nov. 1809, 2 Sh. 
 
 • 21 (Ap. Ca.) 18, note. Bee Fordyct v. Cod 
 I,,,,,,. 5th Julj 1827, 6 Sh ' 382.
 
 revocation. 
 
 REVOCATION OF WILLS AND 
 
 oeaptib mm. case may be, is implied from the fact, that two settlements execu- 
 te! l»v ih,' same person are inconsistent with one another, in which 
 case the rule is applicable, posteriora derogant prioribus.(b) Great 
 difficulty is often experienced in resolving the question, Which of 
 the testamentary writings found in the repositories of a deceased 
 person constitute his last will? Some positive rules have been 
 Laid down ; but in their application to actual cases much is neces- 
 Rukeofoon- sarily Lefl to the discretion of the judge. Settlements executed of 
 struction fordo- j] u , Bame ,j a t c are construed as one deed.(c) A settlement contain- 
 
 termimng qnes- 
 
 implied fog a residuary clause presumably supersedes previous testamentary 
 writings;(e£) and a will which partakes of the quality of a total 
 settlement is considered to be in its purpose and intention incom- 
 patible with the subsistence of a previously executed will or settle- 
 ment, insomuch, that a lapsed share of succession under a last will 
 of the total estate will be given to the legal representatives of the 
 testator rather than to the legatees under a previously executed 
 will.(e) But it has been solemnly ruled, that where a settlement 
 containing a general clause of revocation makes no provision as to 
 the disposal of a certain specific estate, the heir to whom that estate 
 was destined under a previous settlement shall take it rather than 
 the granter's heir-at-law. (/) Codicils prior in date to the leading 
 settlement ought not to be admitted when they are explanatory of 
 or ancillary to a previous settlement which is revoked by implica- 
 tion.^) Yet even this rule is subject to exceptions. For example, 
 a codicil bequeathing a specific subject was held effectual, even 
 when anterior in date to the last general settlement, (h) The circum- 
 stance that a number of the legacies contained in a partial will or 
 settlement are repeated in a subsequent total settlement — the same 
 sums being given to the same persons — creates a strong presump- 
 tion that the former will is impliedly revoked, (i) It is still an un- 
 
 (&) Mitchelson v. Mitchelson, 15 Nov. 1846, 5 Bell, 379. This principle applies 
 
 1820, F.C. ; Burnett v. Burnett, 1701, M. when the last executed deed, though in 
 
 1 5,566 ; Balvaird v. Latimer, 5 Dec. 1816, form a total settlement, is, by reason of the 
 
 F.C. ; Barclay v. Griffiths, 4 Mar. 1830, 8 omission to make use of dispositive words, 
 
 Sh. 632 ; Beattiev. Thomson, 21 June 1861, ineffectual to carry heritable estate in Scot- 
 
 23 D. 11G3 ; and see contra. Dove Y.Smith, land; Richmond's Trs. v. Winton, 25 Nov. 
 
 31 May 1827, 5 Sh. 734, N.E. 684. 1864; 3 Macph.95; Campbell's Trs. v. Camp- 
 
 (c) Fergus v. Fergus, 7 Feb. 1833, 11 Sh. bell, 24 D. 1322. 
 362; Inglis v. Harper, 18 Oct. 1831, 5 W. (g) Stewart v. Baillie, 27 Jan. 1841, 3 
 & S. 785, reversing 6 Sh. 864. D. 463. 
 
 (d) Grant v. Stoddart,\l D. 869, per Lord (h) Fleming v. Fleming, 1800, M. " Im- 
 JcfTrey; but see 1 Macq. 163; Sellar v. plied Will," App. No. 1. 
 Stephen, 21 June 1855, 17 D. 975. {{) Per Lord Justice-Clerk in Horsbrugh 
 
 (e) Grant v. Stoddart, 27 Feb. 1849, 11 D. v. Horsbrugh, 9 D. 341. " The presumption 
 870. is always strongly adverse to an unfinished 
 
 (/) Allan v. Glasgow 4 P. 494: 14 Aug. instrument materially altering and control-
 
 TESTAMENTARY DISPOSITIONS. 267 
 
 settled question whether a general settlement of lands has the effect chapter xm. 
 of revoking a prior special destination. 
 
 520. Where it appears that two testamentary writings are cap- if possible, both 
 able of standing together as one settlement, no implied revocation subsist. 
 
 can be inferred in relation to any of the bequests of the first execu- 
 ted will, unless the terms of the bequest are necessarily inconsistent 
 with those of the last will.(&) The case of A Ives v. Alves is an 
 illustration. The testator, by his trust-settlement, divided the re- 
 sidue of his estate into two equal shares, to be distributed amongst 
 certain relatives, who, in the concluding part of the clause, were 
 also appointed " residuary legatees." By a codicil, he made a new 
 division of the residue into three equal shares, as to one of which 
 there was a total failure of the objects of the destination. This share 
 was claimed as lapsed succession by the legal representatives of the 
 testator, and as residue b} 7 the residuary legatees of the first execu- 
 ted settlement. It was held that, although the partition of the es- 
 tate into three shares was an implied revocation of the previous par- 
 tition into two shares, that it did not operate as a revocation of the 
 ultimate residuary bequest contained in the original settlement. (?) 
 Tin' second Roxburgh case decides that an implied revocation is only 
 operative in the event of the last executed will being effectual ; but 
 tli.it if it should be reduced ex capite lecti, or on any extrinsic 
 ground, the inconsistency does not arise,(m) and the first will is 
 to be held effectual. 
 
 521. A testamentary deed of revocation has the same ambula- Revival of re- 
 tory character which belongs to a testamentary disposition, and ti^ uju-nltion of 
 therefore, where the wiD to which the words of revocation apply is a su ^ u . ent . 
 
 A r J revoking lnstru- 
 
 nol cancelled or destroyed, it may be revived by revoking or de- ment. 
 stroying the revocation of it. Thus, where a trust-deed, being the 
 Lasl testamentary settlemenl of the granter, contained a revocation 
 of .-ill previously executed wills and settlements, and this scttle- 
 menl was itself destroyed by the testator's directions in his life- - 
 time, the revocation which it contained was held to be destroyed 
 
 • will deliberately framed, regularly May 1827, 6 Sh. 784, N. E. 684 ; Allan v. 
 
 ted, recently appi upported Sinclair, 1776, 2 Pat. 403. Where the last 
 
 .inns and uniform disj ts; will contaii revocation of all 
 
 and ti i in pro- previou K executed wills, the clause must 
 
 portion to the li , and the receive ( ffect notwithstanding thai a prior 
 
 small progress made in, such instrument, will may be capable of standing along 
 
 tablish such a paper, there must be with the Last; Lawrie's Tra. v. Lawrie, 12 
 
 the fullest proof of capacity, volition, final July 1843, 5 D. 131G. 
 
 intention, and involuntary interruption." (1) Alves v. Alves, 8 Mar. 1861,28 D. 
 
 — Jarman on Win 8d • I L, 167. 712. 
 
 (/,-) Grant v.Stoddart, II D. 876, per Lord I Eoxbwghv. Wauchopt, 25 May I 1 -:'" 
 
 Fullerton ; 1 Macq L68; D Smith, V\ 6 Paton, 648; infra, \ 625.
 
 REVOCATION OF WILLS AND 
 
 ohaptebxiii. as well as the positive dispositions of the settlement, and a pre- 
 viously executed will was therefore rcvived.(w) And a revocation 
 l, v testamentary disposition of a last will disposing of the univer- 
 sitas of ill-' testator's estate, was found to have the effect of reviv- 
 ing a previously executed will.(o) In another case, it was held 
 thai a revoked testamentary disposition was not revived by being 
 delivered by the testator to his trustees with a direction not to 
 open the packet until after his death. (p) 
 
 SECTION VI. 
 EFFECT OF THE LAW OF DEATHBED. 
 
 522. Referring to a preceding chapter (q) for a complete exposi- 
 tion of this subject, it is only necessary, to complete our view of 
 the law of revocation, that we should here very briefly indicate 
 the principles according to which the doctrines under consideration 
 are held to be interfered with by the operation of the Law of 
 Deathbed. 
 ition com- 523. The exercise of a power of revocation is not regarded in 
 ondeati " law as a new conveyance. Ee vocation is therefore competent by 
 deed executed on deathbed ; though it is apparent that, by the re- 
 vocation of the purposes and conditions of a settlement, an altera- 
 tion of the destination may be effected which shall be equivalent 
 in many respects to a new settlement of the estate. Thus, by the 
 revocation of a purpose of sale, the quality of the succession is 
 elianged from moveable to heritable. (V) In Millar v. 31arsh,(s) it 
 was held by Lord St Leonards, on appeal, affirming the judgment 
 of the First Division of the Court, that the maker of an entail 
 might convert it into a fee-simple estate by revoking the fetters on 
 deathbed, on the ground that the deathbed disposition was effec- 
 tual to remove the fetters, but was inoperative with regard to the 
 estates created, (t) 
 Effect of com- 524. A simple reservation in a settlement of heritable estate of 
 
 bined revocation -. ~ . . . , . . , . 7 
 
 and new convey- ;| power to name beneficiaries, or to alter the succession in articulo 
 Ited mortis, will not be effectual to deprive the heir of his right to re- 
 
 (n) Eowden v. Crichton, 8 July 1815, (r) Grindlay v. King, 8 Nov. 1853, 16 
 
 F.C. See 1 Jarman on Wills, 3d ed. 127. D. 27 ; Allan v. Glasgow, 14 Aug. 1846, 
 
 (o) Dove v. Smith, 31 May 1827, 5 Sh. 5 Bell, 379. But see Neilson v. Stewart, 
 
 734, N. E. 684. 22 D. 656, per Lord Colonsay. 
 
 • Ker v. Erskine, 16 Jan. 1851, 13 (s) Millar v. Marsh, 22 May 1855, 2 
 
 D. 492. Macq. 284, affirming 15 D. 823. 
 
 Chapter 0, sect. 4 (Law of Death- (t) 2 Macq. 287.
 
 TESTAMENTARY DISPOSITIONS. 269 
 
 duce a subsequent testamentary appointment ex capite lecti.{ii) chapter xm. 
 But it is possible to give validity by anticipation to a deathbed 
 deed of appointment ; and this may be effectually done by insert- 
 ing in the principal settlement a destination over to other bene- 
 ficiaries, in the event of a failure to appoint effectually by a sub- 
 sequent writing. Thus, in the case of Ker v. Lady Essex Ker's 
 Trustees, where the testatrix conveyed her heritable property in 
 liege poustie to trustees, with directions to sell and to pay legacies, 
 and then to pay the residue to such persons as she should direct 
 by any writing under her hand, and, in default of such writing, to 
 pay the residue to her next of kin, and she thereafter executed a 
 memorandum of directions on deathbed, which was challenged by 
 the heir-at-law. it was held that the right of challenge was a per- 
 sonal privilege of the heir, and that, as the reduction of the writ- 
 ing of directions would occasion the default, in the event of which 
 th<- property was to go to the next of kin, the heir was barred by 
 want of interest from insisting in the challenge. (x) 
 
 525. On similar principles, it has been determined that a death- Where subsist- 
 bed settlement altering the destination of an estate previously set- not expressly re- 
 tted (e.g. } directing a conveyance to another disponee) will be pro- veyance^dd 011 " 
 tected from challenge, provided there be no express revocation of effectual. 
 the previously executed settlement, because the reduction of the 
 deed of alteration would not let in the heir, but would operate in 
 favour of the disponee under the original or previously executed 
 settlement.^) Againsl this view, it was argued, that the implied 
 cation of the destination in the first deed, arising from its in- 
 consistency with the second, gave the heir-at-law an interest to 
 reduce; but this reasoning is fallacious, for implied revocation can 
 only take place where both <\<-f<\< are operative, since it arises 
 solely from the necessity of reconciling their provisions. Where 
 the deed of alteration expressly revokes the original settlement, 
 tic- heir-at-law dt course acquires an interest to reduce the deed of 
 alteration ;(z) and therefore, unless it is the desire of the testator 
 that hi- heir-at-law should succeed in the event "i bis dying with- 
 
 (") Crawford v. Coutts, 1795, M. 1 1 '.<". ituted <le tination being effectual, it 
 
 U . 1824, - Bh. (Ap. would appeal thai an heir of provision 
 
 9; Wauchopt v. Lady Essex K<r, "Jl under th B] I ettlemenl isentitled to n 
 
 Feb. 1812, ■"• Paton, 669. duce the second, the revocation being then 
 
 Ker v. Lady l. Ker's 7V*., ft Sh. ineffectual; Laurie \, Laurie's Tre., 22 Jan. 
 
 694, 1 Oct. L881, ■> W. & 8. 71ft. L880, 8 Sh. 879. 
 
 (y) Duh oj /■ burgh v. Wauckope, 26 (z) Neilsonv. Stewart, ■> Feb. I860, 22 
 
 L820, <; I'. a. 648. Bei Prof. Bell'i D. 646 ; Erskim v. I /' .,8 Dec, 
 
 remarks, 1 Com. 6th ed. p. 96. When the I860, 18 D. 228 ; Leith v. Leith, L9 June 
 
 tion i-« made conditional on the L868, I Macph. 949.
 
 270 REVOCATION OF WILLS AND DISPOSITIONS. 
 
 oHAPTBBxm. in sixty days, the conveyancer should not insert a clause of revo- 
 cation, but should leave the revocation to be effected by legal im- 
 plication. Where a previous settlement is founded on as a title to 
 exclude the heir's right of challenge, the onus of proving its sub- 
 sistence rests on Hie party maintaining it. (a) 
 Whether revo- 526. The ease of Ker v. Erskine(b) decides a point of consider- 
 efiSfof revMn a ^ e importance in connection with the law of deathbed ;• which is, 
 lv thai where a settlement has once been effectually revoked, a second 
 deed of revocation, revoking the first revocation, will not, if exe- 
 cuted on deathbed, have the effect of reviving the settlement so 
 as to exclude challenge by the heir-at-law. The Lord President 
 Boyle thus explained the ground of the decision : — " It is clear in 
 Law, that however capable to revoke all former settlements, a death- 
 bed deed can operate no effectual conveyance of heritable property, 
 or exclude the heir-at-law, unless he stands already effectually ex- 
 cluded by an existing settlement. The testator revoking his revo- 
 cation with the view of reviving an extinguished deed, cannot make 
 it operative to the prejudice of the heir who had been excluded by 
 the extinguished deed." (c) A testator who is desirous of reviving 
 a revoked settlement without incurring the risk of challenge, should 
 cancel the deed of revocation, or put it in the fire in presence of 
 witnesses. The effect of this will be, that the deed of revocation 
 having never been delivered, and being non-existent at the testa- 
 tor's death, will not be regarded as a completed instrument, and 
 the original settlement will take effect as of the date which it 
 bears, (d) 
 Revocation of 527. The revocation of a special disposition of heritable subjects 
 
 whrlhlr" up!'nJ- : by a deathbed deed which also conveys the same subjects to other 
 tive in favour of persons, has not the effect of throwing the special subjects into re- 
 
 residuary lega- l ' i • j 
 
 tee. sidue. The effect is, that the new conveyance may be set aside at 
 
 the instance of the heir-at-law, and that the revocation operates in 
 his favour, (e) 
 
 (a) Clyne v. Clyne's Trs., 12 May 1837, (d) See Howden v. Crichton, 8 July 1815, 
 15 Sh. 911. F.C. 
 
 (b) Ker\. Erskine, 16 Jan. 1851, 13 D. (e) Cameron and Walker v. West's Trs., 
 492. 2 Feb. 1864, 2 Macph. 584. 
 
 (c) 13 D. 495.
 
 OF THE CAPACITY TO MAKE A WILL. 271 
 
 CnAPTER XIV. 
 
 CHAPTER XIV. 
 
 OF THE CAPACITY TO MAKE A WILL OR 
 TESTAMENTARY DISPOSITION. 
 
 528. The execution of a will or testamentary disposition being Capacity to 
 only a particular mode of conveyance or transference of estate, it dependent on 
 follows that every person possessed of estate in a character which en- ^Xrruks". 
 titles him to dispose of it by deed inter vivos, has the capacity of 
 conveying it to a trustee or executor for distribution after his 
 
 death. This rule excludes persons who are subject to legal inca- 
 pacity, as well as those who, from natural causes, are incapable of 
 exercising the power of disposition. 
 
 529. It is stated by English authors that, at common law, the wills and settle- 
 Sovereign can only dispose of his private estate by letters-patent. («) sovereign) jww 
 By a Statute of George 111.(6) the Sovereign is enabled to bequeath re s ulated - 
 
 his private personal estate by a testamentary writing- under the 
 sign-manual ; and, by a recenl Statute the Queen is enabled to 
 dispose of hei in Scotland by deed i,ii< ,- vivosof m>>v/is causa, 
 
 and also t" hold such estates of subject-superiors through the inter- 
 vention of 1 11. 
 
 530. A testament or disposition mortis causa by a married Capacity of 
 woman of her moveable property is effectual \\ it In ait the husband's \'!'"u' v ' 
 consent, (d) And it would seem thai such a conveyance will carry P (I ',' l i" ( ", l I , l ,' 1 r " 
 her interest in the goods in communion in so far as her right to 
 dispose of them is unaffected by the provisions of the [ntestate Suc- 
 cession \<\ ;(c) that is, it will affed tier succession if she survive 
 
 her husband. With regard to the heritable estate of a married 
 woman, it is to 1"- observed that the consent of the husband is re- 
 quired to it- alienation by deed inter vivos. (f) Testamentary dis- 
 
 Lewin on 1 ed. p. 22, cit- if she can leave a Legacy by donatio mortit 
 
 a I dye* r. WiUi ■'■ B r. I , I i., 577. cautaf vide Miller v. Milne's Tre., 8 Feb 
 
 (h) 80 .-. 1" Geo. UL.ca] L869, 21 I'. 877. 
 
 . 87. L8 Vict. c. 28, \ 6, 
 
 \d) Brat 1, 6,28; BC( Pothier.Tr.de (/) Er k. 1,6, 27; Boyle v. Crawford, 
 
 In Puissance do Miiri. No. 42. Sed quart, 6 Mar. 1822 I Bh. 872, N.l 860 Did v.
 
 272 OF THE CAPACITY TO MARK A 
 
 ohaptmxiv. positions are in a different position. They take efFcet only after the 
 termination of the curatorial power and right of administration of 
 the husband ; and, provided his courtesy is not interfered with, he 
 does doI seem to have any legal interest in his wife's settlement of 
 her propert v. Erskine was of opinion that a married woman might 
 dispose mortis causa of her heritable estate, and exclude her hus- 
 band's courtesy without his consent.^) And, while we are not 
 aware that his opinion has been confirmed by decision, there is cer- 
 tainly no authority for extending the right of administration to that 
 decree which would enable the husband to control the wife's power 
 of testamentary disposition. 
 
 Wife's power of 531. As regards property settled on a married lady, with an ex- 
 
 i-irm > State elusion of the husband's marital rights, she is in the same position 
 as if she were single ; and accordingly she may grant deeds respecting 
 it, to take effect either inter vivos or after her death. (A) In a case 
 which arose under the powers of the Entail Amendment Act, the 
 ( !ourt authorised a married lady to execute a disentail of her sepa- 
 rate estate without requiring the concurrence of the husband to the 
 petition, and also held that she was entitled to subscribe the instru- 
 ment of disentail without her husband being a consenting party, (i) 
 By the Conjugal Eights Act 1861, (k) a wife "deserted" by her hus- 
 band may apply, by petition to the Court of Session, for an order to 
 protect property which she has acquired, or may acquire, by her own 
 industry, or by succession or otherwise, after the desertion; and by 
 § 4 of the same Act, it is declared that such property shall belong- 
 to her as if unmarried. Onerous trusts of property, so protected, 
 are, by § 2, effectual, notwithstanding the subsequent recal of the 
 order of protection. It has not yet been decided whether the word 
 " onerous," as used in the Statute, extends to deeds granted for 
 rational causes, such as provisions to the children of the marriage. 
 
 Disabflities of 532. In the case of a minor who has curators, the extent of the 
 
 disability varies according to the nature of the settlement. A minor 
 without curators may alienate his property, whether heritable or 
 moveable, for onerous or rational causes ; and if the consideration 
 
 Donald, 12 Dec. 1826, 2 W. & S. 522. But 1826, 4 Sh. 388, N.E. 391 ; Gordon v. Gor- 
 
 she has been held entitled to execute don, 16 Nov. 1832, 11 Sh. 36. 
 
 a deed of disentail without his consent; (t) Pet. Primrose, 9 March 1850, 12 D. 
 
 Pet. Brisbane., 1 Mar. 1850, 12 D. 917. 917. See Brown v. Bedwell, 3 Dec. 1830, 
 
 (g) Ersk. 1, 6, 27. See Menzies, Conv., 9 Sh. 136; Yet. Hamilton, 1777, 5 Br. Sup. 
 
 3d eel. p. 39; 1 Eraser, 274; More's Notes, 625. 
 
 18 ; contra, Bankton, vol. i, p. 124. (k) 24 & 25 Vict, c, 86, § 1- The word 
 
 (h) Gowan v. Pursell, 17 May 1822, 1 "deserted" is ambiguous. — At common 
 Sh. 418, N.E. 390 ; Keggie v. Christie, 25 law, it would seem that the wife of a con- 
 May 1815, F.C.; Clark v. Gibson, 24 Jan. vict has the power of disposing of her ac- 
 quisitions. See note, infra. % 543. 
 
 minors.
 
 WILL OR TESTAMENTARY DISPOSITION. 273 
 
 be inadequate, lit- may be restored against the transaction by a re- chapter xiv. 
 duction within the quadrienmum utile. If lie have curators, his 
 position is so far different that their consent is necessary to vali- 
 date the transaction. A minor, with or without curators, may exe- 
 cute a testamentary trust for the disposal of his moveable pro- 
 perty.^ But he cannot, even with his curators' consent, make a 
 settlement of his heritable estate ; " for. in order to alter the legal 
 succession of heritage, there must be a deliberate animus in the 
 granter of the deed, which cannot he presumed in a minor."(m) 
 
 533. Under the category of rational deeds which a minor may Minor may 
 competently grant, we include antenuptial contracts, which are so bytntenuptuii 6 
 far favoured that they are even sustained, when reasonable, although contract. 
 granted without the consent of his curators.(w) With reference to 
 tlic idea that such deeds are not only reducible but null, Lord Ivory 
 observed : " There are none of our writers on law who say anything 
 a- to this nullity who do not concur in the qualification of the doc- 
 trine that it is a nullity to he pleaded against injury; and where 
 the (Led is for the benefit of the miner, the nullity cannot ho 
 ded. . . . I do not wish to impugn the general doctrine, 
 that deeds entered into by a miner without consent of his curators 
 are aull, but only to point out such modifications as the peculiar 
 of marriage calls for."(o) 
 
 534. Amongst ohjections to wills involving thequestion of personal Incapacity re- 
 disability, there is none more frequently urged, or with more fatal s!'nin\ 
 effect, ilia n thai of insanity, or facility, on the part of the testator, (p) 
 
 (l\ Erek. I,".-;;; Bankt. vol. i, p. 177: prei' inst the v;ili<li(y of a will 
 
 on v. Allan, 1680, M. 8949; Camp- disinheriting the testator's only child, mere- 
 
 beUv. i L840, 2 D. 1089, /<</■ ly bi ir, an eminent electri- 
 
 Lord President Hope. Tl ion cian, had. conceived a trong and ground] 
 
 by Erskii to her, which he had manifested 
 
 ml beqm I by by acl of hai hni i and severity. This 
 
 i be well found- comes very near to the principle of the 
 
 M Pan ni querela inofficiosi testamenti oi the civil law, 
 
 plaim -1 in tnst. lib. '_', tit. 18. 
 
 Cunynghame v. As to the validity of a will made during 
 
 Whiteford, 1 7-»7. BI. 8966. a lucid interval, it was remarked by Sir 
 
 imUton, 28 Dec. 1864, 17 Wm. Wynn (in Cartwright v. Cartwright, 
 
 h Hamilton, 1632, M. 1 Phil. 100), thai if "the partj afflicted 
 
 I L 769, M. 8988. habitually by aladj ol th mind 1ms 
 
 Brua v. Hamilton, 17 D. 270-2. intermissions, and if there wa an inter- 
 
 A. criterioi by in the legal mission of the disorder al the time of the 
 
 'l : ... i- act, that being proved is sufficient, and the 
 
 f the Lord in M'Kellarv. general habitual insanity will no! al 
 
 Sf'Kellar, •'. I •< c. 1861, 24 D. I 11. indicate it." Refi rence is al o made to the follow- 
 
 withoxi the difficulties of th( pro- ing c Towart v. Sellar, 6 I' 801 
 
 blem. Iii t } | Dewy. Clarke Currie v. Currie, 6 Sh. 888, \. E. 777; 
 
 79, 6Ru 163), Sir John Nicholl Frater v. F 1 8 Sh. 708 ; Laing 
 
 and the Court of D r. Bruce, 1 D. 59 
 
 Vol.. |.
 
 274 OF THE CAPACITY TO MAKE A 
 
 ohaptkb xiv. Insanity, which imports not only a want of judgment, but a want 
 f ir ;n — of the disposing mind — is necessarily a fatal objection. 
 Mere facility is not of itself a ground of reduction ;(q) and accord- 
 ingly the issues in reductions of settlements on the ground of facility 
 invariably put the question, Whether the defender, taking advantage 
 of the party's facility, procured the deed by circumvention ?(?•) 
 Where there was great mental or moral weakness on the part of 
 the testator, persuasion has been held to be tantamount to circum- 
 vention.^) The amount of pressure which will constitute circum- 
 vention in any case is a question of fact, or more properly, perhaps, 
 of opinion ; and the Court will not readily interfere with the deci- 
 sion of a jury on the matter. (t) The arts that maybe practised by 
 a beneficiary to procure the testator's signature to a will are not 
 easily discoverable. " But," said Lord Justice-Clerk Hope, " if the 
 facts satisfy the jury that there was in such party a motive to mis- 
 lead and induce him to enter into the transaction, either for his 
 own benefit or for the benefit of some one whose interest he was 
 promoting, and that only persuasion and untrue representations, 
 acting on a mind facile or nervously anxious from disease on the 
 subject, could have brought about the result, then it is for the jury 
 to say whether they draw from the whole case the inference of cir- 
 cumvention."^) It was justly observed in a recent case, that no 
 test of mental capacity could be stated without reference to the 
 deed, the question being, Whether the granter was capable of un- 
 derstanding what he was doing ?(x) 
 Uncertainty of 535. In the present state of the law, it is hopeless to attempt a 
 oHnsinity In- definition of the state and degree of mental alienation which renders 
 oTuiebriin ase ^he P erson so affected incapable of making a will. The ancient law 
 of Scotland distinguished two classes of insane persons, namely, 
 idiots or fatuous persons, and lunatics or furious persons requiring 
 to be kept under restraint for the protection of themselves and 
 others. But in the determination of questions of incapacity as affect- 
 
 (q) As to the distinction between in- M'Diarmid, 28 Mar. 1828, 3 W. & S. 37, 
 
 sanity and mere facility, as grounds of re- affirming 4 Sh. 583, N. E. 591 ; Syme v. 
 
 duction, see Watson v. Noble's Trs., 29 June Henderson, 15 July 1835, 13 Sh. 1132. 
 
 1827, 2 W. & S. 648, affirming 4 Sh. 200, (s) Clunie v. Stirling, infra, 14 Nov. 1854, 
 
 N. E. 202 ; Scott v. Wilson, 15 July 1825, 17 D. 15 ; Watson v. Noble's Trs., supra. 
 
 3 Mur. 526 ; Whyte v. Ballantyne, 20 June (t) Compare Clunie v. Stirling, and M'Kel- 
 
 1823, 1 Sh. (Ap. Ca.) 472; M'Kellar v. lar's case, supra, where motions were refused, 
 
 MKcllar, supra; Morrison v. Maclean's Trs., with Morrison v. Maclean's Trs. and Waddell 
 
 27 Feb. 1862, 24 D. 625. v. Waddell' s Trs., 12 July 1845, 7 D. 1017, 
 
 (r) See cases of Watson and Scott, supra; where new trials were granted. 
 
 Baird v. Harvey's Trs., 20 D. 1220 ; Innes (u) Clunie v. Stirling, 17 D. 18. 
 
 v. Tarbet, 1740, M. 15,942 ; Home v. Hardy, {%) Morrison v. Maclean's Trs., 27 Feb. 
 
 31 Mar. 1«12, 4 D. 1184; M'Diarmid v. 1862, 24 D. 625.
 
 WILL OR TESTAMENTARY DISPOSITION. 275 
 
 ing the validity of wills, a court of law has to deal with the milder chapter xiy. 
 types of mental disease, — with cases of dyspeptic Irvpochondria, — 
 with cases of religious melancholy, accompanied by insane delusions, 
 — with cases where some severe or unexpected strain has disturbed 
 the springs of that delicate mechanism by which the mind commu- 
 nicates with external nature. The investigation of such cases has 
 led to the tardy recognition of the notion of partial insanity. But 
 the existing judicial expositions of the subject, while evincing a 
 just perception of the criteria of disposing capacity, and containing 
 many sound observations on the weight due to the different symp- 
 toms and indicia of proof, appear to be somewhat defective in breadth 
 of view ; and particularly in this respect, that the judges do not 
 seem, unless in some of the latest cases, to have risen to the gene- 
 ral conception of insanity as a disease of the brain, admitting of gra- 
 dations in like manner with other bodily infirmities. 
 
 536. It is true that the physiological conception does not fur- Application of 
 nish any precise rule for the determination of cpiestions of capacity ; principles to 
 we think that it renders the attainment of any such rule or crite- j^ity 1^* 
 rion impossible; but it ma}', at least, be of service in correcting monomania. 
 the tendency to theorise on the subject. It appears to us to have 
 an important bearing on the phenomena of monomania, and of those 
 intermissions of the disease which are termed lucid intervals. If it 
 be admitted that the various phenomena of insanity result from a 
 ■ 1 leased or abnormal action of the brain, we do not see how it is 
 possible to maintain that a person may be insane as to the subject 
 of his delusion and yet have disposing capacity. The delusion may 
 be so trilling as not to constitute a clearly marked manifestation of 
 disi ase; but if the delusion is such as no rational person could en- 
 tertain, and such as. in the opinion of competenl judges, proves the 
 existence of cerebral disease, then we think that the afflicted person 
 
 should be deemed incapable of making a will, because il is impos- 
 sible to say that the disease may not have interfered with the just 
 exercise of the disposing faculty ; and the right of the heir ought 
 not to be taken away excepl by the testamentary act of a person who 
 is in the full possession oi mental capacity. 
 
 537. The physiological view of insanity is also adverse to the Phj ioiogicai 
 practice of allowing testamentary efficacy to wills made during allowing efficacy 
 those intermissions of the malady which, from their transient na- 1 'i',' i h,',"' 1 ,','.'h,' , ,u 
 ture, are evidently mere intermissions of the phenomena of insanil v. "'. ii,,rni " "" 
 
 ' J . l _ J ' of Bymptoms. 
 
 and which cannol reasonably be attributed to a restoration of healthy 
 action in the brain. To affirm thai a madman, in such an interval 
 oi repose, should be allowed to dispose oi hie property, appears to 
 us to I"- as illogical as the supposition thai a patient, during an in- 
 
 s '1
 
 OF THE CAPACITY TO MAKE A 
 
 ohaptkb «▼. termission of a dangerous fever, should be allowed to get up to din- 
 ner and drink a bottle of port. The proof of a genuine lucid interval 
 is extremely difficult, and when its duration has to be computed in 
 hours, we should be strongly inclined, on that ground alone, to dis- 
 believe in the restoration of the patient to a state of disposing capa- 
 city. 
 
 Unsatisf ' 538. Entertaining these opinions, and believing that the subject 
 
 .;,;': 'ir' 1 of insanity in its legal relations is still imperfectly understood, we 
 ,1,, qo1 think it desirable to enter upon a discussion of the numer- 
 ous cases which are contained in the English reports, and in which 
 the most various and discordant theories have been propounded. 
 These cases, and the opinions expressed in them, are ably analysed 
 in the last edition of Williams on the Law of Executors, to which, 
 accordingly, we beg to refer, (y) 
 
 Physical incapa- 539. Extreme bodily infirmity can only be regarded as aground 
 
 ft?vdio5y of! of reduction to the extent that it is an element of evidence under 
 an issue of facility and circumvention. (z) The Court looks with 
 just suspicion upon settlements obtained by interested parties, or 
 their agents, from testators who, in consequence of illness or old 
 age, are deprived of the full use of the faculties of sight, hearing, or 
 speech. (o) A distinction is to be taken between the physical in- 
 capacity of extreme old age, which is often accompanied by mental 
 weakness, and such sources of error as blindness, or inability to speak 
 and hear. Wills of persons deprived of sight may be executed 
 either notarially or in the ordinary manner. And where proper 
 precautions are taken (if such be necessary), and there is no suspi- 
 cion of undue influence, there can be no doubt that the will of a 
 
 (?/) Williams on Executors, 6th ed. (z) Simpson v. Gardner, 11 Sh. 1049. 
 
 pp. 18-30. The latest, and perhaps the (a) Gillie v. Gillespie, 11 Feb. 1817, 
 
 ablest exposition of the law in relation to F.C. ; Paterson v. Smith, 2 Feb. 1809, 
 
 the disposing capacity of persons labour- Hume, 921 ; M'Culloch v. M'Orackan, 3 
 
 ing under insane delusions, as applied to Dec. 1857, 20 D. 206 ; Halliday v. M orison, 
 
 an actual case (and the subject can only 27 June 1857, 19 D. 929. "The maker 
 
 be usefully treated in its application to of a deed," said Lord Colonsay, in M'Kel- 
 
 real cases) is the judgment of Sir J. P. lar v. M'Kellar, 6 Dec. 1861, 24 D. 144, 
 
 Wilde in Smithv.Tebbit, Law Kep.lPr. 398. "may have had capacity when aided, and 
 
 In this case the testatrix, who had been no capacity without aid; and the with- 
 
 allowed during her lifetime to retain the holding of such aid as maybe necessary 
 
 uncontrolled possession and disposal of her to give the capacity to execute a deed may 
 
 property, lefl a will leaving the residue of amount to fraud. . . . For instance, 
 
 In r fortune, amounting to £180,000, to a a defender may have prevented a profes- 
 
 i n ;arding whom she entertained sional person from having access to the 
 
 insane delusions, and who appears to have person granting the deed, and thus have 
 
 exercised considerable influence over her. prevented him having that aid which was 
 
 Tli" Court refused to admit the will to necessary to give him capacity for under- 
 
 probate. The case was a very critical one. standing it," 
 
 and the judgment upon it is mostinstructive.
 
 WILL OB TESTAMENTARY DISPOSITION. 277 
 
 deaf-mute will be effectual, (b) It is not a condition of the validity chapter xiv. 
 of the will of a blind person that it be read over to him before sig- 
 nature : but the deed may be reduced upon proof that he was igno- 
 rant of its contents. (c) If notarial execution is resorted to, atten- 
 tion must be paid to the requisites of that mode of authentication 
 as fixed by the decisions. (d) 
 
 540. If the granter of a holograph untested settlement die insane. Undated will 
 there is no presumption that the will was executed during the period bfexSd" 3 l " 
 of insanity ; and the grantee would seem to be entitled to a verdict aftergranter be- 
 
 , came insane. 
 
 on proving that the testator was sane at the date mentioned in the 
 instrument, supporting it. as far as possible, by other adminicles of 
 evidence. (e) 
 
 541. At common law, the testamenti factio was not withheld Disabilities of 
 from bastards, but they were not allowed to exercise it to the pre- S^SSS" 07 " 1 
 judice of the Crown's interest. This disability was removed by 6 
 
 & 7 Gul. IV., cap. 22, which, on the grounds of "justice and hu- 
 manity." enacted that it should thenceforth " be lawful to bastards 
 or natural children, domiciled in Scotland, to dispose of their move- 
 able estates by testament or last will, in like manner as other per- 
 sons belonging to that country may do." 
 
 542. An alien, by the common law of Scotland, cannot be the Disabilities of 
 proprietor of heritable estate ;(/) in England the' disability does aUenSl 
 
 no1 extend to lands acquired by purchase.^) An alien, therefore, 
 cannot make a will or execute a trust embracing heritable estate, 
 until he shall obtain letters of naturalisation, or a certificate of na- 
 turalisation under the Ad 7 & 8 Vict., cap; 66.(A) As regards the 
 disposal of moveable estate, the rights of aliens are as extensive as 
 those of natural-born subjects, with the single exception that they 
 are b'able to be suspended during the continuance of a war with the 
 country oi which he is a subject. 
 
 (6) Uarman on Wills, 3d ed. 129 ; Dick- be reached by education; and such per- 
 
 B 1 Dicks. 268; Re Harper, sons are capable of receiving education" 
 
 6 M..& Gr. 781, 7 Scoti N. R. 481. In (8 Ji L853, l- r > D. 736). 
 
 Pet. Kirkpatriek, Lord Coloi rved, (c) Duffv. Earl of Fife, 17 July 1823, ] 
 
 thai a deaf-mute, capable of communicat- Sh. (Ap. Oa.) 498; Ker v. Hotchkis, 23 
 
 deed I uo- Maj L887, 16 Sh. 983; Reidr. Baxter, 19 
 
 ' I; of the power of spei ch," Feb, L840, 1 Rob. 66, affirming 16 Sh. 273. 
 
 he observed, "doi uoi disable a party (d) Stat. 1679, cap. 80, amending 1640, 
 
 from taking th< management of his affairs, cap. 117; Reid v. Baxter, supra, and ca i ■ 
 
 e pi eially when uoi combined with the I 
 
 of power of h \.rl even Waddell v. Waddell's Trs., 7 D. 605, 
 
 when it is so accompanied, there are manv per Lord M ireiff. 
 
 ■' which I- fflicted aro (/) Ersk. 8, 10, L0; Dundasv. Dundas, 
 
 not merely perfectly capable of ma 16 B L889, 2 D. 81. 
 
 their own affairs, but who exhibil pr {g) Lewin.Tr. Ith ed. 24, 6th ed. 25. 
 
 the bighi i intellect. The intellecl may 7 & 8 Vict. cap. 66,
 
 278 
 
 OF THE CAPACITY TO MAKE A 
 
 en urn; \iv. 
 
 •• anil 
 outlawry aa 
 affecting tes- 
 tamentary 
 capacity. 
 
 543. By the English law of treason— extended by the Union to 
 Scotland — all lands, held by whatsoever tenure or title, are forfeited 
 to theCrown on conviction. To avoid forfeiture, many conveyances 
 were at one time executed to confident persons, with the view of 
 creating a trust by anticipation in favour of the granter and his 
 heirs ;(/) for, after conviction, no trust of heritage would be effec- 
 tual. The effects of outlawry and civil denunciation are different 
 from that of treason. The denounced rebel or fugitive has no per- 
 sona standi in judicio. His single escheat instantly falls ; and if 
 he continues imrelaxed for a year and day, his liferent escheat 
 falls, and the rents and profits of his heritable estate go to the 
 Crown, or other immediate lawful superior.^) The same results 
 follow conviction of a capital crime. But it has never been doubted 
 that denounced re'bels retain the fee of their estates; and it is there- 
 fore difficult to understand the grounds upon which a minority of 
 the Court, in a modern case, (7) disputed the right of such persons 
 Right of disposal to exercise the jus disponendi. It is now settled, however, by a 
 ^twiliLnmdin^ solemn decision, that a party under sentence of fugitation may exe- 
 mgitation. eu ^ e a settlement of heritable property, (m) The only restriction on 
 his proprietary right is, that he cannot do any act in prejudice of 
 the superior's liferent interest. Thus it has been held that an heir 
 of entail, whose liferent escheat had fallen, could not, by suffering 
 an adjudication to pass, incur an irritancy, so as to pass the estate 
 to the next substitute, (n) 
 Bankruptcy. 544. The sequestration of a bankrupt's estate vests all his herit- 
 
 al ile and moveable estate in the trustee, for behoof of his creditors. (o) 
 
 (i) Mackenzie v. M'Donald, 1736, Elch. 
 "Trust," No. 4; Com. of Forfeited Estates 
 v. Mackenzie, Robertson, 263-280 ; Hamil- 
 ton v. Hamilton, 1669, M. 16,116. 
 
 (k) Ersk. 2, 5, 59 and 66. The conse- 
 quences of escheat are frequently remitted 
 by the Crown, under the authority of mo- 
 dern statutes, by which the restraints on 
 the alienation of royal property have been 
 relaxed to the extent of enabling the 
 Crown to restore lauds to the family of 
 the former owner, or to give effect to his 
 disposition. See 6 Geo. IV., cap. 17, the 
 latest Act. 
 
 (I) Macrae v. Macrae, 22 Nov. 1836, 15 
 Sh. 54, 1 M'L. & Rob. 645. 
 
 (to) Macrae's case. See the learned and 
 exhaustive opinion of Lord Medwyn, 15 
 Sh. 64. 
 
 (n) Ersk. 2. 5, 67 ; Scot v. Scot, 1722, M. 
 3673. In Coomb* v. the Queen's Proctor, 2 
 
 Rob. 547, Sir John Dodson decided, that 
 where the wife of a felon, under sentence 
 of transportation for a term of years, died 
 intestate, leaving property acquired by her- 
 self subsequent to his conviction, such pro- 
 perty belonged, not to her next of kin, but 
 to the Crown, However, it has been de- 
 cided in other English cases [Re Martin, 2 
 Rob. 405, 15 Jur. 686 ; Atlee v. Hook, 23 
 L. J. Ch. Ca. 776), that the wife of a trans- 
 ported felon has the testamenti factio as to 
 her separate acquisitions; an equitable ex- 
 ception, which may perhaps be extended to 
 married women in Scotland, on the analogy 
 of the cases of Churnside v. Currie, 1 1 July 
 1789, M. 6082, and Orme v. Diffors, 30 
 Nov. 1833, 12 Sh. 149. But see contra, 
 Dick v. Donald, 12 Dec. 1826, 2 W. & S. 
 522. 
 
 (o) 19 and 20 Vict. cap. 79. ? 102.
 
 WILL OR TESTAMENTARY DISPOSITION. 279 
 
 But the bankrupt has an assignable interest in the reversion, capa- chapter xiv. 
 ' ble of being vindicated by action, (p) and which may therefore be 
 made the subject of a will or settlement. (#) The same observation 
 is applicable to the question of the capacity of an insolvent per- 
 son who has granted a disposition omnium bonorum for behoof of 
 creditors. 
 
 545. Though a settlement at the time of execution may be Effect of homo- 
 subject to objection or reducible on the ground of incapacity, yet tion in" moving 
 if the granter adopt or accredit the instrument, after he acquires wub^ofsettie- 
 the disposing capacity, it will thenceforth be effectual as his deed. ments - 
 
 On this principle, deeds by minors and married women may be ho- 
 mologated after attaining independence. The term "adoption," 
 which has lately como into use, chiefly in relation to counter issues 
 in reductions on the head of forgery, seems to be properly applicable 
 to acts whereby a party accredits that which was ab initio not his 
 deed, but which becomes so by his delivery of the deed or acknow- 
 ledgment of the subscription as his. In such cases the date of adop- 
 tion is in law the date of the deed. " Homologation," by which a party 
 waives objections to the formality of the deed,(r) or objections go- 
 ing to the fairness of the transaction — e.g., minority and lesion, or 
 facility — seems to give a retrospective validity to the instrument 
 from its date. "When," says Professor Bell,(s) "the original party 
 homologates, he either ratifies a deed or obligation already executed 
 but imperfectly, or he adopts and gives effect to what would other- 
 wise be null. When there is already an obligation existing, though 
 imperfect or subject to exception, homologation may have the effect 
 of confirming it as good from the first; where the deed or obliga- 
 tion is null, homologation acts only as the adoption of what is re- 
 duced to an intelligible and precise shape, bu1 is in no degree bind- 
 ing; and the binding effeel has in this case no retrospect." 
 
 546. In the case of Gall v. Bird,(t) where a contract of dissolu- Homologation 
 tion of partnership and trust assignation was brought under reduc- duttionTon'the 
 lion, on the grounds of mental incapacity, and also of facility and ground of in- 
 circumvention, the Second Division, after mature consideration, al- facility. 
 
 ■I an issue of homolgation counter to the issue of facility; but 
 
 refused to allow the same issue to be taken counter to the general 
 
 on the deed ; being of opinion that, if insanity were proved, 
 
 the deed could only be set up by a substanl ive action of declarator. (u) 
 
 (p) Sect. 166; and Bell's I un.1286; («) 1 Bell's Com. 6th ed., 145 ; Ersk. 8, 
 ■ r )ili ed., 2, 484, and ca • thi n cit< d. 8, 47. 
 
 .1 Right." (t) Gall v. Bird, 8 July L855, 17 D. 
 
 • he adoption of informal writ- 1'i'_'7. 
 
 Erskinc lay i down thai deed* exe
 
 280 OF THE CAPACITY TO MARK A WILL. 
 
 i baptm xin. it is dimcull to reconcile this view with the now settled practice of 
 
 trying issues of adoption in replication to the defence of forgery. 
 Adoption by the * 547. ll is scarcely necessary to remark, that a will reducible on 
 granter after re- (] o TO und ol' incapacity, if capable of being accredited at all, could 
 
 moval ol dis- ° r j ± P -i ,• <•. ,1 
 
 ability. ,, u i v be set up upon pregnant evidence of adoption after the granter 
 
 became possessed of the requisite degree of capacity. Until a pre- 
 cedent is made, we can only say, reasoning from analogy, that we 
 see no reason why the delivery of a void testamentary instrument, 
 or its adoption in a subsequent writing — after the testator acquires 
 the testamenti f actio — should not be as effectual to obviate objections 
 arising from personal disability, as those acts admittedly are to ob- 
 viate objections to the execution of the instrument.^) 
 , ,. lti „ n 548. A settlement may also be homologated by one who has an 
 
 !l : 1 """ l adverse interest ;* in which case his right of challenge, upon any 
 
 Baary. ' . . . . ' 
 
 ground of which he was aware at the time of homologation, is for 
 ever cut off.Qy) But there is no room for the application of the doc- 
 trine if the homologating party were ignorant of the objection.^) 
 
 rated by a pupil, or insane person, are inca- tication, or adopting the will by reference 
 
 pable of being homologated; but it would in some subsequent writing; Ibid. 1, 178. 
 seem they may be adopted. TheZa&escan- (y) As to homologation of settlements 
 
 not be of a more radical character in the by interested parties, see M'Michan v. 
 
 cases put by the learned author than in M'Michan's Trs., 22 June 1839, 1 D. 1085; 
 
 the case of forgery. See the passage 3, Murray v. Murray, 21 Jan. 1826, 4 Sh. 
 
 3 47, 374, N. E. 377 ; Leiper v. Cochrane, 9 July 
 
 (x) It would seem that a will made in 1822, 1 Sh. 552, N. E. 506; Ewenv. Mags. 
 
 England, during the subsistence of a per- of Montrose, 17 Nov. 1830, 4 W. & S. 346, 
 
 sonal disability, may be validated by re- reversing 6 Sh. 479; Kyle v. Allan, 23 
 
 publication after the testator is mi juris ; Feb. 1832, 1 1 Sh. 87 ; Fraser v. Fraser, 7 
 
 1 Jarraan on Wills, 3d ed. 36 ; that is, by Nov. 1834, 13 Sh. 703. 
 either renewing the solemnities of authen- (z) Erskine, 3, 3, 48; Bell's Pr. \ 27.
 
 of tup: CAPACITY to take under a will. 281 
 
 CHATTEIi XV. 
 
 CHAPTER XV. 
 
 OF THE CAPACITY TO TAKE UNDER A WILL OR 
 TESTAMENTA RY DISPOSITION. 
 
 I. Disabilities of Trustees and Exe- II. of Disponees, Legatees, and Bern 
 
 cutors. fieiarii s. 
 
 SECTION I. 
 DISABILITIES OF TRUSTEES AND EXECUTORS. 
 
 549. It may bo affirmed as a general principle, that the law of Office not sub- 
 Sootland imposes no restriction on the power of the subject to ac- special disquaii- 
 cepl a trust, and to execute its purposes, excepting such as arise y m s rues ' 
 from the incapacity of the grantee, or the illegality of the purposes 
 
 of the conveyance. It is no disqualification thai the trustee takes 
 a beneficial interest under the instrument declaring the trust ; in- 
 
 '. if beneficiaries were held to be disqualified from acting as 
 9, it would 1"' impossible in ninny cases to obtain the ser- 
 
 - of persons willing to undertake the responsibilities of the 
 office. 
 
 550. The Crown may exercise the functions of a private trustee, TheCrownmay 
 if nominated to the office. This is assumed in the English autho- f an endow- 
 rities; and there is no principle of Scotch law tending to exclude ment " 
 
 the t ii Le of the < !rown as a fiduciary.(a) For example, if a testator 
 endow a college or a university chair, and vest the righl of appoint- 
 ing professors in the Crown, thai would obviously be a valid and 
 operative trust; though the Crown, like any other trustee, mighl 
 think proper to decline accepting the patronage. 
 
 551. It bas been doubted by English jurists \\ bel ber the < Jrown Whether>i ac- 
 could be compelled to execute the trusl purposes after having ac- compel the 
 cepted the office and estate; and the weighl of authority seems to I,,',',',';''!!, 1 .'!,''|' l ,. , 
 incline towards the negative side of the question. The English de- 
 cisions upon this poinl — which cannol in its results be considered 
 
 v /. tf'Donald, 1786, Elchi Trual No. 4.
 
 282 OF THE CAPACITY TO TAKE UNDER A 
 
 ohameb w. as of any practical consequence — care founded on a purely technical 
 view of the nature of the Chancery jurisdiction, which is said to be 
 an authority delegated by the Sovereign to the Chancellor, to re- 
 strain the too rigid operation of the rules of common law in cases 
 In I wixt subject and subject.(fe) Such authority being, it is argued, 
 an indirect exercise of the King's prerogative, it cannot legally be 
 exercised where the interests of the Crown are at stake. Such con- 
 si. lerat ions arc inapplicable to the administration of justice in the 
 Court of Session, a tribunal deriving its equitable as well as its le- 
 gal jurisdiction from the authority of Parliament. We see no rea- 
 son, therefore, to doubt that the Court of Session would be found to 
 have an adequate jurisdiction to determine the rights of parties un- 
 der any trust in which the Crown might have an interest, whether 
 as trustee or otherwise. 
 Bodies corpo- 552. Corporations may act as trustees both in England and 
 
 Scotland. In the case of charitable trusts, and institutions for 
 which it is desired to establish a perpetual endowment, it has been 
 usual to vest the management of the trust property in municipal 
 bodies or other corporations interested in the welfare of the loca- 
 lity, (c) The object is sometimes sought to be attained by impos- 
 ing on certain public bodies the duty of nominating one or more 
 of their number to be trustees in perpetuity. Where a testator has 
 omitted to name trustees for the execution of a charity, the magis- 
 trates of the town to which the bequest is left have been held en- 
 titled to bring an action to have the trust purposes declared, (d) and 
 a scheme of management approved of by the Court(e) The Sheriff 
 and Sheriff-clerk of a county town were found to be entitled to 
 bring an action for the administration of a charitable bequest which 
 was intrusted in general terms to the care of " the two highest civil 
 officers of the town/'(/) It is not easy to define the nature and ex- 
 tent of the fiduciary relation which devolves upon local authorities 
 in cases of this nature. But if they are bound to see to the right 
 appropriation of the trust funds in the outset, it seems reasonable 
 also to conclude that they have an interest to see to the adminis- 
 tration of the trust estate so long as its purposes remain unful- 
 filled.^) 
 
 (b) Lewin on Trusts, 5th ed. p. 27. (d) See Shepherd $ Grant v. Connell, 17 
 
 (c) Trades of Edin. v. Govs, of Heriot's D. 516 ; Blackwood v. Milne, cited in 17 D. 
 Hospital, 3 June 1836, 14 Sh. 873; Mags. 519. 
 
 of Inverness v. M'lntosh, 4 Mar. 1824, 2 Sh. (e) Mags, of Dundee v. Lindsay $ Morris, 
 
 769, N.E. 639 ; Murdoch v. Mags, and Mins. 3 Macq. 155 ; sequel, 23 D. 493. 
 
 of Glasgow, 30 Nov. 1827, 6 Sh. 186 ; Gor- (f) Boe v. Anderson, 11 Nov. 1857, 20 
 
 dan's Hospital v. Mins. of Aberdeen, 8 July D. 11. 
 
 1831, 9 Sh. 909; Gardner v. Trinity II. of (g) See chapter 66 (Administration of 
 
 Leith, 23 Jan. 1845, 7 D. 286. Charitable Trusts 1 ).
 
 WILL OR TESTAMENTARY DISPOSITION. 283 
 
 553. The common law capacity of a corporation to sustain the chapter xt. 
 fiduciary character, does not extend to trading corporations. This 
 
 • • •-!•! e t» r -n In-virporated 
 
 doctrine is expressly recognised in the case of the .Bank of Eng- companies. 
 land, (A) and it may be applied to companies incorporated by Act of 
 Parliament, on the authority of the principles laid down by Lord 
 Cranworth, in the case of the Caledonian & Dumbartonshire Ry. Co. 
 v. Magistrates of Helensburgh. The point decided was, that an 
 agreement to apply the money of a company to a purpose not con- 
 templated by the local statutes was void, and could not be enforced 
 against the company ; the principle being that joint-stock com- 
 panies exist only for the purposes declared in the act of incorpora- 
 tion, and have no power to bind themselves to the performance of 
 extraneous duties. (7) 
 
 554. A married woman maybe a trustee and executor, and may whether mar- 
 take part in the active duties of the office ;{k) but except in special ^Mit>* eSa 
 cases it is better to avoid such a selection. The dictum in Stod- 
 
 dartfs case, that there is " no sinking of the rational person by 
 marriage," is not an answer to all objections. It is to be observed 
 that where responsibility is incurred to third parties as a conse- 
 quence of the wife's administration, the husband is the only re- whether the 
 sponsible party. Hence arises a difficulty in determining the limits ^Selo^the 
 of a married lady's authority as trustee, upon principles consistent acts of the wife 
 
 ,, ...... m the capacity 
 
 with justice to the husband, and due responsibility for the exccu- of a trustee. 
 
 tion of the trust. For example, it has been said that a married 
 
 lady cannot sue even in the capacity of trustee without the consent 
 
 of her husband ;(7) but it is not said that lie is to be responsible for 
 
 giving or for withholding his consent. It does not seem consistent 
 
 with the intentions of a testator that any constraint should be laid 
 
 mi the discretion of his trustees, by a person who is not bound by 
 
 the trust, and whose interesl in interfering extends no further than 
 
 to keep himself clear of pecuniary liability. It seems unfair, on 
 
 the other hand, and opposed to legal principle, to hold the husband 
 
 liable for the wife's breach of trust or for the expenses of litigation, 
 
 if her administration of the trusl is valid irrespective of his consent. 
 
 (A) Lewin on Trusts. 6th ed. p. 28. For- (k) Stoddart v. Rutherford, 30 Juno 1812, 
 
 i to enter ex- F.O.; Darling v. Watson, 11 .Fan. 1824, 2 
 
 tracts from wills in its books ; but now, by Sh. 607, N.E. 619; affirmed, 11 May 1825, 
 
 8 & 'j Vict. cap. 97, tl ad- 1 W. & S. 188; Laird v. Miln, 16 Nov. 
 
 ministrators are entitled to trail fer stock, 1833, 12 Sh. 54; Lewin on Trusts, 5th 
 
 on producing i sti id probate, oi 1< tt< ra of ed. p. 29. 
 administration. (2) Laird v. Miln, tupra, /»>■ Lord 
 
 (i) Caledonian fj Dumbartonshire Rail GUenlee. 
 1/ - | //. | burgh L9 Jam I B66, 
 'i M.,. | 891
 
 284 OF THE CAPACITY TO TAKE UNDER A 
 
 ohaptkbxv. The hardship is equally great, whether the loss is borne by the 
 
 beneficiaries or by the non-consenting husband. 
 Husbandry 555. 1 1 has been held that a man is entitled to prohibit his wife 
 
 ESSSRb- in limine Erom accepting the office of trustee. (m) In the ease of 
 ceptanceofthe k having been appointed when single, it has not been decided 
 
 trusteeship. o rr . . , P n nr> 
 
 thai he is entitled to insist upon her retirement from the oliice ; 
 but tlif import of the cases already cited, and of the English case 
 of l.<ih.(n) is favourable to such a view of the husband's rights.(o) 
 The duties of executor are usually of a simpler and less onerous 
 character than those of a trustee, and there are cases in which a 
 married woman {e.g., as sole next of kin) may with advantage un- 
 dertake the administration of an cxecutry estate. 
 Pupils. 556. A pupil is of course incapable of being a trustee or exe- 
 
 cutor, for his consent is necessary to the constitution of the rela- 
 tion of trust; and such consent a pupil, equally with an insane 
 person, is considered to be incapable of granting. The doctrine 
 has been recognised in the case of a pupil professing to enter into 
 a partnership— a relation which is constituted by consent, and im- 
 plies capacity ;(jj) and the same considerations are applicable to 
 the office of. trustee. 
 Minority: 557. The objection does not apply with the same force to the 
 
 tatSgadfe- Sti " case of the appointment of a minor. Such an appointment is ob- 
 abiiity. jectionable, however, on the grounds already discussed in relation 
 
 to married women ; i.e., because the minor is subject to the con- 
 trol and interference of guardians, and is therefore not free to exer- 
 cise his own discretion. The case is not one of frequent occurrence, 
 as people are not likely to intrust the management of their pro- 
 perty to such persons as are too young to have full power over 
 their own. A father may however nominate his son as his testa- 
 mentary trustee, in the expectation of surviving the period of his 
 son's minority ; and other cases may easily be figured. If such an 
 appointment is incompetent, it must be on the ground that a minor 
 is considered not to possess the requisite discretion; and on this 
 ground it has been held that a minor cannot be trustee on a seques- 
 trated estate ;{q) nor be appointed a judicial factor. On the other 
 hand, a minor may execute faculties under an entail, or consent to 
 a disentail in certain cases ; he may sell, lease, or burden his pro- 
 
 (m) Stoddart v. Rutherford, supra. the truster survives that event, and is 
 
 (n) Lake v. De Lambert, 4 Ves. 595, per aware of it, without altering the nomina- 
 
 Lord Loughborough. tion, he is held to continue it intention- 
 
 (o) " The nomination of a woman as ally." 
 
 trustee," says Bell (1 Com. 32), "seems (p) Macaulay v. Eenny, 15 Feb. 1803, 
 
 to fall with her marriage ; hut where the 2 Bell's Com. 5th ed. 624. 
 
 appointment is made before marriage, and (</) Pet. Threshic, 30 May 1815, F.C.
 
 WILL OR TESTAMENTARY DISPOSITION. 285 
 
 perty; and lie may oven present to a living, whether he have or ohaptbkxv. 
 have not curators.(r) We incline therefore to the opinion, not- 
 withstanding some dicta to a contrary effect, (s) that a minor must 
 resumed to have discretion for this office. This appears also 
 to he the view generally taken in England, where our distinction 
 between minority and pupilarity is unknown. (7) It lias been de- 
 cided that minors are entitled to he decerned executors-dative, and 
 to grant discharges in that capacity.(w) In practice, where minors 
 are appointed testamentary trustees, their power of acting is de- 
 clared to be suspended until the attainment of majority.(a;) 
 
 558. In the event of a minor trustee being induced to join in Liability of 
 deeds prejudicial to his interests, the trustees might be subjected m 
 
 to the inconvenience of having to defend their administration in a 
 reduction on the ground of minority and lesion. The liability to 
 such proceedings is perhaps a sufficient reason why trustees should 
 hesitate to enter on the management of property in conjunction 
 with a minor trustee. From the inconveniences attending the 
 appointment of a minor as trustee, there arises a strong presump- 
 tion that property given to a minor is intended to be taken bene- 
 ficially.^) 
 
 559. Aliens may be, and not unfrequently are, appointed trus- Alienage. 
 : but it musl be remembered that a disposition of heritage fco 
 
 an alien is void. Such persons, accordingly, are disqualified from 
 acting as trustees for the administration or distribution of heritable 
 property. An alien enemy is incapable of accepting a trust, as. by 
 the Law of nation-, he lias no persona standi in judicio, 
 
 560. It is observed by Forsyth, on the authority of an old Crime and out- 
 case,^) that a conviction for high treason forms the sole recognised 
 
 disqualification mi the SCOre Of crime.(a) It must be added, how- 
 ever, that there is no authority for holding that com id ions for other 
 infamous crimes do not disqualify. A sentence of outlawry must 
 o| necessity operate as a bar to the acceptance of a trust ; and it is 
 
 B ••' 9 June L830, 8 fvi Lewin on Tru I p. 83, and 
 
 6h. 899. c cited. 
 
 Pet. Wylie, 28 June 1850, 12 D. (z) Mackenzie v. M'Bonald, 17::''.. Elch. 
 1110; Shanktv. Aitken, 8 St " Trusts," No. 4. Where a testator di . 
 
 [t) Lewin on Tru I , 5th ed. p. 81. ^ifeandan alien upon trust 
 
 ■ ' I den, 15 Feb. 1838 to sell I the a rwards ob- 
 
 541. tained an act of nal uralisation, it was held 
 
 1 I, when a new trustei is that the act did not oj i ively 
 
 appointed by the Court of Chancery in didate the title of a purchaser of 
 
 the room of an infant lominated the I Klein, 2 Mer 
 
 tor, the appointment is 131) 
 
 t to the right of the infant to be re- (a) Poi irth on Tru I p 93. 
 
 ; to the trust 
 In /■ Sh ' I ' I IT l
 
 286 
 
 OF THE CAPACITY TO TAKE UNDER A 
 
 m of a 
 sufficient num- 
 ber Of trusters. 
 
 oHAPTBH xv. i_ m t reasonable to presume that the acceptance of a trust by a party 
 undergoing punishment for crime would be void. The question, 
 however, is of no practical importance ; because any circumstance 
 raising a suspicion of dishonesty, or of incapacity to discharge the 
 duties incumbent on a trustee, may be made the ground of an ap- 
 plication to the Court for the removal of the party. 
 
 561. It lias usually been considered that a sole trustee is the 
 most eligible appointment for the settlement of an insolvency or 
 bankruptcy. (b) The objects of the trust, which are the immediate 
 recovery of assets and the distribution of the proceeds, cannot be so 
 well accomplished where the administration is impeded by divided 
 counsels ; and despatch is of more consequence to the creditors than 
 the most perfect security. But where a continuing management is 
 contemplated, as in family settlements and trusts for the manage- 
 ment of property, it is desirable to unite the discretion and trust- 
 worthy qualities of several trustees, (c) To guard against possible 
 danger to the estate (which may happen, without wilful dishonesty, 
 in the event of a sole trustee being overtaken by a sudden reverse 
 of fortune), provision should be made for keeping the trust full by 
 assumption. As to the proper number of trustees, where more than 
 one is requisite, the old formula, tres faciunt collegium, furnishes a 
 safe rule for a minimum ; and the trust may be kept full by means 
 of a clause prohibiting any smaller number from acting until he or 
 they shall have taken the necessary steps for restoring the trust to 
 the standard of numerical efficiency. 
 
 SECTION II. 
 DISABILITIES OF DISPONEES, LEGATEES, AND BENEFICIARIES. 
 
 Estate of the 
 Crown. 
 
 562. The Sovereign may acquire property beneficially through a 
 trustee, either in consequence of the granter's declared intention, or 
 as ultimus hceres upon failure of the trust purposes, (d) In England 
 it appears that the title of the Crown, whether legal or beneficial, can 
 only be constituted by conveyance of record, (e) We are not aware 
 that the law of Scotland interposes any obstacle to the beneficial 
 acquisition of property by the Crown under an ordinary convey- 
 ance. It is understood that the Crown cannot complete a title to 
 feudal property as disponee under a conveyance from a subject, as 
 it is inconsistent with the position of the Sovereign as lord para- 
 
 (b) Bell's Pr. § 1993, 1. 
 
 (c) Bell's Pr. § 1993, 2; Lewin on 
 Trusts, 5th ed., p. 34. 
 
 (d) Finniev. Lords Com. ofTreas., 30 Nov. 
 1836, 15 Sh. 165. 
 
 («) Lewin on Trusts, 5th ed. p. 35.
 
 WILL OR TESTAMENTARY DISPOSITION. 287 
 
 mount that he should hold lands feudally from his vassal. (/) But ohaptkb xv. 
 
 it has never been doubted that the Crown may take a personal right 
 
 to feudal subjects, and convey it to a donatory ; and it is obvious 
 
 that lands which the Sovereign acquires by succession or purchase, 
 
 as private property, may be held beneficially, if the feudal title 
 
 is vested in trustees. The analogous case of partnership interests 
 
 in land, proves, or at least illustrates, our proposition. (g) When 
 
 the Sovereign as ultimus Jiceres claims a trust-estate in consequence 
 
 of the failure of purposes, the action may be directed against the 
 
 trustees by the Lord Advocate, as his representative, under the 
 
 Crown Suits Act 1857. (A) 
 
 563. An alien may of course take a beneficial interest in move- whether alien 
 able estate ;(*) and, under the 5th section of the recent Alien Act, j^ a SereSuT 
 he may hold an interest in lands and houses, for the purpose of re- heritable estate. 
 sidence or business, for any term not exceeding twenty-one years. 
 It has never been decided that an alien is incapable of acquiring a 
 beneficial interest in the produce of land estate in Scotland, under 
 a trust directing trustees to hold such lands for his benefit. The 
 common law of Scotland is more jealous of intrusting heritable 
 property to the custody of aliens than that of England. The ex- 
 clusion of such persons has reference not only to succession, but to 
 purchases ;(k) the reason assigned for the exclusion being, that an 
 alien who owes allegiance to another sovereign is not in a position 
 to perform his feudal service faithfully to the superior.(Z) Now in 
 England, where an alien is disqualified from acquiring real estate, 
 either bydescenl or by operation of law. it lias been held that a 
 tru8l of lands for liis benefit, although nut absolutely void, is in- 
 capable of being enforced by the beneficiary in a question with the 
 ( !rown.(w ) 
 
 (/) Er,k. 2, 8, -11 : Bank., 2, 4,4. Tim 1, and 27 L. J. Ch. 120, in favour of the 
 
 matti i' l- i: rj by Statute. See Crown. On a full review of all the previ- 
 
 \ 629, ous cases, Sir. .1. Romilly came t<> tin' con- 
 
 / v MuruU and King's Remeni- elusion, that, " on principle and authority, 
 
 . :;i May L882, L0 Sh, 697; Initio a rlevi ■• nf n -A . ■ t :1 f . ■ i<> trustees for an 
 
 FirmieY. Com. of Treatury, 80th Nov. 1886, alien is not a v.. id devise; thai it isatrusl 
 
 1") Sh. 166. of which t he Crown may enforce the i secu- 
 
 (A) 20 & 21 Vict., c. 41; Lord Adv. v. tibn, and of which it may obtain the benefit." 
 
 Royal Infirmary of Edinr., 28 June L861, " I have &1 o tl ghl it better," he con- 
 
 2:; I>. 1218. tinui d, " not to dwell on the argument re- 
 
 (i) 7 ft 8 Vict, e. 66, ? 4 ; bui see, as to lating to the policy of the law which is the 
 
 1 accession, Ersk. infra. foundation of the rule prohibiting aliens 
 
 (/■I Ex k. '.',. 10, in. from holding Lands in this country, which 
 
 f/j Er !•:. ntpra. i much noticed and relied on in certain 
 
 ! p. 86; 1 Jar- cases. So \'-^r. however, this has any 
 
 ■ • I . The point appli ipporl I hi pi inciple of the 
 
 aded in Barrow. Wadkin,24 Beav. view I have taken" (27 L. J. Ch.C. II
 
 288 
 
 OF THE CAPACITY TO TAKE UNDER A 
 
 I'll IF 
 
 Distinction in 
 to the 
 proceeds of n al 
 estate directed 
 
 to be s 
 
 Trust-- for be- 
 hoof of mercan- 
 tile companies. 
 
 tit] 
 
 564. There can be little doubt thai an alien would bo hold en 
 ed to take a bequesl 
 
 of the proceeds of heritage in Scotland if 
 
 Rule as to pro- 
 perty held in 
 trust for corpo- 
 rations and 
 guost-corporate 
 societies. 
 
 the trust were coupled with a direction to sell, (n) as this would have 
 ill,, effect of converting the estate into a moveable succession. (o) 
 The privileges accorded to naturalised subjects and aliens holding 
 certificates under the Ad 7 and 8 Vict., c. 66, will of course extend 
 to the beneficial interest as well as the feudal title in heritable 
 
 estates, (p) 
 
 565. Although an ordinary trading company or other unincor- 
 porated society cannot sustain the character of feudal proprietor, 
 the disability maybe avoided by taking the title in the name of 
 the partners as trustees for the company ; and the society will in 
 this ease have the same right of action as any other beneficiary, 
 ft would seem also that a committee of management representing 
 a society, or a larger number of persons mutually interested in pro- 
 perty or associated for a lawful purpose, may to certain effects be 
 admitted to sue on their behalf. (#) The provisions of the Trustee 
 Act of 1861 do not apply to the appointment of trustees under the 
 contract of any trading company, (r) 
 
 566. It seems that in England a corporation cannot take a 
 beneficial interest in lands without license from the Crown ;(s) but 
 this rule has never been sanctioned in Scotland. The cases of 
 Campbell v. The Orphan Hospital and Gardners. The Trinity House 
 of Lcith (t) decided, that where a corporation was invested with 
 
 (p) If an estate is left to an alien and a 
 subject jointly, and no claim is preferred by 
 the Crown during the joint lives, it would 
 seem, according to the views entertained 
 by English lawyers, that on the death of 
 the alien the co-proprietor succeeds jure ac- 
 crescendi to the alien's share, subject to the 
 Crown's claim ; but that if the alien sur- 
 vive, he does not succeed to the co-proprie- 
 tor's share, either for his own behoof or for 
 the Crown, because the law, by its own act, 
 does not give the estate to one whom it 
 does not permit to retain it (Jarman on 
 Wills, 3d ed. 1, 60, and cases there cited). 
 
 (q) Fife and Kinross Railway Co. v. Deas, 
 4 Jan. 1859, 21 D. 187. But see M'Millan 
 v. Free Church Assembly, 9 July 1862, 24 
 D. 1282 ; and cases on Church Property, 
 chap. 24 (Charitable Bequests). 
 
 (/•) 24 & 25 Vict., c. 84, § 3. 
 
 (.s) Lewin on Trusts, 5th ed. p. 36. 
 
 (t) Campbell v. Orphan Hospital, 28 June 
 1843, 5 D. 1273 ; Gardner v. Trinity House 
 ofLeith, 23 Jan. 1845, 7 D. 286. 
 
 (n) In Du Ilourmelin v. Sheldon, Lord 
 Cottenham, C, affirming the decision of 
 Lord Langdale, M.-R. (1 Beav. 79, 8 L. J. 
 Ch. Ca. 133), decided that an alien bene- 
 ficiary was entitled to an interest in the 
 proceeds of lands devised to trustees, upon 
 trust to sell. Lord Cottenham observed, — 
 " If the Crown is entitled in this case it 
 must be entitled to all monies left to aliens, 
 if raised out of land; and if so, it would 
 operate against the legacies of alien lega- 
 tees directed to be raised out of land ; nor 
 could any debtor or other person direct his 
 land to be sold for payment of his debts if 
 any of his creditors happened to be fo- 
 reigners ; nor could any foreigner enforce 
 his claim against his English debtor if the 
 latter had no other property than real 
 estate " (4 My. & Cr. 525, 9 L. J. Ch. Ca. 
 25). See also Master v. De Croismare, 11 
 Beav. 184, 17 L. J. Ch. Ca, 4G6. 
 
 (o) See Chap. 11 (Constructive Conver- 
 sion).
 
 WILL OK TESTAMENTARY DISPOSITION. 289 
 
 the administration of lands in trust, it was entitled to hold them in chapter xv. 
 the name of its office-bearers, as constituting the corporation ; but 
 it was assumed by the Lord Ordinary, (0 in the case of Gardner, 
 that the title might have been separated from the beneficial in- 
 terest. " If," he said, " in strict feudal form, there should chance 
 to be a flaw in the defender's investiture — viewing that investiture 
 as one in favour of the corporation — this can never touch the radi- 
 cal right to the estate, which unquestionably belongs to the de- 
 fenders as a body." In Campbell's case, the Lord Justice-Clerk 
 Hope observed, — " I cannot hold that it is a corporation which has 
 here been entered ; for I think it is clear that, if a society have a 
 corporate style given to it, it cannot be correctly vested with pro- 
 perty except by that technical name; nor does a grant to the officer 
 of a corporation make that corporation a vassal of the superior."(x) 
 But his Lordship and the other judges held, that as the superior 
 had agreed to enter the corporation, he was not entitled to demand 
 composition for entering their treasurer. In fact, as a superior is 
 not bound to enter a corporation, (y) it is necessary, if he refuse, to 
 take the title in name of a trustee; and to this extent Lord Stair 
 considered that a trust might be constituted in favour of a corporate 
 body, (z) 
 
 567. By means of a trust-conveyance, an interest in property Trusts for the 
 may be conferred on an indefinite number of peisons; as, for ex- JteJassetot " 
 ample, in a trust for the poor of a parish, or for the education ofP ersons - 
 children in a particular locality. Where a beneficial interest is 
 vested in this way in a class of persons, simply as objects of charity, 
 and apart from any special qualification, it has been held that any 
 ii answering to the description of persons described in the 
 granl has a right to sue for the enforcement of the trust ; and accord- 
 ingly, an actios of declarator was sustained with reference to the 
 administration of a bequest to the poor, where the pursuers de- 
 scribed themselves as belonging to a class of operatives in the 
 parish Liable to be tin-own out of employment, and, as such, having 
 an interest in the due management and administration of the be- 
 quest.(a) But where a discretionary power of selection isconferred 
 upon trust es, as in the case of a trusl for presentation to a bursary, 
 an unsuccessful candidate for the appointment has uo title to chal- 
 the election of another person, on the allegation that he is 
 
 •■ Lord [Tory. Bei 7 D. ■".'-.). (z) Stair, 2, 3. n 
 
 5 I'. !'J77. a LiddU ■■ . Kirl St rion oj Bathgate, I I 
 
 (yl Hill \-. Merchant Company of Edin- July 1864, 16 I' I 
 burgh, 17.I.IH. 1816, F.C., overruling the 
 previi 
 
 VOL. I. T
 
 290 
 
 OF THE CAPACITY TO TAKE UNDER A WILL. 
 
 *\ disqualified ; for he lias no vested interest in the charity until his 
 ~ own qualification has been declared by a vote of the trustees.(6) 
 568. In the cases of Ingram v. Steinson(c) and Grahame v. Mar- 
 quis of Montrose,(d) which established the principle that a settle- 
 ment is qoI void because witnessed by one of the legatees, the 
 question was raised, without having been decided, whether the 
 witness could claim the bequest in his own favour. In practice, 
 the question is avoided by selecting disinterested parties as instru- 
 ment a ry witnesses. We refer to the chapter on Acceptance for a 
 discussion of the question how a trustee may also take benefit as a 
 Legatee, (e) 
 
 '- to iu- 
 StruDli utarv 
 w itlli - 
 
 to trustees. 
 
 (b) Ramsay v. Un. Col. of St Andrews, 28 
 June I860, 22 D. 1328, affirmed 4 June 
 1801, 2:! D. (App. Ca.) 8. 
 
 (c) Ingram v. Steinson, 1801, M. " Writ.," 
 App. No. 2. . 
 
 (d) Grahame v. M. of Montrose, 1685, 
 M. 16,887. In England, the consequences 
 of the opposite rule (that a deed witnessed 
 by an interested party is void) were found 
 to be so indefensible that the Legislature 
 interposed — first, by 25 Cxeo. II. cap. 6, and 
 
 afterwards by 1 Vict. cap. 26, \\ 14, 15; and 
 provided in substance that the will should 
 stand, but that the bequest should be void. 
 However, a creditor witnessing a trust for 
 payment of debts does not forfeit his claim ; 
 nor is an executor disqualified from acting 
 as such by reason of his being an instru- 
 mentary witness {$$ 16 and 17). 
 
 (e) Chapter 55. (Acceptance and Dis- 
 claimer.)
 
 RESTRAINTS ON THE POWER OF DISPOSITION 291 
 
 CIIAPTEJR XVI. 
 
 CHAPTEE XVI. 
 RESTRAINTS ON THE POWER OF DISPOSITION. 
 
 I. Purposes, whether Lawful or TJn- II. Perpetuities, 
 
 lawful. 111. Accumulate 
 
 lulls 
 
 SE( TION I. 
 PURPOSES, WHETHER LAWFUL OR UNLAWFUL. 
 
 569. A trust is said to be unlawful, as contravening the policy unlawful pur- 
 of tliu law. where the trust purpose is either illegal or immoral per S^Iedf 11 " 
 se, or is coupled with a condition which the law will not enforce, (a) unlawful condi 
 In the first case, the trust is altogether void ; in the second case, 
 
 the condition is void, but the trust purpose to which it is annexed 
 is effectual. 
 
 570. Unlawful trusts, considered with reference to the ground General reiati 
 of illegality, comprehend the well-known categories of malum pro- ' 
 hibitum and malum in se. There is, moreover, a class of trusl pur- 
 poses which, although neither immoral in their obj eel nor prohi- 
 bited by any positive law, are yet discountenanced on grounds ol 
 
 public policy ; for which reason the < !our1 will not allow its proc< ss 
 to be used for their enforcement. The principles which regulate 
 the legality of voluntary dispositions apply equally to testamentarj 
 settlements and to trusts inter vivos ; and the subjed may be mosl 
 conveniently considered in its general relations, and without refer- 
 ence to the nature of the instrument creating the right. 
 
 571. In illustration of whai is meanl by trusts prohibited, we Th 
 
 may refer to the case of Blab- v. Allan, in which it was decided SSdSS***" 
 thai a direction to \-\ " a free liferent annuity, exempted from all ui !, " L 
 burden or deduction whatsoever," was, on the assumption thai il 
 
 Jtair, 1. 12, 1. A bequi i is professing doctrines different froi 
 
 notilli en for the en- the Church of Scotland j Baptist Churches 
 
 dowment of minister of the Unitarian per- v. Taylo 17 rum 1841, 3 D. 1080. 
 ■ "tip t dif mmunity 
 
 T 2
 
 ■< v -_> RESTRAINTS ON THE POWER OF DISPOSITION. 
 
 ohaptkrxvi. imported an obligation for payment without deduction of income- 
 tax, illegal under the Statutes 5 & 6 Vict., cap. 35, and 16 & 17 
 Vict., cap. 34.(6) Provisions granted to mistresses, which are as- 
 sumed to be in consideration of cohabitation, (c) or to illegitimate 
 children nascituri,(d) arc examples of a class of trusts which are 
 deemed unlawful, as being granted for an immoral consideration, (e) 
 Trusts by which the emoluments of a public office are appointed to 
 be held tor behoof of a party other than the incumbent, fall under 
 the third head of our enumeration; an instance of which will be 
 found in the case of Ord v. Hill, where an agreement to hold the 
 revenues of the office of Keeper of the Eegister of Sasines for Ken- 
 frewshire in trust, was treated as an illegal contract.(/) 
 
 Statutory re- 572. In Gordon v. Hoioden a reduction was brought of a latent 
 
 r^ership partnership, by the trustee on the sequestrated estate of the osten- 
 
 interests - sible partner, on the ground that it was illegal to enter into the 
 
 business of pawnbroking, which was the object of the partnership, 
 without advertising the names of all the partners in the manner 
 required by the 33d section of the Act 39 & 40 George III. 99. 
 The Court of Session repelled the reasons of reduction, holding, 
 that as the Act imposed a penalty for the neglect of its provisions, 
 it could not be held to nullify the contract. But the House of 
 Lords reversed the judgment ; and the case having been remitted 
 hack to the Court of Session, the latent partner was found to be en- 
 titled only to interest on his capital, and to a commission for man- 
 agement, but to have no right to a share of the profits, (g) 
 
 statutory prohi- 573. Under the provisions of the Navigation Laws, which were 
 J',!'" 1 intended to prevent foreigners from acquiring interests in British 
 British shipping, no interest in shipping property could be created in fa- 
 vour of any other person than the registered owner ; and the Courts 
 of law held themselves precluded from enforcing latent trusts even 
 against the person of the trustee, (h) unless, perhaps, in questions 
 between the trustee and the creditors of the real owner. (i) The 
 
 (b) Blair v. Allan, 17 Nov. 1858, 21 D. 1118 ; Thomson v. Dove, 16 Feb. 1811, E.G. ; 
 15 ; Robson v. M'Nish, 2 Fob. 1861, 23 D. but see Haldane v. De Maria, 6 Mar. 1812, 
 429; Wall v. Wall. 15 Sim. 513, 16 L. J. F.C. 
 
 Oh. 305. ( ff ) Gordon v. Howden, 28 April 1845, 4 
 
 (c) Hamiltonw-Bonamy, 1765, M. 9471; Bell, 254, and 9 Feb. 1853, 15 D. 378; 
 Durham v. Blackwood, 1622, M. 9469 ; A. Fraser v. Hill, 17 Jan. 1852, 14 D. 335. 
 
 v. B., 21 May 1816, F.C. ; Johnstone v. (h) Colder v. Miller, 12 Nov. 1824, 3 Sh. 
 
 MKenzies Trs., 4 Dec. 1835, 14 Sh. 106. 253, N. E. 179 ; Macarthurs v. Macbrair, 20 
 
 (d) Wilkinson v. Wilkinson, 1 Y. & 0. June 1844, 6 D. 1174; Ord v. Barton, 3 
 Ch. Ca. 657. Sec chap. 38. sect, 1. July 1846, 8 D. 1011. 
 
 ■(e) See Bell's Prin. g 37, where the (t) Scott v. Miller, 16 Nov. 1832, 11 Sh. 
 
 ire collected. 21. 
 
 (/) Ord v. Hill, 21 Maj is 17. 9 D.
 
 RESTRAINTS ON THE POWER OF DISPOSITION. 293 
 
 Act now in force for the regulation of British Merchant Shipping(jfe) chaptkb xvi. 
 prohibits the entry of any notice of trust, express, implied, or con- 
 structive, in the Register Book, and confers on the assignees of the 
 registered owner a title which cannot he affected by any trust in 
 the person of the cedent. Under the existing law, it is held that 
 such trusts are enforcible in personam against the trustee, (7) though 
 not in rem.(m) 
 
 574. In the contracts of copartnery and deeds of settlements of Exclusion of 
 English Joint Stock Companies, it is usually conditioned that the ,i!,,'i' ,','t !■'- '" 
 company shall not be hound to take notice of trusts in their register i iaitl "' r - v - 
 
 of transfers. The object of such regulations being to give greater 
 facility to transactions in shares, and to relieve the company from 
 responsibility, and such regulations being lawful in themselves, they 
 are binding on the representatives or assignees of shareholders as 
 well as on the original shareholders themselves. 
 
 575. An heir of entail cannot create a trust of the fee of the es- To what extent 
 tate, subject to an obligation to reconvey the estate alter his death to cStuTeYof 6 
 the heirs-substitute of entail. For although a trust in those terms &e interest of 
 
 ° an heir of entail. 
 
 is not, in the words oi the statute, (??.) a di-n] whereby the estate 
 i: may be apprized, adjudged, or evicted from the other substitutes in 
 the tailzie, or the succession frustrate or interrupted;" yet, as it is 
 a contravention of the statutory prohibition against disponing, there 
 can be no doubt thai the granter of such a trust would incur an ir- 
 ritancy. But an heir of entail may lawfully execute a trust-disposi- 
 tion of his life-interest in the estate and of the rents accruing dur- 
 ing bis lifetime, with a power to the trustees to enter into possession 
 and administer the property. Such trusts are frequently executed 
 for behoof of cr< ditors. As they leave the feudal estate in the per- 
 Bon of the granter unimpaired, they are nol held to import a con- 
 travention of the fetters of the entail.(o) 
 
 576. I;, nts falling under the life-interest of future heirs are as Rents of entailed 
 much extra commercium as the entailed estate itself; and where U-ii'AV"! 
 
 they are subjecl to a power of burdening for specified purposes, the alienable - 
 law will not allow any deviation from the conditions of the power. 
 Thus a power to provide younger children in three years' rent of 
 the estate is no! well executed by a bond for payment of the amounl 
 to trust* i is, on trusl to pay the interest to children, and thereafter 
 
 (k) 17 & is Vict. c. 104, (m) See Hay v. Cockburrit Trs., 19 July 
 
 / Boyd'a Exrt. v, Martin's Exri., 16 t850, 12 L>. L298. 
 June 1847,9 D. 1284. Bui thetn L686, c. 22. 
 
 be proved seripto vel juramento, Carlyle v. (o) Fairlie's 7V. v. Fairlie, 81 Jan. I860, 
 Macalpin I 19 M 1864, 2 Macph. 22 D. 682 ; Scot. I I Co.v.Oraham, 
 
 [9 F( b. 1889, 1 D. 582; Boyd v. Boyd, 
 6 July 1861, L8 D. 1802.
 
 i M MM I SB XIV. 
 
 
 ■ g | RESTRAINTS ON THE POWEE OF DISPOSITION. 
 
 toinvesl the capital in lauds; nor can a faculty of burdening the 
 entail with provisions be delegated to trustees.(p) But it is no ob- 
 jectioD to the exercise of such a Eaculty that it is granted in satis- 
 faction of obligations undertaken in a contract of marriage, (q) 
 
 577. By the law of England, conveyances of estate for the pur- 
 pose of creating votes for the election of members of Parliament, 
 with a private arrangement that no interest shall pass, are null and 
 void.(r) r-ul in Scotland, the purpose of the conveyance in such 
 cases is not so much regarded as the actual title to the property ; 
 and accordingly, although the qualification is objectionable under 
 the provisions of the Eeform Act, yet, asitisnotto be presumed that 
 i he object in view was illegal, the conveyance of the property will 
 stand good ; the interest of the beneficiary being liable to be dealt 
 with, as in othei* cases of latent trust, under the regulations of the 
 Statute 1696, cap. 25. (s) 
 Trustsofiiferent 578. On the principle that the right to give or to withhold an 
 alimentary in- ( . st;lte implies also the power to qualify the grant with all reason- 
 
 terests: inwnal L L x ^ ° 1 .„ 
 
 ffectuai. able conditions, it is held that a party may convey to another a lite 
 interest in estate or money on such conditions that it can neither 
 be assigned nor attached by creditors except for alimentary debts. 
 No particular form of words is necessary to the creation of an ali- 
 mentary interest, (t) But it would seem that an alimentary pro- 
 vision will not be protected if it is excessive ;(u) and indeed it is 
 not easy to see why and upon what principle the mere use of the 
 term " alimentary" in a conveyance, without the interposition of a 
 trust, should be held to deprive the beneficiary's creditors of the 
 right to resort to diligence, or to withdraw the estate from the ope- 
 ration of the vesting clause in the Bankruptcy Act.(«) The addi- 
 tion of a resolutive clause does not seem to be material, as this (in 
 the case of heritable property at least) amounts only to the creation 
 of an imperfect entail, defeasible by creditors under the 43d section 
 of the Entail Amendment Act.(y) 
 Whether truster 579. As to conveyances to trustees, upon trust for the granter's 
 SfmenterVrn- own alimentary use, the import of the authorities is decidedly ad- 
 t in favour ve rse to their validity. Lord Fullerton was clearly of opinion that 
 such restrictions were ineffectual against creditors, even in a case 
 where the ostensible purpose of the trust was the maintenance of 
 
 (p) D. of Northumberland v. McGregor, 28 (t) Bell's Com. 528, 5th ed. 1, 128. 
 
 Aug. 1846, 5 Bell, 396. See chap. (51, sect. 2. (</) See, however, Monypenny v. E. of 
 
 (q) Gricrsonw Grierson, 12 Dec. 1843, 6 Buchan, 13 Sh. 1112, and Harvey v. Colder, 
 
 D. 203. 2 D. 1099. 
 
 (r) Lewin on Trusts, 5th ed. p. 84. (x) 19 & 20 Vict. c. 79, § 102. 
 
 (a) Lind ay v. Giles, 27 Feb. 1844, 6 D. \y) 11 & 12 Vict. c. 3G, \ 43. 
 
 771.
 
 RESTRAINTS ON THE POWEB OF DISPOSITION. 
 
 295 
 
 the grantor's family ;(z) and in the same case, it was observed by chapteexvi. 
 •Lord Jeffrey, that it was not in the power of a truster, by calling bis 
 funds "alimentary," to secure them against the diligence of his 
 creditors, (a) More recently it was held by the First Division of 
 the Court, affirming the judgment of Lord Kinloch, that a provi- 
 sion of this nature in an antenuptial contract of marriage, was in- 
 effectual in a question with creditors. (b) The law of Scotland is 
 not favourable to restraints upon alienation. The only effectual 
 method of reserving an alimentary interest in property is by exe- 
 cuting and delivering a conveyance of the estate in fee to another 
 person, or to trustees for his behoof, under reservation of the granter's 
 alimentary liferenl ; and even then, it is doubtful whether the life- 
 rent interest might not be adjudged by creditors. (c) 
 
 580. According to the authorities in the law of England,(d) a Trusts exciud- 
 trust cannot be created subject to the condition that the interest of tf g thebenen- D 
 the beneficiary shall nol he alienated, or shall not lie made subject ciar/s creditcrs. 
 to the claims of creditors ;(e) hut the rule may he avoided by the 
 settlement of a life interest upon the beneficiary, defeasible upon 
 alienation, bankruptcy or insolvency, with a limitation over to 
 another party, in the nature of a resolutive clause, on the happen- 
 
 (z) Wright v. Earley, '2 June 1847, 3 
 I). 1151. 
 
 ;. p. 1 160 : = ■ 1 1 • 1 see Campbell v. 
 
 ■. 13 June 1848, 10 I». 1280; Dar- 
 
 ImffY. Mein, 20 Di c. 1857, 11 1>. 296. The 
 
 Smitton v. Tod, 12 I'--. I 1 ---'. 2 1 >. 
 
 '1'1'>, i- n't exceptional, for the Court held 
 
 that tin- truster had absolutely divested 
 
 Bi 11'- 
 6th ..1. 1. 128. 
 
 ; i 
 
 S Ma. ph. 4. 
 
 r v. M'Minn, 7 Julj 1826, » 
 . N.E. si;;, where the question was 
 .'. In tli' r ai 
 the proper i 
 
 rly laid down 
 I Eldon, v. ; .. wndon v. Ro- 
 
 18 129), thai i" i sclude the 
 
 in bankruptcy, thi 
 
 eit her ex- 
 pi imp ication, e.g., by a i 
 
 ti nation. Words of appropriation 
 to tin- maintenance of •■ 
 " for Ji i.-s own persona] mail I 
 
 ill.!.' t'. hi 
 ■ 
 • ■ 
 
 1 by clothing the trusters with 
 discretionary powers, e.g., t.> apply the 
 rents and profits fur the maintenanc 
 the granter's son, "ai such times and in 
 such mann r as they -hall think proper for 
 his lit'.-. . . . an.ltliatsai.lsi.iisli.iul.il!"! 
 
 i to sell, nr mortgage, or an- 
 ite in any way the said rents and pro- 
 fits;" Green v. Spicer, 1 R. & My. 395; 
 and Snowdon v. DaL .v. 6 Sim. 524. As to 
 conditions that the estate shall nol be 
 alieni ted, ■ Ba g ' v. M, </..-, 1 ( loll. 1 38; 
 and Re >>. '■'• Jur. N.S. 809, v. 
 
 b conditions were held absolutely void. 
 The "iily exception is a tin si for i be main- 
 tenance "t a married woman; in which 
 
 . ii"t only may tin- husband's i 
 be . i cludi .1 by almosl any form of popular 
 
 2 Jai man on Wills, :'..l ed. p. 
 
 Init thai of liis creditors may also I"- ex- 
 I bj i la- aid of a direction I" I 
 
 t. ea t" paj i" the wife, 1 " qoI b} 
 
 of anticipation " ( LI. p. 2 1 1. A trusl in 
 
 inl ..I anticipation cannol 1»- en 
 for Hi.- benefit «.t' a /■ m*- .".//..- Barton \. 
 
 :
 
 296 
 
 RESTRAINTS ON THE POWER OF DISPOSITION. 
 
 I'll IPTKB \\ 1. 
 
 Trust in excess 
 of planter's 
 pow er of dis- 
 posal. 
 
 Legal order of 
 ion can- 
 per- 
 petuated. 
 
 Unlawful condi 
 tion annexed to 
 a trust or be- 
 qnest held pro 
 non scripto. 
 
 ing of these events.(/) But it seems that a person is not allowed 
 to settle his own property on himself with a limitation of this 
 nature.^) The only Scotch ease which could be supposed to sanc- 
 tion an alimentary conveyance in fee is that of Balderstone, in which 
 the Court, with great difficulty, gave effect to an alimentary clause 
 in a destination to a married woman, which was coupled with an 
 express direction to trustees not to part with the capital during her 
 lifetime.^) 
 
 581. A trust may, even when not open to the objection of ille- 
 gality, be ineffectual on other grounds, as where an appointment is 
 made in excess of the powers of the disponer, or where the granter 
 disposes of property to which other parties have preferable claims. 
 On this ground, a trust of a testator's whole moveable estate, with- 
 out excepting legitim, is ineffectual to deprive his children of their 
 legal claims, nor can a father withdraw any part of his personal 
 property from the legitim fund by a deed inter vivos, qualified by a 
 reservation, either express or latent, of the granter's liferent. (7) 
 
 582. It is not in the power of a heritable proprietor to perpe- 
 tuate the legal order of succession in his family ; for this would be 
 to deprive the heir of the right of alienation, which is one of the 
 most valuable incidents of property. This subject is discussed in 
 another chapter. (j) 
 
 583. The effect of annexing an unlawful condition to a trust is, 
 
 (/) For example, the interest of credi- 
 tors may be excluded by a direction, if the 
 liferenter "failed in the world, to pay the 
 produce to the separate maintenance of his 
 wife and children ; " Lockyer v. Savage, 2 
 Stra. 947, the ruling authority ; or to pay 
 an annuity to the grantee only, not on any 
 account to be alienated during his life, 
 with a proviso, that "if so alienated, the 
 said annuity shall cease ;" Dommety. Bed- 
 ford, 3 Ves. 149. But in the cases of Wil- 
 kinson v. Wilkinson, G. Coop. 259, and Lear 
 v. Leggat, 2 Sim. 479, and other cases, re- 
 solutive clauses of similar import were held 
 to be only directed against voluntary alien- 
 ation. In conformity with the opinion of 
 English counsel, it was ruled in Campbell's 
 Exrx. v. Clintons Trs., 22 June I860, 4 
 Macph. 858, that a clause, resolving the 
 beneficiary's right in case he should " do 
 or suffer any act or thing whereby the same 
 or any part thereof, if hereby limited ab- 
 solutely, would cease to be receiveable" by 
 the beneficiary for his own use, did not 
 lake effect bv the use of arrestments at- 
 
 taching the fund, seeing that arrestments 
 not followed by a decree of forthcoming, 
 only suspended the right to receive the 
 money, and did not cause it to cease. 
 
 (g) Lewin on Trusts, 5th ed. p. 83 ; Jar- 
 man on Wills, ut supra. 
 
 (h) Balderstone v. Fulton, 23 Jan. 1857, 
 19 D. 293. The subject of alimentary 
 trusts for married women is discussed in 
 chapter 46. We note here, however, that 
 by English law a " restraint on anticipa- 
 tion" loses its effect upon the dissolution 
 of the marriage ; Barton v. Briscoe, Jac. 
 603 ; Jones v. Salter, 2 R. & My. 208, with 
 which the Scotch case of Martin v. Banna- 
 tyne, 8 March 1861, 23 D. 705, coincides; 
 and that an alimentary trust cannot be 
 created in England in contemplation of a 
 future, marriage ; Woodmeston v. Walker, 2 
 R. & My. 197, contrary to the Scotch doc- 
 trine. 
 
 (*") Collie v. rides Trs., 22 Jan. 1851, 
 13 D. E>06, per curiam. See chapter 6 (Le- 
 gitim). 
 
 (.;) Chap. 31, sect, 2.
 
 RESTRAINTS ON THE TOWER OF DISPOSITION. 207 
 
 that the beneficiary takes the bequest without being bound b} r the chapter xvi. 
 condition. (£) Such at least is the rule in regard to testamentary 
 settlements. But in the case of trusts intended to take effect inter 
 vivos, which are granted for onerous causes, the principle of the 
 law of contracts, under which the transaction is entirely nullified, 
 comes into operation. (7) Again, where the purpose of the trust is 
 unlawful, the principle is the same as in the case of contracts. Ac- 
 cordingly, the Court will neither assist the truster to recover the 
 propt srty,(m) nor enforce the trust in favour of the beneficiary, (n) 
 
 584 Thus where a party, who was desirous of having his son Court will not 
 appointed to the office of a minister in a parish church, agreed to f orC e restitution, 
 pay an annuity of £20 a-year to a rival candidate for the benefice, 
 upon condition of his withdrawing from the contest, the Court re- 
 fused to entertain an action founded on the obligation, (o) And 
 where a party who had the right of presentation to a macership 
 in the Court of Session, entered into certain illegal stipulations in 
 connection with an appointment to the office, it was held that, 
 as the Court could not have enforced performance of the stipula- 
 tions, the grantee's breach of contract afforded no ground for re- 
 ducing the deed of presentation, (p) 
 
 585. Eestitution will, however, be enforced wherever the inter- unless to protoct 
 (■sis of third parties are affected by the transaction, as, for example, iJeditors. stS of 
 in the case of unlawful agreements in defraud of creditors \{q) and 
 it would appear that money advanced to assist in carrying on an 
 illegal mo I- rtaking may be recovered in an action of accounting. (r) 
 But although a party claiming repetition in the character of a cre- 
 ditor may be thus favoured, it would si Tin thai the heir of a truster 
 is in no more favourable a situation than the truster himself. Thus, 
 where a lease was granted to a trustee for behoof of the truster's 
 mistress, on which possession was enjoyed for several years, it was 
 hold, in an action of reduction by the heir, that, the trust having 
 been already fulfilled, the Courl could not enforce restitution at the 
 instance eithi r of the granter or of his representatives.^) 
 
 (/) Prater v. Rose, 18 July 1849, 11 (o) Maxwell v. Earl of Galloway, 1776, 
 
 D. 1 1*'<7 ; and Bee < re- M. 9580. 
 
 M. 2963 et seq. (p) Brvcev. Grant,21 Feb. 1889, 1 l>. 
 
 Stair, 1, 8, 7 & 8 ; Ersk. Inst. 3, 8, 683; Thornton v. Dove, 16 Feb. 1811, F.C. 
 
 86; Bell's Pr. \ 49. (q) Arrol \. Montgomerie, 24 Feb. 1826, 
 
 I r. £., 21 May 1816, F.O. Bui 4 Sh. 499, N. E. 504. But aeeM'Taggart's 
 
 P ■ > nr, 20 Fi b. 1880, 8 Sh. Rep. v. Robertson, 25 Jan. 1884, L2 Sh. 888. 
 
 678; Graham v. Pollock, 5 Feb. 1848, 10 (/•) Gordon v. Ilowden, 9 Feb. L858, 15 
 
 D. 646 ; and Wilkinson v. Wilkinson, 1 V. D. 878. Bui see contra, Gibson \. Stewart, 
 
 ftC. Ch. I 1.667. 8 Aug. 1840, 1 Rob. 260, revei ing 12 Sh. 
 
 (n) Johnston v. Mack I . 1 Dec. 683. 
 
 II sh. L06; Kerr v. M'Dowall, 11 I. v. /»'.. '-'1 May 1816, F.C. 
 Feb. 1- 546.
 
 RESTRAINTS ON THE POWER OE DISPOSITION. 
 
 OH IP r I" i: IYI. 
 
 SECTION II. 
 
 PERPETUITIES. 
 
 Tn.st not an- 586. The incori wii iei id- which would arise from subjecting pro- 
 
 .•;.'„ perty held in fee-simple to conditions and restraints which might be 
 
 eby imposed I'v the caprice of any of the former proprietors, has led to 
 
 invev- ' • , . . . , , , . . » -.1 71 
 
 llu' recognition oi the general principle (subject to a tew well marked 
 exceptions), that qualifications upon a fee-simple estate are only 
 binding en the heir or immediate disponee. To certain effects, ho w- 
 ever, such qualifications maybe rendered effectual by vesting the 
 property in trustees, to be held by them for such time as may be 
 necessary for carrying out the objects of the truster, which, as a 
 general rule, will.be executed according to his intention if not in- 
 consistent with law.(tf) 
 i ,„ f 587. In conveyances of land, a succession of estates in fee-simple 
 
 " is inadmissible, except under the forms and conditions of the Entail 
 
 simple mcompe- x 
 
 tentexcept Act 1685, cap. 22. (u) At common law, indeed, a destination to 
 
 under conditions . .. . .. . . ,.,. . 1 7 , N 
 
 ofastrfct en- substitutes, with prohibitory clauses, was binding inter hcereaes,{x) 
 and was enforced by the Court until the principle was altered by 
 the Act of 11 & 12 Victoria ;(y) but destinations with prohibitory 
 clauses, and imperfect entails, are now placed on the same footing 
 as simple substitutions. They give the law of the succession so long 
 as they are allowed to stand unaltered ; but are liable to be defeated 
 1 >y the institute or by the substitutes, any of whom is entitled to alter 
 the destination at pleasure, even when not feudally vested in the 
 subject, (z) The law of Scotland looks also with disfavour on future 
 or contingent fees; insomuch, that even a conveyance in liferent, 
 with a fee to the children nascituri of the grantee, was held to vest 
 the fee-simple estate in the liferenter ;(a) though the difficulty was 
 afterwards held to be obviated by the addition of the words, for "life- 
 rent use alien arly," — those words being held to raise a trust in the 
 person of the liferenter for behoof of the children. Perpetuities by 
 way of liferent are now prohibited by the Entail Amendment Act, 
 winch enacts(7>) that " it shall be competent to grant an estate in 
 Scotland, limited to a liferent interest, in favour only of a party in 
 life at the date of such grant." 
 
 (/\ Ramsay v. Ramsay, 23 Nov. 1838, 1 ( 2 ) Gordon's TVs. v. Harper, 4 Dec. 1821, 
 
 D. 89. per Lord Fullerton. 1 Sh. 185, N.E. 175 ; Paul v. Boyd's Trs., 
 
 («) 1685, cap. 22. 22 May 1835, 13 Sh. 818 ; Smithy. Murray, 
 
 (x) Calhcart v. Cathcart, 18 July 1831, 5 9 Doc. 1814, F.C. 
 W.&S. 315. ( a ) s e e this subject treated in chap. 
 
 <>/) 1 1 & 12 Vict. cap. 36, § 43. 38, g 2. 
 
 (b) 11 &12 Vict, cap. 36, g 48.
 
 RESTRAINTS ON THE POWER OF DISPOSITION. 299 
 
 588. While life interests in land can only be created in favour chaptebxvi. 
 of persons in esse, the fee may be given to persons described in the statutory re- 
 deed, although non-existent as its date. At common law, it would stramt u 'r°" the 
 
 ,,.p . ,.., , . creation of suc- 
 
 seem that Liferent interests limited to several successive generations cessive liferents 
 might be made effectual as real burdens. (c) and that even a per- intereste^inper- 
 petual succession might be limited by means of a trust. (d) By the i" tu,t - v - 
 Entail Amendment Act, trusts, as well as liferents, are put on the 
 same footing as entails with respect to duration ;(e) and accordingly, 
 any trust pnriH.se in the nature of a substitution extending beyond 
 the duration allowed by the Act is defeasible by the beneficiary. 
 
 589. Substitutions in moveables, when constituted by direct Substitution in 
 conveyance, are not binding inter hceredes ; the interposition of a what extent 
 trust being necessary to preserve the contingent fee. According common law. 
 to Erskine, "a substitute in a bond has, in the common case, no 
 stronger right than the substitute in a simple destination of a land 
 
 : for the institute can, in the character of absolute fiar, eva- 
 cuate the substitution by a deed merely gratuitous. "(/) It was as- 
 sumed in several of the earlier cases that substitutions in settle- 
 ments <>f moveables were effectual in a question with the executors 
 of the institute ;(<j) but it is now settled, first, that there is a pre- 
 sumption in favour of conditional institution in destinations of 
 moveable property ; secondly, that even where a substitution is 
 clearly implied from the terms of the destination, the substitute 
 10 vest* 'I right, but only a spes successionis.Qi) The law was 
 thus stated by Lord Wynford, in a case heard before himself and 
 Lord Brougham, and in which the judgment of the Court of Session 
 was affirmed. Referring to the ease of Brown v. Coventry, his 
 Lordship said, " The principles upon which that case was decided 
 are very clearly and distinctly stated. The distinction was made 
 between real and personal property. Ileal property is governed by 
 the feudal law and custom of Scotland ; persona] property in Scot- 
 land i- goverm d by a differenl law. vi/.. by the Roman law. . . . 
 1 1 it u.i- real propi i ty, you are to presume that it was the intention 
 of the party to granl what is called a substitution : it personal pro- 
 perty, il i- presumed to be the intention of the party to give an 
 immediate and complete interesl in it at once.'Y*) 
 
 • Ertkim •.. Wright,} March L848.8D. Grieve, 1801, M. "Substand Cond. In. I." 
 
 App. No. I. 
 
 (d) Strathmore \. Strath F 23 (A) Brown V.Coventry, IT'.':'. M. 14,868; 
 
 Mar. 1881. 6 W. & 8. 170 ■ ■ i. 810; Oreig 7. Johnstone, infra. 
 
 cited; ( Cairnie's 1 m. On the question, whether an entail of move- 
 
 16 Sh. I. . Veitch v. Young, 25 May 
 
 LI & 12 Vict. cap. 86, \ 17. i . M. " Servi I uf." App.No. I : 
 
 I I. lie v. Chant, 21 Ma) L859, 21 !>. 888. 
 
 . 10 M, I 1,866; (*') Oreig v. ./ . l J | : :. Q 
 
 1742, M. 8202; Smith v. W. .
 
 300 RESTRAINTS ON THE POWER OF DISPOSITION. 
 
 0HAPT] 590. The case of M'Dowall v. M'Gill exemplifies in a simple 
 
 form the well-known principle, that unless a trust be interposed 
 
 Substitutions l . . ,, , ... ,. -, 
 
 defeasible by for the protection of the ulterior interests, the substitutions are cle- 
 Feasible. The t raster left Ins estate, which consisted of personal 
 hen. Is and sums of money, to his daughter, with a destination over 
 (which the Court held to have the force of a substitution) in favour 
 of certain nephews and nieces. The daughter uplifted all the funds 
 with the exception of one of the personal bonds, and laid out the 
 money in various investments, which remained among her assets 
 after her death. The Court held, that by the operation of changing 
 the securities the substitution was evacuated, and therefore sus- 
 tained the claim of the lady's next of kin ; but with respect to the 
 sum in the bond which had not been uplifted (and which was pay- 
 aide to the settlor, " his heirs, executors, or assignees"), they held 
 that the substitution had not been destroyed, and accordingly pre- 
 ferred the substitutes named in the settlement. (k) 
 
 Contingent inte- 591. There can be no doubt, however, as to the possibility of 
 
 v creating an indefeasible substitution in moveables, where the fee 
 
 !tedby is vested in trustees for the life interest of parties successively 
 
 means ot a ■*■ •> 
 
 trust. substituted under the destination. To what extent in point of 
 
 time a moveable succession may thus be perpetuated has never 
 been determined. The provisions of the Thellusson Act, which we 
 shall have occasion to consider in the next section, are directed 
 only against accumulations of interest; and it does not appear that 
 the law of Scotland interposes any obstacle to the perpetuation of 
 rational trusts of the capital or fee of moveable estate. (?) In the 
 case of the Strathmore entail case, Lord Brougham remarked, " In 
 Scotland the law, instead of discouraging perpetuities, gives them 
 all manner of encouragement, and instead of confining the time to 
 the lives in being and twenty-one years, with the time of gestation 
 beyond, permits you, in every case, to tie up property for ever and 
 ever, as may happen in one case in England, that of the reversion 
 being in the Crown, and in that case only. . . . Eeal and per- 
 sonal property stand on precisely the same footing in Scotland." (m) 
 
 (k) M'Dowall v. M'Gill, 19 June 1847, came inextricable ; and such having been 
 
 9 1). 1284. found to be the result, the settlement was 
 
 (I) See 1 Bell's Com. 5th ed. 38 ; Pr. § afterwards reduced ; -per Lord Cuninghame 
 
 1884; Macnairv.Macnair, 1791, M. 16,210; in Suttie v. Suttie's Trs., 18 Jur. 444. In 
 
 ' nie v. Caimies Trs., 14 Nov. 1837, 1G M'Culloch v. M'Culloch, reported as a note 
 
 Sh. 1 ; Ireland v. Glass, 18 May 1833, 11 Sh. in 5 W. & S. 180, a family settlement was 
 
 620 ; E. Strathmore v. Strathmore' a Trs., reduced on the ground of inextricability ; 
 
 and Suttie v. Suttie's Trs., infra. In Mac- and this precedent was followed in Mason 
 
 nair's case the settlement was at first sus- v. Skinner, 6 March 1844, 16 Jur. 422. 
 tained, subject to the remark, per Lord (m) Strathmore v. Strathmore's Trs.. 5 
 
 ident Campbell, that the parties might W. & S. 193. 
 
 terwards set it aside, if its provisions be-
 
 RESTRAINTS ON THE POWER OF DISPOSITION. 301 
 
 The legality of private trusts in perpetuity was finally established chaptebxvi. 
 by the judgment of the Court of Session in the case of Suttie's 
 Trs.,(n) sustaining a settlement which appropriated the revenues 
 of heritable and moveable estate to the support of the younger 
 children of the grantor's heirs of entail in all time coming, subject 
 to certain powers of division, to be exercised by their respective pa- 
 rents, and with a destination over in default of heirs, upon trust for 
 support of missions in India. Trusts of this nature, executed after 
 1st August 1848, would be cut down by the operation of sections 
 47 and 48 of the Entail Amendment Act, if the subject of conveyance 
 (•(insisted of heritable estate in Scotland, 
 
 592. A direction to trustees to convey to a party in fee, subject Seem where 
 
 i . • i * •• c Tji j" p i x ' Trust cos tiro 
 
 to a destination over, is, m so far as regards the question oi substi- directed to con- 
 trition or conditional institution, governed by the rules of construe- thedestSation! 
 tioii applicable to destinations in conveyances. In the case of 
 Jin ins"// v. Hi'iHsni/. where trustees were directed to convey the re- 
 sidue of an estate, consisting of heritable and moveable property, to 
 the testator's eldest son. and the heirs whatsoever of his body, whom 
 failing, to his second son and the heirs of his body, with an ulterior 
 destination, this was held to be a substitution, and to give the inheri- 
 tance to the second son in preference to the executors of the eld- 
 6) But in the subsequent case of Fyffe v. Fyffe, where a sum 
 of money was bequeathed to Charles Fyffe, who was insane, and 
 "in the event of the death of the said Charles Fyffe, to two other 
 parties therein named," il was held that this destination imported 
 a conditional institution ; and accordingly the executors of the first 
 institute were preferred. (p) And in Allan v. Fleming,(q) where 
 the destination was similar. Lord Justice-Clerk Hope, with the ap- 
 probation of the Court, Laid down the rule, " thai when trust-funds 
 ■ be divid' d and paid over, no substitution or destination is to 
 !"• presumed after the trust is a1 an end and when there are no 
 means of protecting such a destination. Cases relating to the rela- 
 tive interest of parties successively called during the subsistence of 
 the trust had no application ."(r) 
 
 /'. . L2 June 1846, ]-M'< -, Allan v. Fleming, 20 June 1846,7 
 
 18 Jur. 442. U. 908. 
 
 \<i) Ramsay v. Ramsay, '!'■'> Nov. II (q) Wan \. Fleming, supra. 
 
 I I>. ■ Tit. 918. 
 
 Fyffi v. Fyffi L3 July L841, 8 D.
 
 302 RESTRAINTS ON THE TOWER OF DISPOSITION. 
 
 .'IIM'Tl R W 1. 
 
 SECTION III. 
 
 ACCUMULATIONS OF INCOME. 
 
 Trusts forac- 593. At common law there does not seem to be any restraint 
 
 XSuuvm- upon the power of a settlor to direct the accumulation of the pro- 
 ilawaccord- ,., V1 | S f i,j s property, heritable or moveable, provided the purpose 
 of the accumulation is rational, and capable of being carried into 
 rl't'cet.(.s') An accumulation in perpetuity, however, would not be 
 tolerated; and there is authority for holding, that although the 
 mere fact of the accumulation being for purposes indefinite and ca- 
 pricious may not be sufficient to stamp the trust with the character 
 of illegality, yet, where the provisions of the settlement are inextri- 
 cable, or where they are applicable to too remote a contingency, they 
 are ineffectual at common law.(tf) On this ground, a reduction hav- 
 ing been brought of a settlement which contemplated the accumu- 
 lation of the rents of heritable property for an indefinite period, for 
 purposes not very distinctly expressed, but intended for the ulti- 
 mate benefit of the Episcopal Church of Scotland, the Court referred 
 the matter to an accountant ; and on receiving a report from him 
 1 that it would not be practicable to carry into effect any of the bene- 
 
 ficial purposes of the trust, they set aside the settlement. («) The 
 accumulation, it would seem, must be not only for a definite object, 
 but also limited as to time and amount. An instance of the suc- 
 cessful employment of the power of accumulation for the purpose 
 of creating a fund for the support of a charitable institution, was 
 mentioned by Lord Cuninghame, in the note to his interlocutor in 
 the ease of Ogilvie's Trs.,(x) where he states that the fund bequeathed 
 by John Watson for the establishment of an hospital in Edinburgh, 
 which was originally (in 1781) only £4700, had, in 1822, accumu- 
 lated to the sum of £90,000. 
 n of 594. Until the extension of the Thellusson Act, in 1848, to set- 
 heritable estate tlements of heritable estate, the legality of accumulations of the 
 cfmmou law. rents of laudsiu Scotland fell to be determined with reference to 
 the common law principle here enunciated. In the case of Strath- 
 more v. SI >-a Hi move's Trs., a direction to accumulate the rents of an 
 estate for the term of thirty years, or until the death of the longest 
 liver of two persons named in the settlement, for the purpose of in- 
 vesting the accumulated fund in the purchase of lands to be entailed, 
 was found not to be reducible on the ground of irrationality; and 
 
 (a) Bell's Pr. \ 1884, 5th ed. 1865 ; Mac- (u) Mason v. Skinner, 6 March 1844, 16 
 
 1791, M. 16,210; Mason v. Skinner, Jur. 422. 
 
 ; II. 16 .Fur. 422. (t) 8 D. 1234. 
 
 I om, -"-Hi -1. 38.
 
 RESTRAINTS ON THE POWER OF DISPOSITION. 303 
 
 it was observed by Lord Brougbam, that although there might be chaptkbxvi. 
 good grounds for setting aside an accumulation in perpetuity, the 
 Court was not called upon to say for what length of time the pro- 
 duce of lands might he permitted to accumulate. (y). In the case 
 of Keith's Trs. v. Keith, the truster's direction was to retain the 
 management of certain heritable estates in Scotland until the death 
 of a party named, if she should have no children, or until the ma- 
 jority of her eldest surviving child, if any; and during that period 
 to levy and accumulate the rents and profits thereof, and lay out the 
 same, after deduction of all expenses, in the purchase of lands in 
 Scotland, to he entailed in manner therein directed. The argu- 
 ment was directed to the question, whether the Act 11 & 12 Vict.. 
 c. 36, operated retrospectively, so as to vest the produce of the ac- 
 cumulations in the truster's heirs-at-law ; and it was assumed, in 
 consequence of the judgment in the Strathmore case, that the accu- 
 mulation in question was not void at common law.(Y) 
 
 595. The period within which accumulations of the revenues of Extension of the 
 estate in Scotland may lawfully take place, will now be determined to'h'riHiT.'"^' 1 
 in all ca-es by the provisions of the 39 & do Geo. III. c. 98, as ex- estate in Scot- 
 
 land. 
 
 tended by the 11 & 12 Vict., c. 36, § 41. Questions upon the con- 
 struction of the Thellusson Ad (<t) may be resolved into three 
 Is : — (1) as to the nature and extent of the accumulations an- 
 nulled by the Statute ; (2) as to the person- to whom illegal accu- 
 mulations result : (3) as to the exceptional accumulations permit- 
 ted by the Statute. 
 
 596. I. Natuke and Extent of the Statutory Prohibition. — Termsofthe 
 Bj the firsl section of the Statute of Ceo. [II., on the narrative ffiE r ' 
 thai il is expedient thai all dispositions of real or personal estates. 
 whereby the profits or produce thereof are directed to be accumu- 
 
 i. and the beneficial enjoymenl thereof is postponed, should be 
 made subjed to restriction, it is enacted thai no person or persons 
 shall, by <\>>'<\. surrender, will, codicil, or otherwise howsoever, 
 
 tie or dispose of anj real or personal property, so and in such 
 manner that the rents, issue.-, profits, or produce thereof shall he 
 wholly or partially accumulated lor any longer term than the life 
 or lives of any such granter or granters, settlor or settlors ; or the 
 term oi twenty-one years from the death of any such granter, set- 
 tlor, devisor, or testator; or during the minority, or respective mi- 
 
 v. Shniln^ i 28 (a) ii i |, i rather be called the .!/</' 
 
 March 1881, BW, & 8. 170-199; affirm Thellu on Act, a it is directed again i 
 
 i li.t of Mi Tin lln "ii. ii 
 
 K / Keith, 17 Jul] 1857, millionare, who left all liifi mono) to l»' 
 
 19 D. 1040 Vid 610 accumulated for the benefit of remote de 
 
 ida i I
 
 304 RESTRAINTS ON THE TOWER OF DISPOSITION. 
 
 CHArTl R X\ I. 
 
 Dorities, of any person or persons who shall be living, or in ventre 
 sa mere, a1 the time of the death of such granter, devisor, or testa- 
 tor; or during the minority, or respective minorities only, of any 
 person or persons who, under the uses or trusts of the deed, sur- 
 render, will, or other assurances directing such accumulations, 
 would for the time being, if of full age, be entitled unto the rents, 
 issues, and profits, or the interest, dividends, or annual produce, so 
 directed to be accumulated." 
 
 597. (1) With regard to the question, what accumulations are 
 to implied as forbidden it was the unanimous opinion of the judges to whom the 
 
 to ex- J - •it 7 • 7 n 
 
 press directions questions in Lord v. Colvin(b) were remitted, that implied as well 
 as express directions were prohibited. In that case the testator, 
 Peter Cochrane, directed his trustees to divide the residue of his 
 personal estate, a*nd the whole accessories thereof, between his two 
 sons (who both died without leaving issue before the conventional 
 period of payment) ; and after the usual clause of survivorship, he 
 then, in the event of their death before the arrival of the period of 
 payment, directed the trustees to convey the said residue and whole 
 accessories thereof to the eldest surviving son, or otherwise to the 
 daughters of Mrs Moorhouse. On the expiration of twenty-one 
 years from the death of the testator, Mrs Moorhouse was childless; 
 a, id the testator's next of kin accordingly instituted a suit in the 
 Court of Chancery, in which they claimed the annual revenues of 
 Mr Cochrane's personal estate subsequent to the 18th of June 1852, 
 when the period of twenty-one years expired, and until the period 
 of payment should arrive. The construction of Mr Cochrane's set- 
 l Lement with reference to the provisions of the Thellusson Act hav- 
 ing been referred to the Judges of the First Division of the Court 
 of Session, it was argued, on behalf of the executors, that the tes- 
 tator had nowhere expressly directed an accumulation of the inte- 
 rest of the money, and could not be supposed to have contemplated 
 the failure of all the parties who were instituted antecedently to 
 Mrs Moorhouse's children ; and that as the accumulation had arisen 
 from a contingency unforeseen by the testator, and without any 
 intention to disappoint his immediate representatives, the case did 
 D in not fall within the operation of the Statute. But the Court held 
 that the thing prohibited w r as the actual accumulation of profits 
 and produce in consequence of the settlement actually made by the 
 testator, — distinguishing from the case of accumulations resulting 
 from the operation of law, as may happen where the grantee is a 
 minor or insane. " If," said Lord Deas, " the Act were to be held 
 inapplicable wherever there was no express direction to accumulate, 
 
 (b) lordx. Colvin, 7 Dec. I860, 23 D. 111.
 
 RESTRAINTS ON THE POWER OF DISPOSITION. 305 
 
 it would be easy in all cases to evade its operation. If it were to chaptebxv:. 
 be held inapplicable wherever it did not appear that the testator 
 had it in view to evade it, that also would favour evasion, by involv- 
 ing an inquiry into what was passing in the testator's mind, which 
 could not be satisfactorily answered. ... I think it enough 
 that the deed is so conceived, that to carry out its purposes in tie 
 event which has happened, there must necessarily he accumulation 
 for a period beyond the twenty-one years."(c) 
 
 598. This decision is in accordance with the opinions expressed Opinion of the 
 by the Court of Appeal in Chancery in a recent English case : (W) Court of Chan- 
 where Lord Oranworth, C, observed that the distinction taken by 
 
 the blaster nf the Rolls, between an accumulation eocpressed and an 
 accumulation implied, was an unsound and impossible distinction; 
 adding, "If a testator directs that to be done which, as a conse- 
 quence, leads to an indefinite accumulation, he must, within the 
 meaning of the Statute, be taken to have directed accumulation."^) 
 It may therefore be concluded, notwithstanding the fluctuations oi 
 opinion on the part of the Court of Chancery in previous cases, (/) 
 that the Act will in future be taken to apply to all settlements di- 
 recting accumulation, whether explicitly or implicitly. 
 
 599. (2) The prohibition is understood to embrace accumula- Addition of 
 tions in every form. It will be observed that the preamble of the f^wES 
 Statute supplies the interpretation of the word " accumulated ;" ft. 1 * " accumu - 
 for it is there used as a convertible term with the expression, 
 
 " whereby the beneficial enjoyment thereof is postponed." Post- 
 ponement of the beneficial interest in the profits and produce of an 
 being the criterion, it is obvious that the addition of accru- 
 ing revenues or dividends to capital, after the period of twenty-one 
 years, is " accumulation," whether the interest upon mch annual di- 
 vidends be also accumulated or not.(^) 
 
 600. In Keith's Trs. v. K<iih.(h) there was a conveyance by 2r«w« Trs. v. 
 the truster, Viscounl Keith, of the residue of his general estate, Keith - 
 heritable and moveable, to trustees, upon trusl to invesl the same 
 
 in the purchase of lands, the rents f which were to be accumulated 
 until the death of his daughter, the Countess Flahault ; and again 
 
 l Corporation of Bridgenorth v. Collins, 
 6 Di '.. M. & Q. 168, I". Sim. 538; Bryan v. Collin 16 Bi ... 1 |. 
 24 L. .1. Ch. 716. Shaw Rhodes, 1 M;.. \ Cr. I 
 
 (e) 24 L. .1. Oh. 719. / vans v. Helier, 5 CI. & Fin. 
 
 CO EUier. Maxwell, 8 Beav. 587, 10 1.. II I. 
 J. Oh. 266 '/ /. ee, 2 Keen, (A) Keith'i Trs. t. Keith, 17 Jul) 1857, 
 
 I L J. Ch. "JIT; Morgan .. Morgan, I L9 I ». 1040 I 
 
 & 8m. L70, 20 L. J. Ch. 109; EL millan'a note, p. 1068. 
 
 born* ■■ A I 1 Si,,,. 166, L8 1. J. Ch. 
 
 VOL. I. i
 
 ;;, M j RESTRAINTS ON THE POWER OF DISPOSITION. 
 
 oHAPTiBxn. invested in lands, with power to make intermediate purchases. It 
 " was attempted to bring this ease within the exception of the Sta- 
 tute as to Scotch heritage, on the ground that the accumulations 
 after each purchase were the produce of lands. But the Court 
 justly considered the manner of accumulation to be immaterial; 
 and as the source of the fund was a moveable estate, held that the 
 testator's representatives could not be deprived of the beneficial en- 
 j ( .\ menl of its produce for more than twenty-one years. The same 
 
 Ogiiviev. Kid- construction had previously been put upon the Statute with refer- 
 "" ■/-"""- ence to a bequest of £2000 out of a general residue, which sum the 
 testator directed "to be invested in Government stock, and the 
 dividends arising therefrom to be again and always invested in the 
 Funds, and to continue accumulating for 100 years (not presuming 
 to carry my views further)," for the purpose of founding an hospital 
 in Dundee. In this case the trustees had a power of sale, which it 
 was necessary to exercise in order to realise the £2000, which Lord 
 President Boyle said was the " nest-egg " of the intended accumula- 
 tions. These were accordingly held to be proceeds of moveable es- 
 tate, and therefore subject to the restriction introduced by the Sta- 
 tute.^') 
 
 reriod during 601. (3) The period within which accumulations may lawfully 
 
 '" take place cannot be extended by any act of the testator beyond 
 
 mitted by the t ] ie expiration of twenty-one years from his own death, or from the 
 
 Statute: compu- L ° * i.iri 
 
 tation of time, birth of a child then in utero. Accordingly, the accumulated tuna 
 falls to be paid over at the commencement of the twenty-second 
 year from the testator's death, and not from the date when accum- 
 ulation commenced ;(&) and the vicennial period is to be reckoned 
 exclusive of the day of the testator's death. (I) The different periods 
 mentioned in the Act are alternative, not cumulative. None of 
 them exceed twenty-one years ; and the object of the enumeration 
 evidently was to exclude the supposition that any of the cases of 
 minority were to be regarded as exceptional. It may happen, 
 however, that the donee who is to take the accumulated sum on 
 the expiration of the statutory period is then an infant ; and in that 
 event, it has been said, a further vicennial accumulation may take 
 place. Nay more, supposing the death of the donee to take place 
 during minority, his legal representative may again be a minor; 
 and thus, by a series of improbable contingencies, the capital may 
 
 (i) Ogilvies Trs. v. Kirk-Sess. of Dundee, one years from the death of Lord Keith " 
 
 18 July 1846, 8 D. 1230. (p. 1071). See also Attor.-Gen. v. Poul- 
 {k) Keith's Trs. v. Keith, 17 July 1857, den, 3 Hare, 555. 
 
 19 I). 1057, per Lord Colonsay. The (I) See Lord v. Colvin, 23 D. Ill, where 
 Court found that the accumulations were it is so computed. 
 
 null " from and after the period of twenty-
 
 RESTRAINTS ON THE POWER OF DISPOSITION. 307 
 
 he tied up for an indefinite period. But this is not " accumulation." chapter xvi. 
 
 For, on the elapse of the first vicennial period, the donee, although 
 
 a minor or incapable, takes a vested interest in the annual revenue, 
 
 which must be applied, so far as needful, to his support ; and in 
 
 accumulating the surplus the Court only exercises a discretionary 
 
 p< >wer of doing what the minor might himself have done had he 
 
 been sui juris.{m) 
 
 602. It is clear, from the words of the Statute, that the period where vested 
 of distribution cannot be further postponed by merely giving a b^nfofmeni 
 vested interest to the beneficiary without the right to demand im- P 0St P° n I ed > held 
 
 J ~ accumulation. 
 
 mediate payment ; for the beneficiary would be entitled to the rents 
 and produce, as being the person who "would have been entitled 
 thereto if such accumulation had not been directed." (n) 
 
 603. (4) The Act does not annul any bequest connected with a Act does not 
 direction to accumulate contrary to its provisions, but merely ope- Swfodof Evi- 
 rates a transference of the intermediate rents and produce. It fol- si °n°f the 
 
 *■ capital. 
 
 Lavs therefore, that the trustees ought to retain the estate or capital 
 (increased by previous lawful accumulations) during the period pre- 
 scribed by the testator, paying ever to the statutory appointee the 
 annual rents and produce after the twenty-first year, as they arise.(o) 
 However, in the Dundee case, where there was no party to take the 
 accumulations but the foundation, the Court held that the kirk- 
 Bession might take the bequest free from the obligation to accumu- 
 late.^/) 
 
 604. II. Who are entitled to the Proceeds of Illegal Ac- Terms of the 
 cumulation. — The Statute has provided, that "the rents, issues, 6 " 
 profits, and produce of such property so directed to be accumulated 
 
 shall, bo long as the Bame Bhall be directed to be accumulated con- 
 trary to the provisions of this A«-t, go to, and be received by, such 
 person or persons as would have been entitled thereto if such ac- 
 cumulation had nol been directed/' (q) 
 
 605. The expression Belected by the author of the enactment is now farthedis- 
 bo general, thai it can Bcarcely be said to convey any distind im- .£SndS8?l 
 I lion .i- to the disposal of the resulting interest. In applying ff io vohn - 
 the rule of the Statute to actual cases, the Courl have, after elimi- 
 nating the element of accumulation from the destination of the 
 revenues of the estate, to attempt the solution of the problem: — 
 
 Given the testator's intention, on the supposition that the distri- 
 
 Cokin, 28 l». 127, per Lord (p) Ogilvii v. Kirl ^ Dundee, 18 
 
 Ivory. Julj i sir,, g 1 1. 1248, per Lord Fullerton. 
 
 89&40 Geo. III., cap. 98, ( 1. (q) 89 & 40 Geo. til. cap 98, { t. 
 
 ■ ■ . M L. .1. Ch. ■-'' 
 decided by Lord W. ibury, ' !h 
 
 i 2
 
 R I '.STRAINTS ON THE POWER OF DISPOSITION. 
 
 ohaptkb wi bution is to take place in a certain event, to find what his intention 
 would haw been, the distribution being supposed to take place on 
 the occurrence of a different event ? Looking at the question as one 
 of intention, i! does not admit of exact solution. The general rule 
 
 Surplus accumn- is, thai unless an intention is expressed of separating the income 
 from the capital, it shall be held to follow the capital as an acces- 
 sory, ami be payable to the legatee termly, as it accrues, (r) By 
 this principle, the testator's intention is ascertainable in one parti- 
 cular case, namely, where the beneficial interest has vested before 
 the expiration of the statutory period of accumulation. Thus, if 
 the direction were to accumulate for a time certain, or instantly 
 ascertainable by reference to an event; and then to convey to A. 
 B. and his heirs ; the annual revenue would of course be payable 
 to A. B., or his representative for the time being. Where there is 
 an intention manifested to exclude the legatee from participation 
 in the proceeds, the residuary disponee would seem to be prefer- 
 able to the heir-at-law, if his interest vested a morte testatoris, or 
 within twenty-one years. 
 , desti. 606. The chief difficulty arises where the vesting of the capital 
 ;;,.'.'' is suspended by a conditional institution. In such a case is the 
 
 rivorship. immediate legatee entitled to the proceeds during the period subse- 
 quent to the twenty-one years allowed by the Statute ? On the affir- 
 mative supposition, the result is, that if the immediate legatee dies 
 before the period of vesting, the conditional institute, who under 
 the settlement was entitled to the entire inheritance, gets the capital 
 increased by the lawful accumulations only, (s) The same difficulty 
 occurs in the case of a joint destination with the right of survivor- 
 ship ; as if a sum were to be divided amongst the children nomina- 
 tim of A. B. (without the use of words importing severance). If the 
 proceeds accruing after the expiration of the statutory period are 
 divided amongst the legatees, and all do not survive, the appro- 
 priation is open to the objection that it includes persons who are 
 ultimately found to have taken no vested interest under the will. 
 
 Where the capi- 607. With the view of avoiding these difficulties in the only 
 
 8uipius°accumu2 way that is possible on a fair construction of the Statute, the rule 
 has been established that where the period of vesting is contingent 
 on circumstances which do not emerge until after the twenty-one 
 years have expired — e.g., the survivance of a legatee, or possibility 
 of a legatee being afterwards born, — the intermediate income shall 
 
 (r) Lord v. Colvin, 23 D. 131, per Lord (s) See Griffiths v. Vere, 9 Ves. 127, 
 
 Curriehill ; Combe v. Hughes, 34 L. J. Ch. 135 ; Shmv v. Rhodes, 1 My. & Cr. 135, and 
 344; decided by the L. J. J. affirming a Mr Lewin's remarks (Tr., 5th ed. p. 74) 
 decree of Lord Romilly, M.-R. on the effect of successive limitations of 
 
 real estate. 
 
 ■ u!t tn 
 the heir-at-law
 
 RESTRAINTS ON THE POWER OF DISPOSITION. 309 
 
 result to the testator's personal representatives, or to the heir-a1> chaptebxvi. 
 ' law where it is the produce of real estate. The rule is settled by 
 the cases of Keith's Trustees and Lord v. Colvin, the circumstances 
 of which have been already narrated. (t) In the latter case it was 
 argued, on the authority of Dick v. Gillies, (u) that the proceeds 
 ought to go to the parties who would have been the testator's 
 :utors if his life had been prolonged until the expiration of the 
 statutory period of accumulation. But this view was unhesitat- 
 ingly rejected by the Court, Lord Deas alone doubting, but not 
 dissenting. And so, where the instrument under which the ac- 
 cumulation arises contains a residuary clause sufficient to carry 
 the undisposed-of income during the period of twenty-one years 
 allowed by the Statute, but where (in consecpience of the destina- 
 tion of the residue being contingent on survivorship) the persons 
 entitled cannot be instantly ascertained, the surplus income accru- 
 ing after that term will net go to the residuary legatees, but to the 
 Legal representatives. (a?) It would be endless to pursue the sub- 
 ject of tin- application of intended accumulations through the vary- 
 ing conditions developed by the law of vesting. Enough has been 
 said to indicate the principles upon which such epiestions are deter- 
 mined. 
 
 608. III. What Accumulations are excepted under the Terms of the 
 Statute. — The 2d section of the Act declares, "That nothing in tion" "'"' e 
 this Act contained shall extend to any provision for payment of 
 debts of any granter, settlor, or devisor, or other person or persons, 
 or to any provision for raising portions for any child or children of 
 any granter, settlor, or devisor, or any child or children of any per- 
 son taking any interest under any sue], conveyance, settlement, or 
 devise, or to any direction touching the produce of timber or wood 
 upon any Lands ot tenements, but that all such provisions and 
 directions shall and may be made and given as if this Act had not 
 pa — I." And by section third it is declared, " That nothing in this 
 Acl contained shall extend to any disposition respecting heritable 
 property within that pari of Great Britain called Scotland." But 
 i ln's section was repealed by the Entail Amendment Act, section 
 1 1.(//) which recites the third section of the Thellusson Act, and on 
 the narrative that "it is expedient that the provisions of the said 
 Act (39 A tO Geo. til.) should be extended to heritable properly 
 in Scotland," enacts, "Thai the said provision and enactmenl of 
 
 /." /' . v. Keith, 19 D, 1040; (x) Pwsell v. Elder, 24 March 186 
 
 ID. 111. 8 Macph. II. I.. 69, I Macq. 992, alti ring 
 
 i h. 19 D. 71. 
 
 I l -. 12 ' II.
 
 RESTRAINTS ON THE POWER OF DISPOSITION. 
 
 . -iiM-rni xvi. the said recited Act shall be and the same is hereby repealed, and 
 the said Act shall in future apply to heritable property in Scotland" 
 A.s to the disposal of the accumulated proceeds of property or funds 
 subject to the trusts of a deed directing the execution of an entail, 
 we refer to the second section of a subsequent chapter, on the exe- 
 cution of such (rusts. (z) 
 ptionasto 609. In the absence of native authority(«) on the construction 
 ng Portias of the second section of the original Act, it maybe sufficient merely 
 IVU - to mention the points that have been decided in the English Courts. 
 By children are to be understood legitimate children generally of the 
 -ranter ; or children specially named of some other party taking an 
 interest under the will. And such interest must be substantial, not 
 elusory ; but if substantial, it is no objection that it is not an inte- 
 rest in the particular fund which is made the subject of accumula- 
 tion. Finally, it is held that the portions referred to are portions 
 raised out of the revenues, not by adding the revenues to the capital. 
 The cases are referred to in Mr. Lewin's treatise, (b) 
 ptionasto 610. The case of Keith's Trs. determined that the 41st section 
 ^TCrtyln °f ^ ne Entail Amendment Act had no application to trusts in exist- 
 cotiand. cnce p r i or to that Act ; so that the rents of heritable property 
 
 might be the subject of continued accumulation under a pre-existing 
 trust which had been already in operation for more than twenty- 
 one years, (c) 
 
 (z) Chap. 65, sect. 2. (b) Lewin on Trusts, 5th ed. p. 76. 
 
 (a) There is one Scotch case — Suttie v. (c) Keith's Trs. v. Keith ; see Lord Co- 
 
 Suttie's Trs., 12 June 1846, 18 Jur. 442— lonsay's opinion, 19 D. 1058 ; M'Laverty 
 
 where a perpetual trust for raising pro\i- v. M'Laverty, 23 Jan. 1864, 2 Macph. 
 
 sions for younger children was sustained. 489.
 
 OF THE ESTATE OR SUBJECT OF DISPOSITION. 311 
 
 CHAPTER XVII. 
 
 CHAPTER XVII. 
 OF THE ESTATE OR SUBJECT OF DISPOSITION. 
 
 611. On the question whether real or personal estate (as the 
 case may be) is carried by general words intended to describe the 
 subject of disposition, three leading rules may be deduced from a 
 consideration of the authorities. 
 
 612. First, A particular enumeration of subjects belonging to Effect of par- 
 one of the two categories of heritable or moveable, when followed r° preceded^ 
 by general words ejusdem generis, has the effect of confining f^* 1 words ■ 
 the disposition to the kind of subjects specially enumerated. On 
 
 this principle, a conveyance of insight plenishing, household furni- 
 ture, and other moveable goods, was held not to include nomina 
 (I bitorum.(a) So also it was held, that a conveyance of " all my 
 plate, and horses, and moveables whatsoever," would not include a 
 personal bond, seeing that there was no mention in the enumeration 
 of moveable rights.(6) And in a more recent case,(c) it was held 
 that the expression, "whole other moveable estate," following an 
 enumeration of corporeal moveables, did not enlarge the right of tin' 
 disponees to the effeel of including moveables other than corporeal, 
 lint where words of general conveyance precede the enumeration 
 of articles of the genus, the position of the general words in the 
 sentence indicates thai they are intended to have a substantive opera- 
 tion. A bequest in this form is therefore effectual as a gift of the 
 ral< Btate, ami the enumeration is held to ho merely illustrative. 
 !n .i recenl English case,(c?) a bequest of the remainder of "my 
 money in the Spanish bonds" was held residuary, the particular 
 words being merely descriptive oJ the mode of investment at the 
 time of making the will. On this principle also, a bequest of the 
 testator's "personal property, consisting of money ami clothes," 
 was held to pass the general persona] estate.(e) 
 
 (a) Kerf. Foung, L746, M.'_"_'7t. (<■) Carsewell'a Trt. v. Cortewell,9 Feb. 
 
 Dm ! u Trt v. Dunbar, I.". Jan. 1868, 20 l». 616. 
 
 Hume, 267; Mochrie v. Linn, ir:>:, Patricks. Yeathead, 88 L. J. Ch. 286, 
 
 M. 6018, Dean \. Oibton, 8 Law Rep. Bq. Ca 
 
 718, where the ] i ithoritiee -
 
 OF THE ESTATE OR SUBJECT OF DISPOSITION. 
 
 OHAPTl H SYII. 
 
 Distinction 
 w here the 
 genera] words 
 apply to a dif- 
 ferent descrip- 
 li mi of estate. 
 
 61?. Secondly, General words following a particular enumeration 
 of subjects constituting a different description of estate, receive 
 effect according to the natural moaning of the words.(/) Thus, a 
 disposition of "every subject, whether heritable or moveable," or 
 of "every moveable and immoveable subject,"^) found in conjunc- 
 tion w ith an enumeration of moveable subjects, is a good conveyance 
 of lands and heritages. The rule that the word " estate" carries both 
 real and personal property (K) (which is a rule of general jurispru- 
 dence), is authoritatively settled by the decision of the Judicial Com- 
 mittee of the Privy Council in the case of The Mayor of Hamilton 
 v. Hodsdon, decided on appeal from the Court of Chancery in Ber- 
 muda.^') Lord Brougham observed: " The word ' estate' is genus 
 (jcneralissimum, and will, by its own proper force, without any proof 
 aliunde of an intention to aid the construction, carry the realty as 
 well as the personalty ; and is not to be confined and restrained to per- 
 
 serving, that the question whether " all 
 
 examined and distinguished by Vice-Chan- 
 cellor Wood. It would seem that the rule 
 of construction of such bequests agrees 
 with our own in so far that general words 
 superadded to an enumeration are confined 
 to subjects ejusdem generis. Thus, on the 
 construction of a bequest of furniture, 
 plate, household goods, and other goods, to 
 one person, and the residue of personal 
 estate to another, the Court, not to dis- 
 appoint the residuary legatee, restricted the 
 words "other goods" to corporeal move- 
 ables; Woolcombv. Woolcomb, 3 P. W. 112. 
 In a later case the Chancellor of Ireland, 
 Lord St Leonards, ruled that the words 
 " all other chattel property," annexed to 
 a bequest of household furniture, plate, and 
 house-linen, must be held to mean other 
 chattel property ejusdem generis, partly on 
 the ground that there was a subsequent 
 residuary gift ; Lamphier v. Despard, 2 D. 
 .v W'lr. 59; see also Barret v. White, 24 
 L. J. Cli. 724. In a recent case a bequest 
 of '■ t he win ile of my capital in readymoney, 
 and in bank billets" (Russian paper), was 
 held to imply only a special bequest of the 
 subjects described ; the Lords Justices re- 
 their opinion as to the law ap- 
 plicable supposing "in" had been omitted. 
 Wylie v. Enohin, 29 L. J. Ch. 341; aflfd. 
 3 April 18G2, 31 L. J. Ch. 402. 
 
 (/) In Woolam v. Kenworthy, 9Ves. 137, 
 
 .i residuary gift of " estate " was restricted 
 
 to personalty by the controlling effect of 
 
 atext, although the w ill contained a 
 
 specific devi 1 1 ; Lord Eldon ob- 
 
 my estate and effects" will include real 
 estate or not, depends, first, on the imme- 
 diate context of the will; and, secondly, on 
 the general form and scheme of the will as 
 demonstrating intention. A similar deci- 
 sion was pronounced by the King's Bench 
 in Helling v. Yeud, 2 B. & P. N. R. 214, on 
 the construction of the word "property," 
 followed by an enumeration of " goods, 
 stock, bills, bonds, book debts, and securi- 
 ties." When the law became more settled, 
 the rule was laid down absolutely, that un- 
 less an intention to restrict appear from 
 the context of the will, general words, al- 
 though associated with words descriptive 
 of personalty, will carry the real estate. 
 " The doctrine of modern cases is, that 
 where there is nothing to qualify the word 
 ' estate,' it will carry real as well as per- 
 sonal estate; and the contrary intention 
 ought to appear to induce the Court to put 
 upon that word a less extensive significa- 
 tion than it naturally bears ;" per Sir W. 
 Grant in Barnes v. Patch, 8 Ves. 607. The 
 cases are fully commented on in 1 Jarman, 
 3d ed. p. 681 et seq. 
 
 (y) Glover v. Brough, 7 Dec. 1810, F.C ; 
 Welsh v. Cairnie, 28 June 1809, F.C, 
 and cases there cited. Compare Brand v. 
 Brand, 1734, M. 15,941. 
 
 (h) See Neilson v. Stewart, 22 D. 647 ; 
 Munro v. Munro, 17 Dec. 1825, 4 Sh 328 
 N. E. 332. 
 
 (0 Mayor of Hamilton v. Hmlsdon, 6 
 Moore, P.I '. Ca. T''>. see 82.
 
 OF THE ESTATE OR SUBJECT OF DISPOSITION. 313 
 
 sonalty only, unless there is a clear intent expressed in other parts chapter xyh. 
 of the will, to be gathered either from the will, or from the way in 
 which the word is used in the particular part of the will where the 
 contested use of it arises." 
 
 614. Thirdly, But general words, importing a disposition of General words, 
 estate, whether heritable or moveable, must be appropriate to the must be appro- 
 quality of the estate intended to he given, otherwise they fail to give pna 
 adequate legal expression to the intention. For example, "goods 
 
 and gear, whether heritable or moveable," is an obvious misnomer, 
 unless it is intended to apply to heirship moveables. A convey- 
 auce in those terms is therefore ineffectual to cany even a lease of 
 heritable property. (k) It would seem that a general conveyance, 
 however broad, does not operate as a revocation of a previous ali- 
 mentary provision.(7) 
 
 615. Although there are eases deciding that the general words what words 
 ■• means ami effects, heritable and moveable,'" when used in the dis- T^ai herft- 
 positive clause of a testamentary settlement, are insufficient to able estate - 
 comprise Lands, or even heritable bonds or leases, (m) yet it would 
 
 seem that these words are sufficiently descriptive of the universitas 
 of a truster's estate so as to receive effect according to the intention, 
 when occurring in the less formal clauses of a will, as, for e^arnple, 
 in a destination of residue.(w) At all events they have been so 
 interpreted in the residuary destination of a general settlement, 
 where, in consequence of an implied direction to sell, it was held 
 thai the truster had intended to deal with the beneficial interest as 
 a moveable succession, (o) "Heritage." being equivalent to herit- 
 
 (k) E r ■■ ■ . Fan ft, 9 Fob. 1800, (o) Adv.-Gen. v. Williamson, 23 Jan. 
 
 Hume, 128; Sutherland v. Jeffrey, Feb. 1840, Excheq. Rep. & 13 D. 436, affirmed 
 
 1805, Hume, 138; Ro ../.'•• . 1770. M. 16 Mar. 1843, 2 Bell, 89. It would seem, 
 
 5019, and ca ee in M. voa "General A - on the authority of English precedents, 
 
 Murdoch \. Murdoch's Trs., that the appointmenl of a " residuary le- 
 
 27 Jan. 1868,1 Macph. 330. uries the realty, if the deed con- 
 
 (/) Thomson v. Lyell, 15 Sh. 82. tains a g aeral conveyance of real and per- 
 
 Broum \. Bower, I77i>. M. 5440; sonal estate to trustees. See the cases of 
 
 Coekburn v. Cocklnirn, is Nuv. lsii:;. Ilnnic. ICruus v. Crosbie, 1"> Sim. 600, whereates- 
 
 181. "Means and i to b< tator gave all bis real and personal estate 
 
 the mo t appropriate general expression to tru tees, u] trust to paj certain Lega- 
 
 wheu beril cies, and appointed lie brother to be his 
 
 and the words " heritable and moveabli " tee; and Wildes v. Davit . I 
 
 should be added. Bee Earl of Eglinton's Bra, & Gif. 476, where thi appointment was 
 
 1 1 1 1 ■ I < bj a codicil to a tru t-i ettlement, 
 
 (n) Adv.-Gen. v. Williamson, infra. The conveying freehold, copyhold, and l<use- 
 
 expree ion, "Effects, of what nature .- m ■ 1 bold pei onalty, with a 
 
 kind Boever," in a eonveya direction to Bell, etc. Other wordt pn 
 
 Lord Langdale to include real perly applicable to personalty, as "worldly 
 
 //■■ ' 2 Wright \. 8helton, 18 Jur. N i 
 
 Jur. 610. • r '. 1 1
 
 314 OF THE ESTATE OR SUBJECT OF DISPOSITION. 
 
 oHAPTBBxvn. able estate, is a perfectly general term, and carries everything that 
 would have gone to the heir-at-law, including leases. (_p) Where a 
 general conveyance of a testamentary estate was qualified by the 
 addition "excepting always the subjects specially before disponed," 
 ii was held thai the revocation of the special dispositions by a sub- 
 sequently executed testamentary writing had not the effect of throw- 
 ing the subjects of the special dispositions into residue, but that 
 they fell to the heir-at-law ab intestato.(q) 
 What words 616. Whether a general conveyance of heritable estate will carry 
 
 3*3%- property held under a subsisting special destination, or imperfect 
 tective entail, entail, is a question of intention, in respect to which no general 
 presumptions have yet been established. Several cases have oc- 
 curred within the last few years. In one of these, a disposition to 
 trustees of a small subject (about forty-five acres), "and all other 
 lands," was held not to operate as a conveyance of a considerable 
 entailed estate in a question with the heir of the investiture ;(r) 
 while, on the other hand, a disposition by an heiress of entail to 
 the next substitute beneficially of her " whole means and estate, 
 heritable and moveable," was sustained as a title of possession to 
 prescribe immunity from the conditions of the trust in virtue of 
 which the entail had been executed, (s) 
 wh,t words 617. With regard to the import of generic words, the material 
 
 SSS^fand questions relate to the applicability of the expressions used to ac- 
 residuary estate. ^ )f ; rcn( j a an d to residue. As to acquirenda, and particularly the force 
 and effect of a disposition of estate which the granter may "con- 
 quest and acquire," reference is made to the case of Diggens v. 
 Gordon,(t) and other cases noticed in the discussion of marriage- 
 contract provisions, (u) The term " Residue," being in general use 
 even in wills prepared without professional assistance, few questions 
 have arisen with respect to equivalents for it. " Surplus " is equi- 
 valent in meaning to residue ; and in estimating its amount, all 
 legacies and debts fall to be deducted. (x) "Free rents" is equiva- 
 lent to surplus produce of heritable property ; interest on heritable 
 
 East. 246), " said house, goods, and chat- et al., 28 May 1861, 23 D. 1369. The 
 
 tels" (Roev. Walker, 3 B. & P. 375), have question is now depending before the 
 
 been extended to real estate by force of whole Court in the case of Thorns v. 
 
 the context; but it is very doubtful whether Thorns. Some observations on the subject 
 
 such cases would now be received as preced- will be found in chapter 21, on the Admis- 
 
 ents by the Court of Session. sion of Extrinsic Evidence. 
 
 (p) Duncan v. Rae, 15 Feb. 1810, F.C. (t) Diggens v. Gordon, 3 Macph. 609; 1 
 
 (y) Cameron $ Walker v. West's Trs., 2 L. R. Sc. Ap. 136, 5 Macph. H. L. 75. 
 
 Feb. 1864, 2 Macph. 584. («) Chapter 23, § 803 ; Thurburns Trs. 
 
 (r) Hepburn v. Hepburn, 10 Feb. 1860, 22 v. Machine, 3 Macq. 135. 
 
 1 '■ "30. (z) Hamilton v. Bennet, 11 Feb. 1832, 10 
 
 (s) Earl of Eglinton v. Earl of Eglinton Sh. 330.
 
 OF THE ESTATE OR SUBJECT OF DISPOSITION. 
 
 315 
 
 debts, and the expenses of the trust are to be deducted, (y) " In- ohaptbbxvtj. 
 terest of free money" has been held to include the surplus annual 
 proceeds of the whole of the truster's moveable funds, whether in- 
 vested in securities or in bank, under deduction of debts, but not, as 
 it would seem, of legacies. (2) But by a later decision (a) it was ruled 
 that " surplus cash," which in a popular sense may be said to be 
 synonymous with "free money," would not carry securities such as 
 bonds or bills, although the testatrix had left no other funds except- 
 ing what she had invested in such securities, (b) 
 
 618. The subject may be concluded by a brief statement of the import of terms 
 import of the decisions upon the meaning of words descriptive of specific estate. 
 sp< - i tic subjects or estate. " Goods, gear, and sums of money," will 
 carry corporeal moveables generally, not debts or other moveable 
 rights, (c) " Goods, gear, debts," etc., does not carry heritable debts 
 
 (y) Morrison v. Knight's Tra., 14 Feb. 
 1837, 15 Sh. 560. As to the construction 
 of this term, and what is to lie < 1 < ■ < h i c t o 1 1 
 under the head of " annual outgoings," see 
 Preston's Trs. v. Lord Melville, 11 Jan. 
 1853, 15 D. 271. 
 
 (z) Smith v. Donaldson, 10 June 1829, 7 
 Sh. 734. 
 
 (a) Jarvie v. Pearson, 5 July 1860, 22 D. 
 1395. 
 
 (b) The following abstract of the leading 
 
 li decisions on the construction of 
 worda descriptive of the nbjeci of the be- 
 iy find a place here, fchongh, in the 
 strict order of arrangement, many of them 
 ought rather to be treated under the head 
 of Special Legacies: — 
 
 Effects. — "Effects of « hal nature or kind 
 
 in a apecial legacy, held not to 
 
 comprise the g< neral residue, per Sir W. 
 
 Qranl in Rowling tv. Jennings, L8 V. . 89; 
 
 and see Hotkom v.Sutton, 16 Ve , 819. 
 
 Qooda. — "Household furniture, plate, 
 and all other goods of w hat- 
 ever kind," hit to A. followed by pecuni- 
 ary beijin-.-ts \>, I>, (', and 1 >. I. onl Lang- 
 
 dale held that, in consequence of the i nb- 
 sequeni bequi I . the g< at ral words mui I 
 
 I i j « - 1 . d to goods ejusdt m gent ris, 
 Wrench v. Jutting, 8 Beav. 521. "All 
 goods and ti > ry kind and ori 
 
 v.hat. rer," which Bhould be found in a 
 & rtain closet, held no! to includi 
 
 v. Kuffin, 2 A lk. 118; and Gibbt v. 
 
 T/owrence, '■'>*> L. J. Oh, 170. "Jewels, 
 
 hi id to include 
 
 residue, per Sir J. K. Bruce in Parker v. 
 Merchant, 1 Y. & C. 290. 
 
 Property. — "All my property, of what- 
 ever nature or kind, in a certain house," 
 held not to carry mortgage securities, per- 
 sonal bonds, or bankers' receipts, on the 
 ground that these have no locality, per 
 Lord Redesdale in Fleming v. Brook, 1 
 Sch. & Lef. 318. " Monies, goods, etc., 
 my property," held by Sir J. Leach to be 
 sufficient to pass the residue, Kendall v. 
 Kendall, 4 Russ. 360. "£1000; also my 
 wim sand property in England;" held by 
 Lord Cottenham that the whole property 
 iu England, consisting of wines, stock, 
 cash in bank, etc., was bequeathed, Arnold 
 v. Arnold, 2 My. & K. 365. 
 
 Personal Estate. — This expression is 
 nomen generate for personalty; see Martin 
 v. Glover, 1 Coll. 269. 
 
 Estate and Effects. — We have already 
 ei ii {\ 618, note), that the word "estate," 
 although followed liy an enumeration of 
 corporeal moveables, conveys the real pro- 
 perty, and a fortiori ii carries the person- 
 alty, Fishery. Hepburn, 14 Beav. 626. 
 
 Capital. — See Wylie v. Enohin, 81 L. J. 
 Oh. 402, affirming 29 L. .1. Ch. 841, and 
 • i i there citi d. The meaning of w 
 which in terminis are descriptive only of 
 iflc nbjeci will fall to be discussed in 
 tlio chapter on Legacies. 
 
 (< i Vochrie v. Linn, L786, M. 5018, El 
 chit . "Implied Will," No. I ; Frassr v. 
 8milh, 1776, 81 2822; ll.nl, . 709 ; EarloJ 
 Fifi V A M 2326 . 6 March 1797
 
 3 1 ,; OF THE ESTATE OH SUBJECT OF DISPOSITION. 
 
 .11 Mil K \\ II. 
 
 nred by adjudication. (d) "Goods and gear, whether heritable 
 or moveable," will not carry a lease.(e) "Moveables whatsoever," 
 coupled with words descriptive of corporeal moveables, will not 
 cany moveable bonds.(/) " Moveable estate," following an enume- 
 ration of corporeal moveables, does not include moveable rights.^) 
 A legacy of "moveables" has been held to include heirship move- 
 ables.^) "Cash" includes current coin and bank notes, but not 
 bonds, bills, or other securities. (*) "Free proceeds" of land in- 
 cludes th«' price of thinnings of woods.(fc) " Right of reversion" is 
 a term properly descriptive of estate burdened with a wadset. (7) 
 
 Corporeal move- 619. The reported cases in our Courts do not offer many ex- 
 amples of decisions upon the construction of terms descriptive 
 
 Furniture. of corporeal moveables. The meaning of " furniture" has been fixed 
 with tolerable Certainty. It includes articles of domestic use, but not 
 books nor wine, nor, of course, money or securities. (m) A legacy to 
 a lady, who was resident in the testator's house, of a quantity of plate, 
 with " the whole of the furniture in her own bed-room, and any 
 other she may choose for furnishing her house," was held to imply 
 indy a power of choosing liberally, but fairly, any other articles of 
 furniture of similar extent and value with the furniture of her own 
 
 Wearing ap- bed-room, (m) A universal bequest to two legatees, including, among 
 other articles, the testator's wearing apparel, was held, in Blair v. 
 Blair, (o) to entitle either of the legatees to demand a specific con- 
 veyance of his share of the articles in question, (j?) 
 
 3Pat.549; Waddellv. Colt, 1789, M. 5022; Cunninghame Y.Livingstone, 1737,M.12,6G0; 
 
 Pet. Galloway, 12 Jan. 1802, M. 15,950 ; 5 Br. Sup. 195. 
 
 Brou-n v. Henderson, 3 Dec. 1805, M. (n) Reed v. Lord Strathallan, 21 May 
 
 - Clause," App. No. 5. 1835, 13 Sh. 810; and see 12 Sh. 426. In 
 
 (d) Ross v. Ross, 10 April 1771, 2 Pat. several English cases, a legacy of so many 
 254, affirming M. 5019. articles, forming part of a stock of the same 
 
 (e) Paterson v. Fairish, 1800, Hume, description, has been held to give the lega- 
 128; Sutherland v. Jeffrey, Feb. 1805, tee a right of selection ; Jacques v. Chambers, 
 Hume, 133. 2 Coll. 435; Richards v. Richards, 9 Price, 
 
 (/) Dunbar's Trs. v. Dunbar, 1808, Hume, 226 ; Kennedy v. Kennedy, 10 Hare, 438. 
 
 267 ; Kerr v. Young, 1745, M. 2274. (o) Blair v. Blair, 26 Feb. 1831, 9 Sh. 
 
 (//) Cursi inlL's Trs. v. Carsewell, 9 Feb. 514. 
 
 1858, 20 D. 516. (p) The following summary of the Eng- 
 
 // ) Ferguson, 1682, 1 Fount. 193. lish decisions on the construction of the 
 
 (i) Jarvie v. Pearson, 5 July 1860, 22 D. terms descriptive of special subjects is 
 
 LS95. Compare Smith v. Donaldson, 10 taken from the last edition of Jarman on 
 
 June 1829, 7 Sh. 734. Wills, vol. 1, p. 721. 
 
 (k) Breadalbane 's Trs. v. Pringle, 19 Jan. The words " household goods," or " fur- 
 
 1854, 16 D. 359, niture," will include pictures hung up, and 
 
 (I) Chisholm v. Chisholm- Batten, 9 Dec. plate and house-linen (Amb. 605; 2 P. W. 
 
 186 I. 3 Macph. 202. 419 ; 5 Russ. 312), unless these words are 
 
 (m) Boll's Pr. ? 1885; M'Nab v. Spitted, used elsewhere in the will in contradistinc- 
 
 1797, M. 2303; Ker v. Young, 1715, M. tion (Pr. Ch. 251) ; tenant's fixtures, unless 
 
 2-i-\ . Rankeillor v. Ayton, 1709, M. 5759 : affixed In the freehold (10 Sim. 186; Mos.
 
 OF THE ESTATE OR SUBJECT OF DISPOSITION. 
 
 317 
 
 112; 1 P. W. 94): and prize medals, coins, 
 and trinkets, if framed and hung, or other- 
 wise disposed for ornament (21 L. T. 40; 
 
 5 Russ. 321) ; but not books (3 Atk. 201 : 
 Amb. 605 ; Mos. 112) ; or wines or other 
 consumeable articles (3 Ves. 311; 3 P. W. 
 334); or goods belonging to the testator in 
 the way of or used in carrying on trade (2 
 P. W. 302 ; 1 Ves. 97 ; Ami.. 611; 7 D. M. 
 
 6 G. 55) ; or farming stock (3 Jo. & Lat. 
 727; 29 L. J. Ch. 875). But in Cvrru 
 
 v. Cornewall, 12 Sim. 303, Sir L. Shadwell 
 held that books were articles of domestic 
 ornament. Now, this being the ground 
 on which pictures are included in the word 
 "furniture," that word onght also to in- 
 clude books, but it does not; so that Sir 
 L. Shadwell's opinion is of doubtful autho- 
 rity. Of course books will be included in 
 a bequest of furniture, if the testator's in- 
 tention so to do can be collected from the 
 will; Ousley v. Amtruther, 10 Beav. 462 ; 
 see also Cole v. Fitzgerald, 3 Russ. 301. 
 And under the terms ■• household furniture, 
 implements of household and articles of 
 vertn," telescopes have been held to pass; 2 
 De G. & Sm. 425 ; as to a bust qucere, 1 
 .189. The words " household furni- 
 ture and other household effects," it seems, 
 extend to all that is in the house for use. 
 
 consumption or ornament ; and have been chapter xvii. 
 
 held to comprise pistols, apparatus for 
 
 turning, models, pictures, organ, parrot, 
 books, wines, and liquors, but not a pony 
 or cow, or a fowling-piece, unless used for 
 domestic defence, Cole v. Fitzgerald, 1 S. 
 & St. 189; and, on appeal, 3 Russ. 301, 
 ami note; Stone v. Parker, 29 L. J. Ch. 
 874; nor articles exclusively of personal 
 ornament, 2 Kay & J. 635. But the cir- 
 cumstance that the article has been sent 
 away for repair or sale will not exclude 
 it, 2 Jur. X. S. 514. As to the words 
 •■live and dead stock," see 3 Yes. 311 : 
 3 Mer. 190; 12 Beav. 357. Growing crops, 
 it seems, will pass under a bequest of 
 stock of a farm, 6 East, 604, note ; or stock 
 upon a farm, 8 East, 339; but see 5 Buss. 
 12; and see 1 Roper on Leg., by White, 
 249. " Moveables," unrestrained, will take 
 in all pure personalty, Mos. 296 ; and ar- 
 t icles A mporarily removed from a place will 
 pass as articles in that place, 4 B. C. C. 
 537 ; but not articles permanently remov- 
 ed, 3 Mad. 270; 21 Beav. 548 ; 1 Jur. N. S. 
 250 ; nor articles intended to be, but never 
 yet, taken thither, 2 DeG.& S. 425. Under 
 a gift of "plant and goodwill," the house 
 of business held at rack-rent was held to 
 pass, Blake v. Shaiv, 1 Johns. 732.
 
 31 g OF UNCERTAINTY IN TESTAMENTARY WRITINGS. 
 
 in vrrri; IYIII. 
 
 CHAPTER XVIII. 
 OF UNCERTAINTY IN TESTAMENTARY WRITINGS. 
 
 Requisites of an 620. To the constitution of a testamentary disposition or be- 
 j,;';';;. quest three elements must concur— a subject of bequest, an object or 
 tion: Subject; person to whom the subject is given, and words of disposition de- 
 Disposbg 6 " "'noting a testamentary intention in favour of the object of the be- 
 quest. A will is said to fail or to be void for uncertainty, where it 
 is absolutely defective in any of these primary elements. But as 
 the maker of a will always has some testamentary purpose in view, 
 and as the most liberal principles of interpretation are admitted in 
 the determination of the meaning of wills, it is next to impossible 
 that the will of a rational person, however ignorant or illiterate, 
 should fail from uncertainty. Our object in this chapter is to as- 
 certain the limits within which wills may vary in form and expres- 
 sion from the ordinary modes of disposition, without becoming wholly 
 unintelligible or uncertain. 
 Dispositiv? lan- 621. Our attention will be directed, in the first place, to the ele- 
 s.-'im -"."1™!3: ment of dispositive language, and to the words expressing testa- 
 ^ests 017 bt mentary intention which may be employed in the place of proper 
 dispositive language. Where a testator, instead of directly giving 
 and bequeathing, or declaring the purposes of his will, makes use 
 of expressions which either denote a wish to bequeath, or suggest a 
 purpose in the form of a request or recommendation to trustees 
 (termed a Precatory Trust), he is held to have sufficiently express- 
 ed a testamentary intention, (a) A wish is in law equivalent to a 
 will, and is binding on the executors as an implied trust for the 
 ol ijects of the gift. It has been maintained in some cases that trusts 
 expressed in the form of a request or precatory gift are only intend- 
 ed to be binding on the conscience of the executor, or that they im- 
 
 (a) Stair, 1, 12, 2 ; Bell's Pr. § 1885, 5th desidero, uti des, are declared to be equiva- 
 ed. \\ 1871-2. See Dig., lib. 30, tit. 1, fr. lent to exigo, and to constitute a fideicom- 
 115, 118, where the words cupio, opto, credo, missum.
 
 OF UNCERTAINTY IN TESTAMENTARY WRITINGS. 319 
 
 ply a reference to his discretion. But this is so far from being the ohaptkb xvm. 
 case that the executor has no option, except perhaps in relation to 
 the choice of the means for effectuating the intention where the 
 language is general or the purpose indefinite, (b) 
 
 622. In the case of Crichton v. Grierson,(c) it was observed by Expression of a 
 Lord Lyndhurst that the expression of a wish to benefit a particu- KemihSi 
 lar description of persons was equivalent to a trust for the benefit * oa ''i 1 ""' in 
 
 j- i i i mi -i favour ot the 
 
 of the persons designated. Ihe same judge, upon a review of all object. 
 the Scotch decisions on the construction of wills expressed in popu- 
 lar language, came to the conclusion that the law of Scotland amis 
 more favourable than that of England to the constitution of preca- 
 t >ry and implied bequests. (d) The principle of interpretation estab- 
 lished by the judgment of the House of Lords, in the case under 
 consideration, was acknowledged and applied in many subsequent 
 cases in the Court of Session, (c) and it received the strongest con- 
 firmation in the judgment on the appeal in the leading case of The 
 Magistrates of Dundee v. Morris.(f) Any word equivalent to a 
 '• wish" will receive a corresponding interpretation. Thus, the ex- 
 pression of the testator's " consent" that a legatee should receive a 
 certain subject is held to be equivalent to a bequest of the subject. (</) 
 
 623. Again, it was laid down by Lord Brougham, in MiUer v. Etecommenda- 
 BlacUs Trs..(h) that a recommendation to trustees to execute a con- bgontrusteea 
 veyance of the residue of the trust-estate to themselves, and to ap- asawaL 
 ply the annual proceeds to certain charitable uses, was equivalent 
 
 to a direction. And where words necessary to complete the sense 
 of a trust purpose are wanting, they may be supplied by implica- 
 tion from the context.(fc) A recommendation to execute a power 
 is do1 equivalent to a direction, for this would be to change the 
 nature of the provision. 
 
 624. The doctrine of the constitution of bequests and ferusl pur- Doctrine applied 
 
 by implication has received a fuller developmenl from the I'iJ';, Iv""' 1 " 1 
 decisions of the I lourts oJ Equity in England than from those pro- 
 
 (';) E ill" means, the executor 1844, D. 896; Alexanders. Gordon, 13 
 
 rv little discretion where the pur- Dec. 1849, L2 l>. 345. 
 of a charitable or yua«-charit- (f)Magt. of Dundee^. Morris, 19 D. 918; 
 
 able character, as the administration of tli o 1 .Mi. ls:,s, :; .M;,,-,j. |:;i. 
 fund may be taken out of his hands by the Scott v. Sceales, 5 Feb. 1864, 2 
 
 Court al th" mil of any per on having a Macph. 618. 
 
 ofc r< i I- interfere. Killer v. Black't '/' .. I l July 1887, 
 
 '■ n, 26 July 1828, 8 2 S. & M-l,. 866, affirming 1 » Sh. 657. 
 W.4 s. 829 ay, 1662, '/ , of Edin. \. Univ. of Edin., 20 
 
 ML 6488, tl i ported case of this June 1881, 18 D. 1187; CarseweU v. Co. 
 
 I tion. well, 9 F< b. 1868, 20 D. 616 . h I on v. 
 
 (<lj 8 W. & s. 848 Stewart, 8 F< b. I860, 22 I 1 646 >/ ■■.-, . of 
 
 I L887, Dundee v. Morrit, mora. 
 
 16 Mi. 427; Turnbull \. Do d ! 9 Feb.
 
 320 
 
 OF UNCERTAINTY IN TESTAMENTARY WHITINGS. 
 
 ohaptbbxtiii. nounced in tins country, iii c< msei [uenee of the greater number of 
 rases which have been submitted to judicial determination. The 
 following summary of the import of the cases is given by Mr Lewin: 
 — « [f," he says, "the testator ' desire,'<7'0 ' will/(Z) ' request/ (p) 
 • will and desire/(w) ' wish and request/(o) ' wish and desire/(p) ' en- 
 hvat.V/) 'most heartily beseeeh/(r) 'order and direct/0) ' autho- 
 rise and empower/(tf) c recommend /(w) 'hope/(a3) ' do not doubt/(#) 
 'lu« well assured/^) ' confide/(a) 'have the fullest conndence/(o) 
 ' trust and confide/(c) ' have full assurance and. confident hope/(d) 
 'under the firm convietion/(e) 'well kno\v/(/) or use such expres- 
 sions as ' of course the legatee will give/O) ' in consideration the 
 legatee has promised to give/(A) etc., — in these and similar cases 
 the intention of the testator is considered imperative, and the de- 
 visee or legate® is bound, and may be. compelled to give effect to 
 the injunction. And though instances of this kind generally occur 
 
 Baron Wood ; Kingston v. Lorton, 2 Hog. 
 166 ; Cholmondeleyy. Cholmondeley, 14 Sim. 
 590 ; Hart v. Tribe, 18 Beav. 215 ; and- see 
 
 temp. 
 
 200: 
 
 (k) Harding v. Glyn, 1 Atk. 469 ; Mason 
 V.Limburff, cited in Vemonv. Vernon, Amb. 
 4 ; Trot v. Vernon, 8 Vin. 72 : Pushman v. 
 Filliter, 3 Ves. 7 ; Brest v. Offley, 1 Ch. 
 Rep. 246 ; Cary v. Cary, 2 Sell. & Lef. 189 ; 
 Cruwys v. Colman, 9 Ves. 319; and see 
 Shaw v. Lawless, L. & G. 154 ; S. C, 5 
 CI. & Fin. 129; S. C, LI. & G. 
 Plunkett, 559. 
 
 (1) Eales v. England, Pr. Ch. 
 Cloivdsly v. Pelham, 1 Vern. 411. 
 
 (m) Pierson v. Garnet, 2 B. C. C. 38 ; 
 affirmed id. 226 ; Eade v. Eade, 5 Mad. 
 118 ; Moriarty v. Martin, 3 Ir. Ch. Rep. 
 26 ; Bernard v. Minshall, 1 Johns. 276. 
 
 (n) Birch v. Wade, 3 V. & B. 198; 
 Forbes v. Ball, 3. Mer. 437. 
 
 (o) Foley v. Parry, 5 Sim. 138 ; affirmed 
 2 M. & K. 138. 
 
 (p) Liddard v. Liddard, 6 Jur. N. S. 439. 
 
 (q) Prevost v. Clarke, 2 Mad. 458 ; Mere- 
 dith v. Heneage, 1 Sim. 553, 555, per Chief 
 Baron Wood ; and see Taylor v. George, 2 
 V. & B. 378. 
 
 (r) Meredith v. Heneage, 1 Sim. 553. 
 
 (a) Cary v. Cary, 2 Sch. & Lef. 189; 
 White v. Briggs, 2 Phill. 583. 
 
 (t) Broun v. Higgs, 4 Ves. 708, 5 id. 
 495 ; affirmed 8 Ves. 561 ; and in H. L. 
 
 18 Ves. 192. 
 
 («) Tibbits v. Tibbits, Jac. 317 ; affirmed 
 
 19 Ves. 656 ; Horwood v. West, 1 S. & S. 
 387 ; Paul v. Compton, 8 Ves. 380, per Lord 
 Eldon ; Malim v. Keighley, 2 Ves. jun. 333 ; 
 ib. 529; Malim v. Barker, 3 Ves. 150; 
 Meredith v. Heneage, 1 Sim. 553, per Chief 
 
 Meggison v. Moore, 2 Ves. jun. 630 ; Sale v. 
 Moore, 1 Sim. 534 ; ex parte Payne, 2 Y. & 
 C. 636 ; Randal v. Hearle, 1 Anst. 124 ; 
 Lefroy v. Flood, 4 Ir. Ch. Rep. 1. As to 
 Cunliffe v. Cunliffe (Amb. 686) , see Pierson 
 v. Garnet, 2 B. C. C. 46 ; Malim v. Keighley, 
 2 Ves. jun. 532 ; Pushman v. Filliter, 3 
 Ves. 9. 
 
 (x) Harland v. ZVfcy, 1 B. C. C. 142 ; 
 and see Paid v. Compton, 8 Ves. 380. 
 
 (y) Parsons \. Baker, 18 Ves. 476 ; Tay- 
 lor v. George, 2 V. & B. 378 ; M alone v. 
 O'Connor, LI. & G. temp. Plunket, 465; 
 and see Sale v. Moore, 1 Sim. 534. 
 
 (z) Macey v. Shurmer, 1 Atk. 389 ; Amb. 
 520. See Ray v. Actons, 3 M. & K. 237. 
 
 (a) Griffiths v. Evans, 5 Beav. 241. 
 
 (6) See Wright v. Atkyns, 17 Ves. 255, 
 19 Ves. 299, G. Coop. Ill, T. & R. 143 ; 
 Webb v. Wools, 2 Sim. N. S. 267 ; Palmer 
 v. Simmonds, 2 Drew. 225. 
 
 (c) irooc? v. Cox, 1 Keen, 317 ; 2 My. & 
 C. 684 ; Pilkington v. Boughey, 12 Sim. 114. 
 
 (d) Macnab v. Whitbread, 17 Beav. 299. 
 
 (e) .Barnes v. Grant, 2 Jur. N. S. 1127. 
 (/) Bardsivell v. Bardswell, 9 Sim. 323 ; 
 
 Nowlan v. Nelligan, 1 B. C. C. 489 ; Briggs 
 v. Pe/iyzy, 3 Mac. & Gord, 546, 3 De G. & 
 Sm. 525. 
 
 '(g) Robinson v. Smith, 6 Mad. 194; bat 
 see Lechmere v. Lavie, 2 M. & K. 197. 
 (h) Clifton v. Lombe, Amb. 519.
 
 OF UNCERTAINTY IN TESTAMENTARY WRITINGS. 32] 
 
 upon the construction of wills, the doctrine does not apply to wills ohaptkb xvm. 
 exclusively, (t) but lias been extended to settlements inter vivos."(k) ~ 
 
 625. Where a testamentary purpose is clearly expressed, the Noim]ied 
 legacy or testamentary gift may, notwithstanding, be void by n-a- ,r,1M u!unMhp 
 son of uncertainty in the subject or in the object of the disposi- cSato! ™ 
 tion.(7) But it does not often happen that a court of construc- 
 tion finds itself under the necessity of declaring a will void on 
 
 this ground. It was laid down by Lord Alvanley,(m) that a 
 trust is implied wherever a testator points out the objects, the 
 property, and the way in which shall it go ; and the observation 
 has often been repeated, that the objection of uncertainty, when 
 pleaded to the effect of annulling a bequest, must apply either to 
 the object of the bequest or to the subject or estate bequeathed. 
 In Eicen v. The Magistrates of Montrose, (n) Lord Wynford refused 
 to give effect to a bequest of the residue of the testator's estate, to 
 be accumulated " until the principal sums and accumulated inte- 
 rests should amount to the sum of £ sterling," for the estab- 
 lishment of an hospital for the maintenance, clothing, and education 
 of boys. But the authority of this case was impugned in a subse- 
 quent decision of the Court of Appeal in the case of the Magistrates of 
 Dundee v. Morris. (o) On principle, it should seem that the bequest 
 of residue was sufficiently designative of the subject; the extent 
 to which accumulation should take place, as well as the number of 
 the recipients of the testator's bounty, being matters of expediency, 
 which, in the case of a charity, might be left to the discretion of the 
 trustees. 
 
 626. The object of a, bequesl is not considered uncertain where Uncertainty as 
 a legacy is given to the charities of a certain town,(_p) the poor of jyjjj K n or 
 a presbytery, (q) or the like, or even to charitable objects to be se- 1,cl,cnted - 
 lected by the testator's trustees.(r) A bequest of a fund for the 
 payment of twenty shillings in the pound to the truster's creditors, 
 
 " as the same shall he set forth in a Lisl which 1 intend to leave," 
 
 sustained, although no List was found ; and extrinsic evidence 
 
 was admitted for the purpose of ascertaining the persons entitled 
 
 to share in the distribution of the fund.(s) And where a testator 
 
 (>) Liddardv. Liddard, supra. & S. 80 ; Jack \. Burnett, 28 Aug. 1846, 
 
 I Trust Bth ed. p. 104. 5 Bell, 109; Bot \. Anderson (first point), 
 
 I 1884,6th ed. g 1865; 11 Nov. 1857, 20 D. LI; but Bee the ulti- 
 
 n of Lord Chelm ford, Ch., in Mags, mate decision, 8 March 1862,24 I). 782. 
 
 o/Dund '/ 8 -I i L58. [q) Presbytery of Deer v. Bruce, 20 Jan. 
 
 (m) Mar,,,, v. Keighley, 2 Vi . jun. 885. 1865, 8 Macph. 402. 
 
 / Hags, oj Vontrose, 16 Nov. (/a Kelland v. Douglas, 28 Nov. 1" 
 
 I W. & s. 846. 2 Macph. 150. 
 
 154. (s) Sprotv. Pennycook, 1 2 June 1855, 17 
 
 Burns, 1 1 April [826, 'l W. D. 840. 
 Vnf, i. x
 
 322 OF UNCERTAINTY IN TESTAMENTARY WRITINGS. 
 
 oHAPTBBXYiii. 1 >e< [uea 1 1 m I Legacies " to each of the daughters procreate of the mar- 
 riage betwixt A. B. and C. D., £400 sterling . . . £1200," and 
 there were four daughters of the marriage, it was ruled that the in- 
 sertion of a total corresponding to three legacies of £400 did not 
 defeat the intention, and that each of the four daughters was en- 
 titled to claim a legacy of the value of £400.(0 
 
 Beqnestsin 627. Bequests contained in dispositions to trustees for the pur- 
 
 pose of division amongst persons of a class, as, for example, for 
 equal division " amongst relations not herein named," or to any of 
 the truster's " blood relations " that the disponee should think the 
 most fit,(w) or to such of the truster's " mother's relations" as his 
 trustees should appoint,(sc) to such of the truster's " friends or rela- 
 tions" as might be pointed out by his wife, with the approbation of 
 the majority of .trustees, (//) to the truster's "poorest friends and 
 relations, whom he might have forgot," (2) or to "poor descend- 
 ants" (a) — are sustained as implied trusts to be executed at the dis- 
 cretion of the disponees for the benefit of persons of the class desig- 
 nated by the truster. A destination to descendants or other rela- 
 tions, to be selected according to the discretion of the trustees, is 
 held to fail by their declinature of the trust, for here the power of 
 selection is essential to the execution of the trust, and not merely 
 incidental, as in the case of a charity, (b) A trust in favour of " re- 
 lations," to be selected by the trustees, includes relations by the 
 mother's as well as the father's side ;(c) and the principle has been 
 extended to the case of an unconditional bequest to " nearest rela- 
 tions," so as to include the children of a sister-uterine who was 
 named in other parts of the settlement along with the grantor's 
 brother-german.(c() A declaration that a fund is "to be divided 
 equally," has been held equivalent to a bequest to the next of kin in 
 equal shares, (e) But in a more recent case, where a trust was 
 created to " divide" a portion of the estate " among my relations in 
 such portions as my trustees may think proper, or as I may direct," 
 
 (O Maclehose v. Bogles, 28 Feb. 1815, 1837, 16 Sh. 1 ; Macnairv. Macnair, 1791, 
 F.C., Hume, 274. See Anderson v. Ancler- M. 16,210 ; and see Thomson v. Cumber- 
 son, 18 July 1729, 1 Cr. St. & Fat. 136, re- land, 16 Nov. 1814, F.C. 
 versing M. 6590; and Stewart v. Stewart, (b) Dick v. Ferguson, 1758, M. 16,206 
 26 Nov. 1813, F.C. and 7446 ; and see Hamilton v. Whitehead, 
 
 («) Wharrie v. Wharrie, 1760, M. 6599; 22 Jan. 1833, 11 Sh. 302. 
 
 Murray x. Fleming, 1729, M. 4075. (c) Broun s Trs. v. His Relations, 1762, 
 
 (x) Snodgrass v. Buchanan, 1806, M, M. 2318. 
 
 - Service of Jlcirs," App. No. 1. (d) Scott v. Scott, 10 May 1855, 2 Macq. 
 
 (y) Crichlon v. Grierson, 25 July 1828, 281, affirming 14 D. 1057 ; and see Norris 
 
 3 W. & S. 329. v. Norris, 11 Dec. 1838, 2 D. 220. 
 
 (2) Broun s Trs. v. Ills Relation*, 1762, (e) Dundas v. Dundas, 27 Jan. 1837, 15 
 
 M.2318. Sh. 427. 
 
 (a) Cairnie v. Cairnie's Trs., 14 Nov.
 
 OF UNCERTAINTY IN TESTAMENTARY WRITINGS. 323 
 
 and the .surviving trustee executed a deed of distribution assigning chapteb xvm. 
 a large portion of the estate to distant relatives, and a smaller share 
 to the testator's next of kin, the Court sustained the execution of 
 the power, being unanimously of opinion that the word " relations " 
 comprehended all who could show a traceable relationship to the 
 testator. (/) 
 
 628. Where a radical uncertainty exists respecting the person Erroneous de- 
 intended to be benefited, as where the name of the legatee has SS/or 
 been omitted by inadvertence or erased, (g) or a wrong name in- s rantee - " 
 serted,(A) the defect does not admit of being supplied by the ad- 
 mission of ' extrinsic evidence, for here it would be necessary not 
 
 merely to explain the testator's meaning, but to supply what he 
 has left unsaid. Slight errors in the names of individual benefici- 
 aries,^') or societies, (k) do not invalidate the bequest, dummodo 
 constat de persona. We refer to the subsequent exposition of the 
 subject of the admissibility of parole evidence. (I) 
 
 629. Uncertainty in relation to the subject, or the quantity of Uncertainty as 
 the subject of disposition, is not easily assumed in the case of a ^itiS"* ' 
 charitable bequest ; because the amount of the funds or estate re- 
 quired fur carrying out the intention is, by a convenient fiction, 
 .-upposed to be capable of precise ascertainment. (m) Accordingly, 
 
 where a testator left a memorandum expressive of his wish to esta- 
 blish an hospital in his native town for 100 boys, the House of 
 Lords remitted to the Court of Session to frame a scheme of en- 
 dowment, and for the purpose of " inquiring into and ascertaining 
 tin amount of the estate of the said testator necessary for carrying 
 into effeel bucIi scheme."(») Where the execution of a charitable 
 trusl is Lefl to the discrel ion of testamentary trustees, it lias usually 
 considered that the intention is to apply the who!,' residue to 
 
 tk v. Barber, 26 Jan. 1861, (/) Keiller \. Thomson's Trs., 16 Doc. 
 
 28D.898. [nEngland,trn riled 1824, 3 Sh. 896, N. E. 279 ; l6Junel826, 
 
 f<-r wanl <•!' <-<;rtainty in the object, where 1 Sh. 724, N. E. 730. 
 
 the istiit,; was given to A. "with a hi (k) Synod of Aberdeen v. Milne's Trs., 
 
 thai he would continue it in the family" 26 Feb. 1847, 9 D. 7 1-".; Scottish Missy. 
 
 {Harlandv. Trigg, 1 B. 0. C. 142); or on Socy. \. Home Mission Committee, 19 Feb. 
 
 fordistribution"! achmem- 1868, 20 D. 634 ; Pringle v. M. ofTweed- 
 
 mighl l- thought dale, 16 Dec. 1828, 2 Sh. 588, NT. E. 506 
 
 '' :/ ' '■■ - -/v. Edin. Bible Soc, 22 3 
 
 h of the hi n of thi ti 1830, 8 Sh. 870; Duff's Trs. v.' Scripture 
 
 fathi r as Bhe mi| lit thil I; bi -t de- Readers, Is Mar. |sr,-j, uf | i. .•,.-,7. ,,,,,',. 
 
 1 a prefer* nc< ;" Meredith v. Heneage, (l) Chapter 21. 
 
 1 Biro. 642 (in 11. L.). („,) p^ Lords Cranwortb and W< ., li 
 
 (g) Grata 7. Shepherd, 21 .inly L847, 6 dale, :: Macq. L66 176 
 
 ''"'"• ''"'■ M • "//'/•< \. Morris; >*-r 
 
 Reid v. Redder, 21 June i--;l L2 judgment, 8 Macq. L78. 
 Sh. 781 ; Blair ■/■ 1849, 12 
 I' ''7
 
 324 
 
 OF UNCERTAINTY IN TESTAMENTARY WRITINGS. 
 
 Whether preca 
 tory direction 
 effectual a< ;i 
 substitution. 
 
 haptbb mii. the purposes of the charity, unless the testator appears to have con- 
 templated the possibility of a surplus being left.(o) Cases of un- 
 certainty in regard to property bequeathed to individual legatees, 
 have relation more frequently to the quantity of the legacy than to 
 the question of its validity. A testamentary declaration by spouses, 
 that " the longest liver is to have all that remains after our debts 
 aro paid,"' was sustained as a valid universal legacy of the moveable 
 estate.( p) A bequest of " all moveables whatsoever," following an 
 enumeration of corporeal moveables, was held not to comprehend 
 nomina debitorwm.icj) 
 
 630. A precatory direction to a disponee or legatee to dispose 
 of the property in a particular way after the grantee's death, is not 
 binding as the expression of a testamentary intention or trust, un- 
 less the right gken to the grantee is limited to a liferent interest ; 
 otherwise the request, in any view of its meaning, amounts to no 
 more than a simple destination, which is defeasible at pleasure. (V) 
 And it may be laid down upon English authority, which on this 
 point is in harmony with the principles of our law,(s) that the 
 Court will not rear up an implied trust for the purpose of carrying 
 out a purpose of substitution. Waiving the consideration of ex- 
 pressions of a mere intention to benefit descendants, it is held in 
 England, that even a positive recommendation to divide property 
 among certain persons in specified proportions, (t) or to divide and 
 dispose of what money or property the grantee might have saved 
 from the yearly income thereby given to him,(w) or to leave the 
 
 (o) Miller v. Black's Trs., 14 July 1837, Maistre v. Bannister, Pr. Ch. 200) ; or to 
 
 2 S. & M'L. 866, affirming 14 Sli. 555; make ample provision for them (Winch v. 
 M'Leish's Trs. v. M'Leish, 25 May 1841, Brutton, 14 Sim. 379), and trusts of that 
 
 3 D. 914; and see Hospital of Perth, 1795, 
 M. 5758, Bell's Fol. Ca. 173 ; Ramsay v. 
 College of St Andrews, 7 June 1842, 4 D. 
 1366. 
 
 (p) M'Miltan v. M'Millan, 28 Nov. 
 1850, 13 D. 187. 
 
 (q) Dunbar's Trs. v. Dunbar, 15 Jan. 
 1808, Hume, 267. As to the identifica- 
 tion of specific subjects of disposition, see 
 chapter 21 (Extrinsic Evidence) ; Donald's 
 Trs. v. Donald, 26 March 1864, 2 Macph. 
 923. 
 
 (r) Murray v. Fleming, 1729, M. 4075 ; 
 Ramsay v. Beveridge, 3 Mar. 1854, 16 D. 
 764. It has been held that recommenda- 
 tions to consider certain persons (Sale v. 
 Moore, 1 Sim. 534) ; to be kind to them 
 (JSvggins v. Yates, 9 Mod. 123); to re- 
 member them (Bardswell v. Bardswell, 9 
 Sim. 319) ; to do justice to them (Le 
 
 nature, are void for uncertainty. 
 
 (s) Greig v. Johnston, 6 W. & S. 426, 
 per Lord Wynford ; Brown v. Coventry, 
 1792, M. 14,863 ; and cases cited in Bell's 
 Pr. \ 1878, 5th ed. § 1881. 
 
 (t) White v. Briggs, 15 Sim. 33 ; 15 
 L. J. Ch. Ca. 182. Lord Lyndhurst ob- 
 served that the word "recommend" had 
 been repeatedly held to create a trust ; but 
 that construction frequently defeated the 
 intention of the testator, and the Court 
 was unwilling to extend the doctrine. 
 
 (u) Cowman v. Harrison, 10 Hare, 234. 
 " The right of a donee to spend the sub- 
 ject-matter of the gift is inconsistent with 
 the nature of a trust ; and the Court there- 
 fore collects in that case that there can be 
 no intention to impose a trust." — Per Tur- 
 ner, V.-C, p. 239.
 
 OX UNCERTAINTY IN TESTAMENTARY WRITINGS. 325 
 
 residuary estate iu a certain way, (a;) is not binding on the legatee chai>teb xvm. 
 as a trust, if the power is expressly or impliedly given to him of 
 disposing of the subject in his lifetime. (y) 
 
 631. Where the words of a bequest amount merely to a trust Resulting mte- 
 for certain limited purposes which do not exhaust the estate, the jj£j XS.™ 1 " 
 residue will generally result to the next of kin. (2) The Court will 
 
 not easily infer an intention to give a residuary interest to persons 
 described as trustees ; and accordingly a fund given in liferent to a 
 beneficiary, the capital being "payable to the trustees," was held 
 to merge in the general estate, (a) But a general devise of property 
 to a person and his heirs, " for his and their own use and benefit," 
 subject to payment of legacies, was held by Lord Cottenham, rer 
 versing the decision of Lord Langdale, M.-E., to give a beneficial 
 interest in the residue ;(&) and this decision may safely be regarded 
 as a precedent in Scotland, (r) 
 
 632. It has been observed, that the question whether a testa- Testamentary 
 
 mentary purpose is to be interpreted as a trust or a power, is one of £?5EieSn- 
 
 intention rather than of grammatical import. (d) Where a direction ar ^ or im P era - 
 
 , . 1 tlve - 
 
 to dispose is a mere adjunct to a bequest of the beneficial interest 
 
 in a subject, the presumption is, as we have seen, for an absolute 
 gift of the fee, or at all events of the usufructuary interest, coupled 
 with a power of defeating the destination. But where the fee is 
 vested in trustees for the use of the beneficiary, it would seem that 
 any suggestion- addressed to the trustees regarding its ultimate dis- 
 posal are to I"- regarded as directions in the nature of a precatory 
 trust, which they are not at liberty to disregard. (e) For example, 
 a power of altering the settlemenl may be exercised for the purpose 
 of aiding the truster's probable intention, but oot for the purpose of 
 .ling it. (/j The beneficiary for whose behoof a power of ap- 
 
 (z) Eaton v. Watts, Law Rep. J Eq. Ca. (a) Miller v. Black's Trs., 14 July 1837, 
 
 I'll, — a bequest "of all my property to 2 S. & M'L. 866. 
 mj bu band, hoping be will leave i\ afti c (//) Wood v. Cox, 2 My. & Cr. 684, 6 L. 
 
 worthy of it," J. ( !h. < la. 366. 
 with an explanation of the testator'i rea (c) Jack v. Burnett, 5 Bell, 109. 
 
 Palmer \. Sunn,', ml*, 2 I)n-\v, 221. (d) See Malim v. Keighley, 2 Ves. jun. 
 
 Knight \. Boughton, II CI. & Fin. 681; Meggison v. Moore, '2 Ves. jun. 682, 
 
 618; // ■ ' / 1 U e, . & p, r Lord Loughborough. 
 
 Bm. 246. I '/". Malim v. Keigh- (e) Bee Watsonv. Watson, 8 March 1864, 
 
 jun. 629; Eorwood 7. West, I 16 D. 808, and Dennistoun v. Dalgleish, '2'2 
 
 N..v. ts:is, 1 J). ()'.), win n direction to 1 1 
 
 1/ of Dundee v. M orrit, 8 Macq. I rtain parties in liferent, and to their 
 
 equel, 28 D. 498. Bui If the children in fee, were interpreted as tru 1 
 
 ed, 1 be v hole to invt 1 for thi ir b( hoof, 
 
 fund must I"' applied to the pur] f (f) Douglas v. Douglas' Trs., 80 Ju 
 
 the beque I ; M'Leish't Trs. v. M'Leish, 26 1859, 21 D. 1066. 
 1841, 3 D. 914. I 1 
 1 - '
 
 326 
 
 OF UNCERTAINTY IN TESTAMENTARY WHITINGS. 
 
 i'M IPTKR w M 
 
 Trusl may be 
 ; dby 
 way of reserva- 
 tion or burden 
 
 pointmenl is granted, may require Hie trustee to execute it(g) 
 The Court, if a necessity arises, may define and even extend the 
 powers of the trustees, (A) and may restrict thejmterest of the ap- 
 pointee in eases where the trustees have exceeded their powers ;(?') 
 bill it il>v* not appear that the Court lias ever taken upon itself 
 the execution of a power of appointment, or similar discretionary 
 trust, (k) 
 
 633. The principle, that an intention manifested by a disponer 
 is equivalent to a trust, may be further illustrated by reference to 
 the case of a direction, in a deed of absolute conveyance, to apply 
 
 upon an estate , , , , . , . . c , . ,-. 
 
 i.-iwii to aiK.th.-r the proceeds of realised heritable property in payment ot legacies ;(/) 
 or of a conveyance to a party in liferent giving a nominal fee, sub- 
 ject to the condition that such fee shall be retained for the benefit 
 of children of the marriage ;(m) to the case of dispositions of heri- 
 tage charged with payment of debts and legacies, (n) or of specific 
 provisions ;(o) in which cases a trust for payment is raised by im- 
 plication in the person of the disponee as the condition upon which 
 the grant is to take effect in his favour. So also, if a husband has 
 bound himself by his marriage-contract to lay out and secure a sum 
 of money as a provision to his wife, he is, on the principle of implied 
 trust, responsible for its investment, and can only discharge himself 
 of the trust by investing the sum on good heritable security, (p) 
 
 (g) Cowan v. Crawford, 20 Jan. 1837, 
 15 Sh. 398 ; Campbell v. Campbell, 25 Feb. 
 1809, F.C. See Mackay v. Ewing, 10 July 
 1867, 5 Macph. 1004. 
 
 (A) Stewart v. Stewart, 26 Nov. 1813, 
 F.C. ; Muir v. Pollock, 9 Dec. 1851, 14 D. 
 1 52. 
 
 (i) Strathallan v. D. of Northumberland, 
 20 May 1840, 2 D. 840 ; E. of Rothes v. 
 Rothes, 21 Jan. 1823, 2 Sh. 135, N. E. 125 ; 
 /.'. of Mar v. Lady Erskine, 3 Dec. 1830, 9 
 sh. 126. 
 
 (k) See chapter 62 (Powers of Division). 
 
 (I) Fergus v. Fergus, 7 Feb. 1833. 11 Sh. 
 362. 
 
 (m) Ramsay v. Beveridge, 3 March 1854, 
 16 D. 764. 
 
 (n) Stair, 3, 5, 17; Ersk. 3, 8, 52; Bell's 
 Pr. \ 1775 ; Robertson's Crs. v. Robertson, 
 13 Dec. 1803, M. " Competition," App. No. 
 2 ; Wemyss v. Trail, 23 Nov. 1810, F. C. ; 
 Ogilvie v. Dundas, 22 May 1826, 2 W. & S. 
 214 ; Sinclair v. Fraser, 1798, Hume, 176 ; 
 Moncrieff v. Skene, 29 June 1825, 1 W. & 
 S. 672. 
 
 (o) Johnston v. Cochran, 13 Jan. 1829, 7 
 Sh. 226. 
 
 O) Lindsay v. Lothian, 1685, M. 2269 ; 
 Hay v. Hay, 1710, M. 12,982 ; Ramsay v. 
 Cowan, 11 July 1833, 11 Sh. 967.
 
 INTERESTS ARISING BY IMPLICATION. 327 
 
 CHAPTEE XIX. 
 
 CHAPTER XIX. 
 INTERESTS ARISING BY IMPLICATION. 
 
 634. Gifts by Implication (in the sense in which the term is here Definition of a 
 used) are not easily brought within the scope of a general defini-fon. 5 unp 
 tion: yet there is undoubtedly a clear distinction betwixt the impli- 
 cation of a gift, where there is no formal disposition of the subject 
 
 or interest, and the construction of a clause in a testamentary writ- 
 ing, which is in form a disposition or bequest of some kind, though 
 admitting of different views being taken as to its meaning. The 
 cases are not numerous in which interests have been held to arise 
 by implication, i.e., without the use of words of bequest or disposi- 
 tion. Without aiming at a formal division of the subject, they may 
 be classed as follows: — (1) Implication from Recitals; (2) from 
 I »■ stinations to other persons, to take effect upon a contingency ; 
 (3) from Liferent Destinations; (4) from Powers, and (5) from 
 Dispositions of the Legal Estate in deeds of Trust. 
 
 635. As a general rule, it may be affirmed thai an implication implication only 
 
 ,• ,, c ,. . , . • i • -l i i admissible where 
 
 tor tne purpose ol creating an estate or interest is admissible only estate mighi be 
 in relation either to personal property, or to heritable property which ^ ,osed oi by 
 is liable to be affecti d by testamentary Language in consc'iuence <>\ 
 the legal estate being conveyed to trustees subject to uses to be after- 
 wards declared. In the case of settlements of heritable estate by 
 dinet disposition, implication is exclude! I by the rule that an estate 
 in heritage can only be constituted by dispositive words, — except 
 perhaps in those cases where an estate is given to a person in a 
 certain event or events, and the question is us to the right of the 
 same pei acceed in a casus improvisus. h may also be sur- 
 
 mised thai a legacy by way of burden upon heritable estate might 
 
 instituted by implication from the terms of a deed of direct 
 conveyance, in the same manner as il would be held to arise under 
 a will or trust-settlement. Ami the case of an ordinary " fiduciary 
 
 i- an instance of an estate by implication which may arise upon 
 the terms of a dispo lit i I heritage.
 
 32S INTEKESTS ARISING BY IMPLICATION. 
 
 chapter xix. 636. So inflexible is the rule against implication in settlements 
 Estate by impli- °* heritable estate, that the interest of the heir cannot he excluded 
 cationnoi raised evei] j, v express words of exheredation. unless the estate is given 
 
 by merely ex- ■ ° 
 
 dudingthe over by a valid dispositive conveyance. (a) thus, where a testator, 
 " after declaring his intention of excluding his eldest son from the 
 succession to his unentailed property, conveyed his whole estates 
 heritable and moveable to trustees, in trust for the payment of cer- 
 tain provisions to his younger children, reserving a power, which he 
 never exercised, to dispose of the residuary estate, it was held that 
 this was a resulting trust for the heir, subject to the burden of the 
 special provisions, (b) 
 
 Recital of sup- 637. I. Implication from Kecitals. — Where a testator, under 
 
 [,' e ^ ue J t " x the erroneous supposition that he has bequeathed a certain subject 
 or interest, eitherby another will or by other provisions of the same 
 will,(c) refers to that bequest as an accomplished fact, and proceeds 
 upon the assurance of it to make other dispositions having relation 
 to the supposed legacy or legatee — such a recital, introduced as an 
 element of a scheme of disposition, is equivalent to a bequest, and 
 is effectual according to the implied will of the testator. This pro- 
 
 Grant v.Grant. position is established by the case of Grant v. Grant,(d) where the 
 point is raised very purely. The recital was contained in a codicil 
 or deed of alteration of a trust-settlement in these terms : " I, A. S., 
 &c, considering that by my deed of settlement I bequeathed to my 
 nephew, J. G., a sum of money, considered equal to the value of the 
 heritable property left to his brother A. G., and also the free residue 
 of my estate ; that since the said deed was executed my means have 
 accumulated considerably, and the value of landed property has 
 suffered and is likely to suffer depreciation ; I hereby recal the 
 bequest of the whole free residue of my estate, . . . and will 
 and appoint that after payment of all my debts, and the specific 
 legacies enumerated in my deed of settlement, the free residue, &c. 
 . . . shall be paid and delivered to my said nephews, J. G. and 
 A. G., in equal shares." None of the deeds previously executed by 
 the truster contained any bequest in favour of J. G. of a sum of 
 money equal to the value of the heritable estate given to his brother ; 
 
 (a) Blackwood v. Dykes, 26 Feb. 1833, of these, recitals can have no substantive 
 11 Sh. 443 ; and see 11 Sh. 699 ; Stoddart operation, but are only available in expla- 
 v. Thomson, 1734, Elch. " Succession," No. nation of what is obscure in the operative 
 1 ; Ayton v. Alisons Crs., 1742, M. 14,935. part of the instrument; per Lord Broug- 
 
 (b) Sinclair v. Traill, 27 Feb. 1840, 2D. ham in Mackenzie's Trs. v. A. Mackenzie's 
 694. Trs., 5 W. & S. 803. 
 
 (c) In this respect, as in may others, the {d) Grant, v. Grant, 1 March 1851, 13 D. 
 construction of wills is different from that 805 ; reported on another point, 8 D. 1077. 
 of deeds or contracts. In the construction
 
 INTERESTS ARISING BY IMPLICATION. 329 
 
 but it was held that the recital constituted an implied bequest of a chapter xix. 
 legacy of that value, payable to the legatee preferably and in addi- 
 tion to his share of the residue. 
 
 638. The case of M'GowanY. Jaffray{e) illustrates the principle M'Gowanv. 
 in its application to a recital of a gift erroneously supposed to be Ja $ rai J- 
 made in an antecedent part of the instrument. The granter, in his 
 marriage-contract, after making sundry special provisions, proceeded 
 
 as follows: " Moreover, the said W. J. hereby assigns, conveys, and 
 dispones his whole subjects, heritable and moveable, generally and 
 particularly before described, pertaining, or that shall pertain, or be 
 addebted to him at the time of his death, to and in favour" of the 
 children of the marriage. There was no antecedent general con- 
 veyance or description of the grantor's heritable and moveable sub- 
 jects, and the particular description embraced only a small part of 
 the heritable estate of which he died possessed. The clause, not- 
 withstanding, was held to constitute by implication an effectual 
 destination of the general residue in favour of the children of the 
 marriage. 
 
 639. But where the erroneous recital is a mere misdescription Distinction in 
 
 fn ii • i i Li-n i case of a mere 
 
 of a legacy actually given by a previously executed will — e.g., where misdescription 
 the testator recites that he has given a legacy to a person byname, bequest*' 1 * 1 
 while in the actual legacy he is only included inter ceteros in a de- 
 signative bequest, the legatee cannot therefore claim two bequests 
 of the same sum.(/) A testamentary disposition bearing reference 
 to a prior will, and incorporating its provisions, is not invalidated 
 by reason of its inaccurate description of that will or reference to it, 
 if the instrument is otherwise sufficiently identified.^) 
 
 640. The mere recital of a purpose or intention to make a par- Effect of recital 
 ticular provision, although uot followed by any actual grantor be- followed by an 
 quest in the dispositive part of the will, has in Mane cases been cs P ress e ift - 
 
 idered equivalenl t" an implied trust imposed upon the dis- 
 ponee, of which we have an instance in MearnsY. Mearns.QC) The 
 
 iter, " f or an Liferent and provision to the said M. L. and my 
 four child r<ii',' disponed and assigned certain estate "in favour of 
 il, i said ML L., with and under the provisions and conditions under- 
 written." It was found thai the four children were entitled to the 
 Ei e "i the estate in equal shares in severalty. And where a testator 
 conveyed the vmiversitaa of his estate to trustees, declaring that 
 
 if'Gotean y. Jaffray, 20 Julj 1842,4 the authority of Dathwood v. Peyton, 18 
 D. 1646. \ i i. 27. 
 
 (/) Maekenzu v. Bradbury, 84 L. J. Ch. (.</) Qrant't Trt. v. Grant, 2 Julj L862, 
 
 627, decided by Lord Romilly, U.-i;.. on 24 D. L211. 
 
 (h) Mearnt \. Mearru, 1 776, M. 13
 
 330 [NTERESTS ARISING BY IMPLICATION. 
 
 oHAPTBBxix. they should be accountable to his residuary legatees thereinafter 
 ~~ named, and the will contained no proper residuary clause, but indi- 
 cated an intention that the surplus estate should be divided amongst 
 the general legatees in the proportion of their legacies, it was held 
 that the residue was given to them by implication, (f) In dubio, a 
 wish will be understood to denote a present testamentary inten- 
 tion, rather than a declaration of what the testator intended to do 
 at some future time, or in some event different from that which 
 Effectofdis- has happened.(fc) One of the examples mentioned by Jarman,(7) 
 SJmHdof °f a g*ft implied from the declaration of a purpose, is the case of a 
 igiftand testator expressing an intention to make up a person's portion or 
 
 the gift itself. L ° . . . . . ., 
 
 fortune to a certain amount, m which case, if he gives an inade- 
 quate sum, the legatee is, notwithstanding, entitled to the full sum 
 requisite to raise*his fortune to the specified amount. In Ouseley 
 v. Anstruther,(m) a testator, on the narrative that under his settle- 
 ment his wife would have an income of £1560, directed his trustees 
 to add an annuity of £440, so as to raise his wife's jointure to £2000. 
 The income under the settlement being less than was supposed, 
 the wife was nevertheless held entitled to have it made up to 
 the specified sum of £2000. 
 Erroneous de- 641. From the cases in which a testator expresses, by way of 
 
 estate as the recital, a testamentary purpose (whether past or present) in favour 
 oot^q^aient'to °f a particular person, we must carefully distinguish those in which 
 
 a gift in his estate belonging to the testator is described in the will as the pro- 
 favour ° ° L 
 
 perty of another person, upon the erroneous supposition that he has 
 a right to it, not from the testator himself, but upon some other 
 title. In such cases it is quite plain that the description of the sub- 
 ject as the property of another person can never constitute an im- 
 plied bequest in favour of that person ; for there is no reason what- 
 ever to suppose that the testator would have given it to him, had 
 he known that it belonged to himself, (n) 
 Gift by impiica- 642. In the cases which have been cited, the implication is 
 .','",,„ purely inferential, being founded on modes of expression which are 
 • '-"-'- not capable of signifying a present testamentary purpose. There 
 is, however, a class of cases, generally referred to the principle of 
 implied will, in which a present purpose or intention is sufficiently 
 expressed, but the doubt is, whether the purpose be strictly testa- 
 mentary, as in the case of optative and precatory bequests, where a 
 
 (i) Seoular's Exrs. v. Scoular (First Divi- (m) Ouseley v. Anstruther, 10 Beav. 459. 
 
 5 Nov. 1867 ; not reported. Iu the converse case, of the income being 
 
 {k) Bannerman v. Bannerman, 1801, greater than the testator supposed, his 
 
 Hume, 130; D. of ' Queensberry v. Douglas, widow would have been entitled only to 
 
 30 April 1783, 2 Pat. 603. the £2000. 
 
 (I) 1 Jarman on Wills, 3d ed. 494. («) 1 Jarman, 490, and cases there cited.
 
 INTERESTS ARISING BY IMPLICATION. 331 
 
 wish or request addressed to a liferenter or trustee is interpreted chapter xix. 
 as a will. Some observations on this class of gifts will be found in 
 the preceding chapter.(o) 
 
 643. II. Implication from Destinations to other Legatees to Bequests contin- 
 take effect upon a Coxtingency. — The most characteristic exam- R&oSut 
 pie is that of a legacy given to take effect upon the death of a cer- or iu mil " "'"■''■ 
 tain person, or upon the death of a person without issue or in min- 
 ority. In the case first put, a strong presumption arises that the 
 
 person, on the event of whose death the legacy is contingent, was 
 intended to take a liferent ; and in the other case, that, in the alter- 
 native events, the person attaining majority, or the issue of the 
 person dying leaving issue, are intended to take vested interests. 
 
 644. It does not appear that any case has yet arisen in the Courts whether be- 
 of Scotland raising the cpiestion whether a gift of the life-interest So" A.'im- 
 maybe implied from a direction to dispose of the estate after the P lie sagift of 
 
 x the liferent to 
 
 death of a certain person. In the law of England a distinction has A. 
 been recognised in relation to real estate which seems to be well 
 founded. In the case of a devise to a person other than the heir, 
 payable at the death of A., it is held that a gift of the life-interest 
 cannot be implied, because the heir is entitled to the undisposed-of 
 succession, and it cannot be known that the testator did not intend 
 tlio rents to go to the heir during A/s life. But a devise to the heir 
 himself, on the death of A., will confer on A. an estate for life by 
 implication ; because the testator cannot, without gross absurdity. 
 Lpposed to moan to devise estate to his heir at the death of 
 another person, and yet that the heir should have it in the mean- 
 tine.-, which would render the devise nugatory. (/>) In relation to 
 persona] estate, the resulting rights of the personal representatives 
 do not appear to ho so much considered in the decision of such cases, 
 and the leaning in favour of a gift by implication is stronger. The 
 whole doctrine in relation to this subjecl was reviewed in the recent 
 case oi Ihimjihrci/H v. I[iinij>Iifrys,{<j) where a testator, after giving 
 certain Legacies and annuities, directed that, alter the death of his 
 wife, the remainder of his property (consisting of personal estate) 
 should lie equally divided anion-' hi- brothers and sisters, it living; 
 n dead, among his nephews and nieces. Vice-Chancellor Stuart 
 held that the reason of the rule laid down by Mr Jarman applied to 
 
 1 bapter 18. (q) Humphreys v. Humphreys, Lev Rep. 
 
 d. 197. 'I hi I Eq. Ca. 17"). 1 ! I by iho 
 
 observations of Lord Westburj in Pursell V.-C. as ruling authorities are Rot v.Sum- 
 
 I • Macph. ill. I..i 67, r< t, 5 Burr 2608, and Birdv. Huneden, 
 
 the circum tana 2 Sw. 8 12. 
 oi the ca • did no( ad I ion. 
 ■ I -
 
 332 INTERESTS ARISING BY IMPLICATION. 
 
 rnvnn; \ix. dispositions of personal estate, and decided that the widow took a 
 
 " life estate by implication. 
 Gift on death of 645. The ease of a destination over, in the event of A. (the in- 
 iiu'ih I 8: statute or primary legatee) dying without leaving issue, involves 
 issue take by , Ul , sl j 11]ls . fi rs * w here such a destination is preceded by a gift 
 
 implication. ' ■ . . 
 
 to the heirs of A. (i.e., to A. and his heirs), whether the gift is to 
 be held to be restricted by the subsequent words to issue or heirs 
 of the body; secondly, where there is no antecedent gift to heirs or 
 children, whether a gift to the children, or issue of A. is to be im- 
 plied. The first of these is the case of M'Eivan v. Pattison,{r) which 
 is elsewhere discussed, (s) The second question, it will be observed, 
 can only arise in very exceptional cases ; for, wherever the parents 
 are instituted to the fee, the right of the children will depend on the 
 application of the. conditio si sine liberis. Two cases, however, 
 have ocurred in modern times, where, the right of the parent being- 
 limited to a liferent, the fee was given over to strangers in the 
 event of the death of the parent without leaving issue ; and in both 
 cases it was held that a right of fee was conferred by implication 
 on the surviving children.(^) This construction, however, for the 
 reasons stated in the introduction to this chapter, seems to be inad- 
 missible in the case of settlements of heritable estate ; and accord- 
 ingly, where a proprietor, in his contract of marriage, bound himself 
 to tailzie his estate, failing heirs-male of the marriage, to certain 
 persons therein named, it was held that this implied no obligation 
 to provide the estate in favour of heirs-male, quia positus in con- 
 ditione non censetur positus in institutione.{u) 
 Gift on death of ^46. In the case of a destination contingent on the death of 
 whl'thTr'T' 13 ' anotner person in minority, the implication of a gift to that person 
 takes by impii- in the event of his attaining majority, is very obvious ; but the 
 
 cation. . , ° . . J , N 
 
 case, so tar as we aware, has not arisen m our courts.(#) 
 
 (/•) M'Ewan v. Pattison, 27 March 1865, 4 Macpli. 105. In England the tendency 
 
 3 Macph. 779. is to hold that the institute takes a vested 
 
 (s) Chap. 35, sect. 2. interest a morte testatoris, subject to he di- 
 
 (t) Douglas v. Douglas, 21 Dec. 1843, 6 vested in case of his dying without issue ; 
 
 D. 318, where an annuity was given to a Dowling v. Doivling, Law Rep. 1 Ch. Ap. 
 
 parent, and the reserved fund, " in the 612. 
 
 • rent of his decease without lawful issue," (u) Dimdas v. Dundas, 1706, M. 14,901, 
 to the testatrix's next of kin ; Campbell v. 4089 ; see the interlocutor, M. 4093. 
 Campbell, 2 Dec. 1852, 15 D. 173, where (x) Mr Jarman suggests (1. 510) that 
 estate was settled on the truster's daughter, this case is ruled by the principle of the 
 in terms which were held to import only decisions as to liferents, and that a gift 
 a life-interest, and " failing her by de- by implication only arises in the case of 
 cease, and without leaving lawful issue of the ulterior destination being in favour of 
 her body/' the fee was given over to the the testator's heir. But it must be con- 
 other daughters in succession. See also ceded that the reference to the period of 
 Sutherland v. Douglas Trs., 29 Nov. 1865, majority (which is the time usually chosen
 
 INTERESTS ARISING BY IMPLICATION. 333 
 
 647. Several cases of implication arising upon conditional des- chapter m, 
 Filiations are reported in the Dictionary, which may generally be Examples of im . 
 referred to the category of casics imnrovisus falling within the P lication from 
 
 . , ••ttttt-.-. ~ conditional gift 
 
 scope ot the provision. In Wedderburn v. Scrimgeour,(y) a tes- over, 
 tator, thinking his wife was with child, bequeathed certain move- 
 able estate to his son, in the event of a male child being born ; but 
 in the event of the child being a female (in which case probably 
 his existing son would have a larger share of the heritage), he 
 gave 5000 merks, part of the above fund, to a stranger legatee. 
 No child having beeD born, the legacy was notwithstanding held 
 effectual, on the ground that the testator was so much the more 
 able (and presumably the more willing) to pay it. Upon the same 
 ratio, the Earl of Cromarty having settled on his lady a certain 
 jointure, subject to be increased in case there should be "no child- 
 ren of the marriage wlio shall succeed to and enjoy the estate," — on 
 his being attainted, the Countess was found entitled to the larger 
 jointure, (z) In a more recent case, where a legacy was made pay- 
 able by P. M., one of the grantor's heirs, in case of Ms succeeding 
 to a certain estate, and it was also declared to be binding upon the 
 heirs and representatives of P. M., and P. M. did not succeed to 
 the estate, there was held to be no implied obligation on a re- 
 presentative who afterwards succeeded to apart of the property.(a) 
 
 648. Where distinct interests are given to two persons in the Survivorship not 
 same estate (e.g., liferent interests in severalty, or an annuity to Sof distinct 
 the one und the surplus income to the other), and the estate is s^e^^f 8 
 destined to other persons on their deaths, no liferent by implica- 
 tion accrues to the survivor in the estate taken by the predeces- 
 sor.^) Nor does the law of Scotland recognise any implication in 
 
 favour of after-born children From provisions of equal sums to the 
 children existing al the date of the settlement. (c) The subject of 
 
 for giving ;i vested i i element (/>) Pwsell v. Elder, 24 March 1805,3 
 
 nmption of an Maeph. ill. L.) 69 cm point), only one 
 
 intention to benefii tin- person whose ;ii- of the four points decided in this import- 
 
 of complete civil .mi ca i are reported by Mr M pieen, 
 
 ty is made the condition which is three-fourths of the Chancellor's speech 
 
 to determine the destination of the estate ; being suppressed. The Learned reporter 
 
 and the authorities cited by the learned ol ervi i I Macq. 922), thai "the points 
 
 author are advene to the opinion which are very plainly enucleated" in whal be 
 
 1 or of thai for profi ses to gi ve a the opinions of tho 
 
 which we cont< ad. Lords. Do( " i nucli ated" mean thai 
 
 Wedderburn v. ScrimgeouT, 1666, M. the nut tht kernel? 
 
 6687. (r) Anderson \. Anderson, 1784, 1 < 'r. 
 
 (*) Counteu of ( The < own, Si. & P. L86. On the qui tion of ■ 
 
 1764, M. 6601 . bj implical ion to a pi I bumou ■ child 
 
 '/ creiff v. Skene, 29 June 1825, 1 Oliphant \. Oliphant, 17'.' I. Bel] (Fol. I 
 
 W. AS. 672. 125, 6 Br. Sup. 648; Dempster r. \Uih
 
 cation i 
 
 of the income 
 
 334 INTERESTS ARISING BY IMPLICATION. 
 
 chai'tkb xix. implied conditional institution of children under the conditio si 
 ~ sine liberia t (d) and implied survivorship in joint destinations,^) 
 belong to a different department of the law of succession. 
 
 Doctrinecon- 649. III. IMPLICATION FROM GlFT OF A LlFE INTEREST WHERE 
 
 JJ^ the Feb is undisposed of. — In this class of cases, likewise, it is 
 necessary to distinguish the case of legacies of money from grants 
 of heritable estate. In the case of liferents of heritage, the favour 
 with which the law regards the right of the heir-at-law would, in 
 mosl cases, outweigh any implication that might be deduced from 
 expressions of personal regard to the liferenter, or other similar in- 
 dications of intention. 
 Whether ondis- 650. Where a legacy is given in the form of a direction to trustees 
 gi^enbykapii- to pay the interest of a fund without any special appropriation being 
 made of the capital, it is a question of intention whether the fee is 
 comprised in the description of the interest given. This, at least, is 
 the principle of construction followed in Scotland ; and the rule, that 
 a bequest of interest includes the principal, which is laid down by 
 English writers of authority, is qualified by the observation that the 
 construction must be consistent with what appears to be the inten- 
 tion of the testator. (/) In Sandersons Executors v. Kerr,{g) a 
 bequest of capital was implied from a direction to executors to in- 
 vest £2000 for the benefit of the testator's son and daughter equally, 
 and as to each of the shares, to pay the interest thereof, or apply it 
 to the use of his said son and daughter, subject to the declaration, 
 " that I leave it to my executors entirely in what manner to apply 
 these sums, whether to pay the same directly, or apply it and pay 
 it to others for behoof of my son and daughter." This case may be 
 compared with Bumsides v. Smith,(h) where a direction in nearly 
 similar terms was held to import only a discretionary power in the 
 
 son, 1799, M. 16,947. On the converse is considered so well settled, that in a re- 
 case, whether a provision for a postlin- cent case, where a testator gave his servant 
 raous child is effectual in case of the child the half-yearly interest of £1000 stock, with 
 being born before the death of the parent, a power of disposal (which would naturally 
 see White v. Barber, 5 Bur. 2703, and imply an intention to give a life interest 
 cases cited in 1 Jarman, 3d ed. p. 506. only), Sir John Romilly ruled that it was 
 (d) Chapter 39 (Conditio si sine liberis). an absolute gift to the legatee, " with a 
 (c) Chapter 40 (Survivorship). superadded power to dispose of it by her 
 (/) Williams on Executors, 6th ed. p. will, but which does not derogate or detract 
 1109; Roper on Legacies, p. 1475. To from the prior absolute gift;" Southousex. 
 this extent, at least, the doctrine appears to Bate, 16 Beav. 132. 
 
 have been fixed by Sir W. Grant's judg- (g) Sanderson 's Executors v. Kerr, 21 Dec. 
 
 ment in Page v. Leapingwell, that in the I860, 23 D. 227. 
 
 fa.se of a legacy of stock, " an indefinite (h) Bumsides v. Smith, 10 June 1829, 
 
 gift of the dividends gives the absolute pro- 7 Sh. 735. 
 I ■ rty of the stock" (18 Yes. 463-7). Tin's
 
 INTERESTS ARISING BY IMPLICATION. 335 
 
 trustees, which had become lapsed in consequence of the trustees chapter xix. 
 not having exorcised the power in the lifetime of the beneficiary. 
 
 651. In connection with this subject, the question has been pro- Effect of desti- 
 posed, whether, in the case of a life-interest being given to a legatee, aTd'fce'lw'' 1 
 subject to a destination over, if the testator revokes the destination ^e destination 
 
 ■ ■ i tp • of the fee is 
 
 over, the revocation will raise the life-interest to a fee ? We in- revoked. 
 cline to give an affirmative answer as to cases where the life-estate 
 is described in popular language, e.g., the interest of a certain sum, 
 or the use of a subject. (!) The cases in relation to destinations to 
 children nascituri, show that "liferent" is a flexible term,(m) and 
 there is no reason why it should not be construed as importing a 
 fee in other cases in which the intention to use the word in this 
 sense is sufficiently manifested. In Sharpe v. Sharpe's Trs.,(n) the 
 settlement was to a party in liferent, with a series of substitutions, 
 which failing, to the settlor's nearest heirs and assignees whatso- 
 ever. The settlor having afterwards revoked the substitutions, 
 Lord Jerviswoode held that the ultimate destination to heirs ami 
 assignees was a sufficient destination over to prevent the fee from 
 vesting in the liferenter; though, it will be observed, the destina- 
 tion was to the same parties who might have claimed the resulting 
 interest, had there boon no disposal of the fee. 
 
 652. The principle that the benefit of the revocation of the ul- Scott %. Sceaks. 
 terioT dost ination accrues to the liferenter, is, moreover, supported 
 
 by the recent decision of the Second Division of the Court on one 
 of the points in the case of Scott v. Sceaks.(o) A sum of £3000 
 was given by a trust-deed to a mother in liferent, and after her 
 death to her daughter, also in liferent. By a subsequently exe- 
 cuted codicil, the testatrix revoked the legacy to the mother ; it 
 was held thai the daughter in consequence toot an immediate life- 
 out, and that the income during tin.' mother's life did not become 
 I or fall into residue. 
 
 653. IV. [implication fbom Powers of Disposal and Division. General power 
 — "ii the question whether a liferent, with a power of disposal, SSlon™* 
 amounts to a gifl by implication of the fee. reference is made to a over , to default, 
 
 " x ' Win! Il> C 
 
 subsequenl chapter.Q?) The case of a liferenl by reservation with &mountin 
 the power of revoking the settlement, and otherwise disposing oftron. yim 
 
 (/) See remarks on Sanderson \. Kerr, y\tt< in liferenl coupled with ;i power of 
 
 i e chapter <;<> (Powers of Di 
 
 ubj< '-1. which i only indi- p". al). 
 
 connected with thai of the pri enl (o) Scott v. Sceales, 20 July 1865, o 
 
 chaptei fa»,chapter88 0. Macph. 1180. This, however, is rather the 
 
 I I- qui i to Children). conver e of thi case pui in 1 1 < . La i para 
 
 Sharpt v. 8har /' L8Feb. U 82 raph. 
 Belfragt \. Davidson's /v.., 7 Jan. 1862 
 (Lord J( i i iodi I. A to the i (Fed of a
 
 336 INTERESTS ARISING BY IMPLICATION. 
 
 ohapwbxix. the estate (although undoubtedly constituting a fee-simple estate 
 in the granter of the deed), is scarcely to be regarded as an estate 
 by implication, the true principle being, that the granter continues 
 to possess on his original title, and that the effect of the deed of 
 conveyance is suspended until it becomes irrevocable by his death. 
 A general power of disposal given to a liferenter, when followed by 
 a destination of the fee conditioned to take effect in case of the non- 
 exercise of the power, does not make the person to whom the power 
 is given a liar :(</) but it has been generally considered that such a 
 power, if unqualified in its terms, and including therefore the power 
 of alienation inter vivos, would, in the absence of any ulterior des- 
 tination, vest the estate in the donee of the power ; and, according 
 to the opinions delivered by the highest authority in a recent case, 
 the same effect is- to be attributed to a general power of disposal 
 without the grant of a liferent, which (in the view taken of the 
 moaning of the power) is obviously superfluous, (r) 
 whether a 654. Sometimes a power is given to trustees of selecting objects 
 
 general power of ^ prescribed class amongst whom a fund or estate is to be 
 
 selection vests •» i ^ i i o _ _ 
 
 an estate in the divided ; and trustees may also be empowered to grant provisions, 
 
 objects of the „ , ,. . . , ■, , , i i 1 
 
 power. or to fix the amount of provisions to be settled on a member or 
 
 members of the testator's family. The question cannot be said to 
 be yet determined, whether the grant of a power of this kind vests 
 by implication any absolute right in the persons or class of objects 
 in favour of whom it is intended to be exercised. Where the 
 class of objects is so extensive, and the discretion of the trustees so 
 wide that the trust may properly be described as one of a charitable 
 or eleemosynary character, the principles of administration of chari- 
 table trusts make the right so far independent of the action of the 
 trustees, that, in the event of the failure of the trustees, the trust 
 maybe administered under the authority of the Court by new trustees 
 appointed for the purpose, (s) 
 Effect of limited 655. In the case of a simple power of appointing a provision, 
 poinTmcnt ap " tnore i s some authority for the proposition that the gift is contin- 
 gent on the exercise of the power. In Bumside v. Smith,(i) a powder 
 
 {q) See chapter 00. the absolute owner ;" per Lord Westbury 
 
 (r) Fur nelly. Elder, 24 March 1865, 3 (distinguishing the case of a power given to 
 
 Macpli. (H.L.) 59: — "If an estate or a a married woman, wh ich was held not to vest 
 
 sum of money be given to an individual, the fee in the donee). Lords Cranworth 
 
 who is sui juris, without words of limita- and Kingsdown concurred. 
 
 tion, or a declaration of the extent of his (s) Dundas v. Dun-das, 27 Jan. 1837, 15 
 
 ownership, but with words indicative of the Sb. 427. See chapter 66 (Administration 
 
 intention of the testator that he should of Charitable Trusts), Section 4. 
 
 have the absolute jus disponendi, then, in (t) Bumside v. Smith, 10 June 1829, 7 
 
 any case, these words are to be taken as Sh. 735. 
 indicating an intention that he should be
 
 AND INTERESTS ARISING BY IMPLICATION. 337 
 
 having been given to trustees "in the event of their considering it chapter xix. 
 proper" to pay to the testator's niece a legacy of £1000, " at such 
 times and in such payments as they in their discretion might think 
 expedient/' it was given in evidence that the trustees had actually 
 resolved to pay the legacy, and had entered in their sederunt-book 
 a view of the trust-affairs wherein this legacy was entered, along 
 with debts and other legacies not dependent on their discretion, as 
 a deduction from the proceeds of the estate ; but that they had not, 
 prior to the death of the legatee, made an entry in their minutes 
 binding themselves to pay it. It was held, notwithstanding, that 
 the legacy became lapsed, and that it did not pass to the executors 
 of the legatee. This is a strong case against implying a becmest 
 from a power of appointment to be exercised by trustees, and per- 
 haps the extent to which the principle was there carried will pre- 
 vent it being regarded as an authoritative precedent. In a recent 
 case before the First Division of the Court, grave doubt was cast on 
 the doctrine that discretionary powers of this nature could not be 
 exercised except by the trustees themselves, and it was suggested 
 that the discretion given to the trustees might be held to relate 
 only to the time and manner of making the payment. (u) 
 
 656. It is well established in our law and practice, that a legacy Power of dm- 
 
 to a family or class of persons, to be divided in such shares as may StStfk 
 
 ■pointed by parents, trustees, or other persons, vests in the V 1 ? objects, in 
 
 i -,.,.,.. ., , delault of ese- 
 
 class, and gives by implication a right to each person to an aliquot cution. 
 part of the fund proportionate to the number of persons, in case of 
 the power of division being either not exercised at all, or being ex- 
 •\ in ;ni irregular manner. (a?) 
 656.* V. Implication from ( onveyances of the Legal Estate. Accessory sub- 
 — Tli.- general nil.' is well established, that subjects conveyed to SlVb^'aU,- 
 trustees, bu1 nol specially appropriated, result to the heir-at-law. (v) ,li . f ' ,ll "V lh " 
 
 mi ii i-i principal sub- 
 
 I be nil.', however, has been considered to admit of an exception in i cct - 
 the case of the undisposed-of subject being clearly accessory to, or 
 jsary to the enjoyment of estate, the purposes of which are de- 
 clared in th«j will. In such a case, the disposition of the beneficial 
 intereel in the principal subject may be regarded as carrying with 
 it a -in of thi try subject by implication.^) 
 
 ('/) Maekay \. Ewtng, In Julj 1867, >> (z) Arbuthnot v. Arbuthnot, 1766, .M. 
 
 Hacpb. 1004. 6810 (as to arrears ol interest due upon 
 
 Dallas, 27 June 1824, 2 8h. a bond); Gillespie v. Marshall, 1802, .M. 
 
 NT. E. 548 ; Stem v. Stem, 8 Dec. 1826, " AccesBorium," App. No. 2 (Interesi un- 
 
 6 8h. 101, N.E. 98; Watsons \. Marjori- di pi -1 of t" be accumulated with 
 
 17 ! L887, 16 Sh. 686; Jardine principal); Grant's Trs. v. Grant, 2 July 
 
 v. ./-//•<//„.. 22 Jan. I860, 12 l>. 504. Bee 1862, 24 l>. 1211, 4th point (Furnitun 
 
 chapter ''.'_• ) D :> bouse found to go with tin e tate t., the 
 
 I ; I- ' ' i Tro • heir under a tru I i ttli ment). 
 
 VOL I. v
 
 338 
 
 INTERPRETATION OF CONTRADICTORY 
 
 I'll.WTER XX. 
 
 CHAPTER XX. 
 
 INTERPRETATION OF CONTRADICTORY AND 
 DEFECTIVE PHRASEOLOGY. 
 
 I. Effect of Repugnancy in Wills. 
 II. Of Supplying Words. 
 
 III. Restoration of Defective Text in 
 Wills. 
 
 In cases of re- 
 pugnancy, the 
 subsequent pro- 
 vision held to 
 denote a subse- 
 quent intention. 
 
 SECTION I. 
 EFFECT OF REPUGNANCY OR CONTRADICTION IN WILLS. 
 
 657. Doubt is sometimes cast upon the intention of a testator 
 by reason of repugnancy or contradiction between the different 
 clauses or expressions of his will, though each part, taken separately, 
 expresses a definite and intelligible purpose. To the resolution of 
 such cases the ordinary rules of construction are evidently inade- 
 quate, and it is necessary to seek for some principle of interpretation 
 which will authorise the adoption of the one, and the rejection of the 
 other, of the inconsistent provisions. To avoid the necessity of sa- 
 crificing both provisions (which would be the consequence of treat- 
 ing the case as one of uncertainty), the rule has been admitted that 
 where two provisions of a will are totally irreconcileable, so that 
 they cannot possibly stand together, the last written, or that which 
 is posterior in local position, shall be considered as indicating a sub- 
 sequent intention, and shall prevail, if there is nothing in the con- 
 text or general scope of the instrument which leads to a different 
 decision : " cum duo inter se pugnantia reperiuntur in testamento 
 ultimum ratum est."(«) The rule is most appropriately applied to 
 the resolution of cases of conflict between the different clauses of a 
 will, because in such cases the position of the clauses in the instru- 
 ment may with some reason be held to correspond with the order 
 of development of the testator's intentions in point of time. The 
 rule, however, has also been applied to cases of inconsistency in re- 
 lation to expressions occurring in the same clause, (b) 
 
 (a) Morrall v. Sutton, 14 L. J. Ch. 266 ; (b) Doe d. Leicester v. Biggs, 2 Taunt, 
 
 1 Phil. 533, per Lord Wensleydale. 113, cited as authoritative in the case of 
 
 Morrall v. Sufton, 14 L. J. Ch. 266, 273.
 
 AND DEFECTIVE PHRASEOLOGY. 339 
 
 658. Notwithstanding the general recognition of the doctrine of chapter sx. 
 repugnancy, the cases are rare in which it is found necessary to have Words irrecon . 
 recourse to this ultima ratio of decision. Indeed the sacrifice of a eiieabie with 
 
 • general contest 
 
 clause ought never to be resorted to but on the failure of every at- may be rejected, 
 tempt by construction, and if necessary by transposition of words thV-ir P iocai pu'si- 
 or clauses, to deduce a consistent scheme of disposition from the tlon ' 
 whole instrument. And where, of two contradictory provisions, one 
 is consistent with the general scheme of the testator's dispositions, 
 and the other is at variance with it, that which is consistent with 
 the will ought to prevail, though it should be first in the order of 
 local position. " It is clear," says Jarman, in a passage cited with 
 approbation in a leading case,(c) " that words and passages in a will 
 which are irreconcileable with the general context maybe rejected, 
 whatever may be the local position which they happen to occupy ; 
 for the rule which gives effect to the posterior of several inconsist- 
 ent clauses must not be so applied as in any degree to clash or in- 
 terfere with the doctrine which teaches us to look for the intention 
 of a testator in the general tenor of the instrument, and to sacrifice 
 to the scheme of disposition so disclosed any incongruous words and 
 phrases which may have found a place in it." 
 
 659. Of the rejection of words inconsistent with the context, illustrations of 
 we have a simple illustration in the English case of Smith v. r ufes° reS °" 
 Pyhus.(<l) where an annuity was left to A. "for life, and after the 
 decease of A. to be divided equally between B. and C, to them and 
 
 their heirs, or the survivor of them, in the ord* r they are now men- 
 tioned'' Sir W. Grant, M.-E., rejected the last words, because 
 they had no sense or meaning; and he said the question was, 
 whether words which had a plain meaning were to be rejected for 
 i he sake of words of which you do nol sec the inc-ming y So also, 
 Lord Hardwicke, in the case of Boon v. Oornjfbrtk t (e) decided to 
 t words which had been inserted in a sentence by interlinea- 
 tion, and which were therefore presumably the last written, because 
 they were inconsistenl with and repugnanl to the whole disposi- 
 tions in the will ; and his Lordship thought he had do alternative 
 but thai of rejecting these words or the entire provision. 
 
 660. A case of a similar description (bul which may more pro- General rule 
 perly he referred to the category of transposition of clauses) is re- 1 !■'!'. •!i. r ' 
 ported in the Dictionary. II. M. disponed his heritable estate, fail- 
 ing heirs ol his body, "to and in favour of J. K. and Q-. M., his 
 brother's Bons, and the heirs-male to be procn at< d of their bodies, 
 
 (c) 1 Jarman on Will . 8d ed. p. 449, (rl) Smith v. Pybu . 9 v, , :,:r,. 
 adopted bj Coli J., in Mm mil v. Boon \ Co nforth, 2 V< -. en '-'77 
 
 Sutton, 1 1 L. J. I h. 278. 
 
 Y L'
 
 340 
 
 INTERPRETATION OF CONTRADICTORY 
 
 CHAPT1 w 
 
 Distinction 
 where destina- 
 tion in procura- 
 tory ca] 
 
 being treated as 
 supplementary. 
 
 ments 
 of heritable 
 estate, the dis- 
 positive clause 
 held to be the 
 ruling clause. 
 
 which failing, to S." lie then gave the estate to the two nomina- 
 tim institutes, jointly, in unequal shares. The question was, which 
 of the destinations regulated the succession of the share of one of 
 the institutes, who died without leaving heirs of his body. The 
 decision of the Courl was to the effect that S.,the substitute, could 
 n, .1 be served heir of provision to any part of the estate until the 
 failure of both the institutes and the heirs of their bodies, thereby 
 introducing the right of accretion (which was perhaps implied in 
 the subsequent joint-disposition) into the antecedent destination^/) 
 
 661. But where the discrepancy in the destinations does not 
 amounl to an absolute repugnancy or contrariety of meaning, the 
 clauses may sometimes be reconciled by holding the one to be sup- 
 plementary to the other: as, for example, where the dispositive clause 
 gave the estate to«J. S., and the executive clauses were in favour of 
 J. S. and the heirs-male of his body, this was held to be an effectual 
 nomination of the heirs-male of the body of J. S. as heirs of provi- 
 sion.^) For similar reasons, a destination in a procuratory of resig- 
 nation to a person and his heirs-male, was construed as supplemen- 
 1a IV to that of the dispositive clause, by which the estate was given 
 to the same person and his heirs ivhatsoever. (h) It may be observed 
 that, in the last-mentioned destination, the words "heirs whatso- 
 ever" would have no legal operation except that of vesting the estate 
 in the disponee ; hence there was no positive contrariety between 
 the clauses, and the heirs-male would come in as substitutes under 
 the procuratory, without displacing any other class of heirs, (i) 
 
 662. In the construction of dispositions of heritable estate, the 
 general rule is, moreover, liable to be controlled by the operation 
 of another general and salutary rule of construction, which is, that 
 in the case of a discrepancy involving contrariety of meaning be- 
 tween the dispositive and the executive clauses of the instrument, 
 the dispositive clause is the ruling clause in relation to the desti- 
 nation. This rule, and the generality of its application, are exem- 
 plified in the recent case of Youngs Trs. v. Young. (A') Here the 
 dispositive clause of a testamentary settlement contained a grant 
 in favour of the testator himself and the child or children of his 
 body, whom failing, to certain nominatim substitutes. The obli- 
 
 (/) Sutherland v. Murray, 1734, M. 
 14,931. 
 
 (g) Sutherland ^.Sinclair, 1801, M. "Tail- 
 zie," App. No. 8. The question arose on 
 the construction of the same settlement as 
 in the case of Sutherland v. Murray, supra. 
 
 (h) Halliday v. Maxwell, 9 June 1802, 
 4 I 'at. 346. 
 
 (i) This observation applies also to the 
 case of Maclauchlan v. Campbell, 1757, M. 
 2312, where the circumstances were simi- 
 lar, and the decision was also in favour of 
 the selected class of heirs. 
 
 {k) Young's Trs. v. Young, 19 July 1867, 
 5 Macph. 1101.
 
 AND DEFECTIVE PHRASEOLOGY. 341 
 
 gation to infeft was expressed directly and exclusively in favour of chapter xx. 
 the last mentioned persons, and on this ground it was maintained 
 that they were entitled, without serving heirs of provision, to take 
 infeftment as conditional institutes, in terms of the precept of sasine, 
 upon the death of the testator without issue. But in respect that 
 the dispositive clause conveyed the estate, in the first instance, to 
 the testator himself, thus making him the institute, a title made 
 up without service was held to he inhahile, and incapable of trans- 
 mitting any right. The most characteristic illustrations of the 
 rule are those in which the discrepancy hetween the clauses has 
 relation to the terms of the destination. Thus, where estate was 
 destined, by the dispositive clause, to A. and B. in conjunct fee and 
 liferent and to their son in fee, and in the precept of sasine war- 
 rant was granted for infefting the spouses simply in liferent and 
 to their son in fee, and the instrument of sasine was in terms of tin's 
 precept, the fee was held to be in the father. The disposition, as 
 regarded the father, was held to be a conveyance without precept 
 of sasine, and the sasine taken in favour of the son vested no right 
 in him, because the act of disposition was in favour of the father. (Z) 
 Again, where the dispositive clause of a settlement contained a des- 
 tination in favour of W. P. and the heirs-male of his body, and one 
 of the executive clauses was in favour of W. P. and the heirs of his 
 body (which last destination would have carried the estate to heirs- 
 general of the body), it was held that the dispositive clause over- 
 ruled the other clause, and excluded the heirs-general of the body 
 of W. P.(m) 
 
 663. A posterior clause or destination is not to be regarded as in- Effect oi omis- 
 consistenl with a prior destination merely by reason of the omission JStlSSS* 
 in it of some subsidiary righl previously given to another person by colhte m\ right 
 way ei restriction of the principal grant; because such subsidiary P" or e rant - 
 right, ii it ie doI expressly revoked, is effectual under the clause in 
 which it is constituted, and is held to qualify the subsequent dis- 
 position. The principle may be illustrated by the case of legacies 
 giveu in separate codicils, and w hich fall to be construed as if they 
 parts of the same testamentary writing. In a case of this nature, 
 where a testatrix bequeathed the liferenl of a fund to a lady, and 
 the fee to her children, and by a subsequently executed codicil be- 
 
 <|!|e;,thed the .nine Slllll of lllo||r V |n (lie . hildlVH directly, without 
 
 mentioning their mother's Liferent, bu1 without revoking the previ- 
 ous bequest, it was held thai the Liferenl bequesl was not revoked by 
 
 (/; Shanks r. Kirk-Session o/Oeret, 17'.»7, -1 Bh. 824, N. E. 881 ; and see Orahcm 
 
 M. 4295. Grahams, 20 June L816, P.O. ; I I J 
 
 m) Forrester*. Hutchison, II July 1826, 1826, I W. &, S. 868
 
 342 
 
 [INTERPRETATION OF CONTRADICTORY 
 
 in u-Ti i; w. 
 
 grantees take 
 concurrently. 
 
 implication, and that the subsequent legacy of the fund to the child- 
 ren must be taken by them subject to the burden of the liferent 
 interesl previously given to their mother, (w) 
 
 664 Kvi'ii in the seemingly irroconcilcable case of separate gifts 
 Under separate v ' ° ° . , 
 
 gifts of the same f (| u , s;ll iir subject to difi'crent persons in tee, a construction nas 
 
 been devised by which a testamentary operation is allowed to both 
 provisions. In cases of this kind, the rule has been established, as 
 explained by Lord Brougham in Sherrat v. Bentley, that the lega- 
 tees shall take concurrently. "If," said his Lordship,(o) "in one 
 part of a will an estate is given to A., and afterwards the testator 
 gives the same estate to B., adding words of exclusion, as ' not to 
 A.,' the repugnance would be complete, and the rule would apply. 
 But if the same thing be given, first to A., and then to B., unless it 
 be some indivisible chattel, as in the case which Lord Hardwicke 
 puts in Ulrich v. Litchfield, (p) the two legatees may take together 
 without any violence to the construction ; . . . though, had the 
 second gift been in a subsequent will, it would, I apprehend, work 
 a revocation." Another mode of reconciling gifts of the same sub- 
 ject to different persons is by treating the subsequent gift as a con- 
 ditional institution in case of the failure of the antecedent gift ; and 
 very slight evidence of intention would doubtless be sufficient to 
 support so reasonable a construction.^) 
 
 665. Other subsidiary rules recognised in England (where this 
 branch of the law has been more fully elaborated than with us) may 
 general; nor De more briefly noticed. It is justly held, that a general devise shall 
 curateiy describ- not, even at the expense of rendering it inoperative, be held to con- 
 trol a specific devise. A testatrix devised her lands at H. to A., 
 and by a subsequent clause gave to B. her copyhold estates at N. 
 and L. and elsewhere. Her only other copyhold estate was that 
 previously given to A. ; nevertheless, the disposition to A., although 
 first in order, was held good.(r) Again, a devise in clear and techni- 
 cal terms will not be controlled by expressions in a subsequent part 
 of the will, inaccurately referring to the devise in terms which, if they 
 had been used in the devise itself, would have conferred a different 
 estate or right, — the discrepancy in such cases being presumed to 
 
 1 March possible to say that there may not he such 
 an intention, and that the argument against 
 it is merely one ab inconvenienti. 
 
 (q) See on this point (though in the 
 events that actually occurred, the clause 
 was held to have the effect of a substitution) 
 M'Ewan v. Pattison, 27 March 1865, 3 
 Macph. 779. 
 
 (r) Borrell v. Haigh, 2 Jur. 229 ; see 
 also Greenwood v. Sutcliffe, 14 C. B. 226. 
 
 Special devise 
 or disposition 
 not controlled 
 
 (n) Ilorsbrvgh v. Ilorsbrugh, 
 1848, 10 D. 824, 2d point. 
 
 (o) Sherrat v. Bentley, 2 My. &K. 1G5. 
 
 \p) 2 Atk. 374. The propriety of the 
 alleged exception in the case of an indi- 
 visible chattel is cpiestioned by the editor 
 of Jarman on Wills, who remarks (1, 448) 
 that, though it may seem absurd that a 
 testator should give a horse or a watch to 
 i persons concurrently, yet it is im-
 
 AND DEFECTIVE PHRASEOLOGY. 343 
 
 arise from negligence in the transcription of the language of the chapter xx. 
 preceding part of the will.(s) Nor is a bequest, or the revocation 
 of a bequest, liable to be controlled or set aside in respect of a reason 
 assigned for it which is untrue in fact. (7) But there is a clear dis- 
 tinction between the recital of a cause of granting extrinsic to the 
 scheme of the testator's dispositions, and the recital of a supposed 
 antecedent bequest ; for, as is shown elsewhere, the recital of a sup- 
 posed bequest, when constituting in the mind of the testator a con- 
 dition of the disposition to which it is prefixed, is equivalent to a 
 depresenti gift of the subject.(w) 
 
 SECTION II. 
 OF SUPPLYING WORDS NECESSARY TO COMPLETE THE SENSE. 
 
 666. "Where it is apparent from the language of a will that the Rule confined to 
 testator has not accurately or completely expressed his meaning by passion inaccu- 
 the words he has used, and it is also apparent what are the words ^t^ethe* 
 that have been omitted, those words may be supplied in order to words to be 
 effectuate the intention as collected from the context. The supply- 
 ing words to complete the sense of a testamentary provision is a 
 
 task of great delicacy, and one which the Court is generally un- 
 willing to undertake from an apprehension of the danger of over- 
 stepping the just limits of judicial construction. The cases in 
 which resort is legitimately had to this artifice may be reduced to 
 a few general heads, and it is not likely that the principle will be 
 extended to cases of a different description. 
 
 667. The most obvious application of this method of construe- Ellipsis in a sen- 
 timi is in the case of a palpable ellipsis in the phraseology, where i!v U ,' r: miJ!,',iili,,n 
 the words necessary to complete the grammatical structure of the (™' t n the con " 
 phrase are found in an antecedent or subsequent member of the 
 sentence. Closely allied to this ease', but distinguishable from it, 
 
 is the case where a testator, having already provided for a certain 
 contingency, proceeds to declare what he will do in the event of 
 that contingency not occurring, but, in referring to the contingency, 
 omits to notice some elemenl in it. As, for example, where a legacy 
 i- given to certain persons and their issue, payable at majority or 
 marriage, and is then given over in ease any of the legatees shall 
 die before the period of payment. Here the context shows that 
 
 (») l Jarman on Will , 8d ed., 164, cit- and Bee 18 D.806; Speirav. Graham,18 
 
 tog, Doe d. Eatuon v. FyW«,Oowp. 888. Dec. L829, 8 Sh. 26 
 
 1 Jarman 4 recited ; ""■ '"' •' '" chaptei 10 
 
 Orani v Grant, 9 Jul; 1848 8 I' 1077, ,u,u " l
 
 :;i [ [NTEIiPRETATION OF CONTRADICTORY 
 
 ohaptkb \x the destination over is only to take effect in the event of the death 
 
 of the Legatee without leaving issue.(x) 
 i>, without 668. It is a more doubtful question whether the words "die 
 
 SSifiSS" without issue" in a destination over, admit of being construed in 
 mpmay be sup- ( ] u , Bense f dying without leaving issue. In one case the words 
 were in effect so construed ;(y) but more recently the Court has 
 refused to supply the word leaving, and has held that a destination 
 over, contingent on the death of the institute without issue, is eva- 
 cuated by the birth of a child, even though that child should not 
 survive its parent, (a) It may, however, be surmised that where 
 the words " without issue" and "without leaving issue" are used 
 indifferently in the same destination, and apparently in the same 
 sense, the word leaving may legitimately be supplied, for the pur- 
 pose of giving a consistent interpretation to the different parts of 
 the destination. 
 Restoration of 669. Another and a more questionable application of the prin- 
 
 wbSSSryCiple of rilling up an ellipsis is found in the Morgan succession 
 to make sense of case) ( a ) w here, in a bequest for the purpose of founding an hospital 
 or eleemosynary school, the word " hospital" was deleted (appa- 
 rently by mistake), and it was held that, as the bequest was in- 
 sensible without the word, and as no other word had been substi- 
 tuted for it, the word " hospital" might be restored for the purpose 
 of completing the sense of the passage. In a subsequent case this 
 precedent was followed by the Second Division of the Court, the 
 Morgan case being relied on as an authority for the restoration of 
 obliterated words when necessary to make sense of the passage. (b) 
 uppiied 670. Ambiguity, requiring the aid of remedial construction, may 
 ) Ve a ' X result from the omission on the part of the testator to state in which 
 of two given modes he intended his estate to be divided. In a case 
 of this kind, decided by Lords Eldon and Eedesdale,(c) resort was 
 successfully had to the context for the discovery of the words neces- 
 sary to complete the intention. The testator empowered his trus- 
 tees to divide the residue of his funds and personal estate among his 
 spouse, his three sons, and his three youngest daughters (naming 
 them), " the division to run thus, as nine to ten ; that is to say, for 
 
 (x) Many instances of this lapsus in a 30 July 1867, 5 Macph. H. L. 151 ; see p. 
 
 destination will be found in the reported 155, per Lord Colonsay. 
 
 s. The true construction is too obvious (a) Mags, of Dundee v. Morris, 1 May 
 
 to have ever been made the subject of dis- 1858, 3 Macq. 134. See Adv. -Gen. v. Smith 
 
 ion. (2d point), 1 March 1852, 14 D. 585. 
 
 i'//) Dennistoun v. Dalgleish, 22 Nov. (b) Chapman v. Macbearis Trs.. 10 Feb. 
 
 1838, 1 D. 69. 1860, 22 D. 745. 
 
 (z) Carleton v. Thomson, 3 Macph. 514; (c) Brodiex, Brodie, 26 March 1817, 6 
 
 Pat. 270.
 
 AND DEFECTIVE PHRASEOLOGY. 345 
 
 every ten pounds that shall fall to the share of each of my sons, my ohapteb xx. 
 spouse and three youngest daughters shall he nine." The question _ 
 was, whether fur every ten pounds drawn by each son the wife and 
 daughters were to draw nine pounds each, or only nine pounds among 
 them as a class. The Court of Session adopted the latter, the House 
 of Lords the former construction, — and upon what appears a satis- 
 factory ground, namely, that the introductory part of the bequest 
 announces a purpose to make a division amongst individuals, which 
 is equivalent to a division per capita, and that what follows is only 
 for the purpose of pointing out the proportions in which the objects 
 of this individual division are to take, and must be interpreted in 
 conformity with that purpose. Hence the bequest was construed 
 as if it read, " the shares of my spouse and three youngest daughters 
 shall ho nine pounds each."(d) 
 
 671. There is yet another class of cases in which the construe- Suppressed 
 tion may be aided by the insertion of additional words without piie^wirerere- 
 subjecting the will to a conjectural or arbitrary interpretation. We structoJonhe 
 refer to cases in which the testamentary provision is in an alterna- sentence. 
 tive form, but one of the alternative cases is suppressed, the means 
 
 of supplying it being furnished by the context. Thus, where a tes- 
 tator devised an estate A to his sister "for life, or, if she should 
 come into possession of an estate B," then over, it was held that in 
 order to render the sentence complete and sensible, the devise might 
 be read as a gift to the sister for life; and, after her death, or if she 
 should come into possession of the other estate, then to the person 
 substituted. (e) Eere the fact of the estate being given for life only, 
 clearly Bhowed thai the death of the tenant for life was the alterna- 
 tive event, the omission of which was indicated by the position of 
 the word "or." On a somewhal similar principle, it was held bySir 
 J. K. Bruce, \'.-< '., that a bequest to children, to bedh ided "on their 
 attaining their respective age or ages of twenty-one years if sons, 
 or if daughters on their marriage respectively," might be read as if 
 it bad been, "or, in the case of daughters marrying earlier, upon 
 marriage;" so thai the legacy should be payable al majority or 
 marriage, whichever of these events should first happen.(/) 
 
 672. To this ndo of construction the case of WQowan v. Jaf- Accumulative 
 frayig) may be assimilated (though if may also be viewed as'a SgSSSy^ 
 
 of implication from a recital). A husband, by bis antenuptial 
 contract, gave to bis wife in liferent certain small portions of his 
 
 ('/i Bee tli. terms of Hi- judgment, (/) Lang v. Pugh, 1 V. & C. < '. 0. 718. 
 ad theob ervations of Lord El- \g) M'Qowan v*Jqffray, 20 July 1842, I 
 
 don al the preceding page of the report. J>. 1646. 
 I ■ I v ■■ ' 6 ] I 186.
 
 : ;| ( ; INTERPRETATION OF CONTRADICTORY 
 
 ohapteb xn heritable property, and also an annuity payable out of his general 
 estate. He then assigned and disponed "his whole subjects, herit- 
 able and moveable, generally and particularly before described" per- 
 taining, or that should pertain to him at his death, to the children 
 of the marriage equally among them. There was no previous gene- 
 ral description of heritable subjects, and no description of moveable 
 subjects. The heir-at-law claimed the heritable estate, excepting 
 the subjects specially described, maintaining that the conveyance 
 to the children of the marriage was limited to those subjects. It 
 was clear, however, from the language of the clause of disposition, 
 that the granter meant to make two dispositions, — a general one 
 and a special one ; and it was accordingly held that the words in 
 italics ought to be read as a separate gift of the subjects particularly 
 described, and not as a'qualification of the antecedent disposition of 
 the general heritable and moveable estate. This construction re- 
 quires the insertion of the word "including" before the disposition 
 of subjects " generally and particularly before described."(A) 
 Result of the 673. It must always be remembered that nothing can justify 
 
 authorities on ^e insertion of words to fill up a blank in a will or settlement but 
 
 the supplying L 
 
 substantive the assurance that those words, and no others, are the words which 
 ments. the testator inadvertently omitted. This assurance would seem to 
 
 be attainable only (1) where the words proposed to be supplied are 
 found in the immediate context, and in a connection which neces- 
 sitates their repetition ; or (2) where, as in some of the recent en- 
 tail cases, a word or syllable is awanting, and the reading suggested 
 is the only one that will give a sensible meaning to the passage, (f) 
 It is not enough that there is only one reasonable or usual mode of 
 completing the passage, for the testator may have intended to make 
 an unusual or unreasonable disposition, (k) In the Hoddara entail 
 
 (h) We do not enter here on the con- (k) Still less is it permitted to supply 
 
 sideration of a class of cases of which the words in one provision for the sake of uni- 
 
 case of Ker v. Innes (5 Pat. 320) is a good formity with provisions in favour of other 
 
 example, where the words " heirs-male " persons similarly related to the testator, or 
 
 were construed "heirs-male of the body." similarly dealt with in his will in other 
 
 Such are not properly cases of supplying particulars. The case under consideration 
 
 words to clear up an obscurity in the text, must not be confounded with that of a 
 
 but are instances of proper construction of hiatus in a settlement consequent on the 
 
 technical language. Such cases must be physical destruction or wearing away of 
 
 sought for in other parts of the work, under the paper on which the instrument is 
 
 the special subjects to which they have re- written. This is not a question of con- 
 
 lation. struction, but a question as to the tenor 
 
 (i) Norton v. Stirling, 14 D. 944 ; 22 of what was actually written. In a recent 
 
 May 1855, 2 Macq. 205; Glassford's Tr. case of this sort, the Court refused to allow 
 
 v. Glassford, 7 July 1864, 2 Macph. 131 7 ; the insertion of words to make a clause of 
 
 Holmes and Campbell v. Cuninghame, 13 absolute warrandice, because it could not 
 
 Feb. 1851, 13 D. 689. be known whether the warrandice actually
 
 AND DEFECTIVE PHRASEOLOGY. 347 
 
 case, (7) a whole line was left out in the transcription of the irritant chapter xx. 
 
 clause of the entail, evidently by a clerical error, the effect of which 
 
 was that there was no subject to which the irritancy declared by 
 
 the clause could be applied. The passage, if restored according to 
 
 the correct st}de of such clauses, would have contained the words 
 
 " debts, deeds, and acts," — words which, if introduced into the deed 
 
 in the proper connection, would have made a valid entail. But as 
 
 there was no assurance that the granter knew how to make a valid 
 
 entail, or intended to make one, and as in many similar cases deeds 
 
 of entail had been declared ineffectual for no other reason than the 
 
 omission or imperfect expression of what was here proposed to be 
 
 supplied, it was justly held by the House of Lords, upon the advice 
 
 of Lord Brougham, that the blank could not be filled up in the way 
 
 proposed, and consequently that the entail was invalid. 
 
 674. Allied to this subject is the question (involving in some Of supplying 
 cases the supplying of appropriate words of relation) whether con- Zol. ° 
 ditions or other explanatory clauses are properly applicable to one 
 only, or to a series of antecedent provisions. Of this question we 
 have a simple example in the case of Ershine v. Williams, (m) where 
 a settlor having undertaken by antenuptial contract to make cer- 
 tain provisions for the younger children of the marriage in the 
 event of his succeeding to the whole of certain estates, or to any 
 part of his said estates of the yearly value o/£3000 or upwards, — the 
 question arose whether his representatives were bound to pay, see- 
 ing that the value of the whole estate was less than £3000 per an- 
 num. It was held that they were liable, because the proviso mak- 
 ing the payment conditional on the succession being of a certain 
 value was, in stricl construction, applicable only to the event of 
 the granter succeeding to a part of the estate ; and, as the context 
 showed thai he did not contemplate the possibility of the estates 
 being worth Less than £3000 in the aggregate, it was improbable 
 thai he Bhould have intended the proviso to apply to that contin- 
 cy. 
 
 675. An explanatory provision, when introduced in the form of a Proviso intro- 
 parenthesis, or contained in a participial clause, is generally under- thHilJiynp- 
 Btood to apply to the immediately antecedenl or subsequent mem- j£mS$" 
 ber "i the sentence. And conversely, the introductory words "de- "' "", ce: 
 
 u ' *> 81 cue « here em* 
 
 bodied in Bub« 
 1 i k< ii was absolute or from fad and 1" 1»> within the rule, omnia preaumuntur Btantive clause, 
 deed only. But where words rendered il- rtniter acta. 
 
 le by abrasion occur in b [I) Sharpev. Sharpe, 18 April 1886, 1 s. 
 
 style not admitting of variation in mean- & M'L. 694. Se< thi case cited, infra, \ 
 in;.-, we Bhould imagine thai there would 
 
 notbethi same difficulty in supplying the / km v. William ll Dec 1848, 
 
 ion, and tlirit thi case would be held 6 D. 226.
 
 348 INTERPRETATION OF CONTRADICTORY 
 
 i'iiai' r 
 
 daring," " providing," and "always" (which are generally used in 
 the sense of resuming the subject from its commencement), have 
 the effecl of making the proviso in which they occur qualify the 
 whole series of provisions which precede or follow it. This con- 
 struction is exemplified by the cases upon clauses in tailzied desti- 
 nations intended to prevent the division of the estate. Thus, where 
 an entailer disponed his estates to his son and the heirs-male of 
 his body; whom failing, the heirs-female of his body (the eldest 
 always succeeding, to the exclusion of heirs-portioners, throughout 
 the whole course of the succession); whom failing, to other heirs, 
 — the proviso was held, regard being had to its form and position 
 in the sentence, to apply only to the antecedent branch of the desti- 
 nation ; and heirs-female, designated in a subsequent branch of the 
 destination, were found entitled to take concurrently as heirs-portion- 
 ers. {n) A clause excluding the succession of heirs-portioners, and 
 declaring that the eldest heir-female shall succeed without division, 
 if it is introduced at the close of the destination, is prima facia ap- 
 plicable to the whole series of substitutions, and will even regulate 
 the succession of daughters who are not called as " heirs-female," 
 but as nominatim substitutes, (o) 
 illustration of 676. Reserving for consideration in another chapter a class of 
 
 onthe^ppUoa^ cases in which the most refined criticism has been brought to bear 
 prohibidons r uf l0 u P on the doctrine of the application of declaratory provisions to an 
 antecedent series (we refer to the question of the application of the 
 fetters of an entail to the prohibitory clauses), we shall at present 
 confine our illustration of the doctrine to a special case, where an 
 irritancy was held to be effectual by supplying words of relation, ob- 
 vious though not expressed in the passage. We may premise that, 
 with the exception of this case, irritant clauses in the form " all 
 which (or such) debts and deeds are hereby declared to be null," 
 have uniformly been held bad, on the principle that the relative 
 expression " such debts and deeds " has for its antecedent the last 
 member of the prohibitory clause, which, according to the custom- 
 ary style, is directed against debts and deeds whereby the estate 
 may be adjudged or evicted. (p) In the case of Hay v. Hay,{f) 
 however, the words of the irritant clause were " all which debts, 
 facts, and deeds," etc. ; and the question of the validity of the clause 
 depended on the construction to be given to the expression, which 
 facte. The word facts did not occur in any of the prohibitory 
 
 («) Mowatv. M-Culloch, 6 Feb. 1823,2 (p) Baillie v. Baillie (Mellerstain) , 12 
 
 Sh. 186, N. E. 106. D. 1220, and other cases cited in chapter 
 
 (o) Sivinfon's Tr. v. Sivinton, 10 Jan. 32, section 2. 
 1862, 24 D. 278. (q) Hay v. Hay (Ratines), 20 Dec. 1842, 
 
 5 D. 347.
 
 AXD DEFECTIVE PHRASEOLOGY. 349 
 
 clauses, so that, according to the strict grammatical construction chapter xx. 
 of the words of the irritant clause as they stood, there was no ante- 
 cedent to which the relative expression " which facts " would ap- 
 ply. But the phrase being clearly elliptical, and it Vicing clear what 
 were the facts to which the irritancy was intended to be applied, 
 the proper construction was given to the irritant clause by supply- 
 ing the word "prohibited" after "facts," which was thus made to 
 denote facts of the prohibited description, in accordance with the 
 obvious intention. 
 
 section in. 
 
 RESTORATION OF DEFECTIVE TEXT IN WILLS. 
 
 677. Under tin's title we propose to indicate very briefly the Limits of the 
 nature and operation of some of the more violent remedial measures sub J ect 
 which are occasionally applied to testamentary instruments, such 
 
 as the transposition of words and members of a sentence, the cor- 
 rection of errors in dates, numbers, and nomenclature, and the in- 
 version of the meaning of conjunctive and disjunctive particles. 
 The authorities, for the most part, are discussed in other parts of 
 the work, in connection with the special subjects to which they 
 respectively belong ; and our object at present rather is to general- 
 ise the results obtained from the separate discussion of cases which 
 are governed by common principles of construction. 
 
 678. it has been laid down that where a clause or sentence, Rule that clause, 
 otherwise Benselese or contradictory, can be rendered consistent Saftoshion, 
 with the contexl by being transposed, a court of construction is ma7 , [* trans " 
 warranted in making the transposition, (r) To the general propo- 
 sition stated in these terms no great objection can be taken; but 
 
 the cases musl I"' rare indeed in whirh a phrase, totally devoid 
 of meaning in the connection in which it stands, can be rendered 
 sensible, and consistenl with the probable intention, by transposition. 
 Accordingly, it will be found that the cases to which .Mr Jarman 
 refers, in illustration of this doctrine, are either simple cases of mis- 
 nomer in which a double mistake has been committed (i.e., putting 
 A. for I'... and I!, for A..), or cases whi re the transposed member of 
 the sentence really had a meaning (it may be, an unreasondbh 
 meaning) in the position in which it stood in the will, and where, 
 therefore, the rule was no1 properly applicable, (s) 
 
 (r) I Jam no Will 8 I • d, 166, and plication of the rule, the effect, if not the 
 
 authoritie there cited. motive of the trail position, being Bimply 
 
 (a) The ca 1 of Doe d. Alcock, 1 B. & to substitute a probable and reasonable for 
 
 AM. 18* anted out by the learned an unreasonable but di tinctly 1 p I 
 
 author, a palpable instance of the misap- Bchemeof disposition; seel Jarman, 467-8.
 
 350 
 
 INTERPRETATION OF CONTRADICTORY 
 
 CHAPTKB \\ 
 
 position 
 ti.illv b eonj< 
 ton] remeoj 
 
 G79. A clause may, of course, be legitimately read into, or con- 
 strued as part of a prior or subsequent clause, in virtue of proper 
 
 Doctrine of . . . .. ..-i ,-i , i ,i 
 
 transposition words of reference incorporating it with that clause ; as m the case 
 " i: s ' r ;r~ where a testator dispones his estates to A. and the heirs of his body, 
 and in a subsequent part of the deed gives the estate over to B. in 
 the event of A. dying without issue.(0 Here the substitution is 
 incorporated by reference with the primary disposition; and the 
 i r,i imposition implied in reading the clauses in connection with each 
 other, is only an expansion of the meaning expressed by the words 
 of the will as they stand. The kind of transposition with which we 
 are at present concerned is one which is not required either by the 
 grammatical construction, or by the effect of words of reference, but 
 is simply a conjectural restoration of the text of the will, by trans- 
 posing its words.. This is obviously a very hazardous remedy, be- 
 cause the same words may, by a series of transpositions, be made 
 to express a great variety of meanings, of which not more than one 
 can possibly be the genuine meaning of the testator. In almost all 
 cases of insensible provisions, whether in wills or deeds, the cause 
 of the obscurity is either the accidental omission of material words, 
 or the interpolation of words extraneous to the sense of the passage; 
 and, in the last-mentioned case, it would appear that the safer course 
 is to reject the extraneous expression altogether, rather than to place 
 it in a different part of the sentence, where, indeed, it may have a 
 meaning, but a meaning never contemplated by the testator. 
 
 680. Errors in relation to dates, numbers, and nomenclature 
 are of two kinds, — errors of transcription, proved to be such by the 
 correct name or number being found in other parts of the deed ; 
 and cases of misnomer or miscalculation on the part of the testator. 
 The correction of errors of the former class involves no peculiar 
 principle of construction. Numerical errors, the result of misap- 
 prehension or forgetfulness on the part of the testator (or assumed 
 to be so, from the deed containing no evidence to the contrary) are 
 in general only important when they relate to the quantity of the 
 estate or interest disposed of, or to the number of a class of persons 
 who are the objects of the disposition. Errors or ambiguities in 
 the specification of the contents or value of an estate (V) do not 
 affect the disposition, if the estate is given as a whole and is suffi- 
 ciently identified. "Where a testator gives a greater number of 
 articles than he possesses, the construction is given by the prin- 
 ciple of the lecjatum rei alienee. Where the articles are scienter 
 
 Correction of 
 errors in dates, 
 numbers, and 
 nomenclature : 
 
 mistranscription 
 or misnomer. 
 
 (t) M'Ewen v. Pattison, 27 March 1865, 
 3 Macph. 779. See the Lord Justice- 
 Clerk's observations on this point, p. 795. 
 
 (u) Erskine v. Williams, 14 Dec. 1843, 6 
 D. 226 ; Dewar v. Kirk-Session of Torrybum, 
 13 March 1864, 2 Macph. 910.
 
 AND DEFECTIVE PHRASEOLOGY. 351 
 
 legatee, the testator's representatives are under an obligation to chapter xx. 
 purchase them or to give an equivalent. The subject of errors and 
 ambiguities in the specification of the number of persons of a class 
 is treated in connection with destinations to children ;(x) and the 
 question of the identification of the subject and objects of a gift 
 when erroneously or insufficiently described, which (except in the 
 case of proved errors of transcription) alwa} r s depends on evidence 
 extrinsic to the deed, is discussed in a chapter specially relating to 
 that topic, (y) 
 
 681. Another mode of restoration of a defective text remains to changing words: 
 be noticed, which consists in the substitution of one word for an- meaning 1 sug- ew 
 other, or — what is the same in effect — the giving to a word a mean- gest t e ^ t by the 
 ing different from its received meaning. We do not enter here on 
 the construction of words of flexible meaning, or on the rule so 
 frequently applied, that if in one part of a deed the meaning of a 
 word is clear, and in another part of the deed it is doubtful, the 
 doubtful passage is to be interpreted according to the meaning in 
 the passage that is not doubtful, (z) A large portion of this work 
 is devoted to the exposition of the construction of terms descriptive 
 of persons, as heir ami institute, executors and next of kin, children 
 and issue, daughter and heir-female ; or of things, as heritable and 
 moveable, fee and liferent, estate, interest, and the like. Here we 
 are concerned only with the construction of words in a non-natural 
 sense, either for the purpose of giving effect to intention deduced 
 from the tenor of the instrument, or for the purpose of making- 
 sense of a phrase which, as it stands in the deed, is insensible. Of 
 such a construction deduced from genera] intention we have a 
 striking example in the case of Houston v. Nicolson,(a) where an 
 estate being settled on Lady Eouston, as institute, ami certain heirs 
 <>(' tailzie ami provision, it was declared " that the said Lady Hous- 
 ton. //< /• A- ir8 of tailzit . shall have power, each of them, to provide 
 their respective husbands and wives in a competent liferent out of 
 the foresaid estate," and it was held that this power might be exer- 
 cised by I!" institute. 
 
 682. The principle according to which words maybe changed words not to be 
 for the purpose "I' giving a sensible meaning to the passage, ami l,!'; 1 '^' 1 ,,''',' s^. 
 the limits of its application, may be deduced from a comparison of the *jXj] ",',',,"""*' 
 of Eglinton \. Montgomerie(b) and Norton v. Stirling. (c) In Moritgom 
 
 (x) Chapfc the case of Ertkine, petr., 2 Fi b. I860, 12 
 
 (>/) (li.pi. t 21. I». 649. 
 
 (z) Bee the role stated in Dicky. Dryt- (/>) EgUnton v. Montgomery [Bourtree- 
 
 dale, M Jan. L812, F.C. (p. I hill ca e), 7 l». I26,and 9 l». 1167 ; 8 July 
 
 //■ on, IT".''.. M. 2888, 1847, 6 Bi U, L86, 
 
 referred to and treated as authoritative in (e) Norton \. Stirling, It D. 944 ; 22 
 
 May W,r,, 2 Macq. 206
 
 [INTERPRETATION OF CONTRADICTORY 
 
 .11 Ml, \\ 
 
 the BourtreehiU case, the objection to the deed of entail was, that the 
 
 prohibition against alienation was directed against selling, alienat- 
 ing, etc., "either redeemably or under reversion." It was argued 
 thai the common form was " irredeemably or under reversion," and 
 that the omission of the negative particle " ir" was a patent cleri- 
 cal error. But it was held in the Court of Session, and afterwards in 
 the Eouse of Lords, that there was no such incongruity or absurdity 
 in the prohibition of redeemable sales as would entitle the Court 
 to alter the Language ; that there was a sensible meaning attributable 
 to the phrase, and that construction was not admissible for the 
 purpose of converting the word " redeemably" into " irredeemably." 
 In Norton v. Stirling, the objection was that the irritant clause, as 
 engrossed in the Kegister of Tailzies contained the introductory 
 words, " In case the said J. S. or" etc., " shall fail to neglect or obey 
 or perform the said conditions or provisions or any of them," instead 
 of " shall fail or neglect," This error was held to be remediable by 
 construction ; first, because there were words in the antecedent part 
 of the sentence directed against contravention ; and secondly, and 
 chiefly, because the expression " fail to neglect" was insensible as 
 it stood, and because there was only one way of correcting the mis- 
 take so as to make sense of the passage, namely, by substituting the 
 word " or" in the place of " to." The case was contrasted with that 
 of Hoddam,{d) as to which it was observed that there were twenty 
 ways in which the blank in the sense might be filled up, and a 
 Court could not undertake to fill up the blank in a way that would 
 constitute a valid entail, (e) 
 "Or" changed 683 - ^ ut tlie most characteristic example of the restoration of 
 
 «m5d" dohV» v°i a P assa g e Dv substituting one word for another, is the changing of 
 "or" into "and" in contingent destinations, in cases where vio- 
 lence is done to the meaning by the negligent use of the disjunctive 
 particle. The cases are of this nature : Where a disposition or be- 
 quest is made contingent on the occurrence of either of two events 
 (as in the case of provisions payable at majority or marriage) the 
 grantee will necessarily acquire a vested interest if only one of the 
 conditions is purified, e.g., if he attain the years of majority, though 
 without being married. The proper alternative to the condition of 
 such a destination is, that neither of these events should happen ; 
 and accordingly, where there is to be an ulterior destination con- 
 tingent on the failure of the first, the contingency must be express- 
 ed 80 as to negative both the specified events, e.g., in the case sup- 
 posed, the destination over would only take effect consistently with 
 the primary destination, in the case of the institute dying without 
 
 (<f ) Sharpe v. Sharpe, 1 S. & M'L. 594. (e) 2 Macq. 213-215. 
 
 nu-amii2
 
 AND DEFECTIVE PHRASEOLOGY. 353 
 
 attaining majority, AND without being married. But by a confusion chapteb xx. 
 of ideas, analogous to what is apt to occur in changing the signs of 
 an algebraic formula, the testator is not unfrequently made to give 
 over the fund in the event of the institute dying without attaining 
 majority or being married, the effect of which (if literally construed) 
 is to deprive the institute of the vested interest previously given, 
 and to make the gift contingent as long as he remains unmarried. 
 In order to reconcile the several parts of the destination, the rule of 
 construction was established at an early period in the history of this 
 branch of the law, that, in such cases, the word "or" should be 
 changed into "and." 
 
 684. The case of The Earl of Home v. Bothivell, in which the Death "without 
 principle was first recognised, is thus reported by Elchies:(/) A "ity"" 'f, h^ ' ~ 
 bond of provision to a brother and two sisters w r as payable at their marned " 
 mothers death, or their own majority or marriage, whichever of them 
 
 should first happen, provided that if either of them died before mar- 
 riage or majority, the one-half of their portion should accresce to 
 the survivors. One of them long survived the age of twenty-one, 
 but died before marriage, and therefore the Lord Ordinary found 
 that the substitution still subsisted, because she died before one of 
 these events, viz., marriage. "But," says the learned reporter, 
 " we altered the interlocutor, and thought the particle "or" was 
 here meant conjunctive, and that marriage alone would have put an 
 end to the substitution, though she had not been major; and, for 
 the same reason, we found that her majority determined it, though 
 she was not married." 
 
 685. The construction here recognised w r as not uniformly ad- Construction 
 hered t.>. mid was only finally established by the judgmenl of the ^Houafof* 
 Eouse "i Lords in Grant v. l)ijer{<j) where the point was raised on J:"^/!' '' 
 
 v. Bothwdl, 1747, three instances among the reported cases ; 
 
 ," No. 11 ; M. Imt in none of them was there any notice 
 
 traction of the word taken of the peculiarity. The i 
 
 "or," in tin' case of a contingent or exe- Campbell v. A'./-/. 12 June 1840, '_' D. 1084; 
 
 cutory limitation over lias been establish- Wr'njlii v. Ogilvie, 9 July 1840, 2 D. 1357, 
 
 ed in England, and on the same ground, boi p. 1368; ami Stewart v. Stewart, 17 
 
 ire fully discussed in 1 Jarman July 1851, 18 D. 1887. In thelastofthe e 
 
 on Wills, 8d i '1. p. 171 cases, the destination over was made cou- 
 
 fy) Or ant i. Dyer, 1818, 2 Dow, 78. On tingent on the death of the truster's child- 
 
 the general con traction of the word " or," ren in minority or without ehildn n tun ii ing 
 
 / onv.Stew' them, words which would prevenl theinsti- 
 
 • i B8i tf.E. 890, Th( do tak< of tute from ever takin 
 
 'or" for ••and" in a d( it could not be known until their r< 
 tination over, contingent on the failure of specti ■ aether any of tbem would 
 tin- institute without attaining majority, be survived by his or her children. Bnch 
 and without being married, o conveyancers the import- 
 modern settlement ,ofwhicl ' oted race of attending el ely tothemeanin 
 VOL l. /.
 
 35 t [NTERPEETATION OF PHBASEOLOGT. 
 
 chaftrb xx. the interpretation of a bequest to the testator's son, payable on hia 
 arriving a1 the age of thirty-one, or being married, but declared to 
 fall into the residue if he should die under thirty-one or unmarried; 
 ;Ul , I i, was held (reversing the judgment of the Court below) that 
 the legatee took a vested interest on his attaining the specified age, 
 though unmarried , — the word "or" in the gift over being allowed 
 to he read as if it were " and." 
 Death "within 686. The case of Campbell of Jura, (A) which is commonly cited 
 JTwithJutYeirs as an authority for the conjunctive construction of the word " or," 
 is not so easily brought within the rule which authorises the con- 
 version of words to obviate obscurity or inconsistency in a testa- 
 mentary provision. In this case it was provided by a contract of 
 marriage " that, if the marriage dissolved within year and day after 
 the solemnization thereof or without heirs procreate and existing 
 of the same," then the tocher should return to A. C, the wife's 
 father. A son was born of the marriage, but he predeceased his 
 mother, who died after the marriage had subsisted for two years. 
 It was held, chiefly, as we infer, on the ground of the improbability 
 of the condition being intended to operate during the whole period 
 of the marriage, irrespective of its duration, that the tocher did 
 not return ; the condition being read as if it were applicable to the 
 contingency of the dissolution of the marriage within year and day 
 and without a child existing at the period of dissolution, (i) 
 Examples of the 687. The conjunctive construction of the word "or" has also 
 smSn of C ° n been admitted, merely in respect of the general intention and pre- 
 sumed object of the provision in many decided cases in the English 
 courts, of which we shall only cite one example, — referring to Mr 
 Jarman's admirable work for a fuller exposition of the development 
 of this branch of jurisprudence. This was a case of a devise to a 
 person for life, subject to the condition, that if he should intermarry 
 with any woman not having a competent fortune, or without the 
 consent of trustees, the estate should not vest. The devisee mar- 
 ried a woman with a competent fortune, but omitted to obtain the 
 consent of the trustees, and it was held that the estate vested upon 
 the performance of either part of the condition. (&) 
 
 words in that most difficult province of allowed to prevail. This construction was 
 
 their art, the drafting of contingent des- followed in the recent case of Murray 's 
 
 tinations. Exrs. v. Murray, 31 Jan. 1868, where a des- 
 
 (h) Campbell v. Campbell, 17 57, M. 2991. tination over, in case of the legatee marry- 
 
 (i) Compare this case with the earlier ing without the consent of curators, was 
 
 decisions in Baillie v. Somerville, 1677, and held to he limited in intention to the period 
 
 Nicolion v. Oswald, 1712, M. 2987, where of minority. 
 
 the strict, and, as we think in these cases. (k) Long v. Dennis, 4 Bur. 2052. 
 
 correct construction of the conjunction was
 
 OF EXTRINSIC EVIDENCE IN EXPLANATION OF WILES. 355 
 
 rnM'TFi! xxi. 
 
 CHAPTEE XXI. 
 
 OF EXTRINSIC EVIDENCE IN EXPLANATION OF 
 TESTAMENTARY WRITINGS. 
 
 688. The present chapter is confined to an exposition of the rules Limits of the 
 of law which determine the conditions under which extrinsic evi- chapter. 
 dence is received in aid of the interpretation of testamentary instru- 
 ments. It has been justly observed that the subject is only a 
 branch of the general system of rules which have been established 
 
 for the correct interpretation of wills, and that its application can 
 only be properly understood when it is treated in subordination to 
 the system of which it forms a part.(o) The present work, how- 
 ever, is to a large extent devoted to an exposition of the principles 
 of construction in their application to questions of testamentary 
 succession ; and for our purpose, it will not be necessary to inter- 
 rupt the course of our observations by the consideration of any 
 questions pertaining "to the general doctrine or principles of con- 
 struction.^) 
 
 689. The admissibility of extrinsic evidence in aid of the inter- Dm^n of the 
 pretation of wills depends (as is implied in the statement of the sujec " 
 question) upon the special purpose for which it is proposed to be ad- 
 duced. The cases in which such evidence is competent and admis- 
 sible may be thus classified : (1) For the purpose of enabling the 
 
 Court to bead the Will; (2) For the purpose of [dentifying the 
 us and things named in the Will, and especially those which 
 
 are the Subjects or the Objects of the disposition ; (3) For the pur- 
 ol giving a Special Meaning to the words of the will, in cases 
 
 where these words (if taken in their strid and primary sense) are 
 
 Wigram on the Admissibility of Ex- i liable to be affected by a variety of ele- 
 
 lence, 4th ed., p. 9. menta [e.g. t u ity, ret interven- 
 
 (/,) [t has also been con idered expedi- tut which do not enter into the con ider- 
 
 eiit not to embarra the di cu ion with ation of the question in n lation to 
 
 illusti • n from the law of inter- On thi ibjecl 
 
 bich the qnes- made to D i I , 2d ed. pp, 
 
 tmn of thf reception of extrin uc evidi wo l lo l 7'). 
 
 z 2
 
 356 
 
 OV i:\TKlNSIC EVIDENCE IN EXPLANATION OF WILLS. 
 
 .'II W'H B XXI 
 
 | 1 ) Transcrip- 
 tion : (2) Trans- 
 lation; 
 
 ion of 
 terms; I I Ex- 
 planatioD of 
 foreign law. 
 
 insensible with reference to extrinsic circumstances; (4) For the 
 purpose of proving the Testator's Knowledge of material facts, 
 where, by any rule of Law, such knowledge is a legitimate element 
 of construction; (5) For the purpose of supporting a bequest in 
 contradiction to the presumption against Double Provisions ; and (6) 
 For the purpose of proving the Particular Intention, where the will 
 contains words of description which are applicable indifferently to 
 more than one person or thing.(c) 
 
 690. I. Evidence for the Purpose of Enabling the Court to 
 
 Read the Will. — For this purpose the Court may require — (1) a 
 
 (r) For convenience of reference we here any popular or secondary sense, of -which, 
 
 transcribe the Seven Propositions of Sir 
 James Wigram, V.-C, upon which the 
 theory of exposition of that eminent au- 
 thor is founded. The work, it need scarcely 
 be added, has attained a very high degree 
 of authority, and its conclusions have in 
 the main been accepted by the legal pro- 
 fession. The propositions are as follows : 
 
 "1. A testator is always presumed to 
 use the words in which he expresses him- 
 self according to their strict and primary 
 acceptation, unless from the context of the 
 will it appears that he has used them in a 
 different sense ; in which case, the sense 
 in which he thus appears to have used 
 them will be the sense in which they are 
 to be construed. 
 
 " 2. Where there is nothing in the con- 
 text of a will from which it is apparent 
 that a testator has used the words in which 
 he has expressed himself in any other than 
 their strict and primary sense, and where 
 bis words so interpreted are sensible with 
 reference to extrinsic circumstances, it is an 
 inflexible rule of construction, that the 
 words of the will shall be interpreted in 
 their strict and primary sense, and in no 
 other, although they may be capable of 
 some popular or secondary interpretation, 
 and although the most conclusive evidence 
 of intention to use them in such popular 
 or secondary sense be tendered. 
 
 " 3. Where there is nothing in the con- 
 text of a will from which it is apparent 
 that a testator has used the words in which 
 he has expressed himself in any other than 
 their strict and primary sense, but his 
 so interpreted, are insensible with 
 reference to extrinsic circumstances, a 
 Court of Law may look into the extrinsic 
 circumstances of the case, to see whether 
 the meaning of the words be sensible in 
 
 with reference to these circumstances, 
 they are capable. 
 
 " 4. Where the characters in which a 
 will is written are difficult to be decipher- 
 ed, or the language of the will is not under- 
 stood by the Court, the evidence of persons 
 skilled in deciphering writing, or who un- 
 derstand the language in which the will is 
 written, is admissible to declare what the 
 characters are, or to inform the Court of 
 the proper meaning of the words. 
 
 ." 5. For the purpose of determining the 
 object of a testator's bounty, or the subject 
 of disposition, or the quantity of interest 
 intended to be given by his will, a Court 
 may inquire into every material fact re- 
 lating to the person who claims to be inter- 
 ested under the will, and to the property 
 which is claimed as the subject of disposi- 
 tion, and to the circumstances of the testa- 
 tor, and of his family and affairs, for the 
 purpose of enabling the Court to identify 
 the person or thing intended by the testa- 
 tor, or to determine the quantity of inter- 
 est he has given by his will. 
 
 " The same (it is conceived) is true of 
 every other disputed point, respecting which 
 it can be shown that a knowledge of ex- 
 trinsic facts can, in any way, be made an- 
 cillary to the right interpretation of a tes- 
 tator's words. 
 
 " 6. Where the words of a will, aided by 
 evidence of the material facts of the case, 
 are insufficient to determine the testator's 
 meaning, no evidence will be admissible to 
 prove what the testator intended ; and the 
 will (except in certain special cases; see 
 Proposition 7) will he void for uncertainty 
 
 " 7. Notwithstanding the rule of law, 
 which makes a will void for uncertainty, 
 where the words, aided by evidence of the 
 mater la l facts of the case, are insufficient
 
 OF EXTRINSIC EVIDENCE IN EXPLANATION OF WILLS. 357 
 
 correct transcript of the will into legible characters ; (2) a transla- chapter -m. 
 tion of it ; (3) an explanation of terms of art used in it ; and (4) ~~ 
 an exposition of any rules of foreign law affecting its interpretation. 
 Information of this description is evidence of the contents of the 
 will. (5) Evidence, moreover, is sometimes required for the pur- 
 pose of establishing that the document propounded is in fact the 
 testator's last will, or a part of it. 
 
 691. (1) Transcription of the will may either be of the whole, as Words illegibly 
 where it is written in a foreign character, or of particular words ^^' or obh " 
 which are either illegible, or erased, or written in cypher. Evidence 
 of what the characters are or were, or of what they denote, will be 
 admitted according to circumstances. We have selected an illus- 
 tration applicable to each of the cases. In Goblet v. Beechey,(d) Gnhli , tv 
 the testator, who was a sculptor, bequeathed to the plaintiff " all Beechey. 
 the marble in the yard, the tools in the shop, bunkers, mod. tools 
 for carving," etc.; and the question was. whether the syllable mod. 
 (which was at t he end of a line, and apparently part of an unfinished 
 word) denoted models, which were works of art of considerable 
 value, or was to be read in conjunction with the next word, as 
 " modelling tools." In the original codicil, the letters mod. were 
 followed by a small mark, which was alleged by the one party to 
 be the letter " s," and by the other to lie a hyphen, or the letter 
 "g." Sir John Leach, V.-C, remitted to the Master to inquire 
 what the testator intended by the word in question, with power to 
 call to his assistance persons skilled in the arl of writing, and also 
 as who had a competent knowledge of tools and articles used 
 in statuary.(e) In GlassforoVs Trs. v. Glassford,(/) it was objected (,■/„,,,,-,„.,/ v _ 
 to ;i deed of entail thai the last two letters of the word dispone, in Gla8S f ord - 
 tic- prohibitory clause, were written on an erasure, without their 
 being noticed in th,. toting clause. The Lord Ordinary remitted 
 
 • rminethe testator's meaning, Courts not necessarily belonging to it. The se- 
 
 of law, in certain ises, admit ex- cond and third are correlative propositions, 
 
 trite;.' to make i rtain and are comprehended in our third subdi- 
 
 r thing intended, where the de- vision. The/ourth proposition corresponds 
 
 scription in the will is insufficient for the to our fir, f, and i In- fifth t*. our second sub- 
 
 purpo division. The sixth ami seventh propoai- 
 
 •' 'J : be thus defined; tions, again, are c , and correspond 
 
 where the object of a t. tator's bounty, or to our sixth sub-division. Our fourth and 
 
 I ofdispo iti person oi lit'th sub-divisions are no! tin- Bubjecl of 
 
 thing intend "it' rms which . pi oial 'li cussion in the work <■!' Sir. lames 
 
 are applicable indifferently t.i more than Wigram. 
 
 on thing, evideE ible {d)OobUtv. Beechey, ".Sim. 24;Wigram, 
 
 hich of the | o \\<\>. 1st, L89, 
 
 di cribed was intended by the testator." (e) Wigram, App. 19 
 
 The first pro] a ruli of con- (/) Olassford's Trs <■ ■ ■ rd, 7. inly 
 
 st ruction introductory (■. the subject, bul 1864,2 Macph. l".17.
 
 oV EXTRINSIC EVIDENCE IN EXPLANATION OF WILLS. 
 
 ohaptkbxxi. to Mr Johnston, engraver, who reported that the letter "n" was 
 
 written on an erased surface, and that through this letter " n" an 
 
 •• s.' - which previously Tilled the space, might be easily traced, 
 
 thereby establishing that the word originally written was the word 
 
 •■ dispose." 
 
 Wills written in 692. Of the admission of evidence for the purpose of reading 
 
 <P he to e rove expressions written in cypher, we have an example in the case of 
 
 the meaning of 7^,// v Gharmer.(q) A will contained the following bequest : — " I 
 
 the characters. " , , , ,„.„. ., c . , 
 
 give and bequeath to my son William the sum of i. x. x. ; to my 
 son Kobert the sum of o. x. x." The numerical symbols were writ- 
 ten in pencil in the original will, but were included in the probate. 
 It appeared that the testator had carried on the business of a jew- 
 eller, and had in the course of his business used certain marks or 
 symbols to denote" prices, etc. Sir John Eomilly, M.-R., admitted 
 extrinsic evidence to prove that, according to the system of notation 
 used by the testator, the letters i. x. x. and o. x. x. represented the 
 sums of £100 and £200. 
 wm in foreign 693. (2) A will expressed in a foreign anguage is read by the 
 tegTtLTme- Court through the medium of a proved translation. In Scotland, 
 dram of proved t k e commissary-courts confirm either the original will, or an official 
 
 translation: J m • i % 
 
 probate of such copy issuing from a court in which it has previously been proved ; 
 and, in either case, the will, if expressed in a foreign language, 
 must be accompanied by a translation into English. The practice 
 of the English Court of Probate differs from ours in regard to trans- 
 lations. Probate is not granted of an original will in a foreign lan- 
 guage, but of a translation only. Where probate is sought of an 
 English will, previously proved in a foreign jurisdiction (through 
 the medium of a translation), two courses are open. Where the 
 Court is asked to grant an ancillary administration on the footing 
 that the will has been recognised as valid by the foreign court, a 
 re-translation of the translation so recognised must be produced ; 
 but where probate is sought of the document, not as having been 
 recognised by the foreign court, but as being valid by the law of 
 the foreign country, it proceeds upon a certified copy of the original 
 will, (h) 
 Translation issu- 694. A translation of a will, even when issuing from a Court of 
 of Probate: " r " Probate, is not binding on a court of construction, if the accuracy 
 MiiiM.n- £ t | ie translation is impugned by a party. (J) And where connict- 
 
 r ;ction. 
 
 (g) Kelt v. Charmer, 23 Beav. 195. a law expressed in a foreign language, the 
 
 (A) In the goods of Deshais, and in the Judicial Committee of the Privy Council 
 
 1 a of The Countess de Vigny, 34 L. J. Pr. proceed as far as possible on their own 
 
 58. knowledge of the language, under refer- 
 
 (t) See the case of Enohin v. Wylie, ence to dictionaries or works of authority. 
 
 infra. In a rpueslion of the construction of See, for example, Se'rcitdut v. Sa'issc, Law
 
 OF EXTRINSIC EVIDENCE IN EXPLANATION OF WILLS. 359 
 
 ing evidence is laid before a court as to the meaning of an expres- chaptkb xxi. 
 
 sion in a foreign will, the court must determine the meaning for 
 
 itself, by examining the reasons assigned by the witnesses, as in 
 
 any other case of conflicting evidence upon matter of opinion. In 
 
 such a case, if the judge is conversant with the foreign language, 
 
 his knowledge of its construction will of course enable him the 
 
 better to appreciate the reasons assigned for the different readings, 
 
 or he may obtain from books or private sources the information 
 
 necessary to enable him to weigh the conflicting opinions. (A-) 
 
 695. (3) The reception of evidence in explanation of the mean- Evidence in ex- 
 ing of terms of art is matter of daily practice in actions upon con- ^^° ? f f **" 
 tracts. It is of course equally admissible where such terms occur terms of art. 
 in a will. (7) And, in a question as to the meaning of an ancient 
 
 deed, the Court will look at other deeds of the period in order to 
 explicate its phraseology, (m) 
 
 696. (4) Keference is made to the introductory chapter on In- Evidence of fo- 
 temational Law for a statement of the conditions under which re- jeignkw: 
 
 function of con- 
 
 Borl may be bail to foreign law in the interpretation of a will, and struing the will 
 of the effect to which evidence of the foreign law is received by gated. 
 the court of construction. (n) For the present purpose it is suffi- 
 cient to state that, according to the latest and most authoritative 
 dicta, the function of construing the will is always to be exercised 
 by the Court, not delegated to counsel ; and the opinions of counsel 
 Learned in the law of the foreign country are only received for the 
 purpose of informing the Court of the rules of law applicable to the 
 construction of the testamentary instrument, and to enable the 
 < lourt to put a proper construction upon the instrument. (o) 
 
 Bep., 1 I'. 0. Ap. 162, and Adv.-Oen. v. (1) Goblet v. Beeehey, 3 Sim. 24, where 
 ."/, Id. p. 169, on appeal from the evidence \ as to the meaning of 
 Mauril the ti rms " bunkers" and "models," part 
 (k) Thus, in t lie courso of the argument of the apparatus of a sculptor's establish- 
 on the construction of a phrase in a will ment. 
 
 in th lagi . the question (m) Ker v. Innes, per Lord Eldon, 5 
 
 ith Pat. 426, wherr his Lordship observed 
 
 ted by the proposition "in," the thai he looked al a deed (being one of 
 
 Lords Justices in 01 paired of those referred to in the argument) net as 
 
 a gentleman in court c with the being connected with the history of the 
 
 language, whether there was a word in ease, but to Bee what was the Scotch bur 
 
 the original to "in," and language of the jbi 
 
 whether the two nouns were both in the («) Supra, chapti r 2, section 8. 
 
 ;i "'l both . Campbell's JExrx. v. Clinton's Trs., 22 
 
 I tion. Upon the information thus June 1866,4 Macph. 868. This was the 
 
 obtained, their Lord I ; ] th( m- mi thod oi l by the 
 
 l thai the l Lords in two n 
 
 had 1 ted; Enohin v. greal importance, Enohinv. Wylie, 10 H. 
 
 29 L.J. CI 844 L. Ca. p I, 81 I. J. Ch I 12 an I Th
 
 360 OF EXTRINSIC EVIDENCE IN EXPLANATION OF WILLS. 
 
 chaptxb sxi. 697. The duty of a court of construction in relation to the in- 
 ~ terpretation of a foreign instrument is thus summarised in the 
 
 ttules laid down ' ° 
 
 :! '■• i![ leading opinion in the case of The Duchess Di Sora v. Phillvps:(p) 
 Phillips. ' •• Where a written contract is made in a foreign country, and in a 
 Foreign Language, the Court, in order to interpret it, must first ob- 
 tain a translation of the instrument; secondly, an explanation of the 
 tonus of art (if it contains any); thirdly, evidence of any foreign 
 law applicable to the case; and fourthly, evidence of any peculiar 
 rules of construction, if any such rules exist, of the foreign law. 
 With this assistance the Court must interpret the contract itself 
 on ordinary principles of construction." 
 Evidence to 698. (5) Extrinsic evidence is also necessarily admitted for the 
 
 testamentary purpose of establishing that the instrument propounded is in reality 
 *°* l1 "'' the last will of the testator. This involves not only the reception 
 of evidence in support of the facts stated in the attestation clause, 
 where the authenticity of the will is challenged, (q) but also the 
 inquiry whether a holograph unattested writing was intended to 
 operate as a will, or as a paper of instructions, (r) In the cases 
 which come before the Courts the evidence is rarely direct, and 
 resort is had to inferences from correspondence, from conversations 
 of the deceased person with his family or agents, (s) and even from 
 the situation of the document when found in his repositories, (t) 
 Evidence of the like description is admitted in relation to questions 
 of revocation by cancelling or destroying a testamentary instrument 
 animo et facto, and in the converse case of a proving of the tenor 
 of a will or settlement accidentally destroyed, (u) The question 
 
 Duchess Di Sora v. Phillips, 10 H. L. Ca. whether a certain letter formed part of a 
 
 624, 33 L. J. Ch. 129. Any doubt which will, was, by the House of Lords, ordered 
 
 may have been entertained as to the pro- to be submitted to a jury, a precedent 
 
 vince of a court of construction in such which, for obvious reasons, has not been 
 
 questions must yield to the unanimous followed in any subsequent case. 
 
 opinion of the judges constituting the (s) Munro v. Coutts, 1 Dow, 437, and 
 
 court of appeal in the latter case. cases cited infra, note (t). 
 
 (/') 10 H. L, Ca. 633, per Lord Cran- (t) Inglis v. Harper, supra; see Lord 
 
 worth. And see the more elaborate opi- Eldon's observations on this element of 
 
 nion of Lord Chelmsford in support of proof, 5 W. & S. 704. Also Lowson v. 
 
 this view, pp. 630-642. Ford, 20 March 1806, 4 Macph. 631 ; 
 
 (?) For the purpose of entitling a foreign Scott v. Sceales, 4 Feb. 1864, 2 Macph. 
 
 will to probate or confirmation, a certify 613; Baird v. Japp, 15 July 1856, 18 D. 
 
 cate of foreign counsel that the will is 1246 ; Grant v. Stoddart, 27 Feb. 1849, 
 
 valid and authentic according to the law 11 D. 860. 865-6. 
 
 of the country where it is made, is prima (u) Nasmyth v. Hare, 27 July 1821, 1 
 
 facie evidence ; In the goods of Deshais, Sh. (Ap. Ca.) 65 ; Laing v. Bruce, 20 Nov. 
 
 34 L. J. Pr. 58. 1838, 1 D. 59 ; Doiv v. Dow, 30 June 
 
 (r) Munro v. Coutts, 1813, 1 Dow 437; 1848, 10 D. 1465; Falconer v. Stephen, 9 
 
 Jnglu v. Harper. 18 Oct. 1831, 5 W. & Dec. 1848, 11 D. 220; Cunninghamc v. 
 
 S. 785 In the latter case, the question. Mowat's Tr., 17 July 1851, 13 D. 1376.
 
 OF EXTRINSIC EVIDENCE IN EXPLANATION OF WILLS. 361 
 
 whether a partial deletion or obliteration was the result of acci- chapter xxi. 
 dent or design is clearly a question of evidence, and would seem 
 to be open to inquiry, whether the object were to show that the de- 
 letion was accidentally dune by the testator, or by another liand.(x) 
 
 699. In relation to the cognate question of the ademption of Evidence in re- 
 lies, evidence may of course be adduced establishing the acts tion. 
 
 of alienation whereby the gift is alleged to be adeemed, as to the 
 nature of which a general reference to a preceding part of the work 
 may suffice. (//) 
 
 700. II. Evidence for the Purpose of Identifying the Persons identification of 
 and Things named in the Will. — This kind of evidence is most objects of the" 1 
 usually resorted to for the purpose of ascertaining the particular a^^tton" 7 
 
 as who are interested under the will, and the particular things 
 which are the subjects of disposition. The rule which admits such 
 evidence is, however, not confined to the case of the identification 
 of the subjects and objects of the grant ; and it is clear that where 
 n person or thing is even incidentally referred to in a will, it must 
 
 impetent to inquire whether there be wi rerum naturd a person 
 or thing answering to the description, and to admit evidence of such 
 surrounding circumstances as are necessary to make the allusion in 
 the will intelligible. But as a bequest is certain where the subject 
 given and the person to whom it is given are ascertained, every 
 question of identification may, for practical purposes, be treated as 
 having relation either to the subject or to the object of the disposi- 
 tion. 
 
 701. A person or tiling is evidently only then correctly and imperfect desig- 
 
 .... ii- i i i i r i • i nation rendered 
 
 BUTIlCiently designed when the words ot the Will (Without any certain by evi- 
 
 knowledge on the pari of the reader of the person or circumstances skTcTrcum- ' 
 of the testator) are sufficient to distinguish such person or thing stances - 
 from all others; as in the case of a legacy to the clergyman of a 
 certain parish when there is only one such parish, or of a disposi- 
 tion of ;i house in a certain town, described l>\ the streel and numb r 
 ot the Btreet, or by refen rice to ;i map. Su<-h designations obviously 
 do not give rise to questions of identification. A designation may, 
 however, be so defective as ool to indicate any particular person or 
 thing to one who is ignoranl of the circumstances of the testator and 
 his family, but may ho rendered definite and certain by evidence ol 
 tli — circumstances; in which case the maxim applies, id cerium 
 lull,, /,/,-, quoad certum reddi potest. Or again, a designation may 
 
 (/; I is nol admitted f"r the grantor. See Lord Lyndhur t'a opinion 
 
 purpose "i thai materia] unau- in Grant v. Shepherd, 6 Bell, 171 2; Reid 
 
 thenticated made 1 : ore v. Kedder, 12 Sh, 781i 
 
 ription or by th*-- authority of the ' bap L8
 
 OF EXTRINSIC EVIDENCE IN EXPLANATION OV WILLS. 
 
 Ill U'Tl R \\1. 
 
 Estension of the 
 
 In- so inaccurate as, prima facie, to indicate a different person or 
 thin-- from the one intended, and yet the true meaning maybe 
 rendered certain by evidence connecting the testator with the 
 subject of the designation. 
 
 702. These observations are applicable to general and collective 
 w.uds oi designation as well as to individual names. Words de- 
 scriptive of classes of persons, or even of relationship, have different 
 meanings assigned to them in different countries. A legacy by a 
 Scotchman to establish an " hospital " was sustained as a trust for 
 founding an educational institution ; (a) the same term used in the 
 will of an Englishman would be understood to apply to an estab- 
 lishment fur the cure of diseases. A bequest in favour of " godly 
 persons," and " godly preachers of Christ's holy gospel " receives an 
 interpretation in -conformity with the religious persuasion of the 
 testator. (b) So also in the case of estate, — the word " stock" will 
 receive a different interpretation according as the testator is a mer- 
 chant, a farmer, or a fund-holder ; " books," according as he is an 
 author, a publisher, or a collector; "jewels, clothes," &c, according 
 as he is a wearer or a vendor of the articles. Accordingly it has 
 become an established rule of interpretation that, for the purposes 
 of identification, the Court may incmire into every material fact 
 relating to the person who claims to be interested under the will, 
 to the property which is claimed as the subject of disposition, and 
 to the circumstances of the testator and his family and affairs, (c) 
 The kind of evidence upon which a court of construction will pro- 
 ceed is best illustrated by the cases which have occurred in practice. 
 identification of 703. (1) Confining our attention in the first place to the iclenti- 
 
 the person or \ „-.-.... , . ..-. 
 
 object of the fication of the persons or subjects of the disposition, we begin with 
 mUnome? o? ° f the simplest case, the identification of an individual grantee. Where 
 misdescription. t i ie name is correctly given, but the designation is defective, the 
 identity of the claimant with the person designed in the will usually 
 admits of being established by circumstances connecting the claim- 
 ant with the testator. Errors of spelling, the omission of one of 
 the legatee's Christian names, etc., are disregarded, (d) and more 
 
 (a) Mags, of Dundee v. Morris, 1 May are, and whether they have been adhered 
 1858, 3 Macq. 134. to ; Davidson v. Aikman, 16 Nov. 1803, M. 
 
 (b) Shore v. Wilson [Lady Ecwleys 14,592 (interlocutor) ; and cases cited infra, 
 Trust), 9 Clark & Fin. 355. On this prin- chapter 24, \ 849, et seq. 
 
 ciple, also, where any dispute arises as to (c.) Wigram, p. 65 (Proposition 5). 
 
 the proper administration of a trust for (d) Morton v. Hunter, 26 Nov. 1830, 4 
 
 purposes of a benevolent or religious cha- W. & S. 379 ; Maclaine v. Maclaine, 16 June 
 
 racter, the Court will inquire into the re- 1852, 14 D. 870 ; Adv.-Gen. v. Lord Forbes, 
 
 li^ious tenets of the society with which the 1 Feb. 1751, 1 Pat. 482. But the Court 
 
 trust is connected, and will, if necessary, will not admit extrinsic evidence for the 
 
 declare what the doctrines of the society purpose of proving that an erasure ill a
 
 OF EXTRINSIC EVIDENCE IN EXPLANATION OF WILLS. 363 
 
 material errors of nomenclature are removed by evidence of cir- ohapteb xxi. 
 cuinstances accounting for the mistake. (e) The principle is illus- KeiUerv Thom 
 trated by a case where a legacy bequeathed to " Janet Keiller or son ' s r «- 
 Williamson, confectioner in Dundee," was claimed by Agnes Keiller, 
 widow of Wedderspoon, who had been a confectioner in Dundee. 
 This person had a sister, Janet Keiller, married to a seaman named 
 AVhitton, residing in Broughty Ferry, near Dundee, and the trustees 
 of the settlement brought an action for determining which of them 
 had right to the legacy. Janet Keiller did not claim. Agnes 
 Keiller or Wedderspoon founded her claim on the circumstance 
 that in five previously executed wills, with eight codicils (which 
 were all holograph), found in the truster's repositories, she was 
 named Keiller, and designed confectioner in Dundee, being de- 
 Bcribed in one as " Janet Keiller, confectioner in Dundee ;" in an- 
 other as " Keiller, spouse to Wedderspoon, confectioner in Dundee ;" 
 while, in a third, a legacy was left to "Helen Smith, whom Mrs 
 Wedderspoon takes the charge of," and it was proved that the 
 claimant had been in the habit of corresponding with the testator, 
 and receiving money from him for behoof of Helen Smith. The 
 claimant being thus identified as the person described in these vari- 
 ous wills and codicils, it was suggested, in explanation of the mis- 
 nomer, that the clerk who copied out the trust-deed had erroneously 
 transcribed Williamson instead of Wedderspoon from the holograph 
 will-; and the Court adopted the suggestion, being " cleaiTy of 
 opinion that no other person could be meant except the claimant. (/) 
 In a subsequent case arising out of the same succession, a legacy 
 to " William Keiller, confectioner in Dundee," was claimed by 
 William Keiller, confectioner in Montrose, and by James Keiller, 
 
 ctioner in Dundee; but William having withdrawn from the 
 competition, the Courl preferred James, being satisfied that he was 
 the person to whom the legacy was given. It appeared that James 
 
 a relation of the testator, and had been intimate with him; 
 thai he was the only confectioner of the name of Keiller in Dundee ; 
 and that William Keiller had never been a confectioner there, and 
 had not been a confectioner at all until a few months before the 
 death of the testator. (^) 
 
 proper nainr in a tested will was madi al 1826, -1 Sh. 724, N. E. 730. Mr Dickson, 
 
 the request of the b tator, and for the pur- whose abstract of thi i have fol- 
 
 [ if correcting B mi ihiijht ; H<id v. ]■■■.■.. .1, < \].n s; < s ;i < 1 • >i 1 1 p t wliHlicr tlie <!<•- 
 
 Kedder, 24 Juni 1884, 12 Sh. 781. Bcriptions were ool bo erroneous as to he 
 
 (e) KeiUerv. Thomson'* Trs.,infra. i (liable, and Buggests that the Courl 
 
 (/) Keiller v. Thomson's Trs., 1"> Dec. in effeel made the bequ< t which the ti 
 
 '.. K. 279. tator intended, but failed to express (Law 
 
 '. ■ / tson's Trs., 16 June of Evidi act . \ 208).
 
 3 \4 
 
 I'll W I 
 
 B i ■'■at v. 
 
 Still v. ZZoste. 
 
 Asa rtainment 
 of persons an- 
 swering to a 
 genera] di sig- 
 ntUio p< rson- 
 arum. 
 
 M'Intyre v. 
 Fajm'e. 
 
 Grantee de- 
 signed by a 
 psi udonym or 
 
 nickname. 
 Lee v. Pai'n. 
 
 OF EXTRINSIC EVIDENCE IN EXPLANATION OF WILLS. 
 
 704. In illustration of the media of identification we shall here 
 introduce two of the best known of the numerous English cases on 
 the subject. In Beaumont v. FeU,(h) the testator gave a legacy 
 of £500 to Catherine Earnley. No person of that name, but one 
 Gertrude Yardley claimed the legacy. By the proofs it appeared 
 thai the testator's voice, when he made his will, was very low and 
 hardly intelligible; that the testator usually called the claimant 
 •• ( ; ; ii t \ ■," which the scrivener who took instructions for drawing the 
 will might easily mistake for Katy ; and that the said scrivener, not 
 well apprehending the name, the testator directed him to J. S. and his 
 wife to inform him, who afterwards declared that Gertrude Yardley 
 was the person intended. It was morever proved that the testator 
 in his lifetime had declared that he would do well for her by his 
 will. The Court? considered that in this case, the name only was 
 mistaken ; and that it was very material that no such person as 
 Catherine Earnley claimed the legacy, which, together with the 
 proofs already mentioned, was sufficient to entitle the plaintiff to 
 the legacy. 
 
 705. In Still v. Hoste, a testatrix bequeathed the sum of £100 
 " unto Sophia Still, the daughter of Peter Still, of Eussell Square. 
 Peter Still had only two daughters, named respectively Selina and 
 Mary Ann. The attorney who made the will, and another, proved 
 that Selina was the person meant, and the case was referred to the 
 Master by the Vice-Chancellor, with a declaration of his opinion 
 that Selina Still was the person entitled to the legacy, (i) 
 
 706. Where legacies are given to individuals under a general 
 designatio personarum, evidence is, of course, admissible to prove 
 that a claimant is one of the persons answering the description. 
 As in M'Intyre v. F carries Trs.,(lc) where a person claiming the 
 benefit of a legacy to each of the testator's domestic servants who 
 should be in his service at the time of his death was allowed to 
 prove that she had taken charge of the place of business of a firm 
 of which the testator was a leading partner, had served him daily 
 with his luncheon there, and was in the habit of assisting at his 
 residence when there was company. On these indicice, the claim- 
 ant was found to be a domestic servant within the meaning of the 
 bequest, and to be entitled to the legacy. 
 
 707. In other cases, evidence has been admitted to prove that 
 the testator had habitually called a certain person by a peculiar 
 name, which he had introduced into his will. The case of Lee v. 
 
 (/,) Beaumont v. Fell, 2 P. Wms. 140. 
 (i) Still v. Hoste, 6 Madd. 192 ; Wig- 
 ram, pp. 119-121. 
 
 (k) M'Intyre v. Fairrie's Trs., 12 Nov. 
 563, 2 Macph. 94.
 
 OF EXTRINSIC EVIDENCE IN EXPLANATION OF WILLS. 365 
 
 l J <i/'//.(}) decided by Sir J. Wigram, V.-C, is an example. A be- ohapterxxi. 
 quest to " Mrs and Miss Bowden, of II., widow and daughter of the 
 Kev. Mr Bowden," was claimed by Mrs and Miss Washbonrne, 
 widow and daughter of a dissenting clergyman of that name. The 
 claim was sustained on proof that Mrs Washbourne's maiden name 
 was Bowden, that the testatrix had been intimate with her family, 
 that she had been in the habit of calling the claimants by the 
 name of Bowden, and on the mistake being pointed out, had ac- 
 knowledged it. 
 
 708. Bequests to societies constituted for religious or bene vo- identification of 
 lent purposes, or to official persons as trustees for such purposes, JSjSfoM and 
 not unfrequently give rise to questions of identification which fall | lieiroffice " . 
 
 I m 'I'U'crs. Hill 6Ct 
 
 to be determined by extrinsic evidence under similar conditions to of misnomer. 
 those which obtain in relation to the identification of individuals. 
 A partial misnomer will not vitiate the bequest, and evidence is 
 admissible to account for the error; as in the case of an appoint- 
 ment of the " Moderator of the City of Aberdeen " (instead of Synod 
 of Aberdeen) as a trustee for certain charitable purposes. (w) A be- 
 quest, however, may be so inaccurately worded as to create a doubt 
 which of two existing societies, similar in their names and functions, 
 is entitled to the money. The case of the Scottish Missionary So- Caseofthe 
 ciety was of tin's nature.(») A legacy to " The Scottish Mission- £££J&Si* 
 ary Society of the Established Church "was claimed by the Scot- 
 tish Missionary Society, which was nol specially connected with 
 any religious denomination, and by the Home Mission Committee 
 of the General Assi mbly of the Church of Scotland. It appeared 
 that, some time prior to the date of the will, the testatrix had 
 boon in ill,, habit of subscribing to the funds of the Scottish 
 Missionary Society; that it was the only Society answering to 
 the terme of the Leading designation, that its purposes were those 
 of a missionary society — namely, the dissemination of the Christian 
 religion in heathen countries, that the Society included among its 
 members and (.Hirers some of the leading ministers and laymen of 
 the Established Church, and that the testatrix was cognisanl of the 
 names and objects oi the General Assembly's missionary schemes 
 hown by her having ; 1< it a Legacy to one of them under its pro- 
 per appellation. The judges being all of opinion thai the legacy 
 denoted an individual object, and noi merely a genera] intention 
 
 [l) I /'Mi 251. of the Irish Charter School Society, 
 
 (in) Synod of Aberdeen v. Dr Milne's and Society for Promoting Christianity among 
 
 ■ I '■■ 1847 9D. 746. the Jews, in Somervail'a case, 8 Bh. 870 
 
 Horn Qordorii Uo \ ital v. U Aberdeen 
 
 i/ - Um Committa of the Church of Scotland, 8 July 1881, 9 Bh. 909. 
 19 Feb. 1868, 'J" D. 684 A > • J ee the
 
 366 
 
 OF EXTRINSIC EVIDENCE IN EXPLANATION OF WILLS. 
 
 I'llU'TllC XXI. 
 
 Effect of as- 
 sumption of new 
 name, where be- 
 quest given to a 
 Society under its 
 original name. 
 
 Ascertainment 
 of societies or 
 institutions 
 answering to a 
 general desig- 
 nation. 
 
 Buff's Trs. t. 
 Scripture 
 Readers. 
 
 it was held that the claimants representing the Mission or Scheme 
 of the Church of Scotland were not entitled, because, 1st, the name 
 of that scheme did not at all correspond with the name or designa- 
 tion in the will ; 2d, the purposes of that scheme (home missions) 
 did not correspond with the proper character of a missionary so- 
 ciety ; and, 3d, the testator had given another legacy to the scheme 
 under the name of the Home Mission, which made it improbable 
 that she meant to give this legacy to the same object under a to- 
 tally different designation. It was further held that the Scottish 
 Missionary Society was entitled, and that the bequest was not void 
 for uncertainty, because, 1st, the correct and complete name of the 
 society was set forth in the bequest, which was a strong point in 
 its favour ; and 2d, the false or erroneous description, " of the Es- 
 tablished Church*," was unimportant, as it did not destroy the iden- 
 tification, and merely brought the case within the well-known rule 
 of falsa demonstratio.(o) 
 
 709. A society, secular or religious, may change its name, either 
 as a result of amalgamation with kindred societies, or to make the 
 name correspond with some extension of the objects of the society, 
 or of the area of its operations. In such a case, and notwithstand- 
 ing changes both of name and of organisation, a legacy to the so- 
 ciety under its original name will be good, and may be claimed by 
 the society under its assumed name, — the elements of continuity of 
 title and identity of purpose being proved to the satisfaction of the 
 Court, (p) 
 
 710. In other cases, bequests to societies are given in terms 
 which clearly are not intended to apply to a specific society known 
 to the testator, but to a society or societies answering the descrip- 
 tion, if such exist. The case of Buff's Trs. v. Societies of Scripture 
 Readers (q), is an instance of such a designatio societatum arising 
 under two legacies, contained in different codicils. By the first 
 the testator bequeathed "to the Societies of Scripture Headers," in 
 nine towns therein named, the interest of his Peninsular East India 
 Railway funds. By the subsequent writing he left a sum of money 
 to the constituted authorities of certain towns for similar purposes. 
 The two bequests being found by the Court to be distinct, the case 
 was remitted to the Lord Ordinary to dispose of the claims under 
 lie first bequest, and an interlocutor was pronounced finding that 
 
 (o) Per Lord Neaves, 20 D. 641-2. 
 
 ( i') Pringle v. M. of Tweeddale, 16 Dec. 
 1823, 2 Sh. 588, N. E. 505 ; Sommervail v. 
 Edinburgh Bible Society, et al., infra, (Scot- 
 tish Missionary Society's claim). 
 
 (q) Duff's Trs. v. Societies of Scripture 
 Readers, 19 Feb. 1862, 24 D. 552 ; claim 
 of the Irish Schools in SommervaiVs case, 
 22 Jan. 1830, 8 Sh. 370.
 
 OF EXTRINSIC EVIDENCE IN EXPLANATION OF WILLS. 367 
 
 there were societies answering the designation in only four of the chapteh xxi. 
 nine towns named, and these were accordingly preferred to the ex- 
 tent of four-ninths of the sum bequeathed. (■>•) 
 
 711 (2) The identification of the subject of disposition is go- identification 
 verned by the same rules in relation to evidence, and the effect ofj^Sitlon 
 of erroneous and imperfect designations, as in the case of identifi- 
 cation of a person or object. A description, though incorrect in 
 
 some particulars, may, with reference to extrinsic circumstances, 
 be absolutely certain, or, at least, sufficiently so for the purposes of 
 identification, — as where a false description is superadded to one 
 which, if standing alone, is correct. " Thus, if a testator devise 
 his black horse, having only a white one,(s) or devise his freehold 
 houses, having only leasehold houses, (J) the white horse in the one 
 case and the leasehold houses in the other would clearly pass. 
 In these cases, the substance of the subject intended is certain, and 
 if there be but one such substance, the superadded description, 
 though false, introduces no ambiguity ; and as by the supposition 
 the rejected words are inapplicable to any subject, the Court does 
 not alter, vary, or add to the effect of the will by rejecting them. 
 To such cases the maxim falsa demonstratio non nocet may with 
 propriety be applied; and this is the proper limit of that maxim."(«) 
 
 712 The identification of a subject of disposition may either Evidence for 
 have reference to a document of debt or other security, where £jS2edih« 
 there is a reference to writings in general terms, (V) or it mav relate t0 , l h , e docum e«t 
 
 . „ •'of title, or to 
 
 t" the determination of specific personal, (y) or real or heritable the estate. 
 estate.(z) And in a question as to whether certain lands are sub- 
 jected i" the fetters of an entail, it is clearly competent to resort 
 Ltrinsic evidence for the purpose of showing that the lands in 
 questioD are poss< — I as pari or pertinenl of an estate which is de- 
 scribed by a genera] name in the instrumenl creating the entail, (a) 
 
 (t) Interlocutor, 21 D. 567, note. (u) Wigram on Extrinsic Evidence, 4th 
 
 («) Door v. (,'"ir;/. 1 Vi.-. Ben. 255 : ed. p. 68. 
 
 Touch. 132. i. n Pantonv. Gillies, 22 .Tun. 182-1.2 Sh. 
 
 Day v. Trig, 1 P. Win i. 286; Doe d. 032, N. E. 536; Melvin v. Nkol, 20 Maj 
 
 .. / / an toun, 7 M. & W. 1. 182-}. 8 Sh. 81, N. E. 21 ; TnglisY. Harper, 
 
 where a t. tator devised "all that 18 Oct. 1881, 6 W. & S. 785. 
 
 freehold farm, called the Wici Farm, in (,,) Duff's Trs. v. Societies of Scripture 
 
 or there- Readers, 1 9 Feb. 1862, 24 D. 652 (qui 
 
 held by Sir J. L. Knight- as to I I India Railwaj lock). 
 Bruce, V.-O., thai 12 acn of lea ehold (?) Donald's Trs. \. Donald, 26 March 
 
 properl 1 farm (which con- 1864, 2 Macph. 922; and Bee Logan v. 
 
 II, ,11 v. Wright, 2 April 1881,6 W.& S.242; Stew- 
 Fisher, 1 Coll. C. 0. 47. The ratio of the art v. Ferguson, 27 Feb. 1841, 8 D. 668. 
 judgment - i freehold (a) Earl of Stair v. King, 6 D. B21 ; 80 
 subject ripti m, there April 1846, 6 Bell, 82; Earl of Leven and 
 i room for the application of the doc- Melville \. Cartwright, 12 June 1861, 28 D, 
 trine of falsa demonstratio L088.
 
 OF EXTRINSIC EVIDENCE IN EXPLANATION OF WILLS. 
 
 OH U'Tl-K \\1. 
 
 The identification of lands passing under a given description, or, as 
 it is termed, the question of parcel or no parcel, is most commonly 
 and properly determined by evidence showing what was possessed 
 under antecedent deeds of title containing the same or a similar 
 description of subjects. In a case of this kind, a grant of leasehold 
 estate described the subject as consisting of certain lands therein 
 Darned, extending to about 200 acres, "and the village of Scartna- 
 glowrane," and part of W. and T., containing by estimation 140 
 acres. On appeal to the House of Lords on a bill of exceptions, it 
 was held that evidence of possession was rightly admitted to show 
 that 1700 acres of mountain land had been enjoyed as part of the 
 village of Scartnaglowrane, and was comprised in the term village, 
 and passed by the grant,— " village " being held to be capable of 
 such a construction, (fr) In this case, the principle was severely 
 tested ; but, considering the loose way in which descriptions of 
 heritable estate are put together, it must be admitted that posses- 
 sion is the only reliable exponent of the meaning of the terms of 
 which they consist. 
 
 irymean- 713. III. EVIDENCE WHERE THE WORDS OF THE WlLL ARE In- 
 fefredYrom dr- SENSIBLE WITH REFERENCE TO EXTRINSIC CIRCUMSTANCES. The rule 
 
 cwnstances, now ^ Q i^ s t a ted is confined in its application to cases where the 
 
 where words , x A . _ 
 
 are otherwise evidence which is always admissible for the purpose of identifica- 
 tion, fails to disclose any person or thing (as the case may be) an- 
 swering to the words of the will in their strict and primary accep- 
 tation. In such a case, the words so construed are said to be 
 insensible with reference to extrinsic circumstances, there being no 
 external object to which they can be applied. But as a testator is 
 always supposed to contemplate real persons and things in the ex- 
 pression of his testamentary wishes, it is presumed, in the case under 
 consideration, that the words are used in some popular or secondary 
 sense of which they may be susceptible. For the purpose of giving 
 a real meaning to the words which create the difficulty, it is appar- 
 ent that the Court must have the power of inquiring whether there 
 are any extrinsic circumstances suggestive of a sense in which the 
 words may be applied to some actual person or thing, and of deter- 
 mining the construction accordingly. 
 Where a real 714. The converse of this rule of law, namely, that words which, 
 
 answe ^to the m their primary meaning represent real persons or things, cannot 
 primary mean- have a different meaning impressed upon them by extrinsic circum- 
 
 ing, evidence of 
 
 secondary mean- 
 
 t ad- (p) Waterpark v. Fennel, 7 01. (H .L. Ca.) may be admitted. In these opinions a 
 
 650. The case is valuable for the general general concurrence is expressed in the 
 
 expositions contained in the opinions of views embodied in Vice-Chancellor Wig- 
 
 the principles upon which parole evidence ram's propositions.
 
 OF EXTRINSIC EVIDENCE IN EXPLANATION OF WILLS. 3(39 
 
 stances, is a self-evident proposition, and requires no authorit}- to chapteb xxi. 
 support it.(c) It may, however, be illustrated by the familiar rule 
 of construction, that words descriptive of the legal order of succes- 
 sion, as " heir," "next of kin," &c, are not to he bent from their 
 natural meaning by considerations of intention deduced from the 
 ('inuinstances of the testator or of the alleged disponee. Such words 
 always have a real meaning, because every person necessarily has 
 an heir-at-law and a personal representative, the Crown being en- 
 titled to succeed failing heirs of the testator's blood or kindred. 
 Among the many questions involved in the decision of the case of 
 the Earl of Selkirk v. Douglas,(d) this instructive ruling will be 
 found in the final interlocutor : — ■" Find, that from the legal import 
 of the clause ' heirs and assigns whatsoever,' in the late Duke of 
 Douglas his contract of marriage, A.D., as heir of line, is called to 
 succeed to the said Duke in that part of his estate claimed by the 
 Earl of Selkirk ; and that the parole evidence offered by the Earl of 
 Selkirk, to the effect of giving a different meaning to the said clause, 
 is not competent,"(e) The interlocutor containing this finding was 
 affirmed on appeal. In the cases in which a flexible meaning has 
 been given to terms descriptive of heirs, such as the Eoxburghe and 
 Li a plum cases, it will be found that the reasons for the adoption of 
 tlic special meaning are drawn exclusively from the terms of the 
 settlement, with the necessary assumption of an actual pedigree 
 and estate to which ihe destination is to be applied. (/) 
 
 715. The cases in which the rule under consideration is legiti- Secondary 
 mately applied, are those relating to the construction of general to designaMo 
 words of designation where there are no real objects precisely an- wherethere are 
 swering to tin- designation. Thus, in the case of a legacy to the "°? b ; '"' ,s . : . 
 
 ° ., ° J "Children read 
 
 children of A., where A. has no children either at the date of the "p-mui-chiid- 
 will or afterwards, but at the date of the will he has a grandchild, 
 who survives the testator, the ml,, in question authorises the re- 
 ception of evidence of these facts for the purpose of finding an object, 
 namely, the grandchild in question, to whom the designation wi II 
 apply in a secondary sense. (#) On this principle, when' a legacy 
 was given to each of the three (hiiK/Jih ,-s of a person named, and there 
 were four daughters in existence at the date of the will, who all 
 survived, the bequesi being uncertain (and therefore insensible) 
 
 (r) 'I'll. ■ pro] i; discn ■'! in (a) See observations on tin's poinl in 
 
 Wigram, pp. 42-60. chapter 88, section 1, (listing ■ this 
 
 (il) Earl of Selkirk v. Douglcu, 27 March from tin- case of Rhind Trt. v. Leith, 6 
 
 177'.', •_' I'.'i. II'.'. Macph, mi, where there were children 
 
 ! Pat. 466 ie I grand children were (in ac 
 
 (f) Chapter :: ■ I 1 to Heirs cordance with this rale) excluded from 
 
 of Provision). participation in the bi qui I 
 
 Vol.. I. 2 A
 
 OF EXTRINSIC EVIDENCE IN EXPLANATION OF WILLS. 
 
 ii vrrn; \\i. 
 
 Whether illegi- 
 timate child 
 would take 
 ondei a desig- 
 nation, if there 
 were do lawful 
 i 
 
 Gill v. Shelley. 
 
 " Estate-" shewn 
 to apply to sub- 
 jects of power. 
 
 Evidence of 
 knowledge not 
 generally admis 
 sible to invali- 
 date the grant : 
 .-' '■"■ in relation 
 
 with reference to the actual circumstances of the family, evidence 
 was admitted, upon which the Court was enabled to construe the 
 words as importing a Legacy of the prescribed amount to each of 
 the daughters.(A) 
 
 716. One of the most important applications of the principle 
 ( resting, meanwhile, exclusively upon English authority) is found in 
 the rule according to which a bequest to the existing children of a 
 person named, receives effect in favour of illegitimate children, 
 where there never were lawful children existing to whom the words 
 of the will could apply. The most distinct case is that of a bequest 
 to the children of a person deceased who never had any legitimate 
 children. (/) The principle has been carried one step farther in the 
 much canvassed case of Gill v. Shelley, (k) The question was as to 
 meaning of a bequest of residue to be divided amongst certain 
 classes of persons, " amongst whom," said the testator, " I include 
 the children of the late Mary Gladman." Mary Gladman had only 
 one legitimate child, whose representatives accordingly laid claim 
 to the provision. Charlotte Shelley, an illegitimate child, born be- 
 fore marriage, claimed an equal share of the provision as one of the 
 persons designated by the words of the gift. It was maintained 
 that the bequest to Mary Glaclman's children was one in favour of 
 a plurality of objects, and that as no state of circumstances ever 
 existed or could arise with reference to which the testator could 
 have used the word " children" in its proper sense, as confined to 
 lawful issue, a case was presented in which evidence of the use of 
 the word, in the sense of including a natural child, might be sought 
 in the surrounding circumstances. This argument prevailed, and 
 it was decreed that the claimant Charlotte Shelley, though illegiti- 
 mate, was entitled to a share in the distribution of the residue 
 jointly with the representatives of the legitimate child. 
 
 717. Under this rule, also, a bequest by a testator of all "my" 
 estate of a particular description, is held to apply to estate of 
 which he has the power of disposal, if he had no such estate in pro- 
 perty. (I) 
 
 718. IV. Evidence proving the testator's knowledge of facts 
 material to the construction of the will. — As a general rule, 
 
 1815, 
 
 et seq. ; 
 
 (h) Bogle v. M'Lehose, 28th Feb. 
 to identification. Hume, 274. 
 
 (i) 2 Jarman on Wills, 209, 
 infra, chapter 38, Section 1. 
 
 (k) Gill v. Shelley, 2 Russ. and Mylne, 
 330 ; and see observations in Wigram, pp. 
 58-60. 
 
 \l) Wigram, pp. 19, 57, and authorities 
 cited. By the English Wills Act, 1 Vict, 
 cap. 26, § 27, general devises of real estate, 
 and general bequests of personal estate,' 
 operate as executions of powers of appoint- 
 ment, unless a contrary intention shall ap- 
 pear from the will. Tins appears to be the 
 rule of common law in Scotland.
 
 OF EXTRINSIC EVIDENCE IN EXPLANATION OF WILLS. 371 
 
 the degree of information possessed by a testator in relation to chapter xxi. 
 facts mentioned in the will or collateral to it, is not a relevant topic 
 of inquiry : for, <j>'omodo constat that, if he had known all trie fads, 
 lie would have altered the dispositions of his will. Evidence of 
 the testator's personal acquaintance with the legatee, or knowledge 
 of his name, designation, fortune, etc., appears to be only admissible 
 for the purpose of identification, e.g., in the case of a misnomer or 
 palpably inaccurate designat i< >n.( m) And, as we have seen in treat- 
 ing of the construction of inconsistent and defective wills, a testa- 
 mentary provision cannot be set aside in respect of a false reason 
 being assigned for it, even though it might be shown conclusively 
 that the testator was misinformed in regard to the fact.(») A 
 will may indeed be reduced on the ground of essential error on the 
 part of the testator ; but the error must he one affecting the iden- 
 tity of the object of the bequest, or of the subject or estate, and such 
 cases are not likely often to arise.(o) 
 
 719. In Kt inn II v. Abbott,{p) a testatrix gave a legacy to a man Legacyto "my 
 whom she described as " my husband Edward Lovell," supposing v ..i.i. where 
 him to be in fact such, whereas at the time of his marriage with bTre^n^f 
 the testatrix he had a wife living. The legacy was disputed on blgamy - 
 the authority of a text of the civil law. (7) and on the ground of 
 error caused by the fraud of the legatee. Sir E. P. Arden, M.-R., 
 recognising the principle embodied in the text, held that the 
 legacy was void. His decision, he observed, was not to be un- 
 derstood as determining the case where, from circumstances not 
 moving from the legatee himself, the description was inappli- 
 cable, as where a person is erroneously supposed to be a child 
 of the testator, and from motives of love and affection to that 
 child, supposing i1 his own, be has given a legacy to it. But, he 
 continued, "this is a legacyto the lady's supposed husband, and 
 under that name. Ee was the husband of another person, and had 
 duly done this lady the groe i -1 injury a man can do to a wo- 
 man. . . . Under these circumstances, [ am warranted to make 
 a precedent, and to determine thai wherever a legacy is given to a 
 m under a particular character, which he has falsely assumed, 
 and which alone can be supposed the motive of the bounty,the law 
 will qoI permil him to avail himself of it, and therefore he cannol 
 demand his legacy." 
 
 (m) 1. '■/ I e, Bume, 275. (p) Kennell \. Abbott, \ V. . 802. 
 
 (n) Grant v. Grant, '■< Julj 1846, 8 D. '<() "Fa] to non obi 
 
 1'iTT. vi Tin.; est, quia ratio [1 mdi ; jato Don 
 
 i. in i . ue cohserel : sed pli rumque doli 1 sci ptio I;>- 
 
 of frai ■'•■!. and 01 Mil ninn lid- Lit, 1 turua 
 
 D. 1078. non fui e " Dig. lib. 86, tit. I. I. 72, \ 8, 
 
 2 \ 2
 
 372 OF EXTRINSIC EVIDENCE IN EXPLANATION OE WILLS. 
 
 ohaptkb wi. 720. In a recent case, where the question arose whether a gene- 
 
 Z T. 7" raJ disposition and settlement had the effect of conveying, by force 
 
 • •1111111 
 
 Baw in entail in f words of general description, certain entailed estate held by the 
 
 grantei n\u\rv an imperfect entail, the granter's heir sued (1) for 
 
 SrtLVundwa reduction of the conveyance, in so far as it included the lands held 
 
 ' li " i ""' i " under the imperfect entail, on the grounds of essential error and 
 
 fraud ; and (2) for declarator that the pursuer had right to the 
 
 estate under the entail, on the ground that it was not intentionally 
 
 included in the general conveyance, the granter having been under 
 
 the belief that it was strictly entailed, and having no intention to 
 
 disturb the destination. The Court, while sending the case to trial 
 
 on the question of fraud, disallowed issues as to essential error, and 
 
 as to the testator's belief that his settlement did not convey the 
 
 entailed estate. (r) 
 
 Knowii 721. The construction of marriage-contracts is more or less af- 
 
 ct'nJ.'nHn the fected by the element of mutual understanding (consensus duorum 
 
 construction of fa { c { em placitum) ; and in this class of cases evidence as to the 
 
 marriage-con- •* ' ' 
 
 tracts. knowledge of the parties of facts affecting their rights under the 
 
 settlement appears to be admissible, (s) 
 Knowledge in 722. There are, moreover, cases in which the efficacy of a proper 
 
 reitOima ' ' testamentary bequest is, by a rule of positive law, made to depend 
 on the knowledge possessed by the testator of certain material 
 circumstances, and where, accordingly, evidence of such knowledge 
 is admissible. The cases are chiefly those falling under the cate- 
 gory of res aliena scienter legata;(i) and we incline to think that 
 the principle of this rule applies to the case above mentioned of a 
 general settlement capable of carrying an entailed estate, though 
 undoubtedly there are elements in that class of cases which do not 
 enter into a question as to a simple legacy of money. 
 
 Distinction be- 723. V. EVIDENCE TO SUPPORT A BEQUEST IN CONTRADICTION TO 
 
 tween admitting -r>. -,-. rr , 1 ,. n , ■, 
 
 evidence in sup- THE PRESUMPTION AGAINST DOUBLE PROVISIONS. — The question of the 
 
 fSfS admissibility of extrinsic evidence in cases as to the effect of double 
 tiuiit.it legacies or provisions, is one of some nicetv. In relation to double 
 
 (contradictory of . . 
 
 the will). legacies, the general rule is, that both are payable, unless where the 
 
 second legacy impliedly revokes the first, or is a mere repetition of 
 
 (r) Thorns v. Thorns, 19 Dec. 1865, 4 cms destination, which had been introduced 
 
 Macph. 252 (now before the whole Court), into a deed collateral to a marriage-con- 
 
 See also Farquharson v. Farquharson, M. tract, on proof that it was contrary to the 
 
 2290; 20 Feb. 1729, 6 Pat. 724. agreement of the parties; North British 
 
 («) Forlony v. Taylors Exrs., 15 Sh. Insurance Co. v. Tunnock, 1 Nov. 1864, 3 
 
 126, 3 April 1838, 3 S. & M'L. 177 ; per Macph. 1. But see contra, Stewart v. Stew- 
 
 Cottenham, C, p. 210 ; per Lord Jeffrey in art, 10 Aug. 1842, 1 Bell, 796. 
 Davidson x. Mays, of Anstruther Easter, 7 D. (t) Cranston v. Brown, 1674, M. 8058; 
 
 351. The Court has even gone the length Catto v. Gordon, 1748. M. 8076, 8077, Elch. 
 
 of authorising the correction of an errone- "Legacy," No. 15.
 
 OF EXTRINSIC EVIDENCE IN EXPLANATION OF WILLS. 373 
 
 it.(w) This rule being, not a presumption of law, but an inference ohapteb xxi. 
 arising from the terms of the will, it follows that evidence of the 
 testator's declarations is not admissible to contradict the will, by 
 proving an intention to give the one provision in substitution for 
 the other.(as) An early decision of the House of Lords allowing such 
 evidence, is evidently erroneous, and would not now be regarded as 
 a precedent. (y) On the other hand, the inference drawn from the 
 identity or similarity of the two bequests, to the effect that only 
 one of them is intended to take effect, is a presumption of law 
 rather than a rule of construction ; and it would appear that evi- 
 dence extrinsic to the testamentary writings is admissible, to show 
 that the testator intended to give two legacies, on the principle 
 that evidence is competent in support of the will, but not in con- 
 tradiction to it.(?;) Upon this footing, our Courts, in one case, took 
 into consideration circumstances showing that in the interval be- 
 n the execution of the two deeds the testator's affection for 
 the legatee had increased, while he had no predilection for his 
 heir-at-law ; (a) and evidence showing thai t lie testator's fortune had 
 increased i- admitted as throwing light upon the intention. (b) 
 
 724. The leading authority is the opinion delivered by Sir John Hurst v. Beach. 
 Leach, M.-R., in Hurst v. Bmch,{c) where, after observing that 
 there were no decisions on the point, but that the authority of the 
 civil law was in favour of the reception of the evidence, his Honour 
 proceeded to lay down this principle for the decision of the question, 
 as well in relatiorj to legacies as to double provisions : " Our primary 
 principle is, thai evidence is no1 admissible to contradict a written 
 instrument. In some cases, Courts of Equity raise a presumption 
 againsl the apparent intention of a testamentary instrument. And 
 there they will receive evidence to repel that presumption ; for tin: 
 t of such testimony is not to show that the testator did not 
 mean whal he has said, but, on the contrary, to prove that he did 
 mean what he has expressed. Thus, where the Court raises the 
 timption againsl the intention of a double gilt, by reason that 
 
 («) Bee '-li.ii ' fac- (z) /.<< v. Pain, 4 Hare, 216, per Wigrara 
 
 fcion, and Accumulation of Legacii ). V.-C; //</// v. Hill, 1 l>. & War. L16; 
 
 /'■/■ Lord -I. 0. Hope in Horsbrugh Hurstv. Beach, infra. 
 
 \. il , brugh, '.i I*. 841. (a) Lindsay v. Anstruther't Tr., 6 Feb. 
 
 er v. Falconer, 1 May 1721, 1827, - r > Sh. 298, V E. 276. 
 
 Roberts. 877; Falconer \. King's College {>>) Dicta of hoid Ju tice-Clerk and Lord 
 
 31 Jai I ,l.'I 'J. Robert . 897. Jeffrey in Uorsbrugh' a case, ut 'supra, and 
 
 Mr Dickson, who <-it' ;. . of of Lord Truro in Stoddart v. Oranl,1 M 
 
 Evidence, \ 228), places it in contra I L74; Quyv.Bharpe, I Mj 
 
 with the more discriminating judgment Hurst v. Beach, 6 Madd. 861 : 2 Wli. 
 
 pronounced in the lat in which & T L.8ded. p. 827. 
 extrin admitted.
 
 37 l OV EXTRINSIC EVIDENCE IN EXPLANATION OF WILLS. 
 
 II VPTEB \\1. 
 
 the sums and the motive are the same in both instruments, it will 
 receive evidence thai the testator actually intended the double gift 
 he has expressed. In like manner, evidence is received to repel 
 the presumption raised against an executor's title to the residue, 
 IV. » in the circumstance of a legacy given to him, and to repel the 
 presumption thai a portion is satisfied by a legacy." 
 Proof that a 725. In other eases, evidence has been admitted to show that a 
 
 legacy wasin- j ,. , rY ] ( .,', i, v ., debtor to his creditor was not intended to be in 
 
 Trim* "Q tO DC in O « J 
 
 satisfaction of Ba tisfaction of the debt, (d) and that a portion was not given m satis- 
 faction of a legacy, or a legacy in satisfaction of a portion, (e) In 
 this elass of eases, the distinction between receiving evidence in 
 support of the will, and in contradiction to it, has not been much 
 regarded; and Mr Tudor, who lias collected all the dicta bearing on 
 the subject, comes to the conclusion, in substance, that in any case 
 evidence is admissible, — in the first place, to show whether the cir- 
 cumstances are such as to raise a presumption against accumulation 
 of provisions ; and, in the second place, for repelling that presump- 
 tion where it arises. (/) In a recent case in the Court of Session, 
 an inquiry into the facts and circumstances was allowed ; and the 
 judgment, finding that a legacy was satisfied by a subsequent. pro- 
 vision, proceeded upon evidence of the testator's intention, (g) 
 
 Evidence of tes- 726. VI. EVIDENCE WHERE THE WORDS OF THE WlLL ARE APPLI- 
 
 tions admitted CABLE INDIFFERENTLY TO MORE THAN ONE PERSON OR THING. — The Case 
 
 ; "; t0 supposed is that of an ex facie good designation of a person or thing, 
 bignity. but which on inquiry is found to apply with equal precision to more 
 
 than one person or thing. Here the evidence directed to the ques- 
 tion of identification furnishes a double solution, and there is no pos- 
 sibility of ascertaining who or what was meant except by evidence 
 of the testator's declarations or other indications of his intention. 
 This is the case of what is called a latent ambiguity in a bequest, 
 and in this case, extrinsic evidence of intention is, and ever has been 
 competent in aid of the interpretation of the will. The rule elates 
 from the time of Lord Bacon, (A) by whom the distinction between 
 patent and latent ambiguities in respect to the admission of evi- 
 dence was originally pointed out ; but the author of the treatise on 
 
 (d) Cuthbert v. Peacock, 2 Vern. 593. (g) Livingstone v. Livingstone, 7 Nov. 
 
 (c) Booker v. Allen, 2 Russ. & My. 270; 1864,3 Macph. 20. See the concluding para- 
 
 Trimmer v. Bayne, 7 Ves. 508, 515, and graph of the late Lord President's opinion, 
 
 cited by Tudor, infra. p. 26; Campbell v. Campbell, 14 Jan. 1865, 
 
 ( /) 2 Leading Cases in Equity,3d ed. pp. 3 Macph. 360. 
 
 359-362, citing opinions of Wigram, V.-O., (/*) Regula 23, " Amhiguitas verborum 
 
 in Kirk v. Eddotoes, 3 Hare, 500, and of Sir latens verificatione suppletur; nam quod ex 
 
 J. Leach, M.-R., in Weall v. Rice, 2 Russ. & facto oritur ambiguum verificatione facti 
 
 My. 251, 263, These opinions are most tollitur." See Wigram 's Commentary, pp. 
 
 instructive. 174-184.
 
 OF EXTRINSIC EVIDENCE IN EXPLANATION OF WILLS. 375 
 
 extrinsic evidence has the merit of exhibiting the ratio of the rule chapter xxi. 
 in a very clear light, and of defining the limits of its application. (i) 
 
 727. The rule is thus stated by Professor Bell: — "There are import of the 
 two kinds of ambiguity, which are to be dealt with differently, 1st, theadmiSity 
 an ambiguity patent or apparent on the face of the contract, which, of evidence of 
 
 . tesl tmentary in- 
 
 anless it can be solved by the context and nature of the contract, tention. 
 may be fatal : '2<l. a latent ambiguity, arising not from the words, 
 but in their application, and in this case extraneous evidence is 
 admissible to clear up the difficulty." (&) It was referred to by 
 Lord Brougham in two leading cases, in one of which it was made 
 the foundation of the judgment pronounced by the House, (7) while 
 in the other (m) occasion was taken by his Lordship to discriminate 
 evidence of this kind from evidence going to identification merely, 
 which is competent in all cases. " Where there is no latent ambi- 
 guity," said that eminent judge, "but only a patent ambiguity, you 
 are not to go out of the deed in order, by any extrinsic evidence, to 
 clear lip a doubt that rises before your eyes upon the face of it. If 
 it is a latenl ambiguity, if evidence dehors the deed raises that 
 doubt, you may have recourse to evidence dehors the deed to settle 
 it. That rule is as old as the time of Lord Bacon, when he held 
 the Greal Seal, and that rule holds in all the Courts here and in 
 Scotland. But the question, wdiat is meant by a particular expres- 
 sion used to designate the subject-matter of the conveyance (what 
 is .ailed a question of parcel or no parcel), is always a matter of 
 evidence, it does aot come within the description of a latent or 
 latent ambiguity, but is a matter of description, and that is matter 
 of evidence/' (n) In conformity with the views thus expressed, in 
 a case where an instrument of sasine described the bailie as " Brovt o 
 in Dubbs," and it was averred that there were more Browns than 
 one in the locality named, extrinsic evidence was held to be admis- 
 sible for the purpose of removing the latent ambiguity, (o) And 
 so, where the lands of Craig are sold, and the seller has North and 
 South Craigs, extrinsic evidence is admitted, "because the docu- 
 ment cannot take effeel without parole proof to show which he 
 meant."! p) 
 
 728. Before the publication of Sir J. Wlgram's exposition of the Casesdistin- 
 
 i:i hedoi words 
 Wigram, proposition vii, p. 109 ei (?i) 5 W. & S. 247. applicableto 
 
 L885, 6th ed.g 1871. Bee \forton \. Hunter, supra; Bee Lord £ per *°°j " 
 
 moil Will, lei on Evi- Brougham' observations, 4 W. & S. 886. WO rds'inappli 
 
 till "I. i'. 1017 ; I Did on on Evi- ifacfarlane v. Watt, <i Sh. 660, pei cabletoonw 
 
 ce, \ 218rt I ,,,1 fun, illy. The illustration is bo] '" """ " 
 
 Vori Hunter, 26 Nov. 1880, 4 W. rowed from Lord B commentary 
 
 & S. 81 ihf maxim cited supra, i i 
 / in v. Wright, 2 April 1831, 6 W. 
 242,
 
 376 OF EXTRINSIC EVIDENCE IN EXPLANATION OF WILLS. 
 
 chapter xxi. rule, the English decisions upon the admission of evidence of inten- 
 tion were, according to that author, to a great extent arbitrary, 
 and qo1 i" 1"' explained upon any determinate principle. (q) They 
 embraced two descriptions of eases: 1st, those in which the de- 
 scription in the will applied indifferently to more than one sub- 
 ject ; and 2d, those in which it was inapplicable with certainty to 
 any subject. Three leading cases have subsequently been decided, 
 which have had the effect of restoring the true doctrine. Upon the 
 authority of Miller v. Travers and Hiscocks v. Hiscocks, evidence of 
 i 1 1 1 en t ion is excluded in cases of the second class ; by the case of Gord 
 v. Needs, its admissibility is recognised in cases of the first class. 
 Cases establish- 729. The question raised in Miller v. Travers (r) was, whether 
 '•"." Si, 'iiV)c"" evidence to prove intention, as distinguished from explanatory evi- 
 tttHery. dence, was admissible to show that estates in the county of Clare 
 nadmis- were intended to pass by the description " estates in the county of 
 Limerick," — in other words, whether a description wholly inapplic- 
 able in itself to the subject alleged to be meant, could be applied to 
 that subject by force only of evidence of the testator's intention ? It 
 was held that the evidence was inadmissible. " The plaintiff con- 
 tends," said the judges, " that the will is to be read and construed 
 as if the word ' Clare' stood in the place of, or in addition to, that 
 of Limerick. But this, it is manifest, is not merely calling in the 
 aid of extrinsic evidence to apply the intention of the testator, as it 
 is to be collected from the will itself, to the existing state of his pro- 
 perty, it is calling in extrinsic evidence to introduce into the will 
 an intention not apparent upon the face of the will. It is not simply 
 removing a difficulty arising from a defective or mistaken descrip- 
 tion ; it is making the will speak upon a subject on which it is 
 altogether silent, and is the same in effect as the filling up a blank 
 which the testator might have left in his will. It amounts, in short, 
 b} r the admission of parole evidence, to the making of a new devise 
 for the testator, which he is supposed to have omitted."(V) 
 ii cods?. 730. In Hiscocks v. Hiscocks,(t) the testator devised to his son 
 
 dencTheid inad- John Hiscocks for life, remainder to John, his eldest son, for life, 
 remainder over. At the date of the will, John Hiscocks, the son, 
 the first devisee for life, had been twice married. He had one son, 
 Simon, by his first wife, and by his second wife an eldest son, John. 
 At the trial, evidence was adduced of instructions given by the tes- 
 tator for his will, and of declarations of his intentions ; but, on ap- 
 peal, this evidence was held to be inadmissible, and a new trial was 
 
 (q) Wigram, 4th ed. p. 135. Lyndhurst, C.-B. The three judges were 
 
 (/■) Miller v. Travers, 8 Bing. 244, on up- unanimous. 
 1" :il i'. the Lord Chancellor, who called in (s) 8 Bing. 249. 
 
 the- assistance of Tindal, C.-.T.. and Lord (/) Hiscocks v. Hiscocks, 5 M. & W. 863.
 
 OF EXTRINSIC EVIDENCE IN EXPLANATION OF WILLS. 377 
 
 granted. It was observed: — "There is but one case in which this chapter xxt. 
 
 sort of evidence of intention can properly be admitted, and that is, 
 where the meaning of the testator's words is neither ambiguous nor 
 obscure, and where the devise is, on the face of it, perfect and in- 
 telligible, but, from some of the circumstances admitted in proof, 
 an ambiguity arises as to which of the two or more things, or which 
 of the two or more persons (each answering- the words in the will), 
 the testator intended to express. ... It appears to us that, in 
 all other cases, parole evidence of what was the testator's intention 
 ought to be excluded, upon this plain ground, that his will ought 
 to lie made in writing ; and if his intention cannot he made to ap- 
 pear by the writing, explained by circumstances, there is no will."(w) 
 
 731. The' precise condition contemplated in the preceding opi- Gord v. Needs. 
 nion — that of a description applicable indifferently to two objects — tention admitted. 
 occurred in the case of Gord v. Needs.(x) The will contained a 
 devise to George Gord, the son of John Gord; another to George 
 I rord, the sou of George Gord ; and a third, after the expiration of 
 certain life-interests, to "George Gord, the son of Gord." There 
 was no blank before the name of Gord the father, which might 
 have occasioned a doubt whether the testator had finally fixed on 
 any certain person in his mind. It was held that evidence of the 
 testator's declarations was admissible to show thai he intended that 
 the subjed of the third devise should go to George the son of 
 George Gord. Upon appeal, the Court of Exchequer was of opinion 
 thai the evidence was properly admitted. "If," said Lord Wens- 
 leydale, " upon the face of the devise, il bad been uncertain whether 
 the devisor had selected a particular object of his bounty, no evi- 
 dence would haw been admissible to prove thai he intend' . a gifl 
 to a certain individual; such would have been a case of ambiguitas 
 patens, within the meaning ol Lord Bacon's rule, which ambiguitj 
 could not he holpen by averment." After referring to the authori- 
 ty a in favour of the admission of evidence of intention in the cir- 
 cumstances under consideration, the judgmenl proceeds: — "There 
 would, then, have been uo doubl whatever of the admissibility of 
 evidence of i he de\ isor's intention, if the devise to ' < reorge the son 
 of Gord' had stood alone. But does the circumstance t ha t there 
 are two persons named in the will, each answering the description, 
 
 prevent I he ;i p p I i c;i l im i of the rule ? We are of op in inn that it does 
 
 nut. The mention of persons by those descriptions in other parts 
 of the will, has no more effect. for this purpose, than proof h\ i \ 
 trinsic evidence oi the existence ol such person i, and thai thej were 
 known to the devisor, would have had. . . The present case 
 
 6 M. \ W . Qord v. Need$, 'J M. \ W. 129.
 
 378 
 
 OF EXTRINSIC EVIDENCE IN EXPLANATION OF WILLS. 
 
 OHAP1 
 
 Latent ambigu- 
 ity whether 
 arising on a 
 general convey- 
 
 . pro- 
 prietor possess- 
 ::i im] er- 
 fect entail. 
 
 Extrinsic evi- 
 dence of inten- 
 tion uot admis- 
 ?il i. i int irpret 
 ition to 
 "heirs." 
 
 really amounts to no more than this, that the person to whom the 
 imperfect description appears on the parole evidence to apply, is de- 
 scribed in other parts of the same will by a more full and perfect 
 description, which excludes any other object than himself." (y) 
 
 732. To this rule or category we may refer the question, whe- 
 ther a general disposition of lands by a proprietor possessed of fee- 
 simple estate, and also of estate held under the. destination of an 
 impelled entail, ought to be regarded as raising a case of latent 
 ambiguity, so as to let in evidence of the intention of the granter 
 to include the entailed estate in the disposition. We have already 
 ventured to suggest that evidence of the granter's knowledge of the 
 imperfection of the deed of entail would be admissible in aid of the 
 natural meaning of the general disposition. («) On the questions 
 what further elements of intention are admissible, and what is the 
 rule of construction in such cases, we shall imitate the reticence of 
 a very high authority, (b) and refrain from offering an opinion, (c) 
 In the consideration of the question, it is necessary to take into 
 view the rule of construction, or presumption, that a general con- 
 veyance of lands or personal estate is not considered, in the absence 
 of any special intent, to have the effect of revoking a subsisting 
 special destination or specific legacy, (d) 
 
 733. In a case which is more frequently cited than followed 
 (Weir v. Steele), parole evidence of intention was admitted for the 
 purpose of determining whether the words " heirs and assignees" in 
 a special conveyance of heritable estate in a contract of marriage, 
 meant the heir-at-law or the heir of the investiture, (e) But the 
 authority of this case was emphatically denied in Blair v. Blair, 
 Lord Moncreiff pronouncing it to be " contrary to all legal prin- 
 ciple/^/) It is scarcely possible that any question of this nature 
 can hereafter arise ; for since it was solemnly decided in the two 
 cases of Edgar and 31oUe,(g) that a destination of lands to heirs 
 of provision is evacuated by a new investiture in favour of the pro- 
 
 (y) 2 M. & W. 141. 
 
 (a) Supra, \ 722. 
 
 (b) Lord Colonsay in Lindsay v. Osivald, 
 Law Eep. 1 Sc. Ap. p. 109. 
 
 (c) On this question the following cases 
 may he consulted : — Hepburn v. Hepburn, 
 10 Feb. 1860, 22 D. 730 ; Earl of Eglinton 
 v. Earl of Eglinton, et al, 28 May 1861, 
 23 D. 1369 ; Thorns v. Thorns, 19 Dec. 1865, 
 •1 Macph, 252; follows' Trs. v. Connell, 
 23 I'M.. 1866, 4 Macph. 465. 
 
 (d) Dundas v. Dundas, M. 15.585; 21 
 Ma] 17*3. 2 Pat. 618 ; Fleming v. Fleming, 
 
 1800, M. " Implied Will," App. No. 1 ; 
 Thomson v. Lyell, 18 Nov. 1836, 15 Sh. 32. 
 
 (e) Weir v. Steele, 1745, M. 11,359. 
 
 (/) 12 D. 108-9. See Mr Sandford's 
 note on this case (Tr. on Entails, p. 82), 
 and the judgment of the House of Lords 
 in Earl of Selkirk v. Douglas, cited supra, 
 §714. 
 
 (g) Edgar v. Maxwell, 1736, M. 3089 ; 
 MolU v. Riddell, 13 Dec. 1811, F.C. See 
 also Cathcart v. Earl of Cassilis, 31 May 
 1825, 1 W. & S. 239 (2d point).
 
 OF EXTRINSIC EVIDENCE IN EXPLANATION OF WILLS. 
 
 370 
 
 prietor and his heirs-general, it follows a fortiori that the same 
 effect must he attributed to a special destination to heirs-general 
 in a will or family settlement, (h) 
 
 734. Subject to the exception which lias been admitted in the 
 case of latent ambiguities, it is an inflexible rule of construction 
 that evidence of intention, — that is, direct evidence proving the 
 sense in which particular words were used, — is not admissible. The 
 rale excludes nut only evidence of spoken declarations, but also the 
 use of papers of instructions, or drafts or copies of a will, whether 
 for the purpose of tilling up a Uank,(f) or of correcting errors of 
 transcription, (k) or of clearing up obscurities. (7) The judgment of 
 a court of construction is simply a declaratory exposition of what 
 is contained in the will. 
 
 735. We quote from Sir J. Wigram's work (m) the following re- 
 sume of tli- English authorities establishing this proposition: — "It 
 has been laid down (cither in dictum or derision) that evidi 
 
 is inadmissible for the purpose— 1, of filling up a total blank in a 
 will ;(«) or 2, of inserting a devise omitted by mistake ;(o) or 3, of 
 proving what was intended by an unintelligible word;(j>) or 4, of 
 proving that a thing in substance different from that described in 
 
 CHATTER XXI. 
 
 Except in the 
 special i 
 incompetent to 
 prove intention 
 by drafts, in- 
 structions, <>r 
 other evidence 
 extrinsic to the 
 will. 
 
 Cases to which 
 the proposition 
 ii held 
 applicable. 
 
 (h) T. :. whether a speei 
 
 dilation to heirs of ] is n roked 
 
 by a subsequenl ttlement in fa- 
 
 vour of the heir, depends upon different 
 princi L3 on), 
 
 ntrary di cision in Pollock v. 
 1777. .M. 8098, and " Li 
 App. No. 1 e .~i.j 'ported, we 
 
 appn hi ad, at i lay. 
 
 . airy. Blair, 16 N sr. 1849 rjD.97. 
 Lord Moncreiff observed, "It appeare t<. 
 me that it would 1» dangerous 
 
 thing imaginable, if the < lourl v.. re to 
 look for tin: intention of tin- t 
 
 ach paper of in tructi i the 
 
 law to 1»: clear, that we mnsl find the in- 
 tention of tin; testatrix within tin' four 
 corn* re of the deed which she has legally 
 v.'- are, undoubtedly, to look 
 leed; and if there be any 
 ambiguity in its terms, ■ take 
 
 int.. con id. ration the circumstances un- 
 der which the I. that 
 
 '■< of the family, 
 — and any relati It.. 
 
 whi.di the t. statri i was ■■< party. \ 
 
 •iily if the 
 in t Ik 1,1 - 
 mport or I 
 
 construction, thai it is either necessary or 
 timate to affect or explain them by 
 extraneous circumstances. . . . But of all 
 things, it is the most dangerous to 
 that ; deed shall bo 
 
 '-•"lit- 1 ' p. rverted from its !■ gal 
 
 import by reference to an unauthenti- 
 i instrument said to contain the in- 
 structions of the deceased for making a 
 deed of settlement. Wo know not what 
 circumstances or what considerations may 
 intervem d between the time when 
 tli 1 ' paper of instructions was written and 
 the date of executing the deed, whereby 
 her intention m een < utirely al- 
 
 (12 D. L07). 
 
 (!) This i | in all tin- casi 8 
 
 raising th I will or instruct 
 
 ral of which are notici d in thi I 
 subdivision of thi- chapti r. 
 (in) Wi: ram, p. 99. 
 
 {11) Baylis v. Alt ■ '. L' Aik. 
 
 Mk. '-.'■".7: Ih-nt 
 v. I In, i, ;; Bro. C. C. 811; Taylor v. /:„■/,- 
 2 I In " . L6. 
 Lady Newburgh't ca • . ■"> Ma. Id, 
 Am .n. 8 Vin. Ah.
 
 380 OF EXTRINSIC EVIDENCE IN EXPLANATION OF WILLS. 
 
 ohaptm wi. the will was intended ;(#) or5,of changingthe person described ;(r) 
 or 6, of reconciling conflicting clauses in a will ;(s) or 7, of proving 
 to which of two antecedents a given relative was intended to refer ;(t) 
 or 8, of explaining or altering the estate ;(w) or 9, of proving which 
 of several testamentary guardians was intended to have the actual 
 care of children ;(.»•) or 10, of proving what was to be done with the 
 interesl of a legacy till the time of payment ;(//) or 11, of proving 
 that by a bequest of residue a particular sum was intended ; (2) or 
 L2, of construing the will with reference to the instructions given 
 for preparing it ;(«) or 13, of proving that an executor was intend- 
 ed to be a trustee of residue for next of kin ;(&) or 14, of proving 
 that an executor was intended to take beneficially where, upon the 
 face of the will, it was conclusively apparent that he was intended 
 to be a trustee ;(c) or 15, of controlling a technical rule of verbal 
 construction ;(ef) or 16, of explaining the sense in which the word 
 "relations" was intended to be used;(e) or 17, what a testator in- 
 tended to give by the word "plate ;"(/) or 18, what a testator in- 
 tended to devise by the words " lands out of settlement ;"(g) or 19, 
 of proving that a portion was intended to be a satisfaction of a be- 
 quest of residue ;(h) or 20, that a legacy in a codicil was intended 
 to be a substitution for- a legacy in the will;(Y) or 21, of proving 
 that a devise to a wife was intended to be in bar of dower ;(k) or 
 22, of supplying a use or trust ;(l) or 23, of ascertaining whether 
 the real estate was charged with the payment of debts in aid only, 
 or in exoneration of the personal estate ;(m) or 24, of proving that 
 the intention in appointing a debtor to be executor was to release 
 
 (q) Per M.-K. iu Selwood v. Mildmay, 3 (a) Goodinge v. Goodinge, 1 Ves. sen. 
 
 Ves. jun. 306. 230 ; Murray v. Jones, 2 Ves. & B. 318 ; 
 
 (/•) Dehnarev. Robello, 1 Ves. jun. 412; Barnasconi v. Atkinson, 10 Hare, 348. 
 and see, per M. -It. in Beaumont v. Fell, (b) Bishop of Cloyne v. Young, 2 Ves. 
 
 2 P. Wms. 140. sen. 95 ; White v. Williams, Coop. 58 ; 
 
 (s) Per Lord Hardwicke, C, in Ulrich Langham v. Sandford, 2 Mer. 17. 
 v. Litchfield, 2 Atk. 372. (c) Cases in last note. 
 
 (t) Lord Walpole v. Lord Cholmondehj, 7 (d) Per Lord Kenyon, C.-J., and Law- 
 Term. Rep. 138 ; Castledon v. Turner, supra, rence, J. 6 T. Kep. 252, 354. 
 
 (w) Cheyney's case, 6 Rep. 68. (e) Goodinge v. Goodinge, 1 Ves. sen. 
 
 (x) Storke v. Storhe, 3 P. Wms. 51 ; 230 ; Edge v. Salisbury, Amb. 70 ; Green 
 
 contra, Anon. 2 Ves. sen. 56. v. Howard, 1 Bro. C. C. 31. 
 
 (>/) Munsell v. Price, Sugd. on Vend. & (/) Nicholls v. Osbom, 2 P. Wms. 419; 
 
 P. 138, 6th ed. Kelly v. Powlet, Amb. 605. 
 
 (z) Brown v. Langlnj, 2 Eq. Abr. 416, (g) Strode v. Russell, 2 Vera. 621. 
 
 and 8 Yin. Abr. 198. See DyoseY.Dyose, (h) Frecmantle v. Bankes, 5 Ves. 85. 
 
 1 P. "Wms. 305, disapproved by Lord Thur- (i) LLurst v. Beach, 5 Madd. 351. 
 
 low, in Fonncreau v. Poyntz, 1 Br. C. C. (k) Leake v. Randall, 1 Vin. Abr. 188. 
 
 472, and by Sir W. Grant, M.-E., in Page (I) Ld.pl. 4. 
 
 v. Leapingwell, 18 Ves. 466 ; and see 1 P. (m) Booth v. Blundell, 1 Mer. 193. 
 
 Wins. 306,
 
 OF EXTRINSIC EVIDENCE IN EXPLANATION OF WILLS. 381 
 
 the debt ;(w) or 25, of rebutting a presumption which arises from ohapterxxu. 
 the construction of words simply qua words :(o) or 26, of raisin-' a ~ 
 presumption ;(_p) or 27, of increasing a legacy ;(g) or 28, of in- 
 creasing that which is defective ;(r) or 29, of adding a legacy to a 
 will ;(s) or 30, of proving what interest a legatee was intended to 
 take in a legacy ;(t) or 31, of ascertaining an intention which, upon 
 the face of the will, was indeterminate, as in the case of a devise to 
 one of the sons of A., who hath several sons ;(«) or 32, of proving 
 that words of limitation were intended to be construed as words of 
 purchase ; (x) or 33, of proving that executors, who had acted in 
 part, and then renounced, were intended by the testator to act only 
 to the extent to which they had acted ;Qy) or 34, of proving that 
 the testator meant to use general words in this or that particular 
 • ;(z) or 35, of adding to. detracting from, or altering the will ;(a) 
 or 36, generally, of proving intention." (b) 
 
 (n) Brown v. Selvn/n, 3 Bro. P. C. 607. (w) 2 Vern. 625: and see A Itham's case, 
 
 (o) Per Lord Thurlow, 2 Br. C. C. 527. 8 Rep. 156. 
 
 O v. Careless, 2 P. Wms. (a-) Brett v. Rigden, Plow. 340 ; and see 
 
 157. Doex.Kett, 4 Term. Rep. 601 ; Maybank 
 
 (q) Per Lord Hardwicke in Goodinge v. v. Brooks, 1 Bro. C. C. 84. 
 
 , . 1 V. -. sen. 231. (y) Doyle v. Blake, 2 Sch. & Lefr. 240. 
 
 (r) Anon. 8 Vin. Abr. 188. (z) Goodinge v. Goodinge, supra, 
 
 (s) Whitton v. RtuseU, 1 Atk. 448. (a) Herbert v. Reid, 16 Ves. 481. 
 
 (<) Lou-field v. Stoneham, 2 Strange, 1261. (b) See the cases cited in Wigram, p. 
 
 102.
 
 382 OF LEGACIES AND RESIDUE. 
 
 OB vi'Ti i; wii. 
 
 PAKT IV. 
 
 SUCCESSION UNDER WILLS AND 
 TESTAMENTARY DISPOSITIONS. 
 
 CHAPTER XXII. 
 OF LEGACIES AND RESIDUE. 
 
 I. Constitution and Classification of Legacies I II. Interest of the Legatee, 
 and Donations mortis causa. | III. Residuary Interests. 
 
 Subject stated. 736. Reserving for examination in subsequent chapters some of 
 
 the more special and intricate questions connected with the subject 
 of legacies, we proceed in a general view of the law of legacies to the 
 consideration of the relations of law pertaining to the constitution 
 of legacies, their classification, and the nature and extent of the 
 interest or estate of the legatee. 
 
 section I. 
 CONSTITUTION AND CLASSIFICATION OF LEGACIES. 
 
 Legacy and 737. A legacy may be declared either in a testamentary writing 
 
 or in a delivered assignation intended to take effect after death 
 
 (called donatio mortis causa), or verbally to the extent of £8, 6s. 8d. 
 
 Legacy may be 738. A testamentary legacy is usually expressed in the form of 
 
 directionto trus- a request or direction to the trustees or executors of the will to pay 
 
 SequS or° rds or make over the subject of the legacy to the legatee. When con- 
 
 disposition. stituted by codicil or separate writing, legacies are frequently ex- 
 
 pressed in terms of direct bequest. They may also be constituted by 
 
 dis] mi it ion ; the de presenti mode of conveyance being, by the law 
 
 of Scot hind, a universal form of transmission. A legacy, moreover,
 
 OF LEGACIES AND RESIDUE. 383 
 
 may be constituted in the form of an optative bequest ; fur such is chapter xxn. 
 tiie favour shown to last wills that the mere expression of the tes- 
 tator's wish, without the nomination of an executor or trustee, and 
 without even the form of a disposition or grant to any one, is held 
 to operate a transference of the subject of bequest to the uses of 
 the will, (a) 
 
 739. Next, a legacy may be constituted by a delivered assigna- Donatio mortis 
 tion of an incorporeal right, or by the specific delivery of corporeal reception Jtf* 
 moveables, with the intention that the gift shall only take effect the doctrine - 
 upon the death of the donor. This form of bequest received in the 
 civil law the distinctive appellation of donatio mortis causa;(b) and 
 it has been generally admitted into modern systems of jurispru- 
 dence.^-) Notwithstanding the doubts that have recently been ex- 
 pressed regarding the efficacy of this form of bequest, (d) it is cer- 
 tain that such donations have been repeatedly recognised — whether 
 under their proper distinctive appellation or not, is immaterial — 
 by decisions of the Court of Session.(e) For example, in Fyfe v. 
 Kedslie, (/) a donation of bank stock to the truster's nephews, 
 qualified bya back Letter in which they promised to pay the interest 
 accruing and any bonus that might accrue on the shares during his 
 life, and likewise to transfer any part of them when he thought 
 proper, was held, in conformity with the opinions of the whole 
 Court, to be a il<nmtio mortis causa, and effectual after the grant- 
 death.^) In the opinion of Lords Kinloch, Wood, and Ben- 
 
 ' proposition was established in them. See 1 Wh. & T. I.. Ca. 3d ed. p. 
 
 Bense by the decision in the 816. 
 
 / '/ (d) See Lord Ivory's opinion in Miller 
 
 Macq. 134. v. Milne's Trs., 21 I>. :;'.':;. 
 
 lib. '_'. tit. 7. where it is (c) Such donations are referred to by 
 
 in buI ii't in:!'!.- upon Lord Stair, '■'•, 8, 43. Erskine says (3, 
 
 tion that if the donor dies the dom e '■'■, 91 I, " The donatio mortis causa of the 
 
 shall | ibsolutely, is effectual in Romans, where the subject was given to 
 
 the same manner i :"Mortisca I d ie under the tacit condition that it 
 
 donatio est, cum i ithabere, Bhould be returned t" the donor either on 
 
 quam eum, cui donat, magisque eum, cui his revocation or on tin' pn decease of the 
 
 donat, quam heredem suum," \ I. d ■■. i- little known in our practii 
 
 (c) In tin- law of England, donations andheadd ," No deed, though gratuito 
 
 tituted by delivery, is revocable after delivery, if 8 facultyto 
 
 subject to the following nil... namely, (I) revoke be not r< erved in it ; foi the im- 
 
 that the gift unit be in contemplation of plied pow< r of the grantor t" revoke unde- 
 
 death ; (2) thai it is given under the im- livered deed i i eluded l>> delivery." 
 
 plii '1 condition that it is t Tl I to modi i □ 
 
 in the event of the death of the donor; tice. Seethe ca l tosiipra, chap. 
 
 ; the . ub- 18, ■ ct. I. 
 
 I | (/) Fyfe \. 5 [arch 18 IT. 9 1 1 
 
 I . dona- 868. 
 
 tion does not (</) Lord MTacki n sie ob erved : "He 
 
 mortis
 
 or n o ipt. 
 
 dtefe. 
 
 38 1 OF LEGACIES AND RESIDUE. 
 
 ohaptkkxxii. holme,(A) who were of the majority of the Court in the case of 
 Miller v. Milne's Trustees, a bequest constituted by a letter address- 
 ed to the Legatee, and delivered in the lifetime of the granter, is a 
 
 Donation by <1< % - ' . , ,. . , , 
 
 livery of subject donatio mortis causa, and is subject to the same conditions and rules 
 of interpretation as a legacy. Such a bequest is accordingly per- 
 sonal to the donee, and lapses in the event of his predeceasing the 
 granter. In the above-mentioned cases the grant was constituted 
 l>v writ ton assignation ; but it was laid down in the early case of 
 Mitchell v. Wright,(i) that a bequest might be made of a subject 
 or sum of money exceeding the value of £100 Scots by delivery of 
 the subject or payment of the money. According to our present 
 practice, a legatee claiming a subject as a donation made by de- 
 li wry of the subject or security, must take the onus of proving the 
 donation in a question with the trustees or representatives of the 
 granter. The cases in which donations constituted by the indorsa- 
 inabfli tion of bills (k) and receipts(Z) have been allowed to be supported 
 by extrinsic evidence after the death of the granter, are with diffi- 
 culty distinguished from donations mortis causa. The subject is 
 elsewhere considered, (m) 
 
 Moms v. Bid- 740. The opinion expressed in the preceding paragraph (n) has 
 been confirmed, and the question whether donation mortis causa is 
 recognised in our law, has at length been authoritatively answered 
 in the affirmative by a unanimous decision of the First Division of 
 the Court, (o) The authorities on which the judgment proceeds will 
 be found in the report of the judges' opinions ; and the limitations 
 
 causa; and while I find all the features of been decided, however, that a bill payable 
 such a donation here, I cannot find those after death is not a habile mode of consti- 
 of an ordinary trust ;" 9 D. 865 ; and see tuting a bequest, as this is not a case of 
 Duguid v. CaddelVs Trs., 29 June 1831, 9 transference of a security with the inten- 
 S. 844. tion of constituting a bequest, but an at- 
 (h) Miller v. Milne's Trs., 3 Feb. 1859, 21 tempt to give to the bill itself a testamen- 
 D. 388. Lord Neaves appears to have taken tary operation, contrary to the legitimate 
 the same view of the nature of the document purpose of the instrument ; Fulton v. Blair, 
 in this case : — " I have already said, that 1722, M. 1411 ; Button v. Button, 1724, M. 
 rding them (the letters)' merely as a 1412; Wright v. Wright, 1761, M. 8088; 
 form of legacy or donation mortis causa, Doioie v. Millie, 1786, M. 8107. 
 which I think the more correct view, I (I) Compare Galloway v. Craig, 17 July 
 consider them to have been personal to the 1861, 23 D. (Ap. Ca.) 12, 4 Macq. 267, re- 
 donee, and thus to have become ineffectual versing 22 D. 1211, with Cuthill v. Burns, 
 through his predecease;" 21 D. 391-2. 20 March 1862, 24 D. 849. 
 See also Trotter v. Trotter, 1 Dec. 1842, 5 (m) Chapter 48, sect. 3 (Resulting Inter- 
 D. 224. ests under ex facie absolute Conveyances). 
 (i) Mitchell v. Wright, 1759, M. 8082. («) The passage is reprinted without 
 (#) Murray v. Todd, 6 March 1818, alteration from 2 Law of Trusts, pp. 211- 
 Hume, 275; Adam v. Johnston, 1782, M. 212. 
 
 1416; Steel v. Wemyss, 1793, M. 1409; (o) Morris v. Riddick, 16 July 1867, 5 
 
 Anonymous, 1752, 5 Br. Sup. 802. It has Macph. 1036.
 
 OF LEGACIES AND RESIDUE. 38c 
 
 under which the doctrine is to be received are very clearly explained chapter xxn 
 in the following observations of Lord President Inglis : — " Donatio 
 mortis causa in the law of Scotland is not in all respects the same as 
 in the Roman law. It answers the definition of the Institutes as 
 being a gift, to take effect in favour of the receiver on the death of 
 tlic granter, and to have no effect if the granter repent of his gift, or 
 revoke it, or survive the grantee. The motive and intention of the 
 giver is also in both systems understood to be the same. He pre- 
 fers the dunce to his heir or executor, but himself to both. But in 
 the Roman law there were three kinds of donatio mortis causa, 
 while I think we have received only one kind in our practice, 
 which does not precisely answer to any head of the Roman division. 
 Donatio mortis causa in the law of Scotland may, I think, be de- 
 fined as a conveyance of an immoveable or incorporeal right, or a 
 transference of moveables or money by delivery, so that the pro- 
 perty i> immediately transferred to the grantee, upon the condition 
 thai he shall hold for the granter so long as he lives, subject to his 
 power of revocation, and, failing such revocation, then for the gran- 
 tee on the death of the granter. It is involved, of course, in this 
 definition, that if the grantee predecease the granter, the property 
 reverts to the granter, and the qualified right of property which was 
 vested in the grantee is extinguished by his predecease. Such. I 
 apprehend, is the doctrine laid down by Erskine,(j9) more largely 
 expounded by Bankton,^) and supported by the general tenor of 
 the decisions of the Court." (r) In this case the judges were also 
 unanimously of opinion thai writing was nol necessary to the con- 
 stitution of a giit of this description. 
 
 741. A verbal or nuncupative legacy is effectual onlyto the ex- Nuncupative 
 tent of £100 Scots ;(«) and a plurality of legacies, each of the value ^ 
 of that sum, may be bequeathed by the same person. The rule is effectual - 
 to he received subjed to the following qualifications: — First, A be- 
 quesl of larger amount may. as already explained, he made by de- 
 livery "i the subject to the grantee intuitu mortis. Secondly, A 
 noncupative legacy tor a larger sum than £100 Scots is effectual to 
 the extenl of £100 Scots.(tf) Thirdly, A verbal direction to an ex< - 
 cutor and residuary t,<j<ii<<- to pay a legacy of any amount is effec- 
 tual as a trusl : hut Buch trusl can only he proved by Ins writ or 
 
 91. £ 00 may be proved by witness- 
 
 ■ 16 l- !. 1. p. 280). ■ . Bi 11 Priii. §' 1868, ;,,|, ,,i. g 1869, 
 
 ' [li. L041. L874. 
 
 ■ • rule Ei 1 . 8, 9, 7 ; Forsyth's Trs. v. 
 to the general principle of the lav of Scot- M'Lean, 18 Jan. 1854,16 D. 848 ; Kelly 
 
 land, Mi it do obligation foi 9 Kelly, 8 March 1861 28 D, 708 
 
 VOL. I. 2 B
 
 386 
 
 OF LKtiAClKS AND RESIDUE. 
 
 II \: TUi Wll. 
 
 ts in 
 Sav ings Hanks. 
 
 ies dis- 
 tinguished ac- 
 
 to differ- 
 ent principles of 
 classification. 
 
 .whether 
 bie or 
 moA eable. 
 
 I "f herit- 
 
 ] -ts of 
 heritable estate 
 under trust- 
 aents. 
 
 oath.(w) But, fourthly, Et is incompetent to require the oath on 
 reference of a mere trustee,ior the purpose of proving a verbal legacy 
 
 beyond the spceiliod amount. (#) 
 
 ' 742. The provisions of the Act 59 Geo. III., cap. 62, § 7, by 
 which testamentary papers signed by mark are made effectual to 
 convey deposits in Savings Banks not exceeding £20, seem to be 
 repealed by 5 & 6 Will. IV., cap 57, § 2. 
 
 743. Under this division of the subject we might conveniently 
 consider questions as to the capacity of the testator and the lega- 
 tee, the identification of the subjects and objects of the gift, etc. 
 These subjects are fully discussed in other chapters specially relat- 
 ing to these branches of the law. 
 
 744. The legal character of the legatee's interest may be con- 
 sidered in relation — (1) to the quality of the legacy, whether herit- 
 able or moveable ; (2) in relation to the duration of his interest, 
 whether fee, liferent, or reversion ; (3) in relation to the subject of the 
 interest, whether a right to a specific thing, or to a sum of money 
 payable out of the estate ; and (4) in relation to the limited or un- 
 limited character of the interest, whether a legacy of quantity or a 
 residuary interest. 
 
 745. First, as to the quality of the legacy ; the subject bequeath- 
 ed, or the fund out of which the legacy is payable, is either herit- 
 able or moveable ; and on this distinction depends the succession 
 of the legatee in the event of his dying before receiving payment. 
 The expression, "legacy of heritage," is usually employed in a re- 
 stricted sense, as denoting a legacy constituted by way of burden 
 upon the estate conveyed to an heir ; such burdens being effectual 
 against disponees, on the principle of passive representation. (y) 
 
 746. Heritable estate may be made the subject of bequest under 
 a trust-disposition and settlement disposing of the general estate. 
 A very large proportion of the decided cases upon legacies have 
 arisen under conveyances to trustees, embracing both heritable and 
 moveable estate. It has been justly observed, that a trust-disposi- 
 tion of heritable estate has the effect of investing the truster with 
 a power of testing upon the property ;(¥) the exercise of this power 
 
 (u) Erskino and Bell, supra; Hannah v. 
 Guthrie, 1738, M. 8837; 5 Br. Sup. 203 ; 
 Elch. •• Legacy," No. 5. 
 
 (x) Forsyth's Trs. v. M'Lean, supra. 
 
 (y) Dundas v. Dundas, 22 Dec. 1830, 4 
 "W. & S. 460. See the subject of election, 
 under the rule of approbate and reprobate, 
 1 in chapter 27. 
 
 (z) Per Lord Ourriehil] in MacMlligan 
 
 v. MacMlligan, 18 D. 87. In Brack v. Hogg, 
 25 Feb. 1831, 5 W. & Sh. 61, the point 
 was raised very purely. The testator hav- 
 ing executed a trust-disposition of his herit- 
 able estate in conformity with the require- 
 ments of the law of Scotland, containing a 
 direction to the trustee to convey "to such 
 person or persons as I shall specify and 
 name in my will, or by any separate letter
 
 OF LEGACIES AND RESIDUE. IIS? 
 
 being liable, however, to be defeated by the operation of the law of chapter xxn. 
 deathbed, (a) But in some form there must be a dispositive con- 
 veyance of the estate from the person of the testator ; and it is to be 
 observed, that a settlement not expressed in dispositive language, 
 and therefore not operative as a conveyance of the heritable estate, 
 i- equally ineffectual for the purpose of burdening the heir.(6) 
 
 747. Secondly, in relation to the duration of the legatee's interest, Legacy, whether 
 the subject of a legacy may be either — (1) the capital or fee of a ^terestfor re '. 
 sum of money or specific subject ; (2) a liferent interest in or termin- verslon - 
 able annuity out of it ; or (3) a reversionary interest in the capital. 
 When a legacy or estate is given simply, without limitation as to 
 time, it is, of course, presumed to be an estate in fee. The interest 
 of the beneficiary accordingly will not be cut down to a liferent by 
 reason of the use of expressions capable of being construed as sub- 
 stitutions.^) As a general rule express words are recpiired to 
 limit an estate to a life interest \{d) and so, where a liferent was 
 given by a husband to his wife "in case she 'should happen to sur- 
 vive hini,'' and she predeceased, it was found that no right to the 
 proceeds of the property had ever vested in her.(e) Questions 
 between liferenters and fiars, as to the right to interest and acces- 
 sions, burdens and abatements, are dealt with in the ensuing sec- 
 tion of this chapter.(/) 
 
 743. Next, ;is to tin' subject or legal character of the interest Legacies dis- 
 taken by the legatee. According to this principle of division, three general, specific, 
 
 classes of legacies are distinguishable — general, demonstrative, and 
 
 cine. A general legacy — /<y<i/>ni< quantitatis — is a legacynot of 
 
 ;i special article or debt, but of a certain quantity or value which, 
 
 or writing t<> that effect," thereafter exe- on the authority of the case of Willoch v. 
 
 cated in Jamai .-. i 1 1 and testa- Auchterhny, 1769, M. 5589, his Lordship 
 
 men! idue in these was of opinion thai it was; 6 W. & S. 69. 
 
 terms.: "I give and bequeath to my Sec Bell's I'r. g 1803, and cases there 
 
 Eogg, il: and cited; also chapter 29, sect. 1, infra. 
 remainder of my property, real, personal, (a) See chapter 9, sec. 1. as to the effeci 
 and mixed, consisting of lands, bouses, of thelaw of <lraihl»fil upon tlenls <>f alter 
 in Berwickshire, Gj Bi tain." In ation, and the mode of evading its opera- 
 affirming the judgment of thi Courl of tion, 
 
 bequest, Lord Lynd- (6) Oovan v. Seton, 28 Jan. 1812, F.C. 
 
 hursl observed : — " The will wa i intended But Bee the observations on this subject in 
 
 bj t! be an execution of the chapters 71 and 7l\ 
 
 r contained in the Brsi deed. It is 11 anderv. Alexander, 18 Dec. 1848, 
 
 impo Bible to consider the nature of the 1 li I >. ".r. ; O'Rciiin \. Si in/>i//.]~> I). ix'K ~ 
 
 ction itself, as mentioned in thi fir r Macq. 288. 
 
 deed, and the description of the property, (<l) See Campbell v. Campbell, 80 Maj 
 
 and not to come to tb 1848, 6 D. 1088 ; 8 Dec. 1862, 16 D. 178. 
 
 ■ lie that power. The (e) Findlay v. Macintyre, II Dec. 1849 
 
 M that remains then is, whether the L2 D, 825. 
 
 mode of execui \iel (/) Tnfra, p. 89] 
 
 2 B 2 
 
 or demon I ra 
 
 live.
 
 38 
 
 OF LEGACIES AND RESIDUE. 
 
 OB MM i i SXI1 
 
 Direction to 
 purchase is •4111- 
 valenl to a 
 genera] legacy. 
 
 how ill'Min- 
 
 gnished from 
 
 gen. >ra!. 
 
 may be measured either in money or in goods of a specified descrip- 
 tion.^) A specific legacy is a legacy of a certain subject, which 
 m;iv either be corporeal or incorporeal ; a definition which includes 
 sums of money invested on specific securities. (/*) A demonstrative 
 Legacy is a gilt of a sum of money payable out of or charged upon a 
 particular subject or security ; and is similar in its legal properties 
 to a Legacy of quantity. (7) 
 
 749. A direction to purchase a certain subject, or to invest 
 money in specified securities for a particular object,(&) is not a 
 specific Legacy, but is of the nature of a demonstrative legacy. Ac- 
 cordingly, it was held that legacies of quantity were preferable to 
 the interest of a residuary legatee under a direction to apply the 
 residue of the testator's fund in the purchase of an heritable 
 estate. (I) 
 
 750. Specific legacies are further distinguished from legacies of 
 quantity or general legacies by the nature of the rights conferred 
 upon the legatees. First, A specific legacy has the effect of an as- 
 signatiorj mortis causa to the subject; a general legacy confers only 
 a jus credit i.(m) Secondly, Specific legacies are preferable to gene- 
 ral bequests and shares of residue. The debts of the estate are a 
 burden primarily affecting the latter ;(n) and although the right of 
 
 (g) Ersk. 3, 9, 11 & 12 ; Bell's Pr. \ 
 1873-6. By means of a trust, general lega- 
 cies may be made to comprehend certain 
 of the qualities of specific legacies. For 
 example, if a testator direct his trustees im- 
 mediately after his death to invest a sum 
 in the Funds for the use of a general lega- 
 tee, and the trustees are unable from any 
 cause to make the investment until some 
 time after, they must nevertheless pur- 
 chase a quantity of stock equal to what 
 they could have bought with the legacy at 
 the proper time ; Horsbrugh v. Horsbrugh, 
 ] March 1848, 10 D. 824. 
 
 (h) Ersk. supra; Bell's Pr. \ 1874-7. 
 (i) This variety of the general legacy 
 appears to have escaped the attention of 
 our institutional writers, though it has 
 been recognised under this designation in 
 English decisions (2 Wh. & T. L. Ca. 3d 
 ed. p. 252), and in the civil law (Voet ad 
 Pand. 35, 1,5). Examples will be found 
 in the cases of Melvin v. Nicol, 20 May 
 1824, 3 Sh. 31, N.E. 21,and Bell v. Brodie, 
 16 Feb. 1847,9 D. 712. In the lattercase, 
 a mortis causa trust provided for tin- pay- 
 ment of a certain annuity, the testator 
 bound to pay such sum as might 
 
 be necessary to secure it. Previous to his 
 death, he had put certain sums of money 
 into the hands of his trustee, and directed 
 the annuity to be paid from the interest of 
 those sums. The Court held that the ob- 
 ject of the special direction was merely to 
 secure the annuities ; that the bequest was 
 not specific, and that therefore the estate 
 remained bound for payment of the an- 
 nuity. The decision in Ilagart v. Hag- 
 art, 14 Nov. 1834, 13 Sh. 35, holding a 
 bequest of the testator's whole income for 
 the year of her death equivalent to a spe- 
 cific legacy, appears to be erroneous in 
 principle, as there was here no identifica- 
 tion of the property, but merely a measure 
 of the value of the legacy. 
 
 (k) Dewar v. Kirk-Session of Torryburn, 
 23 March 1864, 2 Macph. 910. 
 
 (I) Hamilton v. Bennet, 16 Aug. 1833, 6 
 W. & S. 533, affirming 10 Sh. 330; Train v. 
 BelVs Trs., 26 May 1824, 3 Sh. 68, N. E. 44. 
 On the construction of trusts for the pur- 
 chase of heritable estate, see chapter 65. 
 
 (m) Bell's Pr. § 1875-7. 
 
 («) Ersk. 3,9, 12, citing jJforcro v. Scott's 
 Exrs., 1630, M. 8048; Blair v. Tytler, 11 
 Marcli 1865, 3 Macph. 698. See § 770.
 
 OF LEGACIES AND RESIDUE. ?S9 
 
 the special legatee will necessarily yield to that of the testator's chapter xxh. 
 creditors, it has been held that creditors attaching a specific legacy 
 must assign their debts to the special legatee, (o) A legacy for 
 mournings seems to be preferable to other general legacies. (j:>) In 
 virtue of his real right, the special legatee may, with concurrence 
 of the executor, bring an action for recovery of the subject against 
 the partv in possession. (q) Thirdly, From the nature of the special Ademption of 
 legatee's interest, it follows that his right under the testament is i, v sale or e con- 
 extinguished if the subject perish before it is delivered to him, for J^°°° e 
 res perit sua domino ;(r) and the appropriation of the subject to 
 other purposes in the testator's lifetime, e.g., uplifting the sum con- 
 tained in a bond or other security, operates as an implied revoca- 
 tion or ademption of the bequest of the specific subject, (s) 
 
 751. In the category of specific bequests maybe included the Legatum libera- 
 legatum liberationis, or legacy to the testator's debtor of the value 
 
 of his debt. With reference to this description of bequest, it has 
 been decided that a legacy to certain debtors, in the form of " a free 
 discharge of everything they may owe me at my death," does not 
 comprehend bills coming into the hands of the legatee on account 
 of the testator, these being regarded not as debts, but as in the na- 
 ture of a deposit or trust. (7) A simple legacy to a debtor is held 
 to be compensated by the debt, upon proof that the latter is resting- 
 owing.(w) As regards legacies to the creditors of the testator, the Legacies to 
 presumption of the law of Scotland is rather adverse to donation. 
 The subject of the satisfaction of debts by legacies is reserved for 
 discussion in a subsequenl chapter.(aj) 
 
 752. Legatum n i alienee is a bequest of a subject not belonging Legatum rei 
 to the testator. The rule' of construction, derived from the civil 
 law.C//) is, thai if, on the one hand, the testator erroneously sup- 
 
 1 I the thing bequeathed to be his property, (z) or erroneously 
 believed the subject to be moveable and within the power of his 
 
 rino v. llnhm rii,','~ Crs., 1740, extent to which special legacies may be 
 
 M. 8074. ted by the claims of creditors and an- 
 
 CaldwaUv. Caldwall, 1786, M. 8066. mutants. We refer to chapter 18, section 
 
 See chapter 67, infra. 2 (Revocation bj Ademption), for a Blate- 
 
 tupra. Bee Qrayv. Cockbvrn, menl of the English authorities on the 
 
 1711, M. 8062; Forrester v. Clerk, 1627, M. ademption of legs 
 
 2194. Graham v. Dennitton, 1792, M. 8108; 
 
 Wavchopi v. Wilton, 1724, M. 8068. Bell's Oct. Ca. 802; Dougall v. DouaaU, 
 
 Pa ■- r 26J L888, L6Sh. 1789, M. 16,949. 
 
 re '-it, .1 : Jack v. Lauder, («) Bee Reid v. Hope's Trt ,6 May L826, 
 
 1742, M. 11,867 /' by. of Kirkcudbright L W. & S. 172. 
 v. Blair, L742, Elch., I No. 10; I Chapter on 8. 
 
 M. 8066 ; Ponton G 22 Jan. 1824, . [net. lib. 2, til 20 I 
 
 2 si,. 682 V E 686 ; and tion 2, Ersk. 8, 10 B< : Pi L882 I. 
 
 I ill-
 
 3911 
 
 OF LEGACIES AND RESIDUE. 
 
 
 What • 
 
 demon- 
 strative 
 tinguished from 
 
 Be legacy 
 
 Import 
 ml term 
 scriptive of the 
 subject ■ 
 
 , £ecutor,(a) the Legacy is ineffectual; but if, on the other hand, he 
 
 knew thai it was>o1 his own, the Legacy is effectual, on the prin- 
 ciple thai the testator intended that his executor should purchase 
 it. (6) The eases in which hequcsts of subjects not disposable by 
 will have been held binding upon the heir are in some respects 
 analogous to the ease of the res aliena scienter legata.(c) 
 
 753. A considerable mass of decisions has been accumulated in 
 the jurisprudence of England on the question, what words imply a 
 specific as distinguished from a demonstrative legacy. The cases 
 have relation chiefly to legacies of money in particular places, lega- 
 cies of debts, legacies of stock, and legacies connected with realty. 
 While illustrating the principles upon which legacies of these 
 descriptions are distinguished, they add little or nothing to our 
 means of applying the principles in practice. In most of the 
 eases the character of the bequest is ascertained by inspection; few 
 of them present any serious difficulty, (d) 
 
 754. To complete the discussion of specific legacies, we annex a 
 brief statement of the import of the decisions upon the meaning of 
 terms descriptive of certain subjects of specific bequest. A bequest 
 of "goods, gear, and sums of money," carries corporeal moveables 
 generally; not debts or other moveable rights.(e) "Goods, gear, 
 debts," etc, does not carry heritable debts secured by adjudica- 
 tion^/) "Goods and gear, whether heritable or moveable," will 
 not operate as a transference of a lease.((/) "Moveables whatsoever," 
 coupled with words descriptive of corporeal moveables, does not 
 embrace moveable bonds or other securities. (h) "Moveable estate," 
 following an enumeration of corporeal moveables, does not include 
 moveable rights. (t) A legacy of moveables has been held to in- 
 clude heirship moveables. (k) The word " estate,"(7) either alone or 
 
 (a) Ersk. supra; Wardlaw v. Fraser, 1663, 
 M . 5703. 
 
 (b) Falconer v. Dougal, 1664, M. 13,301. 
 
 (c) Cattov. Gordon, 1748, M. 8077; Cran- 
 ston v. Brown, 1674, M. 8059 ; Kinloch v. 
 Lundic, 1063, M. 8052; Drummond v. 
 Drummond, 1624, M. 2261. This subject 
 is also noticed under the head of Legacy 
 of Heritage. See Dundas v. Dundas, 22 
 Dec. 1830, 4 W. & S. 460, affirming 7 Sh. 
 241 ; Redford v. Redford, 5 Dec. 1816, 
 
 Hume, 884. 
 
 (d) An epitome of the cases wo refer to 
 will be found in 2 Wh. & T. L. Ca., 3d ed. 
 p. 252 et s •/. 
 
 I Mochrk v. Linn, 1736, M. 5018, Elch., 
 ; Will." No. 1 : Fraser v. Smith, 
 
 1776, M. 2322; Earl of Fife v. M'Kenzie, 
 1795, M. 2325, 3 Pat. 549 ; Waddell v. Colt, 
 1789, M. 5022; Pet. Galloway, 12 Jan. 
 1802, M. 15,950; Brown v. Henderson, 3 
 Dec. 1805, M. " Clause," App. No. 5. 
 
 (/) Ross v. Ross, 10 April 1771, 2 Pat. 
 254, affirming M. 5019. 
 
 (g) Peterson v. Fairish, 9 Feb. 1800, 
 Hume, 128; Sutherland v. Jeffrey, Feb. 
 1805, Hume, 133. 
 
 (//) Dunbar s Trs. v. Dunbar, 15 Jan. 
 1808, Hume 267 ; Kerr v. Young, 1745, M. 
 2274. 
 
 (i) CarsewelVs Trs. v. Carseivell, 9 Feb. 
 1858, 20 D. 516. 
 
 (k) Ferguson, 1682, 1 Fount. 193. 
 
 (/) Moo. P. C. Ca. 76, cited chapter IT.
 
 OF LEGACIES AND RESIDUE. 391 
 
 in conjunction with the expletives heritable and moveable, (m) or chapter xxn. 
 moveable and immoveable, (n) is nomen universitatis, and includes 
 property of every description. "Cash" includes current coin and 
 bank notes, but not bonds, bills, or other securities. (o) " Free pro- 
 Is " of land includes the price of thinnings of wood.(p) 
 
 755. Another classification of legacies, according to the interest i - «sies definite 
 
 f i i • i n i-ii t • i i • ; i • i in amount, or of 
 
 of the legatee, is that by which they are divided into legacies de- residue. 
 finite in amount, and legacies embracing the whole or an alicpiot 
 part of the free succession. The former are those which we have 
 had chiefly in view in the preceding observations; the latter are 
 termed residuary bequests, or universal legacies. The interest of a 
 residuary legatee is distinguished by some important properties 
 from that of a general or special legatee. The subject of bequests 
 of residue will he more fully considered in the sequel. 
 
 756. The same persons to whom legacies of quantity are given Division of a 
 may also be made the recipients of the testator's residuary estate; gen erai legatees 
 as when a testator bequeaths legacies to certain parties, and directs l^eSs. 40 
 that tie/ residue of his estate shall he divided amongst those parties, 
 
 either equally, or in proportion to the value of their respective 
 ies. In a case of tin's kind, where a testatrix, after leaving a 
 variety of Legacies of unequal value, directed the residue of her 
 funds to l,c divided "between and among the whole legatees whose 
 legacies exceeded £100," but that, in the event of her funds being 
 insufficienl for payment of the foresaid legacies, "each of them 
 which exceeds £100 sterling should suffer proportional abatement," 
 it was held that the residue oughl to he equally divided ; for, as 
 there was no direction to make a division in the proportion of the 
 value- of the legacies, the presumption of equality of interests was 
 applicable to the case.(g') 
 
 BEi HON II. 
 INTEREST OF THE U'.c.Vi I 
 
 757. The points to be considered bave relation, first, to the ex- 
 tern of the legatee's interesl on the assumption thai there are suffi- 
 
 po ition is given of (o) Jarvie \. Pearson,6 Julj I860, 22 D 
 
 the cases on the question, what words carry 1895. Compare Smith v. Donaldson, 10 
 
 : A - ■■ " . A • il :. 8 ' T Sh. 78 1. 
 
 22 D. 846; and Munrov. Munro, (p) Breadalbane't Trs.v. Pringle, 19 Jan. 
 
 17 D s. 1826, 4 Sh. 828, N. E. 882. 1854, 16 D. 869. U] this subject, and 
 
 Urouffh, 7 De.-. I M<i. K. c. ; upon the constructs f terms descriptive 
 
 riton, et "/.. 28 of 1 1 tion, 
 
 ID. 1869 le to < hapti c 17. 
 
 R | ; i 09 i I I Pitcairn v. Thomson, 8 Juno 18 
 
 i /. /. d 1784, M 16,941. 16 D 7 11
 
 392 
 
 OF LEGACIES AND RESIDUE. 
 
 H Wll. 
 
 ■ i ii- 
 
 . by in - 
 ■ acces- 
 sion. 
 
 of quan- 
 tity not suscep- 
 
 ;■' lo > -.; in. ?eacs 
 bv accession. 
 
 e*m< - right to 
 accessions. 
 
 ii m be- 
 longs to liar. 
 
 and liferenter has 
 only the interest 
 of i't. 
 
 cient Funds for aU the purposes of the will; secondly, to the abate- 
 ment of Legacies in the case of a deficiency of free funds. 
 
 758. I. Extent of the Legatee's Interest. — The interest of the 
 legatee, as appearing upon the tare of the will, is, on the one hand, 
 enhanced by accessions to the subject and by accruing interest, and, 
 on the other, is diminished by burdens, debts, and legal deductions. 
 
 759. A Legacy of quantity, whether general or demonstrative (or 
 payable out of a particular fund), does not seem to be susceptible of 
 being increased by accession; for it is an established rule that all 
 accessions to the general estate, whether within the contemplation 
 of the testator or not, fall into the residue. On this principle it is 
 held, that where a debt is secured by a policy of assurance which 
 only becomes available at the testator's death, the benefit of a bonus 
 upon the policy accrues to the general estate, notwithstanding that 
 the assurance may have been intended as an equivalent for the 
 (k'bt.(r) Special legatees are in a different position; and it is a 
 reasonable conclusion that, as their rights are confined to the 
 specific subjects of bequest, they are also susceptible of being en- 
 larged by accessions to those subjects. (s) 
 
 760. A liferenter of shares of stock is not entitled to the benefit 
 of an extraordinary dividend or bonus, but only to the life interest 
 of it, (7) On the other hand, a legatee of the fee of stock, burdened 
 with a substitution, was found to be entitled to the benefit of a 
 bonus. (w) If trustees are directed to hold stock for the benefit of 
 a Liferenter, and with a power of changing the securities, the right 
 of the liferenter to the current dividend is not prejudiced by a con- 
 version in the exercise of the power. Accordingly, where trustees 
 received a sum of £10 per share " in lieu of dividend," over and 
 above the price of £140 per share, and a slump sum for certain other 
 stock, the liferenter was found to be entitled to a proportion of the 
 sum of £10 per share corresponding to the period during which the 
 t rustees had held the first-mentioned stock, and to a like proportion 
 of the dividend declared upon the second portion. (x) Where stock 
 in trade, furniture, or other corporeal moveables, are given to a person 
 in liferent, it is an implied condition that the liferenter shall keep 
 
 (r) Marquis of Queemberry v. Scottish 
 Union Insurance Co., 1 Bell, 183, affirming 
 1 D. 1203 ; Shand v. Blaikie, 31 May 1859, 
 21 D. 878. 
 
 (s) Roberts v. Edwards, 33 L. J. Ch. 369 ; 
 
 c legacy to testator's wife of "the 
 
 £2000 secured on his life ;" she was held 
 
 entitled to bonuses due at the time of death. 
 
 ! Rolloy. Irving, 27 July 1803, I Paton 
 
 521 reversing M. 'Lifen nti i " App, No. 1. 
 
 See Cochrane v. Black, 1 Feb. 1855, 17 D. 
 321, on the question -whether the profits 
 over and above interest at 5 per cent, of trust 
 money, which had been employed in trade, 
 belonged to the liferenters or to the flats 
 under the trust. 
 
 (u) dimming v. Gumming' s Trs., 26 Feb. 
 1824, 2 Sh. 743, N.E. 620. 
 
 (r) Donaldson v. Donaldson's Trs., 12 
 Dec. 1851, 14 D. 165.
 
 OF LEGACIES AND RESIDUE. 393 
 
 up the stock, and leave it substantially of the value and description chapteb xxh. 
 which he receives.(^) Where a truster directed his estates to be 
 conveyed over in terms of a certain destination at the period of one 
 year alter the current year in which his death should take place, and 
 appointed the free runts accruing prior to that event to be applied 
 in payment of debts, and the yearly rents thereafter to be paid to 
 his daughter, it was held that the words " current year" meant the 
 civil and not the agricultural year.(z) The right of liferenters of 
 heritable estate pertains to the subject of the law of property, and 
 need not be particularly adverted to in this work. 
 
 761. The Apportionment Act (4 & 5 Will. IV., c. 22) does not Apportionment 
 apply to testamentary bequests of the rents current during the year cabkto bequests 
 of the testator's death; and accordingly, where a testator directed meats™ 17 pay " 
 the whole free rents of a specific heritable subject to be paid to his 
 
 widow during her life, commencing at the firsl term of Whitsunday 
 or Martinmas .-nor his death, she was held entitled to payment at 
 the first term after her husband's death of a full half-year's rent 
 in addition to the usual aliment and mournings. (a) And where a 
 testator directed his trustees to pay to his sister the dividends or 
 interests payable on £500 of certain bank stock, the principal sum 
 being given toother persons, the legatee was found to be entitled 
 to dividends, which, although declared prior to the testator s death, 
 were not payable until after that event.(ft) 
 
 762. A Legacy of the interest of a fund may, if such appear to be in what cases a 
 the intention of the testator, lie legitimately construed as a bequesl iTwiii'tim-'" 
 oi the subjecl it -elf; the failure to appropriate the capital being held, the caplt ' 11 " 
 
 in tin eof any distinct indication of intention, to create a pre- 
 
 sumption that an interesl in perpetuity was intended to be given. (c) 
 
 763. With respeel to interesl on legacies, the old rule was that From what 
 
 interesl was payable, at all events, from the period of twelve may%e^laimed 
 
 month- after the testator's death.(c?) J5y modern practice, interest by the le s atee - 
 
 rt v. Scott, 19 July 1867, 6 siduary estate, and not to pass under a 
 
 Macph. 1078. bequest of the income. 
 
 (2) WiUianuon v. Hay, 19 Jum L866, 17 (c) Compare Sanderson's Ezra. v. Kerr, 
 
 D. 960. '-'1 Doc. 18G0, 23 D. 227, with Burnaidea v. 
 
 I Douglas, L6th J11I3 1866, Smith,10 Junel829, 7Sh. 785. Seechapter 
 
 ]s I). 1240; Bee Trotta I hame, 26 19, \ 650, whi re the Englisl ise: are n 
 
 Not. 1889,2 D. 1 \0; Lockhartv. Lockkart, ferred to] 
 1 Feb. 1889, I D. 143. [d) aPInneav.M'Alliater,29 June 1827, 
 
 (b) M 1 v.Campbell'a Tra.,26 May - r > Sh. 862, N. E. 801 ; affirmed on anothei 
 
 1865, 8 Macpb. 888. [nth< Engli b case of point; Stevenson v. Macintyre, 20 June 
 
 /- G ndn -.. Kent, 1..,. Rep. I Eq.Ca.288, 1826, 1 Sh. 77<;. N. E. 784. On the other 
 
 dividei d before, but payable after hand, the legatee 1 li with 6 
 
 the fa ith, were, on the contrary, per cent, interesl and accumulations on 
 
 held i" form ) ■ > rt of the corpus ol th< re advanci m 1 l< to him beyond the
 
 39J 
 
 OF LEGACIES AND RESIDUE. 
 
 ohaptbbxxh. is held to be due from t 1 ii> date of the testator's death, or from the 
 ~ period at which the funds become productive. (e) In the case of 
 Ogilvie's Legatees v. Hamilton,(f) interest was allowed upon cer- 
 tain demonstrative Legacies only from the first term after the elapse 
 of three years from the testator's death, on the ground that the lega- 
 cies were specially declared not to be payable until after the sale of 
 estate upon which they were secured, and that three years was a 
 reasonable time to allow for the execution of a power of sale. This 
 case is not to be regarded as a precedent, and it has since been ruled 
 that, in the absence of any express direction as to time, the right to 
 the beneficial enjoyment emerges on the completion of the first year 
 alter the testator's death. (g) 
 
 764. For the reasons already stated, interest is due upon specific 
 legacies from the testator's death, notwithstanding that the period 
 of delivery is expressly postponed ;(7i) and in one case accumulated 
 interest was allowed upon certain specific legacies, on the ground 
 that the special legatees were entitled, as much as the legatees 
 
 1 
 
 specific legacies 
 
 tY in d:i ■ 1 1 tes- 
 tator's death. 
 
 of his share ; Plaine v. Thomson, 3 Dec. 
 1836, 15 Sh. 194. 
 
 (e) Duff's Trs. v. Scripture Readers, 19 
 Feh. 1862, 24 D. 552. 
 
 (/) Ogilvie's Legatees v. Hamilton, 10 
 Dec. 1833, 12 Sh. 189. 
 
 (g) See the cases upon directions to 
 purchase aud entail lands, in chapter 65, 
 section 2. According to English practice, 
 if a testator has fixed no time for the pay- 
 ment of general legacies, they are held to 
 be payable twelve months after his de- 
 cease, and to carry interest from that date; 
 Gottyer v. Ashburncr, 2 De G. & Sin. 404; 
 Wood v. Penoyre, 13 Ves. 333; and it is 
 immaterial that the estate is not produc- 
 tive ; Pearson v. Pearson, 1 S. & L. 10. 
 But there are several exceptions to this 
 rule : — 
 
 1. If a legacy is found to be in satis- 
 faction of a debt, interest is of course due 
 ii im the testator's death upon the amount 
 of the debt as at that date ; Clark v. Sewcll, 
 3 Atk. 99. 
 
 2. Where a testator directs a legacy to 
 be paid before the expiration of the period 
 of twelve months from his death, interest 
 will be dnc from the period of payment; 
 Lord Londesborough v. Somerville, 19 Beav. 
 295. And if a testator direct the legacies 
 to bi invested for the benefit of the lega- 
 
 i period beyond the expiration of 
 twelve months from his death, interest 
 
 will nevertheless be due from the end of 
 the first year after his death, unless the 
 contrary is expressly directed ; Varley v. 
 Winn, 2 K. & J. 700. 
 
 3. Interest is due upon a legacy by 
 a father to his legitimate child a morte 
 testatoris {Bedford v. Tobin, 1 Ves. sen. 
 310), unless the father has already made 
 a competent provision for the child; Re 
 Rouse's estate, 9 Hare, 649 ; Donovan v. 
 Needham, 9 Beav. 164. The rule has been 
 extended to provisions made by a person 
 putting himself in loco parentis ; Wilson v. 
 Maddison, 2 Y. & C. Ch. Ca. 372. 
 
 4. Annuities are held to run from the 
 date of the testator's death, and the first 
 payments fall to be made one year there- 
 after ; Gibson v. Bott, 7 Ves. 96. And a 
 legatee of the life interest in a residue 
 of personalty, is entitled to the proceeds 
 from the testator's death. See the cases 
 cited 2 Wh. & T. L. Ca. 3d ed. p. 283. 
 
 5. Where a legacy is made payable at 
 a particular time, or on the attainment of 
 a certain age, it does not carry interest 
 until that time ; Tyrell v. Tyrell, 4 Ves. 
 1, — unless the bequest comes from a pa- 
 rent, or a person in loco parentis ; in which 
 case interest will be allowed from the death 
 of the testator, if necessary for mainten- 
 ance; 2 Wh. & T. L. Ca., ut supra. 
 
 (h) Glasgow's Trs. v. Glasgow, 30 Nov. 
 1830, 9 Sh. 87.
 
 OF LEGACIES AND RESIDUE. 395 
 
 of the residue, to the entire produce of the subjects bequeathed to chapteb xxn. 
 them.(z) Dividends declared before the testator's death, but pay- 
 able at a subsequent period, have been held to belong to the lega- 
 tee.^) 
 
 765. One of the most difficult questions having relation to this Appropriation of 
 subject is that of the application of interest in cases where the pay- distritra 
 ment of legacies or provisions is conventionally postponed, and no JSrfffiSg 
 direction is given regarding the appropriation of the intermediate niin " lities - 
 proceeds. In the case of a legacy given to children by their father, 
 
 or by a person standing in loco 'parentis, which is declared to be 
 payable at majority or marriage, the object of the postponement is 
 presumed to be the protection of the estate; interest is accordingly 
 due on the legacy a morte testatoris,(l) and may be applied in so far as 
 y to the maintenance of the children. (m) Even where the 
 vesting of the capital is rendered uncertain by the payment being children pre- 
 made contingent on an uncertain event, the right to the interme- ^'\ ' 
 diate profits has. in the absence of an express direction to accumu- inthepn 
 late, been held to vest at each term, and to be transmissible to 
 representatives. (ft) A destination of lands in trust for behoof of 
 an heir in posse, was held to carry with it the right to the inter- 
 mediate rents of the lands in favour of such heir when he should 
 come into existence. (o) 
 
 766. In eases of postponed distribution, it would rather seem Enotherc 
 that Unless tin' objed of the testator in directing his trustees to re- distribution, un- 
 
 tain the capital in their hands is the benefit of the legatee himself SSlto 
 
 of minority and insanity), the interest must be ac- residue - 
 cumulated, and ultimately paid over to the residuary legatees. in 
 two recenl cases, in which this doctrine was virtually laid down, it 
 argued that tin- million t., provide for the appropriation of the 
 interest accruing upon legacies amounted to a lapse, the benefit of 
 which would accrue to tin- testator's heirs-at-law. Bui it was finally 
 determined that all such undisposed-of profits are carried by the 
 usual residuary clause.(p) The subsistence of a liferenl interest 
 
 (*) M'AUuta '/'■-. v. M'Allitter, 30 (m) Campbellv. Reid, 12 June 1840,2 
 
 1886, I". Mi. 170; Bee p. L59. [n l>. 1084; Ogihiev. Cumming, infra ; 117/- 
 
 I are held en- son \. Xihliv, to .Ian. 1825, 3 Sh. 430, N. 
 
 titled t" dividends am from the E. 301. 
 
 time of thi I death, although Hi- (n) Ogilvie v. Cumming, 27 Jan. L852, 
 
 I may have been directed to I" II I'- 863; Hardman \. Guthrie, I Juni 
 
 paid within twelve months after the i- 1828, ''■ Sh. 920. Bui ee Smilh't Trt. \. 
 
 i Brtito ■> Beav. Scai/e, t !>< • •. 1867. 
 
 11 L250. Templer v. Tempter, 1 April L828, 3 
 
 / v n, II D( c W. & s. 17, affirming I Sh. 160. 
 
 I D. 241. i Elder, 19 D. 71,8Macph. 
 
 M I! I 69, 1 Macq. 992; Sturgisv. Cam} 
 :'■■ D. I L28, 8 Macph. II. I
 
 396 0F LEGACIES AND RESIDUE. 
 
 cha ptkbxxii. upon an estate out of which a legacy is made payable, obviously lias 
 ' the effect of cutting off the claim of the legatee to interest during 
 
 the currency of the liferent, unless the legacy is expressly declared 
 
 to be payahle with interest,^) 
 
 ,\t what rate 767. ' As to the rate of interest payable upon legacies, the rule of 
 
 interest is pay- Drac tice is that no higher rate can be claimed than the fund has 
 able on legacies. 1 i "^ ii ^^ u > o _ 
 
 actually yielded, (>■) unless the executor has unjustly refused pay- 
 ment, in which case the claimant is entitled to legal interest from 
 the commencement of the proceedings, (s) Under the old law of 
 moveable succession, claims for the wife's share of the goods in 
 communion carried interest at five per cent.; (t) but children were 
 held not to be entitled to interest for the period antecedent to 
 forisfamiliation, or until such time as they were presumed to have 
 compensated by their services the money expended on their cloth- 
 ing and maintenance, (u) 
 Compound and 768. In another chapter we have treated of the subject of the 
 
 penal interest, l^^ity f trustees to penal interest, that is, either compound in- 
 terest or simple interest at a higher rate than would have been 
 exigible had the trust-funds been properly invested and the rules of 
 accounting observed, (x) Compound interest is not due on legacies 
 in the ordinary case, and where a person bound himself in his 
 daughter's marriage-contract to give to certain trustees, for a provi- 
 sion of £300, " the interest of which sum is to accumulate with 
 the principal," and no demand was made for payment of the interest 
 for several years, it was held that the direction to accumulate was 
 to the trustees, and that the obligant was not liable in compound 
 interest, (y) 
 
 Legacy liable to 769. II. ORDER OF PREFERENCE AMONGST LEGATEES.— A legacy 
 
 by "Ss^f ma y sum5r diminution either in consequence of the act of the tes- 
 
 testator's credi- 
 tors. 
 
 (q) Grant v. Leith, 31 Jan. 1811, F.C. rate of interest allowed by the Court of 
 
 See observations on this subject in section Chancery is 4 per cent. ; Sitwell v. Ber- 
 
 3 (Residuary Interests). nard, 6 Ves. 543, and cases cited 2 Wh. & 
 
 (r) See M'Innes v. McAllister, 29 June T., 3d ed. p. 287. 
 
 1827, 5 Sh. 862, N. E. 801, where 4 per cent. CO Smith v. Barlas, 14 Jan. 1857, 19 D. 
 
 was allowed on legacies from the period of 267. 
 
 one year after the testator's death; Wil- (u) Menzies v. Livingston, 27 Feb. 1839, 
 
 liamson v. Suttie, 20 July 1843, 15 Jur. 1 D. 601 ; Steel" s Trs. v. Cooper, 16 June 
 
 637, where bank interest only was found 1830, 8 Sh. 926; Dudgeonv.Arnot,\'d~i$o\. 
 
 to be due from the date of consignation in 1830, 9 Sh. 36. 
 
 a process of competition in which the holder {x) Chapter 74, section 2. 
 
 of the fund did not take an active part ; (y) Gunn v. Gordon" s Trs., 8 July 1854, 
 
 and Menzies v. Livingston, infra. 16 D. 1027. In England compound in- 
 
 (s> See Darling v. Adamson, 16 May terest can only be claimed in virtue of a 
 
 1834, 12 Sh. 598; Kelly v. Kelly, 8 Mar. special direction in the will; Arnold v. 
 
 1861, 23 D. 703; Duff's Trs. v. Scripture Arnold. 2 My. & K. 365. 
 Readert, 19 Feb, 1862, 21 D. 552. The
 
 OF LEGACIES AND RESIDUE. 397 
 
 tator, as when lie leaves a legacy of an heritable subject burdened chapter xxu. 
 
 with a debt or specific provision, (z) or in consequence of the liability 
 
 of the estate for the testators debts. Questions of abatement may 
 
 arise between the residuary estate and the general and specific 
 
 legatees, between heirs and executors, and between liferenters and 
 
 fiars.(a) 
 
 770. Subject to the observations already made respecting the in- Specific legacies 
 ridence of burdens, the rule is, that legacies and dispositions of „ntii°other funds 
 specific subjects do not suffer abatement until the general estate is exhausted - 
 exhausted. (6) And a declaration that a specific legacy shall abate 
 
 in a particular contingency, is to be strictly construed. Thus, 
 where a truster left a house to his niece, and certain heritable estate 
 to his nephews, with a power in favour of one of them to take over 
 thf estate on condition of paying certain legacies to the other bene- 
 ficiaries, and, inter alia, a legacy of £500 to the niece, and tli<' 
 nephew did not exercise the option of taking the entire estate, and 
 the fund> proved insufficient, — it was held that the niece was not 
 entitled to claim the Legacy of £500 out of the estate bequeathed to 
 tin' nephews, because her right to payment out of that estate did 
 not arise except in the event of the house being taken over under 
 the power. Further, as both the provisions were of the nature of 
 special Legacies, it was held that the outstanding debts remaining 
 after the exhaustion of the general estate must be allocated rate- 
 ably upon both subjects.(c) A legacy secured unconditionally upon 
 subjects specifically destined must be paid in full, notwithstanding 
 that tin' subject has already suffered abatement in consequence of 
 the insufficiency of the general funds. (d) 
 
 771. Genera] Legacies of definite sums of money are preferable to General legacies 
 
 do not abate 
 
 (z) Frew v. /•',-.»•. 16 Feb. isi>s, 6 Sli. plicable, and that the debts were charge- " M,il ™ 
 
 564; and cases cited infra. able in the fir I in t: i on the residue. 
 
 ipter 72, infra Liabilities of In this case the amount of the bequest was 
 
 the Real and P( unci rtain. 1 ■■ im- <\< -pendent on tin- \ 
 
 (/j) In the English caseof Pagev. Leap- of the stock when it came to be sold. But, 
 »'".'/"'■ 168, the principle was laid added his Honour, if it had appeared 
 down by Sir W. Grant, thai although a the testator thought he was dealing with 
 was in form residuary, yei if the the sum of .£7100 sterling, and he had di- 
 stention appeared to 1"; to give it as a vided ii into different proportion . the loss 
 specific legacy, it should onlj suffer abate- would thm have fallen mi all tin- pi-i 
 in. Hi with other specif l uteri I L in proportion to their shares, al- 
 tinction isaverj 1 later though the last portion were called there- 
 
 . where a testator, having a power of Bidue; Pe#v v. Petre, II Beav. 197. 
 appointment by will over £7100 '■'■', Per Oreig't Try. v. Qreig, 6 June 1864, 
 
 . appointed E6000 to A.. £500 to I'.. 16 D. 899. Bee Dennisloun \. Dennittoitn, 
 
 and the n I and the Btoch had 12 Dec. 1821, 1 Sh. 206, V B. 195. 
 
 ie liable to the payment of 1 (</) Fergus v. 1 i Feb. 1888, 11 
 
 Sir John Romilly, M.-i:.. b< Id thai the Sh. ■ 
 priii' , f Page v, Leapingv ■ U wa ; inap-
 
 398 
 
 OF LEGACIES AND RESIDUE. 
 
 oHAPTKBxxu. residuary interests; though, in the event of a deficiency of funds to 
 meel the claims of creditors, they are, of course, subject to abate- 
 ment pro rata.(e) And where a testamentary estate was sufficient 
 for the paymenl of debts and pecuniary legacies, but, in consequence 
 of the Fraud of the trustee, a part of the estate was lost, it was held 
 thai the loss should not be borne exclusively by the residuary lega- 
 tees, but that the pecuniary legacies should suffer a proportionate 
 abatement according to their relative values. (/) Legacies for 
 charitable purposes have no preference over other legacies. (g) A 
 direction to trustees to employ the surplus of personal estate in 
 the purchase of lands, to be entailed on his heirs, is, in a question 
 of Liability, simply a residuary destination. (h) Such directions are, 
 as we have elsewhere seen, strictly construed ; and so a direction to 
 employ the produce" of future acquisitions in the purchase of lands 
 to be entailed, will not carry an estate previously vested in the 
 truster. (*) 
 
 772. A testator may so frame his settlements as to confer a pre- 
 ference upon one or more of the general legatees at the expense of 
 the rest. In addition to the cases on annuities, to be afterwards 
 noticed, reference is made to Currie v. Currie,(k) where a testatrix, 
 believing that she had the power to dispose of £3500 — £1000 of 
 which was secured to her by antenuptial contract, and the remain- 
 der by a postnuptial settlement which the husband subsequently 
 revoked,— gave the sum of £1000 sterling to her daughter, to be at 
 her own absolute disposal, and declared that the remaining sum of 
 £2500 sterling should remain invested for the liferent use allenarly 
 of the said daughter, and of her children in fee. The free fund 
 being reduced to £1000 in consequence of the revocation of the 
 postnuptial contract, the Court were of opinion that the intention 
 was to give the first sum of £1000 preferably, and directed the 
 whole fund to be paid over to the daughter. Where trustees are 
 directed to invest or set apart a sum of money in a particular way, 
 or in particular stocks, the legatees are entitled to the benefit of an 
 
 Prefen 
 
 legatees in vir 
 tue of express 
 ' ui.iry 
 prff\ isions in 
 their favour. 
 
 (e) Ersk. 3, 9, 11, & 12; Bell's Prin. § 
 1875-7. In England it is held that a de- 
 monstrative legacy, that is, a legacy se- 
 cured on a particular fund, is entitled to 
 the privileges of a specific legacy in regard 
 to exemption from liability to abatement 
 until other general legacies have been ex- 
 hausted; Roberts v. Pocock, 4 Ves. 150; 
 Lambert v. Lambert, 11 Ves. 607. 
 
 (/) Baker v. Farmer, Law Rep. 4 Eq. 
 Ca. 382. 
 
 (g) Monro v. Scott's Exrs., 1630, M. 8048. 
 
 (h) Hamilton v. Bennett, 16 Aug. 1833, 
 6 W. & S. 533, affirming 10 Sh. 330. 
 
 (i) Allan v. Glasgow's Irs., 1 Sept. 1835, 
 2 S. &. M'L. 333. See chap. 65, sect. 1. 
 
 (k) Currie v. Currie, 22 Jan. 1835, 13 
 Sh. 290. See the English cases cited in 2 
 Wh. & T. L. Ca. 3d. ed. p. 282.
 
 OF LEGACIES AXD RESIDUE. 399 
 
 investment equal in value to what might have been obtained for chaptebxxh. 
 the money at the trusters death. (7) 
 
 773. The order of liability of usufructuary interests tails to be Liferent inter- 
 determined on similar principles to that of legacies of capital. Thus, Stent^ubject 
 where a testator settled a jointure upon his widow, and divided the toabatement - 
 residue of his heritable estate into shares, certain of which were to 
 
 he liferented by his daughters, the sons' shares to be paid absolutely, 
 it was ruled that the interest of the heritable debt, and also the wi- 
 dow's jointure, were to be paid by the trustees, so as to affect the 
 provisions of the sous and daughters rateably.(m) The expense of 
 opposing an application for the appointment of a judicial factor on 
 a trust-estate was held to he chargeable against the capital of the 
 estate, and not against the liferent, on the footing that it was an 
 extraordinary i Kpenditure incurred in defending the trust.(w) 
 
 774. Where a fund is settled Upon Olie person ill liferent, with Fixed annuity 
 
 remainder to others in loo, fixed annuities form a proper deduction iWn'nt.'' '' 
 from tli'' liferenl ; and the liferenter has no claim upon the fiar or 
 • e of the capita] tor repaymenl of the termly annuities. (o) 
 
 775. The question whether an annuity is a proper charge upon where the in- 
 the capital or residue of a succession, where the income is insuffi- ' '"""'" I lh '-"y 
 
 * tamentary i tate 
 
 cient to meet the annual payments, cannot be said to be yet settled is insufficient, an 
 
 . , t , annuity, as a 
 
 upon general principles by authoritative decisions of the Court, pnn-a'i i.^-v. 
 In the case of Berry's Trs. v. Cox's Trs.,(p) an annuitant was held payaWeoutoi 
 to have a preferable claim in competition with the testator's child- ^ tal ° I 
 nn and residuary legatees ; but the judgment proceeded, to some 
 extent, on the circumstance that, under the will, the children had 
 also a preferable claim to fixed legacies of considerable value, which 
 ies vore aot interfered with by the claim of the annuitant. 
 In the case oi Casamaijor v. Pearson,((/) which is the besl autho- 
 rity for the opposite construction, the annuities were given in Mich 
 terms as clearly Bhowed thai the testator did not inti ad that the 
 capital should be touched. 
 
 776. Neither of these cases is decisive of the question; but it Reasonoftbis 
 appears to us that, in the absence of any direction to the contrary, ""' 
 
 a legatee of an annual paymenl must be held to be in the same 
 
 (I) Hortburgkv. Horsbwgh, 1 Maa L848, L021 ; and \ on v. Borthwick, 18 Feb. 
 LO D v v. Gray, A June 1885, 1806; M. " Liferenter," App. No. 2. 
 
 Berry's Trs. v. Cox's Trs., 18 July 
 /' Dennt own, 12 Dec. I860, L2 D. L087; Miller's Trs. v. Miller, 
 
 L821 I Sh.206, N. E.196. 28 Feb. 1848, LO D. 766, 4th point 
 
 Baxter and Mitchell v. Wood, 24 Bee flow v. Macken ie, II Julj L888, 16 
 L864, 2 Macph. 916; '//: ehern \. sh. 1 
 Campbell's '/' 8 Macph. (?) Casamaijor v. Pearson, 29 April 1841, 
 
 '_' Rob. 217; Currit v. Threshie, supra. 
 T i 1 Jul; I- 16 8 D.
 
 £00 OF LEGACIES AND RESIDUE. 
 
 oHAMRBxxn. position as a legatee of a capital sum in the sense of having a 
 righl whichis preferable to thai of the residuary legatees ; and that 
 there can be no residue until annuities as well as legacies are fully 
 paid. Where the income of the testamentary estate is sufficient 
 to satisfy the annual payments, the annuity will fall to be provided 
 out of it ; but in the case of a deficiency of income, the capital must 
 also be applied either towards making up the annual payments, or 
 in purchasing an annuity of the required amount. This opinion is 
 
 opinions Lord supported by the judgment of Lord Barcaple, in a case now under 
 appeal to the Inner-House, and which will most probably be re- 
 ported before the publication of this volume. (r) 
 
 SECTION III. 
 RESIDUARY INTERSTS. 
 
 what words 777. After the special purposes of a settlement have been ful- 
 
 ^hni-v'iniercs't. filled, there may remain a surplus fund or residue ; and the disposal 
 of this surplus is usually the subject of the ultimate purpose of the 
 settlement. No particular form of words is requisite to the effectual 
 constitution of a destination of residue. The presumption being 
 very strong against the supposition of partial intestacy, it is scarcely 
 possible that a testator meaning to dispose of the residue of his 
 estate should fail to express his intention in adequate language, (s) 
 A testator, however, while intending to dispose of his whole estate, 
 may fail to make provision for some contingency ; and, unless he 
 has guarded the settlement by a residuary clause broad enough to 
 cover everything, the lapsed interest will result to his legal repre- 
 sentatives, (f) 
 Lapse a- 778. Wc have elsewhere investigated the subject of lapsed or 
 
 ad* gen ^stint resu ltmg interests, including the consideration of the circumstances 
 tion of estate, in which a lapse may occur, and the avoidance of a lapse in cases 
 where a beneficial interest of a residuary character is given to the 
 
 (r) Skinner v. Robertson, et al., decided gives the annuitant the benefit of the 
 
 in the Outer-House, 20th July 1867. A full payment, if necessary, out of the capi- 
 
 similar decision was lately pronounced by tal." 
 
 the Lords Justices in Chancery, reversing (s) Some decisions upon expressions 
 
 the decision of Stuart, V.-C. ; Birch v. which have been held to comprehend resi- 
 
 Sherrat, Law Rep. 2 Ch. Ap. 644. The due will be found in chapter 17 (Estate or 
 
 question in England, as here, is treated as Subject of Disposition). 
 
 one of intention ; but, said Sir J. Rolt, (t) The extent of the residuary interest 
 
 L.-.T., " If an annuity for life be given out must be estimated as at the conclusion of 
 
 of the interest of trust-funds only, and the trust management, and not at the tes- 
 
 then the trust-funds are given after, and tator's death ; Mackenzie's Trs. v. M 'Dowall, 
 
 subject to the satisfaction of tho annuity, 11 March 1852, 14 D. 739. But see Adv.- 
 
 I should prefer the construction which Gen. v. Hill, 19 March 1862, 24 D. 808.
 
 OF LEGACIES AND RESIDUE. 401 
 
 trust-disponee.(tt) As preliminary to the examination of the ques- chapter xxn. 
 tion, what interests are carried by a residuary clause, we may here 
 enumerate the various conditions which may lead to a partial failure 
 of the testator's intentions. 
 
 779. Where there is a partial disposition or bequest to certain How a right 
 persons for purposes to be afterwards declared, and the testator dies collapsed, or 
 without executing any deed of appropriation ;(x) or for trust pur- fal1 mt0 residue - 
 
 - which are set aside by the Court as vague, inextricable, (y) or 
 unlawful, (z) or which do not exhaust the estate; (a) or upon trust to 
 lie distributed at the discretion of a party who dies leaving the power 
 unexecuted, (6) or for purposes which lapse by the failure of the bene- 
 ficiary,(c) or in consequence of his being excluded by the law of ap- 
 probate and reprobate ;(d) in any of these cases the beneficial inter- 
 es1 will either fall into residue or result to the legal representatives. 
 And although the entire interest in estate which is the subject of 
 disposition (e) or bequest (/) is not in so many words impressed 
 with the character of a trust, yet if a trust is declared of any part 
 of the estate, the presumption is, that no beneficial interest was 
 meant to be given to the disponees. In the absence of a residuary 
 clause, such interests will therefore result to the legal represen- 
 tatives. 
 
 780. In numerous cases, (or) in which general or specific (A) lega- What interests 
 
 • • i / w i t /• wo feu into residue 
 
 cies and provisions have been found to become lapsed in consequence on the failure of 
 of the legatee not having survived the period of vesting, residuary po se?Legacies" 
 
 (a) Chapter 48, sects. 1 and 2. 14 D. 145; Peat v. Peat, 14 Feb. 1839, 1 D. 
 
 (x) Sinclair v. TraiU, 27 Feb. 1840, 2 D. 508. 
 i.l bill e Alston v. Mars},, ill, 2 July (e) Finnic v. Commrs. of Treasunj, 30 
 
 1 1 SI). 868 : Irvine v. Bannerman, 20 Nov. 1836, 15 Sh. 165; Henderson v. M-Cul- 
 
 June 1844, 6 D. 1173. loch, 12 Juno 1839, 1 D. 927; Hamilton v. 
 
 (>/) BelTfl I'r. I L884; Maton V. Skinner, Conhm, 1724, M.r.5K,s : llhickiroodw Dykes. 
 
 6 March L844, 16 Jur. 422, and sequel of 11 Sh. 443. 
 M l Na\ Bre stated. (/) Soutar v. M'Grugar, 22 Jan. 1801, 
 
 (z) Lordv. CoMn, 7 Dec. 1860, 23 D. M. "Implied Will," App. No. 2; Ramsay 
 
 111; Keith's Try. v. Keith, 17 July 1857, v. Anderson, 26 Feb. 1886, 14 Sh. 570; 
 
 r.i D. 1040. Killer v. /Hack's Trs., 14 Sh. 555, 14 July 
 
 riant v. Oranstoun, 12 Dec. 1823, 1837, 2 S. & M'L. 866 ; M'Leish's Trs. v. 
 
 2Sh. 678, X. B. 496; and see as to re- M'Leish, 26 May 1841, 3 D. 914. The 
 
 suiting int. nsts under ( 'heritable Trusts, cases noted in this paragraph include those 
 
 chapter 48, ed 2. purpose may fail. 
 
 Vuiiflfis v. Dunihis, 27 Jan. 1837, 15 of lapsed int. rests falling 1" the heir-al 
 
 Sh. 427; Pursell \. Elder, 19 1>. 71; 8 law, and are cited as illustrations of the 
 
 Macph, II. L. 69, i tfacq. 992. various modes in which a testamentary 
 
 (c) Torri* v. Mvnsie, SI Ma-, 1882, 10 {g) Bee chapters 42 and 48 (Law of 
 
 sh. .v.. 7 : Namjfth v. Bare, L7 F< b. L819, Vt ting); Scoti v. Scott, 7 Feb. L848, 6 1>. 
 
 F.I Lord v. Oohm, 16 July 1865, 8 520. 
 
 tfacph. 1"- (//) Earl of Moray v Stuart, 1782, M. 
 
 i Dec. 188] 8108 
 
 Vol.. I. - I
 
 I 
 posal 
 
 102 OF LEGACIES AND RESIDUE. 
 
 ohaptkbxxii. legatees have been preferred to the lapsed succession. It is oi no 
 consequence whether the testator were or were not in the actual en- 
 joymenl of the estate, if he was in a position to dispose of the in- 
 states subject teresl in it after his death. Tims, where a power was conferred on 
 '' ,llv " an annuitant of disposing and conveying at pleasure the capital 
 sum of a fund set apart lor payment of the annuity, it was held that 
 ;i genera] settlement executed before the power came into operation 
 carried the fee t<> the annuitant's residuary legatees. (i) A residuary 
 Bonuses on clause carries a bonus on bank stock forming part of the estate ;(&) 
 ofpoli- and such a clause was held to comprehend the reversionary interest 
 al',0.'! ' * in a policy of assurance which had been assigned, by ex facie abso- 
 
 lute disposition, in security of a debt. (?) 
 taims of 781. Interests resulting by the operation of the law of approbate 
 ri'iMmi!" 1 and reprobate fall into residue. Thus, where a provision in favour 
 of the testator's children, with right of survivorship, was charged on 
 heritable estate in Scotland, and one of the children claimed legitim, 
 the lapsed interest was found not to be subject to accretion, but 
 to devolve to the residuary legatee, so as to enlarge the fund out 
 of which the legitim was payable. (m) 
 i, charged 782. Several cases will be found among the English decisions, 
 ^tate. '' on the question, whether lapsed legacies charged on real estate will 
 
 fall into a residue limited to personalty. (n) In the case of the 
 Advocate-General v. Williamson, (o) where a power of sale for the 
 purpose of distribution was held effectual to change the succession 
 from heritable to moveable, it w r as assumed that the expression 
 " means and effects" would carry the residuary proceeds of the 
 heritable estate, for legacy-duty was charged upon the whole estate 
 Proceeds of con- considered as testate succession. It therefore appears that a resi- 
 duary clause conceived in terms applicable in a strict sense to move- 
 able estate only, would be sufficient to carry a lapsed interest under 
 a bequest of a sum of money which is appointed to be paid out of 
 the proceeds of the general heritable estate. But a legacy charged 
 as a burden on an estate wdiich is the subject of a special destina- 
 tion, can scarcely lie held to be within the scope of a residuary 
 clause; and if the bequest failed, we should think the heir to whom 
 the estate was destined would be entitled to the benefit of the failure. 
 
 (?) Hyslop v. Maxwell's Trs., 11 Feb. (m) Breadalbanes Trs.x. Pringle, 15 June 
 
 1834, 12 Sh. 413. 1841, 3 D. 357. See Peat v. Peat, 14 Feb. 
 
 (k) Cumming v. Cumming's Trs., 2G Feb. 1839, 1 D. 508. 
 
 1824, 2 Sh. 743, N. E. 620. (»,). Amphlett v. Parke, 2 R. & M. 232 ; 
 
 (I) Marquis of Queensberry v. Scottish M'Leland v. Shaw, 2 Sch. & Lef. 545, and 
 
 Union Insurance Co., 8 March 1842, 1 Bell, cases in Lewin on Trusts, chapter 8. 
 
 183, affirming 1 I). 1203. (o) Adv.-Gen. v. Williamson, Ex. Eep. 
 
 No. 1 ; 13 D. 43G, 2 Bell, 89.
 
 OF LEGACIES AND RESIDUE. 4:03 
 
 783. Where the distribution of a testamentary estate is post- ohaptbbxxh. 
 poned in consequence of the existence of annuities for life, it is Surplus pr0 . 
 held that the accumulations of the surplus proceeds belong to resi- c , eed f of , a r,1 " i " 
 
 . . *■.■*■ ° due burdened 
 
 due.(jj) For determining the respective interests of the annuitants with annuities, 
 and the residuary legatees in the annual proceeds of a fund which 
 was charged with an annuity in equal shares, the following rules 
 were laid down by the House of Lords in the case of Casamaijor v. Casamaijor v. 
 Pearson : — (1) that the annuitants were respectively entitled to pay- 
 ment of their provisions for any one year, only in so far as the free 
 annual proceeds of the fund during such year were sufficient for the 
 payment thereof; (2) that when in any year the free proceeds ex- 
 d the aggregate amount of the annuities, the surplus belonged 
 to the residuary Leg tees; and (3) that on the death of either annui- 
 tant, the survivor was entitled to payment of one-half of the fixed 
 annuity if the interest of the residue were sufficient to satisfy the Undisposed-of 
 claim. (7) Where a liferent interest lapses in consequence of the erentmter ' 
 widow claiming her legal provisions, the interest of the fiar is not 
 thereby enlarged, nor does it emerge until the event of the death 
 of the liferentrix ; the intermediate proceeds fall into residue, to 
 compensate the payment of the legal provision, (r) 
 
 784. With regard to the interest or annual proceeds of estate Undisposed-oi 
 not specially appropriated, whether heritable (s) or moveable, (t) £££?*"" 
 the genera] rule is — subject, of course, to the limitations introduced 
 
 by the Thellusson Act — that such proceeds must be accumulated 
 for the benefit of the beneficiaries entitled to residue, until the ar- 
 rival of the period of division. Where the payment of a residue 
 given to miner children is deferred until the attainment of the age 
 of majority, a power to provide for their maintenance out of the 
 interest maybe inferred from Blight indications of intention, if in- 
 deed it is not implied in the nature of the bequest. (u) 
 
 785. The interest accruing 011 adeferred legacy of a Bpecial fund interest on de- 
 accrescesto the capital.(cc) Thus, where the interest of a fund was erred legacy " 
 
 (/>) Ramsay y. Anderson, 26 Feb. 1886, of a power to charge the rents of an en- 
 
 I4 8h. 670; Casamaijoi .. /' 1, 29 April tailed estate during :t term of years, il 
 
 I- II. "J Rob. '-'17; Sturgis v. Campbell, 'S-\ would seem the inti r< -1 of the rents is 
 
 I». 1128; L9 M v L866, 8 Macph. II. L. not chargeable ; Earl of Wemyssv. Trail, 
 
 7'»; an i 28 Nov. 1810, F.C. 
 
 .'IT Boyd v.Boyd, (t) Pursell v. Newbigging, 19 D. 71: 
 
 1861, 18 D. L302; B 1 /' . . 24 March L866 (nom. Pursell \ I 
 
 > r 1 • .! . i860, 12 D. 1087. 8 Macph. II. L. 59; I Macq. 992; Sturgis 
 
 Dixoi Fisher, 1 J W. v. Campbell, supra; Campbell v. Reid, 12 
 
 LO Bh. 66 ; Peat v. June L840, 2 D. L0{ I. 
 I (u) Campbell v. Reid, supra. 
 
 I • 9 I i ' ! 1 tion 2. 
 
 Sli. ::7 Glasgow's Trs. v. Glasgow, 80 Nov. 
 
 / 1 J, 1880 9 Sh. 87; V'Alt tei < H \l ter, 80 
 
 8 W. & 8. 17. affl ; 160 B t Nov. 1 h. 170 
 
 appointed in nr\ 
 
 2 , 2
 
 -i<> I 
 
 OK LECACIKK AND RESIDUE. 
 
 OH MTl'l! XXII. 
 
 [nterest of 
 money directed 
 to be laid out 
 on land. 
 
 Undisposed-of 
 capital : whore 
 interest given 
 in liferent. 
 
 Lapse caused 
 by the failure of 
 one or more of 
 the residuary 
 legatees. 
 
 In case of residu- 
 ary legatee re- 
 pudiating the 
 
 -nt, his 
 share accrues to 
 the co-residu- 
 aries. 
 
 destined to the daughters of a testator in liferent, payable at mar- 
 riage or majority, the trustees being empowered to expend such 
 portions of the intermediate income as might be proper for their 
 benefit during minority, it was held that the surplus income which 
 had accrued during the minority of the legatees fell to be paid over 
 to them absolutely. {y) And where a residue was given to minor 
 children, payable as they should respectively attain the age of 
 twenty-one, in equal shares, and the shares of the capital were 
 found to vest in the several legatees at majority, it was held that, 
 in order to accomplish the equality contemplated by the testator, 
 the interest which accrued on each share in the hands of the trus- 
 tees should be paid to each legatee along with his share of the 
 capital, (z) Interest of a fund directed to be invested in land, to 
 be settled in accordance with the truster's directions, is payable to 
 the heirs in the destination from and after the time at which the 
 trustees ought, in the exercise of a reasonable discretion, to have 
 made the investment, (a) Where the trust depends on the occur- 
 rence of a contingency, the interest will fall to be added to the 
 principal, subject to the statutory restraint applicable to accumu- 
 lations, (b) 
 
 786. Where the interest of a fund is directed to be applied for 
 the use of a beneficiary, it is a question of intention whether the 
 capital is to be regarded as residue, or as impliedly given to the 
 legatee. If the apparent object is to withhold the payment of the 
 capital for the purpose of more effectually securing the subject as 
 an alimentary fund, a legacy of the capital may be implied, (c) 
 
 787. Even where a testator has provided by a total settlement, 
 containing a general residuary destination, for the disposal of his 
 entire succession, it may happen that his intentions are partially 
 defeated by the occurrence of a lapse ; as, for example, in the case 
 of the predecease of one or more of the parties to whom shares of 
 the residue are given, (d) or through the non-exercise of a power of 
 disposal given to a liferenter,(e) or in the case of a repudiation of 
 the settlement by some of the parties. (/) The case of Nisbet's 
 Trs. v. Nisbet (g) decided that where a residuary legatee obtained 
 
 (y) Graham v. Graham's Trs., 12 Keb. 
 1863, 1 Macph. 392. 
 
 (z) Graham Smith's Trs. v. His Legatees, 
 4 Dec. 1867. 
 
 (a) See the cases on this point com- 
 mented on in chapter 65. 
 
 (b) Earl of Bective v. Hodgson, 33 L. J. 
 Ch. 601. 
 
 (c) Sanderson's Exrs. v. Kerr, 21 Dec. 
 18;0. 23 D. 227; and see Burnside v. 
 
 Smith, 10 June 1829, 7 Sh. 735 ; Blann v. 
 Bell, 5 De Gex & Sm. 658 ; 2 Roper on 
 Legacies, 1475 ; Broom's Legal Maxims, 
 606 ; Williams on Executors, 6th ed. p. 
 1109 ; supra, § 650. 
 
 (d) Torrie v. Munsie, infra. 
 
 (e) Alves v. Alves, 8 Mar. 1861, 23 D. 
 712. 
 
 (/) Nisbet's Trs. v. Nisbet, infra. 
 
 (g) Nisbet's Trs. v. Nisbet, 5 Dec. 1851.
 
 OF LEGACIES AND RESIDUE. 405 
 
 xxn. 
 
 a decree of reduction of the settlement quoad the heritable estate chapter 
 ex capite lecti, and thereby forfeited his residuary interest in the ~ 
 moveable estate, his share did not result, but became divisible 
 among the eo-residuaries. 
 
 788. The rule is different in the case of a share of residue be- in case of pre- 
 coming vacant in consequence of the predecease of the legatee. In S^iega- 
 that case the law has been settled, since the decision in Torrie v te ?» ^ «*«««- 
 
 mm- . ,, , , , . ' suits to the next 
 
 Munste, that a lapsed share of residue results to the testator's next ufkiu - 
 oi kin, (A) unless the destination of residue is conceived in terms 
 which give, expressly or impliedly, a joint interest, (7) However, 
 m a case where a testator divided the residue of his estate into 
 twenty-four equal shares, reserving power to dispose of two of the 
 shares which he left unappropriated, with a precatory direction 
 that, in the event of his failing to do so, the amount of the unap- 
 propriated shares should be merged in the general division, it was 
 beld by Lord Wood, in consideration of the manifest intention of 
 the testator to exclude any resulting interest, that the share of a 
 predeceasing beneficiary ought to follow the residuary destination 
 impressed upon the unappropriated shares. (k) 
 
 789. Provision may, and generally ought to be made against the Lapse of residue 
 occurrence of a lapse of shares of succession, by the insertion of a g£S *™Z 
 clause 1 )] survivorship, or other ulterior residuary destination. Where case of f;lil,1,c - 
 the residue of an estate was destined to the children of A. and 15. 
 in equal shares, ii was observed, that although this destination, 
 being in severalty, would not carry a lapsed share over to surviv- 
 ors, yet the added words, "I hereby appoint the children of the 
 said A. and J), to be my residuary legatees," implied a gift of the 
 entire residue in favour of the surviving children, and were effec- 
 tual to exclude any claim thai might be preferred by (he next of 
 kin.(Z) In taking instructions for a settlement, the attention of 
 the testator oughl to he directed to the necessity of providing against 
 a total or partial failure of the primary destination of the residue. 
 
 111). Ii:,: Breadalbane's Trs. v. Lady A'. 1836, II Sh. 485; Robertson v. MVean, 
 
 Pringle, L6 June 1841, 8 1». :;-~>7 ; and see LO Dec. 1819, Bume, 273; Arbuthnott v. 
 
 ■'. '2r, Feb. 1835, 18 Sh. Arbuthnott, 7 June 1816, Hume, 274. 
 ■■ >1. (/■-) Irvine v. Bannerman, 20 June 1844, 
 
 (A) Torrie v. Muruie, 81 May L832, 10 6 D. L178; and Bee Alston v. Marshall, 2 
 
 Sh. 597. July is:;::. 11 Sh. 868. 
 
 n v. Campbell, L6 Mar. 1856, (/) Alvet 7. Ah/es, 8 Mar. 1861,28 D. 
 
 17 D. 759; /' rbum . Thorburn, L6 Feb. 712. Per Lord Ju tici I leri [nglis, 716.
 
 406 
 
 OF MARE1AGE CONTRACT PROVISIONS. 
 
 •ii \r n i; win 
 
 CHAPTER XXIII. 
 
 OF MARRIAGE-CONTRACT PROVISIONS. 
 
 I. Form and Effect of such Provi- 
 sions. 
 
 II. Antenuptial Provisions, how secured. 
 III. Postnuptial Provisions. 
 
 Division of the 
 subject. 
 
 790. Marriage-contract provisions may be distinguished accord- 
 ing to the person by or to whom the obligation is granted ; according 
 to the form and subject of the provision ; and according to the legal 
 character of the beneficiary's interest in it. For the purposes of our 
 inquiry, it is sufficient to consider, first, the different species of mar- 
 riage-contract provisions ; secondly, the different modes of constitut- 
 ing those provisions so as to secure either a jus crediti available in 
 bankruptcy, or a prefer enticd right to the subject of the provision; 
 and thirdly, the specialties connected with postnuptial contracts. 
 
 SECTION I. 
 
 Provision by 
 
 way '>f obliga- 
 tion tn pay 
 money. 
 
 FORM AND EFFECT OF MARRIAGE-CONTRACT PROVISIONS. 
 
 791. Tbe simplest form of provision is that of a money obliga- 
 tion, e.g., for the payment of a sum of money or a liferent annuity 
 at the dissolution of the marriage, or at such time as may be agreed 
 on. Money provisions to wives are usually, though not invariably, 
 given in the from of an annuity. Provisions to children are usually 
 made payable through the intervention of trustees, to whom powers 
 are sometimes given of restricting the interest of any of the child- 
 ren to a liferent for necessary causes, and of settling the provisions 
 of daughters to their separate use by marriage-contract. A power of 
 division is usually reserved to the father, sometimes to both parents ; 
 and the legal claims of the widow and children are discharged. 
 Formand 792. Provisions to sons are usually made payable on their at- 
 
 lofpecu-, . . . . -. c , . . „ , „ 
 
 niary provisions taming majority, and after the death of the father ; sometimes at 
 chiuiren'ofthe 6 majority, without reference to the father's death ; or at the dissolu-
 
 OF MARRIAGE CONTRACT PRO^ [SIONS. tOI 
 
 tii ai of the marriage. (a) Money provisions to daughters are either chaptkb xxm. 
 in the form of an obligation to pay a fixed sum — the period of pay- 
 ment in their case being majority or marriage, whichever shall first 
 happen — or in the form of a sum to be liferented by the daughter, 
 with a destination of the ice to her children, whom failing, to the 
 surviving brothers and sisters and their issue. In point of fact, it 
 is believed that the forms of destination which actually suggest 
 themselves to the minds of tin- contracting parties arc very few, 
 and that the varietiesof destination which are met with in practice 
 owe their origin to the accidental differences in the styles used by 
 conveyancers rather than to the intention of the parties. Three 
 principal forms of destination may be distinguished: (1) where the 
 intention is to give children a vested interest in the capital upon 
 majority or marriage, although the parent may then he alive, pay- 
 ment being postponed until his death; (2) to give each child an 
 interest, which only vests upon majority or marriage, and after the 
 parent's death ; and (3) to give the children a life interest in the 
 proceeds of the estate, and the fee to their respective heirs ; the 
 vesting of the fee of each share being in this case postponed until 
 tin- expiration of the liferent. 
 
 793. Where a liferent of the entire estate is given in the first Destination to 
 instance to the wife, and the reversion or lee to the children, we an d children in 
 think that in most cases the intention of the parent is to give to 
 
 of his children an interest vesting at majority and capable of 
 being assigned or disposed of by will. The presumption for vesting 
 is stronger in the case of marriage-contract provisions than under 
 
 mentary settlements, because the provisions come in place of 
 Legal rights. Eowever, as the ascertainment of the term of vesting 
 
 verned in a greal measure by fixed rules of construction, de- 
 pending upon the form of the destination, care should be taken, if 
 any variation from the ordinary tonus is introduced into the settle- 
 ment, to state explicitly whether the children are or are not to have 
 the right of disposing of their shares by anticipation ; and, if so, at 
 what period a vested interest in the estate is intended to be given. 
 
 794. In the case of annuities to wives, the presumption, in the widow's annui- 
 absence of express stipulation, is, thai the hall-yearly payments are j. 
 
 to be made in advance, the widow being entitled ex lege to an allow- 
 ance for mournings, and to interim aliment for the period preceding 
 the first term's paymenl of her annuity.(ft) There is no reason for 
 
 • obligation to (6) Er k. t, 6, It . 2, 9, 67 i and 
 
 8 of the Palmer v. Sinclair, 27 June L811, I 
 child, or al the dh olution of the parei I i | i ■■ 10, 8 
 
 3h. 602; I July 1831, 
 
 '■' ■ Sh.
 
 408 OF MARRIAGE-CONTRACT PROVISIONS. 
 
 ohaptbb txm, interfering conventionally with the rule according to which widows' 
 annuities are payable in advance ; and unless a stipulation to the 
 contrary were trained in such direct terms as would be out of place 
 in a contract of marriage, the Court would not give effect to it.(c) 
 li is usual in modern contracts to name a sum in lieu of aliment 
 and mournings. Where the rents of specific subjects are left to a 
 willow in place of an annuity, she is not obliged to share the first 
 t unit's rent with her husband's executors (under the Apportionment 
 Act), because her interest is derived from the same person as theirs, 
 and the testator is entitled to exclude his executors.(d) 
 Provisions 795. Money provisions by landed proprietors are usually, though 
 
 of fib!e rentS not always, made chargeable upon or payable out of the rents of 
 ';';';,;. Jj™ the heritable estate. Although, practically, the beneficiaries under 
 such provisions, t liis form of provision have a better security for the payment of their 
 provisions than in the case of a simple obligation by a person whose 
 capital is embarked in trade, yet in point of law their interest is the 
 same. In both cases the free estate of the husband or father is 
 liable in payment of the provisions ; in neither case does the obli- 
 gation confer a preference, unless the party divests himself of a por- 
 tion of his estate to create a security for the obligation, (e) 
 Conditions 796. Money provisions to children, whether payable in the first 
 
 amoun" S of he instance out of the personal estate or out of land, may be made to 
 mom y provi- vary j n am ount, according to circumstances. A common stipulation 
 
 sions. J ° 
 
 is, that a certain sum shall be payable if there is only one child ; 
 so much if there are two ; and a certain larger sum for any greater 
 number ; subject, in the event of there being more than one child, 
 to a power of division by the parents or the survivors of them. In 
 influence of the the case of provisions to the younger children of landed proprietors, 
 law of entail. ^ lQ failure of heirs-male may be taken into view as a ground for 
 increasing the amount of the provisions to daughters. A provision 
 granted to daughters, failing heirs-male of the marriage, is exigible 
 where a son is born who predeceases his father. (/) Proprietors 
 of estates held on imperfect entails are, since the passing of the 
 Entail Amendment Act, no longer bound by substitutions in favour 
 of heirs-male, and may, therefore, settle their estates on daughters 
 failing male issue of the marriage. In such cases there is the less 
 
 (c) Rennie v. Walker, 1800, M. " Pre- (low's annuity, in a question between tho 
 sumption," App. No. 4. As to the right representative of an heir of entail who dies 
 of the widow's representatives to a propor- during her lifetime and his successor in 
 tiun of the last term's annuity, see Cole- the estate; see Paul v. Anstrather, 1 Macph. 
 brooke v. Gibson-Craig, 14 May 1835, 13 14, 15 Feb. 1864, 2 Macph. H. L. 1. 
 
 Sh. 756. (e) Section 2, infra. 
 
 (d) Thomson v. Douglas. 15 July 1856, (/) Ersk. 3, 8, 38 ; 1 Fraser, 823, and 
 18 D. 1240. As to the liability for a wi- cases there cited.
 
 future inheri- 
 tance. 
 
 OF MARRIAGE- CONT11ACT PROVISIONS. 409 
 
 reason for the introduction of fluctuating provisions into marriage- chapteb xxm. 
 contracts. 
 
 797. In settling provisions upon younger children, care ought to Exclusion of 
 be taken to exclude a younger child, succeeding to the estate by succeeding to 
 snrvivance, from the benefit of the fund.((/) In Cruickshank's Trs. otherestalr - 
 v. Cruicks?ianks } (h) where the whole rents of an estate were appro- 
 priated as a fund of division for younger children, on the narrative 
 
 that the eldest son was otherwise provided for, and the father 
 ohliged himself to secure a provision to the eldest son equal to that 
 of his younger children, in the event of his being deprived of the 
 inheritance of another estate, it was held, upon the occurrence of 
 tin- event contemplated, that the heir had no right to -a share of 
 the heritable fund provided to*the other children, but that his claim 
 - against the surplus estate. 
 
 798. Sometimes an heir apparent or expectant of heritable pro- Obligation to 
 perty undertakes an obligation in a contract of marriage, condition- chUdrenoui of 
 ally, in the event of his succeeding to the estate. It would seem, 
 notwithstanding the 8th section of 11 & 12 Victoria, cap. 36, that 
 such an obligation does not confer such a jus qucesitum on the child- 
 ren, as would prevent the father from afterwards consenting to a 
 disentail. (7) In one case, where a husband obliged himself by ante- 
 nuptial contract to provide a certain sum to the younger children 
 
 of the marriage, provided ho should succeed either to the whole of 
 certain estates, or to such part thereof as should be of the yearly 
 value of £3000, and he succeeded to the whole, the Court held that 
 tin- provisions were due, and that it was irrelevant to allege that 
 tin- yearly value of the whole estate was under £3000. (k) 
 
 799. Obligations are sometimes undertaken by the parents of obligations 
 spouses to provide certain sums of money to the children of the I j 
 
 marriage, which sums are cither made payable to such children ^contracting 
 
 <f *■ J part 
 
 immediately od the death of the grandparent, or are payable after 
 the expiration oJ a liferenl previously given to one or both of the 
 Bpou8es.(Z) Sometimes a hither, while settling a money provision 
 
 (//; Bee chapter 88, section 6 (Provisions less the trastei j of the contract Bhall con- 
 
 oger Children). sentto the application. In tin's case the 
 
 Tr$, v. Cruickthankt, 2 Court held the conseni of the father, and 
 
 1 868 L6 I ». 7. of the trustees of the con- 
 
 '. 27 Feb. 1857, L9 D. tract, sufficient to obviate any objection to 
 
 571. Th( ection (11 & L2Vict,c. 86, ec. the disentail on the score of the interest of 
 
 thai where the heir in po the younger children. 
 
 or heir apparent shall "have secured, I . Williams, 14 Dec. 1848, 6 
 
 by obligation in any marriago-contrad D. 226. 
 
 the descent of such estate upon the issue of (V\ Such an obli fan 
 
 the mania not be ( mpefc character; Miller 's Trs. v. Miller, 
 
 to di ent ril until the birth of a child who, 28 I' b 1848, 10 D. 765 
 by In- • un -
 
 -Iiu OF MARRIAGE-CONTRACT PROVISIONS. 
 
 ohaptm wm. on his daughter, undertakes that, in the eventual distribution of his 
 estate, she shall receive as large a portion as his other children. In 
 a case where the wile's father bound himself to pay to her after his 
 death a sum equal to "the portion or fortune" which any of his 
 other daughters might have from him, and he afterwards, in the 
 marriage-contract of another daughter, bound himself to pay her 
 £2000 at his death, with interest from the date of the marriage, it 
 was held that the daughter first married was entitled to claim an 
 equivalent for the whole sum received by her sister, inclusive of 
 interest. (m) In another case, the husband's father bound himself 
 to pay to his son a portion of £1000, and also " to put him on an 
 equal footing" with the other younger children; he afterwards 
 settled an annuity of £200 a-year upon his daughter, payable from 
 the date of her marriage. It was found that the son was entitled 
 to an equivalent for the annuity, and that the father's obligation 
 was not discharged by his leaving the son a share of his residuary 
 estate equal to that of the other children, (n) Where a wife's father 
 undertook to provide her in a share of his father's succession, which 
 had not yet opened to him, and eventually the succession was ex- 
 hausted by the payment of debts and the widow's terce, it was held 
 that a sum which the obligant ultimately received as the represen- 
 tative of his mother, including a portion of her terce, was not sub- 
 ject to the marriage-contract obligation, (o) 
 Provisions by 800. The most usual mode of making a provision for the widow 
 
 way of jointure. () f a i an( | j proprietor is by way of jointure, which is a fixed an- 
 nuity payable out of the rents of the estate. The husband obliges 
 himself to infeft her in security. The annuity is understood to be 
 chargeable with a proportion of the public burdens exigible from 
 v-iUio of c tat • ^he GS t a te. (p) Where a jointure is fixed at a certain proportion of 
 at what period the rental, the value must be struck as at the death of the husband, . 
 
 stimated. -i-ri i • • 
 
 and not at the time of the constitution of the annuity, as is the 
 case with a provision by way of locality, (q) Where the annuity is 
 made payable at the first term after the husband's death, out of the 
 rents of his entailed estate, it is held to be payable in advance ; but 
 the heir of entail paying the annuity has a claim against the ap- 
 portioned rents falling to the executors for a proportion of the first 
 termly payment corresponding to their share of the rents, (r) In 
 
 (w) Macqueen v. Nasmyth, 29 Jan. 1831, pp. 651, 658; 1 Fraser, 799, and cases 
 
 9 Sh. 355. there cited. 
 
 («.) Threshic v. Threshies Trs., 8 Feb. (q) Douglas v. Douglas, 15 May 1822. 1 
 
 1845, 7 D. 403. Sh. 408, N. E. 382 ; Rothes v. Rothes, 29 
 
 (o) Spalding v. Small, 13 Nov. 1821, 1 Jan. 1829, 7 Sh. 339; Macpherson v. Mac- 
 
 Sh. 123, X. E. 121. pherson, 24 May 1839, 1 P. 794: Menzies 
 
 (/■! Erskine, 2. 9, 61 ; Bankton, vol. 1. v. Menzies, 10 July 1S. r ,r,, 17 D. 1090. 
 
 (r) Paul v. Anstruther, 2 Macph. H. L. 1.
 
 OF MARRIAGE-CONTRACT PROVISIONS. 411 
 
 one case, where the annuity was made to run from the period of ohaptbb xiiu, 
 d( ath, the widow was found entitled to immediate payment, al- 
 though the rents were postponed. (s) 
 
 801. Previsions to wives by way of locality are not often met Provisions by 
 with, except in the settlements of entailed proprietors. Until the estimation of 
 passing of the Aberdeen Act, the powers of heirs-substitute in the vdl "' 
 matter of providing for widows and children were strictly circum- 
 scribed by the terms of the original grant. In order that these 
 
 might not become too restricted, in consequence of the tendency of 
 landed property to rise in value, the powers of burdening conferred 
 by entailers were commonly made to bear a certain proportion to 
 the rental; being, in the case of provisions to children, fixed at so 
 many years' rent; and, in the case of widows, restricted either to a 
 certain proportion of the free rental, or to the rental of a certain 
 portion oi the estate, called the locality lands, in which the husband 
 was at liberty to secure his wife by infef tment. (t) In estimating 
 the value of provisions to wives and children, whether having rela- 
 tion to the rental or the lands, the rent of valuable shootings is to 
 bo taken into account, whether they arc actually let or not.(w) 
 
 802. The value of locality lands is usually taken as at the time At what period 
 of the constitution of the provision, and not as at the husband's { AV/. i"^"' V-l* V. ^ * !"..* ' * * " 
 death.(tt) But this principle seems to have been unsettled by the esfauiteA 
 final decision of the Court in the ease' of Menzies., where the value 
 
 of the shootings was directed to be estimated as at the death of Sir 
 Neil Menzies, the grantor of the locality. (x) As in the case of a 
 jointure, a liferentrix by way of locality is liable for a share of the 
 public burden-, etc.(y) She is also liable to defray, out of her pari 
 of the rents, the expense of necessary repairs,(3) but not of improve- 
 ments or extraordinary expenses.(a) A liferentrix of locality is 
 Bubjed to the usual restrictions of liferenters by constitution in re- 
 gard to the cutting oJ trees (b) and working of minerals ;(c) and of 
 
 tZ v. Sandeman, 16 Feb. Er k, 2, '.». 01 ; 1 Fraser, 801, and 
 
 recited. 
 
 i B< U, Com. 6th ed. 687; LFrasi r,801. (z) Ersk.2, 9, 60; Scot v. Halyburton, 27 
 
 '' Ken A LO Mar. 1852, 1 I June, 1828, 'J Sh. 435, N.E. 388; Cuning- 
 
 D. 651; 10 Jul; 1855, IT D. 1090. ham v. Cuningham, 1738, M. 8275. 
 
 '/ • r. Macpherson, 18 At Instruther v. Anstruther, 11 May 
 
 I 24 Mar. 1839, 1 D. 794 L828 2 Sh. 806, N.E. 269; Moreham v. 
 
 localil / Lei 5 J L862, Binston, 1679, M. 8499 ; Stair, 2, 6, 19. 
 
 24 D. 1069, a to children 1 provisions. I 2, 9, 68 ; Dickson v. D\ 
 
 I I m. 6th ed. 55; Malcolm son, 24 Jan. L828, 'J sh. 162, \. E. 188; 
 
 v. 1/.//-../,,,, 21 Nov. 1828, 2 Sh. 61 I. N. B. Macalisters Tra.v.Macaliater, 27 June 1851, 
 
 ■ ". I" Di c. 1810, re- L8 D. 1289. 
 
 ' ,, '_-| .i all :-,,.,. Douglas v. Douglas, 16 May 1822, 
 
 1 ' 108 N.] I H ddcll, 
 
 '/ H LO i, 17 21 Jau 1812, I'."'. 
 I- 10
 
 nu'.uniii: 
 
 I [2 OF MARBIAGE-CONTRAOT PROVISIONS. 
 
 ohaptm am. course she is qoI liable to the obligations, nor entitled to the privi- 
 leges of a superior.(cZ) 
 Provisio 803. Another form of marriage-contract provision, which, how- 
 
 ~3quest"a ever i is "" w seldom resorted to, is that in which the husband settles 
 term of flexible { \ [r ( . ( , Ul|11( .„t f fa e marriage upon his widow and children in certain 
 proportions, or by way of a destination in liferent and fee. " Con- 
 quesl " represents the acquisitions of the husband during the 
 marriage, exclusive of what he may acquire by succession, (e) be- 
 (|iu'st,(/) or donation. (g) The ascertainment of conquest, there- 
 fore, involves an inquiry into the wealth of the husband at the date 
 of the marriage, unless the amount be conventionally fixed by spe- 
 cifying the deduction which is to be made from the free estate as 
 at the dissolution of the marriage, (h) If it appear that the parties 
 to the contract meant to attach a conventional meaning to the word 
 "conquest," their definition, and not the legal meaning of the word, 
 will constitute the law of their succession. (i) For example, a lady, 
 by her antenuptial contract of marriage, conveyed to trustees " all 
 sums of money, etc., which she may conquest or acquire during the 
 subsistence of the said intended marriage;" and after her marriage 
 she succeeded ab intestato to one-half of her father's estate, herit- 
 able and moveable, and to £1500 under her parents' contract of mar- 
 riage. It was held by the House of Lords, affirming the judgment 
 of the Court of Session, that the verbal expression "may conquest" 
 should receive a construction consistent with the context ; that it 
 did not restrict the meaning of the word "acquire ;" and that the 
 clause was effectual as a general conveyance of acquirenda, compre- 
 hending the succession in question. (&) Provisions of " conquest," 
 most probably on account of the ambiguity of the term, and the 
 difficulty of ascertaining what is comprehended in it, are not now 
 much used, and the cases belong mostly to the last century. (I) A 
 more common form of provision is that in which the husband dis- 
 poses of all the estate pertaining, or that shall pertain to him at 
 the time of his death, or at the dissolution of the marriage, upon 
 
 (d) Bull's Prin. § 1055 ; Henderson v. (?) Stair, 2, 6, "3 ; and cases there cited, 
 Mackenzie, 19 Feb. 1836, 14 Sb. 540. See and in 1 Fraser, 757. 
 Gibson-Craig v. Cochrane, 23 Sept. 1841, (k) Diggens v. Gordon, 3 Macpb. 609; 20 
 '_' Rob. 446, affirming 16 Sh. 1332. May 1867, L. R. 1 Sc. Ap. 136 ; 5 Macpb. 
 
 (e) Stair, 3, 5, 22; Ersk. 3, 8, 43; Bell's H. L. 75. 
 Prin. \ 1795. (Z) In the construction of provisions of 
 
 (/) Rae v. Rae, 23 Jan. 1810, F.C. this description, it was held that the hus- 
 
 (g) 1 Fraser, 757, citing Mercer v. Mer- band was not thereby precluded from 
 
 cer, 1 730, M. 3054 ; and Karnes' Elucid., making rational provisions to the wife and 
 
 ed. 1777, p. 41. children of a second marriage; Anderson v. 
 
 i/m Hunter's Trs. v. Campbell, 25 May Bruce, 1680. M. 12,890. 
 1839, 1 D. si;.
 
 OF MARRIAGE-CONTRACT PROVISIONS. 413 
 
 certain trusts. A conveyance in this form was held not to include chat-tee xxm. 
 the money due under a policy of insurance, and a bequest of the 
 proceeds of the policy was held good.(m) 
 
 804. Again, a husband may provide his wife or children in cer- Previsions 
 tain Bpecific moveable funds or estate, or may bind himself to exe- && r f assurance 
 cute an assignation of such subjects in their favour. For example, ^jr^^^f 0118 
 a husband may, and frequently does, bind himself to insure his life 
 
 for the benefit of his family, and to pay the premiums as they fall 
 due, either directly to the insurance office or to the trustees of the 
 contract. (ft) A destination in a policy of assurance to the wife of 
 the insured and her representatives is a valid mode of creating a 
 provision in her favour; (o) but it is doubtful whether a valid pro- 
 vision ran be constituted by taking a hank deposit-receipt payable 
 to the wife.Q?) Where the husband becomes unable from poverty 
 to pay the premiums due on a policy of insurance for the benefit of 
 his family, he may, it would seem, be relieved of the obligation 
 upon an application to the Court stating the circumstances, (q) 
 
 805. Another example of provisions of specific moveable sub- Provisions of 
 jects by marriage-contract occurs in the destinations, so frequent in ^^Sot corneal 
 such deeds, of the household furniture to the wife, sometimes in moveables. 
 liferent, and sometimes in fee, or with a right on the part of the 
 children to redeem it at a certain price, and within a specified 
 
 period. In the case of settlements of considerable landed estates, 
 where the family residence goes to the heir and not to the widow, 
 it is usually provided that the furniture is to go with the mansion- 
 house, the heir being sometimes taken bound' to pay a money equi- 
 valent to tlic widow, or to the personal representatives. It seems to 
 have been considered at one time that a liferent of the furniture in 
 a mansion-house only entitled the liferenter to use it within the 
 house, not to carry it elsewhere. (r) Liferent of furniture is a some- 
 what anomalous description of right, as the subject is liable to de- 
 terioration ; and we do not think that at the presenl day the Court 
 would I..- di>|iosod to control the liferenter*s use of it, or to inter- 
 fere, unless for the purpose of preventing an alienation, (s) We 
 have elsewhere noticed the construction of terms occurring in be- 
 quests of household furniture, plate, pictures, and articles of do- 
 
 {m) Scottish F.ipiitalle Insurance Company (//) Cuthill v. Burns, 'JO Mar. 1862, 24 
 
 v. Champion, Nov. 1867. I). 849. 
 
 (n) 1 Bell's Com. 6th ed. 689 ; 1 Fraser, (?) Oibb v. Piteairn, 8 June 1889, 1 D. 
 
 766. 889. 
 
 (o) Galloway v. Craig, 17 .Inly 1861, 28 (r) Cochran v. Cochran, 1766, Rf. 8280. 
 
 D i] I i |, 12, I "■ («) Bee 1 Prasi r, 759; 2 Bell's Qlxii fcra 
 
 22 D l-ii. i n /.• v Scott, 19 July 1867, 
 
 6 Macph. kits
 
 n i 
 
 ( IF MARRIAGE-CONTRACT PROVISIONS. 
 
 .-11 W'l •[ i: win 
 
 Provisions by 
 the wife in 
 favour of the 
 husband. 
 
 Obligations 
 undertaken by 
 
 the parents or 
 relatives of the 
 wife. 
 
 Rights of the 
 
 husband and his 
 
 creditors iii the 
 tochi r. 
 
 mestic utility or ornament. (t) The principle of construction, it is 
 aeedless to say, is identical, whether the expression occurs in a 
 Legacy or in a marriage provision. 
 
 806. With regard to provisions in favour of the husband, little 
 aeed be said. Any money contributed by the wife or her parents 
 on the occasion of her marriage is either — (1) settled to her own 
 use, exclusive of her husband's jus ■mariti and right of administra- 
 tion, with or without an ulterior destination to the children of the 
 marriage; or (2) paid over to the husband absolutely; or (3) vested 
 in trustees for the liferent alimentary use of the spouses and the 
 survivor, fee to the children, restrictable to a liferent, and subject 
 to a power of division. As regards money paid over to the husband 
 in name of tocher, little need be said ; for, when the money is paid, 
 it becomes his absolute property, and no cprestion can arise regard- 
 ing it. If not paid on the completion of the contract, the husband 
 has an action for it against the wife's father, or other relative by 
 whom the tocher was promised ; but it would seem, on the autho- 
 rity of the older cases, that where the tocher comes directly from 
 the wife, payment is more easily presumed than in the case of ordi- 
 nary debts, (u) 
 
 807. Where, instead of an immediate payment, an obligation is 
 undertaken by the wife's relatives to settle a certain share of suc- 
 cession upon the family, it seldom happens that the husband takes 
 any interest under such an arrangement. The obligation usually 
 is to settle a certain sum upon the wife in lifereut and the children 
 in fee. Some examples of this form of provision have been noticed 
 at the commencement of the chapter. The cases on the law of 
 vesting afford numerous examples of such provisions, (x) 
 
 808. The conveyance by the wife to the husband of a fund in 
 name of tocher, in an antenuptial contract, gives him a vested right 
 in possession, which transmits to his representatives, and may be 
 attached by his creditors. After the husband's death, the wife can- 
 not, in a question with his creditors, plead retention of the tocher 
 on the ground that the provisions in her favour were not imple- 
 mented^?/) Mr Fraser is of opinion that if payment were de- 
 manded by the husband himself, he would not be entitled to it 
 without at the same time tendering such security for the wife's pro- 
 
 (<) Chapter 17. 
 
 (u) See the cases collected in 1 Fraser, 
 780. where the reader will also find a sum- 
 mary of the older decisions upon a variety 
 of points in the law as to tocher, which arc 
 now of little importance, as it is now the 
 practice to make the disposal of the wife's 
 
 fortune the suhject of express stipulation 
 in the contract. 
 
 (x) See chapters 42 and 43. 
 
 (y) Boswell v. Miller, 4 Feh. 1846, 8 D. 
 430; Greenhill v. Aitken, 24 June 1824, 3 
 Sh. 1G9, N. E. 114; Woollen Manufactory 
 of lladdinyton v. Gray, 1761, M. 9144.
 
 OF MARRIAGE-CONTRACT PROVISIONS. 415 
 
 visions as he might by the contract have agreed to give 5(3) and chattebxxui. 
 this seems reasonable. 
 
 SECTION IT. 
 ANTENUPTIAL PROVISIONS, HOW SECURED. 
 
 809. The rules on this subject admit of being stated within a Obligations 
 very brief compass. The application of these rules to the construe- extracting par- 
 tion of the different species of provisions which have been described tlfes ,s '"" ; 
 
 in the preceding section, has given rise to questions not unattended 
 with difficulty. The leading principle is, that a simple unilateral 
 obligation in a marriage-contract in favour of either of the parties 
 is onerous, the marriage being regarded as a counter prestation. 
 The wife has therefore a jits crediti, entitling her to rank with other 
 creditors for the value of her provisions. (a) Provisions to children, obligation in 
 ■ m the other hand, are only onerous in the event of their being 4Jn°noYonerous 
 made payable at a period which may arrive before the death of the "''^ 
 father, by whom they are promised ; as, for example, at the disso^ the dissolution 
 lution <>f the marriage, or a1 (lie majority or marriage of the child,(6) 
 or by being made to hear interest from sueh a period. (c) 
 
 810. It is needless to impure into the reason of the distinction. Whether mar- 
 It probably originated in the notion, that provisions to children provision can be 
 payable after death were of a testamentary character. That reason, ; 
 
 a1 all events, is no longer valid; for it was solemnly decided by a ". v,,iVct - 
 the Courl of Exchequer, in a case where a sum of money was pro- 
 vided by ■■< husband in his antenuptial contract, payable to the 
 children of the marriage at the first term of Whitsunday or Martin- 
 mas after their father's death, and which was declared to he in lull 
 of legitim and < xecutry, that ;i provision of this nature was not ti s- 
 tamentary, and therefore nol Liable to Legacy-duty. (d) Lord Ful- 
 lerton, however, obs< rved, thai even in marriage-contracts there 
 
 (zj 1 !'■ r, 781. not to confer a jus crediti. The subsequent 
 
 lingly, in the i ••■ nl of the ially mention* >1 
 
 ad's bankruptcy, the wife may rank in the Bequel) merely confirm Hi' 
 
 for t! atingenl Btated in the text. The following 
 
 claim, under the Bankruptcy A.ct. complete list of th< m: — M'Millan v. 3PMU- 
 
 ■■ \tter, II Jan. 1847, Ian, Hume, 686 ; Wilson v. Wight, Hume, 
 
 I'. ■.. l;. i.. ; Oruikshanl 1 Cruikshank, 587 ; Macintosh I Hume, 10 ; G 
 
 D. 7; Jolly v. Graham, 24 sonv. Wallace, 1 Sh. 18, N.E. 9; Brown 
 
 Feb. L824, ! \. I.. 6] 1. / ■-. 8 Sh. 6, \. E. 6 : Scottv. /■ », 
 
 U .. Ors. v. H> is!.. 181, N.E. 448; Bushby v. Renny, 4 
 
 ' 12,924, 1 June 17'.'"..:: Pat. Sh. 110, N. E. 112 ; Gordonv. Vurray,\\ 
 
 109. Com '' ■■- Villiers \. Connell, 12 Sh. 1'.': 
 
 L787, M. 12,922 ; and i Govan, I Geddesv. Waddell, 14 Sh. 1084. 
 
 i,,, i Adv.-Gen. v. Trotter, II Jan. 1 V I7. 
 
 In Id Excb. I;- p., ftl i 10 D. 66,
 
 416 OF MARRIAGE-CONTRACT PROVISIONS. 
 
 oHAPTBBxxm. mighl be provisions of such a clearly testamentary character as to 
 
 bring the deed within the category of a testamentary instrument ; 
 
 and he instanced the case of a settlement by marriage-contract of 
 
 all the estate belonging to the parties at their death. (e) 
 
 Whether child- 811. The rules according to which the right of the children is 
 
 ^£u!F£&* determined to he either a, jus crediti or a spes successionis, are suc- 
 
 LordM ted crofi cinctly explained in the following passage from Lord Moncreiff's 
 
 ' *• opinion in a leading case(/) : — 
 
 " 1. I understand the rule of law to be, that under such mar- 
 riage-contracts the children have a jus crediti, giving them such a 
 right against the creditors of their father, if the provision is so con- 
 ceived as that there was or might be a direct interest accruing to 
 them in the lifetime of the father. As, for example, if the provi- 
 sion is made payable on the marriage or majority of the child, though 
 such event should happen in the lifetime of the father ; or if the 
 provision is declared to bear interest from any such term which 
 might be in his lifetime ; or if it is declared to be payable at the 
 dissolution of the marriage, or to bear interest from and after that 
 event, which may happen by the wife's predecease. 
 
 " 2. But, on the other hand, if the provision is so conceived that 
 the principal is not payable till after the father's death, and does 
 not bear interest from any earlier term, and where no actual benefit 
 or interest can be claimed or taken in his lifetime, there is no jus 
 crediti vested in the children as against onerous creditors. In re- 
 spect of the father and his heirs, they are no doubt creditors ; but 
 in respect of his creditors, they are merely heirs, having no more 
 than a spes successionis. 
 
 " 3. I understand it also to be a fixed rule, that it has no effect 
 in conferring a jus crediti on the children, that, instead of the hus- 
 band being simply bound to pay a sum to the children, he engages 
 to provide and secure a sum so payable. 
 
 " 4. But if he actually lends out the money, or constitutes a 
 
 trust, or grants heritable security to the wife or any other person 
 
 in name of the children, with absolute warrandice, it constitutes a 
 
 fee in the children, which will prevail against onerous creditors."^) 
 
 Terms of pay- 812. It may further be observed, that ambiguous expressions, 
 
 Ihewordfl of^the pointing to a period of distribution other than the death of the 
 
 destination. 
 
 (e) See p. 34 of the separate report. See (/) Goddard v. Steivart's Children, 9 
 
 also Somerville v. Somerville, 18 May 1819, Mar. 1844, 6 D. 1018. See the doctrine 
 
 F.C., where a delivered deed was presumed explained also in the leading opinion in 
 
 to be ambulatory and revocable, because it Ilerries, Farquhar, # Co. v. Brown, 9 Mar. 
 
 conveyed the universitas of the granter's 1838, 16 Sh. 9G4 ; and in 1 Bell's Com. 
 
 ■ fcate. 5th ed. 640. 
 
 (</) 6 D. 1023.
 
 OF MARRIAGE-CONTRACT PROVISIONS. 417 
 
 father, will not control the express terms of the destination in a chaptebxxih. 
 •question as to the quality of the right conferred. For example, in ~~ 
 the case from which the foregoing rules have been extracted, the 
 father, after obliging himself to content, pay, and secure to the issue 
 of the marriage, existing at the dissolution thereof, a certain sum, de- 
 clared that the children's provisions should be payable in equal in- 
 stalments at twelve and twenty-four months after Ms decease. It 
 was held that the children had no jus eredit/.(h) The right of the 
 heir of the marriage under a marriage-contract destination of herit- 
 able estate is of the same nature as that of the children in relation 
 to provisions of moveable funds. Unless the father binds himself 
 to infeft his son at a period which may happen in his own life- 
 time,^') the right of the son is postponed to that of creditors, and, 
 as regards the father, it is only effectual to bar gratuitous aliena- 
 tion.^) The father may sell the estate, and in this case the heir 
 may at his death rank as a postponed creditor for the price as a 
 surrogatum, the value being estimated as at the date of the sale.(?) 
 
 813. Such being the nature of the personal obligations which a Provisions may 
 husband may undertake for the benefit of his wife or children, it is Snv^S^f 8 
 a simple question of conveyancing — by what description of deed ^^th^ * 8 
 real security may lie given for the fulfillment of the obligation, (m) beneficiaries or 
 
 to trustees 
 
 By real security wo mean (though the expression is perhaps not 
 
 strictly accurate) the security afforded by a preferential right to 
 
 property, whether heritable or moveable in its nature. The answer 
 
 i-. thai such security may be given by a completed conveyance, 
 
 either to the beneficiaries of the marriage-contract, or to trustees 
 
 for their behoof . Thus, provisions in favour of a wife may be secured Conveyances in 
 
 by infefting her in lands for her own use, exclusive of the husband's SSotfe " 
 
 rights, "i- by assigning personal bonds, policies of assurance, stock, wtfe - 
 
 or other moveable rights, to her, under the >ame form of destination, 
 
 and duly intimating the assignation. (re) The same result may be 
 
 (/,) Ooddard \. Stewart's Children, ut 1826, 4 Sh. 393, N. E. 396 ; and Watson v. 
 
 fij.ni. See Browning v. Browning's TVs., Pyot, 1801, M. " Provision i<< Beire and 
 
 : l.", si,. 999, where the des- Children," App. No. 4. 
 filiation was similar, and the Court held (I) Cunninghams \. Hathom, 20 Dec. 
 
 that no jus erediti wa conferred, bul thai 1810, F.C. ; Earl of Wemyss v. Earl of 
 
 the children were entitled to challenge any Bladdingion, L'h l-V!.. is]".. F.C; l'h M;i\ 
 
 Leed of the father executed to 1818,6 Pat. 890; Sutherland v. Gordon, M 
 
 their prejudice. 4898, 1 Cr. St. .v Pat. 498. 
 
 Do Douglas L724, M. < , As to diligence, if ha been held 
 
 12,910. thai a child having a fus erediti might u e 
 
 ' 1804, inhibition' r adjudication '.Douglas v. Doug- 
 
 M- I /' Hop, 177m. M. las. svpr , Lyon v. Lyon's Crs., 1724, M. 
 
 I 09, 8150. 
 
 ' ; Stewart v. Stewart, 2 March {») And it would appear thai in the 
 1816, F.O.j Macneil ■ Macneil, L'7 Jan. tina- 
 
 VOL. I. % 1 D
 
 1 [g OF MARRIAGE-CONTRACT PROVISIONS. 
 
 niAi'Ti-K win. attained indirectly by a conveyance to trustees for the wife's behoof. 
 On the other hand, it has l>een decided (and the exception illus- 
 trates the principle of the rule which wo have enunciated) that a 
 husband cannol give his wife a preference over furniture or cor- 
 poreal moveables which lie retains in his possession. (o) The reason 
 is obvious. In the cases of heritable property and jura incorporalia, 
 legal possession is given to the wife in the one instance by regis- 
 tration ; in the other, by intimation ; and those who have the means 
 of knowing anything about the title to such property, are at the 
 same time certiorated of the wife's separate interest in it. But it 
 is impossible to separate the possession of the wife from that of the 
 husband in the case of corporeal moveables ; and accordingly, if it 
 were intended to create a security over such property in fulfillment 
 of a marriage-coHtract obligation, it would be necessary not only to 
 vest the title to the property in trustees, but to place the property 
 itself in neutral custody. 
 Securing of pro- 814. Provisions to children may in like manner be secured, so 
 chiu'ivi!. as to give a preference in bankruptcy, by means of a conveyance of 
 
 heritable or moveable property to trustees for their behoof, or to 
 one of the parents for liferent use only, and as fiduciary fiar for the 
 children of the marriage. 
 Preference may 815. It is carefully to be observed that the onerosity of the pro- 
 be v°e nf ance d in y vision arises from the obligation in the marriage-contract ; and 
 security of obii- therefore, although the contract be silent on the subject of security, 
 
 gation, although ° , . . . . 
 
 subsequent in yet if the husband afterwards settle property upon his wife or 
 riage! * "" children in one or other of the modes we have mentioned, in im- 
 plement of his obligations, the security will be as valid and effec- 
 tual as if it had formed a part of the contract. ( p) And when se- 
 curity is once given for a marriage-contract provision, it is of little 
 consequence whether the obligation were or were not of such a 
 nature as to confer a jus crediti on the children. We mean, it is 
 immaterial, in considering whether a preference has been effectually 
 secured, to inquire whether the provisions were payable at a time 
 which might happen before the death of the father ; for the nature 
 of the security transaction is, that the father divests himself of his 
 property in favour of his children, whose right, therefore, is no 
 longer limited to a personal claim against the father's estate, but is 
 of a similar nature to that of any other creditor holding a real se- 
 
 tion in the marriage-contract and that in 10 D. 1280; Brown v. Fleming, 19 Dec. 
 the security, the former must prevail ; Ross 1850, 13 D. 373. 
 
 v. Masson, 3 Feb. 1843, 5 D. 483. (p) Falconer v. M' Arthur, 20 Jan. 1825, 
 
 (o) Campbell v. Stewart, 13 June 1848, 3 Sh. 455, N. E. 317 ; Young v. Watson, 2 
 
 Dec. 1835. 14 Sh. 85.
 
 OF MARRIAGE-CONTRACT PROVISIONS. 419 
 
 curity. The fathermay, according to the nature of the transaction, chaptebxxhi. 
 retain the liferent of his estate, or lie may retain the radical right 
 to the fee, subject to the children's security; but to the extent to 
 which the children are secured, the property is theirs. 
 
 816. This was one of the points decided in the Clanranald Serries, Farqu- 
 7) where the husband, by his antenuptial contract, bound Broum. 
 
 himself to pay a certain sum to the children of the marriage, pay- 
 able six months after his death, subject to a reserved power of divi- 
 sion, an<l granted warrant for infefting the trustees of the settle- 
 ment in security; and the trustees took infeftment. The estates 
 were disponed to the granter himself and a certain order of heirs, 
 subject to the younger children's provisions. In these circumstances, 
 it was held by the whole Court, in an action raised by subsequent 
 creditors of th husband, that the trustees for the younger children 
 wen', "in their character as trustees, infeft in security, entitled to 
 compete with the diligence of the pursuers, and to rank in their 
 proper order according to their right of preference conferred by 
 their Baid security." (r) 
 
 817. In what has been said respecting the onerosity of mar- whether insoi- 
 riage-contract provisions, whether resting in obligatione or fortified .' 
 
 by security, ii has been assumed that the father, at the time oi ; i, - v ... 
 
 affects tin- wiic s 
 granting the provision, was solvent. With respect to provisions to proTision. 
 
 -. there is authority^ for the proposition that, even where the 
 husband is insolvent at tin/ marriage, and the provision is only in 
 obligations, it may notwithstanding lie sustained to the extent of 
 what i- considered u fair and reasonable provision in the circum- 
 stances of tli'' parties.($) In judging of the reasonableness of the 
 provision, the wife's situation and fortune before marriage are to be 
 taken into consideration. (t) When the wife has obtained security 
 for her provisions, the question of solvency is immaterial, because 
 she is 1 utitL d in a competition with creditors t<> the benefit of her 
 preference.^ ") 
 
 818. Children do not appear to have any right to their provi- provisions to 
 sions, even when these are made payable before the father's death, ^J^"^^ 
 if lie v,. re insolvent at the time of granting the obligation in their P roof winsoi- 
 
 ...... ' rency at the 
 
 favour, unless their nghl is secured by a trust conveyance. Ii l1 i ■■■ ofgranting. 
 1 i;i - been so Becured, they will be entitled to the benefit of the sc- 
 
 U Farquhar, .y Co. v. Brown, (() Bell's Com. and Fra Br, ut supra; 
 
 1/ Lachlan v. Campbell, 29 June L824, 8 
 
 Sh. 192, X. i:. L82. 
 
 m. 6th ed. 687 I I B den v. Smith, Elch. "Mutual 
 
 1. '.is; : Contract," No. 7 : affirm* d, 1788, I Cr. 
 
 / ' L679, M. 968; Oart- St. & I'. 214; and ca - ol Worria and 
 
 8 I L68 I, "•! 987 2 Br. Sup. H I, infra. 
 
 18
 
 t20 
 
 OF MARRIAGE-CONTRACT PROVISIONS. 
 
 oHAfTTO xxiii. curity. Thus, where a wife, by postnuptial deed of settlement, 
 conveyed her shave of her father's succession to trustees upon trust 
 for the spouses in liferent, and the children of the marriage in fee, 
 and the spouses, having become the sole surviving trustees, assigned 
 their right to another party upon trust to recover the succession in 
 question from the trustees of the wife's father, and to invest it in 
 terms of (he postnuptial settlement, and the assignation was duly 
 intimated before the husband was declared bankrupt, it was held 
 that the assignation gave the children a preference over the hus- 
 band's arresting creditors, (a?) In a later case, the Court, under very 
 similar circumstances, sustained the children's preferential right to 
 the fee, but found that the liferent, which had been settled to the 
 use of the husband, was subject to the diligence of his creditors, 
 and fell under his sequestration. (y) 
 
 „,. ,. , 819. When the husband is bound by the terms of the contract, 
 
 Obligation to ..-,•■ 
 
 secure provi- as i ie very frequently is, not only to pay the provisions, but also to 
 
 sions is fulfilled J - 1 J . ' J \ x . x ... . 
 
 by investing the secure them at the sight of trustees tor execution, his obligation is 
 ^security.™" fulfilled by investing the amount upon security of the description 
 required by the settlement. If the obligation is simply to secure 
 the provisions, without reference to any specified description of se- 
 curity, his duty is the same as that of a trustee, and will be per- 
 formed by investing the required sum of money upon heritable se- 
 curity.^) With regard to provisions by way of insurance on the 
 husband's life, it would appear that the obligation to pay the pre- 
 mium is of a similar nature to a personal security. On this subject 
 Professor Bell observes, that " if a policy were opened in name of 
 the wife and children, and the premium paid under such antenuptial 
 contract, the benefit of that insurance would not seem to be demand- 
 able as part of the husband's estate, while a claim would seem to lie 
 for the future premiums." (a) 
 implied reser- 820. A father, notwithstanding the destination of his estate to 
 
 rations of power ^ e ^[y. f t ] ie marr i a p- e by antenuptial contract, has been held en- 
 
 to burden an o j ± > 
 
 .-tat. with pro- titled to grant rational provisions to his wife and younger children, 
 
 and younger or to increase inadequate provisions if there were no other funds 
 
 available to him for the purpose. (b) And, on the same principle, 
 
 it is conceived that a father whose whole available means has been 
 
 settled upon the wife and children of a first marriage, may encroach 
 
 (x) Morrice v. Sprot, 27 June 1846, 8 v. Her Son, 1635, M. 2270. See chapter 
 
 D. 918. 63, section 4. 
 
 (y) Wood v. Begbie, 7 June 1850, 12 (a) 1 Bell's Com. 5th ed. 639. 
 
 D. 963. (/,) Miller v. Miller, 30 July 1822, 1 Sh. 
 
 ( 2 ) Lindsay v. Lothian, 1685, M. 2269; (Ap. Ca.), 308; Ewing v. Ewing, 1799, M. 
 
 Way v. Hay. 1710, M. 12.982: Kid-land 12,997; Ouchterlong v. Ouehterlomj, 1752. 
 
 M. 13,013.
 
 OF MARRIAGE-CONTRACT PROVISIONS. 4*21 
 
 CHAPTER XX11I. 
 
 .upon their interest to the extent of making a moderate provision 
 for the wife and children of a second marriage, (c) It has even 
 been held that, if a husband improvidently settled his estates on 
 the children of the second marriage only, he might burden the heir 
 of the second marriage with rational provisions in favour of the 
 children of the first marriage.(d) In the last of the older series of 
 
 5, a provision to a younger son's wife, as a jointure, was sus- 
 tained, although the estate was previously destined to the heir.(e) 
 Such supplementary provisions must not be so large as virtually 
 to deprive the heir of his right to the estate, but must bear such 
 proportion to the value of the estate as is warranted by the or- 
 dinary practice of proprietors in burdening their property for the 
 
 fit oi younger members of their families. In delivering judg- 
 ment in the leading case of Dykes v. Dykes, it was laid down by 
 Lord President Blair, with the approbation of the Court, that a pro- 
 vision to younger children out of the heir's inheritance must be 
 given in the form of a burden on the estate, and not as a specific 
 part of it. The reason is, that a conveyance of land, even when 
 not of greater value than a reasonable pecuniary provision, is a 
 direct displacement of the heir's vested right, which, in the other 
 is affected in a manner less injurious to his interests as pro- 
 prietor. 
 
 821. The later cases upon provisions to the children of a second implied power 
 marriage tend to throw some doubt upon the powers of the father w ' i ',' , '.^V ( . ll ' i i" 1 . 
 to. alter the destination of funds settled by an antecedent onerous [^.J.- 1 .,?, .''""' 1 
 contract. In the case of Bell's Trs. v. Cowan,(f) a father had set- BeUv.Cowan. 
 tied his entii upon the surviving spouse of the first mar- 
 
 in liferent, and the children of the marriage in fee. By a 
 postnuptial contract be settled an heritable provision upon his 
 second wife, being part of the estate already secured to the children 
 oi the first marriage. The judges of the First Division wereequally 
 divided in opinion on the question whether the annuity to the 
 
 n I wife could be sustained to the extent of a reasonable provi- 
 sion. Minutes of debate were ordered with the view of hiving the 
 
 !m fore the whole Court, bul the action was compromised. It 
 
 subsequently determined, by a majority of the whole judges, 
 that, under an antenuptial provision of a fund to the widow of a 
 
 :.d marriage in liferent, and the children in fee. the widow was 
 
 12; Cunningham v. (e) Dykes v. Dykes, '.i Fob. 1st I. V.c. 
 
 Haihorn, 20 D •. 1810, P.O.; I I Kilkorran, p. 166, on the qui 
 
 79 i ited. whal is to l" com id r< 'I a rational 
 
 Bannerman, 16 vision. 
 
 1801, ll 180 and ■ ■ in n (J I Bell'i Trs, v. Cowan, 21 V i |. 
 
 fll/T'l , 1 1 D '.I 1 1 l I
 
 1:22 OF MARRIAGE-CONTRACT PROVISIONS. 
 
 chaptbb xxin. entitled to rank as an onerous creditor on her deceased husband's 
 estate; but thai the children bad no jus crediti in a question with 
 the children of the first marriage claiming legitim, as the provisions 
 in their favour were not made payable at a period which might have 
 arrived before the death of the father. (0) In the case of Harvey v. 
 Wink. Winkjji) the question was raised under circumstances unfavourable 
 to the claim of the beneficiaries under the second contract, as the 
 question here was with creditors, and the provisions were not pay- 
 able until after the father's death. Here clearly the children had 
 no jus crediti ; and the averment that they were creditors of their 
 father tor their mother's share of the goods in communion was held 
 insufficient to give an onerous character to the dispositions in their 
 favour, (t) 
 Right of hdr or 822. It remains to be considered in what cases the heir or child- 
 riag^to defeat' ren °^ tne marriage have the capacity of discharging the provisions 
 substitutions or to w i 1 i L .] 1 ] ie or they have right under the parents' contract of mar- 
 
 discharge obh- J ° A 
 
 os in their riage ; and, first, as to provisions of heritable estate in favour of the 
 heir of the marriage. While, as has been shown, provisions con- 
 stituted by marriage-contract are onerous in relation to the rights 
 of the spouses, and of the immediate heirs or issue of the marriage, 
 it does not appear that there is any reason for extending this qua- 
 lity of the contract to provisions to substituted heirs, or to descen- 
 dants of the second degree. In relation to heirs substituted in the 
 destination, a marriage-contract is merely a testamentary instru- 
 ment ; and, provided the settlement is not completed as an entail, 
 the destination may be altered by the father according to his plea- 
 sure. A disposition by the father to his eldest son or daughter, as 
 the case may be, is held to be implement of the obligation in favour 
 of the heirs of the marriage, even if the disponee should afterwards 
 die in the father's lifetime. (&) It follows from this that the heir, on 
 receiving a disposition in terms of the marriage-contract, may evacu- 
 ate the destination and disappoint the substitutes ; and also that he 
 may, in conjunction with his father, discharge his own interest under 
 the contract. (?) In regard to moveable succession, the law cannot be 
 
 (g) Wilson's Trs. v. Pagan, 2 July 1856, (k) Trail v. Trail, 17S7, M. 12,985; 
 
 18 D., 1097. See also 1 Bell's Com. 5th Monro v. Gordon, 1760, 5 Br. Sup. 880; 
 
 ed. 642; Campbell's case, there referred to ; F other ingham v. Ogilvie, 1797, M. 12,991. 
 
 and English authorities stated chapter 61, Compare Maconochie v. Greenlee, 1780, M. 
 
 section 1. 13,040. 
 
 (Ji) Harvit v. Wink. 3 July 1847, 9 D. (I) Routledge v. Carruthers (Dormant), 
 
 1420. 19 May 1812, F.C.; nam. Majendie v. Car- 
 
 (i) See also Camming v. Gumming, 16 ruthers, 16 Dec. 1819, F.C.; Juue 1820,2 
 
 July 1858, 20 D. 1280. Here, however, Bligh, 692. But see, as to the effect of a 
 
 the real competition was between the prohibition against altering the succession, 
 
 younger children and the heir. Haig v. Haig, 14 Feb. 1857. 19 D. 449.
 
 OF MARRIAGE-CONTRACT PROVISIONS. 423 
 
 said to be so well established; but the principle is admitted that chapteb nm. 
 there is nojus crediti except in the children of the marriage ; whence 
 it follows that on the failure of children, or with their consent, the 
 obligation may be discharged, (m) 
 
 SECTION III. 
 POSTNUPTIAL PROVISIONS. 
 
 823. With regard to the manner in which postnuptial provisions Distinguished 
 may he constituted, it is sufficient to refer to the previous section, SjrfSJTff^ 
 iu which the various forms of antenuptial provision have been con- ' at . ion t0 oner - 
 sidered. The points of difference between the two classes of pro- 
 visions relate to the onerosity rather than to the substance of the 
 provisions. 
 
 824. (1) In entering into a postnuptial contract the wife does not Rational post- 
 appear in the character of an independent contracting party; she 2^o P w^ 
 ifl therefore in a less favourable position to compete with creditors "tiSS- 
 than if her claim were upon an antenuptial contract. On another tors - 
 principle, however, the law supports a rational postnuptial provi- 
 sion to the wife, to the effect of giving her & jus crediti in bank- 
 ruptcy ; that principle being, that as the husband is bound to make 
 
 a reasonable provision for his wife at the time of the marriage, his 
 Bubsequenl settlemenl in fulfillment of that obediential obligation is 
 binding upon his fortunes and estate.(w) It is implied in the state- 
 ment of this proposition that tin- provision must be rational— that 
 is, suitable to the circumstances of the husband; for, if otherwise, 
 it is not a provision in fulfill meni of the obligation in question. It 
 
 ifl also implied in the rule thai the husband i- undersl I to 1m. 
 
 solvenl at. the time' of granting the provision ; for, if he were not. 
 there is no free estate to ho hound. It is observed by Mr Fraser,(o) 
 thai the time lor estimating the rationality of the provision is the 
 tine- when it comes info operation, thai is. when it may be de- 
 manded. There is certainly some authority to the effeel thai a 
 postnuptial provision granted to a wife in insolvency may he sup- 
 ported to tip extent of providing her with a bare subsistence ;Q>) 
 
 /'•< I. '.p1 LyndhuTBl in Cunningham Campbell, 24 May L826, I Sh. 82; Sharp v. 
 
 . 1846,6 Bell,210. Bee Christie, 19 Jan. is:::'. I 1'. 896 
 
 / Colquhoun't '/' . 20 Dec. Montgomery v. Ihnt. 17 July 1846, 7 P. 
 
 1-liTl'. /-in F( I.. 1081. 
 
 i- .1 L8 D ( ) 1 Fi 
 
 -• l '. i | ii 88 i B I ' ! I ' :;;: i Fi ^ ' '"I 
 
 1 12 '/ '. , / 
 
 i/ ', 0, F.I ' • " > v. to antenuptial ,
 
 1-J4 OF MARRIAGE-CONTRACT PROVISIONS. 
 
 ohaptsh nan: but in tlie more recent cases this doctrine has been discountenanced, 
 
 ami it cannot now be regarded as matter of settled law.(g) It will 
 
 of course be understood that a rational postnuptial provision to a 
 
 wife is bindingupon the husband personally, and his representatives, 
 
 as well as upon those who administer his estate for the 'benefit of 
 
 creditors. 
 
 Busband cannot 825. The preceding observations have reference solely to post- 
 in- postnuptial * ° . J r 
 
 contract s.rurc nuptial provisions granted by a husband to his wife to take effect 
 
 bis'wifetotake a Her his death; for a husband cannot, even when solvent, by a post- 
 litVtinu' 1 nuptial conveyance to trustees, secure an annuity to his wife during 
 
 his lifetime. Such conveyances are held to be revocable donations ; 
 ami the subsequent bankruptcy of the husband operates as a revoca- 
 tion in favour of creditors, (r) The argument, that an annuity pay- 
 able stante matrimonio is a fulfillment of the natural and legal obli- 
 gation to aliment the wife during the marriage, was thus disposed 
 of by Lord Chelmsford in the case of Dunlop v. Johnston: — " What 
 is this natural and legal obligation ? It is to support and aliment 
 the wife and children during the marriage, according to his ability. 
 There is no natural obligation recognised by Scotch law to divest 
 himself of a portion of his property, and put it out of his control to 
 provide for his wife and children. On the contrary, it would rather 
 appear to be his natural duty to preserve his right, as head of the 
 family, to dispense his means according to a just view of his obliga- 
 tions."^) 
 Postnuptial pro- 826. There does not seem to be any material distinction betwixt 
 ren held gratui- an antenuptial and a postnuptial provision to children in regard 
 able and reV0C " *° tne kind of security it affords to them in competition with credi- 
 tors. In either case a jus crediti may be conferred, in respect of 
 rational provisions payable at a period which may happen during 
 the father's lifetime ;(7) whilst provisions payable after his death, 
 unless secured by infeftment or intimated assignation, are postponed 
 to the claims of creditors, (u) The right of the children as against 
 the father depends, however, upon different considerations in the 
 two cases. Onerosity is implied in the case of an antenuptial pro- 
 vision, and the right of the children is irrevocable. But provisions 
 granted to children after the marriage are gratuitous, and may b 
 revoked, unless actual or constructive delivery of the deed havt. 
 
 (?) See Sharp v. Christie, id sup-a ; (t) See Jeffrey v. Campbell, 24 May 1825, 
 
 M'Lachlan v, Campbell, 13 Feb. 1823, 2 4 Sh. 32, N. E. 33 ; and cases mentioned 
 
 Sh. 217, N. E. 192 ; and 29 June 1824, 3 in 1 Fraser, 830. 
 
 Sh. 192, N. E. 132 ; Bell's Com. ut supra. {u) Ilcrries, Farquhar, <j- Co. v. Brown. 9 
 
 (?•) Dunlop v. Johnston, 2 April 1807, Mar. 1838. 16 Sh. 948 ; Poole v. A nderson, 
 
 I .. R. 1 Sc. Ap. 109, 5 Macph. H.L. 22. 22 Feb. 1834, 12 Sh. 481 ; Macgregor v. 
 
 (») L. R. 1 So. Ap. 1 12. Macdonald. 9 Mar. 1843, 5 D. 889.
 
 OF MARRIAGE-CONTRACT PROVISIONS. 425 
 
 taken place. (a;) Accordingly, it was observed in the case of Thorn- cHArrEnxxm. 
 hill v. 3PPherson,{y) that if the contracting spouses should agree 
 to put the postnuptial contract into the fire, they would effectually 
 revoke its provisions, and bar the claims of the children under it. 
 
 827. It has generally been considered that provisions to children Whetheripost- 
 bearing to proceed from both the spouses, could not be revoked by ^L to P chUdren 
 the husband alone during his wife's lifetime ; (z) and it would appear thefath^sua 7 
 in mi decisions pronounced anterior to the date of the Succession Act, «p<mte. 
 
 that the death of either of the spouses was held to give the children 
 an indefeasible rigid, on the ground that the conventional provisions 
 were of the nature of a surrogatum for the claims of legitim and 
 mothers share of tin- goods in communion. (a) Since the abolition 
 of the last mentioned right, the reason of the rule no longer exists 
 in the case of the father being the survivor of the spouses; and in 
 a recent case, where a husband settled his estate on his wife in life- 
 runt in tli'' event of her survivance, and the children in fee, it was 
 held that the provisions in favour of the children of the marriage 
 were conditional on their mother being the survivor of the spouses, 
 and that on her predecease the father was entitled to revoke them.(7>) 
 
 828. We refer to a subsetruent chapter on Powers of Appoint- 
 ment on the subject of the constitution and effect of Postnuptial 
 Provisions granted in pursuance of reserved powers.(c) 
 
 (x) See chap. 13, sect. 1, as to power to 1826, 4 Sh. 749, N. E. 757 ; Anderson v. 
 
 Qarroway, 27 Jan. 1837, 15 Sh. 435. 
 
 I vi ThornhiU v. M'Pherson, 20 Jan. 1841, (//) Dickson v. Somercillt's TVs., <) Macpli. 
 
 :; 1>. 394. 002; ID May 1807. 5 Macpli. II. L. 09; 
 
 (z) See Blair Y.Hamilton, 1 71 1. M. 0110. Lang v. Brown, 24 May L867, ■'> Macph. 
 
 (a) R Ay. 3 Dec. 1823, 2 sh. 789. 
 
 N.E. 477; G A it ken, 28 J (c) Chapters 61 and 62.
 
 |V, OF CIIA1UTABLE BEQUESTS. 
 
 OH m in; wiv 
 
 CHAPTER XXI Y. 
 OF CHARITABLE BEQUESTS. 
 
 in what terms 829. I. Principles of Interpretation. — The law of Scotland 
 
 ;",.' ;.'i'''!;.j;;'i!i',''i,e. imposes few restrictions on the creation of perpetual trusts. The 
 
 : \'"' Mortmain Act(a)*does not extend to Scotland at all, even where 
 
 ituted. v/ . . 
 
 the money settled is invested in the British iunds ;(6) and the 
 
 Thellusson Act (c) which, as extended, prevents accumulations of 
 the interest of real and personal property beyond twenty-one years 
 after the testator's death, does not interfere in any degree with the 
 testator's right to tie up the capital. It has been held that a direc- 
 tion to trustees to accumulate personal property in Scotland for a 
 longer term does not defeat the trust altogether ; but the accumu- 
 lation will be limited to the period of twenty-one years, (d) 
 Examples of im- 830. In moving the affirmance of the judgment of the Court of 
 tory tequests Session in the case of Hill v. Burns,(e) Lord G-ifford observed : " It 
 !'i"jrcts. nIab appears to me that the law of Scotland is more liberal in the inter- 
 pretation of bequests for charitable purposes than other bequests." 
 The remark was well founded, as almost all the cases show. If they 
 Uncertainty ob- can possibly avoid it, the Courts will not hold a charitable bequest 
 t^tee' v °i ( l for uncertainty. In the case already mentioned, (/) a bequest 
 '" :ill ~ to trustees'in the widest terms, 2,'ivino; them the largest discretion 
 
 ary powers. > o o o 
 
 in distributing certain funds among the charitable and benevolent 
 institutions in the city of G-lasgow, was sustained both by the Court 
 of Session and the House of Lords. Lord Balgray said, " The whole 
 case depended on the point, whether it was lawful for a testator to 
 put the disposal of his property at the will and discretion of another ? 
 lie thought it was." Again, a bequest in the following terms — 
 " It is my wish that such remaining means and estate shall be ap- 
 plied in such charitable purposes, and in bequests to such of my 
 
 (a) 9 Geo. II., cap. 36. Dundee, 18 July 1846, 8 D. 1229. See 
 
 (//) Macara v. College of Aberdeen, 1786, chapter 16, sect. 1. 
 
 M. 15,948; Ilailes, 975. (e) Hilly. Burns, 14 Dec. 1824, 3 Sh. 
 
 39 & 40 Geo. III., cap. 98 ; 11 & 12 389, N. E. 275, affirmed 14 April 1826, 2 
 
 Vict., cap. 3(i. \ 41. W. & S. 80. 
 
 i-/i Ogilvie't Trustees v. Kirk-Session of (/) Hill v. Burns, vt supra.
 
 OF CHAlilTABLE BEQUESTS. 427 
 
 friends and relations as may be pointed out by my said dearly ohapteb xxrv. 
 beloved wife, with the approbation of the majority of my said trus- ~~ 
 tees ;" (g) was held not to be void for uncertainty. 
 
 831. In another case,(A) by a codicil to his trust-deed, a testator Noi neces 
 left £5000 for the maintenance of a school in which boys were to be SMbJ'dT 1 
 taught reading, writing, and arithmetic, " to be under the manage- ^o^ 1 ** 10 " 
 ment of the Magistrates and Ministers of the Established Church." 
 No place was specified ; but in respect that truster was born, re- 
 sided, and died in Glasgow, that his trust-deed and codicil were 
 dated and his trustees were merchants there, it was held thai the 
 bequest was aot void for uncertainty, and that the " magistrates and 
 ministers " referred towere those of Glasgow. The House of Lords, 
 on the advice of Lord Wynford, adopted a different course in the 
 
 i Ewi a v. Th. Magistrates of Montrose.(i) There a testator E wen v. Tiu 
 having, in 1821, left £6000 to found an hospital, and provided that *<&**" <f 
 
 Mr x Montrose. 
 
 that sum and the interest on it should be accumulated till it 
 
 amounted to £ , and that the number of boys in it should be 
 
 , the Court of Session sustained the bequest, — the Thellusson 
 A.c1 preventing accumulations beyond twenty-one years. The 
 House of Lords, however, reversed the judgment, and set the be- 
 quesl aside on the ground of uncertainty. The authority of the 
 case has been frequently doubted, — .-is by Mr Boyle in his work on 
 the Law of Charities, (/,■) and by the House of Lords itself in the 
 Morgan case.(Z) A bequest for "charitable and benevolent pur- 
 ■"{iii) was found not void for uncertainty; and much to the 
 same effect was held in a subsequent case.(») 
 
 832. The well know n case of the Morgan Succession(o) is, however, Benignani con 
 probably the mosl remarkable instance oi the favour which tin- law £^S 
 shows to charitable bequests. The case was of this nature: — The^ est ?- 
 magistrates of Dundee claimed the establishment of an hospital in )>Z'i,'"^' 
 thai town under the following testamentary writings of the de- Morri8 ' 
 
 I John Morgan of Edinburgh : — " I hereby annul all hitherto 
 written on the first, second, and third pages oi this, and wish to 
 establish in the town of Dundee, in the shire of Forfar, an [an hos- 
 pital strictly in size, Hi' management of the interior of said hospital, 
 
 Crichton \ G 12 L826, (/) Magistrates of Dunda \. Morris and 
 
 I si,. 668, N.E. 661; affirmed 26 July Others, 26 June L867, 19 D. 918 ; reversed 
 
 8 W. & s. 329 : Kelland \. Douglas, 1 1 Maj L868, 3 Macq. L34. 
 
 1868, 2 Macph. 160. Black's Trs. \. Miller, 23 Feb. 1886, 
 
 Murdoch y. The Magistrates and Minis- 14 Sh. 566 ; affirmed II Julj 1887,2 S. 
 
 r. L827, 6 si,. 186. & M'L. 866 
 
 •". Feb. (n) Dundas \. Dundas, 27 Jan. 1887, 16 
 
 . ! 1880,4 Sh. 4 
 
 ("i '/ . . a' 
 
 B ■ pp.
 
 428 
 
 OF CHARITABLE BEQUESTS. 
 
 Examination of 
 the ratio i I the 
 decision. 
 
 Lord Chelms- 
 ford's opinion. 
 
 ohaptkb xxiv. in every way as Heriofs Hospital in Edinburgh is conducted],— the 
 inhabitants bom and educated in Dundee to have the preference of 
 the towns of Forfar, Arbroath and Montrose; but inhabitants of 
 any other county or town are excluded. [Dated and signed by the 
 testator.] I hereby wish only one hundred boys to be admitted in 
 the hospital at Dundee [and the structure of the house to he less than 
 that of 1L riot's Hospital], and to contain one hundred boys in place 
 of one hundred and eighty boys." [Dated and signed at Edinburgh, 
 20th October 1842. The words printed in italics being deleted in 
 both the writings, but still legible.] 
 
 833. The Court of Session refused to spell a will out of these 
 writings, the words of which Lord Murray said were "mere scratches, 
 rari nantes hi gurgite vasto." But the House of Lords adopted a 
 different view, and taking as their guide "the principle of a be- 
 nignant construction of charitable bequests," their Lordships first 
 sustained the writings above quoted as constituting a will, and 
 then hold that the will was not void for uncertainty. The mixed 
 process of reasoning and conjecture by which this result was arrived 
 at, is both curious and instructive. Thus the Lord Chancellor 
 Chelmsford remarked :{p) — " But then it is said that there is no- 
 thing to indicate the class of boys for which the hospital was to be 
 provided, nor anything to lead to any conclusion as to whether they 
 were to be merely educated, or to be also boarded and lodged. Now, 
 as to the class of boys, they are described with sufficient precision 
 by reference to the inhabitants born and educated in Dundee and 
 the other three towns ; by which, I understand, not the persons 
 themselves who were residents and who had been born and edu- 
 cated there, but the sons of such persons, — a qualification which, 
 though it might embrace inhabitants of different stations and de- 
 grees in society, is yet sufficiently definite to admit of a clear and 
 certain application. Nor can I entertain any doubt of the inten- 
 tion of the testator that the children should be maintained as well 
 as educated ; because they were not to be confined to the town of 
 Dundee, but were expected by him to come from other and distant 
 towns, and would require, therefore, to be lodged and fed in the 
 intended hospital. There may be some doubt whether they were 
 also meant to be clothed. But any uncertainty as to these minor 
 details would not have the effect of defeating his main purpose, any 
 more than his silence as to the description and character of the 
 education which was to be provided for them. But it was strongly 
 urged upon your Lordships in the course of the argument, that the 
 testator had not specified any certain sum, nor furnished any means 
 
 (jo) 3 Macq. 156.
 
 OF CHARITABLE BEQUESTS. 499 
 
 for rendering certain how much was to be applied to the establish- chapteb xxiv. 
 ment of the hospital." . . . "Here," his Lordship continued (q), ~ 
 " the place of the hospital is defined — the town of Dundee. The 
 size, also, of the hospital can be' easily ascertained, as it is to be for 
 100 boys. And there would be no difficulty, therefore, in applying 
 the testator's property, not to a more vague and indefinite object, 
 but to one expressed with sufficient certainty to be capable of being 
 carried out. To this object it appears to me that it was the inten- 
 tion of the testator to devote the whole of his property, or such a 
 competent part of it as might be sufficient for the purpose." 
 
 834. Lord Cranworth carries on the process, and fixes the class LordCran- 
 
 f boys thus :— " Then the class of persons. That is, to a certain mrth ' s opinion - 
 extent, no doubt vague ; but it must be a class from those three or 
 four provincial towns who would be reasonably supposed to seek 
 the benefits of a gratuitous education. 1 think that is sufficiently 
 certain."(r) Lastly, Lord Wensleydale clothes and houses the re- LordWensiey. 
 cipients of the charity, while he provides an endowment for the Me ' a P inion - 
 hospital. " From the use of the word ' hospital,' which is certainly 
 connected with the relief, in some way, of the poor, it may be col- 
 lected that tiny were to be supplied with necessaries, clothing in- 
 cluded; and finally, as this bequest was for the establishment of 
 the hospital, there must not only be buildings, but an endow- 
 ment." (s) 
 
 835. It maybe presumptuous to suggest that much of this is influence of the 
 very fanciful, and that the principles on which such a mode of con- S^r ° n 
 struction rests are somewhal dangerous. Be that as it may, there charita Webe- 
 carj 1m- no doubt thai the Morgan case will be followed as a prece- ^ 
 
 dent. Its influence was observable in a recent decision of the First 
 Division.(tf) A testator, who had executed a tested deed in favour Edinburgh m- 
 of certain trustees giving funds to various charities, afterwards de-^ mars ' case ' 
 Leted the provisions to certain of the charities, marking them can- 
 celled, and signing the cancellation. He also deleted the names of 
 the trustees, writing on the margin opposite the deletion, " Mana- 
 gers of the Edinburgh Royal [nfirmary for the time being," and 
 signing the marginal addition. In a holograph codicil he s;ml, " I 
 hereby appoint the Managers of the Edinburgh Royal Cnfirmaryfor 
 the time being my sole executors and trustees." The Courl held 
 thai the managers were properly substituted as trustees, and thai 
 the conveyance to the [nfirmary was good. No opinion was given 
 as to how it would have been it no new trustees had been named, 
 orwhether, in the case of heritable property, n the names of the 
 
 Ifi ' (i) Royal Infirmary of Edinburgh v. Lord 
 
 M i ; 166 Advoc it 20 June 1861, 28 I 1 i 
 
 Macq 171
 
 £30 OF CHARITABLE BEQUESTS. 
 
 ohapmb xxiv. trust-disponees had been rendered a total blank, the trust could 
 
 have been sustained, the Court naming trustees or a factor. 
 Mistakes in the 836. Where an evident clerical error has been made in the no- 
 itmlsi,''.''.'' 1 ruination of the trustees, or where circumstances have altered since 
 t l u . date of the trust-deed, the Court will interpose, and take care 
 that as far as possible the intentions of the truster shall have effect. 
 Thus, where in a trust-deed one of the ex officio trustees was styled 
 the •■ Moderator of the City of Aberdeen," while it was obvious that 
 the " Moderator of the Synod of Aberdeen" was meant, the Court, 
 in an action of declarator, rectified the mistake ; declaring, how- 
 ever, that they did not do so in the exercise of any prsetorian 
 power, (u) 
 Bequests to 837. It has been decided that bequests to official persons are 
 
 l?tSeS SOnS good, though they are not a corporation, and that their successors 
 Caseof Gordon's ^ ffi ce succe ed them as trustees, (x) The founder of an hospital 
 AM-lcu."' in Aberdeen named as patrons the Magistrates, Town Council, and 
 " four Ministers, commonly called the Town's four Ministers of the 
 Old and New Churches, and their successors in their respective 
 offices," their being only two collegiate churches and four ministers 
 at the time. The burgh being afterwards divided into six parishes, 
 having each a single clergyman, the Court held that only four mi- 
 nisters could be patrons, two of them always being the ministers of 
 the churches referred to in the deed of mortification, and the others 
 being chosen according to the seniority of their appointment as 
 town's ministers, or, if they were coeval in that respect, then by 
 their seniority as licensed clergymen. (?/) 
 Case of Herirf '■ 838. Again, by George Heriot's will, the governors of his hospi- 
 I'li'iwih 1 tal were tne Provost, Magistrates, and ordinary Council of Edin- 
 burgh, and the Ministers thereof for the time being. At the date 
 of the foundation, certain representatives of the Incorporated Trades 
 we're constituent members of the Council, but they lost their rights 
 as such by the Burgh Eeform Act. The Court held that, in ceas- 
 ing t<j be members of the Council, they had also lost their right to 
 the governorship of the hospital, (s) In delivering his opinion, the 
 Lord President Hope alluded to the circumstance, that since the 
 foundation of the hospital the ministers of Edinburgh had become 
 Presbyterians from being Episcopalians, and had increased in 
 number from eight to eighteen, and yet all of them were entitled 
 . „ v to act as governors. A testator domiciled in Jamaica, named as 
 Maijoribanks. jjis trustees to administer a charity in. Scotland, five heritors of the 
 
 (u) Synod of Aberdeen v. Milne s Trs., 25 Ministers of Aberdeen, 8 July 1831, 9 Sh. 
 
 Feb. 1847, 9 D. 745. 909. 
 
 (x) Macarax. College of Aberdeen, 1786, (z) Incorporated Trades of Edinburgh v. 
 
 M . 1 -VJ48, Ilailes, 975. Governors ofHeriofs Hospital, 3 June 183G, 
 
 (y) Governors of Gordons Hospital v. 14 Sh. 873.
 
 OF CHARITABLE BEQUESTS. 431 
 
 parish which was to benefit by the bequest, " their heirs and as- chapter xxiv. 
 signs." The Court held that the trusteeship was hereditary in the 
 family of each heritor, and was not to be restricted to the heir of 
 the last survivor of the original trustees, (a) 
 
 839. In England charities are not less favoured objects in the Doctrine of 
 eye of the law than they are with us. Of this no better proof SolStion^' 
 could be adduced than the existence of the well known doctrine of administered in 
 
 . . . the Court of 
 
 Uy-pres (or approximation). In treating of this doctrine, Mr Boyle Chancery. 
 says,(&) — "If charity be the general substantial intention, though 
 the mode by winch it is to be executed fails through accident or 
 other circumstances, the Court will find some means of effectuating 
 that general intention.(c) In resorting, therefore, to the principle 
 of cy-pres, the Courts have been guided by a supposed discovery of 
 intention on the part of the donor to devote the subject of his gift 
 at all events to charity, and to deprive las representatives of every 
 claim to the pr< iperty. Upon this supposed indication of the donor's 
 will, such obstructions as may occur in the course which he has 
 himself pointed out are not allowed to arrest, but merely to turn 
 aside the flow of his bounty ; whilst, if no course has been percep- 
 tively directed by him, a channel by which his charity may be 
 rendered both beneficial and useful will be marked out by the 
 Court. Thus it is well established, that where the donor has left 
 tin- selection of objects, as in some cases ; of the mode, as in others ; 
 and of the charities themselves, as in a third class of cases, to in- 
 dividuals who afterwards became incapable of executing the office 
 confided to them, the Court will take upon itself to act in their 
 stead. (rf) It would indeed be difficult to advance any proposition 
 which is more firmly established in Courts of Equity than that a 
 t ni-t shall not be allowed to fail for want of a trustee ; and although 
 in several instances where a charitable gift has had to be executed 
 <H'l>i's. it has be< D BOUghl t" have limits assigned to that proposi- 
 tion, t wt the rule has been invariably acted upon." It would be in 
 vain to examine in detail the various modifications of this doctrine 
 and the manner in which it has been applied by the English Courts. 
 A very large portion of Mr Boyle's Treatise on Charities is devoted 
 to an examination of these, and to it therefore we musl refer,(< ) 
 
 (a) l v. Marjoribankt, 1 April ca e, the princip] el 
 
 the difficulty, nami ly. w here money i h fl 
 Charil NT in trual for pur]"* i v, hich can only be 
 
 A • il 8 B, i uted in a fori ign country, and n ; 
 
 i claim, or the law of the fo- 
 
 J I '/ Thackwell, 7 V< forci the admini 
 
 timi of ili'' tint. In . the trust- 
 
 Bo on Choritii .117 280. [none to the heir or r<
 
 t32 
 
 OF CHARITABLE BEQUESTS. 
 
 OHAFTBB XXIV. 
 
 To whal extent 
 cution of 
 a i rusl i h/-pres 
 is admissible. 
 
 Trust for pre- 
 sentation to a 
 benefice. 
 
 Election vested 
 in heritors and 
 elders. 
 Usage upon 
 Statute 1690, 
 cap. 23. 
 
 840. The case of Duffs Trs.,(f) on the point decided in the 
 Outer-House, came very near to, if it did not go the whole length 
 of recognising the doctrine of cy-pres. The testator bequeathed a 
 fund to be divided in equal proportions between the " Societies of 
 Scripture Readers" in certain towns, and, inter alia, in Dundee and 
 [nverness; and Lord Jerviswoode sustained the claims of two so- 
 cieties, called the "Inverness Scripture Reading and Tract Dis- 
 tributing Society," and the "Dundee City Mission Association;" 
 "for," said his Lordship, "seeing that there are no competing 
 claims from these towns, and having reference to the cJiaracter of 
 the bequest, he is of opinion that he is acting within the true inten- 
 tion of the testator in sustaining the claims to the extent specified 
 in the interlocutor." We see no reason to doubt that the Court of 
 Session, as a court of equity, has power to carry into effect a testa- 
 tor's intention, although it should be necessary, in doing so, to in- 
 trust the administration of his bequest to a society which may not 
 exactly answer his description, but whose constitution enables it to 
 carry his benevolent wishes into execution. 
 
 841. II. Property of Eeligious Societies. — The case of a trust 
 of a right of patronage for the presentation of a clergyman accept- 
 able to the congregation (which is one of an exceptional nature), 
 may be first considered. The law of Scotland does not look with 
 disfavour upon the system of presentation by means of popular elec- 
 tion. On the contrary, a conveyance of a right of patronage to heri- 
 tors or parishioners, to be exercised for behoof of a congregation, 
 will receive effect, although there may be no formal declaration of 
 trust purposes. (V/) 
 
 842. It is to be observed that the Act 1690, cap. 23, abolishing 
 patronages, vested the right of election in the heritors and elders, 
 with a veto in the congregation ; and although this Act was repealed 
 by the 10th Anne, cap. 12, there is a reservation in § 2 of the rights 
 of heritors and magistrates of burghs who had previously purchased 
 the right of presentation to their respective parishes, and obtained 
 a renunciation under the hand of the patron. The Act of Queen 
 Anne applies to rights of patronage vested in those bodies in virtue 
 of deeds of renunciation ; and in this class of cases, accordingly, the 
 election of a presentee will take place in the manner prescribed by 
 the Statute 1690, cap. 23. With reference to elections under the 
 Statute, it has been decided that the votes of the meeting are Sub- 
 sidiary legatee according to its quality, lar decision was pronounced by Lord Ivory 
 See New v. Bonaker, Law Kep. 4 Eq. Ca. in Bethunev. Cameron, 15 March 1843, no- 
 655. ticed in Forsyth on Trusts, p. 403. 
 
 (/) Duff's Trs. v. Societies of Scripture (g) Brown v. Johnston. 9 June 1830. 8 
 
 Headers. 18 Mar. 1 8G2. 24 D. 552. A simi- Sh. 899.
 
 OF CHARITABLE BEQUESTS. 433 
 
 ject to scrutiny, and that the minutes of the meeting are not con- chapter xsiv. 
 elusive evidence of the proceedings ; that the chairman has no cast- 
 ing vote ; and that the Court may, after a scrutiny, declare the party 
 in whose favour a legal majority of votes has been given to be duly 
 elected. (Z>) In a case where it appeared that the patrons of the 
 parish, prior to the Act of Queen Anne, had not executed a deed of 
 renunciation in terms of the Statute, but had afterwards, on the 
 narrative that the statutory sum of 600 merks had been paid to 
 them by the heritors and liferenters, granted a deed of renuncia- 
 tion and conveyance in favour of the heritors and kirk-session, it 
 was found that the heritors and kirk-session were not bound by 
 til'- conditions of the Act 1690, but were clothed with an absolute 
 right of patronage, to be exercised, not by election, but by presen- 
 tation.!/') 
 
 843. "With regard to the manner of appointmenl when the pre- Presentation 
 
 , . . , , •■ . -, . , ^ must be by 
 
 sentation is vested in trustees, it has been settled that the Court deed. 
 cannot take cognizance of any proceedings in the nature of resolu- 
 tions minutes, or votes of the presenting body.(&) The appoint- 
 ment can only be made by a signed died of presentation; and the 
 validity of the election will depend entirely upon the number of 
 i tures of qualified electors adhibited to that deed. Where there 
 are competing deeds of presentation, the Court will accordingly give 
 effect to that one which is signed by the largest number of quali- 
 fied patrons.(H) It would seem that if a patron conveys his right 
 to trustees, upon trust to elect a minister subject to the approval of 
 himself and his heirs, the righl of veto reserved by the granter is a 
 personal privilege, and does not fall to the Crown by forfeiture. (m) 
 
 844. The nature of the electoral qualification, where the pa- Electoral quaii- 
 
 ,. iin ,i i- c • ■ fication in trusts 
 
 tronage is vested m a popular body, was the subject oi inquiry in a f or popuiar 
 recenl case. The patronage of the church was vested by private electlon " 
 Statute in the " hail] inhabitants" of the parish.(w) The following 
 persons were found no1 to be entitled to vote as inhabitants, viz.: 
 married women, persons living in family with their parents or others, 
 and not being themselves householders in the parish ; also servants, 
 soldiers, Lodgers, and visitors, qo1 being householders in the parish, 
 and persons known to be Papists. It may be observed, however, 
 thai previous casi - had settled thai a private patron was nol disqua- 
 
 L Ji L816, 6 v. Smith, L8 Dec. 1859, 22 D. 186; Cullen 
 
 Pat. J v. Sprott, 17 Feb. 1841, 8 D. 661. 
 
 ' \ ". 17 Nov. L840, 8 Adv.-Oen. \. '/ Stirling, 6 
 
 D. 7". F e b. 1846, 8 D. 160. 
 
 B I Jm [880,8 Graham v. Smith, 18 Dec. 1869,22 
 
 Sh. ' I) 1-7 
 
 1 Graham 
 
 vor. i. 2 i:
 
 1; ; I OF CHARITABLE BEQUESTS. 
 
 oHAfTKB xxiv. lified from presenting by reason of Papacy.(o) A minor may vote 
 with consent of his curator \(p) the vote of the curator alone being 
 invalid. (<y) Where the right of presentation was vested by deed in 
 heritors and tenants in a parish, the Court excluded the votes of 
 non-resident heritors and liferenters, but found that it was not a 
 good objection that heritors or tenants were females. (V) 
 Trusts of chapd 845. The most important cases falling within this subdivision 
 of the subject are the cases of disputes in relation to the property 
 of chapels, where a division or schism takes place in the congre- 
 gation. The decisions are not very numerous, and they exhibit a 
 considerable amount of fluctuation of opinion as to the principles 
 which should guide the Courts in the determination of the rights of 
 the contending parties. These principles, however, are now settled, 
 and are in themselves simple enough ; though their application to 
 particular cases involves the examination of questions of a very 
 high order of complexity. 
 Deed of investi- 846. It may be premised that where the titles to the church ex- 
 Se for 7 tne°" pressly provide that it shall be held by the trustees for behoof of 
 e c'h£n° f a the general governing body of the particular sect, or where they ex- 
 pressly provide for the case of schism by declaring, for example, 
 that in such an event the property shall belong to the majority of 
 the congregation, there can be but little difficulty as to the rights 
 of parties should a schism take place. The situation of matters 
 with which we are now about to deal is where, by the titles, the 
 property is held as a trust for the congregation and its members, 
 without any provision for the case of a schism. 
 Congregation 847. Iii the earliest reported case, commonly known as Gibb's 
 
 hasatkletosue - case) (s) where a Secession congregation split among themselves, 
 and the new trustees elected by the majority sued the existing 
 trustees, who adhered to the minority, to denude in their favour, the 
 Court, altering the judgment of Lord Elchies, refused to sustain the 
 action, on the ground that the pursuer's " constituents were no legal 
 congregation." The Court, however, soon adopted more tolerant 
 notions, and there is no other case in which the title of a dissenting 
 congregation to sue or be sued has been disputed. 
 At one time the 848. At first, when these questions came before the Court, the 
 rt reco"!le principle on which they solved them was by asking which party 
 
 the majority. 
 
 (o) Baillie v. Morrison, 28 Feb. 1822, {q) Stirling v. Campbell, 1 July 1816, 6 
 
 1 Sh. 363, N. E. 340 ; Presbytery of Inver- Pat. 238. 
 
 ness v. Fraser, 10 June 1823, 2 Sh. 384, (r) Brown v. Johnstone, supra. 
 
 N. E. 341. (s) Bryson v. Wilson and Bain, 1751, 
 
 O) Brown v. Johnstone, 8 Sh. 902. See Elch. " Title to Pursue," No. 1. 
 Bankton, vol. ii, p. 37; More's Notes, p. 43; 
 Cormell on Parishes, 43.
 
 OF CHARITABLE BEQUESTS. 435 
 
 was in the majority; they then found that party entitled to the chapter xxiy . 
 trust property, without any regard being paid to the consideration 
 whether they adhered to the original opinions of the congregation 
 or to those of the sect with which it was connected. (t) 
 
 849. In 1803 occurred the case of Craigdallie, arising out of the Property after- 
 dissensions among the Burgher Seceders. Davidson, Craigdallie, those who 'ad-" 
 and other members of the congregation of the Associate Synod in ^^^j 
 Perth, sided with the minority of the Synod ; but, in respect they superiors. 
 composed the majority of the Perth congregation, they claimed 
 possession of the chapel. Aikman and his party, on the other Craigdallie v. 
 hand, who adhered to the majority of the Synod, maintained that ' ''"'""' 
 they were entitled to the chapel, because they had remained faith- 
 ful to the principles and communion of the founders. The larger 
 
 party at first left the chapel, but very soon presented a petition to 
 the Sheriff praying him to reinstate them in it. The Sheriff directed 
 that the one party sin old have access to the church in the forenoon 
 and the other in the afternoon, and that they should not disturb 
 each other in their devotions. The question, however, was soon 
 raised before the Court of Session, each party 1 (ringing an action 
 against the other to have him turned out. When the case was first 
 debated, the Court held,(«) in conformity with former judgments, 
 that, where there is a schism, the property belongs to the majority 
 in point of interest. Aikman's party having reclaimed, the Court 
 altered their judgment, and held (x) that in such circumstances the 
 property belongs to those who adhere to the ecclesiastical superior 
 oi community as at the date of the creation of the trust. To this 
 second interlocutor their Lordships finally, though with difficulty, 
 adhered, (y) 
 
 850. The case w,i- then appealed to the House of Lords, who Doctrine laid 
 remitted it foi further argument. In moving the remit, Lord |°^ by Lord 
 Chancellor Eldori said,(z) "It was true t lie Court could not take 
 
 notice of religious opinions, with a view to decide whether they 
 were righl ot wrong, hut it mighl notice them as facts pointing out 
 the ownership of property.(a) With respect to the doctrine of the 
 English law on the subject, if property was given in trust for A., 
 B. C, &c, forming a congregation for religious worship, if the in- 
 
 (/, ii, | 13 Dec. 1771. M. (w) Davidson and Others v. Aikman and 
 
 i; i • , -J i 1791, Others, 16 Nov. 1808, .M. I 1,692. 
 
 M. l 1,688, and B< ll'a Oct, Ca, 688; /' GO 1 Nov. I so I. ,M. I 1,698. 
 
 I mi m. "Society," (//) '-'7 -Inn.' L806, M. I 1,684, 
 
 App. No. 8; and duchincloss v. (z) 1 Dow, 16. 
 
 Black, 7 Mar. 1791, and Smith v. Kyd % 26 («) This principh i confirmed 
 
 cited. by the recent ■' orbet 
 l den, 11 Aj.nl 1M17, 6 Macph. II. I 
 
 2 i. 2
 
 436 OF CHARITABLE BEQUESTS. 
 
 ohapteb rav. stramenl provided for the case of a schism, then the Court would 
 .,,.( ul , 011 it ; bul if there was no such provision in the instrument, 
 and ili<' congregation happened to divide, lie did not find that the 
 law of England would execute the trust for a religious society, at 
 the expense of a forfeiture of their property by the cestui que trusts, 
 for adhering to the opinions and principles in which the congrega- 
 Minoritvadher- lion had originally united. He found no case which authorised 
 J'ea him to say (hat the Court would enforce such a trust, not for those 
 who adhered to the original principles of the society, but merely 
 jorftv w ith a reference to the majority; and much less if those who 
 ^ndpTes. changed their opinions, instead of being a majority, did not form 
 one in ten of those who had originally contributed ; which was the 
 principle here. He had met with no case that would enable him 
 to say that the 'adherents to the original opinions should, under 
 such circumstances, for that adherence forfeit their rights." The 
 rase accordingly went back to the Court of Session, who found that 
 they could not discover that the defenders, Aikman and others, had 
 deviated from the original principles of the congregation, and there- 
 fore sustained their right to the chapel, whilst they debarred from 
 using it the pursuers, who held the same views. In their interlo- 
 cutor they (b) " find that the pursuers, James Craigdallie and others, 
 have failed to condescend upon any acts done or opinions professed 
 by the Associate Synod, or by the defenders, Jedediah Aikman and 
 others, from which this Court, so far as they are capable of under- 
 standing the subject, can infer, much less find, that the said defend- 
 ers have deviated from the original principles and standards of the 
 Associate Presbytery and Synod." 
 Second appeal. 851. This was affirmed by Lord Eldon in a very characteristic 
 
 judgment, in which, speaking of the judgment appealed from, he 
 savs,(c) — "The Court pronounced an interlocutor, in which it de- 
 scribes the utter impossibility of seeing anything like what was in- 
 telligible in the proceeding ; and I do not know how this House is 
 to relieve the parties from the consequence. The Court of Session 
 in Scotland were full as likely to know what were the principles 
 and standards of the Associate Presbytery and Synod of Scotland 
 as any of your Lordships ; and are as well, if not better than your 
 Lordships, able to decide whether any acts done or opinions pro- 
 fessed by the defenders, Jedediah Aikman and others, were opinions 
 and facts which were a deviation on the part of the defenders from 
 the principles and standards of the Associate Presbytery and S} r nod. 
 If they were obliged to qualify the finding, as they do, intimating 
 that they doubt whether they understood the subject at all, under 
 (b) 2 Bligh, 537. (c) 2 Bligh, 542.
 
 OF CHARITABLE BEQUESTS. t37 
 
 the words, ' as far as they are capable of understanding the subject,' ohapteb mv. 
 I hope I ma}' be permitted, without offence to you, to say that there 
 may be some doubt whether we understand the subject, not only 
 use the Court of Session was much mure likely to understand 
 the matter than we are, but because I have had the mortification, 
 I knew not how many times over, to endeavour myself to under- 
 stand what these principles were, and whether they have or have 
 not deviated from them, and I have made the attempt to under- 
 stand it ; but I find it, at least on my part, to be quite hopeless. 
 . . . . All I can say upon the subject is, that, after racking my 
 mind again and again upon the subject, I really do not knew what 
 to make of it." 
 
 852. At the close of his speech, Lord Eklon expressed a fur- Judgment, 
 ther doubt as to whether it was necessary or proper to debar the 
 Craigdallie party from the use [of the chapel; in fact, whether the 
 original judgment of the Sheriff was not the right one after all; 
 
 and he took time to consider what he should do. But ultimately 
 he proposed a simple affirmance of the interlocutor of the Court of 
 on in all its parts.(c?) 
 
 853. In the interval between the first decision of the Court of Cases subse- 
 ii and the ultimate judgment of the House of Lords in cmigdailie v. 
 
 Craigdallie' 8 case, occurred the cases of Bulloch (e) and M'Intyre v. - 1 ' 7 """"- 
 M( JrU .' (/) but of course it is unnecessary to consider them. In 
 L823 the case of Craig v. Mackersy(g) was decided; but the judg- 
 ment wen! entirely on the special terms of the lease, and so does 
 not affeel the general doctrine as Laid down by Lord Eldon, which 
 i xpressly recognised in Galbraith \. Smith,(h) Craigie v. Mar- 
 8hall,(i) and Coopery. Burn.(k) It has, however, been held, thai 
 if all parties agree, or fail tempestive to object, to the church being 
 occupied by a portion of the congregation who have departed from 
 its original principles, subsequent dissent to the effect of carrying 
 off the buildingfi *\ ill be precluded; for, said Lord Campbell, in 
 moving the affirmance oi the judgmenl of the Court of Session in 
 CairncroM v. Meek,(l) " First, the maxim will apply, 'volenti non 
 fii injuria;' and secondly, the doctrine, that if a man, either by 
 words or by conduct, has intimated that he consents to such pro- 
 
 l Oman, 2 Bligh, 629, (A) Galbraith v. Smith, 10 March 1887, 
 '11 a 6 Pal 16 Sh. 808; 6 June L889, 6 D. I 
 
 B Smith, 81 Jan. 1809, F.C. (i) Craigie v. Marshall, 25 1,12 
 
 v | 24 F( b. 1809, D. 628. 
 
 (/. ) Couper \. Burn, 2 Dec. L869, 22 D. 
 M ,', i !0 
 
 Bb, --"-'I N i. ; it) < • 20 
 
 D D
 
 438 Ol' CHARITABLE BEQUESTS. 
 
 cnArTKK xx iv. ceedingg. and that he will offer no opposition, although it could not 
 have kvn lawfully done without his consent, yet he cannot after- 
 wards question their legality to the prejudice of those who have re- 
 lied on the fair inference to be drawn from his conduct." (m) 
 
 Doctrineofthe 854. In England it is unnecessary to say that the law on this 
 
 n,i ' point is precisely the same as that stated above. In the leading 
 
 .ase,(w) Lord Eldon said, " I take it to be now settled by a case in 
 
 the House of Lords, on appeal from Scotland, that the chapel must 
 
 remain devoted to the doctrine originally agreed on." 
 
 tsby 855. III. Bequests to the Poor. — Where funds are vested in 
 
 butiL°Mnon{pt the heritors and kirk-session of a parish for behoof of the poor, the 
 trust may be enforced by action at the instance of any of the mem- 
 bers of the parochial body (which is to certain effects regarded as 
 a corporation), (o). or at the instance of inhabitants of the parish, 
 alleging that they have an interest in the management and admi- 
 nistration of the bequest, (p) 
 
 cot confined to 856. A bequest to the poor of a parish is not necessarily con- 
 
 h'iai fined to persons who are legally entitled to demand parochial re- 
 lief. This was decided in an action of declarator against a kirk- 
 session intrusted with the management of a legacy " for the bene- 
 fit and behoof of the poor in the said parish of Bathgate," con- 
 eluding that the defenders were bound to uphold and apply the 
 same " in affording relief to such occasional or other poor of the 
 parish who have no legal claim for relief under the Poor Law 
 Act," 8 & 9 Vict, c. 83. (q) " The poor," said Lord Colonsay, 
 " neither in common parlance nor in law, are the persons only who 
 are chargeable on the parish ; for besides these there is another 
 large body of the poor, who are sometimes and very properly de- 
 scribed as able-bodied poor, and who are not entitled to parochial 
 relief; and, besides, there are many who may clearly be classed 
 among ' the poor/ though having relatives bound to support them 
 because they are poor, or from moral duty. There are others, 
 again, who have just means enough to exclude them from right to 
 parochial relief — who have no relatives, and who, from their cir- 
 cumstances of great poverty, are very properly considered gene- 
 rally as poor. And there do exist funds which the minister of the 
 
 (m) Cairncross v. Lorimer, 9 Aug. 1860. (p) Liddell v. Kirk-Sess. of Bathgate, 14 
 
 3 Macq. 827, see p. 829. July 1854, 16 D. 1075. 
 
 (n) Foley v. Wontner, 2 Jac.& Walker, 247. (q) Liddell v. Kirk-Sess. of Bathgate, 
 
 (o) See E. of Galloway v. Kirk-Session of supra ; Hardie v. Kirk-Sess. of Linlithgozv, 
 
 Dairy, 22 Feb. 1810, F.C. ; Heritors of Hum- 15 Nov. 1855, 18 D. 37 ; Presbytery of Deer 
 
 bit v. Min. and Kirk-Sess., 1751, M. 10,555 ; v. Bruce. 20 Jan.' 1865, 3 Macph. 402. 
 Hamilton V . Mi,,., etc , of Cambitslang, 1725, 
 M. 10.570.
 
 OF CHARITABLE BEQUESTS. 439 
 
 parish is authorised to administer to all these classes which I have chaptbb xxtv. 
 described, — I mean the collections at church doors, and funds of 
 that kind, which are handed over to the minister and kirk-ses- 
 sion."(V) 
 
 857. By the Act 8 & 9 Vict., cap. 83, it is enacted, " That where Application of 
 any property whatsoever, whether heritable or moveable, or any of Poor Law " 
 revenues, shall at the time of the passing of this Act belong to or Act " 
 
 be vested in the heritors and kirk-session of any parish, or the ma- 
 gistrates, or magistrates and town council of any burgh, or commis- 
 sioners, trustees, or other persons on behalf of the said heritors and 
 kirk-session, or magistrates, or magistrates and town council, under 
 any Act of Parliament, or under any law or usage, or in virtue of 
 any gift, -rant, bequest, or otherwise, for the use or benefit of the 
 poor of such parish or burgh, it shall, from and after a time to be 
 fixed by the Board of Supervision, be lawful for the parochial boo rd 
 of each such parish, or of the combination in which such parish or 
 burgh maybe respectively, to receive and administer such property 
 and revenues, and the right thereto shall be vested in such parochial 
 board."(s) 
 
 858. In the construction of this clause, it has been held that The enactment 
 the description of funds referred to in the statute was not intended j:;";J*£ e c,uded 
 to include such funds as appear to be devoted, either by the terms usage - 
 
 of a bequest or by immemorial usage, to the support of a class of 
 poor different from or more extensive than those who are legally 
 entitled to parochial relief. And therefore, where it appeared that 
 a fund mortified in 1707 had been applied for the relief of poor per- 
 sons generally, including casual or occasional poor, the Court as- 
 soilzied the kirk-session from the conclusions of an action claiming 
 the property on the behalf of the parochial board of the parish.(i) 
 In this case it was doubted whether property vested in the kirk- 
 ion to the exclusion of heritors fell within the scope of the vest- 
 ing clause of the Statute.(w) On the same view, where a testator 
 left a legacy "to the minister and kirk-session" of a parish, the 
 Court found that this was not a bequest to the heritors and hirk- 
 ■■". and did uol fall within the operation of the 52d section of 
 the Poot Law Amendment A.ct.(a?) 
 
 859. Trusts vested in the heritors and kirk-sessions of parishes, Enforcement by 
 or in the magistrates of burghs or other public bodies, for the main- P P ukrftCtion - 
 
 16 D. 1079. 18 It. 40. 
 
 | 62. I.;.l,i.n v. 2 i f Bathgate, 11 
 
 fi ' f Linl [, 16 D. 1088. See the Kingla 
 
 1 1 Jam 1867, 6 M icph I
 
 ■Hi) OF CHARITABLE BEQUESTS. 
 
 ohaptbb wiv. tenance of schools, etc., may in like manner be enforced at the suit 
 of individual members of the corporation, or by what has been 
 called actio popularis, at the instance of inhabitants interested in 
 the foundation, (y) 
 
 (v) See Kirk-Sess, of Monimail v. Es- Milne's Trs. v. Coivie, 25 Jan. 1853, 15 D. 
 pline, 21 Nov. 1828, 7 Sli. 45 ; Mason v. 321 ; Ross v. Ileriot's Hospital, 14 Feb. 
 s Trs., 23 Jan. 1830, 14 Sh. 343; 1843, 5 D. 589.
 
 SATISFACTION AND ADEMPTION OF LEGACIES. 
 
 441 
 
 CHAPTER XXV. 
 
 CHAPTER XXV. 
 
 SATISFACTION AND ADEMPTION OF LEGACIES. («) 
 
 I. Satisfaction of Legacies by Provisions. 
 II. of Onerous Provisions by Lega- 
 cies. 
 
 III. of Debts by Legacies. 
 
 IV. of Legacies and Provision* by 
 
 Advances. 
 
 860. Satisfaction has been defined to be the donation of a thing, Limits and 
 with the intention, expressed or implied, that it is to be taken, p e s i t jo n f e th"e 
 either wholly or in part, in extinguishment of some prior claim of sub i ect - 
 the donee. (6) In one class of the cases which we have occasion to 
 consider, satisfaction is presumed from the mere circumstance of a 
 provision being granted to a person for whom the granter was 
 under an obligation to provide, — a presumption which is embodied 
 in the maxim, debitor non prcesumitur donare. In another class of 
 -. the presumption of satisfaction does not arise, and it lies with 
 the granter's representatives to prove that there was an intention 
 ttisfy or adeem the prior provision. The English cases, to 
 the authority of which so much weight is due in relation to ques- 
 tions in the law • >f Legacies, offer but a very uncertain, and soine- 
 times a misleading light, in relation to the law affecting obligatory 
 provisions ; this chapter is therefore based exclusively upon native 
 authority. 
 
 SECTION I. 
 SATISFACTION <>F LEGACIES BY PROVISIONS. 
 
 861. 1 1 a father gives the same sum of money to a child by two By the law of 
 
 Scotland, there 
 j^ oo pn amp 
 rtion, or the satisfaction of a d< b( tion thai a 
 oi portion by a legacy. In thai sen e it | ( 
 
 I be '■ rin adt mption, which w 
 in ih. civil law to d< note the implied re- 
 ; Eng] n'l been 
 
 e, to ex- 
 "ii "t one provision by ;i 
 on of .i diff( renl 
 r.g.. thi j by a mai 
 
 ha lafc ly comi into u e in Scotch | 
 
 Si i Kippen v. Darley, cit< 'I infra; I 
 
 [De Ademption* Legatorum); Dig lib. 84, til 
 
 i /' Adimendi \ 
 
 2 :\ ■ ■ l I.. 8d ed. p 
 
 in Batisfai 
 
 a |'im\ i ion.
 
 I |-J SATISFACTION AND ADEMPTION OF LEGACIES. 
 
 ohaptbb xxv. different instruments, unless it appears, either expressly or by 
 necessary implication, that he intended the one to be in satisfaction 
 of the other, the law of Scotland will not presume that he had that 
 intention. (c) It was at one time supposed that there was such a 
 presumption ; and it has been argued with much force, that the 
 presumption againsl double portions, which was understood to be 
 admitted in the law of England, is no more than the expression of 
 a Legitimate inference as to the probable intention of the granter in 
 the absence of other elements of proof. Thus it has been argued, — 
 if a parent, having left by his will a legacy of £10,000 to his 
 daughter, afterwards settles £10,000 upon her on the occasion of 
 her marriage, his intention would in ninety-nine cases out of a 
 hundred be defeated if she were allowed to take the legacy as well 
 as the provision. (f?) Nor is authority wanting to support the theory 
 of presumed satisfaction. In addition to the cases subsequently 
 
 Erroneous doc- referred to, there is the dictum of Erskine, who says; " A settle- 
 
 iivErskiiH\"" meiit to a daughter in a marriage-contract is presumed to be granted 
 in satisfaction or solution of all former provisions, though it should 
 not bear the words 'in satisfaction;' because provisions granted 
 by fathers in marriage-contracts are generally intended to compre- 
 hend the whole estate that is to be expected by the husband from 
 the wife or her father in the name of tocher."(e) 
 
 Kippi « v. ; 862. The doctrine here stated must now be regarded as erroneous. 
 
 When the question came for the first time before the House of Lords, 
 in the case of Kippen v. Kippen's Trustee, it was found that — omit- 
 ting one or two cases in which the Court appears to have drawn 
 the inference of satisfaction from evidence of intention in the 
 deed, rather than to have presumed it — there was no authority for 
 the proposition as Erskine laid it down. The cases on which re- 
 liance had been placed were authorities for the converse of the 
 proposition ; that is, they establish that there is a presumption 
 for satisfaction when a father leaves a legacy to a child for whom 
 he has undertaken to provide by a previously executed contract. 
 
 KSed may 863 - Tlie observation of Erskine, however, although no longer 
 to be received as the statement of a legal presumption, is an obser- 
 
 "f intention m ox j. i 
 
 vation which, when used arguendo, may be entitled to weight, the 
 question always being, what was the intention of the father in giv- 
 ing the portion ?(/) The terms of the settlement— the coincidence 
 of the two provisions as regards amount, and the form of the des- 
 
 (c) Per Lord Chancellor Chelmsford in (e) Ersk. 3, 3, 93. See Stair, 1, 8, 2 ; 
 Kippen v. Darky, 3 Macq. 238. and Bankt. vol. i, p. 154, where the same 
 
 (d) Per Lord Cranworth in Kippen v. doctrine was thought to be implied. 
 Darby (Kippm's Tr.). 3 Macq. 246 ; and (/) Per Lord Wensleydale, 3 Macq. 259. 
 see Lord Deas' opinion, 18 D. 1189.
 
 SATISFACTION AND ADEMPTION OF LEGACIES. 443 
 
 tination, etc. — viewed in connection with the manner in which the chapter xxv. 
 father has dealt with his other children, may raise a presumption 
 against duplication. "There is," said Lord Oolonsay, in a passage 
 quoted with approbation in the appeal, " in certain eases, such a 
 presumption ; and that presumption is more or less strong accord- 
 ing to circumstances. It is not peculiarly strong when the one 
 provision is in ;i will, and the other in a marriage-contract. It is 
 said that the presumption is, that a father brings forward every* 
 thing at the marriage of his daughter, in order to secure the best 
 terms he can from the future husband, but this rule is too broadly 
 Btated. It only means that there is a presumption that he brings for- 
 ward everything that he has in contemplation of doing for her — all 
 that lie intends to bind himself to do, but not all that he may do."(</) 
 864. After an elaborate examination of all the authorities, both 
 by the whole Court in Scotland and by the Lords who took part in Stateoftbe 
 the decision on appeal, it is now settled that there is no presump- impUed satis?" 
 tion in the law of Scotland against double portions in cases where tactlutl - 
 the- first provision is voluntary and revocable.(A) According to the 
 opinions expn ssed in a more recent case in the Court of last re- 
 sort, it would appear that the presumption is subject to a corre- 
 sponding restriction under the law of England, and that the question 
 whether a legacy is adeemed by a marriage-contract provision is 
 purely one of intention, (i) In the observations of Lord Chelms- 
 ford, Ch., we perceive a different method of reasoning, quite opposed 
 to that which prevails with us. "The question," said his Lordship. 
 ■■ whether a gift in a v o be considered as a satisfaction of a 
 
 portion given by -'til mi at, or a portion given by settlement is to 
 ho taken as an adempti o of a gifl by will, is one of intention. It 
 rtainly easier i ive at a conclusion as to that intention 
 
 where the will pr< menl than where the settlement 
 
 is lir-t and the will follows. In the case where the revocable in- 
 strument is first, and a portion is given by it, if the event of mar- 
 riage, or any other occasion for advancing a child, should afterwards 
 occur, it may very reasonably he supposed that the parent lias anti- 
 cipated the benefit provided by the will, and has intended in sub- 
 stitute lor it the new provision, either entirely or pro tanto. But 
 where an irrevocable settlement is followed by a will, i1 is not so 
 
 lo inter thai an additional benefil was not intended by the tes- 
 tator, excepl wh<re he expressly declares his intention to beother- 
 
 1 IT'.. I 367, I.e..- Rep, '_' Eng. & [r. Ay. 71. Th< 
 (h) Kippenv. Kippen'tTrt.,2] May 186 A v. Kipperia Tr, was n 
 
 208, affirm I D 1187 ferredtoa an authority at th< bar andbj 
 Lord Chic I I 14 I is opinion.
 
 Ml 
 
 SATISFACTION AND ADEMPTION OF LEGACIES. 
 
 OHAPTEB SXV. 
 
 Cases iii which 
 
 S- ■■!: f V. Ill'" VWkS 
 
 inferred. 
 
 Dou v. VOW. 
 
 Bashes v. 
 Murray. 
 
 Moncrieffw. 
 tfasmyth. 
 
 Modern deci- 
 sions. 
 Grant v. 
 Anderson. 
 
 wise, or where the gift in the will and the portion in the settlement 
 so closely resemble one another as to lead to a reasonable intend- 
 ment that the one was meant to be substituted for the other."(&) 
 
 865. The earliest cases upon the satisfaction of marriage-con- 
 trad provisions bj Legacies are the two to which Lord Cran worth 
 referred in the leading case. (7) In the case of Bow v. Dow, a bond 
 of prevision granted by a father to his daughters, and made payable 
 by his son out of the heritable estate, was held to be satisfied by a 
 tocher which had been paid by the father at the time of the 
 daughter's marriage. In this case, the evidence of an intention to 
 adeem was certainly not strong ; and it would rather appear, as 
 Lord Cranworth suggested, that the Court had gone upon the prin- 
 ciple of a universal presumption against double portions. The 
 other case referred to, that of Belshes v. Murray, (in) is scarcely a 
 case in point, for although the second provision was given as a mar- 
 riage portion to a lady to whom the donor had previously given a 
 bequest by bond of provision, yet the donor in this case was a col- 
 lateral relative ; and it does not appear that he stood in loco parentis 
 to the donee. The case was argued as a question upon double lega- 
 cies, under which subject we have accordingly classed it.(V) The 
 prior legacy was held to be satisfied by the provision, apparently on 
 the view that the alteration in the circumstances of the legatee, 
 consequent upon marriage, had induced the granter to bestow the 
 second provision (which was considerably larger than the first, and 
 was settled upon the children in fee) in substitution, and not accu- 
 mulatively. To the same category — that of double legacies — we 
 may refer the case of Moncrieffv. Nasmyth,(o) where it was found 
 that a legacy of £100, bequeathed by a testator to a lady whom he 
 afterwards married, was not extinguished by her marriage and ac- 
 ceptance of a jointure in full of all she could claim by her husband's 
 death. ( p) 
 
 866. Of the two modern decisions founded upon in the leading 
 case, one of them(g) may be passed over in the meantime, as it re- 
 lated to the satisfaction of an onerous provision by a legacy. The 
 other case, Grant v. Anderson,{r) decided in the same year, is more 
 
 (k) Law Rep. 2 Eng. & Ir. Ap. 82. 
 
 (Z) Dow v. Dow, 1681, M, 11,477; Bel- 
 shes v. Murray, 1752, M. 11,361. 
 
 (m) Belshes v. Murray, supra. 
 
 (n) Infra, chap. 26. 
 
 (o) Moncrieff v. Nasmyth, 1798, M. 
 11,380. 
 
 (p) The Court found, however, that an 
 
 annuity bequeathed to the lady under the 
 
 ettlement was satisfied by the mar- 
 
 riage-contract provisions, probably because 
 the two provisions were ejusdem generis. 
 This, at least, proves that the question of 
 satisfaction was regarded as qucestio volun- 
 tatis. 
 
 {q)Nimmo in R. & S. of Auchinblane, 29 
 June 1841, 3 D. 1109. See next section. 
 
 (r) Grant v. Anderson, 19 Nov. 1840, 3 
 D. 89.
 
 SATISFACTION AND ADEMPTION OF LEGACIES. 445 
 
 cognate to the matter. By a settlement made in 1829, the testa- ohapteb xw. 
 
 tor bequeathed £2000 to his daughter, " to be set aside for her at - 
 
 the first term of Martinmas or Whitsunday after his death, and to 
 
 carry interest unto her from the said term until paid ; the said sum 
 
 to be vested for her behoof on good heritable or personal security, 
 
 and to continue so to be vested even after her marriage, if such 
 
 shall ever happen, so that the principal sum shall form a provision 
 
 fur her and her family." In the following year he became a party 
 
 to the antenuptial contract of mania-' etween his daughter and 
 
 the puisne]-, ami thereby bound himself to lav out, at the first term, 
 
 etc. (as before), the sum of £2000 sterling, upon sufficient bond, 
 
 heritable or moveable, for the liferent use of the spouses and the 
 
 survivor of them, and to the children of the marriage in fee, with a 
 
 power of changing the securities, an obligation to re-invest, and 
 
 a clause excluding the husband's jus mariti. 
 
 Here it will lie observed that there was a substantial identity, ozonations on 
 not only in the sums, but in the destination and the conditions of juiiJni. n't'm ' 
 the trusts under which the two provisions were granted. Accord- this case - 
 ingly, the Court, dealing with the question as one of intention, found 
 that, "according to the true construction of the marriage-contract, 
 to which the late Mr Anderson was a party, the provision thereby 
 secured to the pursuers was in satisfaction and implement, on his 
 part, of the provision previously made by Mr Anderson to his 
 daughter, the pursuer, in his trust-settlernent."(<s) Lord Mackenzie, 
 indeed, seemed to have considered that there was a presumption for 
 the satisfaction of legacies of a similar nature, and even stronger 
 than that which obtains in reference to the satisfaction of provi- 
 sions, though he afterwards rested his opinion upon the ground of 
 intention. Hut the true principle was stated by Lord Fullerton, Q uest ion treated 
 who said: — " I cannot admit that the principle laid down bv Krskinc u > '" :,i ' : ! " 
 
 1 ' ■ ton as one oi 
 
 pplicable here; for, in all the cases in which it was applied, the intention. 
 prior provision had been in obligations, and the judgment was put 
 expressly on the maxim debitor non prcesumitur donare, Bu1 this 
 won't apply where the prior provision is by will, and has been fol- 
 lowed by a ]:• i ; ntract. ... I think thai the lasl view 
 rd Mackenzii is the sound one. Viewed merelyasa question 
 of intention, the preponderance is in favour of the defenders."(0 
 
 8G7. In the case oi Rennie \. Rennie,(u) which appears to have /• 
 i overlooked in the discussions in the leading case, the question ''■""•''■ 
 
 ilso d.alt with on the principle of gi\ ing effect to the settlor's 
 intention as distinguished from the rule of presumed satisfaction. 
 
 I'm Rami ■ i: , nie, L0 June 1881 
 D. 97. Bh. 714
 
 446 
 
 SATISFACTION AND ADEMPTION OF LEGACIES. 
 
 ril V.PTEB \\\ . 
 
 Circumstances 
 in which satis- 
 ia nol 
 
 inferred. 
 
 )lr Rennie, b} his trust-settlement, after making provision for his 
 wife and younger children, gave the residue to his eldest son, John 
 Efcennie, then unmarried, to whom, by a subsequent codicil, he also 
 directed a sum of £9000 to be paid at the first term after his de- 
 cease. By a holograph letter, addressed to his son five years after- 
 wards, he, on the narrative that his son was about to enter into the 
 matrimonial state, obliged himself to subscribe any legal deed to the 
 amount of £4000 as a security for his son's wife, the interest to be 
 paid to her as a liferent annuity, and the fee to be given to the 
 children at her death, with a limited power of disposal on failure of 
 issue. Lord Corehouse found that it was " not presumable that he 
 intended thereby to enlarge the provisions which he had made for 
 John Eennie in his mortis causa settlements ;" and further found 
 that the sums due by virtue of the foresaid letter must be included 
 in payment of the special bequest of £9000 ; and to this interlocu- 
 tor the Court, on a review of the circumstances of the transaction, 
 adhered. 
 
 868. Up to this time, it had happened in all the cases that the 
 decision, upon whatever ground rested, was in favour of satisfaction. 
 With the exception of one case, in which the sums involved were 
 not of large amount, (as) no precedent had occurred, until the case 
 of Kippen, for giving effect to both provisions. The circumstances 
 of that case are, therefore, deserving of some consideration. Mr 
 Kippen, the father, by his trust-settlement, directed his trustees to 
 convey certain landed estate to two of his sons, and to set apart 
 £4000 for each of his unmarried daughters ; and declared, that as he 
 had already provided for his two married daughters, the provisions 
 made by him in their favour were in full of all they could claim or 
 be entitled to receive from his estate. Provisions were also settled 
 upon another son, and upon his widow. One of the three daughters 
 to whom legacies of £4000 had been bequeathed, afterwards became 
 the wife of Mr Edmiston ; and in her antenuptial contract her father 
 undertook to pay to certain trustees £5000 in name of tocher, pay- 
 able, £1000 at the next term of Whitsunday, and the remaining 
 £4000 at the granter's decease, on trust for the liferent use of Mrs 
 Edmiston, and for the children of the marriage in fee, with a destin- 
 ation over to the granter in the event of failure of issue. By two 
 codicils he made some material alterations upon the provisions in 
 favour of his sons and of the two unmarried daughters. 
 Observations on 869. In arriving at the conclusion that Mrs Edmiston's mar- 
 "ud ^entlnUie riage-coutract provision was additional to the legacy previously be- 
 case of Kippm queathed to her, one element which influenced the opinion of the 
 
 v. Kippen s Jr. x 
 
 (x) Strong v. Strong. 29 Jan. 1851. 13 D. 548.
 
 SATISFACTION AND ADEMPTION OF LEGACIES. 447 
 
 CHATTER XXV. 
 
 majority of the judges in the Court of Session, and in the House of 
 Lords, was the consideration of the great disparity in the relative 
 ■values of the provisions which Mr Kippen had made for the differ- 
 ent members of his family. It being determined, in the first place, 
 that there was no general presumption against double provisions, 
 it followed, by necessary implication, that the testamentary provi- 
 sion and the provision contained in the marriage-contract must each 
 receive full effect, unless they could be shown to have been identi- 
 fied in the mind of the truster. But as the two provisions in favour 
 of Mrs Edmiston were different in character and value, and were 
 not declared to be given by way of substitution, and as there was 
 no apparent intention of dealing with the children on the footing 
 of equality with respect to their interests in the truster's succes- 
 sion, the Court could only give effect t<> the language of the deeds, 
 which was inconsistent with the notion of satisfaction^?/) 
 
 section u. 
 
 SATISFACTION OF ONEROUS PTIOYISIONS BY LEGACIES, 
 
 870. Having regard to the opinions expressed by the judges in Presumption 
 the case of Kippen v. Kippen's Tr. in the House of Lords, it may now '. 
 
 be considered a settled principle, that there is a presumption thai ™er^?p?ov?- 01 
 testamentary provisions are to be taken in satisfaction of provisions sions. 
 secured by obligation, whether in the marriage-contract of the par- 
 ent, or of the child in whose favour the provision is granted. The 
 principle is very clearly stated by the Lord Chancellor in the intro- 
 ductory part of his opinion, where, after observing that there was no 
 general presumption againsl double provisions in favour of children, 
 it is added thai there was a presumption of a more limited descrip- 
 tion, by which cases respecting children's portions were governed, 
 and which was expressed in the formula, debitor non prcesumitur 
 donare. In other words, where the prior provision is obligatory, a 
 subsequent provision will, by the law of Scotland, be d eemed asatis- 
 faction of the- debt. (2) To a similar effect is the observation of 
 Lord Wer^lnydale. tint there was no rule of the law of Scotland 
 thai a settL uieiit on a daughter was presumed to be a satisfaction 
 of previous provisions to children, unless those provisions were ex 
 obligations 
 
 871. Although most of the cases upon the ademption of mar- state of the 
 
 r . 1 . .11- . . I ■ : '' !i '' ;, ' "I"'" 
 
 -contracl provisions are oi ancienl date, yet, looking to tneir the doctrine oi 
 
 11 of 
 
 (y) Kippen v. h 1 r- M'Neill, 18 D. 1174 and of Lord Chelj P rovi - 
 
 ticularly the opinions "f Lord President ford, 8 Macq. 218. 
 
 Kippen \ I 282.
 
 448 
 
 SATISFACTION AND ADEMPTION OF LEGACIES. 
 
 I'll VPTEB SXV. 
 
 Satisfaction pre- 
 sumed where 
 the provisions 
 are similar in 
 
 MllOUUt. 
 
 Principle ex- 
 tended to cases 
 where the pro- 
 visions were 
 unequal. 
 
 Cases of 
 
 8ti rihouse and 
 
 Muthieson. 
 
 number, and to the uniform recognition of the principle, that an ob- 
 ligatory provision is satisfied by a gratuitous provision, (a) it is im- 
 possible to doubt that the doctrine in question is well established 
 in the law of Scotland. The older cases, for the most part, have 
 been collected in the Dictionary, in the third division of the title 
 "Presumption."^) We shall merely refer to a few of the leading 
 cases, including one or two that are reported in other parts of the 
 Dictionary. 
 
 872. In Gallie v. Mackenzie, {c) a father, on the occasion of his 
 entering into a second marriage, granted a bond of provision for 
 1000 merks, payable at his death, in favour of his son by a former 
 marriage. By a subsequent bond of provision, bearing to be addi- 
 tional to the first, he granted a second provision of 1000 merks, 
 payable on the death of his wife. By his latter will and testament 
 he bequeathed to the same son the fee of 2000 merks, liferented by 
 his widow, but without expressly revoking either of the bonds. 
 The Court, by a majority, considered the testament as implying a 
 revocation of the bonds, and sustained the defences to an action 
 claiming payment under both. The earlier cases of Fleming v. 
 Fleming, Davidson v. Handel, and Young v. Pape,(d) were similar 
 in their circumstances. In all of them the prior provision was 
 made in the father's contract of marriage ; and in all, the prior pro- 
 vision was held to be satisfied by subsequent provisions of the same 
 value. 
 
 873. The case of Lord Yester v. Lord Lauderdale, (e) which ap- 
 pears to have been considered a leading case, being frequently cited 
 in the subsequent cases under the same title, extended the principle, 
 for there the provisions were of unequal amount ; the prior provi- 
 sion being for £10,000, and the subsequent provision, which was 
 contained in the daughter's contract of marriage, for £12,000. The 
 Court gave effect to the plea of debitor non prcesumitur donare. The 
 more recent cases of Stenhouse and Mathieson,(f) referred to by 
 Lord Chelmsford in Kvppen's case, and particularly the latter, es- 
 tablish clearly that the presumption in question does not depend 
 upon the correspondence in the amount of the two sums. In both 
 cases a double claim was made ; first, in respect of a provision to 
 
 (a) 3 Macq. 259; and see Stair, 1, 8, 
 2 ; Bankt. vol. i, p. 154. 
 
 (6) See M. Diet, pp. 11,439-11,474. 
 
 (c) Gallie v. Mackenzie, 1782, M. 11,374. 
 
 (d) Fleming v. Fleming, 1661, M. 8260; 
 Davidson v. Randel, 1706, M. 6966; and 
 Young v. Fape, 1680, M. 11,476, cited by 
 Lord Stair, 1, 8, 2, and by Lord Chelms- 
 ford, 3 Macq. 235. 
 
 (e) Tester v. Lauderdale, 1688, M. 11,479. 
 See also the earlier cases of Cockburn v. L. 
 of Cambusncthan, 1569, M. 11,474; and 
 Seton v. Ramsay, 1680, M. 11,475. 
 
 (/) Stenhouse v. Toung, 1737, M. 11,444, 
 cited 3 Macq. 235 ; Mathieson v. Mathieson, 
 1766, M. 11,453; Hailes, 155.
 
 SATISFACTION AND ADEMPTION OF LEGACIES. 441) 
 
 the children of the marriage under the father's marriage-contract ; ohaptebxxt. 
 and, secondly, in respect of provisions secured to the children in 
 their own marriage-contracts. In the latter ease, the father had 
 bound himself to pay to the eldest or only daughter of the marriage 
 the sum of 6000 merks if there should be no male issue, and 4000 
 merks if an heir-male should exist and succeed to the estate. No 
 male issue was born of the marriage. On the marriage of the eldest 
 daughter, her father became bound to pay her 3000 merks without 
 any reference to the prior obligation in his own contract ; and the 
 plea debitor non prcesumitur donare was maintained by the heir in 
 defence to an action for payment. " The Lords found that the pur- 
 suer was a creditor for the 6000 merks, but that the after provision 
 of 3000 merks must impute in payment thereof." 
 
 874. The course of the subsequent decisions has not been very Satisfaction not 
 consistent. Hay v. Hay's Trustees (g) was a carefully considered pJovfefensnot 6 ™ 
 case ; and there the Court found that provisions made by a father 'J"- <ihi " !/"""-• 
 in his son's contract of marriage — comprising an annuity or jointure 
 
 to the widow, and certain money provisions to the children of the Mamage-con- 
 marriage (the amount of which is not stated), with a power of divi- ^'wii'w a.'T 
 sion — were not satisfied by a subsequent bequest of £4000 to the 'j 1 ^' 1 
 children of the marriage inter cceteros, with a proviso that in the kgacy to child - 
 
 . veil. 
 
 event of there not being a sufficiency of funds for payment of all Hayv. n . 
 the legacies, including that of £4000, the said legacies should all 
 suffer proportional diminution. The ratio decidendi is thus stated 
 by the Faculty reporter : — "The Court were of opinion that the 
 maxim debitor non prcesumitur donare was not applicable, the pro- 
 visions and the legacy being so completely different in their nature ; 
 that this was just a question between co-legatees; that the father 
 had shown manifesl indications of what was his intention; and that 
 the whole circumstances of the case were in favour of the interlo- 
 cutor of the Lord Ordinary, to which they adhered in foto." 
 
 875. In the subsequent case viDundasv. Dundas,{h) where an Dundasv. 
 heir of entail executed ;i bond of provision in favour of Ids four 
 daughters, containing an obligation to pay to each of them £7000, 
 
 and an annuity of £36 a-year, redeemable lor L'Moii, \\ 1 1 i < ■ 1 1 was more 
 than the entail allowed to be Laid on the estate in favour oi yam 
 children, and also more than the granter was bound to settle upon 
 them by his own marriage-contract, the Courl held thai the pre- 
 sumption against donation did not apply; but the reporter's state- 
 ment of the nature of the action is so indistinct thai ii is uol ap 
 
 (g) Clark v. ffay't Trs. t 16 Maj L828, {!•) Dundasv, Dundeu, 12 Jun< is'JT. •'• 
 
 2 8h. 818, N. E. 277 ; more fully reported Sh. 790, N. E 781 bj (after p 
 
 in Hi' Faculty Cull, ction. 
 
 \ol. I. 2 l
 
 450 SATISFACTION AND ADEMPTION OF LEGACIES. 
 
 cuAnrrc xxv. 
 
 parent whether the maxim was pleaded to the effect of extinguishing 
 the &rs1 provision merely, or to the effect of reducing the subsequent 
 provision to the amount stipulated in the contract of marriage. If 
 the Latter view were maintained in defence, there can be no doubt 
 thai the decision of the Court repelling the plea was sound; for the 
 presumption against duplication of provisions has never been car- 
 ried the Length of obliging the beneficiary to accept a smaller pro- 
 v isiorj in lien of a Larger. 
 Addition of d 876. Iii Nimmo's case,(») the latest authority on the ademption 
 
 SSrHf of marriage-contract provisions by legacies, the Court returned to 
 ■ suffi - the rule of construction sanctioned by the decisions of the last cen- 
 come presump- tury. This case was very much criticised in the subsequent case of 
 Ssfac '' Kvppen v. Barley, which has been so often referred to ; but the ob- 
 
 Nimmo's ease. serva ti ons ma de upon it in the House of Lords do not tend to throw 
 any doubt on its authority as a precedent. Thomas Nimmo, the 
 father, by the marriage-contract of one of his daughters, bound him- 
 self to pay to her, whom failing, to the issue of the marriage, the 
 sum of £1000 in two portions, payable respectively, with interest, 
 at the expiration of one year and five years from his death. By a 
 subsequent deed of settlement, which was held to have revoked by 
 implication a previous settlement made before his daughter's mar- 
 riage, Mr Nimmo burdened his estate with legacies to each of his 
 daughters of £1000, payable in two portions at the same terms as 
 are above mentioned, and declared that in case any of his daughters 
 should die without issue, then the said legacy of £1000 to each of 
 his daughters should lapse and belong to his son and his heirs. 
 Remarks up™ 877. This case, as Lord Chelmsford has observed, (&) was truly 
 
 ase ' one in which the rule of debitor non prcesumitur donare was appli- 
 cable ; because the daughter's marriage-contract, which was made 
 by the father, and which was in obligatione, preceded the provisions 
 made by her father in his trust-settlement. And the observation 
 of the noble and learned Lord is fully borne out by the terms of the 
 judgment, which were, that, " according to the just construction and 
 true meaning of the last disposition and settlement, executed in 
 March 1830 by Thomas Nimmo, deceased, the provision of £1000 
 therein appointed for the said Elizabeth is not to be taken as a 
 separate and additional provision to that of the same amount already 
 appointed to her in her marriage-contract of November 1825." (I) 
 The opinions of the judges, however, do not throw much light upon 
 the law of satisfaction. The Lord Justice-Clerk and Lord Mon- 
 
 (i) Nimmo in R. & S. of Avchinblanr, (ft) In Kippen v. Kippen's Tr., 3 Macq. 
 
 29 Juno 1841, 3 D. 1109. 236. 
 
 (I) 3 D. 1111.
 
 SATISFACTION AND ADEMPTION OF LEGACIES. 
 
 45] 
 
 creiff refer to the dictum of Erskine cited in the previous section ; 
 but the Court appear not to have decided the case upon any fixed 
 presumption or rule of interpretation, but to have dealt with ii 
 rather as a question of intention. 
 
 878. Where a legacy or donation is given in satisfaction of a 
 provision, but subject to a different destination, it would seem that. 
 to the extent, of the value of the provision, the original destination 
 must be held to be in force. (m) A very distinct opinion to this 
 effect was intimated by Lord Moncreiff in the case last referred 
 to.(n) The cases to which reference has hitherto been made, relate 
 to money provisions payable either by the granter's executors, or 
 charged upon his heritable estate. It was settled by the House of 
 Lords, in an early case,(o) that a son, by accepting a disposition of 
 his lather's landed estate, is not deprived of his right to a share of a 
 money provision constituted by the father's contract of marriage.(») 
 
 (m) Mur, r V v. Murray, 17 May 1826, 4 such processat least ought to be attempt, ,1 
 
 cn.\PTrn xxv. 
 
 Legacy trivpn in 
 satisfaction, but 
 subject to dif- 
 ferent destina- 
 tion. 
 
 in of 
 
 to be 
 in satisfac 
 legitim. 
 
 Sh.589, N. E. 596; A - 7>.v. v. Coopers 
 
 Trs., 14 Feb. 1862, 24 D. 519, sec p. 532 ; 
 Haig v. Uaig, 14 Feb. 1857, 19 D. 449. 
 (n) Nimmo's case, 3 D. 1120. 
 (o) Pringle v. Prmgle, M. 11,446, 5 Br. 
 Sup. 693; Elch. "Mutual Contract," No. 
 15; see Lord Car dross v. E. of Mar. 1639, 
 M. 11,440. 
 
 (p) It were much to be desired that 
 some intelligible principles of interpreta- 
 tion could be laid down with reference to 
 the doctrine of ademption. The judges of 
 fc] i century were consistent ; for they 
 
 ray other consideration bend to the 
 rule, "debitor non praesumitur donare." 
 In more modern times, it was seen thai 
 irons application of the maxim as 
 a presumption of law would occasionally 
 have tli'- effect of defeating the intention; 
 icordinglyit is nowreduced toa pre- 
 sumption ot tble of being re- 
 I by evidence of a contrary inten- 
 tion. Such evidence, however, must be 
 found within tin- .-, ttlement itself, anil 
 must depend upon a comparison of the two 
 settlements, the different - in tie u 
 ' ad limitati lount of the 
 ! tc. ; or on ;i comparison be- 
 in which tin- settlor has 
 dealt with tin- child whose provi ii 
 
 ■ion, and his other children. It is 
 The 
 tendency and value of tin- din' renl ele- 
 ments may 1»- ftxi d. and tin- 
 different combinai I ited. Si me 
 
 whenever a case is decided on specialties 
 contrary to the tenor of the presumption ; 
 so that the interpretation of similar si 
 ments in future may be removed as far as 
 possible from the bias or caprice of indi- 
 vidual minds. Some progress in this direc- 
 tion has already been made in England, 
 as will be seen from the following sketch 
 of the more important points decided; the 
 materials having been drawn from a work, 
 the value of which we have frequently had 
 occasion to acknowh dge, Messrs White and 
 Tudor's Leading Cases : — 
 
 1. The general rule is, that where a 
 legacy is given by a parent, or a pi i 
 standing in lorn parentis, as greal as, or 
 greater than, a portion or provision pre- 
 viously secured to the legatee, there is a 
 
 umption that it isgiven in satisfaction; 
 Einchcliffev. Hinchcliffe, 3 Ves. 516, and 
 
 cited 2 Wli. & T., 3d ed, p. 354; 
 though thi not so gri i 
 
 portion, it is still presumed to have been 
 intended as a satisfaction i>rn tanto. A 
 in tin- ,1 
 
 rded. Thus, in Lady Thin. 
 of.Glengall,2 II. !,. Ca. 131, a father having 
 
 ttle£100,000Coi 
 upon his daughter, transl third 
 
 pari then of to the tru tees oi the 1 1 ttle- 
 ment, and gave them his bond for th 
 his death ; 
 
 the 
 
 In r di ath. for tin- cbil 
 
 2 i
 
 452 
 
 SATISFACTION AND ADEMPTION OF LEGACIES. 
 
 OB ii'i'ii; \\\. 
 
 1 sj 'ess satis- 
 faction l'\ de- 
 claration in the 
 testamentary 
 instrument. 
 
 879. It can scarcely be necessary to add, that if a testator ex- 
 pressly declare that the sums thereby bequeathed to his widow or 
 family are additional to those which he has previously bound him- 
 self to pay by his marriage-contract, the latter cannot be held to be 
 satisfied by the former. The contrary, however, was seriously main- 
 tained, both in the Court of Session and on appeal, in a compara- 
 tively recent case ; the argument being, that as the husband's father 
 was a joint obligant with him in the marriage-contract provision, 
 the son should be regarded as the primary obligant, and as intend- 
 ing to discharge that obligation out of the first of his testamentary 
 dispositions. But the Courts had no hesitation in giving effect to 
 the declared intention of the testator. (q) 
 
 as the husband and she should jointly ap- 
 point. The father afterwards by will gave 
 to his trustees, in trust for his daughter's 
 separate use for life, remainder for her 
 children (without restriction to that mar- 
 riage), as she should appoint, a rnoiety of 
 the residue of his personal estate. The 
 House of Lords, affirming Lord Langdale's 
 decision, held that the moiety of the re- 
 sidue was in satisfaction of the obligation 
 to transfer the balance of the sum of stock 
 provided for the lady's marriage, notwith- 
 standing the difference in the trusts. 
 
 2. The presumption that the gift is in 
 satisfaction, may be repelled by intrinsic 
 evidence, showing an intention to give a 
 double portion; Lethbridge v. Thurlow, 15 
 Beav. 334. Again, a radical difference in 
 the nature of the provisions will suffice to 
 overcome the presumption. A contingent 
 interest in a legacy is, for obvious reasons, 
 not held to be in satisfaction of a vested 
 interest or provision ; Bellasis v. Uthwatt, 
 1 Atk. 426 ; Hanbury v. Hanbury, 2 Br. 
 C. Ca. 352. It seems to have been laid 
 down in several of the older cases (2 Wh. 
 & T., 3d ed. 356-7), that a legacy charged 
 on land was not to be considered as a 
 satisfaction for money, nor a pecuniary 
 legacy, for land ; but this distinction was 
 disregarded by Sir W. Grant in Bengough 
 v. Walker, 15 Ves. 507. A declaration in 
 the settlement constituting the provision, 
 that an advancement by the parent in his 
 
 lifetime is to be taken in satisfaction, does 
 not exclude the presumption of satisfaction 
 by a legacy. But a share of intestate suc- 
 cession is not taken to be in satisfaction of 
 a provision ; for in this case there is no 
 room for presumed intention ; Twisden v. 
 Twisden, 9 Ves. 413. 
 
 3. A second provision may in some cases 
 be presumed to be in satisfaction of the 
 first ; Davis v. Chambers, 3 Jur. N. S. 297 ; 
 but the presumption is weaker than in the 
 case of satisfaction under a testamentary 
 bequest, where the testator is professedly 
 disposing of his whole property ; Palmer v. 
 Newell, 20 Beav. 32, 40, per Sir J. Romilly, 
 M.-R. 
 
 4. Legacies by strangers, not in loco 
 parentis, are only held to be in satisfaction 
 of prior provisions when given for the same 
 purpose, e.g., to buy a particular house, to 
 purchase a commission, etc., ex parte Pye, 
 18 Ves. 140 ; Monck v. Monck, 1 Ball & B. 
 303. In this class of cases, the principles 
 of interpretation appropriate to the case of 
 double legacies would seem to be applicable. 
 See 2 Wh. & T. L. C, 3d ed. p. 349 et seq. 
 
 (q) Cruikshank's Trs. v. Cruikshank, 24 
 April 1845, 4 Bell, 179, affirming 5 D. 733. 
 Similarly, where a testamentary provision 
 is expressly given in satisfaction of a mar- 
 riage-contract provision, the grantee must 
 elect between them ; Campbell v. Campbell, 
 14 Jan. 1865, 3 Macph. 360; Harvey's Trs. 
 v. Harvey s Trs., 30 Jan. 1862, 1 Macph. 345.
 
 SATISFACTION AND ADEMPTION OF LEGACIES. 453 
 
 CHAPTEE XXV. 
 
 SECTION III. 
 SATISFACTION OF DEBTS BY LEGACIES. 
 
 880. The class of cases which we arc about to consider is .lis- Howfarthe 
 languished from those which were the subject of the last section ^'.^iX, 
 by the nature of the consideration forming the counterpart of the ' / " l "; ! " ? i ' 1 ' ,, . li ' 
 
 ° J- cable to legacies 
 
 debt, which is necessarily an important circumstance when the in- in favour of 
 tention of the granter is in view. Marriage-contract provisions, it 
 is to be observed, although onerous in the sense of being obligatory, 
 are granted for a rational as distinguished from a lucrative con- 
 sideration ; and there is therefore more reason for the presumption 
 that the granter means to include such provisions in the amount 
 which he provides to his children in the ultimate settlement and 
 disposal of his succession. In the case of a bequest by a debtor, 
 the presumption is weaker. Prima facie, it is less likely that a 
 t< stator, while professing to bestow a gift on the object of his fa- 
 vour, is in fact only providing for the payment of a lawful debt. 
 Accordingly, it will be seen that in this class of cases, although 
 the presumption expressed in the maxim debitor nan pra'sumitur 
 danare holds good as an abstract rule, yet it is to be received in no 
 stronger sense than as throwing upon the legatee the onus of show- 
 ing that there was in fact an intention to bequeath — a fact which, 
 in most cases, may easily be established from the terms of the be- 
 quest. 
 
 881. The weakness of the presumption against donation in this Although it 
 class of cases, is sufficiently apparent from the circumstance thai repoScasea 
 
 in almost all the cases that have been presented for decision in our ''"' """ m - 
 
 i stances are 
 
 Courts, it has beeD held that the intention of the testator was to generally euffi- 
 ii • i i • • lii • c ''"' '" " v,t - 
 
 give tlie legacy in addition to the debt — a circumstance which, in comet] 
 
 the case of Balfour v. Balfour's Trustees,(r) was strongly urged nation 
 
 in support of the proposition, that the use of words of bequest waa^JJ 
 
 in itself sufficienl to overcome the presumption against donation. ' " ' "'■ 
 
 mi . Balfour v. 
 
 lint view oi the law, however, was inconsistent with former pre- Balfour's r«. 
 cedents, and was expressly overruled. " from the nature of the 
 thing," said Lord Rtoncreiff, " the maxim must comprehend cases 
 in which that- which is done would in itself import and have effeel 
 donation ii the obliganl or grantor were not at the time debtor 
 to the grantee. The maxim would have no meaning if it did uol 
 
 Balfour v. 1 ID ancienl date ; and a 
 
 1044, See, on th illy, Mor- the judicial rerdicl are rarely stated, we 
 
 ri on, voce "Pi I liv. iii. Bee havi thought it ur to refer to 
 
 tiona 6 and 7. Thi in detail.
 
 454 
 
 SATISFACTION AND ADEMPTION OF LEGACIES. 
 
 CHAPTER XXV. 
 
 Doctrine of the 
 K:i ;lish and 
 Scotch law ou 
 
 ihject 
 
 sted. 
 
 Principle upon 
 which, in Scot- 
 land, the pre- 
 sumption may 
 come by 
 • ■ of a 
 contrary inten- 
 tion. 
 
 apply to such cases. The thing which is not to be presumed to be 
 donation where there is a previous debt must necessarily be such, 
 in its form and nature, that it would import donation if there were 
 no debt. . . . Taking this view of the principle, I can by no 
 means come to the opinion that it can never take effect where a 
 grant, or the appointment of a payment to be made, is conceived 
 in the form of a legacy ox mortis causa settlement." (s) 
 
 882. So far as regards the rule of presumption, therefore, our 
 law upon the satisfaction of debts is in harmony with that of Eng- 
 land ; but with regard to the manner and degree in which that 
 presumption is binding upon the conscience of the judge, or cap- 
 able of disturbing the verdict to which the evidences of the testa- 
 tor's intention would naturally lead, a difference of opinion — more 
 marked perhaps in theory than in practice — is apparent. It has 
 been said that the decisions of the Court of Chancery discover a 
 leaning or inclination to break through the rule, while the tend- 
 ency of the decisions of our own Courts is rather to place it in sub- 
 ordination to the evidences of the testator's meaning. The tendency 
 of the English decisions is, we have no doubt, fairly represented by 
 the editor of the Leading Cases in Equity in the following passage : 
 — " The rule as to the presumption of the satisfaction of a debt by a 
 legacy is founded upon reasoning alike artificial and unsatisfactory, 
 and it has consequently met with the censure of the most eminent 
 judges, who, although they would not break the rule, have at the 
 same time said they would not go one jot further, and have ahvays 
 endeavoured to lay hold of trifling circumstances in order to take 
 cases out of it." (J) 
 
 883. In Scotland, however, the presumption has never been re- 
 garded as artificial in its origin or unsatisfactory in its results. On 
 the contrary, it has been characterised as an equitable presumption 
 founded on the natural probability of the debtor's intention ; but 
 liable to exceptions in its application, wherever there is either di- 
 rect evidence of a purpose of donation, or circumstances leading to 
 a contrary inference from that in which the rule consists. (u) In 
 admitting evidence of a contrary intention, the Courts of Scotland 
 
 (s) 4 D. 1052. In the same case it was 
 observed by the Lord Justice-Clerk Hope, 
 that having had an opportunity of seeing 
 the very full notes of the Lord Justice- 
 G m ral of the opinions of the judges in the 
 caseaof Spadinv.Spadin's ZVa.,14Jan. 1819, 
 F.C., and in Ilard/e v. Kay's Trs., 17 Jan. 
 1821. F.C., he found that all the judges re- 
 cognised the relevancy of a defence against 
 
 payment of a legacy founded upon the 
 legal presumption in question. 
 
 (1) 2 Wh. & T. L. Ca. 338, 3d ed. p. 
 367 ; Lady Tkynne v. The Earl of Glengall, 
 2 H. L. Ca. 153 ; Richardson v. Greese, 3 
 Atk. 65. 
 
 (u) See Lord Moncreiff's opinion, 4 D. 
 1052.
 
 SATISFACTION AND ADEMPTION OF LEGACIES. 
 
 1 si ek to confine the application of the presumption. But al- < bapteb xxv. 
 lowing due weight to it. they hold thai it maybe displaced bymore 
 direct and positive evidence. They do no1 attach importance to 
 circumstances which cannot bear on the question of intention, with 
 the view of escaping from the fair results of a principle, the cons* - 
 quences of which it may be thoughl desirable to restrict ; because the 
 presumption is merely a presumption of fact, and does nol preclude 
 inquiry into the meaning of the testator. At the same time, it Uncertain* 
 musl be confessed that the tendency of such a principle of inter- qutntu] 
 pretation is to reduce the law upon the whole matter to a state ftj 
 
 great uncertainty. The judgments in most of the cases are ver- 
 dicts; and little can be gathered from the reported opinions but a 
 record of the impressions made upon individual minds by the gene- 
 ral tenor of the deeds which were the subject of construction. In 
 this state of the law, all that can be attempted is to point out the 
 circumstances which have been considered to militate against the 
 presumption expressed in the brocard, and which, when combined 
 with other circumstances of a similar tendency, will effectually 
 
 come it. 
 
 884. In the first place, i1 would seem thai do weighl is to be General direc- 
 attached to a circumstance which in England has been held fatal | 
 to the presumption— viz., thai the trust-deed contains a direction ) 
 to pay debts, and thai such direction precedes the order to ; 
 
 i>r. as has been justly observed, every settlement impli< s 
 such a direction ; and the obligation of the trustees to pay debts, 
 and to accounl for the funds to creditors, receives no additional 
 strength from the testator's injunction. (sc) It was observed, in the P 
 Leading case, thai differences as to the term of paymenl are of no ! 
 great importance to the question.(y) And this seems just ; be- 
 ttor may mean thai a legacy should be taken in satis- meat 
 
 on of the debt, although the time of paymenl is postponed, if 
 
 (z) J'-r Lord J.-C. Hope in Balfourv. titer, to whom he was indebted 
 
 I D. 1054. In England it to thi lount. Here, said Sir John 
 
 ttled by tb I 'hancey, a lead- Romilly, .M.-I!.. there was an i spresa direc- 
 
 q. this Bubject, thai the tion I" pay both the d bl and the I 
 
 Court was bound to infer, from an expn i :t itor may ha\ I that 
 
 ed direction for paymenl of debt and Lega- hia granddaughter could nol take both 
 
 the intention of the ti -- d< bl and the li gacj ; bul if i o, hi 
 
 t • • t ■ • r thai both the debl and the legacy failed to i intention. I 
 
 Bhoold I"- paid to the creditor; 1 P. Wms. sum- were held to be due. It 
 
 Richardton v. Qret ■, '■'■ Aik. a direction to pa ithoul men! 
 
 ■ ■ Field v. Mo* tin, Dick. 648; flatlet v. ingli ifficienl to rebut the 
 
 Darell, 8 B i . 824 882. In Jeffn v. pn apt donation; Edmundi 
 
 Low, 8 K. & J. 81 
 ■
 
 156 SATISFACTION AND ADEMPTION OE LEGACIES. 
 
 ohaptbb xxv. the loss of interest consequent upon postponement is compensated 
 by a considerable addition to the principal som.(V) 
 with a 885. The tact that there is an ulterior destination of the legacy 
 
 prSm«Tto to ; > different person, or to a different class of heirs from those who 
 
 be in satisfaction wou pj p entitled to claim payment of the debt, is an element of 
 i J a debt. 
 
 great importance, and will in general bo sufficient to overcome the 
 presumption ; for, in the case supposed, if the original legatee pre- 
 decease the testator, there is then no longer any concursus debiti et 
 crediti. The possibility of the right to the two claims coming to 
 be vested in different persons, must be held to have been within 
 the contemplation of the testator. This, in fact, was the only ground 
 in the leading case of Balfour v. Balfour's Trustees{a) for taking the 
 legacy out of the rule. The testatrix was indebted to her brother 
 in the sum of £3000, which he had advanced, in conformity with 
 the wishes of his father, to enable her to purchase a house ; and 
 having afterwards acquired a large fortune, she bequeathed, first, 
 £16,000, and afterwards, by a codicil, £20,000 to this brother. The 
 money advanced for the purchase of the house was considered to be 
 a heritable debt, while the legacy of £20,000 was of course charge- 
 able against the executry estate, and the destination was to "heirs, 
 executors, and assignees." The destinations being to a different 
 order of heirs, the Court held that the debt was payable in addition 
 to the legacies. 
 Le iv given 886. If the legacy is given upon a condition, it is to be presum- 
 
 ption not pre™" ed that the testator did not intend it to be in satisfaction of the 
 satTsfactio^o? ( ^ eDt ! ^ or ne could not suppose that he was entitled to adject con- 
 debt - ditions to an obligation, the fulfillment of which might be uncondi- 
 
 tionally enforced. This was the principle of the decision in Hunter 
 v. Nicolson,(b) where a legacy of £1000, given by a father to his 
 daughter on condition that he should succeed in recovering his 
 share of the succession of his deceased brother, was held not to be 
 given in satisfaction of a claim for £1000, arising upon a verbal 
 promise to pay that sum made on the occasion of her marriage. 
 Postponement to an indefinite time is virtually a condition, and 
 has been held sufficient to rebut the presumption for satisfaction. 
 Spadm's Trs. 887. In Spaderis Trs. v. Spaden,{c) the testator left a legacy of 
 
 ' ' / '"" (z) The cases in which differences in re- infra, \ 887, as to how far the presumption 
 
 gard to the time of payment were held of may be repelled in the case of a postpone- 
 
 essential importance are somewhat anti- ment for an indefinite period of time, 
 
 quated ; and we are not satisfied that such (a) Balfour v. Balfour s Trs., 1 March 
 
 circumstances would receive the same consi- 1842,4 D. 1044 ; see Ritchie v . Ritchie, 6 
 
 deration from the Court of Chancery now. June 1858, 20 D. 1093. 
 
 if an opportunity were afforded of reconsi- {b) Hunter v. Nicolson, 29 Nov. 1836,15 
 
 dering the point. See, however, Spaden Sh. 159. 
 
 v. Spaden a Trs., 1 Sh. (Ap. Ca.) 164, cited (c) Spadm's Trs. v. Spaden, 5 July 1822,
 
 SATISFACTION AND ADEMPTION OF LEGACIES. 457 
 
 £300 to his foreman, to be paid to him at the first term after the chapter xxv. 
 
 decease of his mother. The legatee claimed in addition to the legacy 
 •a sum of £500, alleged to be partly for money advanced, and partly 
 as remuneration for services rendered. The Court, and Lord Eldon 
 on appeal, were of opinion that the maxim debitor nun prcesumitur 
 donare did not apply to this case, chiefly on the ground that the 
 deceased owed the petitioner a debt at his death, as had been now 
 ascertained by the Court ; that a person could not intend to pay a 
 debt by a legacy, payment of which was postponed to an indefinite 
 distant period; and that the deceased specially directed that all his 
 debts should be paid before this legacy. (o 7 ) 
 
 888. Lastly, where the legacy and the debt are not ejusdem Legacy not held 
 
 •r ii *j. i j.i j.i ,• i to be in satisfac- 
 
 generw, e.g., it the one is an annuity and the other a axed sum, tion unless it is 
 the inference as to the testator's intention is the same as in t he ease '^{'\ u 
 of double legacies. As the one sum cannot be directly and im- 
 mediately applied in satisfaction of the other, it is presumed that 
 there was no intention to adeem, and both are payable.(e) 
 
 889. The principle admits of being further illustrated by the Application of 
 cases where claims against a husband's estate for the wife's share c iam!™or P wife's 
 of i sxecutry have been met by the plea of satisfaction in consequence ? hare "' s °? ds 
 of the husband having left a legacy or provision to the claimant. 
 
 As in this class of cases the debt is due by the husband in a special 
 character, namely, as executor or intromitter with his wife's succes- 
 sion, it may be doubted whether there is any proper concourse be- 
 tween the two claims, so as to admit of the application of the 
 maxim. 
 
 890. The leading ease is Hardiev. Kay's Trs. ,(/) where the i, ; > cases. 
 claim was not held to be satisfied by the Legacy. The subsequent 
 
 case of Cldlcil V. U'< in i/ss(</ ) Went u|io]i the plea, of iiK'f" ; alld ill 
 
 Sinclair v. Ttorisou's K.rcciitor, the legacy to the testator's daughter 
 was expressly declared to be inclusive of her mother's share, and 
 presumption was thus excluded. (//) In aii early case, however, the 
 presumption was admitted to the extent of holding a claim by a 
 daughter againsj her lather, as executor of her grandfather's will, 
 satisfied by a provision which he had granted to her inter vivo8.(i) 
 
 ISh. (Ap. Ca.) 164, affirming, onthi poini OulUn i ; 16 Nov. 1888, I 
 
 only, H Jan, L819, F.C. D. 82. 
 
 !■/) 1 Bh. (Ap. Ca.) L67. (A) Sinclair v. R 11 De< i •'.'. l"> 
 
 M'DowaU ■-. Gordon, L0 Jul] 1888, D. 212. 
 U Sh. 952. Nicotian, 1761, M. 2809. On 
 
 (/) Bardie v. K L7 Jan. L821, tl ' in fin. 
 
 ]■'.< :.
 
 458 SATISFACTION AND ADEMPTION OF LEGACIES. 
 
 CHAPTtn XXV. 
 
 Whether tho 
 
 SECTION IV. 
 SATISFACTION OF LEGACIES AND PROVISIONS BY ADVANCES. (A) 
 
 891. The cases to which we refer are those in which a settlor 
 rule debitor*™ testator alter making a testamentary provision in favour of a 
 kap- child <>r legatee, makes advances to the same individual m tlie 
 ctSnof si i ape of pecuniary payments during his lifetime. In this class of 
 j££? ly "*" cases, it would seem the presumption debitor non praisumitur donate 
 would not apply ; for even in the case of an onerous provision, e.g., 
 an obligation undertaken in a marriage-contract, the father is not 
 a debtor to the child at the time of making the advance, the obli- 
 gation being in the case supposed only prestable at his death, and 
 payable out of his free estate. 
 Advances by a " 892. This peculiarity, affecting the satisfaction of provisions by 
 • at t r ar3 advances, was pointed out by Lord Murray in his interlocutor in 
 Scott v. Scott. " Scott v. Scott,{I) reporting the case to the Second Division of the 
 Court. In that case, a father, by his postnuptial contract of mar- 
 riage, bound his estate in payment of a sum of £3000 to each of 
 his daughters, payable at the first term after his death, with inter- 
 est from that term until payment, declaring that the provisions 
 should be in full satisfaction of legitim and executry ; and by a 
 subsequent trust-deed his general estate was made liable to relieve 
 his heirs of entail of the amount of the provisions in question. One 
 of the settlor's daughters having become a widow during her father's 
 lifetime, and being without the means of supporting herself and 
 family, an annual allowance was given to her by her father, from 
 whom she also had the use, rent free, of a house and farm. The sums 
 which were advanced to her amounted in all to about £1300, as ap- 
 peared from entries in the father's day-book, some of which were 
 also transferred in his ledger into an account opened in her name. 
 On the part of the lady's brother, who succeeded to the entailed 
 estates, it was maintained that the provision in her favour had been 
 
 (k) A debt due to a deceased person by order to give them an electoral qualifica- 
 
 the party who succeeds as his legal repre- tion, was held to be a donation, and not 
 
 tentative is extinguished by confusion, al- imputable towards the sons' shares in the 
 
 though action has been raised upon it in succession. Advances by a father to a son 
 
 the lifetime of the defunct. Creditors were held not to be given in satisfaction 
 
 therefore cannot claim it as assets of the of bonds of provision in Erskine v. Erskinc, 
 
 defunct's estate; Elder v. Watson, 2 July 24 May 1827, 5 Sh. 697, N. E. 650, and 
 
 1859, 21 D. 1122. Miller's Trs. v. Miller, 23 Feb. 1848, 10 D. 
 
 (I) Scott v. Scott, 2 June 1846, 8 D. 791, 767 : secus in Burrell v. Burrell, 15 May 
 
 796. Compare this case with White v. 1828, 6 Sh. 801, where a bill was taken for 
 
 White, 28 Jan. 1841, 3 D. 468, where pro- the sum advanced. 
 perty purchased for the granter's sons in
 
 SATISFACTION AND ADEMPTION OF LEGACIES. 459 
 
 satisfied to a considerable extent by the advances in question ; as, ohaptebxxy. 
 
 after giving credit to her for an annuity varying from £45 to £30, ~ 
 
 which it appeared from certain memoranda left by the father, that 
 
 he had intended to settle upon her as an additional provision, there 
 
 remained advances in excess of the annuity to the extent of nearly 
 
 £500. The judges of the Second Division were divided as to the 
 
 applicability of the presumption against donation.(«i) In substance, 
 
 however, the Court seem to have acquiesced in the opinion indicated 
 
 by the Lord Ordinary; because in the consideration which they 
 
 gave to the facts of the case, no weight whatever appears to have 
 
 been attached to the presumption. The ratio of the decision ap- Such advances 
 
 pears to have been that there was no evidence of an intention to Sitisttonrf 
 
 impute the advances in satisfaction of the provision. The entry of | ; 
 
 the advances in the father's books was held in this, as in the older ' ' ' ,il '" tion - 
 
 cases, (n) not to be decisive of the intention to keep up the advances 
 
 as a debt, because such entries would be made by a person in the 
 
 habit of keeping an account of his personal expenditure, for the 
 
 purpose of showing what had been done with the money. 
 
 893. It was observed by the Lord Justii e-Clerk,(o) in comment- LordEid 
 ing upon the case of Miller v. Miller, that the application of the JSE^jrahr. 
 maxim debitor non prcesumitur dmiare had been recognised in the 
 latter case by the House of Lords. Lord Eldon, however, did not 
 directly refer to the maxim, nor dors it appear to us that the ques- 
 tion of its application was raised before him.(^>) The question was 
 as to the power of a father to make additional provisions to his 
 younger children, after having bound himself in his eldesl son's 
 contract of marriage to convey the whole estate to him, under bur- 
 den of the provisions made by him for his younger children. The 
 judgment of the House was to the effed thai the provisions therein 
 referred to were provisions already made, and thai subsequent pro- 
 visions intuitu mortis wore either to be considered as a violation of 
 the contract, or as being in satisfaction of the provisions made for 
 the same children by deeds executed before the date of the marriage- 
 contract. But as to advances or payments of money inter vivos, it 
 
 (m) See the opinions of Lord J.-C. Hope cireni of explanation an 
 
 and Lord Cockbnrn (8 1>. 799, 806), who menl on both Bides. 
 
 maxim applied generally, (n) Campbell v. M'Aluter, 18 J 
 
 tances of 6 Sh. 219, N. E. 20 1 : 1/ /' ( 
 
 Lord Medwyn, on th< contrary, M'Dougall, 81 Jan. 1804, M. "Bankrupt," 
 
 thought that the presumption ed, App. No. 21; Drummond v. Stoayn 
 
 on the ground thai Mr Scott was neither 1884, L2 Sh. 842. 
 
 intary oblig ition a debtor 
 to bis daughter ; and add< I I (/-) See the case, '/ 
 
 could nol be Bel "ft" agaii Julj I 32 ! 
 due after death, unless undi iliar
 
 460 SATISFACTION AND ADEMPTION OF LEGACIES. 
 
 ohaptkb xxv. was expressly Pound that such payments, not being of the nature of 
 permanent provisions, "ought not to he considered as in extinction 
 or satisfaction of the provisions so made for the children previous 
 to the said marriage-contract, and intended to take effect on Mr 
 Miller's death. >/) 
 Result of the 894. On the whole, it may he concluded that there is no positive 
 
 lu'siVi'vl- pr. : >- n ° presumption that advances made by a father to a child are designed 
 sumption for ag anticipatory payments of the provisions in his favour contained 
 such advances, in big settlements, but that slight evidence of such an intention on 
 the part of the father will be sufficient to raise a presumption ; (r) 
 the question always being, whether the father intended a donation 
 or a loan. The cases of Robertson v. Robertson's Trs. and Webster 
 v. Ret tie, (t) where the point was raised in a question with other 
 children claiming legitim, may he consulted with reference to the 
 kind of evidence sufficient to establish an intention to impute ad- 
 vances to a son in satisfaction of his interest in the succession. 
 Rule as to ad- 895. In the case of advances by a person not standing in loco 
 
 lm™l*IimaineP aren ti s ) the general presumption against donation comes into oper- 
 '" ''-"'" p" n " tL< - ation. In this class of cases, accordingly, advances are regarded as 
 loans in the absence of proof to the contrary, and, as such, may he 
 recovered by the granter s executors or imputed in satisfaction of 
 the donee's interest in the succession. (7) 
 Effect of express 896. If a testator declare by his will or deed of provision that 
 advances°are to advances made in his lifetime shall be taken in satisfaction of the 
 !;"' t ' lk '". as ''I provision, any question that might arise as to the presumption ap- 
 legacy or provi- plicable to the circumstances is obviated by the express terms of 
 the declaration. Hutchison v. Skelton(ii) is an authority on the 
 construction of this very common form of provision. The testator, 
 by his trust settlement, provided to each of his daughters the sum 
 of £1500, to be secured, with interest, at his death, to the daughters 
 for their liferent use, exclusive of the husbands' jus mariti, and to 
 their children respectively in fee, subject to the provision " that 
 whatever sum or sums have already been paid, or may in my life- 
 time hereafter be paid, to any or either of my said children, whether 
 sons or daughters, and vouched by receipt or other written docu- 
 
 (q) 1 Sh. (Ap. Ca.) 316. 1838, 16 Sh. 554 ; Webster v. Rettie, 4 June 
 
 (r) Conversely, where an advance is given 1859, 21 D. 915. 
 
 on an occasion when it is usual for a parent (t) Buchanan v. Mollison, 16 June 1824, 
 
 to make a donation to his child, e.g., to a 2 Sh. (Ap. Ca.) 445 ; Murray v. Murray, 5 
 
 daughter on her marriage, it will not ho Dec. 1843, 6 D. 176 ; and see Fyfe v. 
 
 held to be in satisfaction of a provision Keddie, 6 March 1847, 9 D. 853. 
 
 which the parent was under an antecedent (w) Hutchison v. Skelton, 18 July 1856, 
 
 obligation to grant ; Greenock Banking Co. 2 Macq. 492, reversing 15 D. 570 ; Berry 
 
 v. Smith, 17 July 1844, 6 D. 1340. v. Downie, 10 July 1839, 1 D. 1216 ; Cairns 
 
 (s) Robertson v. Robertsons Trs., 15 Feb. v. Cairns, 11 March 1829, 7 Sh. 571.
 
 SATISFACTION AND ADEMPTION OF LEGACIES. fc61 
 
 meiit, or entered to their debit in my ledger or other account-book, ohaptbb w\. 
 shall be held and accounted, without reckoning interest thereon, 
 .so much of the provision falling to such child or children under this 
 deed of settlement." To one of his daughters the testator had ad- 
 vanced £1000 in his lifetime ; and the First Division of the Court 
 of Session were of opinion that this sum could not be taken as in 
 satisfaction of the testamentary provision, as it was no satisfaction 
 to the children of that daughter that their mother had received 
 payment of the provision in advance. But the House of Lords re- insuch 
 versed the decision, holding that where the intention to satisfy a .'iT^h!','" ami' 
 provision to a family by advances to the parent was expressly de- ma "be^fefied 
 clared, the circumstance that the children received no benefit from by advances to 
 
 it • • i * n t , ~ i i ,llr daughter 
 
 the advance was immaterial. As to the reasonableness ot the de-h 
 claration which the testator had made, his intention evidently was 
 to deal ecpially with all the members of his family — an intention 
 
 which would be defeated were one of the daughters allowed to take 
 the benefit of the advance without imputing it in satisfaction oi the 
 disposition in her favour, (.r) 
 
 (x) 2 Macq. 401, per Lord Ch. Oranworth. cent cases of Ravenscroft v. Jones, 33 L. J. 
 
 - of the kind considered in this section Ch. 482 ; and X< i in v. Drysdalc, Law Rep. 
 
 appeal to lie judged of in England on the 4 Eq. Ca. 517. 
 same principles as with us. See the re-
 
 462 LEGACIES WHETHER ACCUMULATIVE OR IN SUBSTITUTION. 
 
 OHAPTEB XXVI. 
 
 CHAPTER XXYI. 
 
 LEGACIES WHETHER ACCUMULATIVE OR IN 
 SUBSTITUTION. 
 
 Uncertainty of 897. The leading case upon the accumulation of legacies is that 
 
 du'ubie^cies. °f Horsbrugh v„ Horsbrugh, (a) in which a variety of questions of 
 this nature were submitted to the consideration of the whole Court, 
 and determined upon similar principles. The case is deserving of 
 an attentive consideration on several grounds. In the first place, 
 it raised for decision some very important questions in the law of 
 legacies, in a way that necessitated a resort to fixed principles of in- 
 terpretation as distinguished from conjectural interpretation. On an- 
 other ground it may be regarded as a leading authority, since it was 
 a decision based upon the opinions of the whole judges, all of whom, 
 including in their number several jurists of acknowledged eminence, 
 gave separate opinions. This very circumstance, however, while it 
 enables us to illustrate many of the recognised distinctions in this 
 branch of law by apposite quotations, makes it extremely difficult 
 to represent with accuracy the collective opinion of the Court upon 
 any one of the questions submitted to its decision ; for it appears, 
 unfortunately — as was almost inevitable, where many minds were 
 directed to the solution of questions depending on a variety of com- 
 plex considerations — that the judges differed very much amongst 
 themselves as to the relative importance of the various elements of 
 intention presented by the terms of the bequests. Independently 
 of the merits of the judgment, the case is valuable on account of 
 the clear recognition, in the opinions of almost all the judges, of 
 the principle of uniformity of interpretation throughout the United 
 Kingdom on the question, whether a particular bequest is opera- 
 tive. As the elucidation of this branch of our subject will be very 
 much aided by taking into view the decisions of the judges of the 
 
 (a) Horsbnigh v. Horsbrugh, 12 Jan. a preliminary point, viz., whether a parti- 
 1847, 9 D. 329 ; 1 March 1848, 10 D. 824. cular writing was to receive effect as forui- 
 The case is also reported in 9 D. 324, on ing a part of the testatrix's will.
 
 LEGACIES WHETHER ACCUMULATIVE OR IN SUBSTITUTION. 463 
 
 Court of Chancery — who have striven, and with considerable sue- chaptkb zrvi. 
 
 3S, considering the inherent difficulties of the problem, to bring 
 the interpretation of double legacies under the dominion of positive 
 law — it is necessary, in order to justify the proposed treatment of 
 the subject, to refer to the authorities which, as we think, establish 
 the principle of uniform interpretation. 
 
 898. In HorsbrugTi v. Horsbrugh, the Lord Justice-Clerk ! ntityofthe 
 observed, that in point of practical application, there did not seem Interrelation 
 to be any substantial difference between the laws of England and '. 
 Scotland, — an opinion which he supported by an analysis of the England and 
 leading English cases which had been decided up to that date.(fi) 
 
 Lord Cuninghame, recognising the authority of the English cases, 
 rested his opinion (c) on the rule laid down by Lord Lyndhursl in 
 the case of Fraser v. Byng,(d) viz., that when a codicil appeared to 
 be " a review of the whole dispositions of the will," no duplication 
 of the legacies should be inferred. Lord Moncreiff, in the same 
 case, and still more clearly in the subsequent case of <lr<ntt v. Stod- 
 dart,(e) expressed his concurrence in the principles of interpreta- 
 tion that had been laid down by the English lawyers, referring, in 
 the latter case, to Mr Justice Williams' exposition of the law as to 
 duplication of wills and implied revocation. Lord President Boyle 
 observing that in the Civil, Scottish, and English laws certain prin- 
 ciples had been fixed with reference to the interpretation of double 
 legacies, proceeded to show that the presumption of the English 
 law in favour of duplication had received the sanction of our own 
 Courts in the case of Elliot and other eases. (/) In the previous 
 case of Stratorts Trs. v. Cuningham,(g) the Lord Presidenl hail ob- 
 served that he was disposed to give much weight to the English de- 
 cisions on this class of questions, — an opinion in which Lord Med- 
 wyn concurred, observing, that the rule laid down in Fraser v. 
 ' was a very reasonable rule of const met ion, and that the ques- 
 tion was as to its application. In Stoddart v. Grant, Lord Truro 
 referred alternatelyto English and Scotch decisions, both on the 
 question of implied revocation and accumulation of Legacies; add- 
 ing, thai it was scarcely necessary to refer to authorities in support 
 of principles which were well Bettled and understood throughoul 
 the kingdom. (A ) 
 
 899. It d( serves to he noticed, that in the leading English cas< 
 
 (/,) '.i l>. :; in 842. Fulli ri English, 1 i 
 
 9 i). 862. man, and Si 
 
 (<h Prater v. Byng, 1 Rti .-. & My. 90. 
 
 • toddart, 27 Feb. I 19, 1 1 (g) Stra • I '■"»'. 10 
 
 ! M re] 1840, 2 U. 820. 
 
 opinion in Eortbrvgh't case, 9 D ■ (h) Stoddart v. Grant, 28 J IS 
 
 • [) 879 :•■ ;.nd 1 " I 170. 171, 1
 
 464 
 
 LEGACIES WHETHEE ACCUMULATIVE OR IN SUBSTITUTION. 
 
 ill U'TKli XXVI 
 
 Legacies given 
 to the same per- 
 son 1 5 iiiT rent 
 instruments pre- 
 sumed to be 
 cumulative. 
 
 Stirling v. 
 Deans. 
 
 Hooley v. 
 Eatton. 
 
 Rules of con- 
 struction laid 
 down by Mr. 
 Justice Aston. 
 
 Specific lega- 
 cies. 
 
 Legacy in the 
 same 
 
 and in different 
 instruments. 
 
 Legacies of 
 greater or less 
 amount. 
 
 of Hooley v. Ratton,(i) to which reference will immediately be 
 made, Lord Bathurst referred to the case of Stirling in the Court 
 of Session, as being in accordance with the principles of the civil 
 law, upon which his judgment was rested. 
 
 900. The principle established by the cases of Stirling and Hoo- 
 ley v. Hatton is, that where legacies of quantity are given to the 
 same person, but under different instruments, in the absence of any 
 indication of a contrary intention, both legacies are due, and that 
 even where the bequests are similar in form, and for the same sums. 
 In the former case, (A;) the testator, Thomas Deans, by his testa- 
 ment, legated to his sister the sum of 6000 merks, and burdened 
 his heir and executor with it. He afterwards assigned to the same 
 person the sum of 6000 merks, owing to him by a debtor ; and the 
 argument was taken, as the Lord Justice-Clerk remarked in Hors- 
 brugh case, (7) on the footing that both gifts were legacies. The 
 Lords found, that " though it was the same testator, the same lega- 
 tor, and the same sum, yet the last having no relation to the first, 
 they were both due, and the last did not come in place of the first, 
 nor absorb it, this being qucestio conjectura voluntatis defuncti." 
 
 901. In Hooley v. Hatton,(m) the testatrix, by her will, gave to 
 Lydia Hooley, her woman, a legacy of £500. By a subsequent codi- 
 cil she gave to the same person a legacy of £1000 ; and the ques- 
 tion was, whether the last legacy alone passed, or the legatee should 
 have both the £1000 and the £500. The case was argued at great 
 length, and decided by Lord Chancellor Apsley, afterwards Earl of 
 Bathurst, assisted by Lord Chief-Baron Smyth and Mr Justice 
 Aston. The latter learned judge, who delivered the leading opi- 
 nion, reviewed the civil law and French authorities, and in con- 
 formity w T ith them laid down the following propositions : — First, 
 when the same specific thing is given twice, the legacy can take 
 effect but once ;(n) and secondly, where the like quantity is given 
 twice, if the repetition was in the same writing and of the same 
 amount, it might be attributed to forgetfulness ; but where equal 
 sums were given in two distinct writings, both ought to pass.(o) 
 Third and fourthly, as to a less sum or a larger in the latter deed, 
 the presumption is for two legacies, and the heir must show that 
 the one was meant to be blended with the other. The result was, 
 that a legacy was not double where it was given for the same cause, 
 
 (i) Hooley v. Hatton, infra. 
 
 (k) Stirling v. Deans, 1704, M. 11,442; 
 2 Fount. 231. 
 
 (I) 9 D. 343. 
 
 (m) Hooley \. Hatton, 1 Br. Ch. Ca. 390, 
 n.; 2 Wh. & T. L. C. 3d ed. p. 313. 
 
 (n) Dig. lib. 22, tit. 3, fr. 12. 
 
 (o) Dig., ut supra; Ricard, Traite des 
 Donations, vol. i, p. 419, and other autho- 
 rities cited in Hooley v. Hatton. See the 
 report in White & Tudor's Leading Cases. 
 ut supra.
 
 LEGACIES WHETHER ACCUMULATIVE OR IN SUBSTITUTION. 465 
 
 in the same act, and totidem verbis, or only with small differences ; chapter xxvi. 
 but where in different writings there was a bequest of equal, greater, 
 .or less sums, it was an augmentation. 
 
 902. I. Legacies given by different instruments. — In order Legacies not 
 that Legacies given by different instruments may both receive effect, taffiS- 
 it must appear that both instruments were intended to be operative. j^o^rTtto 
 The tendency of the later decisions is to sustain all testamentary 
 writings that have not been expressly or impliedly revoked; and 
 revocation is only implied where both instruments profess to dis- 
 pose of the entire estate, in which case the latter deed is held to 
 
 revoke the former, as being inconsistent with it.(p) Accordingly, 
 where there exists a doubt as to both deeds being operative, the 
 practice is to dispose of that question in the first place.(^) The fact 
 that legacies are given to the same persons in both instruments, 
 affords no evidence of any intention to take away the testamentary 
 character of the first instrument; for implied revocation is only to 
 be inferred as a consequence of inconsistency in the two disposi- 
 tions, which cannot be argued from the repetition of legacies to the 
 objects of the testator's favour, (r) If two instruments are both of Presumed revo- 
 them total dispositions of the testator's succession, it would seem HKuSfeirti 
 that the first can have no operation, even in favour of legatees not aretotaI - 
 named in the second. (s) In a case where legacies were claimed 
 under two successive general dispositions, Lord Justice-Clerk Inglis 
 observed: — " In this case both deeds are intended to apply to the 
 whole property of the testator; each of them contains a universal 
 conveyance. As by each of them the entire estate is conveyed and 
 divided, it is obvious they cannot both receive effect, or both be 
 taken as parts of one settlement. It is perfectly clear that the latest 
 deed must be taken as the testator's settlement. "{£) 
 
 903. The principle that duplication musl be presumed in the Examples of the 
 absence of internal evidence of a contrary intention, has received a^umuCti've^ 
 the sanction of the Courts of both countries in numerous cases. In construc 
 Elliot v. Lord Stair's Trustees,(u) a leading authority, the testator, 
 
 (p) Stoddart v. Grant, 1 Macq. 163, re- now, Bince 1 Jan. 1838, the U\\ of I'-n 
 
 veraing I I D. 860; Baird v. Jaap, 15 July land (2 Wh. \ T.. 3d ed. p. 826 th 
 
 1856, 18 1). 1246; BeattU v. Thomson, 21 prior to thai time legacies in the former 
 
 June 1861, 28 D. 1163. will were operative i substitu- 
 
 Eorsbrugh v. Eorabrugh (lei report), tion was provided in the latter. Kidd v. 
 
 1 May 1845, 9 D. 824; and cases of Baird North, I I Sim. 468; Jackson \. Jackson, 2 
 
 and Stoddart, supra. Cox, 85. 
 
 ' I bruro in Stoddart v. Grant, (t) BeattU \ Thorns* 21 June 1861, 28 
 
 1 Macq. 17 1. D. 1 163, 1 166. 
 
 (s) Beattu v. Thomson, infra; Stew rt v. («) Elliot v. Stair's Trs., 27 Fi b. 182 
 
 Baillie,21 Jan. 1841,3 D. 168; Sellarv. Sh. 260, N I. 218. 
 Stephen, 21 June Is.",.",. 17 l». 975. 'I hi 
 
 VOL. I.
 
 466 
 
 LEGACIES WHETHER ACCUMULATIVE OR IN SUBSTITUTION. 
 
 (II U'TER XXVI 
 
 i i of the 
 same amount in 
 different writ- 
 ings not pre- 
 sumed to I"- in 
 substitution. 
 
 Rule applies a 
 fortiori where 
 legacies are 
 different in 
 quality or in 
 amount. 
 
 by a codicil to his trust-settlement, directed his trustees to pay Mr 
 Elliot £3000, without any qualification ; and by a codicil, made two 
 years later, ho bequeathed to the same party the sum of £3000, 
 " tree of the legacy-tax, and of all other deductions." Lord Meadow- 
 bank, was of opinion that the two codicils contained no evidence of 
 intention other than that which arose from the terms of the two 
 bequests, and upon general principles, decided in favour of the le- 
 gatee. The Court at first altered, but, on reconsideration, unani- 
 mously adhered to the Lord Ordinary's interlocutor. From this and 
 other cases, it is apparent that substitution is not to be inferred 
 because the subsequent legacy is of the same amount; (a;) and it 
 has been expressly decided that a subsequent legacy of larger 
 amount was not to be presumed substitutional, but additional to 
 the former; for, said- Lord President Hope, wdiatever the testator's 
 intention might 'have been, he had given the party a right to de- 
 mand payment of both the legacies, {y) A fortiori, if the second 
 legacy is given to the legatee under a different character or designa- 
 tion,^) or is charged upon different heirs or different subjects; (a) 
 or if the reversion is given over to a different person, (6) or under 
 different conditions — as where one of the legacies is alimentary, or 
 to a married woman for her separate use ;(c) or in the case of joint 
 legacies, where different parties are joined with the claimant, (d) — 
 the legacies will be held to be accumulative. The same construction 
 will necessarily be put upon double legacies which are not ejusdem 
 generis ; so that even where, in consequence of an apparent inten- 
 tion on the part of the testator to remodel his dispositions, succes- 
 sive pecuniary legacies-are found to be substitutional, yet if annui- 
 ties be also given to the same legatees, these are held to be given in 
 addition to the pecuniary legacies, (e) 
 
 (x) Stirling v. Deans, supra ; Lindsay v. to a particular legatee, certain provisions 
 
 Anstruther's Trs., 6 Feb. 1827, 5 Sh. 297 
 N. E. 276 ; Gillespie v. Donaldsons Trs., 
 22 Dec. 1831, 10 Sh. 174. See the English 
 rases, which are very numerous, cited in 
 2 Wh. & T., 3d ed. p. 317 et seq. 
 
 (>/) M-Intyre v. M'Farlane, 1 Mar. 1821. 
 F.C. 
 
 (z) Elliot v. Stair's Trs., supra ; Hors- 
 brugh v. Horsbrugh (2d point), 1 Mar. 1848, 
 10 D. 824; Wilson's Trs. v. Stirling, 13 
 Dec. 1861, 24 D. 164. But see Nasmythv. 
 C'onnell, 19 Dec. 1833, 12 Sh. 243. 
 
 (a) Frew v. Frew, 15 Feb. 1828, 6 Sh. 
 554. 
 
 (b) Straton's Trs. v. Cuningham, 10 Mar. 
 1840, 2 D. 820. So also Lord President 
 Boyle observed, "Where, in the first legacy 
 
 are made for the interest of third parties, 
 which are affected in bequeathing the 
 same sum a second time to the same lega- 
 tee, that affords a circumstance of real evi- 
 dence to show that effect is to be given to 
 both legacies." Horsbrugh v. Horsbrugh. 
 9 D. 379. 
 
 (c) Thomson v. Lyell, 18 Nov. 1836, 15 
 Sh. 32 ; Lindsay v. Anstruther's Trs., 6 Feb. 
 1827, 5 Sh. 297, N. E. 276. 
 
 (d) Horsbrugh v. Horsbrugh (1st and 4th 
 points), 12 Jan. 1847, 9 D. 329. 
 
 (e) Baird v. Jaap, 15 July 1856, 18 D. 
 1246. See the principle stated in Lord 
 Colonsay's speech, p. 1280. Smithy. Donald- 
 son, 10 June 1829. 7 Sh. 734.
 
 LEGACIES WHETHER ACCUMULATIVE OR IX SUBSTITUTION. 4l!" 
 
 niAPTrn xxv!. 
 
 904. Iii determining the effect to be giveD to successive testa- 
 mentary dispositions, a donation or assignation mortis causa is re- . ,. t . 7~ 
 
 Application of 
 
 garded as a legacy. (/) Thus, where a testatrix bequeathed a ,h " ni1 ' <•"'■ in- 
 legacy of £1000 5 Per Cent, Stock, or alternatively £1000 sterling, nSTmS" 
 and after the 5 Per Cents, had been converted into new 4 Per ( lents., ''"'"*'' 
 transferred £1000 of the latter stock to the legatee, who ordered 
 payment of the dividends to be made to the testatrix during her life- 
 time, the legatee was held entitled to both the donations : for, asked 
 Lord Gillies, what purpose was the transfer to serve if it did not 
 import something more than the legacy already provided ? The 
 pursuer derived no immediate benefit from it; and unless the ob- 
 ject of the transaction were to confer an additional benefit on the 
 pursuer over and above the legacy, it was altogether futile.^) 
 
 905. If a testator by a codicil or latter will declare certain of the Construction 
 bequests thereby given to be in addition to those given by a former ^krefi 
 will,(//) it may generally be inferred from the absence of similar ex- le 8» ciea '" '"' 
 
 , . . . additional, and 
 
 pressions m other legacies, that the intention as to such legacies is silent as to 
 was to give in substitution ; but the inference is not always con- ° 
 elusive. In Russell v. Dickson, (i) Lord Chancellor Sugclen remark- 
 ed upon this circumstance: — "I assent to the argument, that if a 
 testator expressly declares one gift to be in addition to another (and 
 for this purpose the Court is entitled to look at other parts of the 
 same intrument, or at gifts in other testamentary instruments), and 
 in another instance makes a gift without any such declaration, this 
 is a circumstance to show that the latter was intended not to be addi- 
 tional, but in substitution. But still too much weight must be no1 at- 
 tached to the variation. To hold that it is conclusive, would be going 
 too far. It is a circumstance, no doubt importanl to show thai 
 where the testator meant addition, he knew how to express his 
 meaning, and a party is entitled to rely on it to thai extent." On 
 the other hand, if a testator expressly provide that one legacy shall construction 
 be in lieu or in satisfaction of another,(&) it may by paritv of rea _ where certain 
 soning be inferred that legacies no1 stated to be in satisfaction are cIarcd ' ' ' 
 
 ,j.,. , k i •(■ i • i , , , , , • • sub titution. 
 
 additional. And it some legacies are declared to be m addition to, 
 and others in lieu of, legacies formerly given, the presumption with 
 regard to legacies given simply, which might have arisen from the 
 
 (/) Watson v. Blair, 16 Nov. 1831, 10 (h) See Gillespii v. Donaldson's Trs.,22 
 
 Bh. 12; Stirling y. Deans, 1704, M. 11,442; Dec. L831, 10 Sh. 176; Elliot v. /■ d 
 Stuart v. Fleming, 1623, M. 11,439; Lord Stair't '/',.. 27 Feb. 1828, '2 Sh. 261, VI.. 
 /.. of i/ /. 1689, M. 11,440. 218; Uorabrugh v. h 9 D 
 
 rk Eope. 
 mentary nature. i' r the cas< of ademp- 1 », 2 ! I. & Vt 
 
 tion of marri m bj le- (k) ! I 'ruther's Trs., 6 Feb. 
 
 the preceding chapter. 1827, 6 Sh. 297, N. E. 276; Henderson v. 
 
 10 Sh. 16. Burt 16 I 20 D 102 
 
 'J
 
 M38 LEGACIES WHETHEE ACCUMULATIVE OR IN SUBSTITUTION. 
 
 chapteb xwi. use of either oi' those expressions alone, would seem to be neutra- 
 lized.^ 
 Howfarthe 906. In (lie leading ease of Lee v. Pain, (in) Sir J. Wigram, 
 
 ftSn^resdons V.-C, observed, thai the argument drawn from the use of such ex- 
 
 !'' i vii'ib ie' "'' ' " pressions was only legitimate when used in corroboration of the 
 inference arising from other circumstances; and that the use of 
 superfluous words in one part of a will was insufficient to control 
 the proper effect of words in another part of the same instrument; 
 for exjiressio earum quce tacite insunt nihil operatur. As an argu- 
 ment in corroboration of the apparent scope and purpose of the 
 posterior writing, there can be no doubt that the inference de- 
 ducible from the use of such expressions is legitimate ; and to this 
 extent the Scotch authorities already cited support the principle 
 laid down by Lord St Leonards and Sir J. Wigram. 
 Effect of the 907. Sometihres there is a difficulty, in consequence of the am- 
 
 ous lauCTageVn biguity of the language used by the testator, in determining to what 
 relation to dupli- ex t eu t a legacy is intended to operate as an additional provision. 
 
 cation "v accu- o j j- r 
 
 mulation. Thus in Smith v. Donaldson, (n) a testator, after having by his trust- 
 
 livnaUh,.,,. settlement appointed his trustees to pay one-half of the free pro- 
 ceeds of his moveable estate to his wife, added a codicil, by which 
 he bequeathed, " in addition to the legacies contained in the deed 
 of settlement already executed by me," the interest arising from all 
 such free money as he might leave behind him at his death, for her 
 liferent use ; declaring that she should have no right to the princi- 
 pal in virtue of this bequest. Lord Mackenzie and the Court ruled 
 that the widow was entitled to the capital of one-half of the estate 
 in virtue of the settlement, and to the interest of the other half in 
 virtue of the codicil ; for, though no interest in the principal was 
 given to her in virtue of the latter bequest, it was given to her by 
 the settlement, and had never been effectually taken away. 
 Eenderson v. 908. In Henderson v. Burt,(o) the ambiguity arose from the 
 
 Burt questioned. pogition of tbe wordg of gift in the secon d instrument. The testa- 
 tor, by his antenuptial contract, had secured to his widow an an- 
 nuity of £100 Scots, and the liferent of a house and furniture, etc. 
 By his testamentary settlement he gave her the liferent use of cer- 
 tain heritable subjects, adding the words, " and these in addition 
 to what is provided to her by contract of marriage, and the sum of 
 £8 sterling yearly during all the days of her lifetime." The Court 
 held that the legacy of £8 was the same as the antenuptial provi- 
 sion of £100 Scots. This construction is, we venture to think, un- 
 
 (7) Elliot v. Stair's Trs., supra. ' (o) Henderson v. Burt, 1G Jan. 1858. 20 
 
 (?») Lee v. Pain, 4 Hare, 201, 221. D. 402. 
 
 (n) Smith v. Donaldson, 10 June 1829, 
 7 Sh. 734.
 
 LEGACIES WHETHER ACCUMULATIVE OB IX SUBSTITUTION. 469 
 
 sound in principle ; for, to support the judgment, it is not only ne- ohaptbb xxvi. 
 cessary to disregard the difference between the two sums, but also 
 to construe the word " and" in the sense of " including." 
 
 909. If in one of the testamentary instruments a motive is as- Legacies given 
 signed for the gift, and in another a legacy of the same sum is given S^*™ 1 
 for a different motive or without any assigned motive, the presump- 
 tion is for duplication; and conversely, where two legacies are given 
 
 by different testamentary instruments, and there is an exact coin- 
 cidence both in the sums given and in the motives assigned, the 
 posterior bequest is presumed to be given in substitution. 
 
 910. It would appear, however, that a mere similarity in the inferem fin- 
 motives will not be sufficient to redargue the presumption for ac- iTsubstitutfon 
 cumulation if the sums are different ; (p) nor will a coincidence in f r om :j^ ila ™i 7 
 the sums, in the absence of any expressed motive, suffice to raise a ' 
 presumption tor duplication. It is true that Lord Thurlow once 
 observed, in words which have been often cited, that " simple re- 
 petition, when it is exact and punctual, has been regarded as sufli- 
 
 cient proof that it is only intended for repetition ;" (q) hut this 
 ilirtum has not been recognised as authoritative in England//') and 
 it stands in-direct opposition to the authority of the principle Laid 
 down in Stirling's case,(s) upon which the interpretation of double 
 legacies in the United Kingdom is based. Accordingly, hold Ful- 
 lerton, in the leading case, observed that the Court could not adopl 
 the reasoning ascribed to Lord Thurlow. as it was in direct opposi- LordTl 
 tion to the general principle. "To hold," he said, -that simple cK. ine criti " 
 and punctual repetition of a legacy of the same amount is of itself 
 sufficient to show that mere repetition and no1 duplication was in- 
 tended, is just to lay down, in other words, that separate writings 
 do not import separate legacies. It may be t rue, that when the re- 
 petition is exact and punctual, that forms a circumstance admitting 
 more easily of being confirmed by additional intrinsic evidence. 
 But still, some such additional intrinsic evidence is indispensable ; 
 and, in the absence of it, the separate writings musl each receive 
 
 Lord v. Svtcliffe, 2 Sim. 273 ; Hurst (r) SeeSirWm.Gi rations in 
 
 \. /;■ ch, '< Madd. 352, whi re tip Benyon \. Benyon, 17 V< . 12; i i o /.'■ 
 
 given for faithful Bervice. "The v. Callen, >'< Bare, 681, wb itrix, 
 
 presumpl ion," said Sir John Leach, "can- by two difTi rent deed bed anuui- 
 
 l in tiii- ca e, althou b n bi I ■ of I bi ame amount to her Bervanl 
 
 admitted thai the motivi are the Bame, E. II.. I V7i jram, V.-O., beld thai liny 
 
 auch :i iIm- sums are differ at." were given cumulatively, as the word 
 
 Moggridgev. ThackweU, I Ves. jun. vanl did nol expn tbe motive, bul 
 
 IT'.. This i followi '1. onlj di cripti • ■ ; and /."' 
 
 and Lord Thurlow's dictum cited a itl B 892. 
 
 ritativeby Wood v - I 1 D 5 ■ '■ ni, M. 11,442 
 
 I 3
 
 470 
 
 LEGACIES WHETHEK ACCUMULATIVE OR IN SUBSTITUTION. 
 
 i haptek xxvi. full effect." (/) The assignment of a special motive in the posterior 
 writing was considered to be a sufficient reason for holding one of 
 the legacies to be additional, in a case where there was intrinsic 
 evidence of an intention to revise, — leading, in the case of other 
 bequests given by the same deed, to the inference that they were 
 intended to be substitutional. (u) 
 
 911. The intention of the testator, when it can be collected from 
 the instruments containing the legacies, will of course override the 
 general presumption for duplication which arises in the absence of 
 such intention, (v) An intention to substitute one legacy for an- 
 other may legitimately be inferred in the following cases : — First, 
 where the second instrument expressly refers to the first in terms 
 which indicate an intention to alter its provisions in the manner of 
 revision, and not merely by addition ;(x) secondly, where, from 
 the structure and form of the settlements, the intention is apparent 
 that both should not be operative, e.g., where both are total settle- 
 ments ; (y) thirdly, where the instruments are either exactly or very 
 nearly identical in their provisions — and the more numerous the 
 instruments are, the inference will be stronger — the absence of any 
 material variance between the prior and the posterior dispositions 
 of the estate will be converted into an argument that the intention 
 was in substance to repeat or republish the prior disposition ; 
 fourthly, substitution may be inferred where the form of the dis- 
 position is altered to meet the altered circumstances of the legatee. 
 
 912. (1) As an example of the first of these elements of inten- 
 tion, we may instance the expressions used in the last testamentary 
 writing of Lady Baird Preston, (2) where the testatrix having re- 
 
 (t) Horsbrugh v. LLorsbrugh, 9 D. 383. Jan. 1847, 9 D. 329. The principle which 
 
 («) Horsbrugh v. Horsbrugh (3d case), was given effect to in most of the points 
 
 Presumption 
 against duplica- 
 tion. 
 
 where testator 
 i, revising his 
 settlements : 
 
 where both 
 settlements are 
 total; 
 
 where the two 
 instruments 
 identical in their 
 scope and pro- 
 
 where"second 
 deed caused by 
 altered circum- 
 stances. 
 Example of 
 revision. 
 Baird v. 
 Preston 
 
 1 March 1848, 10 D. 824, 826 ; and Ridges 
 v. Morrison, 1 Bro. Ch. Ca. 388, cited by 
 Lord President Boyle ; and see his Lord- 
 ship's remark in 9 D. 379. The decision 
 on the 11th point in Horsbrugh' s case (9 
 D. 329) appears, at first sight, inconsistent 
 witli the finding on the point noticed in 
 the text ; but the explanation probably is, 
 that the direction to see certain legacies to 
 other parties paid, was not a motive but a 
 condition annexed to the bequest. 
 
 (v) As an example of how an intention 
 to give in substitution is deduced from tes- 
 tamentary writings, reference is made to 
 Livingston v. Livingston, 7 Nov. 1864, 3 
 Macph. 20. 
 
 (x) Baird v. Jaap. 15 July 1856, 18 D. 
 1246; Henderson v. Burt. 16 Jan. 1858, 
 20 D. 402; Horsbrugh v. Horsbrugh, 12 
 
 raised in that case, and which Lord Presi- 
 dent Boyle thought had been carried too 
 far, was thus stated by his Lordship: — 
 " Unless it appears to be clear that the 
 first legacies are revoked when the second 
 legacies are given, I think that the lega- 
 tees are entitled to both legacies. I do 
 not say there must be a formal revocation. 
 If there is undoubted evidence of a revoca- 
 tion of the first legacies in the settlement 
 viewed as a whole, then such revocation 
 must receive effect " (9 D. 380). 
 
 (y) Beattie v. Thomson, 21 June 1861, 
 23 D. 1163; Steivart v. Baillie, 27 Jan. 
 1841, 3 D. 463. See Grant v. Stoddart, 
 28 June 1852, 1 Macq. 163, and 11 D. 860 ; 
 Seller v. Stephen, 21 June 1855, 17 D. 975. 
 
 (z) The words referred to are : — " The 
 enormous expense into which I have been
 
 LEGACIES WHETHER ACCUMULATIVE OB IX SUBSTITUTION. 471 
 
 ferred to the diminution of her resources as a reason for altering chaptkb xwi. 
 her list of legacies, it was justly hell that the alteration contem- 
 plated must have been an alteration which would have the efl 
 of detracting from, and not of adding to, the charges on her estate, 
 and that the legacies given by that instrument were accordingly 
 substitutionary, in so far as they were ejusdem generis with those 
 given in previous writings, though different in amount. 
 
 913. (2) As to the second element of intention, it has been suf- Rule that the 
 ficiently considered in commenting on the class of cases in which s^ementsfe 
 the principle has been laid down, that if both settlements embrace r reftrable - 
 dispositions of the legal as well as the beneficial estate, one of them 
 
 only is capable of being effectuated, and therefore the posterior 
 settlement, as containing the expression of the testator's last will, 
 is to be preferred, (a) 
 
 914. (3) The similarity of the different testamentary instra- inference from 
 ments, and the repetition in them of a number of legacies of the lllri^of itoTin- 
 same amount, were among the main reasons which induced the struments - 
 Court to reject the claims of the legatees for double and triple pro- 
 visions in the cases of Horsbrugh and Baird, which have been so 
 
 often referred to. It appears from Messrs White & Tudor's analysis 
 of the Chancery decisions that this is considered in England also 
 to be a sufficient reason for rejecting the supposition of duplica- 
 tion.^) 
 
 915. (4) Where the posterior bequest is settled in a different man- a 
 
 ner from the prior, and the alteration in its term- has a manifesl refer- i n e conseaTence 
 ence to some change in the situation of the legatee, the presumption ^, I| , | '! 
 for duplication is taken away. This is the principle of the ease of \ 
 BelshesN. Murray, (c) which is so frequently referred to in the reports Murray. 
 of the cases occurring in the early part of this century. The testator, 
 Anthony Murray, by his first general settlement bequeathed to his 
 niece, Emilia Murray, a legacy of £3(><>. payable a1 the firsl term 
 after her marriage, with interest thereafter, and an annuity of £17 
 payable until marriage. lie afterwards executed a second settle- 
 ment bearing reference to the first, and adopting the legacies con- 
 tained in it. The niece afterwards married, and had issue two sons ; 
 and Mr Murray then executed a bond of provision in favour of the 
 family, by which he bound his executors in paymenl of a legacy ol 
 £1200, payable to the lady for her liferenl use, and to her children 
 in fee; whom failing, to her husband, subject to a power of division. 
 
 led by law aits having circum oribed very (") Supra, I 
 
 much my funds, I have this day altered (b) 'J, Wh. & T. 8d ed | ill 
 
 listed . . . Legacies to be re- R S My. 102 n I Htthuen \ 
 
 idered when I know the snd of the Wethuen, 2 Phill. 116, then referred I 
 
 Chancery suit, which I expect daily, when /■ ' H M 11,861 
 I hope to add to thi list.' 5e< 18 D. 1251.
 
 nient. 
 
 472 LEGACIES WHETHER ACCUMULATIVE OE IN SUBSTITUTION. 
 
 chaptbb xxvi. Both Legacies were claimed; but the executor maintained, success- 
 fully, that as the first legacy was given to the niece with reference 
 to her then condition as a single woman, and the testator had after- 
 wards settled funds of larger amount upon herself and her family, 
 ii must be presumed that this was all he intended to give.(d) The 
 Lords found the legacy of £300 not due. 
 
 ,,„ . h M 916. On the same view of the probable intention, Lord Alvanley, 
 
 by two decisions, (V) cited with approbation by Sir J. Wigram,(/) 
 established the principle, that if a party leave a legacy to the child- 
 ren of a family without naming them, and after the family has 
 either increased or diminished in number leave a legacy to the 
 children by name, the later legacy shall be taken as substitutionary 
 to the former. 
 
 Presumption 917 - H« LEGACIES GIVEN BY THE SAME INSTRUMENT — DUPLICATION 
 
 against dupiica- 0F SPECIFIC legacies. — Legacies of quantity given by the same in- 
 
 tion. where ° . -,. 
 
 same legacy is strument to the same person, ii equal m amount, are, according to 
 Ihr'lme'instni- the doctrine of the English law, to be regarded as repetitions of one 
 and the same bequest ; the repetition being held, upon a view sanc- 
 tioned by the civil law,(#) to arise from forgetfulness.(A) And 
 slight differences in the form of the dispositions— as. for example, 
 where the one legacy is to a wife simply, and the other is destined 
 to her separate use(t) — will not entitle the legatee to the benefit of 
 a double bequest. On the other hand, legacies of unequal amount 
 to the same person, and contained in the same instrument, are 
 deemed accumulative ; and it is immaterial whether the larger sum 
 is prior or subsequent in local position to the smaller. (&) 
 
 id) The passages cited from the text of and such default of issue as aforesaid, and 
 
 the civil law were — Dig. (De Legatis), lib. to he paid to him half-yearly ; also to my 
 
 30, tit. 1, fr. 34, § 3 ; lib. 31, tit. 1, fr. 22 ; brother C. T., of or near the city of London, 
 
 Dig. (De Dote Praelegata) , lib. 33, tit. 4, the sum of £100 stg." Lord Cottenham 
 
 fr. 1, \ 14 ; Cod. (De Legatis), lib. 6, tit. was of opinion that the testatrix's brother 
 
 37 t 1. 11. was entitled to the annuity, and to one 
 
 (e) Allen v. Callow, 3 Ves, 289 ; Osborne legacy only of £100. See also Brine v. 
 
 v. D. of Leeds, 5 Ves. 369. Fender, 7 Sim. 549 ; Early v. Middleton, 
 
 (/) Lee v. Pain, 4 Hare, 242. 14 Bcav. 453 ; Early v. Benbow, 2 Coll. 342 ; 
 
 (g) See Dig. lib. 34, tit. 1, fr. 18, and Holford v. Wood, 4 Ves. 76. 
 lib. 34. tit. 4, fr. 9. (*) Greenwoods. Greenwood, 1 Br. Ch. Ca. 
 
 (A) In one of the later cases, Manning v. 31 n. ; Garth v. Meyrick, 1 Br. Ch. Ca. 30. 
 Thesiger, 3 My. & K. 29, the principle is (k) See Currie v. Pile, where a testator 
 
 very distinctly brought out. The bequest gave his son £1000 absolutely, payable on 
 
 was as follows : — " I give to my brother, C. his attaining majority ; and after providing 
 
 T. of London, from and immediately after for his maintenance and education till he 
 
 the decease of my husband, R. W., and in arrived at majority, added, "and then I 
 
 default of issue of our marriage, £100 stg.; give him £5000." Lord Thurlow held 
 
 also to my said brother C. T. an annuity that the son was entitled to £6000 ; 2 Br. 
 
 of £50 stg. for life, to commence from the Ch. Ca. 225. See the subsequent cases in 
 
 dai of the death of my husband R. W.. 2 Wh. & T.. 3d ed. p. 325;
 
 LEGACIES WHETHER ACCUMULATIVE OR IN SUBSTITUTION. 17:: 
 
 918. In the Scotch cases upon double legacies given by the same ohapteb xxvi. 
 instrument, the provisions have been for the most part of a different But wher th 
 
 ■nature, e.g., an annuity or life interest, and a pecuniary legacy : in two legacies are 
 which case there can be no doubt that both are due.(?) In Suth r- generis, both 
 land v. Sutherland's Executors, (m) the testator desired that after Sutherland v. 
 payment of his debts, the sum of £200 should be laid out at interest, Suiherland - 
 to be paid yearly to his reputed daughter ; and that in case of her 
 marrying with the consent of his executors, £100 should be paid 
 and secured as her portion. The Lord Ordinary held, that on pay- 
 ment of the marriage portion, the liferent ought to be restricted to 
 £100; but the Court altered, and preferred the claimant to the life- 
 rent of the sum of £200, as well as to the legacy of £100. 
 
 919. The case which perhaps comes nearest to that of simple M'innes v. 
 repetition in the same instrument (where substitution would be im- M ' AlUsteri 
 plied), is that of JWInnesv. M l Alister.(n) The words of the bequest 
 
 were, " I give and bequeath to each of my sisters. Susanna and 
 Margan t. £200 stg. each, with an additional sum of £200 stg. to 
 be given to Margaret, which, with the aforesaid £200, is to be set- 
 tled upon herself for life." The testator also burdened his heir with 
 an annuity of £100 a-year in favour of his sister Margaret. Eere 
 the annuity was clearly additional, being a provision of a different 
 nature from the legacies of capital, and also charged upon different 
 estate. The two legacies of £200 were both due, because the one 
 wasexpressed to be " additional " to the other; and it was so found 
 by the judgment of the Court. 
 
 920. Where a specific legacy of the same thing, whether by the Sp© ific I 
 same or liy different instruments, is given to the same person, the j s necessarily a 
 second bequesl is obviously a repetition of the first, because the repetl 
 same subject cannot be twice effectually given.(o) The operation of 
 
 the principle has been extended by our Courts to the case of demon- 
 strative legacies — e.g, a legacy of a sum of money given for the pur- 
 pose ol purchasing an article of ornament,(p) and legacies of small 
 Bums oi money to be given in charity, in the shape of clothing or 
 fuel, to the poor.(g) 
 
 (/, Sei Btrird y. Jaap, is l>. 1246; and (n) M'innes \. M'Alister Is! cae< 29 
 
 M'Jnnes and Sutherland, infra. June L827, 5 Sh. 862, N. E. 801. 
 
 In t!i. ■ lir.-t mentioned case, the testatrix Edgar v. Hamilton's 7V»., 12 June 
 
 , this form: "To Lord 1828, 6 Sh. 968. Per curiam in JlooUy v. 
 
 Dunfermline, 62000 thousand pounds." Halton, 1 Br. Ch. Ca. 890 ; and D 
 
 Id to be a legacy of 62000, on St Albans v. Beauclerk, 2Atk. 688; Ridges 
 
 round thai the sum was plainlj : W L Br. Ch. I £ 
 
 down in flgun -. and th< I followed / 
 
 it did not affect it either in the way of in- B rsbrugh v. B 
 
 or diminution. 9 D. 829 
 
 d v. Sutherland l 'I'l iy /f " '""'•' u 
 
 1826. 4 Sh. 220, N. 1 point
 
 474 LEGACIES WHETHER ACCUMULATIVE OR IN SUBSTITUTION. 
 
 chafteb xxvi. 921. It was tlic opinion of the late Lord Justice - Clerk (r) 
 
 „ , . . that extrinsic evidence as to the intention of the testator was in no 
 
 Extrinsic evi- 
 dence: in what case admissible, as there was no reason for making, in regard to 
 
 admissible. such questions, an exception to the general rule, according to which 
 the evidence of intention must arise on the face of the instrument. 
 In England a distinction has been taken between the cases in which 
 the Court raises the presumption against the intention of a double 
 gift, and those in which the presumption is in favour of duplica- 
 tion. In the former class of cases, extrinsic evidence is admitted 
 to rebut the presumption against the reception of the words of be- 
 quest in their literal signification ; in the latter, such evidence is 
 wholly excluded ; the principle being, that evidence is receivable in 
 support of the writing, but not in contradiction to it.(s) Extrin- 
 sic evidence is also admissible in England to show the circum- 
 stances of the testator at the time of making his will;(7) and for 
 this purpose extrinsic evidence would also appear to be admissible 
 according to the rules of our own law.(w) 
 whether second 922. With regard to the question, how far an additional, or a 
 jeft to the con- substitutionary legacy is subject to the conditions and incidents of 
 dentTof a the mcl " tne original legacy, or to the destination impressed upon it, no very 
 first - distinct authority is to be found in our Eeports. It is clear, from 
 
 the actual result of the decisions, that special destinations will not 
 be implied in additional legacies ;(x) but as to conditions, there is 
 greater reason for presuming an intention that they should continue 
 in operation until expressly revoked. Qy) In England the rule ap- 
 pears to be, that a subsequent legacy, whether substitutionary or 
 accumulative, will be affected by the conditions of the prior legacy, 
 unless a contrary intention is manifested ; but that a legacy given as 
 a new and independent bequest — e.g., if the prior legacy be ex- 
 pressly revoked — is not affected by such conditions ; and, that in 
 no case is the subsequent gift affected by ulterior destinations im- 
 pressed upon the prior gift.(z) 
 
 (r) 9 D. 341. 1827, 5 Sh. 297 ; Straton's Trs. v. Cuning- 
 
 (s) Per Sir John Leach, Hurst v. Beech, ham, 10 March 1840, 2 D. 820 ; see, how- 
 
 5 Madd. 351 ; Lee v. Pain, 4 Hare, 216, ever, Horsbrugh v. Horsbrugh (2d point), 
 
 per Wigrarn, V.-C. ; Hall v. Hill, 1 D. & 10 D. 824, and Murray v. Smith, 2 Feb. 
 
 War. 116, decided by Lord Chancellor 1831, 9 Sh. 378, — a special case. 
 
 Sugden. (y) Harvey v. Harvey's Trs., 28 June 
 
 (0 Martin v. Drinkwater, 2 Beav. 215 ; 1860, 22 D. 1310. 
 
 Guy v. Sharp, 1 My. & K. 589. (z) 2 Wh. & T.'s Leading Cases, 3d ed. 
 
 (u) See chapter 21 (Extrinsic Evidence), p. 329, where the decisions are referred to. 
 
 (x) Lindsay V. Anstruther's Trs., 6 Feb.
 
 OF ELECTION. OR APPROBATE AND REPROBATE. 475 
 
 OHAP. XXVII. 
 
 CHAPTER XXVII. 
 OF ELECTION, OR APPROBATE AND REPROBATE. 
 
 923. It is a rule of general jurisprudence, that no person can Definition of the 
 
 ... •• i • 1 • • i j. r doctrine of 
 
 accept a gratuitous provision which is given as an equivalent for a ,;,,„, ,, r 
 debt or legal provision, and at the same time claim the provision J** ;iuJ rt i' ro " 
 for which the equivalent is given. The principle of this rule has 
 been denominated by Scotch jurists the law of Approbate and Re- 
 probate, from the maxim quod approbo non reprobo. The principle 
 that the legatee has the option of either accepting the legacy, or 
 rejecting it'and claiming his legal rights, is known in modern prac- 
 tice as the doctrine of Election — a term which had previously been 
 applied to it by Engish jurists. (a) 
 
 924. The intention to substitute a gratuitous provision for a intentta 
 debt or legal provision, may be declared either in express words or 
 
 by implication. In the former case, if the debt is described in Ian- Jjfjjj 
 guage sufficient to identify it, or if the legal claim is described by 
 its appropriate name, or by words which in the language of muni- 
 cipal law comprehend it. no question can arise either under the law 
 o\ Scotland, or of any other system of law with which we are ac- 
 quainted, as to the applicability of the doctrine of election. (6) If, internal 
 on the other hand, the intention to give a conventional provision JSn^eUc^ 
 i equivalent for a legal provision is implied — thai is. ii it results 
 a the force of legal presumption — the law of the testator's do- 
 micile, under which the legal provision would enure to him, musl 
 decide whether the terms of the settlement, the relationship of the 
 parties, and the circumstances under which the conventional pro- 
 
 („) |- ; | ryto thai (A) See Trotter v. Trotter, 10 Jui 
 
 an heir is no! pul to election merely by 8 W.& 8.407; D ■' v. Dundat, 22 Dec. 
 
 , tie, fth( ano 1880, I W. & S. 460, affirming 7 8h. 241 j 
 
 tor to whom he /; '"' N - Bennet't ZW., 1 July 1829, 7 Bh. 
 
 peai thai thi Le( ■. '•- - ,; -'" '" llim "" H: ; '•■ Malcolm, 1749, M. I 
 
 Lition of his renouncing the accession, and in the law of England, 2fo\ i Bony, 
 
 ■ iapoint, * lon'sremari in per Sir v. i !: 
 
 Coutt 6 l'c B6 . al o Wilton v. Welby, 2 \ • 8 B. 187. 
 i Uendet on, 29 Mar h L802 I P I 816. 
 
 tion.
 
 476 
 
 OF ELECTION, OR APPROBATE AND REPROBATE. 
 
 Oil IP. XXVII. 
 
 Questions relate 
 to— (1) the 
 elector; (2) sub. 
 jecl of election; 
 (3) disposal of 
 
 til: f: J. : I'll pro 
 
 vision. 
 
 Election must 
 be spontaneous. 
 Capacity of the 
 party. 
 
 Minors. 
 
 Curators of in- 
 sane persons. 
 
 vision 1ms been granted, are such as to raise the presumption that 
 the conventional provision was given as an equivalent. (c) Where 
 two testamentary instruments deal with different estates, and each 
 of them admits of being carried into effect independently of the 
 other, a person taking under one of such instruments would not be 
 bound I" give effect to the other. (d) 
 
 925. The points which we intend to illustrate relate to— -first, 
 the persons by whom election may he made ; secondly, the property 
 which may he the subject of election ; and thirdly, the considera- 
 tion of the question, what becomes of the rejected provision — that 
 is, of the share of succession which might have been claimed ex lege, 
 supposing the legatee to adopt the settlement, or, on the other hand, 
 of the legacy, if he reject the settlement. 
 
 926. I. Election, to whom competent. — The election must be the 
 spontaneous and deliberate act of the party who is in right of the 
 bequest. (e) An election made in ignorance of the party's legal 
 rights, (/) or in circumstances not admitting of deliberation,^) 
 may be recalled. Homologation of a settlement will not easily be 
 implied from facts and circumstances in the case of an express re- 
 pudiation, executed within a reasonable time after the settlement 
 came into operation. (Ji) An election made by a minor is null, or at 
 all events reducible, on the ground of minority and lesion, (i) The 
 curator bonis of a lunatic is not bound to elect on behalf of his ward, 
 wdiether he shall take his legal or testamentary provisions ;(Jc) but 
 if an arrangement is made between all the beneficiaries under 
 a settlement, with a view to the distribution of the estate, it may 
 be the duty of a curator bonis to enter into it, if terms are offered 
 favourable to the interests of his ward ; and if he does so, the trans- 
 action will be binding, though it will not be allowed to affect the 
 character of the lunatic's succession as heritable or moveable. (I) A 
 
 (c) See chapter 2, sect. 4, where an ex- 715 ; and see Loivsoti v. Young, 15 July 
 
 planatirra is given of the principles upon 
 which the English and Scotch Courts re- 
 sort to the law of the domicile, in order to 
 ascertain whether a beneficiary is put to 
 his election with reference to the accept- 
 ance of testamentary provisions. 
 
 (d) Dow v. Beith, 11 March 1856, 18 D. 
 820. 
 
 («) Brodie v. Brodie, 6 July 1827. 5 Sli. 
 900, N. E. 835; Telford v. Jamieson, 12 
 May 1835, 13 Sh. 735 ; Rose v. Rose, 20 
 Nov. 1821, 1 Sh. 154, N. E. 148. 
 
 (/) Johnstone v. Paterson, 29 Nov. 1825, 
 4 Sh. 234, N. E. 237 ; Hope v. Dickson, 17 
 Dec. 1833, 12 Sh. 222. 
 
 (g) Selkirk v. Law, 2 March 1854, 16 I>. 
 
 1854, 16 D. 1098. 
 
 (h) Panmure v. Crokat, 22 Nov. 1854, 17 
 D. 85 ; Hutchison v. Hutchison, 7 Feb. 1822, 
 1 Sh. 295, N. E. 274 ; Hog v. Lashley, 7 
 May 1792, 3 Pat. 247. 
 
 (i) Cases in note (e), supra. 
 
 (k) Cowan v. TumbulVs Trs., 7 D. 872, 
 17 March 1848, 6 Bell, 222. As to the 
 competency of a tutor or curator for a minor 
 exercising the power of election, see Pater- 
 son v. Moncricff, 15 May 1866, 4 Macph. 
 706. 
 
 . (I) Kennedy v. Kennedy, 15 Nov. 1843, 
 6 D. 40; see Pet. Hope, 15 Jan. 1858, 20 
 D. 391.
 
 OF ELECTION, OR APPROBATE AND REPROBATE. 477 
 
 father has no power to deprive his insane child of legitim, or to crap, xxyit. 
 limit the interest of the child by a general settlement to a fixed 
 provision. (m) 
 
 927. A husband is not entitled to elect for his wife, though, if he wife may elect 
 concur with her in claiming legitim, he is held to have repudiated Ji° on ^yovSons 
 the testator's disposition, and is barred from claiming a legacy be- settled on her- 
 
 ° a J selt in lieu of 
 
 queathed to himself.(w) In the cases of Stevenson v. Hamilton and legal provisions. 
 Low-son v. Young, (o) the question was discussed, whether the credi- 
 tors of a husband were entitled to control the wife's right of election 
 between her legal and conventional provisions. In the former case, 
 the wife had ratified the settlement by which the^V-s mariti was ex- 
 cluded, which was in other respects highly favourable to her own 
 interests and those of her children. The husband, who had not con- 
 sented to her approbation of the settlement, joined with his creditors 
 in claiming legitim in her name ; but the Court, in conformity with 
 the opinion of a majority of the whole judges, sustained the election, 
 and preferred the lady for her provisions. 
 
 928. In Lowsoris case the circumstances were similar, except that whether hus- 
 the wife hail, in the first instance, intimated to her husband's trustees ^n^DjecttoT 
 her intention to claim legitim ; but afterwards, with her husband's <»P ri( lious exer- 
 
 ° ' cise of the right 
 
 ci incurrence, resolved upon adopting the settlement, which conferred of diction. 
 upon her a larger benefit than she could have obtained by claiming 
 legitim. The Court decided in favour of the wife, on the ground 
 that she had made a fair choice, and that there was no nimious in- 
 terference with the interests of creditors ; subject to the observation, 
 that a wile would not be allowed capriciously, where the dispropor- 
 tion was groat, to renounce a larger interest which would have gone 
 to creditors, for a smaller interest secured to herself.Qs) 
 
 929. A parent is not entitled to elect on behalf oi his children ; Rights of chfld- 
 
 and where a settlement provides a liferent interest to the testator's rennotpre- 
 L _ judiced by 
 
 son and the fee to bis grandchildren, the repudiation of the liferent parents' election 
 provision bj the son does not affeel the grandchildren's right to the legal provisions. 
 fee. This was the point decided in the Leading case of Fisher v. ' ''"' 
 Dixon,(q) where the Eouse of Lords found, thai although the 
 testator's son had received paymenl of legitim, the grandchildren 
 were entitled to paymenl in full of the capital of the sum which 
 was Lefl to them, subjed to their lather's liferent. In asubsequent 
 
 (w) Mortonv. Voting, 11 Feb. 1813, F.C. [p] See ob errations of Lords Colonsay 
 
 D.ofBuckinghamv.M.ofBreadalbane, and Rutherfurd, L6 D. 1108. 
 
 16 Dec. L848, 6 D. 250. [q) Fisher v. Dixon, I Jul) 1888, 6 W. 
 
 n v. Young, l-"> Jul L864, 16 \ s. 181, affirming 1<> SI,.:,.'.; Colliery. 
 
 D.1098;/& i n onv. Hamilton,! Dec.1888, Collier, 6 Jul) L888, II Sb. '.Mi'; /■>, „ v . 
 
 l D. 181. See Lord Benholme's remarks Watt, L0 July 1828, 6 Sb. L125. 
 on thi 20 1>. 660.
 
 47S 
 
 OF ELECTION, Oil APPROBATE AND REPROBATE. 
 
 cii.vr. xxvii. 
 
 Deed ineffectual 
 to convey herit- 
 age does not 
 put the heir to 
 his election 
 unless intention 
 manifested. 
 
 Court may conv 
 pel an heir of 
 foreign real 
 estate to make 
 it available for 
 the purposes of 
 the will. 
 
 Election where 
 different sub- 
 jects are con- 
 veyed by dif- 
 ferent writings 
 forming part 
 of one entire 
 settlement. 
 
 case,(r) where a Father settled the interest of a sum of money upon 
 his daughter, and Left the principal to her family in the event of 
 her marrying, whom failing, to Iter sisters and brothers, adding, " it 
 is understood that I include her mother's share in the above sum ;" 
 and the daughter repudiated the settlement and claimed legitim, as 
 well as her portion of her mother's interest in the goods in com- 
 munion, it was held that the daughter's children could only claim 
 the capital, subject to deduction of the sum that would have fallen 
 to their mother as one of her mother's next of kin. 
 
 930. IT. Subject of Election. — As to the subject of election, it 
 will include, as a general rule, all property of which the testator 
 has declared his intention of disposing, whether actually within his 
 power or not ; and may include, for example, the interest in an en- 
 tailed estate, (s) But if the deed is in form inhabile to convey land, 
 it will not be presumed that the testator intended to subject his 
 landed estate to the dispositions of the deed, although heritable 
 property is mentioned in it, This principle would apply to a testa- 
 mentary conveyance of heritable and moveable estate executed by 
 a party domiciled in Scotland, (i) 
 
 931. Where a testator dies domiciled in England, his will con- 
 veying Scotch heritage, if framed in language adapted to convey real 
 estate according to the law of England, is held to put the heir to his 
 election either to relinquish his right as heir of the Scotch estate, or 
 to repudiate the settlement. (u) So also, where a Scotch testator 
 executes a settlement in Scotland ineffectual to convey English or 
 foreign property, but indicating an intention to convey it, the heir 
 to the property is precluded by the law of approbate and repro- 
 bate from claiming the English real property as heir-at-law, and 
 also the testamentary provisions in his favour, (x) 
 
 932. Where the expression of the testator's will is contained in 
 several distinct writings, the whole must be read as one settlement ; 
 and the heir cannot repudiate one of them, or reduce it on the head 
 of deathbed, without forfeiting the provisions in his favour contained 
 in the other, (y) An heir cannot claim a legacy of moveable estate 
 
 (/■) Sinclair's Errs. v. Rorison, 11 Dec, v. Campbell, 15 July 1862, 24 D. 1321. The 
 
 1852, 15 D. 212. 
 
 (s) Carmichael v. Carmichael, 15 Nov. 
 1810, F.C. ; Smith v. Murray, 9 Dec. 1814, 
 F.C. 
 
 (t) See Campbell v. 3funro, 23 Dee. 1836, 
 15 Sh. 310. 
 
 (u) Martin v. Martin and Stone, 17 June 
 1795, 3 Pat. 421 ; Murray v. Baillie, 24 Feb. 
 1849, 11 D. 710; Campbell v. Munro, 23 
 Dec. 1836, 15 Sh. 310; Lamb v. Montgomerie, 
 20 July 1858, 20 D. 1323 ; Campbell's Trs. 
 
 question whether he is put to his election, 
 is in this case determined by the law of 
 England, the law of the will ; Robertson v. 
 Robertson, 16 Feb. 1816, F.C; Trotter v. 
 Trotter, 10 June 1829, 3 W. & S. 407. 
 
 {x) Dundas v. Dundas, 22 Dec. 1830, 4 
 W. & S. 460; Alexanders. Bennet's Trs., 1 
 July 1829, 7 Sh. 817. 
 
 (y) Black v. Watson, 9 Feb. 1841, 3 D. 
 522 ; Stewart, etc. v. Stephen, etc., 29 Nov. 
 1832, 11 Sh. 139; Harvey's Trs. v. liar-
 
 OF ELECTION, OR APPROBATE AND REPROBATE. 470 
 
 given to him by a deed -which he challenges as ineffectual to con- chap. xxyh. 
 vey heritage because it was executed on deathbed ;(z) though he 
 may found upon the deed which he challenges to the extent of tak- 
 ing advantage of a clause of revocation contained in it, if he has an 
 interest, (a) Of course, if the settlement does not dispose, or profess 
 to dispose of the whole succession, the beneficiaries are entitled, in 
 their character as heirs-at-law, to claim what is undisposed of; for 
 there is no inconsistency in claiming what the testator does not, as 
 well as what he does, dispose of. (b) And where two settlements 
 were distinct in their scope, so that the Court could not infer that 
 they were intended to stand or fall together — the one being a tes- 
 tament, and the other a deed of entail — it was held that the accept- 
 ance of a bequest under the testament did not bar the heir from 
 challenging the deed of entail as being ultra vires of the granter.(c) 
 
 933. A beneficiarv who accepts a testamentary provision, being Beneficiary 
 
 , If i • i • • • + + ■ -n. i. i -ii !,,1 "i ,tin s the 
 
 barred from making any claim inconsistent with the expressed will s .-ttk-ment . c;m- 
 
 of the testator, is necessarily precluded from taking an interest in succession *Jjt 
 the legal succession in the capacity of representative of a deceased YrcTi! 'tl'ii- 
 heir. On this principle it was held, with reference to a settlement ciary. 
 in favour of the grantor's children, with a destination over to sur- 
 vivors, the vesting being postponed until the majority of the child- 
 ren, that the surviving children who had adopted the settlement 
 were not entitled to claim legitim as representatives of those who 
 had died in minority, after surviving the testator, and who had 
 therefore acquired a vested interest in the legitim fund.(W) 
 
 934. By the operation of the principle under consideration, a To what extent 
 
 i i i t • i e i • i • a testator may 
 
 testator may not only exclude his legatees from any claim to nis affect his lega- 
 
 own estate, in their character as debtors or legal representatives, !'^,!' nvatc 
 
 but may also burden the Legatee with the paymenl of provisions to 
 
 other parties, or dispose indirectly of whal belongs to another, or 
 
 may attach such conditions to a bequest as are lawful and possible. 
 
 An exception has however been admitted where the fulfilment of 
 
 a condition involves the sacrifice of the legatee's right to a differenl 
 
 '/' 28 June I860, 22 D. 1310; 30' to the exclusion of the heir's interest, see 
 
 Jan. 1862, 1 Macph. 345. chapter 9, I 
 
 (z) Kerr v. I), of Ho/hiin/h'* TV.;.. L>:i (b) Wightmanv. De Lisle, 16 June 1802, 
 
 1816, Hume, 26, affirmed 1 Bligh, 1. M. 4479; See Robertsonv. Oailvie's Trs., 20 
 
 Whether the heir can found on a 3ettle- Dec. 1844, 7 D. 236; Maitland v. '■' 
 
 which he has partially reduced to land, 11 Dec. 1843, 6 D. 244; Wilson v. 
 
 the effect of claiming the benefit of a Difk, 30 June 1840, 2 D. L286. 
 
 i relieving the heritable estate of (c) Urquhartv. Urquhart, 20 Feb. 1861, 
 
 burdens affecting ii Crawford's Trs. 18 D. 742. And ee /' v. Beith, supra, 
 ford, 11 .i i Macph, 276. 
 
 I.-,, re.; art's Trs. v. Stewart, 20 Dec. 
 
 /•" ■. /' oj /■■ urgh's Trt., I I 14 D. 29
 
 480 OF ELECTION, OR APPROBATE AND REPROBATE. 
 
 chap, xxvii . subjecl or estate without conferring any benefit on other legatees. 
 In such a rase, it is held that the condition ought not to be en- 
 forced, mi the ground that the testator is supposed to have imposed 
 it for the Un. lit of his legatee, and that the application of the con- 
 dition must be confined to the case to which it was intended to be 
 applied. On this principle, where an heir of entail had made up 
 his title to an entailed estate as fee-simple proprietor, and after- 
 wards executed a new entail, comprehending the entailed estate as 
 well as other fee-simple property, it was held that the heir, by ac- 
 ceptance of the new grant, was not bound to hold the entailed pro- 
 perty subject to the conditions of the second entail ; because in so 
 doing he would have incurred an irritancy, which could not have 
 been within the contemplation of his ancestor, (e) 
 
 Appropriation 935. HI. PRINCIPLE OF EQUITABLE COMPENSATION. The queS- 
 
 legai succession; tion as to the .disposal of the unclaimed estate, where an heir or 
 conventional 6 legatee is put to his election between legal and conventional pro- 
 provisions. visions, is one of very extensive application ; but it will be found 
 on an examination of the authorities, that all such questions are in 
 general resolved by the application of what is termed the principle 
 of Equitable Compensation, under which the unclaimed provision 
 accrues to the person or class of persons whose interests are dimi- 
 nished by reason of the mode in which the right of election has 
 been exercised. We shall consider, in the first place, the position 
 of the estate considered as subjected to legal claims, in the case of 
 the beneficiary approbating the settlement ; and thereafter, the 
 position of the same estate viewed as the subject of testamentary 
 disposition, in the alternative case of the beneficiary rejecting or 
 reprobating the settlement. 
 Rejected shares 936. (1) With regard to the legal claims of the heirs-at-law and 
 
 of heritalile and v ' Trv-i, • a i 
 
 moveable sue- executors of the testator, no dimcufty can arise. At to heirs-at- 
 residue. ' m law, it seems clear, though the point has never been decided, that 
 if an heir-portioner accepts a testamentary or dispositive provision 
 in lieu of the inheritance, the share of heritage liberated by the 
 election of such heir to take under the settlement will fall into the 
 general residue, to be applied for the purposes of the settlement. 
 This is evident, indeed, from the consideration that the co-heirs 
 would have no title to reduce the settlement — for example, on the 
 head of deathbed — except to the extent of their respective shares. 
 The same result would follow in the case of moveable estate inef- 
 fectually disposed of under a foreign will. 
 
 (e) Arhuthnottw. Arhuthnott, 1792, Bell's hart, supra; Douglas'' Trs. v. Douglas, 20 
 Oct. Ca. 161, M. 620; Urquhart v. Urqa- June 1862; 24 D. 1191.
 
 OF ELECTION, OR APPROBATE AND REPROBATE. 4S 1 
 
 937. With respect to terce and courtesy.it is sufficient to say chap, xxvn. 
 that the acceptance of a fixed provision in lieu of either of those whether the 
 ■ liferent rights operates in the same manner as a dischargee of the benefit of un- 
 
 . ~ claimed terce 
 
 liferent, so that the entire estate becomes subject to the purposes enures to the 
 of the disposition. (/) But suppose that the special provision successfully 
 is made parable out of a moveable fund, and that the heir-at-law SSSnfiKx 
 should challenge the settlement as having been executed on death- ca i' Ue lectL 
 bed, would the terce accresce to the fee-simple estate, or would the 
 settlor's trustees he entitled to retain it as in compensation to the 
 fund out of which the special provision was payable ? The analogy 
 of the cases on jus relictce points to the application of the principle 
 of compensation. (>/) 
 
 938. As to the disposal of unclaimed shares of legitim, it is neces- Distinction be- 
 sary to distinguish between the case of a discharge of legitim during discharged and 
 the father's lifetime,whether by antenuptial contract or by acceptance J*^ .ptSS of 
 of a provision inter vivos, and the case of the acceptance of a legacy a tes .tameutary 
 
 . , . *- o ■/ provision. 
 
 iii satisfaction of legitim. The effect of a discharge in the father's 
 lifetime is the same as if the child had predeceased his father; the 
 right lapses, and the benefit of it enures to the other children inter- 
 ested in the legitim fund.(A) " Up to the time of the father's 
 death," said Lord Cottenham in Fisher v. Dixon (the second case 
 reported under that name), " the right of the children to legitim. 
 though spoken of as existing for some purpose, is at most future 
 and subsequent, depending not only upon the amount, if any, of 
 the property, but upon the number of children entitled to partake 
 of it a1 the father's death. But upon that event happening, all con- 
 tingency ceases, and the right becomes present and vested ; so that 
 if the child die before it receives its share, the representatives are 
 entitled to it." (?) 
 
 939. In the same case, it was decided by all the Law Lords on Legitim 
 appeal, in conformity with the opinions of a majority of the judges faiislnto* 
 oi the Courl of Session, thai the acceptance after the father's death jb™ 
 of a provision, declared to be in satisfaction of the Legitim, operated equitable com- 
 
 T |M " ;,,l " n - 
 
 in favour oj the general disponee, and qoI of the children who !-"- /■',■./,.<■ v. /<.. 
 took- themselves to legitim. (A;) In this ease, the question lav be- 
 tween the holders of the legitim fund ami a gen end disponee, who was 
 burdened with provisions in satisfaction of legitim. The principle 
 
 (/ red by Statute Crokat, 29 Feb. 1856, 18 D. 703 ; Martin 
 
 with e peel to terci (1681,c. LO). Bee v. Agnew, 1749, M. 8167 ; M'Gillv.O 
 
 a 8. ford, 1671, M. 8179; Fisher v. Dixon, infra. 
 
 <■/, See Campbell's Trs. \. Campbell, Fisher ■-. Dixon (2d < ; ;:i. 
 
 ./>". \ 940. (k) Fisher v. Dixon, '_' I >. I I:' I. 8 l». 
 
 (h) Eog v. Lashley, 7 Maj 1792,8 Pat. L181, 6 April 1848, 2 Bell, 68, confirming 
 
 HIT. affirming M. 8198 : Lord Panmure v. Henderson v. Henderson, L782, M. 8191. 
 
 VOL. r. 2 h
 
 482 
 
 OF ELECTION, OR APPROBATE AND REPROBATE. 
 
 ('HAT. XXVII 
 
 Application of 
 these rules to 
 jus relictcB. 
 Completes Trs 
 
 v. ( 'tittijihell. 
 
 Children may 
 claim undis- 
 posed-of succes- 
 sion notwith- 
 standing an 
 exclusion of 
 their rights by 
 marriage-settle- 
 ment, etc. 
 
 Unclaimed con- 
 ventional provi- 
 sions fall into 
 residue. 
 
 
 of the decision would obviously apply to a similar question between 
 claimants of legitim and the residuary legatee under a trust-settle- 
 ment. It is an obvious deduction from the principles established 
 by Hog v. Lashley and Fisher v. Dixon, that a discharge of legitim 
 by all the children operates in favour of the residuary legatee or 
 next of kin alone, if made after the father's death ; but if before, 
 then in favour of the widow jointly with these parties, the division 
 of the succession being in that case bipartite. 
 
 940. It was formerly held (in Andrews v. Sawer) that the effect 
 of the acceptance by a widow, after her husband's death, of a spe- 
 cial provision in lieu of jus relictce, was to subject the estate to a 
 bipartite division, so that the benefit of the lapsed interest should 
 accrue jointly to the legitim fund and to the dead's part. (7) But 
 the observations of the Law Lords in Fisher v. Dixon, (m) to the 
 effect that Andrews v. Sawer was inconsistent with the principle of 
 Henderson v. Henderson, upon which they proceeded, have virtually 
 overruled the case of Andrews v. Sawer; and it has since been so- 
 lemnly decided that a discharge of jus relictce after the death of the 
 head of the family has no effect upon the legitim, but operates ex- 
 clusively in favour of the residue or other fund charged with the 
 special provision, (n) 
 
 941. Though a father of a family, after providing for his wife 
 and children, should declare that their portions shall be accepted 
 by them in satisfaction of legitim, jus relictce, and all other claims, 
 yet if he die intestate as to the whole (o) or a part of his heritable 
 or moveable succession, the children are nevertheless entitled, as 
 his representatives, to claim that part of the moveable estate of 
 which he did not dispose ; the eldest son being, on the same prin- 
 ciple, entitled to claim all undisposed-of heritage. ( p) 
 
 942. (2) The result of the authorities is, that the benefit of a 
 forfeited legal provision enures to the fund burdened with the con- 
 ventional provision, usually the residue, or if that be undisposed of, 
 then to the testator's legal representatives. It will be seen that 
 the result is precisely similar in the case of a bequest being forfeited 
 in consequence of the legatee claiming his legal provisions. In 
 this case also the residuary legatee is entitled to the resulting in- 
 terest, on principles which have been explained in treating of be- 
 quests of residue, (q) 
 
 (I) Andrews v. Sawer, 2 March 1836, 14 
 Sh. 589. 
 
 (m) Fisher v. Dixon, 2 Bell, 75- 78. 
 
 (n) Campbell's Trs. v. Campbell, 15 July 
 18(52. 24 D. 1821. 
 
 (o) Wilson v. Gibson, 30 June 1840, 2 D. 
 
 1236; MaitlandY. Maitland, 14 Dec. 1843, 
 6 D. 244. 
 
 (p) Blachvood v. Dykes. 26 Feb. 1833, 
 11 Sh. 443 ; Sinclair v. Traill, 27 Feb. 1840, 
 2 D. 694; Stoddart v. Thomson, 1734, E . 
 " Succession," No. 1. 
 
 (q) Chapter 22, section 3.
 
 OF ELECTION, Oil APPROBATE AND REPROBATE. 483 
 
 943. The leading case is that of the Marquis of Breadalbane's qhap. xxvh. 
 
 Trs. v. Lady E. Piringle(r), a decision of great authority, from the /;,., „,/„//,„„/,, 
 ' eminence of the judges who took part in it. The testator directed Trs - y - Pringle. 
 that his trustees should "annually pay over the free rents of his 
 unentailed lands to my two daughters, Lady Elizabeth Campbell 
 (afterwards Pringle), and Mary, Marchioness of Chandos, equally 
 between them, while both should be in life, and to the survivor, 
 and should continue to do the same as long as both or either of 
 them should be alive." The second daughter, afterwards Duchess 
 of Buckingham, claimed her legitim, contrary to the purpose and 
 scope of the settlement ; and the decision of the Court was, " that 
 the interest of Lady Elizabeth Pringle in the rents of the unentailed 
 estates is not enlarged by the forfeiture which the Duchess of Buck- 
 ingham has incurred, but that such forfeiture operates during the 
 lifetime of the Duchess of Buckingham, in favour of the trustees of 
 the late Marquis of Breadalbane."(s) 
 
 944. The subsequent decision in Annandalex. M'Niven(t) is not Annandaier. 
 
 . M'Niven. 
 
 inconsistent with that in the Breadalhaitv case. The testator gave 
 
 his widow a liferent of the whole estate in lieu of terce and jus re- 
 lictce; and appointed his trustees at her death, in case of a failure of 
 issue (which happened), to divide the residuary estate amongst cer- 
 tain collateral relatives. The widow claimed her legal provisions. 
 The Court awarded the surplus liferent interest to the residuary 
 legatees, and decreed for an immediate division. (u) 
 
 945. Sometimes a legatee is under the necessity of electing be- Generality of 
 
 . . -I , . . the application 
 
 tween a marriage-contract provision and a testamentary provision f the doctrine 
 given in satisfaction of it. Here also the general rule is applied ; compen.sat'i. p 
 and in whatever way the right of election is exercised, the person 
 who- interest is diminished by the election is entitled to be com- 
 pensated out of the reject* d provision. (a?) This principle is exem- 
 plified by a case where the heir incurred a forfeiture of a bequest of 
 a share of residue, in consequence of Ins having succeeded in re- 
 ducing the settlement as a disposition of heritage on the head of 
 deathbed. In this case, it was found that the forfeited share ac- 
 ed to the interest of the co-residuary legatees, on the ground 
 
 (r) B ■" ' ingle, L5 Jan. 69. tn the pn enl cose there could be no 
 
 1841, 8D.367; M'Innea v. M'Allitter, 29 doubt, becausi the only element of contin- 
 
 Jnne ]*'2~. ~> Sh. 862, \. E. 801 ; Peat v. gi qcj in th< deal tion had been removed 
 
 Peat, 11 Feb. 1889, 1 D. 508, by the death of thi children. 
 
 8 D. 866. The m< n of the widow's life- 
 
 I ■ j. M'Niven, 9 Jane 1847, rent, he had accepted, wi 
 
 9 D. 1201. not 1 ated the fee froi i 
 
 (h) (in the que tion whether the 'lis- H Trs. ••. Uarvey't T. 80 
 
 burden entitles the Jan. 1862, 1 Macph. 846; and D 
 
 • m immediate division, see chap v. Fither, 1 July is.:::, o W. & S, l ; l 
 
 2 h 2
 
 |St OF ELECTION, OR APPROBATE AND REPROBATE. 
 
 ohap.xxvii. that their interest was diminished by the transference of the herit- 
 able estate to the heir.(//) 
 Erroneous exer- 946. In conclusion, we may refer to a recent decision in which 
 ^';; ;;| i"^; 1 ' effect was given to the principle, that if a party, erroneously sup- 
 disponee to bis posing himself to have a power of appointment over the property of 
 another, disposes of it by will, his legatees, who repudiate the ap- 
 pointment, are not thereby put to their election with regard to the 
 testamentary provisions in their favour. The distinction was taken 
 in this case, that the testator did not know that he was disposing 
 of that which was not within his power; for if he had known, the 
 case would have come within the rule of res aliena scienter legata.{z) 
 
 {y) Nisbefs Trs. v. Nisbet, 5 Dec. 1851, (z) Douglas v. Douglas, 20 June 1862, 24 
 
 14 D. 145. D. 1191.
 
 DOCTRINE OF LAPSE. IS.") 
 
 <"HAP. XXVIII. 
 
 CHAPTER XXVIII. 
 DOCTRINE OF LAPSE. 
 
 947. " When," says Erskine, " a legatee dies before the testator, Doctrine stated 
 the legacy is not transmitted to the legatee's executors ; both be- y 
 
 cause legacies are granted for the testator's special regard to the 
 legatee himself, and because they do not become due — dies non 
 cedit — until the death of the testator ; and nothing can pass from 
 one to his heir or executor till it be due to himself. On this 
 ground, a conditional legacy falls if the legatee die before the con- 
 dition be fulfilled." A legacy cannot vest during the life of the 
 testator, because his settlement is ambulatory and revocable ; a 
 provision by deed may vest as soon as the grantee acquires an in- 
 defeasible interest by delivery of the deed. (a) It is unnecessary 
 to adduce illustrations of the general rule, that testamentary provi- 
 sions are personal to the grantee, or to enter at length upon the 
 reasons upon which it is founded. 
 
 948. The recent case of Cooper's Trustees v. M<<<1:< n:de (b) affords Poetrine nius- 
 uii example of the application of the doctrine under somewhat ex- B iegacyto 
 ceptional circumstances. The testator having been at one time c ors " 
 insolvent, left a settlement in which lie directed his trustees to re- 
 imburse ln's creditors (in terms of a list of liabilities) for the losses 
 
 they had sustained through his insolvency. It having been found 
 in a previous action thai the intention of the testator ought to be 
 carried into effect, the creditors, l>y a minuti of agreement, divided 
 the property amongsl them in proportion to their debts, and. inter 
 <il in. allocated a dividend to the children of two creditors El. and M., 
 who had predeceased the testator. An action having been raised 
 by a creditor of R. and M. againsl the children, as representing 
 their parents to th^ extent of the dividend in question, ii was found 
 
 I 8, 9, 9, citing Dig. lib. 86, withii ption of person who would 
 
 nt. 2, 1. •".. \ 1; Di eod. tit. 1.26, pr.; 1"- entitled ler tin- condition 
 
 18. Accordingly, in all the liberia; Hamilton?. Hamilton, 8 Feb. U 
 
 n which a cl iim ha I" i □ made on 16 Me 478. 
 behalf of !• in tituted, the (6) ' ! '' : 
 
 bei ii to hi ing tl laimanl I860, 22 I
 
 486 
 
 DOCTRINE OF LAPSE. 
 
 I'UAl'. XXVIII. 
 
 tlon lu 
 
 Distiucti 
 
 tht case of mar 
 
 riage-contract 
 
 provisions: 
 
 and irrevocable 
 provisions inter 
 
 that the fund destined to creditors was to be regarded as a legacy ; 
 that the shares of R. and M. had lapsed by predecease; and conse- 
 quently, that the sums of money received by their children under 
 the minute of a greement were not takenin the character of repre- 
 sentatives of their deceased parents, but solely in right of the agree- 
 ment. 
 
 949. Grantees under an antenuptial marriage-contract acquire 
 a vested right to their provisions from the date of the marriage, or, 
 in the case of children, from the date of birth ; and although where 
 such provisions are payable at the father s death, they are of the na- 
 ture of spes successionis in questions with creditors, (c) yet, as they 
 constitute a preferable claim against the surplus estate after pay- 
 ment of debts, they are commonly said to vest in the children from 
 birth. It may be doubted, however, whether an ordinary marriage- 
 contract provision in favour of children, could be assigned during 
 the lifetime of the parent. Where a jus crediti is created by mar- 
 riage-contract, as, for example, by an obligation prestable at, or 
 bearing interest from a date which may arrive during the father's 
 lifetime, (d) the right so conferred vests at the birth of the child, 
 and is not suspended until the occurrence of the period of pay- 
 ment, (e) As it has been decided that children on whom a jus 
 crediti has been conferred by marriage-contract are entitled to rank 
 on the father's estate for their provisions, it follows that rights of 
 this description are assignable either by will or deed inter vivos in 
 the father's lifetime, as was indeed expressly found in the case of 
 Burden v. Smith.(f) 
 
 950. Obligatory provisions constituted by deed inter vivos are 
 assignable, notwithstanding that the period of payment is postponed 
 to the death of the granter. This point was decided in the case of 
 Greig v. Moodie,{g) where a father, in implement of an antecedent 
 agreement, disponed his heritable property absolutely to his eldest 
 son, who was infeft, under burden of a certain provision in favour 
 of his sister. The lady predeceased her father, having conveyed 
 her interest to her husband, by deed of settlement. The Court 
 gave effect to her settlement, being of opinion that the constitution 
 of the provision in the manner described gave an immediate inter- 
 est which did not depend on her survivance of the term of pay- 
 ment. 
 
 (c) Goddard v. Stewart, 9 Mar. 1844, 6 
 D. 1018. 
 
 (of) See Grindlay v. Merchant Maiden 
 Hospital, 1 July 1814, F.C. 
 
 (e) Jolly v. Graham,2± Feb. 1824, 2 Sh. 
 
 730, N. E. 611 ; Cruickshank's Trs. v. Cn/ick- 
 shank, 2 Nov. 1853, 16 D. 7. 
 
 CO Burden v. Smith, 27 April 1738, 1 
 Pat. 214. 
 
 (g) 30 Nov. 1839. 2 D. 169.] [Bui see 
 Car stair? v. Carstairs, 1672, M. 2992.
 
 DOCTRINE OF LAPSE. L87 
 
 951. A destination to the legatee's assignees is, by a rule of eon- niAr. xxvm. 
 struetion depending on general principles, restricted to assignees Iv . . 
 
 . ° . ° r r J O | i, nnatidii to 
 
 after the period of vesting. For the recognition of assignations of "heirs and 
 prior date would involve the contradictory assumption that the not create an 
 legacy was, at the date of the assignation, a vested right in the per- teSmta" 1 " 
 son of the cedent. In the case of Graham v. Hope, there was a ^ thoftes " 
 destination of a sum of £2000 to a husband and wife in joint fee 
 and liferent, for the liferent use only of the wife in case of her sur- 
 vivance, and to the husband, his heirs and assignees, in fee. The 
 husband predeceased the testator, and left all his property to his 
 brother, avIio claimed the fee of the above sum of £2000 as condi- 
 tional institute under the destination to heirs and assignees. But 
 the claim was rejected by the Court, on the ground that the assig- 
 nation could only take effect when the legacy became vested in the 
 legatee, (h) Nor can a power of disposal conferred upon a life- 
 renter be exercised by deed until the liferent has vested ;(i) but an 
 appointment by will, executed prior to the period of vesting, will be 
 sustained if the appointor survive that period, on the principle that 
 his will speaks from the last moment of life. (A*) 
 
 952. In the case of Belly. Cheape,(T) a residuary bequest was bm v. cheape. 
 given to a party in liferent and her children in fee, and in the event 
 of her death without issue, — thus suspending the vesting till the ex- 
 piration of the liferent, — the trustees were directed to pay and 
 make over the fee to another party, "her heirs, executors, or assig- 
 nees." The question was, whether an assignation could be sus- 
 tained, which was executed by the conditional institute after the 
 death of the truster, but before the expiration of the liferent? A 
 majority of the whole judges were of opinion that the assignation 
 was ineffectual to exclude the heirs of the cedent, holding, on the 
 authority of the previous cases, that the introduction of the wind 
 _nees in the destination was merely a matter of style, and could 
 ii"t have the effect of rendering a contingent right assignable. The 
 seems to have been decided entirely upon authority; for, as 
 Lord Fullerton observed, it the question bad been open, the most 
 natural and obvious reading of a bequest in such terms would be, 
 that though it does nol vesl a right of succession in the liar until 
 the period of payment arrives, it imports the conditional institution 
 ol hi- representatives, whether bj testate or intestate succession; 
 
 (h) Graham v. Hope, 17 I'M.. 1 hot, M. (/c) Uyalop \. Maxwell' t /'/«.. II Feb. 
 
 .." App. N Burden v. is:; I. 12 Sh. II:; 
 
 8mit ! I. / Bell \ Cheape, 21 Maj 1846, 7 I' 
 
 // i , Grant, 1*' Feb 1824, 2 SI,. <. i l
 
 •t s S DOCTRINE OF LAPSE. 
 
 chap, xxvn i. the word "executors" applying to the former case, and that of 
 
 "assignees" to the latter.(m) 
 [n legacies given 953. In the construction of legacies bequeathed by mutual 
 
 under mutual . n 
 
 settlements, settlement, it was formerly held that the legatee took an absolute 
 legateemust vested interest in the whole subject upon the death of either of the 
 testators both ''' J"' nt &onoTs,(n) on the principle that a mutual settlement is oner- 
 ous, and only revocable by mutual consent. The doctrine was re- 
 cognised in the leading case of Lawson v. Steivart,(o) though it 
 was held not to apply in that case in consequence of a special de- 
 claration in the mutual settlement, that in the event of any of the 
 legatees predeceasing the survivor of the granters of the settlement, 
 the legacies Should fall and belong to their executors or next of 
 kin. The House of Lords were advised that those words expressed 
 a qualification of the interest previously conferred on the legatees, 
 and imported a conditional institution of executors in the event of 
 the legatee not surviving both the testators, the vesting of the be- 
 quest being thus suspended until the death of the survivor, (p) The 
 more recent cases of Belfrage and of Wilsone's Tr.,(q) where the 
 survivors of the parties to mutual settlements were held entitled to 
 revoke, turned entirely on the terms of the power of revocation. 
 WfZ^'rr 954. Miller v. Milne's Trustees is a case somewhat special in its 
 
 Milne n Irs. > 1 
 
 circumstances. A married lady wrote and delivered to a friend a 
 letter bearing, that " upon presenting this letter after the death of 
 Mr M. and myself, you shall be entitled to a couple of hunder pond 
 at the first term after our death, and if I shall survive Mr M., upon 
 presenting this you shall be entitled to demand four hunder in 
 place of two." The grantee survived the husband, but died in the 
 lifetime of the wife. It was clear, from the terms of the letter, if 
 the law of legacies were applicable, that there was no jus exigendi, 
 and therefore no vested interest, until after the death of both 
 spouses. But the Court were divided in opinion on the question 
 whether the letter constituted a legacy, or was not rather (being a 
 delivered document) to be regarded as a xiostponed obligation. Ul- 
 timately, by a large majority of the whole judges, it was decided 
 that the provision was personal to the legatee, and lapsed by his 
 predecease, (r) 
 
 (m) 7 D. 634. See Clark v. Paterson, 5 (p) 2 W. & S. C36. 
 
 Dec. 1851, 14 D. 141. (q) Wilsone's Trs. v. Stirling, supra; Bel- 
 
 (n) Nicolson v. Ramsay, 16 Dec. 1806, frage v. Davidson, 20 June 1862; 24 D. 
 
 M. :i Legacy," App. No. 2 ; Dykes v. Boyd, 1132. 
 
 3 June 1813, F.O. But see Wilsone's Trs. (r) Miller v. Milne's Trs., 3 Feb. 1859, 
 
 v. Stirling, 13 Dec. 1861, 24 D. 163. 21 D. 377. 
 
 (o) Lawson v. Stewart, 20 June 1827, 2 
 W. & S. 625, affirming 4 Sh. 384, N. E. 386.
 
 DOCTRINE OF LAPSE. 489 
 
 955. The doctrine of lapse is properly extended to the case of chap. xxvm. 
 cies given to take effect upon a contingency. Thus, if a legacy Estension 
 
 be given to A., whom failing to B. on his attaining the age of majo- doctrine to con- 
 rity; it A. dies in the lifetime of the testator, and B. does not attain tmgen 
 majority, a lapse occurs although B. survives the testator.(s) Where, 
 on the contrary, an interest is given subject to be determined upon 
 
 ntingent event, the right of the legatee vests at the death of 
 the testator for the whole period then to run, and passes to his 
 
 iitors, in the event of his dying before the termination of his 
 interest, (t) 
 
 956. Again, it is obvious that if A. survive B., and bequeath a Legacy by a. to 
 fund to be applied to the uses of B.'s will, a legatee under B.'s will usesofwiUofB - 
 must also survive A., in order to be able to take under A.'s will.(«) 
 
 957. Where a legacy is given to a plurality of persons in terms Legacies toa 
 which import a joint-destination, no lapse can occur unless <>/? the XZ'A l ^'T 
 objects die i u the testator's lifetime; for if only one survive, he ^J e cte?urvive. 
 will take the whole fund jure accrescionis.(x) The result is the 
 
 same where the bequest is to a fluctuating class of persons, who, 
 by the rules of construction, are to he ascertained at the death of 
 the testator, or ;it a subsequenl period.(y) 
 
 958. A legacy may also he prevented from lapsing, or falling Effect of condi- 
 into residue, by means of a conditional institution of the heirs or £ pfe™nfog i0n 
 children of the legatee, and such a conditional institution may |„- !'- : 'i- vfrum ° 
 
 . - lapsing. 
 
 given (though it is not always implied) by the common destination 
 to heirs and assignees. (z) But it is needless further to anticipate 
 what is said in subsequenl chapters upon this and the cognate sub- 
 jecl of implied institution under the condition si sine liberis deces- 
 8erit.(a) A conditional institution of heirs, or children, it is to be 
 observed, always presupposes thai the ancestor, or father, is him- 
 Belf instituted in the evenl <>\ bis surviving the testator; hut in the 
 of ;i legacy to a class of persons, and their heirs or issue, there 
 may have been members oi the class who ceased to exisl before the 
 date oi the execution of the will, and who are therefore held not to 
 be instituted. In such a caseth* re can 1m- qo conditional institution, 
 
 (*) l - /' iald, 26 March (x) Infra, chapter 40, Bection 1 (Sur- 
 
 iMacph. 922; Horn v. Home, l v n;. rivorahip in Joint tione). 
 
 Irbuthnot, 1816, Ibid. 
 
 Remembrai iham \. Hope, isuT, M. " I. 
 
 :; l M ij 1882 1" I App. No. :; ; Sutlit \. Sultt 19 
 
 Hill \. Hill I ' 186! I I - Donald /' . \. Donald, 26 
 
 i. 12. Mar. 1864, -J Macph. 922. See chapb 
 
 brugh v. // I March (Destination ol Movi I tat 
 
 1848, i" I 1 B24 II ' the distinction i ■ explaim d. 
 I.. J. i'l.-
 
 490 
 
 DOCTRINE OF LAPSE. 
 
 CUM-, xxviii. and the heirs of such deceased members, accordingly, do not take 
 
 anything under the will.(6) 
 Whether legacy 959. Where estate is disponed to an individual or to trustees for 
 specie estate his behoof, burdened with the payment of a legacy of heritage, or 
 aii. cu.iby laps- orc |j mu .y legacy or annuity, the legacy or annuity is not affected by 
 specific disposi- (} 10 l a p Se of the disposition on which it is charged.(c) In the con- 
 verse case, namely, where the person for whom the provision is 
 made dies in the testator's lifetime, it is more difficult to determine 
 the conflicting claims of the disponee and the heir-at-law to the re- 
 sulting interest. Some observations on the subject will be found 
 in a subsequent chapter. (d) 
 Death of tes- 960. The application of the doctrine of lapse to practice involves, 
 
 tee-s 'su"viTOnc"e: as a preliminary consideration, the determination of two matters of 
 ta° -W d SCer " ^ act ' name ly> (1) whether the death of the testator is established as 
 a fact; and (2), whether it is established that he was survived by 
 the legatee, and (in some cases) whether the legatee survived some 
 ulterior event on which the succession is contingent. This subject 
 also is elsewhere considered, (e) 
 
 (b) Sturrock v. Binny, 29 Nov. 1843, 6 
 O. 117 ; Black v. Valentine, 17 Feb. 1844, 
 6 D. 689; Rhind's Trs. v. Leith, 5 Dec. 
 1866, 5 Macph. 104. 
 
 (c) Wyllie v. Ross, 12 Nov. 1825, 4 Sh. 
 172, N. E. 174 ; Oke v. Heath, 1 Ves. 135. 
 The donee of a power of appointment ap- 
 pointed a part of the fund to A., subject to 
 an annuity to A.'s mother, and gave the 
 residue of the fund to B. A. predeceased 
 the granter, yet his mother was held en- 
 titled to her annuity out of the fund, the 
 whole of which (minus the annuity) devolv- 
 ed, under the appointment, to B. But see 
 
 Moncrieffv. Skene, 29 June 1825. 1 W. & S. 
 672 (2d point). 
 
 (d) Chapter 48, section 1 (Resulting 
 Trusts). 
 
 (e) Chapter 3 (Opening of the Succes- 
 sion by Survivance). In a question as to 
 succession-duty, it is held that the succes- 
 sion opens upon the occurrence of the 
 event on which the right of the succession 
 is made to depend, although payment is 
 not received until a later period ; Lord Ad- 
 vocate v. Earl of Fife, 11 Dec. 1866, 5 
 Macph. 139.
 
 OF WILLS AND TESTAMENTARY DISPOSITIONS. 4'jl 
 
 CHAP. XXIX. 
 
 CHAPTER XXIX. 
 
 OF WILLS AND TESTAMENTARY DISPOSITIONS OF 
 HERITABLE ESTATE AND OF SUBSTITUTIONS. («) 
 
 I. Generalities, i III. Substitutions, how evacuated. 
 
 II. Hetr-substitute, whether taking as Dis- i 
 ponee or as Heir of Provision. ' 
 
 SECTION I. 
 GENERALIT1KS. 
 
 961. The most usual mode of constituting a testamentary settle- How a settle- 
 ment uf land is by a direct disposition to the person to whom the Sions^cou- 
 estate is to be granted, with a substitution or substitutions to other stituted - 
 heirs, in the order in which they are intended to take. The same ob- 
 
 jecl may be accomplished by embodying the destination in a char- 
 ter from the superior, being a new investiture. In the case of set- 
 tlements of mixed heritable and moveable estate, it is not unusual 
 to include the whole in one disposition to trustees, who are directed 
 to execute a conveyance of the heritable estate, or of the residue 
 after fulfilment of the primary purposes of the trust, in favour of 
 the heir or heirs pointed oul by the settlement. (6) 
 
 962. Settlements of heritnl >]< ■ estate arc cither general or spe- General ami 
 
 ciaL The former are necessarily in the form of a disposition; the K^Bfiii. 
 latter mosl usually assume the same form, but are sometimes made """■""' \" ■'■';>- 
 in the form of a procuratory of resignation, (c) It is sufficienl thai of alteration and 
 
 .1 • ,ii i i T • , • i-- nominations of 
 
 tip- estate is once tor all conveyed away by a disposition ; and it is i 
 not necessary, either in the exercise of the ordinary power of altera- 
 
 (<i) In this work: thi word Will i ap- I ence to the validity of et 
 
 plied indifferently t'> testamentary dispo- tlementa in this form, when granted bj a 
 
 ritions of every description. Will ii a proprietor uninl ft R tfonv.Anstruther, 
 
 I is not to be confounded 16 Sh. 184, opinions on remit from H. L. 
 
 in meaning with talament, which (accord- Tl July 1842, 6 D. 280; affirmed 18 Aug. 
 
 our municipal law) U applicable 1848, 2 Bell, 214. Be< also Stair, 8, 2 
 
 only to wills of moveabli orpei ■■■ 2Ro I 270. 
 
 6 65 (1 
 
 eution
 
 492 OF WILLS AND TESTAMENTARY DISPOSITIONS OF 
 
 ohaptbb xxix. tion, or under a reserved power to nominate heirs, that a deed of 
 alteration of the succession should be expressed in dispositive lan- 
 guage, (d) This observation must be understood to be confined to 
 proper deeds of alteration, capable of being read as part of the ori- 
 ginal settlement ; for if the granter of the deed of alteration begin 
 by destroying the disposition contained in the original settlement, 
 he must make a new dispositive grant to support the new destina- 
 tion, (e) In the construction of an ordinary destination to heirs, 
 the dispositive words are held to be applied provisionally to the 
 whole of the heirs-substitute, including those who may come in 
 under clauses of devolution or powers of appointment ; and it is 
 therefore unnecessary to repeat the word dispone in subsequent 
 clauses or deeds of appointment. (/) Clauses of devolution usually 
 declare that in the event specified the estate shall " fall and de- 
 volve" to the persons named or designed. Nominations of heirs 
 are made by the use of the words " nominate and appoint." 
 
 Dispositive lan- 963. It is scarcely necessary to add that testamentary phrase- 
 
 guage essential ■, , -,».. . ,. , ,, . , . 
 
 in settlements of ology {e.g., words of giving, granting, legating, or bequeathing) is 
 Exceptions. wholly ineffectual for the purpose of disposing of heritable estate 
 intuitu mortis, (g) And it is immaterial that the testament is framed 
 and executed in a country in which real estate is disposable by will 
 according to the local law ; for, in relation to settlements of real es- 
 tate, the lex loci rei sitae is paramount, ill) With regard to testament- 
 ary bequests of heritable estate in codicils or informal writings, it 
 may be asserted as a general rule, that if the estate in question is 
 already conveyed away by trust-disposition, and if the codicil is sus- 
 ceptible of being construed as a direction to trustees to convey m 
 terms of it, the codicil will be effectual. (/) But it is understood 
 that a settlement by way of direct disposition can only be altered 
 by a new dispositive conveyance, or by a regular deed of alteration 
 bearing reference to the settlement, and incorporating the new 
 destination with it. (Je) Words of provision in marriage-contracts, 
 
 (d) See chapter 13 (Revocation). Infra, M. "Service of Heirs,'' App. No. 1 ; Ross 
 § 903. v. Ross's Trs., 4 July 1809, F.C. ; Govern 
 
 (e) But the revocation of the appoint- v. Seton, 28 Jan. 1812, F.C; and cases in 
 ment of trustees does not import the de- Mor. voce " Foreign,"' Div. 6 (pp. 4481- 
 struction of the conveyance ; Kidd v. Kidd, 4493). 
 
 9 June 1843, 5 D. 1187; Edinr. Royal (i) Panton v. Gillies, 22 Jan. 1824, 2 
 
 Infirmary v. Lord Advocate, 28 June 1861, Sh. 632, N. E. 536 Barclay v. Griffiths, 
 
 23 D. 1213. 4 March 1830, 8 Sh. 632 ; Cameron v. 
 
 (/) Bell's Pr. § 1093. Mackie, 9 Sh. 601 ; affirmed 29 Aug. 1833, 
 
 iff) Stair, 3, 4, 31; Ersk. 3, 8, 20; 7 W. & S. 106; Ballantyne v. Mags, of Ayr, 
 
 Brand v. Brand, 1735, M. 15,941 ; Stewart 17 Jan. 1838, 16 Sh. 325; Richmond's Trs. 
 
 v. Stewart, 1803, 1 Sandford, " Heritable v. Winton, 25 Nov. 1864, 3 Macph. 95. 
 
 Succession," 63. (A) Henderson v. Henderson's Crs., 1760, 
 
 (h) Snodgrass v. Buchanan, 16 Dec. 1806, M. 4141 ; Stewart v. Baillie, 27 Jan. 1841,
 
 HERITABLE ESTATE AND OF SUBSTITUTIONS. 403 
 
 though insufficient to transfer the heritable estate, are effectual ob- chapter xxix. 
 ligatione to found an action of implement against the heir. (7) It 
 will not invalidate the settlement as a conveyance of heritage that 
 it is drawn in the form of a testament, if words of de prcesenti con- 
 veyance are used.(m) 
 
 964. The right of the heir-at-law can only be excluded by effec- Effect of revo- 
 tually substituting another in his place, mere words of disinherison Enable del- 0< 
 being of no effect. («) A settlor may, however, disinherit his testa- tiuation - 
 mentary heirs by simply revoking the provisions in their favour. 
 
 the effect of which is to revive the right of the heirs under a prior 
 destination not revoked, (o) or of the heir-at-law where there is no 
 such prior settlement. 
 
 965. A testamentary disposition to an individual by name, as Substitutions 
 institute, without mention of heirs, vests the fee in the disponee, if oShdreof* 1 
 he survive the settlor. A substitution to an individual, without ve ?T nomi " 
 
 ' nateu. 
 
 mention of his heirs, is effectual if the substitute survive the grander 
 and the heir previously named, and also obtain himself served heir of 
 provision. To prevent the lapsing of the succession by predecease, 
 it is usual to insert a destination to the heirs of the body or other 
 heirs of the disponee, even where the maker of the settlement is 
 indifferent as to the regulation of the future succession. 
 
 966. The effect of a destination in the ordinary form to persons Destinations of 
 in succession is different according as the subject of the conveyance \^\yt 
 
 i- heritable or moveable estate. A destination of heritable estate s,i "; t1 '' ." ' , !". 1 
 
 conditional ni- 
 
 to a plurality of persons in succession imports a substitution of each stitution; of 
 r ii i i • i , ,i i . . moveable i tate, 
 
 oi the persons named or designed to those to whom a prior interest the latter only, 
 is given, and in whom the estate may vest.(_p) A substitution, 
 moreover, includes a conditional institution in the same character 
 in the -vent of the substitutes previously nann 'I and designed pre- 
 deceasing the settlor. (7) In the ease of legacies (/■) and dispositions 
 of mixed succession,(s) a similar nomination of persons in succes- 
 
 8 l». 463 ; 1 Sandford, " Hi ritable S :e cuti d on deathbed ; A'< r v. Erskine, 16 Jan. 
 
 ■ion," 75, 76. 1851, 18 I>. 492. 
 
 fiettfv. Young, 25 Jan. 1838, 16 Sh. 8,8,44; Bell's Pr. § 1698. 
 
 C/) See "ii this poinl the cases of Col- 
 
 Douglas v. Allan, 17::::. M. 15,940; quhoun and Fogo, cited infra, sect. 2, and 
 
 B /■ 1770, M.5440; Welsh v. Grant's Trs. v. Grant, 2 July 1862, 24 D. 
 
 28 June 1809, F.O. ; Glover \. Vi\ I. 
 <h, 7 Dec. 1810, i (r) Christie v. Christie, L681, M. 8197; 
 
 /■' - /■ 177ii. ,\[. 6019; Stod- Campbell v. Campbell, 1740, M. M- 
 
 /' 1784, Elch. "Succession," Brown v. Coventry, 1792, .M. 1 1,868. 
 
 No. I ; Blackwood v. Dykes, 26 Feb. 1- (s) Greig v. Johnston, 9 Sh. 806 ; affirmed 
 
 11 Sh. 148. 1 July 1888, 6 W. & S. 406; Allan \. 
 
 ition). Such Fleming, 20 June 1845, 7 D. 908 ; S 
 
 d.however, lude son v. Hamilton, 29 Jan. 1858, 20 D. 478. 
 
 the heir, if the lecond r< vocation be •
 
 Ill ( OF WILLS AND TESTAMENTARY DISPOSITIONS OF 
 
 ohapteb wix. sion imports in general only a conditional institution, that is, a gift 
 to the substituted legatees contingent on the event of the death of 
 those previously named before the succession accrues. To raise 
 such a destination to a substitution it must be clearly expressed 
 that the legatees are intended to take the property in succession to 
 one another. And, conversely, a destination of heritable estate will 
 not be restricted in construction to a conditional institution except 
 on clear evidence of intention that it should be so restricted, (t) 
 Force and pfYect 967. Substitution in heritable destinations is indicated by the 
 :iZS^ Snb ' words "and," "and to," "whom failing, to." The alternation of 
 to"^rfiom d these connecting words serves to mark the transition from the 
 failing." subordinate to* the principal branches of the destination, or the con- 
 
 verse, in a manner sufficient for the expression of the most compli- 
 cated destinations. Contingent destinations, interrupting the re- 
 gular course of the succession, must be introduced separately, by 
 appropriate clauses of devolution, specifying the events in which 
 they are to take effect. The proper use of the word " and" in con- 
 tradistinction to " whom failing" is a matter of some importance ; 
 " and" being properly used only to connect a destination to heirs 
 with the name of the individual from whom the succession is to be 
 traced,^) not to introduce a distinct nomination or line of heirs.(» 
 The recurrence of the word " and" indicates a distributive destina- 
 tion, as in the form " To A. B. and his heirs-male, and to the 
 heirs whatsoever of .the said heirs-male," where the heirs named in 
 the second clause are held to be substituted to each individual heir- 
 male as the succession opens to him.fj/) 
 Relations of the 968. This chapter is strictly limited to the consideration of the 
 tira in heritage" law of heritable destinations in its most general relations, embracing 
 ?the gen r erai rtS such questions only as may arise upon any destination. Considered 
 subject i n a ii lts relations, the law of destinations opens up a vast and in- 
 
 tricate area of research, which is nearly co-extensive with the law 
 of succession. One topic which might with propriety have been in- 
 troduced here — the question what constitutes a Tailzied Destination 
 — has been reserved for discussion in connection with the law of en- 
 tail. (2) The construction of destinations is discussed in a series of 
 chapters in a subsequent part of the volume, to which, with the 
 
 (t) See cases cited in last note. failing ;" Young s Trs. v. Young, 19 July 
 
 (w) Grant v. Gunn's Trs., 28 Feb. 1833, .1867, 5 Macph. 1101. 
 
 11 Sh. 484. (y) Lockhart v. Macdonald, 15 Sh. 376 ; 
 
 (x) A destination to the granter himself on remit from H. L. 24 Jan. 1840, 2 D. 
 
 and certain individuals named was notwith- 377 ; affirmed 15 March 1842, 1 Bell, 202 ; 
 
 standing held to import a substitution in Johnstone v. Johnstone, 19 Nov. 1829, 2 D. 
 
 favour of those named after the granter, 73 ; Earl of Eglinton v. Mantgomerie, 22 
 
 the word " and" being read as " whom Jan. 1842, 4 D. 425. 
 
 (z) Chapter 31. sect. 2.
 
 HERITABLE ESTATE AND OF SUBSTITUTIONS. 495 
 
 concluding chapters on the Law of Vesting, the reader is referred chapter xxix. 
 for the special law of the subject. (a) Two general questions re- 
 lating to the constitution and extinction of the right of the heir, 
 may find an appropriate, place in this introductory view, and to 
 these our attention will now be directed. 
 
 SECTION II. 
 
 HEIR-SUBSTITUTE. WHETHER TAKING AS DISPONEE OR AS HEIR 
 OF PROVISION. 
 
 969. The distinction suggested by the title of this section is Meaning and 
 chiefly important in relation to the completion of titles under deeds distinction. 6 
 of destination. Where the heir-substitute succeeds to the estate as 
 
 heir of provision, he must complete his title as an heir, that is, 
 either by service and infeftment, or by entry with the superior 
 under a precept of dare constat. "Where the succession is taken in 
 the character of disponee or institute, the estate is transferred by 
 the disposition, and no service or proceeding in the nature of aditio 
 h<> rut [lulls is requisite either to vest the right or to complete the 
 title. 
 
 970. In any inquiry as to the mode of making up a title under Heir, though 
 an entail or deed of destination, the question to be considered is not rtitute^ytake 
 a- to the character in which the heir is called to the succession but asa dis P onee - 
 
 i the character in which he takes the estate. Every person 
 named in a destination, except the first, is called as a substitute. 
 But a substitution includes a conditional institution of the same in- 
 dividual in the c\viit of the persons previously named in the desti- 
 nation predeceasing the .-ranter. Tin's principle was evidently over- 
 looked in some of the earlier cases, and its non-recognition led Mr 
 Sandford(ft) into the mistake of condemning the principle of de- 
 cision in the cases of Colquhoun and Fogo, — cases which have since 
 universally approved, and which have \>vy materially simpli- 
 fied tin's branch of the law of succession. 
 
 971. The simplest case is thai where the granter dispones to where granter 
 himself, whom failing, to a series of heirs-substitute. Here the £n 
 -ranter is the institute, and his righl vests immediately. The li< ir ,■/,".,':;, . 
 
 entitled to succeed under the destination will, accordingly, in h 
 
 . . . ° " ' ol provision. 
 
 tins case, take the estate by way ol substitution, and he must be 
 
 ed heir of provision to the granter, otherwise he will not take 
 
 ;i vested inten st.(c) h is immaterial whether he is Darned imme- 
 
 '•II. i / ) la Julj 1867 
 
 1 1 Ei ' tils, pp. 606 12, 6 RoTai ph 1101 there i ited.
 
 4:96 
 
 OF WILLS AND TESTAMENTARY DISPOSITIONS OF 
 
 OB U"ii:i; win. 
 
 Where deed de- 
 livered to insti- 
 tute in granter's 
 lifetime, the 
 person next suc- 
 ceeding tidies as 
 heir-substitute. 
 
 Liferents held 
 to be the insti- 
 tute where fee 
 given to heirs 
 unborn. 
 
 Mortis causa 
 settlement to 
 disponee by 
 name (who pre- 
 deceases), and 
 heirs of tailzie : 
 Conditional in- 
 stitution. 
 
 diately after the institute, or only succeeds in consequence of the 
 death of other heirs-substitute called before him.(d) 
 
 972. Again, where a deed of settlement is delivered to the in- 
 stitute in the lifetime of the granter as his proper writ, so as to 
 give an immediate estate in fee, there is clearly no possibility of 
 conditional institution, and the heir-substitute next succeeding, 
 even where that heir is the granter himself, (e) must make up his 
 title as heir of provision to the institute. The result is the same 
 where the granter has retained the liferent interest of the estate, 
 or given a liferent to another. No service is necessary on the life- 
 renter's death ; but on the death of the fiar, the next substitute must 
 be served heis to him.(/) 
 
 973. Again, where a settlor dispones heritable estate, whether to 
 himself or to another in liferent, and to the heirs of the body of the 
 liferenter in fee, whom failing to other heirs, then, if the liferenter 
 have no child at the date of the settlement,^) he is held to be him- 
 self the institute or fiar, in order to satisfy the rule of law that a 
 fee cannot be in pendenti. In such a case, the successor, whether 
 a descendant of the liferenter or a remoter substitute, would re- 
 quire to be served heir of provision to the liferenter in order to 
 take the fiduciary fee out of his hereditasjacens.(h) The construc- 
 tion is the same in the case of a direct disposition to heirs in posse 
 without reservation of a liferent. The fee in this case, also, remains 
 with the granter, and falls to be taken up by service as heir of pro- 
 vision to him, precisely as if the granter had instituted himself. (/) 
 
 974. The only case remaining to be considered is that of the 
 ordinary form of destinations in deeds of settlement, where the grant 
 is to a person in life by name with substitutions, the operation of 
 the deed being suspended during the granter's lifetime. In this 
 case, if the person instituted survive the granter of the deed, he 
 takes the estate as a disponee. On his death, the next surviving 
 heir will be served heir of provision to him, and subsequent heirs 
 must in like manner connect themselves by service with the last 
 
 (d) 3f<Cidloehv.M'Leod,173l, M. 14,366; 
 Livingstone v. Lord Napier, 1757, M. 15,409, 
 M. 15,418, and 5 Br. Sup. 885; Hamilton 
 v. Hamilton, 1714, M. 14,860, as to which 
 see observations in Young's Trs. v. Young, 
 supra. 
 
 (c) Hay v. Hay, infra. 
 
 \f) Hay v. Hay, 1758, M. 14,369, 5 Br. 
 Sup. 351 ; Kerry. Howison, 1708, M. 14,357; 
 De.nniston v. Crichton, 5 Feb. 1824, 2 Sh. 
 678, N. E. 570. 
 
 (g) And perhaps even where he has a 
 child if that child is not named. The law 
 
 on this point is not very clearly defined. See 
 chap. 38, sect. 2 (Destinations toChildren). 
 
 (h) DundasY. Lord Dundas.23 Jan. 1823, 
 2 Sh. 445, N. E. 133. Frog's Crs. v. His 
 Children, 1735, M. 4262; Lillie v. Riddel, 
 1741, M. 4267; Douglas v. Ainslie, 1761, M. 
 4269. And in reference to the case of a 
 disposition to spouses in conjunct liferent, 
 and to the heirs of the marriage in fee, see 
 Peacock v. Glen, 22 June 1826, 4 Sh. 742, 
 N. E. 749. 
 
 (i) Gordon v. Gordons Crs., 1748, M. 
 14,366-14,368.
 
 HERITABLE ESTATE AND OF SUBSTITUTIONS. 497 
 
 heir who took a vested interest in the estate. Where the institute chapter mix. 
 predeceases the settlor, it was for a long time supposed that the ~ 
 heir next entitled to succeed would require to connect himself by 
 service either with the settlor or with the institute, and conflicting 
 decisions were given upon the point, (k) But it is now settled by 
 the cases of Colquhoun (J) and Fogo,(m) that in this case the heir 
 racceeds as an immediate disponee in virtue of the conditional in- 
 stitution which is implied in all destinations. It is obviously im- 
 material to this question whether the conditional institute is men- 
 tioned by name in the deed of settlement or designatively, e.g., as 
 one of the heirs of the body of the institute. In either case the 
 estate vests by the words of the disposition, without the necessity 
 of a service or declaratory proceeding to prove the propinquity, (n) 
 
 975. In the case of a disposition to heirs designated— e.g., to Doctrine of ,-,.,,- 
 the granter's heirs-male, whom failing, to other heirs named or ^whS"" 
 designed — it was formerly held that in the event of the heirs first ■HgkaHeto 
 named predeceasing the grantor, the fee remained in the granter tinSs!™ 
 himself, and would have to be taken out of his hereditas by ser- 
 vice.^) But the principle established in Fogo's case would most 
 probably be held to apply to designative institution as well as to the 
 
 of a destination to an institute by name. The cases last cited 
 are only to be regarded as clearly authoritative in so far as they 
 apply to destinations where the fee is first given to heirs-nascituri, 
 for in other cases of destinations to heirs designatively, the prede- 
 cease of such heirs causes the succession to open to the next mem- 
 ber of the destination in the character of conditional institute. 
 
 976. In the case of a contravention of an entail by an heir in where institute 
 possession, the Statute 1685 entitles the nexl heir to sue for de- cont S avenes the 
 
 i , r. -. . . entail, next heir 
 
 clarator tnereol, and "serve himsell heir to him who died last in- ma y serve heir 
 hit in the fee, and did not contravene without necessity anyways t°he P entafle° *° 
 to represenl the eontravener." The question has been proposed, 
 what is to be done it the <<>ntravener is the institute. Mr Sand- 
 ford was of opinion thai ;i service to the granter would he inept, 
 •' because the Statute says thai the service must be to the lasl h. ir 
 who did nut contravene, and as the granter is not an heir, he can- 
 >■"' be held as pointed oul in this description."^) Bui the fad is, 
 
 '•// v. Campbell, 1770, M. 661 ; remitted 22 June 1841, 2 Hob. 440 ; 
 
 1 1.949 : '/ '•' 24 Nov. opinion . I l>. 1068. 
 
 "/ •.. Murray, 21 May Colquhoun v. Colqtlhoun, «q 
 
 ! ' Bh. 629. Anderson \. Anderson, 22 June 18 2, 
 
 Colquhoun v. Colquhoun, 16 Dec. 1828, 10 Sh. 696 ; Cordon v. Gordon's On., 1748 
 
 7 8h. 200; remitted 17 Feb. 1881, 6W.& M. L4.868; Peaeoeh <r. Glen, 22 June 1821 
 
 9 Sh. 911. 1 Sh. 7f_'. \. B. 749, 
 / 70 v. Foffo, 26 Feb. 1840, 'J Ir Jandford on Entaifc, | 
 
 vol.. i. 2 i
 
 4:98 OF WILLS AND TESTAMENTARY DISPOSITIONS OF 
 
 ouapteb xxix. thai the word " heir" does not occur in the Statute in this connec- 
 tion, and, on (lie whole, we do not see any serious objection to a 
 service to the granter in such circumstances. 
 
 SECTION III. 
 HOW A SUBSTITUTION MAY BE EVACUATED. 
 Heir making up 977. The institute or heir under a simple destination may either 
 simii" d"t?na- make U P nis title under tne settlement, or, if he is also heir-at-law 
 tion .nay alter or f t ] ie subsisting feudal investiture, he may make up his title in 
 
 omnihdbui .-,.■, ^ ^ , ,.n r -\ i x-j.i 
 
 modo. that character ; m which case he has two titles, — a feudal title as 
 
 heir-at-law or of the investiture, and a personal title as disponee or 
 heir under the settlement, The case where the heir makes up his 
 title under the settlement requires no discussion. A disponee or 
 heir of provision under a deed of destination not fortified by irri- 
 tant and resolutive clauses, is an absolute and unlimited fiar, hav- 
 ing all the powers of a proprietor in fee-simple, (q) The only dif- 
 ference is, that in the case of a person possessing under a deed of 
 destination, the destination continues to regulate the succession 
 until it is altered. 
 Effect of making 978. In the case of a title being made up as heir-at-law or heir 
 heir-Saw or of of tnG investiture, if the proprietor should be desirous of altering 
 investiture. tne success i on to the estate, some care is requisite in order that 
 
 Possession on 
 
 double titles. this object may be accomplished in such a manner as will defeat 
 the outstanding personal destination in the deed of settlement ; for, 
 if the settlement were allowed to remain as a personal deed, it 
 would, as a consequence of the doctrine of double titles, be held to 
 regulate the succession to the estate, notwithstanding the altera- 
 tion of the destination in the feudal title. The law in relation to 
 succession where property is possessed upon double titles, may be 
 reduced to the following propositions : — 
 Destination sub- 979. (1) The mere completion of a title in the character of heir- 
 stanVin-'pos-" at-law,(s) or heir of the feudal investiture, (t) does not evacuate or 
 session °on title d e f e at the destination in the personal deed. It is presumed that 
 
 made up as heir- ± . 
 
 at-iaw or of in- the title is so completed as a matter of convenience, and not with 
 
 vestiture. 
 
 (q) In the case of a simple destination 1819, F.C. ; 2 Bligh, 692, 6 Pat. 597. 
 
 contained in a marriage-contract, the pre- Supra, \ 822. 
 
 scribed succession is only obligatory in so (s) Durham v. Durham, infra ; Snodgrass 
 
 far as concerns the right of the heir of the v. Buchanan, 1806, M. " Service of Heirs," 
 
 marriage. He, therefore, is entitled to App. No. 1 ; Ogilvy v. ErsJcine, 26 May 
 
 alienate the estate gratuitously as soon as 1837, 15 Sh. 1027. 
 
 he acquires a vested interest in it; Rout- (t) Smith and Bogle v. Gray, 1752, M. 
 
 ledge v. Carruthers, 19 May 1812, 10 Dec. 10,803 ; Zuille v. Morrison, 4 March 1813. 
 
 F.C. See also Ross, L. C. ii, pp. 5T7-r.V>»;.
 
 HERITABLE ESTATE AND OF SUBSTITUTIONS. I'.n 
 
 the intention of altering the destination of the settlement from chapter mix. 
 which the title of the heir is derived. The heir is held to possess 
 en both titles, and it is an established rule that in all such cas< s 
 the personal deed is the governing title, and that the destination 
 contained in it continues to regulate the succession. Where the 
 destination of the settlement happens to he coincident with the 
 legal order of succession in one of the branches, an estate may be 
 possessed for several generations upon services or precepts of clare 
 constat, expede by the successive proprietors in the character of 
 heirs-at-law ; and yet when the lines of succession come ultimately 
 to diverge, the estate will go to the heir pointed out by the personal 
 deed. In this way, latent personal titles have been brought into 
 i tperation after the elapse of more than a century from their dates. (m) 
 The cases do not recognise any destination between entries by ser- 
 vice and entries by precept of clare or charter of confirmation and 
 precept,(a?) neither title being held to import anything more than a 
 continuance of the subsisting investiture. 
 
 980. (2) Where an heir who has made up his title under the Personal destin- 
 subsisting investiture in the manner explained, afterwards obtains byTbSigl 
 a now investiture from the superior, by resignation and charter of from^hesuiT 
 
 ^nation, it is held that he thereby evacuates the destination in ri " r - 
 the personal deed and alters the course of succession — the two cases 
 being distinguished, continuing the subsisting investiture, which 
 lias no effect upon the destination in the personal deed, and making 
 a new investiture by resignation and charter of resignation, which 
 
 [uivalenl to an alteration of the destination. (y) Such now in- 
 vestitures were frequently expede under the old election law for 
 the purpose of creating freehold qualifications; and in such cases 
 it was ruled, that the immediate purpose was immaterial, and that 
 the grantee oughl to have taken care to have the proper destination 
 inserted in the charter, if he did not contemplate an alteration oi 
 the order of succession. (z) 
 
 981. (3) An heir who lias made up a title under the subsisting Destination eva- 
 
 investiture may alter the destination by disponing or re-settling ^ttrrei 
 the estate. It i- not necessary to the accomplishmenl of this pur- -;"'"' 
 
 thai be should, m the tirsl instance, make up a title to the 
 estate under the personal deed of settlement. Being in the full 
 righl of the estate under both titles, the heir, by bis disposition or 
 
 Ogilvy v. Erskine, U> Bh. 1027 : constat : as also in the cose "I" Pattison \. 
 
 Durham v. Ihn-h.im, M. 11,220; 6 March Dunn's '!',.<.. 1 .M.M ( .h. 1 104. <it. <] ,,,/ra. 
 
 1811, 6Pat. 182 {y) //„,,,, ■,. Craig Buchanan, U' Dec. 
 
 [n Zuille v. Morrison, 4 Marcl 1818, 1811, F.O.; MolU v. Riddell, 18 Dec. 1811, 
 
 Die title was made up by precept of elan P.O.; U I I '■<.. vol. 'J. pp.602 681, 
 
 ' ■i/irri. 
 
 '1 1 •_'
 
 500 OF WILLS AND TESTAMENTARY DISPOSITIONS. 
 
 chatter xxix. procuratory, has the capacity effectually to alienate the estate. The 
 act of alienation necessarily extinguishes or transfers every right 
 that was in the granter, and puts an end at once to the personal 
 title and to the destination which was engrafted upon it.(a) 
 Whether desti- 982. The case of Pattison v. Dunn's Trs. (b) raises two import- 
 tve-'is" ivacuated ant questions ; 1st, Whether the consolidation of a base estate held 
 tion'wiih'iii!' '''" ull, l , ' r a special destination with the superiority, evacuates the des- 
 superiority. filiation ? and, Idly, Whether, in the case of the superiority being 
 possessed under a special destination different from that of the right 
 of property, the base estate or right of property is thereby brought 
 under the destination of the superiority ? The judgment of the 
 Court affirmed the first, and negatived the second of these ques- 
 tions. The case is under appeal to the House of Lords. 
 
 (a) Edgar v. Maxwell (Elskieshiells),1736, (b) Pattison v. Dunn's Trs., 20 July 1866, 
 
 M. 3089 ; 2 Ross, L. Ca. p. 596 ; 31 May 4 Macph. 1104. 
 1742, 1 Pat, 334.
 
 OF DEVOLVING CLAUSES AND CLAUSES OF RETURN. 50 
 
 '■IIAl'TEIt XXX. 
 
 CHAPTEE XXX. 
 OF DEVOLVING CLAUSES, AND CLAUSES OF RETURN . 
 
 983. I. Clauses of Devolution. — Such clauses have reference Clauses of devo- 
 usually to the contingency of an heir of provision succeeding to a as lotions of 
 specified title or estate, or to any title or estate by which he is dis- ffestete"*" 
 ahled from taking and using the name and arms of the entailer. 
 For i )1' vin! is reasons, a devolving clause is only efficacious when it 
 enters into the destination of a strict entail. («) A clause, annexed 
 to a simple destination of an heritable subject to a plurality of per- 
 sons, giving over the estate to survivors in case of the death of any 
 of the institutes without issue, was held effectual as a condition of 
 the grant on the principle of devolution, (/>) The decisions in rela- 
 tion to clauses of devolution present the law of the subject in a 
 somewhat fragmentary shape, and with a large admixture of speci- 
 alties depending on the terms of the condition ; but the following 
 points are pretty clearly established. 
 
 984. A clause of devolution is different in principle from a re- Devolution dis- 
 solutive clause, or whal is commonly termed an irritancy. The de- Suth^ciause: 
 volution is held to be a condition of the original grant, and it one- Eltv, ; tu ; 11 wi,h - 
 
 o © i out declarator. 
 
 rates ipso facto upon the occurrence of the contingency. The right 
 of the heir takes effect immediately, and does no1 require to be con- 
 stituted by declarator. (c) In the event of the heir whose right is 
 resolved refusing, or being unable to convey, the devolution may 
 be enforced by decree of adjudication in implement of the entail, 
 which will give righl to the nuts from the period when the estate 
 n! the preceding heir was resolved.(cT) The condition, which is the 
 
 'iii the question whether Buch a (6) Lawson v. Imrie, 10 June 1841, 8 D. 
 
 inding inter heredet, ee Howden 1001, — the ca e being distinguished from 
 
 v. Fleeming, 20 March 1867, 6 Macph. 668. Stewart v. Kirkpatrick, 1786, M. 4824, 
 
 heir in po a i m ha t!i«' powers of whirl, was held to bi a cast of proper sub- 
 
 imple proprii tor, he maj bi II a1 any i titution, and not one of a qualified )' ,;i| i | 
 
 time before the cl into operation (c) Viscountess Hawar deny. Elphinstone't 
 
 . The only quei tion i , '/'/■.. 2 !•'< b. L866, I Macph. 868. 
 
 whether he can do o after the occurrence (d) Ibid. A to the effect of the right in 
 
 of the contingency, and befon actual trans- competition with 
 
 of the estate? - s '/' wart v. Nicol I 2 Dec. I860, 
 
 22 l>. 72.
 
 502 
 
 OF DEVOLVING CLAUSES, AND CLAUSES OF RETURN. 
 
 CHAPTER XXX. 
 
 Clause of devo- 
 lution effectual 
 to exclude heir 
 
 who has not 
 aln ady suc- 
 ceeded. 
 
 Heir entitled to 
 elect between 
 the two estates. 
 
 basis of the devolution, is, like other resolutive conditions, inter- 
 preted strictly. Therefore, where the devolution was contingent 
 upon the event of the heir "succeeding" to a certain estate, an 
 heir, who took the estate in question under a Parliamentary con- 
 tract was held not to have succeeded to it in the sense of the con- 
 dition of the deed of entail, (e) 
 
 985. A clause of devolution in the ordinary style is effectual to 
 exclude an heir who is already in possession of the title or estate 
 creating the contingency, at the time when the succession opens to 
 him under the entail. (/) Thus, a clause devolving the estate in 
 the event of any of the heirs in a certain branch of the destination 
 succeeding to*a peerage, was construed to apply to the case of a 
 peer succeeding to the entailed estate, and decree of declarator was 
 pronounced at the instance of the next heir, finding that he was 
 entitled to be served heir of tailzie and provision to the last heir, 
 on the ground that his elder brother, being a peer, stood excluded 
 by the terms of the entail. (</) In a previous case, where an entail 
 provided that when the estate came to the family of F., the entailed 
 estate and the estate of F. should be held by separate heirs, and in 
 that event the entailed estate should devolve on the next heir, — the 
 decree establishing the right of the next heir ordained the defender 
 to make up titles and convey. This decree was affirmed in the 
 House of Lords, and adjudication followed upon it. (A) 
 
 986. Where the devolution is contingent upon succession to a 
 particular estate, the heir is entitled to elect which estate he will 
 take. This is settled by the judgment in Stirling v. Stirling, (i) by 
 which it was found, " That the defender is not entitled to hold both 
 of the estates of M. and C. ; that the clause of devolution in the en- 
 tail of M. applies to the defender, as having succeeded to the estate 
 of C. ; but that he is, notwithstanding, entitled to make his election 
 of, and to hold either of the said estates, upon condition of his re- 
 nouncing all right of succession to the other in favour of the pursuer 
 as the next substitute-heir of entail." 
 
 (e) Hastings v. Marquis of Hastings, 7 D. 
 1 ; 9 March 1847, 6 Bell, 30. 
 
 (/) Gilmour v. Lockhart, M. 15,404 ; 12 
 Feb. 1756, 1 Pat. G10; Flemings case, 
 infra. 
 
 (g) Fleming v. Lord Elphinstone, 1804, 
 M. 15,559. 
 
 (A) Henderson v. Henderson (Earhhall), 
 M. 4215; 11 May 1791, 3 Pat. G86. It is 
 stated that in this case the heir, who made 
 up his title hy adjudication, conceiving 
 that he thereby took the estate in the cha- 
 racter of a disp'onee, attempted to break the 
 
 entail, on the ground that the restraining 
 clauses were only applied to heirs ; but in 
 this contention he was unsuccessful ; 3 Pat. 
 690, note. It would therefore appear that 
 a clause of devolution is not to be regarded 
 as a conditional institution, but as a con- 
 ditional substitution of heirs of provision. 
 A somewhat similar plea to this was unsuc- 
 cessfully maintained in the case of Munro 
 v. Munro (Foivlis), 4 Sh. 467, N. E. 472; 
 25 July 1828, 3 W. & S. 344. 
 
 (i) Stirling v. Stirling (Milton), 16 Jan. 
 1834, 12 Sh. 296, see p. 300.
 
 OF DEVOLVING CLAUSES, AND CLAUSES OF RETURN. 503 
 
 987. The devolution of the estate must take place in favour of chapter xxx. 
 the person or heir pointed out by the terms of the entail, although v 
 
 * x J ' o l ounger son not 
 
 the person to whom the two successions open may have younger entitled to ex- 
 
 . L J J G elude collateral 
 
 sons nearer the line of succession, whose possession would cany out heirs unless ex- 
 the intention of the testator of having the two estates separately tutai' 7 substi " 
 possessed. (k) It would further appear that an heir of entail cannot, 
 by electing to renounce an estate in favour of collateral heirs, de- 
 prive his descendants of the succession, in the case of their being- 
 entitled to come in under the same or a subsequent branch of the 
 destination//) and to take the estate consistently with the terms 
 of the entail.)//') 
 
 988. A clause of devolution obliging the heir succeeding to the Devolution from 
 other estate, and the heirs-male of his bod//, to denude in favour of ceX^TniT" 
 the next heir, has not the effect of excluding all the male descend- heirs-male of his 
 
 ° body t" the next 
 
 ants "i the body of the person so succeeding, but only those in the heir, operates in 
 direct line of male descent. Under such a clause, therefore, the S on° Ur 
 
 te will devolve to a second son or grandson of the person ex- 
 cluded from the succession. (n) And where it was provided that the 
 right of any h.ir of entail succeeding to certain estates or titles 
 should cease at the next term after he should have succeeded, " or 
 in his option, next after he shall have a second lawful son attained 
 to the age of fourteen years, during which space I herewith dispense 
 with the said heir of entail, his using my surname, and coal armorial," 
 the heir in possession, in succeeding to the estate and title, was 
 found entitled to keep the entailed estate during his life, if he had 
 do1 a second son bom to him, or if he should have one, then until 
 •ii had attained the age of fourteen. (o) 
 
 989. With reference to the powers of an heir of entail whose Until devi 
 
 i state is liable to be resolved by his succession to another estate or effect, heir in 
 title, the case of Bourtreehill is a hading authority.^) In this JKJjSiS 
 case it was held thai an heir of entail who. in the case of his sue- of a '"" 
 ceeding to a certain peerage, is allowed to keep the estate until the 
 
 (k) Laurie v. Mart/hie (I; 17 jority of the Court was finally affirmed in 
 
 March 1768, 2 Pat. 809. ech in which it is difficult todiscovi r 
 
 (I) Marquis of BvJU v. Worthy {Rose- anything but the confusion and hesitation 
 
 havgh), 4 Marcb 1808,4 Pat. 160. mind swaying from one extreme to the 
 
 FvUartonv. Htm 20 other, and vainl) Beeking an intermediate 
 
 1825, 1 W. & s. tin i 
 
 irted in M. II 171, I Leslu v. Leslit [Balquhain), 29 April 
 
 175, I Sh. i 2 15, and 2 Sh. 1742, I Cr. St. & P. 824. 
 
 in on Appendix to I (o) Hay v. Th \t Tweeddalt [Lin- 
 
 i s. In \- Lord plum), M. 16 125,6 April 177.:. 2 Pat. 822. 
 
 Eldon's ci ■ tendency to doubt I ■ M ton, 
 
 attaim mum developmi nt. The 7 l» I ; 
 
 Court Bell, 186 
 and the judgmi n< ol thi i
 
 504 OF DEVOLVING CLAUSES, AND CLAUSES OF RETURN. 
 
 chapter xxx. birth of a second son to whom it is to devolve, has, until such son 
 is born, all the rights of an heir-substitute ; and that, if not effec- 
 tually prohibited, he may sell the estate,— the case being distin- 
 guished from that of $lackinnon,{q) where the birth of a nearer heir 
 than the heir in possession was held to resolve the right of the latter 
 ab initio. It is not a fair exercise of a power given to an heir of 
 entail of burdening the estate with provisions for his family, to 
 grant provisions contingent on the event of the granter losing his 
 right by succession to a different estate. (r) 
 Devolution not 990. Where an entail is defective in any of the statutory solem- 
 
 li'r^'ue has'' nities, so that the estate is exposed to the diligence of creditors, the 
 opened to credi- ^p-hts of creditors are not affected by a subsequent devolution of the 
 
 tors tinder En- ° " . . 
 
 tail Amendment estate. On this ground, an estate possessed under an imperfect en- 
 tail was, in a recent case, held to fall under the sequestration of a 
 quondam heir, although the sequestration was subsequent in date 
 to the devolution of the succession, (s) 
 import and 991. IT. Clauses of Return.— The construction of clauses of 
 
 Su?es° f SUCh return is not of much practical importance, nor is there much to be 
 explained regarding them. The effect of a clause of return, in a 
 destination of lands or bond of provision, is different in different 
 circumstances. Sometimes it is held to be nothing better than a 
 simple destination, defeasible by gratuitous deeds of alienation. 
 Sometimes it is held to bar gratuitous alienations or conveyances, so 
 that a clause of return may have a higher effect than a substitution 
 unprotected by irritant and resolutive clauses. 
 Doctrine of re- 992. The best exposition of the subject is that given in the case 
 
 ,um explained of Mackinnon Campbell (0 by Lord Medwyn, who lays down the 
 Msdwyn. following propositions :—l. If the conveyance or grant be onerous, 
 
 fulfilling a legal obligation, a clause of return is considered gratui- 
 tous, without any just consideration, and may be defeated gratui- 
 tously, (u) 2. If the grant is gratuitous without any antecedent 
 obligation, a clause of return is held to be a condition of the grant, 
 so that the grant must be taken and held secundum formam doni, 
 and cannot be defeated by any gratuitous act of the donee. 3. If 
 the clause of return be not in favour of the granter himself, but to 
 a third party, it is held to be gratuitous in his person, without any 
 
 (q) Mackinnon v. Mackinnon, 1756, M. (t) Mackay v. Mackinnon Campbell's Trs., 
 
 6566. Compare Stewart v. Nicolson, 2 Dec. 18 Jan. 1835, 13 Sli. 246. 
 
 1859, 22 D. 72. 0) Lowrie v. Borthwick, 1683, M. 4339 ; 
 
 (r) Earl of Cassilis v. Hamilton, Elch. Lewis v. Laurie, 1736, 5 Br. Sup. 161 ; Sin- 
 
 " Provisions to Heirs," No. 6; 21 March elair v. Sinclair, 1738, M. 4344; Duke of 
 
 1745, 1 Pat. 381. Hamilton v. Douglas, infra. 
 
 (s) Howtlen v. Fleeminff, 20 March 1867, 
 5 Macph. 658, 

 
 01 
 
 DEVOLVING CLAUSES, AND CLAUSES OF RETURN. 
 
 505 
 
 due consideration given by him for it, and, of course, is defeasible chapter xxx. 
 by the grantee or substitute. 4. If the clause of return, even in a ~ 
 gratuitous grant, does not immediately follow the grant to the gran- 
 tee and his heirs, but there are other substitutes prior to the clause 
 of return, it may be defeated gratuitously by the grantee or his 
 heirs, as the substitutes have no sufficient jus crediti to prevent 
 the alienation, and, of course, the granter and his heirs have no 
 right, as their interest has been by his own act still farther post- 
 poned, (a;) 
 
 (x) Per Lord Medwyn, 13 Sh. 250, cit- 
 ing Paton v. Nairn", 1728, M. 4-)24, and 
 Edgar v. Johnstone, 1736, M. 4325. On 
 the subject of clauses of return, see also 
 Duke of Douglas v. Lockhart, 1717, M. 
 4343 ; M. of Clydesdale v. Earl of Dundon- 
 ald. M. 1262 (Branch 1) ; 2 April 1726, 
 Roberts. 564 ; College of Edinburgh v. Morti- 
 
 mer, 1685, M. 4342; Duke of Hamilton and 
 Earl of Selkirk v. Douglas, M. 4358-1 0,962 ; 
 27 .March 1770. 2 Pat. 449 ; Duff v. Gordon, 
 1807. M. ■• Member of Parliament," Appx. 
 No. 13. Johnstone v. Irving, 22 June 1824, 
 3 Sh. 163. N.E. 110 ; Dirleton and Stewart. 
 p: 367 ; Karnes' Eluc, art. 12, " Clause of 
 Return/"
 
 506 OF ENTAILS. 
 
 i'ii inn; \\\i 
 
 CHAPTER XXXI. 
 OF ENTAILS. 
 
 I. Entailer's Titles Subject and Form of II. What constitutes a Tailzied Destination? 
 
 the Entail. \ III. Of Imperfect Entails. 
 
 Limits of the 993, In this chapter, and the four chapters consecutive to it, we 
 
 subject. have a j mec [ a £ presenting a complete view of the Law of Entail con- 
 
 sidered as a branch of the law of succession. This includes the 
 general theory of entails, and the interpretation of their formal 
 clauses ; the vesting of the entailed estate and the powers of the 
 heir in possession ; the construction of heritable destinations, and 
 the completion of the titles of heirs of provision. The exposition 
 of the statutory powers of heirs of entail in relation to charging the 
 estate with incumbrances, selling, letting on lease, feuing, and the 
 like, and in relation to the mode of effecting a disentail of the 
 estate, pertain to the subject of conveyancing, and are foreign to 
 the object and scope of a work on succession. Subject to these ex- 
 ceptions, the following exposition will be found to comprehend the 
 whole of the topics discussed in Mr Sandford's valuable, but now 
 somewhat antiquated treatise on Entails. 
 
 SECTION I. 
 
 OF THE ENTAILER'S TITLE, AND THE SUBJECT AND FOKM OF THE 
 
 ENTAIL. 
 
 What may be 994. Every description of feudalized heritable estate of which 
 
 an e e ntaiL Ct ° f tlie P ro P r i et or ^ fr' ee to dispose may be the subject of an entail, as 
 
 lands, houses, teinds, patronages, fishings, reversions ;(a) and it 
 
 would seem, adjudications when perfected by charter and sasine, 
 
 though not followed by decree of declarator of expiry of the le- 
 
 (a) Ckisholm v. Chisholm-Batten, 9 Dec. security of part of his estates, granted a 
 1864, 3 Macph. 202. An ancestor of the proper wadset' of the mortgaged lands to 
 entailer having burrowed money on the his creditor, during the currency of which,
 
 OF ENTAILS. 507 
 
 gal.(fe) In a modern case, a doubt was expressed by a learned chapter xxxi. 
 judge as to the competency of entailing burgage subjects. (c) but 
 the decisions to which his Lordship referred are not adverse to the 
 competency of including such subjects in entails oi landed estates.(rf) 
 In practice, burgage subjects are not unfrequently included in en- 
 tail destinations; and the practice is sanctioned by the Titles 1m 
 Land Art L860.(e) "With regard to heritable subjects not capable 
 of being feudalized, the tendency of judicial opinion is in favour of 
 the competency of entailing such subjects. (/) 
 
 995. In Veitch v. Young{g) the question was raised, whether Whether move- 
 heirship-moveables could be entailed to the effect of protecting the teenSd"* 7 
 pr< ipertyfrom the diligence of creditors? The entailer, after settling 
 his landed estates in the usual terms of a strict entail, assigned and 
 made over to the heirs of the destination his whole household fur- 
 niture and plenishing within the mansion-house of the estate, to- 
 gether with his library of books in the said mansion-house, and in 
 his house in Edinburgh. These subjects were afterwards arrested by 
 a creditor of the institute, whereupon a suspension was brought. 
 No title had been made up by service to the furniture and library, 
 ami it was found that none was requisite. The Lords, however, 
 "sustained the arrestments raised by the petitioners as sufficient 
 to attach the furniture, books, and effects conveyed by the assigna- 
 tion in the deed of entail" and preferred the petitioners upon the 
 fund in medio.(h) More recently, the same question was raised 
 with refer, nee to a settlement in a d< ed of entail, which comprised 
 . arras, plate, and other moveables, amounting in value 
 '. The heir in | o applied for interdict against a 
 
 threatened poinding, but in the Enner-House, his counsel (Mr 
 Moir), declined to offer any argumi a1 in support of the applica- 
 ble right of reversion was kepi upbybeing entail of i [ u," in the 
 - in the titles of the debt- cod tituted a 
 'i ultimately ex- good entail of the subject oi rity. 
 languished by a deed of discharge and re- (J) Dalyell v. Dalyell, 17 Jan. L810, 
 'ion. which l( '1 in the Re- 
 tt] rarity title was (c) : Couper, 15 Feb. 1858, L6D 
 I with the i Btate by n 886, per 1 Cui 
 tion ad remanentiam. ler, I ■». 1710, M. 16,690; Dillon v. 
 without advi rting to the virtual i ictii ction ' 
 
 of thi the !3 & -I Vii t.< ap. I 18, } 11. 
 
 in the tith the opinions of the j 
 
 n" iii the lands in qui • thi ca e of Chisholm v. Chiaholm- Batten, 1 
 
 tion. 'I he < lourt hi Id (1) that i ; 
 
 Pi itch \. ) 1808, M. " Sei 
 
 ■ to the lands, and « lonfirmation," App. S( i 
 and might com] • ti ntly !■• / d 
 
 n "i intention, the
 
 508 OF ENTAILS. 
 
 chapter xxxi. tion, and the Court refused the note. Lord Ivory said, " One can- 
 ~ not read the case of Veitch v. Young, and the report of the opinions 
 delivered in it, without seeing that an entail of moveables is impos- 
 sible." (/) We may be permitted to add that the Statute 1685, cap. 
 22, which authorises the entailing of " lands and estates," makes no 
 mention of moveable property. 
 Pro indiviso 996. It is settled by authority, (A;) if authority were needed, that a 
 
 miyffeSjSi^ indwiso interest in heritable estate may be entailed. By a re- 
 cent decision of the Court it was found that an entail of such sub- 
 jects subsists though the estate be subsequently divided, and that 
 it is not necessary that the disposition giving effect to the decree 
 of division should enter the Register of Tailzies.(Z) 
 EarJofLeren 997. A question was raised in a recent case(m) as to the com- 
 
 ra!tu'n!lhL V ' petency of resorting to extrinsic evidence for the purpose of identi- 
 fying a part of the subject of conveyance, the description of which 
 was alleged to be ambiguous or uncertain. By disposition and deed 
 of tailzie, David Earl of Leven conveyed to a certain order of heirs 
 certain lands and heritages, and, inter alia, the manor-place of Moni- 
 mail and mansion-house of Melville, with certain other subjects 
 said to have been erected into the lordship and barony of Monimail, 
 and certain parts of the town and lands of Utherogill, " under the 
 several restrictions, provisions, and clauses irritant and resolutive, 
 with respect to the lands and barony of Melville and lands of Uthe- 
 rogill contained in the procuratory of resignation hereinafter in- 
 grossed." By the procuratory of resignation the lands, lordship, and 
 estate of Melville and lands of Utherogill were affected with the re- 
 straining clauses of a strict entail. The question was, whether evi- 
 dence was admissible to prove that the barony of Monimail was the 
 barony of Melville under another name. If not, there were no 
 lands mentioned in the dispositive clause to which the fetters of 
 the entail could be made applicable. Lord Neaves held that evi- 
 dence was admissible. " Clauses prohibitory, irritant, and resolu- 
 tive," he observed, " may always be made clear and intelligible in 
 themselves, and ought not to bear reference to any other deed or 
 document than the deed of entail. But a description of lands in a 
 deed does not in itself designate the thing intended. Before it can 
 be practically carried out, it is necessary to inquire what subjects 
 in rerum natura correspond to the name and description given, and 
 that inquiry can only be conducted by a reference to extrinsic evi- 
 
 (i) Baillie v. Grant, 21 May 1859, 21 D. 22 D. 72 ; but see the observations of Lord 
 
 838. President Inglis in the case of Howdcn 
 
 (k) Stirling v. Dunn, 21 Dec. 1827, 6 Sh. (Rocheid's TV.) v. Rocheid, 31 Jan. 1808. 
 272 ; Stewart v. Nicolson, infra. (m) Earl of Leven and Melville v. Cart- 
 el) Stewart v. Nicolson, 2 Dec. 1859. wriffht, 12 June 1861, 23 D. 1038.
 
 OF ENTAILS. 509 
 
 dence, such as must be resorted to in all questions of identification, chapter xxxi. 
 . . . . Such a mode of inquiry may be necessary and compe- 
 tent, not only as regards the application of a general leading descrip- 
 tion in a dispositive or entailing clause, but also as regards certain 
 qualifying or restrictive clauses."(?i) In reviewing the Lord Ordi- 
 nary's judgment the Court came to be of opinion that the objec- 
 tion was excluded by the terms of a former judgment, which was 
 res judicata between the parties ; accordingly, in the ultimate deci- 
 sion no opinion was given on this point. The admissibility of ex- 
 trinsic evidence, directed to the identification of the subject of an 
 entail, is evidently governed by the ordinary rules applicable to tin's 
 kind of evidence, (o) 
 
 998. The only title requisite on the part of an entailer is the Personal right 
 possession of a proper personal right to the estate or subject of dis- c 'ic-nt title to 
 position. The title of apparency is not sufficient; but it is sufR- ^j" tean 
 cient that the entailer is in a position to give the disponee the 
 means of taking infeftment under the conditions of the entail, 
 through the medium of an assignation of writs. This point is set- 
 tled by an early case, Napier v. Livingstone, where, according to 
 Lord Monboddo's report, " it was decided unanimously, dissent, tan- 
 turn Kaimes, that a man having only a personal right to lands, may, 
 nevertheless, make an entail in terms of the Act 1G85, and upon 
 searching the records, it was found that a great number of estates, 
 and those the greatest of the kingdom, had been entailed in that 
 \\ay."0) 
 
 999. In the leading case of Kenton v. AnstrutTwr^ where a pro- Procuratory of 
 prietor possessing on a personal title made an entail in the form of profrietorpos- 
 a procuratory of resignation, containing the usual clause of assigna- Bessi ?£.' 
 
 1-0 O £> BOnal till'', a 
 
 fciorj to writs, the question was whether the engrossment of prohi- g ood entafl - 
 bitions and fetters in ■■< simple procuratory of resignation (without 
 any substantive disposition) was sufficient i" subject the estate to 
 the conditions of the entail, seeing that a title by resignation would 
 be completed nol upon the procuratory containing the conditions, 
 lait upon the unexecuted procuratory in the title of the entailer. 
 The case having been appealed, was remitted by the House of Lords, 
 anil ultimately judgment was given, in conformity with the joint 
 opinion of ;,|| the judges, in favour of the validity of the entail.(g') 
 1000. A trust-disposition of heritable i state for payment oi di hi 
 onomical management, with an ultimate purpose of retroces . 
 
 28 I'- 1061. in SI,. 1st: remitted I March 1842, 1 """'■ 
 
 (") - 21 (Extrinsic Evidenci |. Bell, 1i-".» ; opinions reported 6 D. 280, and 
 
 {p) Napier v. LM% Br. 2Bell;afflr [ 18 Aug. 1848, 2 Bell, 214 
 
 Sup. - v. Foffo, 26 Feb L840 '.' i 
 
 Rent 1 • l' 1887, affirmed 18 An 1848 2 Bi II 196
 
 510 OF ENTAILS. 
 
 ohaptbb wxi. sion, express or implied, does not divest the grantor, but is merely 
 a burden upon his estate. (r) The truster's radical right is a suffi- 
 cient title to execute an entail of the reversionary estate, and this 
 title subsists even where an attempt has been made by an informal 
 conveyance to divest the trustee.(s) 
 Entail need not 1001. It is not necessary that the deed of entail should form 
 ^21 of titles" part of the feudal progress of titles. A disposition granted by a 
 proprietor infeft to a series of heirs, under the fetters of a strict 
 entail, recorded in the Eegister of Tailzies, will be effectual to bind 
 the estate, though it should not contain within itself the machinery 
 necessary for obtaining infeftment ; and by parity of reason, an en- 
 tail by a proprietor possessing on a personal title, without a clause 
 of assignation to writs, will be effectual when it is recorded in the 
 Eegister of Tailzies. A title may be completed in the person of the 
 institute or heir of provision by adjudication in implement, or by a 
 voluntary conveyance from the heir-general. In neither case does 
 the instrument which constitutes the warrant of infeftment require 
 to enter the Eegister of Tailzies. 
 Earl of Fife v. 1002. These propositions were affirmed by the judgment of the 
 1 "' lY ' House of Lords (in accordance with the collective opinions of all 
 
 the judges upon a remit from the House), in the recent case of the 
 Earl of Fife v. Duff.if) The opinion of the Court was character- 
 ised by Lord Wensleydale as " a most able, full, clear, and learned 
 statement of the law of Scotland on this subject," (u) and it has re- 
 ceived the unqualified approbation of the profession. For the pur- 
 poses of this treatise it will be sufficient to state the case, referring 
 the reader to that opinion for the grounds of the judgment. The 
 subject of the action was the entail of Carraldston, executed by 
 Major Skene in 1721, who at the time of the execution of the deed 
 was in the possession of the estate on a personal title. The deed 
 of entail was in favour of the entailer himself and certain heirs- 
 substitute ; it contained an assignation of writs, but no procuratory 
 or precept. By the disposition on which he stood possessed of the 
 estate, the entailer became the assignee of an unexecuted procura- 
 tory of resignation, by executing which he might at any time have 
 feudalised the disposition in the deed of entail. He did not do so ; 
 on the contrary, in the year 1723, he exhausted the procuratory in 
 question by expeding a charter of resignation of the lands and 
 
 (r) Campbell v. Edderli?ie's Crs., 1801, (t) Earl of Fife v. Duff, 2 March 1861, 
 
 M. "Adjudication," App. No. 11. 23 D. 657; remitted 19 July 1861 ; ad- 
 
 (s) M'Millan v. Campbell, 14 August vised 20 March 1862, 24 D. 936 ; judg- 
 
 1834, 7 W. & S. 441, affirming 9 Sh. 551. ment affirmed 27 March 1863, 4 Macq. 
 
 See this and other cases in this hranch of 469. _ 
 
 the law stated infra, chapter 45. (u) 4 Macq. 492.
 
 OF ENTAILS. 5] 1 
 
 barony of Carraldston, upon which he took infeftment, and then chaptee xxxi. 
 made up a feudal title by infeftment in favour of himself and his 
 heirs whatsoever. In the charter of resignation no notice was taken 
 of the previously executed deed of entail. In an action raised in 
 1725, after the death of Major Skene, it was contended that by this 
 proceeding the entailer intended to exercise the power of revoca- 
 tion contained in the deed of entail, but the contrary was decided 
 by the Court of Session, — a decision which implied that the entail 
 was still operative as a disposition of the personal fee. The first 
 substitute (who was one of the entailer's heirs-portioners in general) 
 then caused the entail to be recorded in the Register of Tailzies, 
 and made up a title under it, by general service as heir of tailzie 
 and provision, and infeftment upon a conveyance by the heir in 
 implement of the settlement. In the recent proceedings it was 
 contended that the alleged entail was a mere obligation and not a 
 substantive deed of entail, and that the Act of 1685, by requiring 
 the insertion of the restraining clauses in the procuratories of re- 
 signation and precepts of sasine, in effect provided that there could 
 be do entail without the means of taking infeftment by procuratory 
 or precept. The Act, however, does not say that a procuratory oi 
 precept must be contained in the deed to render it valid, but only 
 that the restraining clauses must be inserted in the procuratories 
 and precepts upon which the title is made up. It was further main- 
 tained that the disposition in implement was the real entail, and 
 that it ought to have been recorded as such. These pleas were 
 tived, and judgmenl given in favour of the validity of the en- 
 tail constituted by the <\<<-<\ of L721.(sc) 
 
 1003. An apparent heir cannot effectually entail the lands which Apparent heir 
 he post ii apparency, for this amongst other reasons, thai the power of crcat- 
 
 institute or heir, if heir alioqui successurus, would be entitled to pass entaa. p 
 over the entailer, and obtain himself served heir to the ancestor last 
 mi' n. Bis title in that case would uot be derived from the entailer, 
 and he would not be hound by the conditions of a -rant which he 
 had not accepted.(y) Bui on the principle of approbate and repro- 
 an institute may be hound to execute a strid i utai] of lauds 
 attempted to be entailed by an heir-apparent, if the ineffectual en- 
 
 of an inquiry from Dundonald, L726, M. l'^7">. [f the in 
 
 the modi of con titution tute were not heir to the - I in- 
 
 ctice, an examina- feft, could he adjudge thi i the 
 
 ti"n v | i,, i r of thai i rson, on i hi ■ round thai 
 
 from L686 to L800, and th< result was the latt liahle under the Ad I 
 
 ■ oi for i he d< bt and deed of the appari nl 
 
 which will I"- found ii I heir? Ii would seem that the Statute in 
 
 I"Tt of t ; applicabli to tl 
 
 V ClytU dal* v. /.'</. / oj m< nt ol
 
 512 OF ENTAILS. 
 
 chapter xxxi. tail is part of a regular settlement by which other lands are effec- 
 tually entailed on the same series of heirs. (z) But it is a different 
 question, whether an entailer can, on the principle of legatum rei 
 alienee, compel the institute to entail lands wdiich he has derived 
 through a different channel of succession. The cases that have oc- 
 curred are not favourable to the assertion of such a right on the 
 part of entailers, (a) The distinction is clearly drawn in the opinion 
 of the Court in the case of Arbuthnot. {b) " Were a person," it is 
 said, " to entail his estate, and in the same deed to include an es- 
 tate belonging to another, the entail would be void in so far as it 
 related to the estate which did not belong to the granter ; but there 
 w T as no reasoii'why that deed should not have effect in so far as it 
 related to that estate over which the granter had the entire dis- 
 posal." (c) 
 
 Obligation in 1004. It is, of course, essential to the validity of an entail that 
 
 marnage-con- . 
 
 tract not defpas- the maker should be free to dispose of the estate under its condi- 
 tions and restrictions. If, therefore, a proprietor is under obliga- 
 tion by contract of marriage or other obligatory deed to settle his 
 estate on a series of heirs unconditionally, he will not be allowed to 
 adject to the conveyance the restraining clauses of a strict entail. (d) 
 After various decisions, dealing with questions of this description 
 on equitable considerations, the rule was finally laid down as we 
 have stated it. (e) Where the maker of an entail reserves to himself 
 in his marriage-contract the powder of entailing the estate settled 
 upon the heirs of the marriage, the pow r er must be exercised pre- 
 cisely in terms of the reservation. (/) A reservation in general 
 terms is an authority to execute a strict entail with such condi- 
 tions as are usual and reasonable.^) 
 Effect of inciuri- 1005. It is quite competent and not unusual to include entailed 
 unentailed lands and unentailed lands in one and the same conveyance. The case of 
 ' a n nc s e ame convey " the Earl of Lev en and Melville v. Cartivright, already noticed, is an 
 
 (z) Carmichael v. Carmichael, 15 Nov. (e) Munro v. Munro, 13 Feb. 1810, F.C. 
 
 1810, F.C. ; affirmed 15 May 181G, 6 Pat. See also Speirs v. Dunlop, 1778, M. 13,026; 
 
 155;' Murray v. Ramsay, 17 Jan. 1811, Watson v. Pyot, 1801, M. " Provisions to 
 
 F.C. Heirs and Children, "App. No. 4; Urquhart 
 
 («) Stirlingsv. Stirling, 1801, M. 15,455; v. Urquhart, 13 D. 742, 14 July 1853, 1 
 
 Stewart v. Leslie, 10 March 1810, stated in Macq. 658. Nor is it competent, by a sub- 
 
 Sandford on Entails, pp. 191-193. sequent deed, to alter the destination of a 
 
 (b) Arbuthnot v. Arbuthnot, 1792, Bell, marriage-contract settlement ;ffaigy.Saig 
 Oct. Ca. 161. 14 Feb. 1857, 19 D. 449. 
 
 (c) Ibid. p. 165. (/) Macneil v. Macneil's TVs., 27 Jan. 
 \d) Gordon v. Gordon, 1731, M. 12,984; 1826, 4 Sh. 393, N. E. 396; Macleod v. 
 
 Ker v. Ker, 1747, M. 12,987; Strang v. Macleod, 1 July 1828, 6 Sh. 1043. 
 Strang, 1751, M. 12,988; Munro v. Munro. (g) Sandford on Entails, 199. 
 
 infra.
 
 OF ENTAILS. ;, l;; 
 
 example.(A) In such cases the extentof the entail is determined by chapteb xxxr. 
 the restraining clauses. An entail cannot be raised by implication ; 
 and therefore, where an heir of entail acquired the dominium utilt 
 of lands, the superiority of which was included in the entailed estate, 
 and afterwards resigned ad remanentiam in his own hands as supe- 
 rior, it was held that the dominium utilt was not thereby brought 
 under the fetters of the entail.(7) It need scarcely he added that 
 an entail of the dominium utile cannot be extinguished by consoli- 
 dating that estate with a superiority held in fee-simple; fur, as 
 lved by Lord Monboddo,(&) if that were admitted, an easy way 
 would be found of getting free of all entails of lands held of sub- 
 jects-superior, namely, by purchasing the superiority, and then con- 
 solidating the two estates by resignation ad remanentiam. Where, 
 however, a proprietor, vesl in the superiority and dominium utile of 
 the same property, possesses on the title of superiority for forty 
 years, it is held that the estates become consolidated by prescrip- 
 tion (the base fee being extinguished by possession on the title of 
 superiority), even where the effect of consolidation is to bring the 
 dominium utile under the fetters of a strict entail. (/) Whether the 
 converse of this proposition would hold good, and an entail of a 
 base fee would he worked off by prescriptive possession of the su- 
 periority, is a question still undecided, but we do not see how it is 
 possible to resisl the a]. plication of the principle of Lord Elibank's 
 se, in the case supposed. 
 
 SECTION II. 
 WHAT CONSTITUTES A TAILZIED DESTINATION. 
 
 1006. The objed of every settlement in strict entail is to per- object of taii- 
 petuate or continue the succession to a particular estate in a cer- est " ,ation - 
 tain order of succession prescribed by the entailer, ami. as inci- 
 dental to this object, to deprive the disponees and heirs of entail 
 
 of the power of alienating the estate, or subjecting il to the dili- 
 :e of their creditors. 
 
 1007. Whether at common law a proprietor could make a strict whether entail 
 entail of hi- estate, is a question which has very frequently been JJSS i a n ' w 
 discussed, without ever having been precisely determined. (#0 [tE riortothe 
 
 (h) Earl of Leven "/<</ ifelvilk v. Cart- (/<■) 6 Br. Sup. 886, Lord Napierv. Liv- 
 
 hi, 12 Jum 1861, 23 D. 1038; ee the > '■"'■ 
 Lord Ordinary's note, p. 1060. (I) Lord Elibank v. Campbell, 21 V 
 
 ! ' . v. />>,/., . L838 I- Sli. 71: Graham \. fl 
 
 h 1733, lCr.SU Qalbraith Aug. 1840, 1 Rob. 846 ; Wilton v. Pollock, 
 
 v. Graham, 14 J I- l I I A I Nov. 1889, 2 D 
 
 H hope, 9 March - !: I 
 
 II. bal in Hi. 'i-iiii-.it oi 
 
 VOL, I
 
 514 
 
 OF ENTAILS. 
 
 cHAPTEKxxxi. ig agreed by all writers that, after the passing of the Entail Act 
 1085, cap. 22, settlements in strict entail could only be made in 
 the form and under the conditions prescribed by the Statute.(w) 
 On the other hand, it is generally admitted that the notion of 
 an entail, as a continuing succession in a selected line of in- 
 heritance, is derived from the common law of succession. (o) The 
 Statute prescribes certain formalities in the nature of conditions 
 upon which it is made lawful to the subjects of the Crown " to 
 tailzie their lands and estates, and to substitute heirs 'in their 
 tailzies, with such provisions and conditions as they shall think 
 fit." It is for the law of succession to determine what is compre- 
 hended in the'general idea or notion of an entail, or, in other words, 
 what description of settlements are protected by the operation of 
 the Statute of 1685. 
 Same rules of 1008. The construction of heritable destinations is the subject 
 
 applied to entails of special consideration in a subsecment chapter. In what relates 
 donations! 6 *° tne construction of destinations properly so called, i.e., the inter- 
 
 profession, in the time of that author, a 
 simple destination was not binding npon 
 the heirs succeeding under it, and that it 
 could not he made effectual by inhibition, 
 but that a clause de non alienando might 
 be enforced by that diligence or by an ac- 
 tion of reduction. In Chapman v. Brijson, 
 1759, 5 Br. Sup. 940, it was found that an 
 entail containing prohibitions, but defect- 
 ive in the irritant and resolutive clauses, 
 could not be enforced by inhibition, the 
 President being of opinion " that this was 
 a way of making an entail not agreeable 
 either to the statute 1685 or the common 
 law ; not to the statute, becaitse it was 
 not recorded ; nor to the common law, be- 
 cause it did not irritate the right of the 
 contravener, which the constitution of our 
 feudal rights requires." In the case of 
 Stormonth v. AnnandaUs Crs., 1662, M. 
 13,994, the Court sustained an entail made 
 before the date of the entail statute, con- 
 taining prohibitory, irritant and resolutive 
 clauses ; while in Sharp v. Sharp, 1631, M. 
 4299, a contract to execute mutual deeds 
 of entail was held to be no bar to selling. 
 In Craig v. Craig (Riccarton), M. 15,494, an 
 entail antecedent to the statute was found 
 to be ineffectual in a question with credi- 
 tors, by reason of the want of a proper re- 
 solutive clause. This judgment was reversed 
 on appeal (1713, Robertson, 110), but upon 
 what ground does not appear. Finally, in 
 the case of Earl of Rothes v. Philip, 1761, 
 
 2 Pat. 52, the question was practically set 
 at rest by the declaration of the House of 
 Lords, " That entails created of lands in 
 Scotland, with prohibitive, irritant, and 
 resolutive clauses, before the making of 
 the Act of Parliament concerning tailzies 
 in 1685, ought to be recorded in the Regis- 
 ter of Tailzies according to the said Stat- 
 ute." As to the efficacy at common law of 
 entails containing prohibitions intended 
 only to bind the heirs, see note (o), infra ; 
 also I 1021, note (n), 
 
 («) Stat. 1685, cap. 22. 
 
 (o) In delivering judgment in the case of 
 Carrick v. Buchanan, 5 Sep. 1844, 3 Bell, 
 342, Lords Brougham and Campbell ex- 
 pressed a very decided opinion that entails 
 containing prohibitions, but without irri- 
 tant and resolutive clauses, derive their 
 efficacy from the common law, and that 
 such entails are binding on the heirs of 
 the destination to the effect of restraining 
 gratuitous alienations in contravention of 
 the prescribed order of succession ; see pp. 
 435 and 443. See also Lindsey v. Oswald, 
 2 Macph. 249 ; 21 March 1867, 5 Macph. 
 H. L. 12, L. R. 1 Sc. Ap. 99. These opi- 
 nions are in accordance with the views 
 stated by the institutional writers, parti- 
 cularly Stair, 1, 14, 6, and 2, 3, 58 ; Ersk. 
 3, 8, 23; Mackenzie, 3, 8; also vol. ii, p. 
 487; Kames, Elucidations, art. 42 (pp. 345- 
 6 of ed. 1777).
 
 OF ENTAILS. ;, 1 .", 
 
 pretation of terms designative of persons and property, relationship chapteb xxm. 
 and order of succession, there is no material difference between" 
 deeds of entail and deeds of simple destination. If a proprietor 
 execute a settlement of lands under the conditions of a strict entail, 
 reserving power to revoke, and thereafter, by a separate deed, re- 
 voke the fetters of the entail, leaving the destination intact, the 
 construction of the subsisting part of the settlement will be the 
 aame as it was before the act of revocation ; only the estate will be 
 disentailed, and will be subject to the debts and deeds of the dis- 
 ponee and heirs of provision.(o) 
 
 1009. In order to the constitution of an effectual tailzied sue- Requisites of an 
 cession, (p) it would appear that three requisites must concur: (1) dSttatio? 21 ^ 
 the succession must be given to a selected order of heirs, not to 
 heirs-at-law ; (2) the order of succession must be lineal, i.e., with- 
 out division ; and (3) the heirs of provision must either be named 
 
 in the settlement, or designed bywords of proper designation de- 
 noting a recognised category of descent from persons named in the 
 settlement. 
 
 1010. (1) It is not competent by means of a deed of entail to Legal order of 
 perpetuate the Legal order of succession. The object of the Entail SbJpSpX 
 Statute was not to enable landed proprietors to protect their estates a '" n, . V!l " 
 against the debts and deeds of their heirs-at-law, but to enable them 
 
 to institute a series of heirs different from that of the legal order of 
 succession, and to transmit the estate securely in tin' conventional 
 line of succession. "Simple infeftments," says Lord Stair, "are 
 those which are taken to heirs whatsomever ; for by that expression 
 we express the lineal heirs who according to law would succeed in 
 any heritable right ; but tailzied infeftments are, where the lands 
 are provided to any other than the heirs of line, as when it is pro- 
 vided to heirs-male, or heirs-male of the liar's own body. . . . 
 
 (") The doctrim hen tai d n I upon words which he ha employed, there being 
 the best of all authorii no no room for the strict principle of construe- 
 other than the ordinary ruli nc tiorj applicable to the fettering clan 
 ti<.n hare ever been applied to the inter- Manj iccurred in whirl, ,i 
 pretation of di tination in deeds of entail, limited meaning has been pul upon ex- 
 ed.andbj eveTal of the judges pressions in a destination describing the 
 
 tated, as the conditi E the cla ei of heirs called. In particular, the 
 
 argument upon the con of thed< or 'heirs v hal oever,' 
 
 tination to heii r, in the two has been held to mean heii malewhatso 
 
 tiacgregor \. Gordon, 8 Macph. ever, or heirs whatsoever of the body. Bui 
 
 I Gordon v. Gordon' i T, .. t Macph. tbi ground for adopting this limited 
 
 In the latter case, Lord Barcaple ob- of the word has be< n found in the context, 
 
 ■■ In con truing the de tination in or in the prioi in i titure." 
 an entail, there i« no ground for adopting {p) " Tailzied," i.e., Interrupted, (from 
 
 I id principle of con true- " tailler," to cul ord< t 
 
 Hon. The qui tion is simply as to the interrupted or cut off, and 
 
 iler in the use of thi i tituti d 
 
 2 i< 2
 
 516 
 
 OF ENTAILS. 
 
 sxxi. Ordinarily, in them all, the last member or termination is to heirs 
 whatsomever of the last 1 .ranch or person substituted, or the dis- 
 poner's heirs; and where that takes effect by succession, the fee, 
 which before was tailzied, becomes simple"^) 
 
 1011. The doctrine thus explicitly laid down by our first insti- 
 tutional writer is confirmed by a series of decisions which establish 
 
 Destination t>> 
 heirs \\ hatso- 
 including 
 
 CYC!) imiuiuni; - i-T 
 
 heirs-portioners, jo^ a nomination of " heirs whatsoever," whether of the entailer 
 
 will not support , .,, p,-. . , 
 
 an entail 
 
 Immediate dpsti 
 nation to heirs- 
 at-law held bad 
 as an entail. 
 
 or of the last substitute in the destination, will not suffice to support 
 an entail, and that the estate becomes a fee-simple in the person of 
 the last substitute under the antecedent part of the destination, (r) 
 Nor is the construction affected by the element of a declaration that 
 the eldest heir-portioncr shall succeed without division ; for, as the 
 heir whatsoever has the capacity of making up his title as heir 
 of line, ignoring the deed of provision, the tailzied succession is 
 necessarily exhausted, and the estate will descend to the heirs-at- 
 law of the person last seized in the estate as of fee. (s) The only 
 consequence of the exclusion of heirs-portioners in the ultimate 
 destination, as it would seem, is, that if the last of the proper 
 substitutes does not evacuate the destination, and if, under the 
 destination to heirs whatsoever, the succession should open to heirs- 
 portioners, the eldest heir-portion er would take the estate as under 
 a simple destination. (7) 
 
 1012. In the class of cases to which reference has been made, 
 
 (g) Stair, 2, 3, 43. 
 
 (r) Leslie v. Dick, 1710, M. 15,358 ; Earl 
 of March v. Kennedy, M. 15,412, 17G0; 2 
 Pat. 49, the leading case ; Henry v. Watt, 
 13 June 1832, 10 Sh. 644 ; Colvillv. Colvill, 
 8 March 1843, 5 D. 861 ; 25 April 1845, 4 
 Bell, 248. See also Stair ut supra, and 4, 
 18, 8 ; Ersk. 3, 8, 32 ; Mackenzie, Inst. 3, 
 10, and Treatise on Tailzies, 4, 9, 1. It 
 may be asked how it can be known that 
 any individual is the last heir-substitute 
 until after his death, seeing that, even on 
 the supposition of his being the sole exist- 
 ing heir of the destination, there is always 
 a possibility of his becoming the father of 
 an heir. The case of the Earl of March is 
 an express authority for the proposition 
 that a last existing substitute may re-settle 
 the estate; but whether the new settlement 
 be defeasible by the subsequent birth of an 
 heir-substitute of the original settlement 
 is another question, and one which, if ruled 
 by the analogy of 3Iackinnon's case (as to 
 which see chapter 36), will fall to be an- 
 swered in the affirmative. The suggestion, 
 
 that the son would have no title to chal- 
 lenge the alienation where the father would 
 incur the forfeiture of the estate for him- 
 self and his descendants, is not satisfactory, 
 because in the case supposed there are no 
 remoter substitutes in whose favour the 
 forfeiture could take place. On this point 
 see Denham v. Maitland, 1772, 5 Br. Sup. 
 623 ; Russell v. Russell, 1763, 5 Br. Sup. 
 895 ; and Stewart v. Nicolson, 2 Dec. 1859, 
 22 D. 73. 
 
 (s) See the cases of Gordon v. Mosse, 19 
 Dec. 1851, 14 D. 269 ; and Steele v. Coupar, 
 15 Feb. 1853, 15 D. 385, where the ulti- 
 mate destination was to " heirs and assig- 
 nees;" and Primrose v. Primrose, 9 Feb. 
 1854, 16 D. 498, where the destination 
 was to " my ain nearest and lawful heirs 
 whatsomever in fee, the eldest heir-female 
 and the descendants of her body always 
 excluding all other heirs-portioners, and 
 succeeding without division." 
 
 {t) See the observations of Lords Cowan 
 and Cockburn on this question, 16 D. 504.
 
 OF ENTAILS 517 
 
 .lit was undoubtedly allowed to the consideration that ohaptee xxxi. 
 the entailer, having completed his enumeration of the selected order 
 of heirs, proceeded to call his heirs whatsoever as a mere matter of 
 form, or to show that the estate should not revert to the Crown, 
 but to his heirs-at-law. Notwithstanding these cases, the question 
 whether a proprietor might ex propositi entail his lands under 
 a destination to an institute and his heirs whatsoever, or under 
 some modification of that destination, was for a long time considered 
 open to discussion. The question having lately been the subjecl 
 of three concurring, and all hut unanimous judgments of the whole 
 Court, may now be regarded as finally settled. 
 
 1013. In Leny v. Leny,(u) the question was raised upon a direc- *>»«, v. /.,„,,. 
 tion to trustees to purchase landed estate in Scotland, tube entailed 
 upon the truster's nephew, "and his lawful heirs for ever." It was 
 held that this was equivalent to a direction to make an entail in 
 favour of the nephew and his heirs whatsoever; that such a destina- 
 tion could not be the subject of a strict entail; that the trust 
 were not entitled to insert a clause of preference in favour of the 
 eldest heir-portioner ; and consequently, that the institute was en- 
 titled to acquire the estate in fee-simple. "We apprehend," say 
 the judges in the leading opinion, "there can be no reasonable doubt 
 that, prior to the 'Act concerning Tailzies/ the word meant an 
 instrument of conveyance by which an estate was settled on a se- 
 1 and specified series of heirs; and tEer< fore, when the Parlia- 
 ment of Scotland, in L685, 'statutes and declares, that it shall be 
 lawful for his Majesty's subjects to tailzie their lands and estates, 
 and to substitute heirs in their tailzies with sneh conditions and 
 provisions as they shall think fit, and to aff< ct the said tailzies with 
 irritant and resolutiv . whereby it shall nol be lawful to the 
 
 heirs of tailzie to sell,' etc., it seems impossible to give the term 
 tailzie in the Statute any different or wider meaning than it had in 
 the old( r law. ' To substitute heirs ' certainly means to substitute 
 one heir or class of heirs to another on a principle of selection and 
 
 ,. for substitution is a perfectly well defined nomen juris. 'To 
 affect the said tailzies with irritant and resolutive clauses' can 
 
 mean notion- else than to affect the successii I the heirs with 
 
 Buch clauses. . . . Eeirs of tailzie are all necessarily heirs — 
 heredes facti — of the entailer. They represent him, and take his 
 
 te in their order, subjecl to the conditions which he has ap 
 pointed. Bui while one may have heir- of this di cription, her& 
 facti, in an almost inexhaustible ■ rii *, it is vi i.\ different with u 
 man'- heirs-at-law. lie cannot, in any propel 
 
 Leny v. I 60, 22 D. 1272.
 
 Gordon. 
 
 518 OF ENTAILS. 
 
 m Mini xxxi. of such heirs. The person or persons, as the case may be, who, on 
 his death, is or arc entitled to take up his estate by service, and so 
 transmit it from the dead to the living, is or are the only heir-at- 
 law or heirs-at-law that he ever will or can have. When the estate 
 has once been taken out of his hereditas jacens by service and infeft- 
 ment, the legal order of succession to him is exhausted by that one 
 step of succession."^) 
 
 Macgregm v. 1014. In the case of Macgregor v. Gordon,(y) the Court was 
 
 called to consider the effect of an entail made in conformity with 
 a direction in the trust-disposition of a landed proprietor — the des- 
 tination being to the truster's natural son, " and his heirs whatso- 
 ever, the eldest heir-female and the descendants of her body, ex- 
 cluding heirs-portioners, and succeeding always, without division, 
 through the whole course of the female succession, whom failing, 
 then to the heirs whatsoever of the truster." A majority of the 
 whole Court (Lord Curriehill alone dissenting) were of opinion that 
 the case was ruled by the judgment in Leny v. Leny ; and that, for 
 the reasons given in the case of Primrose,(z) the destination to heirs 
 whatsoever of the institute was not converted into a tailzied desti- 
 nation, by reason of the preference of the eldest heir-female and 
 her descendants to heirs-portioners. Lord Curriehili's opinion pro- 
 ceeded on the assumption that a nomination of " heirs whatsoever," 
 when occurring in what purports to be a proper tailzied destina- 
 tion, is to be construed as a nomination, not of the legal order of 
 heirs, but of the persons who, at each time the succession opens, 
 stand in the relation of heirs-general to the propositus, or, as the 
 proposition was put by his Lordship in the subsequent case of 
 Gordon v. Gordon's Trs., that it is equivalent to a destination to 
 heirs-female after heirs-male. It is obvious that the series of per- 
 sons who might successively be entitled to serve as heirs-general of 
 the propositus, may come to be very different from the legal order of 
 succession, where the first heir-general serves to the propositus and 
 is succeeded by his heir, and so on. According to the construction 
 suggested by Lord Curriehill, the succession would, in the first 
 place, follow the line of the heirs of the body ; and if, for example, 
 an eldest son should succeed, and die without issue, the succession 
 would devolve to his brother by the half-blood, to the exclusion of 
 his sister by the full-blood — the former being the nearest heir- 
 general of the propositus, or person from whom the descent is 
 
 (x) 22 D. 1288. claratoi at the instance of the institute 
 
 (y) Macgregor v. Gordon, 1 Dec. 1864, 3 having failed for want of interest in the 
 
 Macph. 148. The case was tried in the parties called as defenders; see 24 D. fi87. 
 
 form of a suspension of a threatened charge (z) Primroses. Primrose, Feb. 1854, l<i 
 
 by ;i purchaser — a previous action of de- D. 498.
 
 OF ENTAILS. , r >\9 
 
 traced ; the latter being the heir-at-law of the heir last vest in the chaptkb xxxi. 
 estate. According to the same construction, the succession could 
 never pass through a father to his sons hy a different marriage. But 
 this only proves, what is known to every one conversant with herit- 
 able succession, that a destination to heirs-general of the body, with 
 subsequent limitations to heirs of the collateral branches, is a very 
 different thing from the legal order of succession. (a) It does not 
 prove that the expression '"heirs whatsoever" means heirs of the 
 body, with subsequent limitations. Notwithstanding the acknow- 
 ledged learning of the judge by whom it was propounded, we must 
 regard the proposed construction of "heirs whatsoever" as merely 
 fanciful. The opinion has no support from authority, and in no 
 way detracts from the weight due to the judgment of the Court, 
 rding to which the term "heirs whatsoever" in a deed of entail, 
 is to receive its ordinary signification, in whatever part of the deed 
 it occurs. (b) 
 
 1015. It is to be observed, in the case of an ultimate destination Ultimate gift to 
 to the entailer's heirs whatsoever, that although such a destination .!'^pifd°iu»* 
 may be altered by the immediately preceding heir-substitute, yet if tion - 
 
 th.it heir should be unable (e.g., from mental incapacity or nonage) 
 to execute a deed of alteration, the clause of return will be good as 
 a simple destination ; and the estate will go to the entailer's heir, 
 and not to the heir of the last substitute. 
 
 1016. The recent case of Colloiv's Trs. v. Connett,(c) if reliance Destination 
 can be placed upon the ground of the ultimate decision, settles a prin ". ''']■ [][}"''' 
 ciple of considerable importance in the law of entailed destination. ,,: ' "' ,1 "' "'- 
 
 „,,... . . tailer sufficient 
 
 rhe final destination m question was oi an exceptional character, < ipporton 
 being conceived in favour of the entailer's " own nearest of kin-" 
 dred." The lasl substitute and* r the previous branches of the desti- 
 nation left a general trust-disposition and settlement of bis heritable 
 and moveable estate, and the question was whether it carried the 
 estate which was the subject of the entail. Lord Kinloch held that 
 it did net. as a question of intention ; but the Court, while agree- 
 ing in the result (that the estate was nol carried by the trust- 
 Bettlement), 'lid so on the ground that the destination to " nearest 
 
 I lained in Stewart v. Xi- I ' ever, ( (eluding In ir p u 
 
 2 D ■ I- >■ 22 D. 1- 79 (Lord tioners; whom failing, to the truster's heirs 
 
 note). and a did not enl il le the tru 
 
 (&) The third i to te to the heira of the body of 
 
 ■ of tin' parties earned, v. iili th 
 
 Bj it, tutiue an effectual entail; Gordon v. G 
 the whole Couri determine d tl I Macph 601 
 
 iti :m entail in favour of A. and h I ! I Feb. 
 
 I Marpl
 
 520 OF ENTAILS. 
 
 ciiuTii; xxxi. of kindred " was a good tailzied destination, because, whatever might 
 be its meaning, it was limited to relations of the blood of the tes- 
 tator. Their Lordships were further of opinion, that in the case of 
 a plurality of persons succeeding at the same time under such a 
 destination, they would, like heirs-portioners, he entitled to he 
 served heirs of provision, (d) The principle which we conceive to 
 be involved in this decision is, that any destination limited to the 
 blood of the entailer is sufficient to support an entail; from which 
 it would seem to follow that a destination to heirs-general, exclud- 
 ing those who were not of the blood of the entailer, is a good tailzied 
 destination ; a conclusion noways inconsistent with the principle of 
 the decision in Macgregor v. Gordon. 
 Succession under 1017. (2) Our next proposition is, that the succession under a 
 be without" 8 strict entail must be lineal, or without division. This is established 
 division. j^ t | ie cages } n which it has been held that an entail is broken as 
 
 soon as the succession opens to heirs-portioners. (e) To prevent this 
 result it is usual to declare, in the destination of the deed of entail, 
 that the eldest heir-female and her descendants shall exclude heirs- 
 portioners throughout the course of the succession. Although a 
 provision of this kind cannot be raised by implication in an entail 
 executed, it is regarded as so much a matter of style, that trustees 
 have been held entitled to exclude heirs-portioners (without a spe- 
 cial direction) in entails to be executed under powers, where the 
 truster had prescribed a proper tailzied destination, and had given 
 directions for the execution of a deed of strict entail. (/) 
 Entail subsists 1018. It is to be observed that, even in the case of heirs- 
 
 actuaiiy opens portioners not being excluded by the terms of the deed of entail, 
 tioners S " P ° r " tne heir-substitute in possession immediately before the succession 
 opens to them would not take an estate in fee simple. On tbe 
 contrary, the heirs-portioners would succeed as heirs of provision, 
 whether they were or were not the heirs-general of the heir last in 
 possession. Indeed it cannot be known, until the actual opening 
 of the succession to heirs-portioners, that there will be a plurality 
 of persons entitled to succeed under the destination.^) 
 
 (d) 4 Macph. 470, per Lord Colonsay. Colloio's Trs. v. Connell, and other cases 
 
 But see the sequel of this case, where it cited in last paragraph. 
 
 was held that the expression applied to a (/) Sj<rot v. Sprot, 22 May 1828, 6 Sh. 
 
 single heir ; 14 Feb. 1867 (nom. Connell v. • 833 ; Forrest's Trs. v. Forrest, 14 Dec. 
 
 Grierson), 5 Macph. 379. 1845, 8 D. 304 ; Martin x' Kelso, 19 July 
 
 (c) Macdonald v. Lockhart, 22 Dec. 1842, 1853, 15 D. 950 ; 21 March 1857, 2 Macq. 
 
 5 D. 372 ; Farquhar v. Farquhar, 28 Nov. 550 ; Sands x. Sands, 16 Jan. 1844, 6 D. 
 
 1838, 1 D. 121 ; Hunter v. Kellie, 11 Dec. 365. 
 
 1834, 13 Sh. 185; dicta in Earl of March {g) Per the Lord President (Lord Colon- 
 
 v. Kennedy, 1760, M. 15.412. See also say) in Collow's TV.?, v. Connell, 23 I'M'.
 
 OF ENTAILS. 521 
 
 1019. Aii entailer may provide specially for the contingency of chapteb xxxi. 
 -accession devolving to lieirs-portioners then in being, by divid- whether en- 
 
 ing the succession, and giving separate estates to these persons by tai ! er ma J" P r °- 
 
 ,. ■• r 1T T ^ vide for female 
 
 name. In this case, according to the judgment of the House of su. 
 Lords in Mure v. Mitre,(h) the succession would then devolve to j 
 the successors of these heirs, as if under distinct entails. How- l!',^,!'',^ 
 e\'«r. in the subsequent ease of Sands v. Sands,(i) where, in certain 
 events, the succession to an entailed estate was divided between 
 the entailers sisters in equal shares, the Court held thai the suc- 
 ion vested in the ladies in fee-siinple. 
 
 1020. (3) It may be asserted, as a general proposition, that the Tailzied succes- 
 only kind of destination capable of supporting an entail is one to relationship! 
 
 ries of persons named, with or without substitutions to heirs of 
 a determinate class, — that is to say. to persons standing in a known 
 order of relationship different from the legal order of succession, 
 but constituting a recognisable group of heirs. Such are heirs- 
 male, heirs-male of the body, heirs-general of the body, heirs-female, 
 etc. In Macgillivray v. Souter(h) ii was attempted to support a 
 limitation of heritable estate to heirs belonging to a particular clan, 
 called the < dan < ihattan ; but this was held to be too indefinite and 
 intangible a limitation to form the basis of a title. Indeed, the 
 Court seem to have experienced considerable difficulty in appre- 
 hending the notion of a clan. Lord Ardmillan, as Ordinary, pro- 
 i to make a remit for the purpose of ascertaining, " 1st, What 
 clan; and are there now any clans? 2d, l> there a clan known 
 and described as the Clan Chattan ; and if so, of what does it con- 
 sist P Is clanship, or membership of a clan, nnderst 1 to be trans- 
 mitted exclusively through males?" The late President of the 
 Court, himself the representative of an ancient Highland family, 
 thought thai clanship was " a very evanescenl matter altogether ; " 
 and that a party claiming to exclude the beir-at-law "must he aide 
 to found "ii something plain and tangible, and known to the law.' 
 other Judges expn jsed their opinions to the like effect.(Z) 
 
 i ' ' ■, h. 17". citinj the c of an entailer to exclude partii 
 
 Mure and Farquhar, supra. heirs from the i, or to im] 
 
 Feh 1887, 16 Sh. condil as thai the heir succe< d- 
 
 . & .ML. 287. S( •• ing to thi k< ir 
 
 - ; - . ding to a c< rtain otl or to 
 
 21 F( b. 1889, 1 D. 645. a title, etc But I 
 
 16 Jan. 184 I. 6 I>. tion mn i be n lation hip. W( in I 
 the condition i 
 
 MacgiUivray . Souter, 12 March pfohahly coi 
 
 24 |i. 769, any oth< r ba i ol di tin ition which 
 
 be I"- Bg 
 undi i
 
 522 
 
 OF ENTAILS. 
 
 CHAPTER XXXI. 
 
 SECTION III. 
 
 OF IMPERFECT ENTAILS. 
 
 introductory. 1021. Imperfect entails — that is, entails defective in the prohi- 
 
 bitory, irritant, or resolutive clauses, or in the other statutory re- 
 quisites — have been productive of more litigation than any other 
 class of rights connected with heritable succession. The decisions 
 in the Ascog and Tillicoultry cases, in 1830, presented an induce- 
 ment to the discovery of flaws in the restraining clauses of family 
 settlements, which was greatly strengthened by the provisions of 
 the Entail Amendment Act of 1848, by which entails defective in 
 regard to any of the statutory prohibitions are declared to be in- 
 valid and ineffectual as regards all the prohibitions ; and the estate 
 is made subject to the deeds and debts of the heir in possession, (w) 
 A large body of decisions has, in consequence, been accumulated 
 during the last thirty years respecting the construction of the re- 
 straining clauses of entails ; the persons upon whom they are bind- 
 ing ; and the consequences, in relation to the rights of the disponees 
 and their creditors, of defects in the structure of such clauses. 
 Limits of the 1022. The present section may be regarded as introductory to 
 
 subject, t j ie discussion of the more technical branches of the law of entail 
 
 which form the subject of the next chapter, i.e., the construction of 
 the restraining clauses of entails, and the other requisites of the Sta- 
 tute 1685, cap. 22. Though the subject has ceased to be practically of 
 
 (m) 11 & 12 Vict. cap. 36, \ 43. That 
 where any tailzie " shall not be valid and 
 effectual in terms of the said recited Act 
 of the Scottish Parliament passed in the 
 year One thousand six hundred and eighty- 
 five, in regard to the Prohibitions against 
 Alienation and Contraction of Debt, and 
 Alteration of the Order of Succession, in 
 consequence of Defects either of the ori- 
 ginal Deed of Entail, or of the Investiture 
 following thereon, but shall be invalid 
 and ineffectual as regards any one of such 
 Prohibitions, then and in that case such 
 Tailzie shall be deemed and taken from 
 and after the passing of this Act to be in- 
 valid and ineffectual as regards all the 
 Prohibitions ; and the estate shall be sub- 
 ject to the Deeds and Debts of the Heir 
 then in Possession, and of his successors, 
 as they shall thereafter in order take un- 
 der such Tailzie ; and no action of for- 
 feiture shall be competent at the instance 
 
 of any Heir -Substitute in such Tailzie 
 against the Heir in possession under the 
 same, by reason of any contravention of 
 all or any of the Prohibitions." Trust- 
 money or lands directed to be entailed are 
 to be dealt with under this section as if 
 the entail had been executed in terms of 
 the truster's direction. By a series of de- 
 cisions it has been held in the Court of 
 Session that an entail in whicb the pro- 
 hibition against altering the succession is 
 unfenced, falls within the scope of the en- 
 actment ; but in none of the cases does 
 the question appear to have been deliber- 
 ately discussed, and the point is likely to 
 be brought under the review of the House 
 of Lords. The cases are Cunyngham v. 
 Cunyngham, 9 March 1852, 14 D. G36; 
 Dewar v. Dewar, 20 July 1852, 14 D 
 1062 ; Ferguson v. Ferguson, 18 Nov. 1852 
 15 D. 19; Rollo v. Rollo, 24 Nov. 1864 
 3 Maeph. 78.
 
 OF ENTAILS. 523 
 
 much importance, (») it is intimately connected with the interpre- chapteb xxxr. 
 tation of the restraining clauses of entails, and on this account, as 
 well as on the ground of its historical importance, we feel warranted 
 in submitting to the reader a somewhat extended exposition of the 
 law of imperfect entails. 
 
 1023. I. Entails defective by eeason of the omission of cer- Principle of the 
 taix of the statutory prohibitioxs. — The principle of the " Act EuUU Act 16S °' 
 concerning Tailzies" (o) is the authorising the insertion in deeds of 
 settlement of series of clauses, designed for the purposes of preserv- 
 ing the succession to the heirs of the destination, and of protecting 
 the estate against alienation and execution for debt. In order that 
 an entail may be effectual both against creditors and gratuitous dis- 
 ponees, the destination must be protected by prohibitions directed 
 against the institute and the heirs, and distinctly applicable to the 
 three kinds of contravention contemplated in the Statute, namely, 
 alienation ; contraction of debt; and alteration of the order of succes- 
 sion. The prohibitions must also be " fenced" or guarded by pro- 
 per irritant and resolutive clauses; the first, annulling acts in con- 
 travention of the prohibitions; the second, forfeiting the right of 
 the contravener (usually for himself and his descendants), and de- 
 volving the succession to the next substitute in the destination. (p) 
 
 (n) I.e., in consequ nee "f the above or the succession frustrate or interrupted, 
 
 mentioned provision; Bee Dempster v. Demp- declaring all such deeds to be in them- 
 
 rter, 3 Macq. 62. It must be remembered, selves null and void; and thai the next 
 
 that although prohibitory, irritant and re- heir of tailzie may, immediately upon con- 
 
 ■olutive clauses are things of the past, the travention, pursue declarators thereof, and 
 
 rights which have ari en under them aTe serve himself heir to him \vh<. died last 
 
 • •i tic- present Upon their validity de- tnfefl in the fee and did not contraveen, 
 
 the expectations of succession of in- without necessity any ways to represent 
 
 numerable heirs-substitute in tbi c the contraveener." 
 where the heir in possession i uot in a (p) The Statute merely declares the 
 
 on to obtain tic- requisite consents principle u] which an entail may he 
 
 to a disentail. As to the abolition of those i L; it does not profe a t.> pre- 
 
 in modern entail Bee the note at scribe the form of the clauses prohibitory, 
 
 ' pnning of the m I ection. irritant and resolutive, On such questions, 
 
 i"! I 'is.-,, cap, 22. The leading enact- as well as on the effect of deviations from 
 
 Dent i- aa follows: — "That it shall be th< statutory requirements, the decisions 
 
 lawful to his Majesty's subjects to tailzie of th< I ouri the only guide. " H 
 
 their laud-, and estates, and to substitute do aot appeal to me," aid Lord Chan 
 
 I in their tailzies, with Buch provi- cellor Cottenham, in the case of the 
 
 and conditions as they shall think ton entail, "that anj tance can 
 
 fit. and to al dlzies with irri- be derived from reference to the ten 
 
 ' ml and i , whep l,y it tic Si;. I nte. for that mm n ■ I lie 
 
 shall ii., i i„- Lawful to the heir of tailzie general rule, that in settlement to I" n 
 
 I aailzie, or dispone tie- -aid input the Statute there Bhall be 
 
 lands, or any part thereof, or contract itantand resolutive, which 
 
 or do any other deed ha tmong othi r thin:- . of pn • 
 
 I, adjudged, or evict- venting oi i being done whereby 
 
 titute in tie- t tilzie, tie- red. . . . Tic
 
 52 1 
 
 OF ENTAILS. 
 
 I'll U'TI-'.li XXXI. 
 
 t >u the construc- 
 tion of the Act 
 1685 imperfect 
 entails were held 
 effect nal accord- 
 ing to their 
 tenor. 
 
 Prohibition to 
 
 alter succession 
 effectual as a 
 condition of the 
 grant without 
 irritant or reso- 
 lutive clauses. 
 
 1024. To ensure the transmission of the estate to the heirs of the 
 destination undiminished and unburdened, the restraining clauses 
 must be perfect. But upon considerations partly founded on the 
 common law and partly on the theory of the Statute, the doctrine 
 was established that the statutory prohibitions, when duly fenced 
 with irritant and resolutive clauses, should receive effect according 
 to their tenor ; and, consequently, that an entail defective in any 
 of the prohibitions could only be defeated by doing the thing that 
 was not effectually prohibited. This, at all events, was the law 
 with respect to the clauses applicable to alienation and contraction 
 of debt, Where, for example, the entail was defective in any of the 
 restraining clauses applicable to alienation, the heir in possession 
 was entitled to sell the estate or dispose of it for onerous causes in 
 his lifetime ; but he could not burden the estate with debt, or alter 
 the order of succession to it, because in so doing he incurred an 
 irritancy which would carry the estate over to the next substitute. 
 If the defect were in the clauses applicable to the contraction of 
 debt, the estate was liable to be mortgaged or attached by adjudi- 
 cation, but it could neither be sold nor re-settled, (q) 
 
 1025. The clauses intended to prevent the alteration of the order 
 of succession come under the operation of a different principle. On 
 the one hand, it was settled that prohibitions directed against al- 
 
 question as to what clauses shall have that 
 effect, is to he arrived at from a considera- 
 tion of the decisions, rather than from the 
 terms of the Statute." Lord Brougham re- 
 marked, " If we go to the Statute, and endea- 
 vour to shapeour courseby anyopinion to be 
 deduced from it, we shall find that we are 
 wholly at sea, that we have no compass or 
 guide, and that we must resort to the law 
 as expounded by the decisions, the Statute 
 itself affording no decisive rule one way or 
 other in the great majority of cases which 
 occur ;" Lang v. Lang, 16 Aug. 1889, M'L. 
 & Eob. 884, 890. 
 
 (q) The case of the Carleton entail (Cath- 
 cart v. Cathcart, 18 July 1831, 5 W. & S. 
 315), may be taken to have settled the 
 point, that an heir could not take advan- 
 tage of a flaw in the restraining clauses 
 applicable to contraction of debt, so as 
 either directly, or by adjudication upon 
 fictitious bill transactions, to alienate or 
 resettle the estate. But it was long con- 
 sidered an open question whether creditors 
 might not take advantage of defects in the 
 clauses applicable to alienation. In one 
 
 view it was contended a creditor was en- 
 titled to adjudge the estate, on the ground 
 that, being subject to the voluntary acts of 
 the heir, it was substantially an estate in 
 fee-simple, or at least he was entitled to 
 adjudge the heirs' power of disposal for 
 the purpose of executing a disposition in 
 favour of himself. This question was only 
 formally decided in the negative in 1850 
 (after the law had been altered by the En- 
 tail Amendment Act) ; though it appears 
 from the opinions delivered in the Court 
 of Session, and on appeal in the case re- 
 ferred to (Cochrane v. Bogle, 25 March 1850, 
 
 7 Bell, 65, affirming 11 D. 908). that the 
 doctrine had long been recognised that an 
 entail could only be defeated by doing the 
 precise thing that was not effectually pro- 
 hibited. The authorities relied on, besides 
 the case of Cathcart already cited, were 
 Lord Duffus' Trs. v. Dunbar, 28 Jan. 1842, 
 4 D. 523 ; Cochrane v. Vernor, 21 Feb. 1844, 
 6 D. 723; Deivarv. Burden, 26 Nov. 1845, 
 
 8 D. 91 ; 25 March 1850, 7 Bell, 32, and 
 Lindsay v. Earl of Aboyne, 2 March 1842, 
 4 D. 843; 5 Sept, 1844. 3 Bell, 254.
 
 entails: mr) 
 
 tering the succession were binding inter heredes, as conditions of chapter xxxi. 
 the grant. An heir-substitute who had made up a title under an en- 
 tail could not alter the succession without violating the condition on 
 which he took the estate. If he attempted to alter it. the deed of 
 alteration might be set aside at the instance of any of the heirs- 
 Bubstitute; and an action would he maintainable against the heir 
 under the new settlement, who, as the gratuitous disponee and re- 
 presentative of the contravened was held to be liable in fulfilment 
 of his obligations. Irritant and resolutive clauses were therefore 
 not necessary for the protection of the rights of the heirs-substitute, 
 in a question with heirs claiming to succeed under a deed of altera- 
 tion of the succession, (r) 
 
 1026. On the other hand, without a, prohibition directed againsl No entail pos- 
 altering the order of succession there could be no entail for any pur- JSmS" 1 * 
 : and for this reason, that as far as the right of the heirs-sub- Jf^ccSn 8 
 stitute was concerned, the settlement was no better than a deed of 
 simple destination. Their right was defeasible at the pleasure of 
 the heir in possession ; he could at any moment acquire the estate 
 in fee-simple by executing a disposition to himself and heirs what- 
 soever; the heirs-substitutes had therefore no such vested interest 
 in the estate as would entitle them to challenge deeds of alienation 
 or contraction of debt, or to put in force the machinery of irritanl 
 and resolutive clauses applicable to acts of that description.^) 
 
 (r) Stair, 2, 3, 58, 3d paragraph : Ersk trine, according to Lord Brougham, is laid 
 
 B, 8,23; Mackenzie, 3, 8; Karnes, Eluci- down by Lord Kilkerran in Gairdner v. 
 
 dations, art. 42, pp. 345 6; Earl of Callan- Primrose, 1711. M. L5,501-15,503, thai a 
 
 Lord John Hamilton, 1<",K7, M. 15,47ij; simple prohibition bars gratuitous deeds or 
 
 Earl of Craufurd, 1756, M. 4315. debts from affecting the estate, bul thai 
 
 After the decisions" in the Ascog and Tilli- onerous deeds and debts are ther 
 
 .cited infra, §101 mpl barred tl by clauses irritanl of the debts 
 
 ade, in the case of Cathcart, to con- and resolutive ol r's rights ; Oath- 
 
 trover! the doctrine thai entails with pro- cart \. Cathcart, 18 Julj L881, 5 W. \ s. 
 
 bibitions were binding inter heredes, an at- 316, see pp. 844 346. The point was finally 
 tempi which called forth a Btrong prote t b) thi judgment of the Hon 
 
 from Lord Brougham. 'I he doctrine thai Lords, procei ding on the all bul unanimous 
 
 an entail ineffectual againsl credito opi ion of the whole Courl in Carricl v. 
 
 invalid in a question with heirs, wa . in the Buchanan, 6 Sept. 1 844, 8 Bell, 342, v, hich 
 
 >f that eminent judge, "strange, was followed by Lindsey v.Oi wold, 2 Macph. 
 
 ami pregnantwith peril, and founded i 249; 21 March L867, 6 Macph. II. L. 12. 
 
 fanciful con traction of the A.cl of i a is well illustrated 
 
 i round on which the Ascog bj the form of the action in which ju 
 
 termined," he con- ment was pronounced in the 0\ 
 
 in upon that which One of the grounds ol d the only 
 
 taken the libertj ol one on which the judgmi al of the B< 
 
 and current of the authorities of Lord proceeded, was, that thi 
 
 tractive of the propo ition, thai if an tail < 
 
 entail aid ring tht <. The hi ir in 
 
 it i bad intra familiam." The trued brought an action to havi it de-
 
 526 
 
 CHAPTER XXXI. 
 
 Summary of the 
 doctrine of im- 
 perfecl entails 
 antecedent to 
 the Entail 
 Amendment 
 Act. 
 
 Defect in irri- 
 tant or resolu- 
 tive clause ap- 
 plicable to 
 alienation or 
 contracting debt 
 invalidated the 
 prohibition. 
 
 OF ENTAILS. 
 
 1027. Tin' result of the principles of law applicable to imperfect 
 entails, prior to the Entail Amendment Act, may be thus stated. 
 (1) An entail was effectual for all purposes when it contained pro- 
 hibitory, irritant, and resolutive clauses applicable to acts of aliena- 
 tion and contraction of debt, and a simple prohibition to alter the 
 succession. (2) An entail which did not prohibit the alteration 
 of the succession was neither binding inter heredes nor in a question 
 with creditors. (3) An entail defective in the restraining clauses 
 applicable to one of the two acts of alienation and contraction of 
 debt, was binding in other respects, and could only be defeated by 
 doing the act which was not effectually restrained. (4) An entail 
 which merely prohibited alteration of the succession, w T as binding 
 inter heredes. 
 
 1028. As regards the prohibitions directed against alienation 
 and the contraction of debt, it must be understood that a defect in 
 the irritant or in the resolutive clause applicable to one of these 
 prohibitions was fatal to the prohibition. It was at one time main- 
 tained, and the argument prevailed with the Court of Session, that 
 although an entail without irritant and resolutive clauses was not 
 binding upon creditors, yet that in a question inter heredes the heir 
 in possession was bound by the prohibitions, and, therefore, if he 
 sold or burdened the estate, an action would lie at the instance of 
 the heir-substitute for reinvestment of the price. (t) But the House 
 of Lords, on a consideration of the difficulty of enforcing obligations 
 of this nature, and the anomalous results to which their enforcement 
 would lead, came to the conclusion that the Legislature could not have 
 intended to impose the obligation, and consequently that wherever ft 
 
 clared that, notwithstanding the entail, he 
 had the right to make up titles in fee- 
 simple, etc., and to sell the estate and dispose 
 of the price at his pleasure. The Lord Or- 
 dinary declared and decerned in terms of 
 the conclusions of the summons, and, on 
 appeal, his Lordship's judgment was sus- 
 tained and that of the Inner-House re- 
 versed ; Lang v. Lang, 16 Aug. 1839, M'L. 
 & Rob. 871. In previous cases, where ob- 
 jection was taken to the prohibition to al- 
 ter the succession, the conclusions were to 
 the effect that the pursuer was entitled 
 to expede a new investiture in favour of 
 himself, his heirs and assignees, and there- 
 after to sell and dispose of the estate at his 
 pleasure. Such are, Purves' Trs. v. Camp- 
 bell, 1814, Hume, 873 ; Henderson v. Hen- 
 derson (Earlshall case), 21 Nov. 1815, F.C. ; 
 and Gilmour v. Cadell (Liberton case), 5 
 
 July 1838, 16 Sh. 1261. On the other 
 hand, in Synie v. Dickson, 3 March 1821, 
 F.C, where the entail contained no prohi- 
 bition against altering the succession, a 
 trust-deed for payment of debts was held 
 ineffectual because not proceeding on the 
 narrative of an intention to alter the suc- 
 cession. It has been laid down that cre- 
 ditors cannot force an heir of entail to al- 
 ter the succession for their benefit ; Coch- 
 rane v. Bogle, 11 D. 920, per Lord Moncreiff. 
 (t) Gordon dimming v. Gordon (Pitlurg 
 case), 1761, M. 15,513 ; Young v. Young, 
 1761, 5 Br. Sup. 884 ; Sutherlandx. Sinclair, 
 1801, M. " Tailzie," App. No. 8 ; Lockhart 
 v. Denham, 11 June 1811, F.C. ; this case 
 was appealed, and afterwards remitted to 
 the Court of Session for the opinion of the 
 whole Court, but no further procedure took 
 place. Ascog and Tillicoultry cases, infra.
 
 OF ENTAILS. ;,j7 
 
 stranger was entitled to purchase or to acquire an effectual security chapter xxxi. 
 over an entailed estate, the heir in possession was entitled to the ~ 
 consideration-money. (w) The doctrine, then, that simple prohibi- 
 tions are binding inter heredes, as we have seen, did not hold good 
 with reference to prohibitions directed against the alienation of the 
 estate for onerous causes, or the contraction of debt so as to affect 
 it. A prohibition against altering the succession was effectual to 
 restrain alienation by mortis causa settlement, or by gratuitous 
 'l-'il inter vivos. (x) 
 
 1029. II. Omission to bind the Institute.— In the class of im- Doctrine of the 
 perfect entails maybe placed those settlements in which the entailer piSSuS 
 has omitted to direct the restraining clauses against the institute, fetters of entail 
 That prohibitions, which in terms are only applicable to "heirs of toThe foiStut& 
 tailzie," do not bind the institute, or immediate disponee, was the 
 point decided in the celebrated Duntreath case,(y) — a case which is 
 constantly cited as the Leading authority in the law of entail, because 
 by it the canon of strict construction was established as the rule of 
 decision for all questions upon the validity or efficacy of restraining 
 clauses.(z) Without calling in question the importance of Lord 
 Mansfield's judgment in this aspect of it, we may observe that, where 
 the rule of strict construction is granted, the questions presented in 
 the Duntreath class of cases present no difficulties, and we shall 
 therefore confine ourselves to a statement of their import in the 
 shortest possible compass. There are two questions which may 
 
 (u) Stewart \. 1 i (16 (x) Carrick v. Buchanan, 3 Sept. 1844, 8 
 
 July 1830, 4 W. & S. 196 ; Brut ./■■ Bell, 342, and cases there cited ; Lindsey 
 
 I W. & s. 240. v. Oswald, 2 Macph. 249; 22 March 1867, 
 
 having been decided in the L. R. 1 Sc. Ap. 99, 6 Macph. 11. I.. 12. 
 
 in conformity with the And see Cathcart v. Cathcart, 18 July 1881, 
 
 opinion then prevalent, were, by the House ", W. & s. 315, per Lord Chancellor 
 
 mitted !'<>r the opinionpf the Brougham, p. 346, citing Lord Kilkerran 
 
 whole Court Tl rity, in Gairdnery. Primrose, 1711. M. 16,501. 
 
 I i their former decision. The (y) Edmonttonev. Edmonstone, 1769, M. 
 
 then heard by the Earl of El- 4409, 1". April 1771. 2 Pat. 255. 
 
 don, Lord Wyndford, and Li llor (z) In giving judgment in Macgregor v. 
 
 Lyndhurst, and, in conformity with their I Lord B ited that he had 
 
 n, the judgment of the Court of Ses- frequently heard Li I a, ii thi M 
 
 Bi "" '•'■ of Lords, expn In opinion thai tin /' 
 
 I unced in a caei when thi was the can if the law of i n 
 
 mention con i ted in the granting of tail; :; S. \ M'L. lis. Lord Brougham 
 
 D ',""•'■- berry'i Exri. \. ,in in con- 
 
 berry, 16 July 1880, 4 W.& junction with th I md Tillicoultry 
 
 B. 264. / d Elibank v. Murray, f the casi in which the 
 
 II Bh. 868; 19 March L885, 1 s. ,\ Ml., ancienl law of Scotland had been n tored 
 
 npbellv. M . of Breadalbane, 1 D. 81; by the Rov l I in oppo itioo to the 
 
 1 April 1st], 'J Rob. 109; Montgomeru v. opinion of the judj ■ of the ( '"i 
 
 Earl of 1 jlinlon, t h. 126; 1* Aug. 18 18, Bi lion. 
 'J Bell, 1 !'•
 
 ;V28 
 
 OF ENTAILS. 
 
 What words 
 sufficiently de 
 scribe the in- 
 stitute. 
 
 ohaptee xxxi. arise with reference to the institute. First, Are the three statutory 
 prohibitions, with the relative irritant and resolutive clauses, ap- 
 plicable to the institute? Secondly, Is the person who claims im- 
 munity from the fetters of the entail the institute according to the 
 conception of the entail ? 
 
 1030. (1) The question being, whether the institute is named or 
 described along with the heirs of tailzie, it is frequently only neces- 
 sary to read the restraining clauses to ascertain whether they apply 
 to him : solvitur ambulando. The Findrassie (a) and Duntreath(b) 
 entails present no questions of construction ; the restraining clauses 
 are in terms applicable to heirs of tailzie and provision only. In the 
 Gordonstone case (c) the statutory clauses of the entail commence 
 with the words, " It shall be noways leisome nor lawful to the heirs 
 of tailzie above designed, nor the heirs who shall happen to succeed 
 to the mid lands and dignity." In other parts of the clauses the 
 words, " the said heirs" are employed to designate this class of per- 
 sons ; and it was maintained, but without success, that though Sir 
 Kobert Gordon, the institute, was not an heir of tailzie, he was an 
 heir succeeding to the baronetcy, and therefore within the terms of 
 the description. In Miller v. Cathcart (d) the words were " heirs of 
 entail, or any of them." In these cases arguments drawn from 
 other parts of the deed to prove that the entailer intended to fetter 
 the institutes were disregarded, and the estates were found to be 
 liable to their debts and obligations. To the same class of cases 
 belongs Steele v. Steele's Trs.,(e) where the entailer begins by direct- 
 ing that every person and heir succeeding to the estate shall take 
 and bear the name and arms of Steele of Baldastarcl, and then pro- 
 ceeds to tie up the estate by the usual clauses, which, however, 
 are not directed against persons and heirs, but against " heirs and 
 members of tailzie." The last mentioned words were held not to 
 apply to the institute. In a subsequent case it was maintained in 
 
 (a) Lesliev. Leslie,\1 52, Elch. "Tailzie," 
 No. 49. The action was brought to compel 
 the institute, Alexander Leslie, to make up 
 a title under the entail. The Court found 
 that Alexander Leslie, being fiar, was not 
 liable to the irritancies contained in the 
 entail, and gave judgment accordingly, 
 thereby overriding the earlier case of Wil- 
 lison v. Willison, 1726, M. 15,458. 
 
 (/,) F.dmonstonev.Edmonstone, supra. The 
 action was brought to have it declared that 
 Archibald Edmonstone, the institute, was 
 not subject to the restraining clauses of the 
 entail. The judgment of the House of 
 Lords declares "that the appellant being 
 
 fiar or disponee, and not an heir of tailzie, 
 ought not, by implication from other parts 
 of the deeds of entail, to be construed with- 
 in the prohibitory, irritant, and resolutive 
 clauses, laid oidy upon the heirs of tailzie." 
 
 (c) Gordon v. Hay, 1777, M. 15,462, and 
 "Tailzie," App. No. 2; 31. of Titchfield v. 
 Cuming, M. 15,467 ; 20 June 1800, 4 Pat. 
 157. 
 
 (d) Miller v. Cathcart (Carbiston Entail), 
 1799, M. 15,471. 
 
 (e) Steele v. Steele's Trs. (Baldastard En- 
 tail), 12 May 1814, F.C. ; 24 June 1817, 5 
 Dow, 72, 6 Pat. 322.
 
 OF ENTAILS. 
 
 529 
 
 argument that " member of tailzie," standing alone, would have in- chapter xxxi. 
 eluded the institute, but that its meaning was modified or conl rolled 
 by being placed in juxta-position with the word "heirs." It is 
 satisfactory to find that this view of the case was repudiated in the 
 ( !ourt of lasl resort ; for if a word which properly applies to the insti- 
 tute were held to lose that meaning by being associated with ' l heirs," 
 it would be impossible by the use of any language short of naming 
 the individual to express that the institute should be subject to the 
 prohibitions. (/") 
 
 1031. Observing that the words heir and member are to be con- institute not let 
 Btrued according to their natural meaning, and that they do not in reiationpre- 01 
 their natural meaning apply to the institute, it is a consequence of J^V,",^!?- " 
 the canon of strict construction that those words must be limited 
 to their natural meaning when used in any part of the restraining 
 clauses, notwithstanding that the institute is expressly designed in 
 another part of the same set of clauses. The use of the demonstra- 
 tive "said" makes no difference. The entailer, we will suppose, 
 begins by laying the prohibitions upon the institute innJ heirs. lie 
 then adjects an irritant clause applicable to "the said heirs of tailzie." 
 Who are the "said heirs?" Only the heirs already mentioned : not 
 the institute; because lie was not mentioned as an heir, hut under 
 his proper application. This simple consideration solves or explains 
 the remaining eases of Simprim,{g) Rerbertshire,(y) Lanrick,(i) and 
 
 (f) We refer to Lord Brougham's ob- 
 servations 'in this case in Macgregor v. 
 / :: s. \ M'L. 84. "I take it to be 
 
 blear," I thai according to the 
 
 principle of the case, that, supposing 'heirs' 
 had licit been obji eti d to, 'mem 
 tailzie ' would nut have im ludi 'I the in- 
 stitute. 'I'll'' word the material 
 Word, for he is nol ;i member of tailzie no 
 more than be is an heir of tailzii ; he it 
 
 I disponee oi 
 (:; s. ,^ M'L. 112). 
 
 '/ / <rd Elibank, -J. .Inly 1833, 
 
 II Bh.868; 19 March 188 i I ML. I. 
 
 Here Hi" prohibit i b pplied to the 
 
 Institute, Patrick Murra im ; but 
 
 tint irritancy wa - only of tin: •■ debt and 
 
 if the said I** a of tail ie <■>- i it hi c 
 of them." The in titute wa i held entitled 
 i 
 
 Wo I Worehead, '_' Julj I B88, 
 
 11 8h. 868; :;i March 1885, 1 S. I 
 'J'.». Theprohi 
 
 the in- taut.- bj name, and thi n 
 VOL l. 
 
 ml introductory clause declaring thai the 
 conditions, etc., " ami clauses irritant after 
 exprest," should be binding upon him as 
 well asupon the heirs-substitute. Butthe ir- 
 ritant ami resolutive clauses were in terms 
 only applicable to heirs. Lord Brougham 
 laid il'.w a ilm! im gi tteral words referring 
 Li a disponee and to heirs of tailzie, ran 
 fetter the disponee if the rei ti ictiv< clauses 
 '1" nut directly apply in him, ami wished 
 l" in < o a declaration in these terms in 
 i he judgmi m 
 
 "i Brown v. Wacgregor, II March 1887, 
 16 sh. s::7; 12 Feb. 1888, 8 S \ M'L. 84 
 The irritant clau e |""\ id. .1 that, "in .-a •■ 
 t he h ding of my bodg, "r any, i tc, 
 
 I !•■., and tin- ;i ami I 
 
 used(ui thai the institute, 
 
 tlnai l i an in ir of entail, was an hi ir 
 
 nC tin- body of the entailer. Bee Hi" dis- 
 tinction tal a by L m, p. 116, 
 betwi i n word oflimit ition 
 
 ami Wi i I Of purchaSi 'i 
 
 in i 
 
 •J i
 
 530 
 
 OF ENTAILS. 
 
 CHATTER XXXI 
 
 Institute bound 
 where fetters 
 are applied to 
 •• persons," or 
 where the pro- 
 hibition is in 
 general tonus. 
 
 Who is the per 
 son taking the 
 
 estate in the 
 character of 
 institute? 
 
 Fingalton,(h) as well as the case of Campbell v. The Marquis of 
 Breadalbane in relation to the lands of Aclmonard.(Z) It is not 
 very likely that a court of law will again be called upon to declare 
 an est ale free from the fetters of an entail on account of a blunder 
 so palpable and glaring as that of the omission to apply the restrain- 
 ing clauses to the institute. 
 
 1032. The cases in which irritant and resolutive clauses simi- 
 larly won led have survived the ordeal of strict construction are of 
 two kinds : — (1) where the word person is used in conjunction with 
 "heir;" (2) where the irritant clause simply annuls all deeds in 
 contravention of the prohibitions, without mentioning heirs, or only 
 mentioning them in such a way that the words may be treated as 
 surplusage. To the first description belong the cases of Si/me v. 
 Dickson,(m) and the Dougalston case ;{n) to the second, the Aboyne 
 case and the case of Carrick Buchanan, (o) better known as an au- 
 thority for the proposition that a prohibition against altering the 
 succession does not require to be fenced with irritant and resolutive 
 clauses. In consequence of the judgment on the latter point, it was 
 not absolutely necessary to determine the sufficiency of the irritant 
 clause as applied to the institute, a consideration which may tend 
 to- weaken the authority of this decision, should occasion arise for 
 invoking the lenient spirit of criticism which characterizes it. 
 
 1033. (2) We have seen that an entail, if intended to be binding 
 on the institute, must be made specially applicable to him- in its 
 prohibitions and fetters. In every entail there is an institute ; if, 
 then, the restraining clauses are in terms directed only against the 
 heirs of entail, the question arises, which is the person to whom, in 
 
 (k) Logan v. Logan, 1 Aug. 1839, M'L. 
 & Rob. 790 : stated infra, \ 1034. 
 
 (I) Campbell v. Breadalbane, 23 Nov. 1838, 
 1 D. 81 ; 1 April 1841, '2 Rob. 109. 
 
 (m) Syme v. Dickson, 1799, M. 15,473 ; 
 25 April 1803, 4 Pat. 471 . The resolutive 
 clause was directed against the " person or 
 persons, heirs of tailzie foresaid," and the 
 ground of decision apparently was, that 
 " person," in the singular, was disjoined 
 from heirs of tailzie, and might mean a 
 person other than the heir. 
 
 (n) Douglas $ Co. v. Glassford, 14 Nov. 
 1823, 2 Sh. 487, N.E. 431 ; 10 June 1825, 
 1 W. & S. 323. This case presents no diffi- 
 culty. The resolutive clause was applied 
 to " each and every heir or person contra- 
 vening." 
 
 (o) Carrick- Buchanan v. Carrick, 25 Jan. 
 1838, 16 Sh. 358; 5 Sep. 1844, 3 Bell 342. 
 
 The irritant clause provided that " all 
 debts, deeds and acts contracted, granted, 
 or done contrary to these conditions and 
 restrictions . . . shall be of no force, 
 strength, or effect, and shall be ineffectual 
 and unavailable against the other heirs of 
 tailzie and heirs whatsoever succeeding to my 
 said lands and estate." The Law Lords were 
 of opinion that the words in italics were 
 surplusage, or at least that the words 
 " other heirs " did not necessarily imply 
 that no acts of contravention were annulled 
 other than those committed by an heir of 
 entail. See also Seton v. Seton, 1 March 
 1854, 16 D. 658 ; and Lindsay v. Earl of 
 Aboyne, 5 Sept. 1844, 3 Bell, 254. In the 
 terms of the clauses, and the grounds of 
 the decision, these cases are similar to that 
 of Buchanan v. Carrick.
 
 OF ENTAILS. 531 
 
 the character of institute, a fee-simple estate is given ? This ques- chapter xsxi. 
 tion, it will be observed, is put with reference to the initial or ele- 
 mentary destination, and the decided cases enable us to answer it 
 with reference to all the forms of elementary destination. (1) To 
 the entailer himself, whom failing, to heirs named or designed : 
 here the entailer is the institute ; but in his case the entail, if ob- 
 ligatory at all, is so, not in virtue of the restraining clauses, but in 
 respect of the cause of granting, as marriage, mutual engagement, 
 or the like.Q?) (2) To a person in being, named or designed; whom 
 failing, to heirs named or designed : here the person to whom the 
 estate is first given, if he takes the estate, takes it as the institute, 
 or immediate disponee.(#) (3) The destination being as before, to 
 different persons in succession in fee ; if the person first named dies 
 without having acquired the estate, does the next surviving heir 
 take as conditional institute ; and, if so, is he bound by the fetters 
 of the entail, supposing these to be directed only against "heirs of 
 tailzie"? This was the question decided in the affirmative in the 
 firaforth case.(r) The terms of the judgment in the Court of Ap- 
 peal, proved that, in Lord Eldon's opinion, the first taker would suc- 
 ceed in the character of conditional institute ; since the decision in 
 the case of Fogo v. Fogo,(s) it is no longer doubtful that he does so. 
 The Sea/orth case is therefore a decision to the effect that fetters, 
 imposed upon a grantee in the character of an heir of entail, are obli- 
 gatory upon him in the case of his taking the estate in the character 
 of conditional institute. The iva son is obvious — the estate given to 
 the disponee is the estate of an heir of entail ; his succession in the 
 character of conditional institute results from the rule of law that 
 a substitution includes a conditional institution in the same charac- 
 t' i : and by the operation of t hat rule he can take no other or higher 
 
 te than that which is given to him by the settlement. 
 
 1034. The other elementary destinations are those in which the same question, 
 estate i- :ji\< a, in the iir.-t instance, to one or more persons in life- 1" i",!,',,'!',, 
 
 (;>) Gordon \. Macadloch, 1791, M. and estates prior to the disposition in fav- 
 
 15,465; Maxwell \. Maxwell (Munshes), our of the said appellant. And therefore, 
 
 1817, Hume, 876. it i d< clan d, thai b hi t nil.' to th< 
 
 (7) Ertkine \. Balfour-Hay, 1758, M. Lands and estates is only by force "I' <li" 
 
 4 M)6. word in . N' li dei •! <>i entail constituting 
 
 (r) Mackenzie y \facl i > . 24Ni r. 1818, her • a heir of entail 
 
 i-l. 1 Bh. (Ap. Ca.) 160. tuted, the said appellanl is 1 nd bj the 
 
 Thi judgment bear that the appellant, the i litions, declarations, re triction . limi- 
 
 '•1. I-'. I'.. Stewarl Mackenzie, i . by irritant and resolutive, con- 
 force of the words in the deed constitutii lid deed of entail ; p. 166 
 i heir of entail, substituted on failure (») Fogo v. Fogo, 26 Feb. 1840, 2 D, 
 brother, Francis John Mackenzie, 651; remitted 22 Jum 1841, 2 Rob. 440 ; 
 and the other heii by ed 11 Man b 1842 I I >. 1068 ; j 
 ■aid deed appoint ed to the lands ment gi en 18 A 1848 2 Bell, 196, 
 
 •J i. 2
 
 532 
 
 OF ENTAILS. 
 
 chapter xxxi. rent, namely — (4) to the entailer himself or to another person in life- 
 rent, or to several persons, conjunctly or in succession in liferent, 
 and to a person in being in fee; whom failing to others : the person 
 first called as flar is the institute, (t) (5) To A. and B. in conjunct 
 fee and liferent, and to the heirs of A. (of a certain class), whom 
 failing to others : according to the law of interpretation of destin- 
 ations, A. is a fiar ; he is therefore the institute in the entail. To 
 A. in liferent, and to B. and C. in conjunct fee and liferent; whom 
 failing to the heirs of B. (of a certain class) : B. is the institute in the 
 entail, (u) (6) To A. for his liferent use only; whom failing to his 
 eldest (or second, or other) son, whether in esse or unborn, in fee, 
 with a destination over : the child first called as fiar, although 
 born after the date of the settlement, is the first taker of the bene- 
 ficial fee, and therefore the institute in the entail ; the fiduciary fee, 
 which the law implies in the gift to the parent, being a mere trust 
 to preserve the estate until the birth of the person to whom it is 
 given according to the conception of the destination, (x) 
 
 1035. The consequences of defects in the statutory restraining 
 clauses have been pointed out in the course of our general examin- 
 ation of the law of imperfect entails. The most general form in 
 which the doctrine of imperfect entails admits of being stated is 
 this, that, until the law was altered by the Entail Amendment 
 Act,(<y) the estate was subject to the debts and deeds of the dis- 
 ponee or heir in possession, except in so far as he was restrained 
 by the fetters of the entail. One consequence of this doctrine re- 
 mains to be stated. An heir in possession under an entailjwhich 
 prohibited the alteration of the succession (and there could be no 
 obligatory entail which did not), could not make a new entail with 
 more stringent fetters even in favour of the same series of heirs, (z) 
 He was bound by the prohibition against alteration to possess the 
 estate on the title under which it had been handed down to him ; 
 
 Under the 
 Statute 1685, 
 heir possessing 
 on imperfect 
 entail could not 
 cure the imper- 
 fection by a 
 new entail. 
 
 (t) Wellwood v. Wellwood (Garvock), 
 1791, M. 15,463, and F.C. Menzies v. 
 Menzies (Outdares), 1785, M. 15,436; re- 
 mitted. 30 June 1801, 4 Pat. 242 ; affirmed 
 20 July 1811, 5 Pat. 522 ; Marchs. of Titch- 
 field v. Cuming, 1798, M. 15,467, 20 June 
 1800, 4 Pat. 157. 
 
 («) Steele v. Steele's Trs. (Baldastard), 
 12 May 1814, F.C. ; 24 June 1817, 5 Dow, 
 72, 6 Pat. 322. 
 
 (x) Logan v. Logan (Fingalton), 20 Dec. 
 1836, 15 Sh. 291: 1 Aug. 1839, M'L. & 
 Eob. 790. 
 
 (y) 11 & 12 Vict., cap. 36, § 43. 
 
 (z) The above-mentioned provision of 
 
 the Entail Amendment Act, by •which 
 defective entails are universally left open 
 to the attacks of creditors, also ftirnishes 
 the means of correcting the defect, by en- 
 abling the heir in possession for the time 
 being to acquire the estate in fee-simple, 
 after which he is in a position to execute 
 a new entail which will be binding upon 
 his immediate descendants. The cases in 
 which this provision has been taken ad- 
 vantage of are already very numerous. 
 They constitute a large proportion of the 
 cases cited in the first two sections of the 
 next chapter (On the Construction of Prohi- 
 bitory, Irritant, and Resolutive Clauses).
 
 OF ENTAILS. 533 
 
 and though that title left the estate open to the diligence of the chapter mi, 
 creditors of future heirs, the defect could not be supplied, but the 
 deed, with all its imperfections, must have subsisted as the law of 
 the investiture until the destination came to an end. (a) 
 
 (a) Urquhart v. Urquhart, 13 D. 742; 17 D. 659 ; 12 March 1857, 2 Macq. 529 ; 
 14 July 1853, 1 Macq. 658, and cases there Scott v. Scott, 6 Dec. 1855, 18 D. 168 ; 
 cited ; Cochrane v. Baillie, 9 March 1855, Munro v. Munro, 13 Feb. 1810, F.C.
 
 534 
 
 OF THE STATUTORY REQUISITES OF A STRICT ENTAIL. 
 
 I'll.W. XXXII. 
 
 CHAPTER XXXII. 
 
 OF THE STATUTORY REQUISITES OF A STRICT 
 ENTAIL. 
 
 I. Of the Three Statutory Prohibitions. 
 II. Of the Irritant and Resolutive Clauses. 
 
 III. Of the other Solemnities required by 
 the Act 1685. 
 
 SECTION I. 
 
 Technical lan- 
 guage not neces- 
 sary to consti- 
 tute a valid 
 prohibition. 
 
 OF THE THREE STATUTORY- PROHIBITIONS.(a) 
 
 1036. Generalities. — It has frequently been observed, and the 
 decisions support the statement, that technical language is not ne- 
 cessary to the expression of a valid prohibition, (b) The investigation 
 
 the Parliament of Scotland passed in the 
 year One thousand six hundred and eighty- 
 five, entitled Act concerning Tailzies, but 
 such clause of registration shall have in 
 every respect the same operation and ef- 
 fect as the most formal irritant, and reso- 
 lutive clauses duly applied to every prohi- 
 bition, condition, restriction, and limita- 
 tion contained in such tailzie, except only 
 such prohibitions, conditions, restrictions, 
 and limitations as by the terms of such 
 tailzie may be specially excepted." 
 
 (J) " An entail must contain a substan- 
 tive prohibition against alienation ; a sub- 
 stantive prohibition against contracting 
 debt ; and a substantive prohibition against 
 altering the order of succession. There is 
 no set form of words in which these three 
 prohibitions require to be expressed ; nor 
 is a separate and distinct clause, of any 
 given style, necessary for each several pro- 
 hibition. But the three substantive pro- 
 hibitions must be all there, and all of them 
 expressed." — Per Lord Corehouse in Little 
 Gilmour v. Cadell (Libberton case), 16 Sh. 
 1267 ; cited with approbation by Lord Cot- 
 tenham in the Overton case, M'L. & Rob. 
 887. 
 
 (a) By the Titles to Land Act, 1858 
 (21 & 22 Vict., cap. 76, § 18), it is enacted 
 that " Where a deed of entail contains an 
 express clause authorising registration of 
 the deed in the Register of Tailzies, it 
 shall not be necessary to insert clauses of 
 prohibition against alienation, contracting 
 debt, and altering the order of succession, 
 but such clause of registration shall have 
 in every respect the same operation and 
 effect as if such clauses of prohibition had 
 been inserted according to the present 
 law and practice, and duly fenced with 
 irritant and resolutive clauses." The Act 
 of 1860 (23 & 24 Vict., cap. 143, \ 12), 
 contains a similar provision with respect 
 to entails comprehending lands held bur- 
 
 It had previously been enacted by the 
 Entail Amendment Act (11 & 12 Vict., cap. 
 36, \ 39), " That in any Tailzie dated on 
 or after the first day of August One thou- 
 sand eight hundred and forty-eight, con- 
 taining an express clause authorising re- 
 gistration in the Register of Tailzies, it 
 shall not be necessary to insert any irri- 
 tant or resolutive clauses in order to render 
 such tailzie effectual in terms of an Act of
 
 OF THE STATUTORY REQUISITES OF A STRICT ENTAIL. 535 
 
 on which we are to enter will show that rarely, if ever, has an en- chap, xxxii. 
 tail been found to be invalid in consequence of the use of inartifi- 
 cial or popular language to express a prohibition the granter knew 
 to be requisite to its constitution. In the majority of cases, the 
 failure to give adequate expression to the statutory requisites of an 
 entail will be found to be the result cither of mere inadvertence, or 
 of the use of expletive or redundant phraseology. 
 
 In the consideration of the subject of the three statutory prohi- Limitsofthe 
 bitions, our remarks arc designed to have more especial reference to chapter. 
 the questions, what are the acts which must be prohibited, and bow 
 far the phraseology employed in the cases which have been the 
 Bubject of adjudication conforms to the requisites of an effectual 
 prohibition in terms of the statute? We do not profess to treat of 
 those cases in which objections have been taken to deeds of entail 
 on the ground of defects in the feudal clauses which are common 
 to entails and other conveyances of lands. Our business is with 
 entails consideri d as deeds of settlement.(c) 
 
 1037. Before enteringonthe consideration of the restraining words Prohibitionmust 
 appropriate to each species of prohibition, it may be noticed that a tmctly to the 
 prohibition, whatever its object may be, must be made distinctly j^tef 
 applicable to the entailed estate, and t<> all the persons (including 
 tic- institute) who arc intended to be bound by it. Of uncertainty 
 us to the application of prohibitions to the estate, we have an ex- 
 ample in the case of the Earl of Leven arid Melville v. Cartivright.(d) 
 The subject "I' the application of the fetters to the institute has 
 already been discussed.(e) Cases have arisen, and others maybe 
 figured, where it is doubtful whether the prohibitions were laid 
 upon all the heirs of tailzie, or only upon the heirs of a particular 
 class, indicated by the context. This is illustrated by the case of 
 Dunbar v. Dunbar,( f ) where a proprietor executed an entail of his Dunbarv. 
 estate and baronetcy in favour of certain heirs; but, according to 
 
 (,-) :, iple of tie i -I under the nam. both of persons 
 
 excluded from con ideration, we cite and places. We have in numerous in- 
 
 v. Munro, '■'. \\ . \ S. 844, on the stances been indebted i" th DigeBl for 
 
 point of omission of tl 'for new our references to the ti if then train- 
 
 Infeftment," in an entail in the fi ing clauses, which, in the older reports, 
 
 procuratory of r< ignation. iven at Length, but which 
 
 [d) Earl oj Lex nana Melville v. Cart- Mr Duncan, with a c devotion 
 
 wright, 12 Jun 1861, 23 D. 1088. to his subject which thi I in 
 
 Supra, ch i t. 8. n lh ' appreciati 
 
 Dunbar v. Dunbar {Hemprigge), 1799 ■ from thi original pleadings. It is 
 
 II. 16,452; Dun in I" tti d that the D Bm 'I 
 
 I 2. 1 ■ thai \\>- i" ca i • U] he validity of the i 
 
 ihould repeal thi r< f< r< nc< to thi mi I 
 ■
 
 536 
 
 OF THE STATUTORY REQUISITES OF A STRICT ENTAIL. 
 
 Munro v. 
 
 Munro. 
 
 Gammell v. 
 
 Cathcart. 
 
 kxxh. the terms of the subsisting destination, the baronetcy was limited 
 to a different series of heirs. The prohibitions against selling and 
 contracting debt were directed against the heirs of tailzie generally, 
 and also against " their heirs who shall happen to succeed to the 
 said lands and dignity." One of the heirs-substitute, who succeeded 
 to the lands without the dignity, brought an action against the 
 other heirs of entail, to have it declared that the estate belonged to 
 himself free from those restrictions ; but the action was unsuccess- 
 ful. 
 
 1038. In Munro v. Munro, (g) the entail contained a clause in- 
 tended to exclude from the succession any heir who, in consequence 
 of having succeeded to any other title or dignity, should be disabled 
 from bearing the name and arms of Munro of Foivlis. This was 
 followed by the usual statutory prohibitions, which were directed 
 against the heirs of tailzie 'particularly and generally before men- 
 tioned. It was contended by the heir in possession, but without 
 success, that the prohibitions were applied only to those heirs, re- 
 ferred to in the previous clause, who should succeed to a title, and 
 who, according to that clause, were bound to denude of the estate. 
 The above are cases in which the Court has refused to admit what 
 has been termed a " malignant construction" for the purpose of de- 
 feating the entail. In any view, it should seem that the words 
 "entailed estate" and "heirs of tailzie," or "substitutes,"^) suffi- 
 ciently designate the subject, and the objects of the disposition. 
 
 1039. We pass to another general proposition applicable to 
 every part of the mechanism of the restraining clauses which is, 
 that the prohibitory, irritant and resolutive clauses, must be com- 
 plete in themselves, so that the sense is expressed without the ne- 
 cessity of reference to other instruments containing corresponding 
 provisions. The leading case is that of Counte8swells,(i) where a 
 
 Prohibitions and 
 restraining 
 clauses cannot 
 be constituted 
 by reference to 
 previously exe- 
 cuted entails. 
 
 {g) Munro v. Munro, 15 Feb. 1826, 4 Sli. 
 467, N. E. 472 ; 25 July 1828, 3 W. & S. 
 344. See also Nairn v. Nairn, 1736, Elch. 
 "Tailzie," No. 5 ; 14 May 1736, Cr. St. & 
 Pat. 102, where there was a clause "pro- 
 hibiting the heirs-fernale of the said Mar- 
 garet, her body, or any other of the heirs- 
 male aud of tailzie above written (except 
 the heirs-male of the said Margaret's body), 
 to sell," etc. ; and it was found that the pro- 
 hibition applied to Margaret, Lady Nairn. 
 
 (h) In Dalrymple v. Hunter, 17 June 
 1784, 6 Pat. 807, the restraining clauses 
 -were directed against the " substitutes be- 
 fore mentioned, and described by name;" 
 and this was held to include the descend- 
 
 ants of the body of the heirs-substitute pre- 
 viously named. In Holmes v. Cnninghame, 
 13 Feb. 1851, 13 D. 689, the resolutive 
 clause of an entail was directed against 
 the institute, " or any of the other of tail- 
 zie above specified," the omission of the 
 word "heirs" in this connection was held 
 immaterial. 
 
 (?) Gammell v. Cathcart, 13 Nov. 1849, 
 12 D. 19; 13 Dec. 1852, 1 Macq. 362; 
 Broomfieldv. Paterson, 1784, M. 15,618; 19 
 May 1786, 3 Pat. 51. The judgment bears, 
 " That, in respect the disposition of 1758 
 differs in several articles from the entail 
 of 1743, . . . and that this disposition 
 •> i followed by charter and infeftment,
 
 OF THE STATUTORY REQUISITES OF A STRICT ENTAIL. 537 
 
 proprietor, Laving executed a valid deed of entail, containing pro- chap. mn. 
 pei restraining clauses, by a subsequently executed settlement re- 
 voked the destination contained in the first-mentioned deed of en- 
 tail, and disponed the estate to a different scries of heirs, "under 
 the burden of the provisions, conditions, restrictions, limitations, 
 declarations, clauses irritant and resolutive, of the said entail." This 
 deed did not contain executorial clause-: consequently, a title was 
 made up by adjudication in implement, and in the decree and rela- 
 tive character of adjudication the prohibitory, irritant and resolu- 
 tive clauses were engrossed at length. It was held (1) that the 
 second deed was a new settlement of the estate, and that it could 
 not receive effect as a nomination of heirs supplementary to the 
 first deed ; and (2) that, as a new settlement, it did not constitute 
 an entail effectual against purchasers, because it did not contain 
 the prohibitory, irritant and resolutive clauses required by the 
 Statute. In the subsequent case of Gammell v. Forbes,(k) in rela- Forbes*. 
 tioii to the estate of Drumtochty (which was settled by the same 
 entailer, ami in the same terms as the Countessiuells estate) , it was 
 held that a deed of entail, bearing reference to the prohibitions and 
 fetters contained in a previously executed deed, could not be inter- 
 preted as aii obligation to convey under the conditions referred to, 
 and that an entail could not be established by setting up the decree 
 and charter of adjudication as the statutory deed of entail. And so, 
 in Cochrane v. Baittie, where the deed contained an obligation to 
 make an entail, followed by a procuratory of resignation in which 
 tin- fetter.- were eel n>rt]i by way of reference, it was held that no 
 action lay for implement. (£) 
 
 1040. An entailer, by reserving the necessary power, may alter the \ ,„,,i„>,, i 
 
 destination Of the estate by a deed of nomination of heirs ;(?») which ^tain restrain 
 
 deed Deed not contain the letters of the entail in words at Length '" 
 
 gremto, 
 
 (nor, as we think, even by reference) ; provided that there is such a 
 reference to the deed of entail as shall effectually incorporate tic 
 nomination of heirs with the subsisting destination. And although 
 
 therefon if i to be held a new tettlement of to tin- Entail Amendment Art. :i binding 
 '/" estate." menl inter heredes ; Don v. Don, 171-. 
 
 i/.j Lord Forbes v. Qammell, II M. v M. 16,691 ; but under that Act the heir in 
 
 1868 "Jul i. 917. See also Lindsay v. Earl \ i is entitled to take ad 
 
 iyne, 2 Mar. 1842,4 D. 848; 8 Sept. Hi'- defcel to acquire the estate in fe< 
 
 1844, 8 Bell, 264 ; FaU I BaL- Bimplej Cochrane v.Baillie, 17 D. 669, and 
 
 quhmn), 1 July 1846, 7 I'. 960; Cochran* L2 March ls:,7. 'J Macq. 629. 
 v. BaiUie, infra. A to the ca i <'t' Lawrie (I > Cochran \. Baillie, supra, 
 v. Spalding, 1764, M. 16,612 (/»> Stewart v. /'or/- , -ji.hl. 16 May 1821 
 
 by Lord Moncn I and by I Sh. 9, N.E. 6; remitted 24 M 
 
 Lord si Leonards, l Macq, 868 It would 2 W. \ s ■ ■ ment, 28 Sept. I 
 
 that an entail by i is, prior 5 W. & Sh 616
 
 538 
 
 OF THE STATUTORY REQUISITES OF A STRICT ENTAIL. 
 
 OH IlP. XXXII. 
 
 Effect of era- 
 sures in the 
 restraining 
 clauses of en- 
 tails. 
 
 such a nomination should take the form of an actual disposition to 
 the substituted heirs, it would not be held to constitute a new 
 settlement, unless it contained a revocation of the destination in 
 the original entail. (n) Whether a partial revocation of the ori- 
 ginal destination, coupled with a nomination of or conveyance to 
 the substituted heirs, would be held to be a new settlement, and 
 so to render necessary a repetition of the prohibitions and fetters, is 
 a question which, in the present state of the law, does not admit 
 of a definite answer. It would seem, according to the observations 
 of Lord St Leonards in the Countessivells case,(o) that it is a ques- 
 tion of circumstances, whether a nomination of heirs is equivalent 
 to a new settlement. In that case, the original destination was 
 entirely swept away, and the actual deed of destination was thus 
 completely disjoined from the disposition containing the prohibi- 
 tions and fetters. It was therefore, as we have seen, held to be a 
 new settlement of the estate, and ineffectual as an entail. In the 
 case of Fraser v. Lord Lovat, the heirs nominated by the entailer 
 under a reserved power, by the deed of 1812, (p) were substituted 
 in the destination, so as to have priority in the succession over the 
 heirs of the original settlement ; and that settlement was not even 
 described by its date, but was only identified by reference to its 
 provisions. The original destination, although not formally re- 
 voked, was virtually superseded, by reason of the heirs of the des- 
 tination being postponed to those of a new destination which might 
 last for ever. This case comes very near to making an entail by 
 reference; nevertheless the deed of 1812 was held effectual as a 
 nomination of heirs; and Lord St Leonards, while suggesting (in 
 his opinion in the Countessivells case) that it had not been well con- 
 sidered, does not in the result dissent from its conclusions, or dis- 
 pute its authority as a precedent, (q) 
 
 1041. The objection, that words material to the sense of pro- 
 hibitory or other restraining clauses are written on erasures, may 
 here be noticed, in so far as it involves the consideration of the 
 principles of construction applicable to the superinduced writing. 
 The rule of the law of Scotland in relation to erasures in deeds 
 which- are not noticed in the testing-clause, is, as we have seen,(V) 
 that the erasure is presumed to have been made after the execu- 
 tion of the deed, and consequently that the words are to be taken 
 pro non scriptis. If the erasure is in substanticdibus, it may be 
 
 (n) Fraser v. Lord Lovat, 28 Feb. 1842, (p) P. 110 of the report in 1 Bell. The 
 
 1 Bell, 105. The references to the pre- original entail bears date 25 June 1808, 
 
 vious proceedings, which were very pro- and is quoted in 1 Bell, 105. 
 
 tracted, will be found in Bell's report. (?) 1 Macq. 365. 
 
 (o) 1 Macq. 3(3-1-5. (r) See chap. 12, sect. 'J.
 
 OF THE STATUTORY REQUISITES OF A STRICT ENTAIL. 539 
 
 fatal to the deed. "When an erasure is said to be in suhstantlallbus, chap. xxxn. 
 this, according to the latest exposition of the law,(s) must refer to _ 
 the words that are written on the erasure, and not to those which 
 are supposed to have been obliterated. The supplying conjectural 
 words, for the purpose of destroying the deed, is, according to the 
 same authority, a "malignant construction,'' and is unsupported 
 either by principle or authority. (7) The application of these rules 
 to the construction of the restraining clauses of entails may be 
 stated in the words of Lord Westbury : " The words written on the 
 erasure are taken pro non scriptis. If such words are essential to 
 the clause in which they are found, and the clause without them 
 i- insensible, the clause is void; and if the clause so avoided be 
 essential to the deed, it follows that the deed also becomes void; 
 hut if. after rejecting the words written on the erasure, the words 
 which remain are sufficient to enable the Court to ascertain the 
 meaning of the clause, and to give its proper effect to it, then the 
 words rejected are not indispensable, and the clause does not be- 
 come void. If the erasure occurs in one of the fencing clauses of 
 a deed of entail, and the words written on the erasure are taken 
 fro non scriptis, it is necessary that the remaining words should be 
 a sufficient expression of the proper effect of the clause according 
 t<> a strict and necessary construction of such remaining words. It 
 i- qoI sufficient that you are able to infer the intention from the 
 words which remain; it is necessary that they should express that 
 intention and no othei."(u) An erasure would appear, therefore, 
 to be equivalent in effect to a blank, or to the omission per incuriovm 
 "i b pari of the draft.(v) 
 
 1042. II. Pbohibition against Alienation. — A settlement in- Ell , a ,i must 
 tended to constitute;, stricl entail under the Act L685 must con-?! 
 
 dii position. The 
 
 tain ; t prohibition "whereby it shall net lie lawful to the heirs ofw° rd " a 
 tailzie [or institute] to sell, annailzie, or dispone the said Lands or comprehends 
 any pari thereof." It is do1 necessary that all the operative words ' 
 of the Statute should 1"- used ; it is enough that the act of disposi- 
 
 («) Per Lord Chelmsford, 1 Macq. 690. ford, 9 Nov. L868, 16 I>. ■',!. In Pram v. 
 
 P I W( tbury and Chelm F r (11 March L854, 16 D. 868), the 
 
 ford in Oollanv. Qollan, infra. words "i< Bhall doI !»■ lawful," and in 
 
 IMacq. Shepherd v. Grant (21 Julj 1847, 6 Bell, 
 
 ID. 1410 • p. 687. E denoting the Brsl heir-sub- 
 
 Bonii Bontine, 19 March 1868, 1 Btitute, were written i isni Th< a 
 
 Macph. 666, and tin two following cases on error wer< held to b 'thus. 
 
 the construction of material words which ('■; Of this nature was the omission in 
 
 partly written en erasures, namely, 1 1 * « - irritai I kh< Hoddam entail, 
 
 ..l Jan. l - ► __' ll D. Sharp* v. Sharpe, is April 1886, 1 B. 4 
 
 ad llowden I i 7 Jul] L864, Ml. 594 
 2 Macph. 1 ■'. I 7 /. • ■ G
 
 540 OF THE STATUTORY REQUISITES OF A STRICT ENTAIL. 
 
 
 chap, xxxii. tionis prohibited. The word "alienate" appears to be the most 
 ~ appropriate to the expression of the prohibition, as it is undoubtedly 
 the most comprehensive in meaning. It is the term most properly 
 descriptive of the conveyance of property in the form of a procura- 
 tor of resignation for new infeftment ;(a?) and it includes — as was 
 found in the cases on the Queensberry leases, (y) — alienation by 
 leases of an unusual duration, or for an inadequate consideration. 
 In Bontine v. Bontine,{z) it was contended on the part of the heir 
 in possession, that because the deed of entail contained a special 
 prohibition to grant leases, except in the exercise of the powers 
 thereby given, therefore the general prohibition against alienation 
 was not intended to apply to leases, and that the special prohibi- 
 tion against alienation by leases was ineffectual, inasmuch as it was 
 not fenced with irritant and resolutive clauses. This argument did 
 not prevail, and the entail was held good. " It is settled law," said 
 Lord Deas, " that in a deed of entail a prohibition to alienate is a 
 prohibition against all leases not expressly permitted by the entail, 
 with the exception of such as fall to be regarded as ordinary acts 
 of administration. I further hold it to be clear, although not so 
 authoritatively settled, that if there be two prohibitory clauses in 
 an entail, directed against the same act or acts, the defective na- 
 ture of the one will not prevent the other, if distinct and unequi- 
 vocal in itself, from receiving effect," (a) 
 Alienation sum- 1043. The decision in Glassford's Tr. v. Glassford,(b) taken in 
 St'd iTthe connection with the earlier cases, leaves no room for doubt that the 
 use of the word wor d « dispone" is sufficient for the purpose of a prohibition against 
 alienation by other means than that of de prcese7iti conveyance, (c) 
 In that case the objection taken was, that the letter " n" of the 
 word dispone in the prohibitory clause was written on an erasure, 
 and the decision seems to have proceeded on the supposition that 
 the word had been originally " dispose," which in the opinion of 
 some of the judges was a better word for the purpose than dispone, 
 as being more comprehensive, (d) The terms of the prohibitory 
 
 (s) Per Lord Meadowbank in Hamilton (z) Bontine v. Bontine, 24 March 1864, 
 
 v. Macdowal, 3 March 1815, F.C. See pp. 2 Macph. 918. 
 
 313 and 329. (a) 2 Macph. 922. 
 
 (y) Duke of Queensberry' s Trs. v. Earl of (b) Glassford's Tr. v. Glassford, 7 July 
 Wemyss, 1807, M. " Tailzie," App. No. 15 ; 1864, 2 Macph. 1317. 
 17 Dec. 1813, 5 Pat. 758; 2d Case, 25 (c) See opinions in Hamilton v. Mac- 
 May 1813, F.C, 12 July 1819, 1 Bligh, doioal, supra. Also Elliott v. Pott, 14 
 337, and more fully, 6 Pat. 466 et seq. March 1821, 1 Sh. (Ap. Ca.), 16; Stirling 
 And see the case of Duke of Roxburghe v. v. Dun, 22 June 1829, 3 W. & S. 462. 
 Ker, 5 Pat. 609 and 768, as to feus. The (d) According to the evidence of an en- 
 subject of the exercise of powers of feuing graver, the letter " s" of dispose was dis- 
 and leasing under entails is treated infra, tinctly visible through the superinduced 
 chapter 33, sect. 1. writing. As to (ho snftiripney of popular
 
 OF THE STATUTORY REQUISITES OF A STRICT ENTAIL. 541 
 
 • are not stated in the report; but we presume they had not chap. xxxh. 
 included the word £i alienate," which, as we have seen, would have 
 been sufficient of itself to support the entail in so far as relates to 
 the first of the statutory prohibitions. 
 
 1044. A prohibition to sell does not strike at gratuitous aliena- « Sell" insuffi- 
 tions, as was found in the case of Russell v. Eussi 11. e) Where an Eatag^a- 
 entail declared that it should not be in the power of the heirs sue- |;! litous aiiena- 
 
 T. • tions. 
 
 ceedmg to the estate " to sell, alienate, impignorate, or dispone the 
 Baid lands and estate, or airy part thereof, either redeem a hi// or un- 
 der reversion," (/) — and in another case, where the word " irredeem- 
 ably" was used, but the first four letters were written on an era- 
 sure,^) — it was lirld that irredeemable sales were not effectually 
 prohibited. 
 
 1045. Prohibitions against alienation cannot be implied from Prohibition 
 expressions which are properly applicable to the contraction of^^t^jfed 
 3ebt or to the alteration of the succession; as, for example, that from expressions 
 
 , properly appli- 
 
 the heirs shall not "burden the said estate;" (A) or " infringe the <»bie to debts. 
 foresaid tailzie ;" (/) or " do any other fact or deed that may anywise 
 affect, burden, or evict" the estate ;(j) or "do any facts or deeds 
 in prejudice of the other heirs their right of succession." (h) 
 
 1046. III. Prohibition against Contraction of Debt. — Upon Contraction of 
 this point our observations will be brief. With the exception ol JSSSd^i 1 " 
 the Carleton case, there are no reported decisions in which dfr<\> f relation to the 
 
 1 estate. 
 
 entail have been found defective in the terms of the prohibitory 
 clauses applicable to the contraction of debt, and it would be use- 
 less to attempt to anticipate objections which have not occurred, 
 and which are not likely to occur, in practice.(Z) The prohibition 
 
 language, see dimming v. Gordon, L761, (/) Campbell v. Wigktman, 1746, M. 
 
 .M. 15,513, wh< re a prohibition "to Bquan- 16,605. 
 
 der or put away " thi • heldsuffi- (/) Sinclair v. Sinclair, 1749, M. 16,882; 
 
 eienl to bar alii nation. 1 I Feb. I 760, I !r. St. & Pat. 159. 
 
 S . I: ell, 7 Dec. 1852, 16 (A) Scott Nisbet v. Young, 1763, M. 
 
 D. 192. Under this entail the Courl bus- 15,516; 2] Feb. L 765, 2 Pat. 98. 
 
 ted to younger child- The unreported case of Welsh v. 
 
 ren before thi date of the Entail Amend- Robertson, 14 Fune 1820, cited in Duncai 
 
 in' ni Act, i of tin' powers com- Digest, p. 103, w itate nol to 
 
 peteni to the proprietor a an heir of en- erroneously decided, if any decision was 
 
 tail, and ;'l o found thai tin- entail was mean! I" be given adverso to the efficacy 
 
 invalid under the I8d ection of that Act. of this clause, as to which Bee thi interlo- 
 
 (/) Earl of Eglinton ■-. \fontgom < ll cutor; Duncan's Dige i. p. L69. Bj this 
 
 Feb. 1846, 7 D. 426 3 J I r, 6 I'- II, entail ii i I aol to be I 
 
 I B6. •■ to contrai I debl . ■■■■■ berel | the 
 
 (rj) Boswell \. Boswell {Auchinleele), 81 i tati | maj bi evicted or burdened to the 
 
 prejudice ol the m si hi ir of taillii 
 
 (A) Hepburn v. Earl <J Hopetoun, 17 ceeding bj the ordei entioncd." 
 
 Pel 1782 on appeal, 5 April 1784, Eviction, 1 neral term, musl in- 
 
 Dnncnn' I 1 t, p, 88. elude eviction bj legal diligence ; and the
 
 542 OF THE STATUTORY REQUISITES OF A STRICT ENTAIL. 
 
 ohap. xxxii. desiderated by the Statute is one making it unlawful for the heirs 
 _ succeeding to the estate " to contract debt, or do any other deed 
 whereby the samen may he apprised, adjudged, or evicted from the 
 other substitute in the tailzie." What is essential is a prohibition 
 against the contraction of debt in such a way that the estate may 
 be made the subject of eviction by adjudication or other legal dili- 
 gence, (m) The reference to " other deeds whereby the estate may 
 be evicted," which is usually inserted in compliance with the statu- 
 tory formula, is understood to relate either to feudal delinquencies 
 or to deeds ejusdem generis with the debts which are the substantive 
 object of the prohibition. The statute requires that the contraction 
 of debt by the heirs of entail should be prohibited, not absolutely, 
 but with reference to the estate (n) or to the interest of the substi- 
 tuted heirs, (o) 
 "Debt," or an 1047. It was suggested by one of the judges in a recent case,(^>) 
 
 must be n u S ed 0rd tnat unless the word " debt " is used in the clause, the contraction 
 of debt is not effectually prohibited. We prefer the modified state- 
 ment of this proposition by Lord Deas, that the word " debt" must 
 be used, or one of equivalent import. (#) " To wadset or burden 
 with infeftments of annualrent, nor any other servitude or burden 
 . . . nor to do any other fact or deed . . . whereby the 
 said lands may be affected," was the expression used in the Carle- 
 ton entail, and this was found to be insufficient, first by Lord Mon- 
 creiff in 1830,(r) and more recently by the First Division of the 
 Court (s) in an action founded on the 43d section of the Entail 
 Amendment Act. And where an irritant clause, in the branch of 
 it applicable to the prohibition against the contraction of debt, irri- 
 tated in the event of contravention only " bonds" and " obligements 
 
 case of Seton, 16 D. 659, is an authority to " to contract or take on mmmes of money, 
 
 the effect that eviction from the next sub- whereby the said lands and others foresaid 
 
 stitute, and not from the contravener him- may be affected or evicted from them." 
 
 self, is the consequence which is contem- (r) Cathcart v. Cathcart, 12 Feb. 1830, 8 
 
 plated by the words of the Statute, and Sh. 497, 502. The heir in possession had 
 
 against which it is necessary to direct the granted a bill for £150,000, without value, 
 
 prohibition. with the view of constituting a debt on 
 
 (m) Per Lord President Colonsay in Ar- which adjudication might follow. Lord 
 
 buthnott v. Arbulhnott, 3 Macph. 837. Moncreiff found that the entail contained 
 
 (n) Per Lord Campbell, 3 Bell, 290 ; see no prohibition against the contraction of 
 
 also 3 Macph. 837, per Lord President debt whereby the estate might be adjudged 
 
 M'Neill. or evicted, but that the heir had not in 
 
 (o) Setonv. Seton,! Marchl854, 16 D.659. fact contracted any such debts. The judg- 
 
 (p) Cathcart v. Cathcart, 1 Macph. 766, ment of the Court, and of the House of 
 
 per Lord Curriehill. Lords on appeal, 5 W. & S. 315, affirmed 
 
 (q) 1 Macph. 767. See the case of his Lordship's judgment on the latter point 
 
 Sutherland v. Sinclair, 26 Feb. 1801, F.C. ; only. 
 
 and M. " Tailzie," App. No. 8, where a («) Cathcart v. Cathcart, 31 March 1863, 
 
 clause was sustained prohibiting the heirs 1 Macph. 759.
 
 OF THE STATUTORY REQUISITES OF A STRICT ENTAIL. 543 
 
 made in the contrair," the entail was held ineffectual toproteel the chaf.xxxh. 
 estate against even such debts as were constituted by bonds and 
 obligements.(£) 
 
 1048. A prohibition "to contract debt upon the estate" is a Effect of expie- 
 sufficient compliance with the statutory requirement ;(u) and the «jj ^? rds: 
 adjection of the words "by any security whatsoever" does not ^ ec t;" "Secu- 
 weaken tlie exi.ression, for the words are properly descriptive of" 
 judicial securities (including adjudication), as well as of voluntary 
 securities. (Y) In the Aboyne casc,(y) a prohibition "to burden or 
 
 affect (z) the said lands, in whole or in part, with debts or sums of 
 money," was sustained by unanimous judgments in the Court of 
 Session and House of Lords. " A prohibition," said Lord Campbell, 
 " against burdening the land with debt, and a prohibition against 
 contracting debt, whereby the land may he adjudged or burdened, 
 having the same legal operation, are substantially the same. If 
 the heirs of tailzie were to contract debt and allow the land to be 
 adjudged for the debt, could it bo contended that they had not 
 'burdened or affected the same, in whole or in part, with debt.' 
 The express prohibition in this case commences at the point where 
 the more general prohibition would practically begin to operate." 
 In the Finzean case,(a) which was d ided ou p ' along with 
 the Aboyne case, the words " or affect" were wanting. The clause, 
 which in other respects was identical with that of the Aboyne en- 
 tail, was held to import a prohibition to eontracl debt, satisfying 
 the words of the Statute. 
 
 1049. IV. PROHIBITION A.GAINST ALTERING THE ORDER OP SUCCES- Frequency of 
 
 HON.— This, a< cording to the resull of the decisions, appears to be \ 
 iosI vulnerable of the prohibitory clauses, as it was, according to ,: 
 the law which prevailed before the passing of the Entail Aim-nd- 
 
 Ur G. Dunbar, 17 July 1844, (z) The words " or a not esen- 
 
 >', I). 1820. Bee aJ o Cathcart v. Maclaine tial, vidt infra. 
 
 (Lochbuy), 1 .Inly L846, 8 D. 970, w] Adam v. Farquharson, 18 June 1840, 
 
 tl'" "nil- ion <>!' tin' words "to contract 'J l>. 1168; •'. Sept. 1844, :'. Bell, 295. 
 
 debt" in thi chartei and i ine following 'I'll. . decided on the authority 
 
 on an dntail, was held to leave tho estate ofthreepri I rtofSession, 
 
 open '•■ < •■' cution for debt. Eaggart v. Vans Agnew (Sheuchan), 19 Dec. 
 
 Da vr v. /;///•</,„, 26 Nov. 1845,8 1820, F.C. ; >/ •■■ ■' .. \fa | Yew- 
 
 •_'•". March I860, 7 Bell, 32 ; Seton v. halt), 28 Maj 1828, 2 8h. 881, \. E. 298 ; 
 
 8eton, 1 March 1864, L6 D. 669. Nisbet v. Sir D. '/ • . L0 
 
 lrbuthnott\.Arbuthnott,21 Maj 1865, June 1828, '1 Sh. 881, V E. 889; In two 
 
 the Lord Pn idi til ob- of thi I be prohibit was 
 
 // ten {Rocheid's Tr.) identical with thai of the Aboyne and 
 
 / '" / - ; i Jan. 18i / . and in the third il 
 
 O/i Lindsay v. Earl of Aboyne, 2 Match the ami in ubstance. A - l limn 
 
 1842, ID. 6 18; 6 Si pt. L844, 8 Bi II. 264 ; of the pn I m Lord 
 
 Bogle £ t 26 March I860; Jervi irbuthnott v. Arbuth 
 
 7 !'.• 11. 66. nott, 8 Ma rph
 
 544 
 
 OF THE STATUTORY REQUISITES OF A STRICT ENTAIL. 
 
 ohap.xxxii. ment Art, the one in which an error was most prejudicial to tlie 
 entail. From the Argaty case to the case of Elpi hinstone v. Burnt! 
 in 1850, no loss than sixteen cases are reported in which deeds of 
 entail were challenged on the ground of defective expression of the 
 statutory prohibition against altering the succession ;(6) of these 
 only three were bund to contain effectual prohibitions ; and one of 
 the cases, that of Loclibuy,(c) after being repeatedly overruled, was 
 formally pronounced by the House of Lords to be "no longer 
 law."(c?) The defective clauses in the cases which have been sub- 
 mitted to adjudication are all of the same general description ; and 
 the nature of the error is such that, when distinctly apprehended, 
 no difficulty (an be experienced in determining, in any other case, 
 whether the prohibition falls within the exceptionable category. 
 Prohibition held 1050. According to the conception of the Statute 1685, the deed 
 atK/the* 1 * 61 " ° f entail ought to contain a positive prohibition directed against 
 succession only c i eec i s w l ier ebv the succession is " frustrate or interrupted ;" or, as 
 
 prohibited con- J m •*■ . 
 
 sequentially. it is usually termed, a substantive prohibition against alteration of 
 the order of succession. (e) In the cases of the class to which we 
 have referred — of which the Earlshall case(/) may be cited as one 
 of the least open to criticism, — the alteration of the succession was 
 either not prohibited at all, or was prohibited as a consequence of 
 the contravention of the previously expressed prohibitions against 
 alienation and contraction of debt. This is very clearly explained 
 in the speeches of Lords Cottenham and Brougham in the leading- 
 case of Lang v. Lang, (g) After reviewing the previous decisions, the 
 Lord Chancellor proceeds,(A) — " The Earlshall case, in 1815, is 
 stronger. The prohibition was against selling or contracting debts, 
 or doing, or committing any fact or deed, civil or criminal, whereby 
 
 (b) Two cases of a different description, 
 but presenting a considerable similarity in 
 their circumstanceshave been decided since 
 the passing of the Entail Amendment Act; 
 these are Gollan v. Gollan, 24 D. 1410, 
 4 Macq. 585 ; and Bontine v. Bontine, 19 
 March 1863, 1 Macph. 665. In both cases 
 the deeds contained proper prohibitory 
 clauses directed against the alteration of 
 the succession, which, however, were al- 
 leged to be vitiated by erasures. In the 
 first, the Court held that the superinduc- 
 tion upon an erasure of the letters " to 
 inn " in a prohibition " to innovate, alter, 
 or infringe the order of succession," was 
 immaterial. In the second case, a similar 
 opinion was expressed with reference to 
 the superinduction of the words " to do " 
 in a prohibition to do any act which might 
 
 import or infer innovation, which was pre- 
 ceded by a substantive prohibition against 
 alteration, to which no objection was 
 stated. 
 
 (c) Maclaine v. Maclaine, 1807, M. " Tail- 
 zie." App. No. 14. 
 
 (d) In Lang v. Lang, M'L. & Rob. 896. 
 
 (e) A clause prohibiting the heirs from 
 possessing the estate upon any other title 
 than the entail does not import a prohi- 
 bition against altering the succession ; 
 Henderson v. Henderson, infra ; see Lord 
 Alloway's interlocutor. 
 
 (/) Henderson v. Llenderson, 21 Nov. 
 1815, F. C. 
 
 (g) Lang v. Lang, 23 Nov. 1838, 1 D. 
 98 ; 16 Aug. 1839, M'L. & Rob. 871. 
 
 (A) M'L. & Rob. 886.
 
 OF THE STATUTORY REQUISITES OF A STRICT ENTAIL. 
 
 545 
 
 the said lands and estate, or any part thereof might be in anywise 
 adjudged, evicted or forfeited anyways from them, or might be 
 • affected in prejudice and defraud of the subsequent heirs of tailzie 
 and provision successively, conform to the order and substitution 
 above specified.' Now, altering the order of succession would he 
 most accurately described as 'a fact or deed whereby the estate 
 would be affected in prejudice of the heirs of tailzie;' but the pro- 
 hibition was held not to include alteration of the succession, because 
 these terms were so involved in the prohibition against contracting 
 debts as to express rather a consequence of any such act than a 
 distinct prohibition against altering the succession." (i) " If," said 
 Lord Brougham, " you only state burdening with debt or altering 
 the order of succession, as consequent on the act of selling, or dis- 
 poning, or alienating, when you are principally and substantively 
 dealing therewith, that will have no effect against those acts; it is 
 not enough to say, 'lie. my heir of entail, shall not sell, whereby 
 tie- estate may be incumbered or evicted, or the future succession 
 defeated.' . . . Here the fact of altering the order of succession 
 is only brought in consequentially, and under the cover of the other, 
 as connected with and arising out of it." (A 1 ) 
 
 i h \r. xxxii. 
 
 (ij M'L. & Rob. 891. 
 
 We subjoin a list of the cases in 
 which entails have been found defective 
 in the prohibitions againsl nit. ring the 
 succession, with examples of the expletive 
 words alleged to be equivalent to such pro- 
 hibitions: — Stewart v. J/oome (Argaty), 
 . M. 15,535; i! Or grant anj deedswhat- 
 r, whereby these land , or any part 
 of them, i udi- 
 
 cation or others i /.'. 
 
 Dalhoutie (Eastfield), 25 May 1808, M. 
 Izie," App. No. 19 ; " Nor do any other 
 •a hereby the said land and others 
 id, or any pari tin n of, may be ap- 
 I, adjudged, or any manner of way 
 d in prejudice of thi pn dI tail- 
 Eie, or of those who, by virtue thereof, 
 ■ball bo then to ucceed." Purves' Trt.v. 
 1 nbell | Purves and / ambdi n), 7 .1 
 1814 Hui -7 ! // on \. llend 
 
 hall), 21 Nov. 1815, F.I cited 
 
 *>//</</. Iiotl . / / • 'ir), 
 
 : 1810, Duncan's Dip t, p. 99 ; Oli- 
 phant v. Oliphant \ Ardblair), 7 Jul 1816, 
 I I /< : ion v. i/ Donald \ Blairhall), 6 
 July 1816, Dune p. 102. Grant 
 
 v. Tytler i 
 
 I I ; "Or to do any act, '-i\il or crimil 
 VOL I. 
 
 that shall be the ground or foundation of 
 any adjudication, eviction, or forfeiture of 
 
 the said lands and estate, or any part. 
 
 thereof, or which tnay anyways affect or 
 burden the same." Gilmour v. Cadell 
 {Liberton . 5 July 1838, 16 Sh. L261 ; "Or 
 dor any othi r di ed whi r< by the said lands, 
 baronies, and othej rt 1 hereof, 
 
 may be comprisi d, adjudged, or otherways 
 i % icted or forfaulted, in prejudice of ibis 
 present tailzie, or any designation which 
 shall hi reafto t be made by me, and the e 
 
 v. bo are I icei d be vertue of the samen." 
 
 Brainier v. Bethune (Balfour), 18 Jan. 1889, 
 1 1 1. 888. Lang v. Lang (Overton), 28 
 Nov. 1888, I D. 98 ; L6 Aug. L889, M'L. 
 & Rob. 871 ; " Nor do anj other deed, 
 whereby tb( aid lands and subjects may 
 be adjudged or e^ icted from the bucci ed 
 ing meml tail, or their hopes of 
 
 a there to i n an j m led." 
 
 ',.;// . 10 
 
 March 1840, 2 D. 826. Elphinstontv. B 
 
 Durno and Hunthall), 6 March I 
 12 D. 848; ' 'r doe any d. i d « hereby 
 
 the samen, or an) pair! H f, maj 
 
 apprysed, adjudged, or of] ted, 
 
 in prejudice 
 who by this pi 
 
 2 •:
 
 fori ill l.illzi- 
 
 546 OF THE STATUTORY REQUISITES OF A STRICT ENTAIL. 
 
 chap, xxxii. 1051. The passages cited from the opinions delivered in the 
 Analysis of the Overton case sufficiently explain the rule of construction applicable 
 l ': I r"i"" Mhi '. to merely expletive clauses, following the two primary prohibitions, 
 ti.ii. Prohibi- and pointing to the frustration of the course of succession as a con- 
 prejudice of the sequence of the contravention of those prohibitions. The citations 
 given in the note to the last paragraph will facilitate the compari- 
 son of the clauses in the various entails which have been held to 
 fall within the rule of criticism laid down in that case. We have 
 only to add, that general words of prohibition applicable to deeds 
 " in prejudice of the foresaid tailzie and succession" (I) or " in preju- 
 dice of the said tailzie, and of the persons above-mentioned," (m) 
 are held to satisfy the requirement of the Statute, provided the 
 " deeds" mentioned in the clause are not classed with those which 
 may be the ground of adjudication or eviction, but are clearly dis- 
 joined from the subject matter of the antecedent prohibitions. 
 
 1052. The question whether a deed or instrument of a given 
 description falls within the scope of a particular prohibition has 
 lately acquired a special interest in relation to the prohibition 
 against altering the succession, since upon its solution depends the 
 question of the efficacy of such prohibitions without the accompani- 
 ment of irritant and resolutive clauses. It is commonly affirmed 
 that a simple prohibition against altering the order of succession is 
 binding inter heredes; and if this be true universally (so as to com- 
 prehend the heirs of provision under a marriage-contract), such a 
 prohibition, although unfettered, is effectual for all purposes, be- 
 cause all questions upon alterations of the order of succession are 
 questions inter heredes. The case of Carrick v. Buchanan settles 
 that the simple prohibition is effectual at common law against gra- 
 tuitous deeds, including in that category a deed in favour of the 
 granter himself, (n) Deeds in favour of creditors are not regarded 
 as deeds altering the succession, but as deeds of alienation, the 
 question with reference to them being whether alienation is effec- 
 tually prohibited, (o) The chief difficulty consists in determining 
 whether a marriage-contract (which cannot be held to be a gratui- 
 tous deed) is effectual in respect of the prohibition, (p) 
 
 (I) Innes v. Ker (Roxburgh* case), 1807, Sept. 1844, 3 Bell, 342 ; and see Lady Dal- 
 
 M. "Tailzie," App. No. 13 ; 8 June 1811, 5 housie's case, M. "Tailzie," App. No. 19. 
 
 Pat 361. (°) &y me v. Dickson (Blairhall) , Z March 
 
 (m) Campbell v. Buchan and Monypenny 1821, F.C., and cases cited in Lindsey v. 
 
 (SlrathbrocJc case), 16 Aug. 1839, M'L. & Oswald, 5 Macpli. H. L. 12, Law Eep. 1 
 
 Rob. 898 ; unreported in 0. of S. ; but see Sc. Ap. 99. 
 
 the previous case on the same entail ; Rowe (p) Dicta in cases cited supra, g 1021, 
 
 v. Monypenny, 9 Feb. 1837, 15 Sh. 500. note ; and see Mackenzie on Entails, vol.2, 
 
 (n) Carrick v. Buchanan (Burnhead), 5 pp. 487-8.
 
 OF THE STATUTORY REQUISITES OF A STRICT ENTAIL. ' 7 
 
 iinr. xnn. 
 SECTION II. 
 
 OF THE IRRITANT AND RESOLrTlYK CLAUSES. 
 
 1053. In this section we have to consider, first, what is requi- Division of sub- 
 site to the frame of irritant and resolutive clauses ; and secondly, Jiause; 2"ii&3o- 
 the application of the irritant and resolutive clauses to the three Y lv v ci 
 
 i i AppllC 
 
 statutory prohibitions. It is in the application of the fettering 
 clauses that those errors have mos1 frequently occurred which made 
 this branch of the law so productive of litigation, and which, from 
 the great numher of reported cases that must he dealt with, render 
 the subject peculiarly embarrassing to the systematic writer. In 
 the introductory part of the preceding section reference has been 
 made to some general rules of criticism applicable to all the re- 
 straining clauses of <\c<'>\< of entail. We have seen that the clauses 
 must designate precisely the estate, and also the persons (including 
 the institute) to which they are intended to apply; and that an es- 
 tate cannot he subjected to the fetters of a strict entail by a mere 
 reference to and adoption of the restraining clauses contained in a 
 prior deed. (q) It is unnecessary to repeat what has been said on 
 these topics, or on the subject of the rules of construction applicable 
 to erasures and omissions in the restraining clauses. 
 
 1054. I. Irritant Clause. — The object of the irritant elan 
 
 i- to declare that act- and deed- in contravention of any of the pro- omissions, 
 hibitions are null and void againsl the estate. Erasures or omis- 
 sions in this clause are therefore fatal wherever their effecl is to 
 leave a hlank either in the words denoting the things annulled or 
 in the words declaring the nullity. Of the former class was the 
 *»iiii — i**ii in the Hoddarn i where the words which should 
 
 have st I as a nominative to ••-hall be of no force, strength, or 
 
 i." had been omitted by the writer, and it was proposed to fill 
 up the blank by supplying the words " debts, deeds, and acts" from 
 the introductory part of the clause. This, for obvious reasons, was 
 held by the Eouse of Lord- to he inadmissible, and contrary to the 
 principles ol strict construction. With respect to deeds of entail 
 defective by reason of their qoI containing any effectual irritancy 
 or declaration of nullity, it is sufficient to refer the reader to the 
 reported ca es. . I 
 
 1055. The words " null and void" are nol essential to an irri- 
 
 fyi l | upra. ■ ' irmichael, 1784, M. 15,500; 
 
 1882, 10 Gairdner \. Heirs of Dunnipace, 1744, M. 
 
 SI, .717: 18 April 1886 l I. & M'L. 694. 16,601; Kempt v. Watt, 1779, M. 16, 
 
 Henderson v.B I I < '.. Si e the cl Duncan'i] 
 
 where thei ation of deeds incontra- pp. 119 L21. 
 
 Mention of the • atail, in the in a inl cl 
 
 2 m 2
 
 548 
 
 OK THE STATUTORY REQUISITES OF A STRICT ENTAIL. 
 
 OHAP. XXXII. 
 
 Irritancy may 
 be constituted 
 by any words 
 annulling the 
 contravention. 
 
 tancy, and • they may be replaced by any expression of equivalent 
 import, such as " invalid and ineffectual," or " of no force, strength, 
 or effect. "(t) The irritancy required by the Statute is a declaration 
 of nullity of the acts of contravention as affecting the estate, not in- 
 trinsic nullity, or nullity against the contravener. (u) A declaration 
 of nullity as against the heirs of entail admits of being read as a gene- 
 ral irritancy applicable to the estate : the reference to the heirs is 
 rejected as surplusage, and it is immaterial that the institute is not 
 mentioned, (x) 
 Resolutive clause 1056. II. Resolutive Clause. — The object of the resolutive clause 
 forfeiture of the is to declare the forfeiture of the right of the person contravening 
 lution to next™' an 3 r °^ the prohibitions or other conditions of the entail, and the 
 heir - devolution of the succession to the next heir-substitute, (y) Accord- 
 
 ing to the usual style, the person contravening is said to " forfeit, 
 arnit, and lose " his right and interest, and the estate is declared to. 
 " fall and belong " to his successor. None of these words are es- 
 sential. The word " irritate "has been held equivalent to " forfeit," 
 when used in a resolutive clause, (z) According to the terms of the 
 Statute, it would appear that the two things must be expressed — 
 the forfeiture of the contravener's right, and the devolution of the 
 estate, (a) As regards the contravener, the forfeiture may either be 
 for himself only, or for himself and .his descendants ; and the de- 
 scendants of a contravening heir are entitled to succeed in the case 
 of a forfeiture, unless their right is expressly barred by the terms of 
 the resolutive clause. The declaration, sometimes added, that the 
 next heir making up a title shall take the estate without being af- 
 fected by the contraventions, is surplusage, and omissions in such 
 a declaration are immaterial, (b) 
 
 1057. III. Application of the Irritant and Resolutive Clauses. 
 — Irritant and resolutive clauses are either independent and com- 
 
 Classification of 
 restraining 
 clauses accord- 
 ing to their 
 structure. 
 
 (t) Lindsay v. Earl ofAboyne, and Adam 
 v. Farquharson, infra. See observations in 
 the former case by Lord Campbell, 3 Bell, 
 292. 
 
 O) Munro v. Munro, 15 Feb. 1826, 4 Sh. 
 467, N. E. 472 ; see Lord Balgray's opin- 
 ion ; affirmed 25 July 1828, 3 W. & S. 344. 
 
 (x) Lindsay v. Earl of Aboyne, 2 March 
 1842, 4 D. 843 ; 5 Sept. 1844, 3 Bell, 254, 
 see p. 292. Adam v. Farquharson, 18 June 
 1840, 2 D. 1162 ; 5 Sept. 1844, 3 Bell, 295. 
 
 (y) Several cases occur in the older re- 
 ports in which deeds of entail have been 
 found ineffectual by reason of their con- 
 taining no resolutive clause. These do 
 not raise any question of construction. 
 
 The case of Mitchelson v. Atkinson, 15 June 
 1831, 9 Sh. 741, is of this class. 
 
 (z) Anstruther v. Anstruther, 26 Nov. 
 1840, 3 D. 142 ; and see Borthwick v. Glass- 
 ford, 15 Nov. 1853, 16 U. 37. In the case 
 of Eliott of Stobs, the word " amit " was 
 alone used, and the resolutive clause was 
 sustained, 1803, M. 15,542. 
 
 (a) The latter alone was held insufficient 
 in Hepburn v. Hepburn, 1758, M. 15,507; 
 6 Dec. 1758, 2 Pat. 17; and Welsh v. Ro- 
 bertson, 13 June 1820, unreported ; see the 
 clauses in Duncan's Digest, pp. 149 and 
 169. 
 
 (b) Borthwick v. Glassford, 9 Nov. 1853, 
 16 D. 37.
 
 OF TIJE STATUTORY REQUISITES OF A STRICT ENTAIL. oil)" 
 
 plete in themselves, or are connected with the prohibitory clause by chap. xxxu. 
 introductory phraseology common to both. Of the former class is 
 that description of irritant clauses which follows in immediate 
 sequence to the last prohibition, and commences with the words, 
 "all which acts, deeds," etc. Where the irritant clause is framed 
 in this way, the resolutive clause which follows is always indepen- 
 dent of it by construction, and will often be found to be accurate I v 
 applied to all the prohibitions, while the irritant clause is, by its words 
 of reference, applicable only to the last member of the clause of pro- 
 hibition. Where the irritant and resolutive clauses are connected 
 in construction, they are usually preceded by introductory words, 
 such as " In case the said A. B., or any of the heirs of tailzie, shall 
 contravene any of the before-written conditions, restrictions, etc., 
 either by failing," etc. Here the extent of the application of both 
 clauses is dependent on the force of the introductory words; and 
 where these do not bear reference to all the prohibitions, the entail 
 is defective alike in the irritant and in the resolutive ciauses. Clauses 
 framed in this way. if the introductory words contain an enumera- 
 tion of the acts of contravention to which they are applied, are said 
 to be framed " on the principle of enumeration ;" otherwise, they are 
 said to be framed "on the principle of reference." It is not essen- 
 tial that the prohibitions should be referred toby their proper gene- 
 ral name; the most usual words of reference are "conditions, pro- 
 visions, restrictions, and limitations," and any of these terms would 
 be held to include the statutory prohibitions if the context admitted 
 of that construction. The use of the word "other," in connection 
 with " conditions," etc., does not detract from the generality of the 
 reference.(c) 
 
 1058. (1) When tin irritant clause is immediately connected with irritant ci 
 the prohibitory 'inns, by the words " all which " or "oil such ;" — e.g., '„"''i!'v. 
 '■All which acta and deeds prohibited as aforesaid are hereby de- Jjjjlv! 
 clared to be anil and void." — In this style of clause, the acts of con- <*<* 
 
 prohibition 
 
 traventioD proposed to be annulled are indicated by the relative against con- 
 "which" or "such," the antecedenl being found in the prohibitory 
 clauses. Where i he words agreeing with " \\ hich " or " such " have 
 no special antecedenl in any of tin- prohibitory clauses, they air 
 takes io apply generally to the whole prohibitions ; and tin irritancy 
 od. 'in thie principle, the expression "all which debts, /acts, 
 and deeds are by these presents declared to be void and null " v. 
 sustained as an irritancy satisfying the Statute. The word 
 did qo1 occur in the phraseology of the prohibitory cla Th< 
 
 ression "all which facts" wa therefon held to applj '-all fai i • 
 
 (V) Stirling y. M 1 D. 640
 
 550 of tup: statutory requisites of a strict entail. 
 
 chap. xxxn. of the prohibited description ; facts of alienation, of debt contracted, 
 or of alteration of the succession. (d) But where there is contained 
 in the immediately antecedent member of the prohibitory clause 
 (usually in connection with the prohibition against contracting 
 debts) a reference to " debts and deeds, whereby the estate may be 
 adjudged or evicted," and this is followed by an irritancy of " all 
 such" or " all which debts and deeds," the debts and deeds specially 
 mentioned in the prohibitory clause are held to constitute the proper 
 antecedent to the corresponding words of relation in the irritant 
 clause, the operation of which is thus confined to such debts and 
 deeds as may be made the ground of adjudication, (e) On this prin- 
 ciple of construction the entails of the estates mentioned in the 
 preceding note were held to be defective in the irritant clause. To 
 these we may add the often cited case of the Overton entail, (/) in 
 which this particular rule of construction was first established, and 
 which, although properly belonging to the second group of cases, 
 differs from the foregoing only by containing the introductory words, 
 " and if they shall do in the contrary." 
 Relative 1059. Where the words of reference in the irritant clause take 
 
 "s^S^foUowed the form of a specification of different modes of contravention, it 
 by an enumera- wou i<i appear that the clause is defective if the specified modes of 
 
 tion of modes of Jrx . . 
 
 contravention, contravention are not so comprehensive as to apply in fair con- 
 struction to all the prohibitions. Thus an irritancy of " all which 
 rights and dispositions, wadsets, bonds, and other writs," was held 
 not to apply to adjudication or other real diligence against the estate 
 for personal debts ; (g) and in a more recent case a similar enumera- 
 tion was held not to apply to contraventions of the prohibition 
 against altering the succession, (h) 
 irritancy framed 1060. (2) Where the irritant and resolutive clauses are pre- 
 dause" and'on' 6 ceded by introductory words framed on the 'principle of reference. — 
 the principle of rpj group of cases falling within this description differs from 
 
 reference. ox _° ■ 4 , 
 
 the last chiefly in the circumstance that the declaration of nullity 
 
 (d) Hay v. Hay {Ramies), 20 Dec. 1842, (h) Cunyngham v. Cunyngham (Preston- 
 5 D. 347. field), 9 March 1852, 14 D. 636. In Dewar 
 
 (e) Graham v. Murray (Balffowan), 21 v. Dewar, 20 July 1852, 14 D. 1062, there 
 Jan. 1848, 10 D. 380; 3 May 1849, 6 Bell was a similar irritancy of dispositions, wad- 
 441 ; Barclay v. Adam, 18 May 1821, 1 sets, etc., " and other deeds of contraven- 
 Sh. (Ap. Ca.) 24 ; Sinclair v. Sinclair tion," but the prohibition against altering 
 (Clbster), 26 Feb. 1841, 3 D. 636; Baillie the succession was brought in at a sub- 
 v. Baillie (Mellerstain), 12 July 1850, 12 sequent part of the deed, and it was held 
 D. 1220. that the irritant clause did not apply to it. 
 
 (/) Lang v. Lang, 23 Nov. 1838, 1 D. 98 ; This form of clause was the subject of dis- 
 
 16 Aug. 1839, M'L. & Rob. 871. cussion in the Kintore case as to which see 
 
 (g) Welsh v. Robertson, 13 June 1820, \ 1061, infra. 
 Duncan's Digest, p. 168.
 
 OF THE STATUTORY REQUISITES OF A STRICT ENTAIL. 55] 
 
 is preceded by the words '"in case the said heirs shall contra- chap.xxxu. 
 vene," etc., or some equivalent phraseology. The reported c 
 are numerous, but they may all be reduced t<> a few general nil.-. 
 which arc similar in substance to those we have considered in re- 
 lation to the first group. 
 
 1061. Where the construction is unembarrassed by the use of irritancy of all 
 the relatives "which" or "such," an irritant clause framed on the deeds," or 
 principle of reference is good. This rule is exemplified by the ^t^'contra- 
 leading case of Lumsden v. Lumsden, where the words ••ami all tl 
 
 debts and deeds of the said heirs of tailzie, or any of them, .' msdenmd 
 
 in contravention of this present entail . . . shall not only be 
 void and null." were held to satisfy the requirements "!' tin- Statute.(a) 
 In the recent case of the Kintore entail (A:) (which deserves to be 
 studied for the just and comprehensive principles of criticism enun- 
 
 ! i ■;. Lords "Wcstbury and Chelmsford), the irritanl 
 declared that if the heirs should contravene the premises, then and 
 in that case all the said venditions, alienations, etc., " and all other 
 crime-, treasons, deeds, and acts done in the contrary of this presenl 
 taillie and provision shall be null and void.'' This clause, it will be ob- 
 served, is not framed on the principle of enumeration of the things 
 contained in the prohibitory clause : for the words of specification are 
 genera] words descriptive of modes by which any of the prohibited 
 things might be accomplish* d, concluding with the nomen general- 
 is8imwm "deeds and acts."(Z) The entail was therefore without 
 difficulty sustained both in the Court of Session and on appeal. 
 
 1062. On the other hand, where the words descriptive of the Distinction 
 mode of contravention are preceded by the relatives "such" and li\ ! : ;'',".'.' nI: 
 ••said." the rules of construction stated with reference to the firsl ■".' 
 
 the n 
 
 group of cases are applicable. The words "facts" and "acts" are "such" or 
 genera] words oi n h r< ace, and either of these, although coupled 
 with "debts and deeds," suffices to impart to the phrase in which 
 it occurs the quality of relation to all the particular things con- 
 tained in the prohibitory clause.(w) The adjection of expletive 
 words to the declaration of nullity, e.g., "sicklikeas if the same 
 
 (i) Lunudenv.L luchindoir), 26 21 Nov. L888, L2 Sh. 71. In tl. 
 
 1- 10, 8 D. L86; I- Aug. L848, 2 th i nl iil was sustained. 
 Bell, 104. AJ o Earlof Buchanv. Ersh [k) Earl of Kintori >/, 
 
 12, I D. 1 130, I 136; 21 I' b. D 1105 
 
 1846, I B( : . 22; La ■■■ i. Lawru L8 Dec. 16 April L868 1 Mac | 
 1854, 17 D. l-l. ... ran, (I) 
 
 " All d( bl . deed ntr acted, I I 
 
 granted, done, oi committed contrary to Macq. 628, 581. 
 
 the foresaid condition! . etc shall '■■' '<' ; 
 
 :>.- void and null ;" and tin II I' •'• ■'■' ' 
 Lord 1 '
 
 .).'-J 
 
 OF THE STATUTORY REQUISITES OF A STRICT ENTAIL. 
 
 CHAP. XXXII. 
 
 Lady ILticar- 
 i/t it's case. 
 
 Wharncliffe v. 
 
 Xiiirue. 
 
 had never been made," does not detract from the generality of the 
 antecedent words of reference.^) Nor is it to be inferred that the 
 contraction of debt is excepted from the " acts and deeds," which 
 are the subject of the irritancy, merely because debts are specially 
 mentioned in the subsequent resolutive clause. (o) 
 
 1063. The case of Lord Wharncliffe v. Nairne,(p) is a very in- 
 teresting and critical illustration of the principle of construction 
 under consideration. The entail prohibited, first, alienation ; se- 
 condly, the contraction of debt, or "any other fact and deed where- 
 by the said lands and others foresaid may be apprised or adjudged ;" 
 thirdly, alteration of the succession. The irritant clause provided 
 that in case of contravention "in any point of the premises," all 
 such debts, facts', and deeds should be null and void " in so far as 
 the samen might infer any actions, personal or real, against the 
 next heir of taillie, or the lands and others foresaid." Here the 
 words " debts, facts, and deeds," used as words of reference in the 
 irritant clause, are identical with those employed in the clause pro- 
 hibiting the contraction of debt ; but because that clause is not im- 
 mediately antecedent to the irritancy, but is separated from it by 
 the clause prohibiting the alteration of the succession, and because 
 the reference is express to contravention " in any point of the pre- 
 mises," it was found that the declaration of nullity was applicable 
 to all the prohibitions. (q) But inasmuch as that declaration was 
 subsequently restricted to matters inferring actions real or personal, 
 the irritancy was held not to apply to voluntary sales, which did 
 not require to be followed by an action for implement, and to that 
 extent only the irritancy was held bad.(r) 
 
 1064. Again where the irritant clause is framed on the principle 
 of reference, and the words in agreement with "such" are "debts and 
 
 those being also the words employed in the prohibi- 
 
 Irritancy by 
 
 reference bad, 
 
 where correla- 
 
 five expressions ^ ft g » mere Py 
 
 found m last ^ 
 
 prohibition. 
 
 Overton case 
 
 Dingwall (Rainnieston), 26 Feb. 1842, 4 D. 
 810; 17 April 1845, 4 Bell, 149; Gilmour 
 v. Gordon (Craigmillar) , 24 March 1853, 
 15 D. 587, where the words " facts and 
 deeds " had for their antecedent " act and 
 do in the contrary ;" Maxwell v. Smith 
 (Merksworth), 29 June 1860, 22 D. 1341; 
 Howden (Rocheid's Tr.) v. Rocheid, 81 Jan. 
 1868, where the words " facts, deeds, etc., 
 . . . done or contracted " were held to 
 comprise written instruments. 
 
 («) Lady Hawarden v. Dunlop {Wig ton), 
 3 Maeph. 748 ; 12 June 1866 (nom. How- 
 den v. Fleeming), L. R. 1 Sc. Ap. 40. 
 
 (o) SL G rigor v. Hamilton (Bardoivir). 26 
 Feb. 1845. 7 D. 532. 
 
 ( p) Lord Wharncliffe v. Nairne (Drum- 
 kilbo), 13 Nov. 1849, 12 D. 1 ; 5 July 1850, 
 7 Bell, 132. 
 
 (</) Se6 Lord Brougham's speech, 7 Bell, 
 139. 
 
 (r) On the point of the construction of 
 the words of reference, this case was held 
 to be ruled by that of Jordanstone (Knight 
 v. Knight, 1 Dec. 1842, 5 D. 221). In 
 that case the irritant clause in the case of 
 contravention " in any part of the pre- 
 mises " annulled " all such debts and 
 deeds," and the prohibition applicable to 
 debts and deeds was not immediately an- 
 tecedent to the irritancy, which was ac- 
 cordingly held good.
 
 OF THE STATUTORY REQUISITES OF A STRICT ENTAIL. 553 
 
 tion against the contraction of debt, and that prohibition being the ohap.xxm. 
 
 immediate antecedent of the irritant clause, — then the irritancy is 
 held bad, as being applicable only to the antecedent prohibition 
 against the contraction of debt.(s) And a reference to dispositions, 
 alienations, and other modes of contravention is bad, unless the 
 enumerated modes of contravention are, on a fair construction, ap- 
 plicable to all the matters embraced in the three prohibitions. (t) 
 
 It is not necessary that the resolutive clause should echo the 
 phraseology of the irritant clause. So, where a deed of entail an- 
 nulled contraventions of the conditions, provisions, restrictions, and 
 limitations of the entail, and the resolutive clause was expressed 
 with reference only to conditions and provisions, the entail was 
 held good, as it did not appear that the entailer attached any dis- 
 tinctive meaning to the words in italics. (u) 
 
 1065 ('.'>) Win,*' the irritant and resolutive clauses are framed Thekb modes: 
 
 1 ( I 1 
 
 on the principle of enumeration. — If to a prohibitory clause, speci- words followed 
 lying various things that are prohibited, there be added an irri- JnumeSn* 8 
 
 taut or resolutive clause, which, beginning with general words (even bad;2.Suchenu- 
 
 . - . ° ° v nicr.it i. m fol- 
 
 <-i reference), proceeds to particularise or enumerate some only of lowed fr 
 the things prohibited, then the concluding words of the clause, de- refereno 
 claring the irritancy or forfeiture, are in construction conlined to the 
 things specified or enumerated. If, again, to a prohibitory clause, 
 consisting of various prohibitions, there be added an irritant or 
 lutive clause, which makes a repetition of some of the things 
 prohibited, and concludes with general words, not being words of 
 reference, the general words are conlined in their extent, and re- 
 duced to Bignify things ejusdem generis with those that are denoted 
 by the special expressions. In either of these casi - the clause tails 
 upon the principle of defective enumeration. (x) Irritant and re- 
 solutive . -hi i iso framed on the principle of enumeration mosl usually 
 begin with some such expression as, "In case any of the heir.-, of 
 tailzie shall contravene or fail in performing any pari of the pre- 
 1111-. a," and the various acts of contravention are introduced by the 
 words " particularly," (y) " either by," (z) or "with respect to."( a ) 
 
 (*) Lang v. Lang ' (ar) Per Lord Chancellor Westbury in 
 
 l D 98; LI I M'L.&Rob. Earl of Kintore v. Lord Inverury, [ Macq. 
 
 871 ; Udny •.. Udny, 16 March 1858, 20 1 1. :,si. 
 
 7'."l ; Hay ■■. Hay (Seggieden), II March (y H ■ /■ 17 
 
 L861 18 D. 946, wh( re th( ach Jan. 1887, l"> Sh. 872 
 
 in the in l to 8. & M'L. 142 ; /' '■' ". Feb. 
 
 : to the <!■ ede mei I 389, I D. 692: 01 n v. \t ■ Jan. 
 
 the immediately antecedent prohibition. 1862, III' 
 Cunyngham v. Ounyngham [Preston' S 
 
 9 M irch 1862, I I D.I L799, M t J i 1801 I 
 
 // • I l: ■ . /' 21 I ind many ol 
 
 :; I Jan 1 - Cuningham v. Fair lie, 8
 
 554 OF THE STATUTORY REQUISITES OF A STRICT ENTAIL. 
 
 chap. xxxn. The construction of the clause is not affected by the terms em- 
 ~ ployed to connect the general with the particular words of reference. 
 3. Incomplete 1066. Where an irritant or resolutive clause, after enumerating 
 
 X'Sy some of the things prohibited, concludes with general words, being 
 t:";';!;,;; 1 words of reference, such general words are equivalent to a repetition 
 Cases of Hard- | t ] ie things so referred to, and the effect is the same as if every- 
 BaiUieiiesk. thing prohibited, which is not enumerated in the first part of the 
 clause had been expressly mentioned in the concluding part of it. 
 Such is the principle on which the judgment in the case of the 
 Haulkerton entail (b) was affirmed in the House of Lords. The 
 principle appears to be sound ; but, as a rule of construction, it is 
 attended with this inconvenience, that it commits to the unaided 
 discretion of the' judge the determination of the question, whether 
 the concluding general words on which the validity of the entail 
 is to hinge, are or are not words of reference. In the Haulkerton 
 case, the general words, " in any one of the several particulars 
 above mentioned" (following a specification of particulars), were 
 held to be words of reference, and so to have the effect of import- 
 ing contravention by alienation into the enumeration of the acts to 
 be annulled. But according to the previous decisions, this effect 
 was denied to words of nearly equivalent import. Thus, in the 
 Balliliesh case,(c) the words " or shall contravene or fail in any 
 part of the premises" following an enumeration, were not allowed 
 to extend the clause beyond the particulars previously enumerated, 
 and it must be confessed, as observed by Lord Chelmsford,(d) that 
 it is difficult to reconcile the decisions. 
 What is held to 1067. Where an irritant or resolutive clause beginning with 
 enumSin. 6 general words of reference is followed by a complete enumeration of 
 the acts prohibited, there can be no objection to its validity, (e) If 
 the three cardinal prohibitions are specified in adequate terms, the 
 introduction or omission of collateral matters will not derogate from 
 the force of an enumeration which is otherwise sufficient ;(/) and 
 
 19 D. 596 ; 28 March 1860, 22 D. (H. L. Cunningham v. Scott Moncrieff, 20 July 
 
 Ca.), 8; Earl of Kintore v. Lord Inverury 1804, 4 Pat. 652; Menzies v. Menzies, 18 
 
 {Haulkerton case), 16 April 1863, 4 Macq. Feb. 1852, 14 D. 522, and many others. 
 
 521. {d) 4 Macq. 534. 
 
 (6) Earl of Kintore v. Lord Inverury, 18 (e) Benton v. Munro (Poyntzfield), 19 
 
 June 1861, 23 D. 1118; 16 April 1863, 4 July 1843, 5 D. 1419; Eliott of Stobs, M. 
 
 Macq. 52o! 15,542, 1803 ; Deivar v. Burden, 26 Nov. 
 
 (c) \ Home v. Bennie, 13 March 1838, 3 1845, 8 D. 90 ; 25 March 1850, 7 Bell, 
 
 S. & M'L. 142 ; followed on this point by 32. 
 
 Thomsons. Milne, 27 Feb. 1839, 1 D. 592; (/) See the cases cited in the preced- 
 
 arid Glen v. M'Turk, 23 Jan. 1852, 14 D. ing note, and Anstruther v. Anstruther, 26 
 
 359. In other cases, the concluding words Nov. 1840, 3 D. 142, where an irritant 
 
 "commit any other fact or deed whereby," clause which annulled contraventions by 
 
 etc., were held to be merely expletive ; see altering the succession, selling, alienating, 

 
 OF THE STATUTORY REQUISITES OF A STRICT ENTAIL. 555 
 
 the words "facts," "debts and deeds," etc., of the irritant clause, ohap. xxxn. 
 will in construction be held to relate to the whole of the arts of 
 contravention which are enumerated, (gr) But where a clause framed 
 on the principle of enumeration repeated all the prohibitions, and 
 then annulled all " the said conditions, alienations,"' and other things 
 (omitting debts), the prohibition against contracting debt was found 
 not t<> In- validly fenced.(^) 
 
 1068. F<>r convenience of reference, we annex in ; i note a li-t of Cases classed 
 entail cases in which the irritant and resolutive clauses have been unfence<fprohi- e 
 held had on the principle of detective enumeration, classified ac- Dltions - 
 cording to the prohibitions which were found to he insufficiently 
 
 fenced. ( i) 
 
 SECTION III. 
 OF THE OTHER SOLEMNITIES REQUIRED BY THE ACT 1685. 
 
 1069. The statutory requisites to which this section relates are Statutory requi- 
 directed to the objeel of publication. They are, as interpreted by 1 1 
 decisions, 1st, that the prohibitory, irritant, and resolutive claus 
 
 be inserted verbatim in all charters and sasines or other instruments 
 of investiture, and that they he inserted (either verbatim or by re- 
 ference to a previous transcript contained in the deed) in the pro- 
 curatories of resignation and precepts of sasine of the actual entail 
 and of all subsequent deeds of transmission;^) 2dly, thai the deed of 
 
 or burdening the lands, was sustained, the Succession. — Ferguson \. Ferguson, 15 
 
 though it did nol apply to , or I». L9; > '. 18 1>. 168; Lord 
 
 Rollo v. Rollo, :; Afacph. 78. 
 (<j) Lockhart v. Lockhart (Castlehill), 20 (k) By the Lands 'I < A.cts (10 
 
 May 1-11. 3 1». 904; Murray v. Murray & 11 Vict. i; 10 & 11 Vict., 
 
 1 Si pt. 1844, :: I'- II. 100. 48, g 1 : 10 & 1 1 \ and 
 
 (■ft) Lord Duffus' Tr. v. Dunbar, 28 Jan. 10 & 1 1 Vict., cap. 51, \ 2( 
 
 1842, I I'. 528; Martin v. Dunbar, 17 competent the full insertion of 
 
 July L844, 6 D. 1820. the conditions, provisions, and restraining 
 
 / ■ including alienation, clauses, in all instruments oftranBmi 
 
 —Thomson v. Milne, 1 1). 692; '//./.v. and infeftments, provided such condil 
 
 M'Turk, ill'. 859; Bruce v. Bruce, t Pat. 1 1-., are n P rr< -l to b i I forth in thi 
 
 28] ; Cunningham v. Scott Moncrief, i Pat. gistered deed of entail, or in somi 
 
 652; E. of Caithness \. Lord Berriedale, 8 instrunienl of asine. Thi pi 
 
 D. 568 H v. Menzies, 14 D. 622; extended to d( 
 
 8mclat BaiUit v. 24 Vict., cap. I 18; and by 21 & 22 \ 
 
 Baillie, 12 D. L220. cap. 76, it. and 28 & -I Vict., ca] 148, 
 
 / n it including Contraction of \ 11, the destination may b< Bet forth by 
 
 Debt Tr.y.i ID i • Bince the abolition i 
 
 , v . Bender ■ under the operation of th< I 
 
 21 Nov. 1816, F.C.; Welsh v. Robert Amendment and Tith to Land 
 
 D , D : p 16 /•' I 
 
 12 1 1 [220, |,,u " 
 \uding M
 
 55G 
 
 OF THE STATUTORY REQUISITES OF A STRICT ENTAIL. 
 
 OHAF. XXXII. 
 
 Object of these 
 requirements. 
 
 Effect of omis- 
 sion to take in- 
 feftment on en- 
 tail where heir 
 completes a 
 separate feudal 
 title. 
 
 entail shall be recorded under the authority of the Court of Session 
 in a special register called the Eegister of Tailzies. (m) On com- 
 pliance with the required conditions, the entail is, by the Statute 
 1GS5, declared to be real and effectual, not only against contraveners 
 and their heirs, but also against their creditors, comprisers, acl- 
 judgers, and other singular successors whatsoever, whether by legal 
 or conventional titles. The omission to insert the clauses in the 
 subsequent titles upon which the estate is possessed, is declared to 
 import a contravention devolving the estate to the next heir ; but 
 not to militate against creditors and singular successors contracting 
 bona fide with persons infeft on such defective titles. 
 
 1070. The requirements of the Statute are well adapted to the 
 objects of preserving the rights of the heirs-substitute, and giving 
 notice to purchasers and creditors of the heir in possession. The 
 insertion of the clauses of the entail in the infeftments is neces- 
 sary to prevent the fetters being worked off by prescriptive posses- 
 sion on an unlimited title, and also to give notice to strangers con- 
 tracting with the heir in possession on the security of the records. 
 The registration of the entail in the Eegister of Tailzies limits the 
 personal right of heirs possessing on apparency, while it also serves 
 the purpose of an authentic record of the essential parts of the en- 
 tail in the event of the original deed being destroyed. 
 
 1071. I. Insertion of Clauses in Titles. — Since the Statute 
 provides that, on the conditions and restraining clauses " being so 
 insert," the entail shall be effectual against creditors and singular 
 successors, it follows, as a necessary consequence, that if an entail has 
 never been completed by infeftment, and the heir takes infeftment 
 upon a separate title, his creditors and singular successors are not 
 bound by the entail. The same consequence ensues where the en- 
 tail has never been recorded, and the heir is infeft upon an inde- 
 pendent title, examples of which are cited in the second part of 
 this section. Where the possession of the heir stands on a personal 
 
 taming the destination and all conditions, 
 limitations, and other provisions. 
 
 (m) The words of the Statute are : — " It 
 is always declared that such tailzies shall 
 only he allowed in which the foresaid ir- 
 ritant and resolutive clauses are insert in 
 the procuratories of resignation, charters, 
 precepts, and instruments of sasine ; and 
 the original tailzie once produced before 
 the Lords of Session judicially, who are 
 hereby ordained to interpone their autho- 
 rity thereto, and that a record be made in 
 a particular register book, to be kept for 
 
 that effect, wherein shall be recorded the 
 names of the maker of the tailzie, and of 
 the aires of tailzie, and the general desig- 
 nations of the lordships and baronies, and 
 the provisions and conditions contained in 
 the tailzie, with the foresaid irritant and 
 resolutive clauses subjoined thereto, to re- 
 main in the said register ad perpetuam rei 
 memoriam . . . and which provisions 
 and irritant clauses shall be repeated in all 
 the subsequent conveyances of the said tail- 
 zied estate to any of the aires of tailzie," 
 Stat. 1685, cap. 22.
 
 OF TIIE STATUTORY REQUISITES OF A STRICT ENTAIL. 557 
 
 title, a different principle comes into operation, as will be explained rnvr. xxsn. 
 in the sequel. 
 
 1072. It had long been settled(??) that where the deed of entail Under the sta- 
 contained a procuratory and a precept, the Statute was satisfied by to dispositive 
 the insertion of the clauses in the procuratory, and a reference to v ^entt 
 them as so inserted in the subjoined precepl : for, says the report, !;; 
 
 by an equitable construction all the clauses in the same deed are 
 understood to be inserted in every part of the deed.(o) Upon this 
 principle it was afterwards ruled to be sufficient to refer, both in 
 the procuratory and precept, to the conditions and restrictions set 
 forth in the dispositive clause, (p) These decisions would neces- 
 sarily rule the question as to the necessity of double transcription 
 in renewals of the investiture ; but, as we have seen,(g) the neces- 
 sity of engrossment in such instruments has been superseded by 
 statute; and in modern conveyances, by way of registered disposi- 
 tion, a simple reference in the dispositive clause to the conditions 
 of the recorded entail is the only intimation required. As to in- 
 struments of transmission and infeftments anterior to the convey- 
 ancing statutes, it is sufficient to observe thai each wril forming a 
 part of the feudal progress must have contained the clauses in ques- 
 tion at length. (r) 
 
 1073. We have already had occasion to examine the authorities r 
 which prove that an entail is invalid when the restraining clauses SnderThe * 
 are no1 eel forth in the actual deed of entail, but merely referred to B 
 
 as existing in a prior settlement. (a) 
 
 1074. Any material variance between the transcription ol the Material vari- 
 
 • • i i j. - j.i r 4.1 i • • anci '" ''"' 
 
 conditions and restraining clauses in the title ol the heir m posses- transcription of 
 sion and the clauses of the actual entail was held to be equivalent ; 
 to a failure to inserl the clauses, which Left the estate op< n, in terms 
 of the A-t L685, to adjudication for the debts of the hen- in posses- 
 sion.^) The entail, however, was held to subsist, quoad the residue 
 of the estate; and even where possession was had for the prescrip- 
 tive period upon a defective investiture, which referred to the deed 
 of entail as the title of possi ssion, the heirs were hold to be bound 
 to make up titles in terms oi the entail ; and lands acquired in i 
 cambion, under the Montgomery and Roseberj A.cts, were held to 
 be aecured from diligence by words of n I rence in the contracl to 
 the clauses ol the deed of entail.(«) 
 
 Murray Kynnynmound, 1744, M. I '■ B 
 
 15,880 /' ' ". 1" Dec. 1841, tail. 1726, M. 16,696; H 
 
 4 ]> 28 i. mound, tupra. 
 
 !. 16,880. ' 
 
 (p) Earlof Buchan v. Et hint, 28 June " ' ' ' 1:: 
 
 ID. 1 180; 21 Feb. 1846, 4 Bell, 22. Feb. 1861, 18 D 
 
 9 note (A). ' '
 
 558 
 
 OF THE STATUTORY REQUISITES OF A STRICT ENTAIL. 
 
 chap, xxxii. 1075. A V li.it is to be held a material discrepancy is a question of 
 
 what held to bo construction ;is to which no general rule can be laid down. In Holmes 
 a mat. nai van- v . Cuniwihu )ih\(.v) ( hi i issii ins in the recital of a resolutive clause were 
 
 ftQCG or ilis- 
 
 crepancy. held to be material, although the words actually inserted were suffi- 
 
 cient to constitute an effectual resolutive clause. The destination 
 (which exists inferentially in every restraining clause) is obviously a 
 material point, yet the omission of the words " of the body" in the 
 recital of a destination to " heirs whatsoever of the body," was held 
 immaterial in Stirling v. Moray, {y) on the ground that " heirs what- 
 soever" in the charter was a flexible expression which fell to be 
 construed by the terms of the entail upon which it proceeded. The 
 omission of the word " irritant" in the notary's narrative stating 
 that he gave sasine subject to the clauses prohibitory and resolutive, 
 was held immaterial, (z) Under the 43d section of the Entail 
 Amendment Act, (a) entails invalid in regard to any of the prohibi- 
 tions, by reason of defects in the investiture, are to be deemed in- 
 valid as regards all the prohibitions. This provision offers a strong 
 temptation to the fabrication of erasures in charters ; but as these 
 documents are usually in the hands of professional agents there is 
 not practically much danger, and in fact there are only three cases 
 reported since the Act in which entails have been challenged on 
 the ground of defects in the investiture. 
 
 1076. II. Eegistration of the Entail. — The Statute requires, 
 as a condition to the entail being binding upon singular successors, 
 that it be produced to the Court of Session, that their authority be 
 interponed to it, and that it be recorded in a register kept for the 
 purpose, (b) This is accomplished by presenting a petition to the 
 Court for authority to record the entail, which is produced with the 
 14 D. 1065 ; sequel of preced- 
 
 Procedure in 
 application for 
 
 authority to 
 record. 
 
 July 1852 : 
 ing case. 
 
 (x) Holmes $■ Campbell v. Cuninghame, 
 supra. And see Norton v. Stirling, 22 March 
 1855, 2 Macq. 205, as to a similar error of 
 transcription in the record of the Register 
 of Tailzies. 
 
 (g) Stirling v. Moray, 28 May 1845, 7 
 D. 640. It is not necessary to insert in the 
 renewal of the investiture those branches 
 of the succession which have already failed, 
 and the entail is not challengeable by rea- 
 son of their omission ; Ladg Hawarden v. 
 Dunlop, 24 March 1865, 3 Macph. 748. 
 
 (z) Borihwick v. Glassford, 15 Nov. 1853, 
 16 D. 37. This case raised the interesting 
 question whether an error in the investi- 
 ture, upon which no attachment for debt 
 has followed, is cured by the subsequent 
 
 titles being correct ? The error in question 
 being found to be immaterial, it was not 
 necessary to consider what effect was due 
 to it after the estate had passed into the 
 possession of an heir whose investiture was 
 correct. 
 
 (a) 11 & 12 Vict., cap. 36, § 43. 
 
 (b) At an early period in the history of 
 entails, it was settled that the Statute re- 
 quired the registration of settlements exe- 
 cuted prior to its date, in order to their 
 being effectual in questions with singular 
 successors; Philip v. Earl of Rothes, 1758, 
 M. 15,609, 16 Jan. 1761, 2 Pat. 52; Lord 
 Kinnaird v. Hunter, 1761, M. 15,611; 18 
 Feb. 1765, 2 Pat. 97 ; Earl of Eosebery v. 
 Primrose, 1765, M. 15,616, 3 April 1767, 3 
 Pat. 651, overruling the cases of Willison, 
 M. 15,371, and Borthwick, M. 15,554.
 
 OF THE STATUTORY REQUISITES OF A STRICT ENTAIL. 559 
 
 petition. The application maybe made by any of the heirs-sub- chap, xxxh. 
 stitute, and it is granted as of course. And where an application 
 for authority to record an entail was opposed by the institute, who 
 declined to take under the deed of entail, it was ruled that the 
 validity of the entail was not in question in such an application, 
 and that the warrant could not be refused when applied for by a 
 party claiming under the deed.(c) A warrant for registration can 
 only be obtained when the Court is actually sitting. An estate may 
 thus he unavoidably exposed to the diligence of the institute's credi- 
 tors during a vacation ; and in a competition between creditors and 
 heirs claiming under the settlement, the entail dates from the period 
 of actual registration, and not from that of its production in Court.(d) 
 
 1077. The proper deed to be recorded is the actual settlemenl D 
 of the estate, whether the form of the deed is that of a regular dis- ^constituting 
 positieii with feudal clauses, or procurator)- of resignation, (< ) orjjyj! 
 merely a disposition of the personal fee.(/) It is nol necessary ^JJf^® 11 -^ y 
 that the deed of entail should form part of the feudal title, and 
 where it is a personal deed, the charter or other instrument by 
 which the estate is feudalized does not require to enter the regis- 
 ter,^) norwill the registration of acharterwith restraining clausi s, 
 as part of the entail, obviate the objection that in the actual si ttle- 
 meiit the tetters are only imposed by reference. (A) Deeds of nomi- 
 nation of heirs, and other alterations of the settlemenl executed 
 under reserved powers must be recorded in the Register of Tailzies, 
 otherwise the Lands are not effectually entailed in a question with 
 purchasers. (t) An entail in the form of a general disposition can- 
 not hind creditors; and therefore, where an entailer, besides the 
 lands specially disponed, conveys all bis other lands and berita 
 Bubjed to the fetters of the entail, and titli s are made up under the 
 entail to the Lands not specially disponed, upon which possession is 
 had for the prescriptive period, these are uevertheless aubjeel to the 
 onerous d< ede of the heir in possession, because they are nol men- 
 
 (e) Oilmour v. Qibnour, 6 Dec. 1866, 19 be recorded a an "original tailzie' 
 
 \, |., | one of •■ In M ijeBty'e i ul 
 
 WUliamton v. Sharp, 8 D c. 1851, I I ited by a private Acl of Parlia- 
 
 D. L27. »" " , - 
 
 / Earl of Aberdeen, 1772, M. (A) Forbes v. Gammell, mi 
 
 Izie," App. No. I; 16 April 1777. 2 I of Man 
 
 H9 ; Lord Forbetv. Gammell, 14 May almond), 28 M L844, 6 D 10' 
 
 20 1 1. '.0 7. L846, 6 Bell, 189 '/ 
 
 D , pinion on n I 22 Jan. IS 12 I D 
 
 20 March 1862, 24 D. 986 ; judgment I 
 
 , , h ,.,.., | -. / l- ,i i I i. ..I 10 
 
 [g , upra. In Stir- 1868, 16 D. (Ap. Ca M ' i 
 
 L845, 7 D. 640, th< field P 
 
 M-CI,;,,!. I 19 M IJ I
 
 560 OF THE STATUTORY REQUISITES OF A STRICT ENTAIL. 
 
 chap, x.xxii. tioned by name in the Register of Tailzies as the Act requires. (k) 
 But an entail general is held to be binding inter heredes, and it 
 should seem that such a general disposition is« equivalent to an 
 obligation to execute an entail which the entailer's heir might be 
 compelled to fulfil. (/) 
 Not necessary 1078. It would appear that a deed in the form of a new entail, 
 
 to record deed . , , . c , . . 
 
 propelling sue- but being m substance a mere propelling ot the succession, (m) or 
 Sngori^a] renewal of the investiture, is not regarded as a deed of alteration, 
 destination. ;n|( i nee( j 110 t \)q recorded. Of this nature was the settlement of 
 the entailed estate in the case of Gartmore. (ji) William Graham, the 
 institute or first heir, inherited the estate of G-artmore and the lands 
 of Culbowie from his father under distinct entails, the entail of 
 Gartmore havirig been recorded by the father. In order to bring 
 the lands of Culbowie within the investiture of the principal estate, 
 William Graham expede an instrument of resignation of both estates 
 for new infeftment under the conditions and restraining clauses of 
 the grant. Upon the resignation thus made, a Crown Charter was 
 obtained, which set forth the fact that there were two entails, but 
 did not repeat in duplicate the clauses that were identical in both. 
 The subsequent titles were in terms of the charter. The entail of 
 Culbowie was never recorded, and so far as regarded that estate the 
 entail was not binding upon creditors. But as regards the estate of 
 Gartmore, it was held that the instrument of resignation, and the 
 charter consequent upon it, did not constitute a new settlement ; 
 that these instruments had no other operation than to bring the 
 other lands within the investiture ; and that the entail of Gartmore 
 still rested upon the recorded disposition. 
 Unrecorded deed 1079. The case of Norton v. Stirling, (o) in the first branch, set- 
 of alteration tied an interesting point in reference to the registration of instru- 
 
 does not mvali- o J- o 
 
 date substitu- ments supplementary to deeds of entail. The maker of the entail, 
 
 tions antecedent . . -. .,. . . ,. 
 
 to those affected m the exercise of a reserved power, revoked the nomination ot an 
 
 Norton, v. 6 ' heir, but the deed of revocation was never recorded. An action 
 
 Stirling. was, in consequence, brought by a creditor of an heir-substitute, to 
 
 have his debt constituted against the estate, on the ground that the 
 
 whole settlement had not been recorded in the Register of Tailzies. 
 
 (k) King v. Earl of Stair, 28 Feb. 1844, entail, but the object and effect of which 
 
 6 D. 821 ; 30 April 1846, 5 Bell, 82. was simply to subject to the fetters of the 
 
 (I) Dalrymple v. Earl of Stair, 10 March original entail lands formerly held pro in- 
 
 1844, 3 D. 837, as explained by Lord diviso, but now divided, was held not to 
 
 Cottenham in Kings case, 5 Bell, 104. constitute a new settlement ; and posses- 
 
 (m) Turnbull v. Hay Newton, 29 June sion on it for forty years not to extinguish 
 
 1836, 14 Sh. 1031. the original settlement ; Stewart v. Nicol- 
 
 («) Graham v. Bontine, 2 March 1837, 15 son, 2 Dec. 1859, 22 D. 73. 
 Sh. 711 ; 6 Aug. 1840, 1 Rob. 347. So (o) Norton v. Stirling, 6 July 1852, 14 
 
 also an unrecorded deed in the form of an D. 944 ; 22 May 1855, 2 Macq. 205.
 
 OF THE STATUTORY REQUISITES OF A STRICT ENTAIL. 56] 
 
 It was held in the Court of Session, that the objection did not affect cn.\r. xxxn. 
 the destinations antecedent to that in which the alteration was 
 made, and that as the heir displaced by the deed of revocation was 
 an heir who could not have come in until after the heir in posses- 
 sion, the latter was sufficiently restrained hy the registration of the 
 deed of entail. Lords Cranworth and St Leonards, by whom the 
 case was heard on appeal, having differed in opinion, the judgment 
 of the Court of Session was affirmed. In the same rase, it was 
 ruled that the registration of the entail was not invalidated hy rea- 
 son of a mis-recital of the destination in the petition for authority 
 to register; nor by an error in the transcription of the deed into 
 the hooks of the record, which consisted in the substitution of the 
 words " fail to neglect" for " fail or neglect " in the resolutive clause 
 of the entail. (p) The settlement should he recorded entire, not- 
 withstanding that a part of the estate has been previously sold.(^) 
 
 1080. The consequences of omission to record the entail differ Effect of omis- 
 according as the disponee in possession is infeft or uninfeft ; and in a n eni 
 
 the latter case there is a further distinction depending on whether 
 he possesses by the title of apparency, or upon the personal title of 
 the entail. These consequences, in relation to the rights of credi- 
 tors and singular successors, are explained in the next sub-division 
 of the section, (r) 
 
 1081. Where an entail is made in derogation of an existing en- Prescriptive 
 tail, and is not recorded, and possession is had upon the now settle- ! 
 
 ment for the prescriptive period, the original entail is extinguished r^hteoffeire-* 8 
 by adverse possession, and the heir in possession at the end of the pre- ul ; ; 
 
 J , . r ' under prwr 
 
 scriptive period, acquires an unchallengeable title under the unre- recorded entail. 
 corded entail, which is equivalent to an estate in fee-simple, (s) Prior 
 to the elapse of the prescriptive period, it- is in the power of any of 
 the heirs-subsl itute under the original sett lenient to bring the subse- 
 quent settlement under reduction, whether it be a real era personal 
 right, and thus to prevenl prescription running upon it.(7) And an 
 heir-substitute can always prevent the acquisition of a fee-simple 
 title by prescriptive possession on a valid Inn unrecorded entail, by 
 having it recorded under the aul hority of the < 'ourt of Session. 
 
 (p) On this point in the case see the 1846,5 Bell, 189; Inglitv. Tnglx 10 
 
 b of Lord Chancellor Cranworth, - 1868, L6 l>. (Ap. Ca.) H. In the ca 
 
 tfacq. p. 'Jll tt Stewart \. ' I 'l-l l». 72, 
 
 (7) Moore, Petr., 28 Nov. 1821, 1 Sh. the dei I to be the title ol po i 
 
 IT- N. K. I'll. sion was held not to b< ■> new settler 
 
 (r) Infra, \ 1084 et teq. con equently, the ml- stated in Hi 
 
 (*) Montgomery v. Earl oj Eglinton was not applicable. 
 (Skebnorlie), It '. L848 2 Bi LI, I 19 
 
 Stewart \. Stewart [Logiealmond) :: July I». ~'± (4th poi I 
 von. r.
 
 562 
 
 OF THE STATUTORY REQUISITES OF A STRICT ENTAIL. 
 
 CHAP. XXXTT. 
 
 Unrecorded en- 
 tail is binding 
 inter heredi t; 
 
 and bars gratui- 
 tous provisions 
 in excess of the 
 powers which it 
 confers. 
 
 Entail personal 
 may be feuda- 
 lized by adjudi- 
 cation or con- 
 veyance from 
 the heir. 
 
 1082. An unrecorded entail is binding inter heredes ; in other 
 words, it is a bar to acts of gratuitous alienation. (u) This proposi- 
 tion is assumed in all the modern decisions ; and, in the last century, 
 it was even supposed that the next heir-substitute would have a 
 claim of damages against the heir in possession for his breach of the 
 prohibitions, or at least a right to require the re-investment of the 
 consideration-money, (x) This point underwent very deliberate 
 consideration in the Skelmorlie case,(^/) where it was held to be 
 ruled by the judgment of Lord Eldon in the cases of Ascog and 
 Tillicoultry, in reference to entails defective in the prohibitions. It 
 would appear, therefore, that the disponee under an unrecorded deed 
 of entail may sell the estate and appropriate the price to his own use, 
 and that the heirs-substitute have no means of legal redress, (z) 
 
 1083. Since the conditions of an unrecorded entail are obliga- 
 tory upon the heirs, they will be effectual to bar provisions to 
 younger children unless where these are granted for onerous causes, 
 as in the case of marriage-contracts ;(a) and also to bar postnuptial 
 provisions to wives, which, in so far as they exceed a rational and 
 suitable provision, are deemed gratuitous, (b) Where the entail 
 authorises the granting of provisions to a definite extent, provisions 
 granted in excess will be restricted in terms of the power, (c) 
 
 1084. III. Entails standing on Personal Titles. — We have 
 seen(ii) that an entail may be made by a proprietor possessing on a 
 personal title ; that such a deed, although containing no feudal 
 clauses, has, when recorded, all the attributions of a perfect entail, 
 and that a title under it may be completed by conveyance from 
 the heir-at-law, or adjudication directed against him. A more usual 
 case of an entail personal is where the entail contains within it the 
 clauses necessary for the completion of a title by infeftment, but the 
 disponee possesses on the unrecorded disposition. The law in rela- 
 
 7 D. 858, was of this nature ; but as the 
 substitute at whose instance the security 
 was sought to be reduced, had incurred a 
 general representation of the contravener, 
 it was held that he had no title to sue. 
 
 (a) See chapter 23 (Marriage-Contract 
 Provisions). 
 
 (b) Noble v. Dewar, 1758, M. 15,606. 
 
 (c) Macgill v. Law, 1798, M. 15,451. As 
 to whether an unrecorded entail is ef- 
 fectual to exclude terce, see Anderson v. 
 Wishart, 1715, M. 13,570. 
 
 (d) Earl of Fife v. Duff, 27 March 1863, 
 4 Macq. 469, commented on supra (chap- 
 ter 31, section 1). 
 
 (m) The law in relation to unrecorded 
 entails is not altered by the Entail Amend- 
 ment Act. 
 
 (x) Douglas v. Strathnaver, 25 Feb. 1730, 
 1 Pat. 32 ; and see Willison v. Callmder, 
 1724, M. 15,369 and 15,371 ; Holly. Cassie, 
 1726, M. 15,373. 
 
 (y) Montgomcrie v. Earl of Eglinton, 18 
 Aug. 1843, 2 Bell, 149. 
 
 (z) But where a settlor conveys his es- 
 tate to trustees upon trust to execute and 
 record an entail, and they fail to record it, 
 and wilfully allow the heir to contract debt 
 on the security of the estate, the trustees 
 may be responsible for a breach of trust. 
 The case of Brock v. Speirs, 10 June 1845,
 
 OF THE STATUTORY REQUISITES OF A STRICT ENTAIL. 
 
 tion to entails personal is embraced in the three following proposi- chap.xxxh. 
 tions : — 
 
 1085. (1) Where the institute or heir of entail possessing on Estatetaken 
 a personal title is also the apparent heir, or heir f line of the en- M$b& 
 
 taller, the estate is subject to adjudication for debts contracted by ;•' ''"' ! 
 
 i ■, . . ... -, . , ., • be possessed on 
 
 such heir or institute before the entail was recorded, (e) Apparency apparency, 
 being a quasi-public title, creditors are entitled to ascribe the pos- 
 session to that title rather than to an entail which lias nol been 
 published in terms of the Statute, and of which they are nol ne< 
 sarily cognisant. If the person possessing on apparency is institute, 
 his debts will transmit against the estate without service and with- 
 out his having been three years in possession. 
 
 1086. (2) To prefect the estate from adjudication for the debts what isrequi- 
 of a disponee who is apparent heir of the entailer, it is not enough tKwedTtore^f 
 that the entail is recorded in the Kegister of Tailzies. Infeftmenl an *PP" p 
 must be taken upon the entail prior to the institution of an action 
 
 of adjudication. The Statute requires publication of the conditions 
 and restraining clauses of the deed both in the Register of Tailzies 
 and the Sasine Register; and the entail is not binding on credi- 
 tors until both these requisites have been fulfilled. Where the 
 registration in the Register of Tailzies precedes the registration for 
 infeftment, the latter has a retrospective operation, and secures the 
 estate against all debts, whensoever contracted, on which real dili- 
 gence has not been used//') Where, on the contrary, the infeft- 
 menl precedes the registration in the Register of Tailzies, the latter 
 has a retrospective effed only upon debts anterior to the date of the 
 infeftment, and which are not the subjecl of real diligence; but it 
 has ne such effeel in relation to purchasers^) or creditors(^) con- 
 
 (e) Doughu v. Stewart, L765, M. 15,616; to those of the person last infeft, and also to 
 
 / fi ' L792, M. 10,800. In those of the person who enl 
 
 I tine circumstances, the apparent heir cap. 24). Now, the conditions of the en- 
 
 Iso bring the estate to a judicial sale tail, when perfected by registration and 
 
 for the entailer's debts, under the Statute; infeftment, are obligations binding on ill" 
 
 Mii<li>ll x. Tarbuti l I 1809, I'M'. heu who ei therefore entitled to 
 
 if) Tin d by precedence under the Statute, 
 
 the opinions of the judgi in the ca e la I (g) Qrahame v. Orahame, 1" Dec. L818, 
 
 cited, as reported (under the nun.' of 8 Sh. 281 ; 6 Oct. 1881, 6 "H 
 / .'. L66. (/') Orahame v. Qrahame'i < 1796, M 
 
 ■ i the principle, the infeft- 16,440; Smollet't Crt. v. Smollct, 14 
 
 mentofanl tail being 1807, M. "Tailzie," App. No. L2 '■'■ 
 
 I thi ■• . l'< ummond, 80 An 1881, 6 W. \ s. 
 
 of the institute and heir-apparent of 869. Where the liabilitj 
 
 Hi.- entailer; Dickson v. Syme, J.\ Feb. fluctuating balance due on a bank account, 
 
 1801, M. " Tailzie," App. fl ich the a lint i to bi i I on 
 
 tation in the daj thai the enl 
 
 i of tip di bl of the apparent heir ; that date I ; <"l" 
 
 because the Statute y I ntniJ
 
 564 OF THE STATUTORY REQUISITES OF A STRICT ENTAIL. 
 
 chap. xxxn. tracting alter infeftment and before registration. The last-men- 
 tioned debts, contracted in the interval between infeftment and re- 
 gistration, although wholly unsecured, are in the same position as 
 entailer's debts, and may be made the ground of adjudication at 
 any time. 
 Distinction bo- 1087. It is not very easy to give an explanation of the distinc- 
 
 tween apparent . ... 
 
 heirs infeft and tion that will stand the test of strict criticism ; but it may be said 
 to depend on this principle, that an heir infeft on an unrecorded 
 entail is in law regarded as a fee-simple proprietor, and that credi- 
 tors are entitled to rely on the title shown by the records ; while an 
 apparent heir, having no vested interest in the estate, if he con- 
 tracts debt, does so on his personal credit only. The distinction 
 was at one time doubted, but it was finally settled by the case of 
 Munro v. Drummond, cited below, (i) The position of a creditor or 
 singular successor is, apparently, not affected by his knowledge of 
 the entail. (A;) 
 Heir of entail 1088. (3) Where the heir or institute in the entail is not the 
 
 cesswrMstound" heir of line, and has no other title of possession than a personal en- 
 eutaii rsonal ^ a *l> the restraining clauses are effectual to protect the estate against 
 his acts and deeds, and are binding upon creditors, (?) singular suc- 
 cessors, (m) and tenants, (ft) In a question with the disponee in 
 possession on a personal title, the prohibitions are binding as con- 
 ditions of the grant ; in questions with singular successors they are 
 binding, on the general principle that the creditor or assigneee can 
 only take the personal right tantum et tale, or as it exists in the 
 person of the cedent, 
 
 SECTION IV. 
 
 CONSEQUENCES OF INCURRING AN IRRITANCY. 
 
 irritancy must 1089. By the Statute 1685 "the next heir of tailzie may, im- 
 
 by decree in the mediately on contravention, pursue declarators thereof, and serve 
 
 contravene*! 16 heir to him who died last infeft in the fee and did not contravene, 
 
 without necessity anyway to represent the contravener." It is 
 
 therefore necessary that the contravention should be established by 
 
 decree before the succession can open to the next substitute. It is 
 
 the estate will not he liable for subsequent ton's Crs. v. Gordon, 1753, M. 10,258 ; Si/me 
 
 advances; Ross v. Drummond, 3 March v. Dewar, 1803, M. 15,619. In the last of 
 
 1841, 3 D. 698. And see Ferrier v. Duke these cases the principle was applied, al- 
 
 of Roxhurghe, 10 Dec. 1813, F.C. though the institute had been infeft upon 
 
 (i) See Bell's Illustr. vol. 2, p. 376. a prior settlement declared revocable, and 
 
 (k) See Williamson v. Sharp, 3 Dec. 1851, actually revoked by the personal entail. 
 14 D. 127. (m) Crs. of Carleton v. Gordon, supra. 
 
 (I) Denham v. Baillie {West shield case), {n) Chisholmv. M'Donald, 27 Feb. 1800, 
 
 5 June 1733, 1 Cr. St. & Pat. 113 ; Carle- M. " Tailzie," App. No. 6.
 
 OF THE STATUTORY REQUISITES OF A STRICT ENTAIL. 565 
 
 settled law that a declarator of irritancy cannot be brought after ohap.xxxh. 
 the death of the contravener, even where the deed declares that he 
 shall forfeit for himself and his descendants ;(o) though, if it were 
 instituted in his lifetime, the action may be transferred against his 
 representatives, and prosecuted to a conclusion after his death. Qj) 
 This rule applies to all acts done or suffered by the heir of entail, 
 in contravention of the statutory prohibitions of the entail, or of 
 any other conditions or prohibitions to which the irritant and re- 
 solutive clauses are applicable. A clause of devolution, applicable 
 to the event of the heir succeeding to an estate or title, takes effect 
 ipso facto on the occurrence of the event in question. Such clauses 
 are effectual as conditions of the destination; and as the devolu- 
 tion does not take place in consequence of any act of the heir, it is 
 not neces-ary that a declarator should be brought either for the 
 purpose of establishing the right of the next substitute, or for di- 
 vesting the heir in possession.^) 
 
 1090. Until the passing of the Entail Amendment Act, it was imtancyd 
 an unsettled question whether the decree declaring the irritancy j 
 operated retrospectively, so as to invalidate acts done after the con- X" !Vv"rs T f 
 travention, but before decree, which are competent to an heir of the entau - 
 entail in possession, e.g., the granting of provisions under reserved 
 powers,(r) or the creation of securities restrict dto his life interest.(s) 
 
 By this Act (7) it is enacted, "That no irritancy committed or thai 
 may be commit icd by any heir of entail in possession of an entailed 
 estate in Scotland shall operate to set aside, impair, or in any way 
 affect, directly or indirectly, in the person of any purchasers or bona 
 jiilc onerous creditors, any conveyances, deeds, or securities grant* 'I 
 in reference to such estate, or the rents thereof, prior to the execu- 
 tion of ill,- summons of declarator on which decree in resped of 
 such irritancy shall proceed, ami m.i invalid as being inconsistent 
 with the provisions of the entail under which such estate is held." 
 
 1091. The defender may purge the irritancy by performing acts p, 
 omitted, and revoking deeds granted in contravention of the entail. ' 
 
 >/ well ■.. Maxwell, I". I'--. L848, Tr.,2 Feb. 1866, l Macph. 868, and 
 
 6 l». 266; affirmed 18 Jul) 1846, 5 I'- II, M. 16,659. 
 
 L66; Gordon v. King's Advocate, 1760, M. (r) Bee Lothian v. Willison, L726, M, 
 
 4728, :, Br. Sup. 782; Fttllerton v. Dal- 16 
 
 rymple (second Bargany ca ■ ), 20 Ji (•■>; Bontine \. Graham, 'J March 1887, 
 
 I W. ,v 8. HO, and • 1 Sh. (Ap. L5 Sh. 71 1. I- [u< a\ brand of 
 
 1 ml 1 W. .v s. Appx. No. '-'; Hn c that the heir obtaining 
 
 e P49, M. 16,884 r i • ■ i * 
 
 ( r ) Stewart -.. i>. M "... for tl cruing in tin- interval 
 
 ]7"J'«, M. 7^7">. I q tin' n..' and 
 
 (/j j r ■ // vwardk n v. /.'/ ] ID 
 
 I
 
 566 OF THE STATUTORY REQUISITES OF A STRICT ENTAIL. 
 
 chap. xxxn. and that at any time before decree is pronounced. In the case of 
 a conl invention by way of alienation or contraction of debt, the 
 concurrence of the purchaser or creditor is obviously necessary to 
 enable the heir to make restitution. (V) It was long doubted whe- 
 ther a contravention of an entail by making up titles in fee-simple, 
 was an irritancy which the heir was entitled to purge, but the point 
 was at length settled in favour of the contra vener. (x) 
 Effects of r. due- 1092. It is necessary to distinguish between the remedies of re- 
 !Ltory n decS?" ductioii and declarator of irritancy. The former is competent at 
 distinguished. an y time, even after the death of the heir whose deed or contract 
 is sought to be reduced ; and the action cannot be stayed by a judi- 
 cial offer of restitution^?/) 
 Title to pursue 1093. Any heir-substitute, however remote, is entitled to pur- 
 contraveut'iou. sue a declarator of contravention. (z) As already mentioned, the 
 action must be brought against the heir by whom the contraven- 
 tion was committed. Action may accordingly be maintained against 
 an heir possessing on the title of apparency, (a) If the deed de- 
 clares that the contravener shall forfeit for himself and his descend- 
 ants, it is generally understood that the condition is effectual to the 
 full extent unless an offer of purgation is made ;(&) but where de- 
 scendants are not mentioned, the effect of forfeiture is merely to 
 propel the succession to the next heir under the destination. 
 
 (u) See Hamilton Gordon v. Gordon, v. Duke of Buccleuch, 6 July 1820, F.C. ; 
 
 1748, M. 7281 ; Ross v. Munro, 17G6, M. dicta in Maxwell v. Maxwell, 5 Bell, 165. 
 7289. 0) Dundas v. Murray, 1774, M. 15,430; 
 
 (x) Abernethie v. Forbes (Balbithan) 17 Simson v. Lord Home, 1697, M. 15,353. 
 Jan. 1835, 13 Sh. 263 ; Abernethie v. Gor- («) Stewart v. Denholm, 1726, M. 7275. 
 
 don, 20 June 1837, 15 Sh. 1167. (6) See on this point Mackay v. Dal- 
 
 (y) Stewart v. Nicolson, 2 Dec. 1859, 22 rymple, 1798, M. 11,171, and Mr Sandford's 
 
 D. 73 ; and see Duke of Queensberry's Exrs. observations, Tr. on Entails, pp. 445-6.
 
 OF THE ESTATE OE AN HEIR OE ENTAIL. 567 
 
 CHAP. WX1I1 
 
 CHAPTER XXXIII. 
 OF THE ESTATE OF AN HEIR OF ENTAIL. 
 
 I. Restraints on the Power of the Heir as I II. Liability of the Estate for Entailer'* 
 r tetor. Debts and Real Bun! 
 
 SECTION I. 
 RESTRAINTS ON THE POWER OF THE HEIR AS PROPRIETOR. 
 
 1094. An heir or institute of entail is held to be a fiar, and takes Heir of entail a 
 an estate in fee under the tailzied destination, being subject to no je^t only toUie 
 other restrictions in the exercise of his proprietory rights than such SEdSfSe*" 
 as are expressed in the prohibitions of the deed of entail. The re- " lt " 1 - 
 strictions required by the Statute are of a general character, ami 
 
 apply to all deeds falling within the three categories — of alienation, 
 contraction of debt, ami alteration of the succession. But tin- prin- 
 ciple of interpretation applied to the Statute 1685 enabled entailers 
 (without exposing the entail to objections affecting its validity) to 
 constitute exceptions to the prohibitions; ami, to the extent t . » 
 which the estate was excepted from their operation, it was held to 
 unentailed, and subjecl to the debts and deeds of the heir in 
 Bsion. The Entail Amendment Act makes no change in this 
 ct. An entailer, moreover, may, and indeed is authorised by 
 the Statute to am cl the estate with other prohibitions and condi- 
 tions than those specified in the Statute; and such conditions and 
 prohibitions, if duly fenced with irritant and resolutive clauses, are 
 i ffi ctual according t" their tenor. 
 
 1095. An beir of entail is accordingly entitled to do every acl 
 competenl to an unlimited fiar which is not prohibited by the e: 
 tail. The questions which have arisen with respect to the validity I 
 of the acts and deeds ol proprietors of entailed estati have relation 
 cnieny to the interpretation to be given to the statutory prohibi- 
 tion against alienation. (a) They may be divided int.. three ■ 
 
 ■ yance tothi umptive, I k nl by any "f ll 
 
 '- b i" propel tl I.. Id nol hibiti i l i - 10 M
 
 508 OF THE ESTATE OF AN HEIR OF ENTAIL. 
 
 CHAP. XXXIII. 
 
 (1) questions relating to " waste," as cutting timber, working mine- 
 rals, and the like ; (2) questions relating to alienation by granting 
 long leases ; and (3) questions relating to alienation by dispositive 
 acts, as the granting of feus or conveyances in security. 
 Powers of heir 1096. (1) An heir of entail is not, like a liferenter, obliged to 
 
 t'iont'aiuing 1 " a use of the estate salva rei substantia. He may cut down timber 
 timber. r or ga j^ or ge jj ^\e growing timber on the estate to be cut down. (b) 
 
 It has been attempted in various circumstances to restrain the 
 exercise of this right, as the cutting of unripe wood, of ornamental 
 timber, or wood which it is proper in a due administration of the 
 estate to preserve ;(c) " but," says Professor Bell,(cZ) " in all these 
 cases the restraint is so discretionary, and so little grounded on any 
 settled judicial principle, as to raise great doubts whether it can be 
 enforced." The cases, however, may be held to establish the rule, 
 that wood necessary for the shelter and ornament of the mansion- 
 house is protected from waste, and that the heirs-substitute may 
 interfere by interdict to prevent injury to the mansion-house or its 
 accessories, (e) And where the cutting of timber is expressly re- 
 strained by the prohibitions of the entail, effect will be given to the 
 will of the entailer. (/) The right of cutting wood passes with the 
 estate ; and therefore, if an heir of entail should die pending the 
 execution of a contract for cutting timber, his executors are only 
 entitled to the value of the trees actually cut down before his 
 death. ((/) 
 rowers of heir 1097. An heir of entail is also entitled to work minerals ; and it 
 
 Uon'tothe 1 lela " is not a relevant objection to the use of the right that they are 
 working of beina: wrought to exhaustion. Indeed, it is clear that this is merely 
 
 minerals. ° ° , , 
 
 a question of degree, as to which there are no termini habiles for 
 assigning a limit to the powers of the proprietor. The leading 
 authority is the Bredisholme case,(V) where an heir of entail having 
 let the whole minerals of the estate at a fixed rent of £700 per 
 annum, without the alternative of a royalty, which minerals were 
 again sub-let to different tenants at rents amounting in the aggre- 
 
 15,384, Elcli. " Tailzie," 37; Halket Craigie (e) Bonti?ie v. Graham's Trs., 17 Nov. 
 
 v. Craigie, 4 Dec. 1817, F.C. 1827, 6 Sh. 74, and other cases in note (c). 
 (6) Hamilton v. Viscountess Oxfurd,l7b7, (f) Moir v. Graham, 20 June 1826, 4 
 
 M. 15,408. Sh. 730, N. E. 737. 
 
 (c) Mackenzie v. Mackenzie, 1 March 1824, (g) Cathcart Y.Shaw, 1755, M. 15,399 
 2 Sh. 775, N. E. 643 ; Bontine v. Carrick, 19 March 1756, 1 Cr. St. & Pat. 618 
 16 June 1827, 5 Sh. 811 ; 17 Nov. 1827, Stewart v. Stewart's Exrs., 1761, M. 5436 
 6 Sh. 74; Lord Cathcart v. Shaw, 1755, M. Lord Elibank v. Renton, 15 Jan. 1833, 11 
 15,399, 5 Br. Sup. 816 ; 19 March 1756, 1 Sh. 238. 
 
 Cr. St. & Pat. 618 ; Gordon v. Gordon, 24 (A) Mtdrheadx. Young, 13 June 1855, 17 
 
 Jan. 1811, F.C. D. 875 ; 13 Feb. 1858, 20 D. 592. 
 
 (d) Bell's Pr. \ 1754.
 
 OF THE ESTATE OF AX HEIR OF ENTAIL. 569 
 
 gate to £3000, an action was brought by the next heir to have the chap. mm. 
 lease set aside as a constructive alienation of the estate, or undue 
 exercise of the power of granting leases. The Court allowed the 
 pursuer a proof of his averments, but ultimately repelled the rea- 
 sons of reduction, on grounds which implied that the pursuer could 
 only succeed by showing unfairness in the contract. (i) A subse- 
 quent action of declarator and damages against the tenants, on the 
 ground that they were rapidly working the minerals to exhaustion, 
 was dismissed as irrelevant. ( A') 
 
 1098. On considerations of equity and of convenience, the man- Heir bound to 
 sion-house of an entailed estate and its pertinents constitute an ^^ 
 exception to the rale that the heir in possession has the full powers ; i ',' n 1 1) ' ( '. r r " a """ Ul1 
 of a proprietor in fee in relation to the administration of the estate. 
 Therefore, first, the heir in possession is not entitled to let the man- 
 sion-house, garden, or pleasure grounds on lease, excepl lor a term 
 limited to the duration of his own life ;(l) secondly, he cannot cut 
 down timber adjoining the mansion-house, and necessary for its 
 shelter or ornament ; and thirdly, he cannot pull down the man- 
 sion-house and sell the materials, (m) But it would seem that he 
 may allow the mansion-house to go to ruin for want of repair ;(n) 
 and that he is even entitled to pull it down, " provided he bond 
 fide immediately builds a new house and offices equally as good, 
 and that either on the same site, or on any other equally suitable 
 on the estate." (o) In England, it is held that if a proprietor of a 
 B< ttled '-state wrongously cuts ornamental timber, lie may be com- 
 pelled to invest the money for the succeeding lairs, and lie is nut 
 entitled to the interest of it during his life.(p) But if a proprietor 
 of a settled estate insure the manor-place, and it is accidentally 
 destroyed or injured by fire, he is not hound to expend the insur- 
 ance money in erecting a new mansion, for he was not under any 
 
 (i) The Court were of opinion that the (I) Lord Cathcart \. Shaw, ITT"', M. 
 
 law was fixed by Lord Eldon'e rfictem in the 16,899, 16,408; 19 March L766, l Cr. St. 
 
 liiu.-t If Bome & Pat. 618 ; Leslu v. Orme, 1799, M. 
 
 onfah : 15,680, Hail B82; 26 Feb. ] 780, 2 Pat. 
 
 ablen also Turner v. Turner, 6 Deo. 
 
 ad would operate," to justify tin- in- 1*11, K.c. 
 terference of the Court ; Marquis of Queens- \) Gordon \. Gordon, 24 Jan. 1811, 
 
 berry v. Montgomery, 26 May 1820, 6 Pat. I'M'. 
 661 . Lord ] lon'a (n) Bandford on 
 
 hea in tlf othei actio ; o\\\ (o) Moir v. Graham, ! ; 8b, 
 
 of tli- , ticularly T^". X. ES. 787. 
 
 Duke of Buceleuch \. '•■' I '-'l L J Ch, 
 
 1819, 6 Pat. 620. I I 
 
 (*) 20 D. 692.
 
 570 
 
 OF THE ESTATE OF AN HEIll OF ENTAIL. 
 
 CHAT. XXXIII. 
 
 General prohibf 
 li. d againsl 
 alienation ap- 
 plies to long 
 leases, 
 
 Queensberry 
 
 Lease Cases. 
 
 Summary of 
 points decided 
 as to leases 
 granted in con- 
 travention of 
 entail. 
 
 obligation to insure the subject against accidental destruction for 
 the benefit of bis heirs, (q) 
 
 1099. (2) The statutory prohibition against alienation is suffi- 
 cient to protect the interests of the heirs of entail against the vir- 
 tual alienation of the estate or fraudulent diminution of its value, 
 by the granting of long leases. The word " alienate" is a compre- 
 hensive legal expression for every description of grants of heritable 
 estate, and is properly applicable to leasehold grants in excess of 
 the powers of administration competent to an heir in possession ;(r) 
 and it is settled by a series of decisions that a prohibition to " dis- 
 pone" is also applicable to the constitution of long leases. (V) This 
 branch of the law of entail was the subject of very elaborate dis- 
 cussion in the Queensberry Lease Cases, celebrated both for the 
 magnitude of the interests involved and for the ingenuity displayed 
 in the various devices which were resorted to for evading the obli- 
 gation to lease at a fair rental and for a limited term of endurance. 
 Eespecting these and other decisions, which bulk largely in the re- 
 ports of the early part of the present century, it may be affirmed 
 generally that they constitute an effectual barrier against any at- 
 tempt on the part of an heir of entail to diminish the interest of 
 his successors by unfair administration of the estate. Their autho- 
 rity is universally accepted ; no questions of a similar nature are 
 likely to arise in practice, and it is therefore unnecessary to review 
 the history of this doctrine of the law of entail, or to state the cir- 
 cumstances of the cases in which it was established, (t) 
 
 1100. The results are stated by Professor Bell nearly as in the 
 following propositions, which embrace all the material points :(«) — 
 1. Long leases are forbidden by the clauses prohibiting disposi- 
 tions and alienations ; under which description (after many doubts 
 and conflicting decisions) all leases seem to be included which ex- 
 ceed the ordinary term of a fair agricultural lease ; or which are 
 not leases for the purpose of improvement.^) 2. Leases granted 
 in contravention of a prohibition against alienation are not good to 
 
 (q) Seymour v. Vernon, 2\ L.J. Ch. 433. 
 
 (r) The Queensberry Lease Cases, re- 
 ported in F.C. under dates 25 May 1813, 
 15 and 17 Nov. 1815, 7 March 1816, 5 Feb. 
 1818, 2 Feb. 1821, 11 Dec. 1821, and 12 
 June 1822 ; on appeal in 6 Pat. 465-548, 
 and 6 Pat. 551. 
 
 (*) Hamilton v. Macdowall, 3 March 
 1815, F.C. ; Eliottv. Pott, 14 March 1821, 
 1 Sh. (Ap. Ca.), 16 ; Stirling v. Dunn, 22 
 June 1829, 3 W. & S. 462. 
 
 (/) For a more detailed exposition of the 
 
 subject, see Sandford on Entails, chapter 
 6, sections 3 and 4. 
 
 («) Bell's Pr. I 1752. 
 
 (x) Leslie v. Orme, 1779, M. 15,530, 
 Hailes, 832; affirmed 25 Feb. 1780, 2 
 Pat. 533; Malcolm v. Brown, 1807, M. 
 " Tailzie," App. No. 17 ; affirmed 2 Dow, 
 285 ; Turner v. Turner, 1807, M. " Tailzie," 
 App. No. 16 ; affirmed 1 Dow, 423 ; Queens- 
 berry Lease Cases, supra ; Mordaunt v. Lines, 
 9 March 1819, F.C; affirmed 5 July 1822. 
 1 Sh. (Ap. Ca.), 169.
 
 OF THE ESTATE OF AX HEIR OF ENTAIL. 57] 
 
 any extent, nor will they be sustained even when, at the time of ohap.xxxih. 
 challenge, the period to run is not beyond the term permitted by 
 the entail. (y) 3. Leases, whether of long or of short duration, are 
 held to fall under the prohibition againsl alienation, if granted in 
 consideration of a grassum, or if a sum is taken by the lessor in 
 addition to the stipulated yearly rent.(g) 4. A collusive or fraudu- 
 lent lease, at a low rent, granted in circumstances to gain an ad- 
 vantage over the next heir, is reducible.(a) 5. An heir of entail 
 may take a renunciation from a tenant and grant a new lease ;(b) 
 but a new louse, while the old is current, will not be effectual to 
 bind the succeeding heir of entail. (c) 
 
 1101. We may add, that the duration of leases of entailed lands Regulation of 
 is now virtually regulated by the Act of 6 and 7 Gul. IV., and the mgbyti 
 subsequent Entail Amendment Acts.(eZ) By the firsl mentioned ^Tofti*' 
 Act, the heir of entail in possession is empowered to grant lea>. - '■ 
 
 not exceeding twenty-one years' duration, without grassum or any 
 valuable consideration except the rent ; but not to include the home- 
 farm or mansion-house in any lease beyond the grantor's life.(e) By 
 16 and 17 Vict., cap 94,(/) heirs are authorised, subject to the "ap- 
 proval of the Court of Session, to grant feus and long leases to an 
 extent not exceeding in all one-eighth part in value lor the time of 
 the entailed estate, at a minimum feu-duty or tack-duty to be fixed 
 by the Court, and on condition that no grassum or other valuable 
 consideration shall be taken. 
 
 1102. The provisions of the Statute of 6 and 7 Gul. IV. have Term of endur- 
 been held to authorise the granting of mineral Leases for the period , 
 
 of twenty-one years \(g) hut it ha- been doubted whether a lease of statutes. 
 shootings for thai time would not be bad. in respect of the term 
 being in excess of the customary duration of sue], [eases. (A) With 
 rd to the question of the sufficiency of the consideration, it is 
 
 / v. Mordatmt, 6 July 1822, 1 Feb. 1780, 2 Pat. 688; Kerry. Redhead, 
 
 . I 169; Malcolm v. Bardner, 5 Feb. 1794, 8 Pat. 809, reversing Bell, 202. 
 
 19 June 1828,2 Bh. HO, N.E. 866. (d) II ..,,,1 L2 Vict., cap. 86, \ 1; and 
 
 (;■/ Queentberry Lease Cases, supra, p. 16 and IT Vict., cap. 94, c 6. 
 
 ad Earlof Wemystv.DukeofQiu 6 and 7 Gul. IV., cap. 42, \ 1. • 
 
 berry's JExre. (on remit from H.L.), 11 Dec. tended by I and 2 Vict., cap 70, to unre- 
 
 1821 I Bh. 202, N.E. 190; overruling corded entails. Se< [II.,cap. 
 
 Elliot M. 16 160. i | ted bj II aud 12 \ 
 
 Lord Elibanl \ . Hamilton, 16 Nov. 12. 
 
 Bo 21 Nov. (/) Becti 
 
 L829 S Bh, 108. '/ ■■■■'■ I mg, L8 Jun< I - 
 
 (/<) '/ ' '/ \ . Dufa of 17 1 '. 876. 
 
 »Ni 1 816 I I (h I T H 14 I 
 
 661. 22 D I"! 
 Ortni L779 M 15 6 10 26
 
 572 OF THE ESTATE OF AN HEIR OF ENTAIL. 
 
 chap, sxxiii. held that the heir is entitled to fix the rent, according to the value 
 of the lands at the time of granting the lease ; and so, if the rent is 
 proved to be inadequate with reference to the period of the incep- 
 tion of the lease, the transaction is not binding on succeeding 
 heirs, (i) 
 Prohibition 1103. (3) The granting of feu-rights is evidently a direct breach 
 
 ■utm' appHeTto °^ a prohibition against alienation, even where the subjects are given 
 feu dispositions. ff a t a fair feu-duty, and where such a mode of administration is 
 
 Equitable con- ■, n • 
 
 struction of proved to be the most beneficial for the estate. A general power 
 
 powers of feuing. r .. r •, r ■■ i_ • x> x m • n i • 
 
 of granting feus when conferred upon heirs of entaif is confined in 
 construction to feus which may be granted in the fair administra- 
 tion of an estate, for the purpose of increasing its revenues, and 
 consistently with the retention of the substantial rights of a pro- 
 prietor of a landed estate. A power of feuing cannot be used to 
 such an extent as to reduce the estate to a right of superiority. 
 Boxburghe This is the point which was decided in the case of the Roxburglie 
 feus. The entail of the Koxburghe estates contained a prohibition 
 against alienation, disposition, contracting debt, or doing anything 
 in hurt of the tailzie and succession, in whole or in part ; but a 
 power was given to the heirs of entail " to grant feus, tacks, and 
 rentals, of such parts and portions of the said estates as they should 
 think fitting, provided the same were made without hurt and dimi- 
 nution of the lands and others, as the same should happen to pay 
 at the time the heir-granter should succeed thereto." In the as- 
 sumed exercise of this power, the heir of entail in possession 
 granted to the same individual sixteen feus of parts and portions 
 of the estate, embracing in the aggregate the entire entailed estate. 
 At the same time, the grantee entered into a contract that the 
 estates granted to him in feu-farm should be entailed in favour of a 
 new series of heirs designated by the granter, and that the granter 
 should retain the liferent use of the estates. The grantee having 
 executed an entail in terms of his obligation, a reduction of the 
 transaction was instituted by the next heir-substitute under the 
 subsisting entail. The Court reduced the deeds, stating as their 
 reasons for the judgment, in answer to a remit from the House of 
 Lords on appeal, that the grants in question could not be held to 
 be real feus or dispositions inter vivos, but were settlements of suc- 
 cession, made in order to accomplish an alteration of the order of 
 succession prescribed by the entail, contrary to the prohibitions con- 
 tained therein. This judgment was affirmed by the House of Lords, 
 for the same reasons. (&) 
 
 (t) Gray v. Skinner, 10 June 1854, 16 D. (k) Ker v. Times Ker, 12 Jan. 1808, M. 
 
 923. " Tailzie," App. No. 18 ; remitted 6 July
 
 riant to the 
 entail. 
 
 OF THE ESTATE OF AN HEIR OF ENTAIL. 573 
 
 1104. This principle of construction is illustrated also by the chaf. xxxm. 
 decision in the Carleton case, where, the entail being defective in p rohiKtion 
 the clauses applicable to the contraction of debt, an attempt was against aHen- 
 
 . . ataxxa app i 
 
 made to alter the order of succession by the device oi granting a alienation in 
 bill for the value of the estate (£150,000) to a confident person, ^tionfor icti- 
 who adjudged the estate, and re-conveyed it to the heir on a fee- tious deR 
 simple title. In a reduction of a new entail executed by this heir, 
 the deed was set aside, on the ground that the proceedings for 
 the attachment of the estate were fictitious and illusory; that in 
 order that advantage might he taken of a defect in the prohibitory 
 clause of an entail, the act prohibited must he truly and actually 
 done ; and that a breach of a valid prohibition could not be com- 
 mitted under colour of doing something that was not effectually 
 prohibited. (T) 
 
 1105. A general power, embracing all acts falling within one of General power 
 
 . ^ . , , ,-... i , .-. of alienation on 
 
 the three statutory prohibitions, would obviously nullity tne entail, condition of re- 
 for such a power is equivalent to a revocation of the prohibitions, helfijepug- 
 But a general power of sale qualified by the condition of re-invest- 
 ment of the price in the purchase of other lands in Scotland of 
 equal value has been held good; and such a power may, it seems, 
 
 1 xercised on complying with the condition on which it is given, 
 
 though that condition is not specially fenced with irritant and re- 
 solutive clauses.(m) A general power to exchange the entailed 
 lands for lands in Scotland of equal value, is, on the same authority, 
 not inconsistent with the subsistence of an entail. 
 
 1106. Where an heir of entail acquires by singular title the right con olidationof 
 of property <,r <l< mdn ium utile of lands, the superiority of which is J3 e / S uperi. 
 comprised in the entail, and afterwards consolidates the right of pi ■ ; , ;;; , J 1 , .' ,> 
 perty with the superiority, he does not thereby entail the property. '".■<'" property. 
 He is entitled to re-constitute the feu-right, and may be compelled 
 
 to do bo by an action at the instance of a purchase r to whom he lias 
 sold it,(n) And the estates may, in the same way, be separated by 
 any of the succeeding lairs of entail to whom they may descend 
 under the destination in the superiority titles.(o) 
 
 r-l:' 6 Pat. 609; judgment affirmed 18 It wa ol erved, thai under such po 
 
 Di c. L818, 6 Pat. 768. f 1 "' • ' ,( ' ''"" ; ' 1 !|1 ""' 
 
 (Z) Cathcart v. Cathcart, L0 July 1881, 6 \ em. 
 
 oM'KenzieY.Stew- (n) Heron v. Duke of Quemtberry, 27 
 
 L761, M.TIl::. April IT::::. 1 P ' 
 Bairdv. Baird [Newbyth), 10 Feb. Qalbraith v. Graham, M Jan. 1814, 
 
 1844, 6 D. 648,decided inconformity with P.O. And bb< 1 " 
 
 thi unanimous opinion of the whole Court, ehopt 9 March 1826, I W.t B 41.
 
 574 OF THE ESTATE OF AN HEIR OF ENTAIL. 
 
 OHAI\ XXXIT1. 
 
 SECTION II. 
 
 LIABILITY OF THE ESTATE FOR ENTAILER'S DEBTS AND REAL 
 
 BURDENS. 
 
 i. Liability, how 1107. Three questions are here suggested for consideration : — 
 Liability for First, How an entailer may so entail his estate in his lifetime as to 
 una.T tiuM'ntaii; constitute an irrevocable settlement, and also to exclude the dili- 
 3. Payment^ gence of adjudication for future debts? Secondly, What is the mea- 
 
 whether extinc- ° ... . 
 
 tion or assigua- sure of the liability attaching to an entailed estate for debts con- 
 tracted by the entailer before constituting a binding entail under 
 the Statute, or contracted by his heirs under the powers reserved 
 in the entail ? Thirdly, Whether the payment of an entailer's debt 
 or other burden extinguishes the debt, or operates as an assignation 
 in favour of the heir by whom the payment is made ? 
 
 Gratuitous alien- 1108. I. HOW AN EFFECTUAL ENTAIL MAY BE CONSTITUTED IN THE 
 
 ations and alter- . . 
 
 ations barred ENTAILER S LIFETIME. To the Constitution of an entail WHICH shall 
 
 andregistration be effectual to bar gratuitous alienations or alterations of the suc- 
 of the entail, cession by the entailer, nothing more is requisite than that the dis- 
 position should be conceived in favour of the entailer as institute ; 
 that the fetters should be applied to the grant in his favour, and 
 that the entail should be completed by infeftment and registration 
 in the Kegister of Tailzies, (p) The dictum of Erskine in the follow- 
 ing passage (if understood to refer to gratuitous acts of contraven- 
 tion) is a correct statement of the doctrine, and the reason on which 
 it depends : " Though an entail, executed by one who had laid him- 
 self under no previous obligation, may be altered at the pleasure of 
 the maker, even where it contains prohibitory clauses restraining 
 the heirs of entail from altering the succession, yet, if he has direct- 
 ed the prohibitions not only against the subsequent heirs but him- 
 self, he is as effectually restrained as they, even though he should 
 have got no valuable consideration for fettering himself, because it 
 is implied in the nature of property that the proprietor can dispose 
 of it at pleasure ; and if he can gift it absolutely to another, he may, 
 a fortiori, restrict himself in the manner of using it. It is upon 
 this principle that all donations by a proprietor are effectual, which, 
 though they be at first voluntary, may be so constituted by the donor 
 as not to be subject to revocation." (r) 
 Gratuitous alien- 1109. Further, as explained in the sequel of the passage quoted 
 onerous "bliga- from Erskine, a mere obligation to execute an entail, where it is 
 an°nteiL eCUte g ran ted for an adequate valuable consideration, imports, in a ques- 
 ts) Douglas v. Duke of Hamilton, 1762, (r) Ersk. 3. 8, 24. 
 M. 4358, 4375 ; Binny v. Binny, 1688. M. 
 4305.
 
 OF THE ESTATE OF AN HEIR OF ENTAIL. .",7;, 
 
 tion with the grantee, a restraint upon the maker in relation to the chap. mm. 
 right of selling or disposing of the estate, although such restriction 
 should not he expressed, for the same reason for which < »ne whi i Bella 
 an estate for a fair price is bound in warrandice that the right shall 
 be effectual to the grantee. " Hence," he continues, " if two per- 
 sons should enter into mutual obligations to execute entails in fav- 
 our of each other, neither of them is revocable without the consent 
 of both parties ; and if either party should sell his entailed lands. 
 in consequence of the right of fee which he still retained in them, 
 with a fraudulent view to disappoint the succession, an action lies 
 against him for damages. "(r) In relation to the question of obli- 
 gation, it is obviously of no consequence whether infe*ftment has 
 or has not been taken upon the conveyance in the contract ; and 
 it was so held in an early decision, (s) And even where a settle- 
 mentis not founded on any expressed or antecedent obligation, yel 
 if the entailer has only a liferent, and if possession be ceded, as 
 by allowing the disponee to take infeftment, or by recording the 
 entail in the Register of Tailzies (which is equivalent to delivery), 
 the deed is past recall as far as the entailer is concerned. But the 
 mere infeftment of the entailer himself as institute under the dis- 
 position does not exclude his right to revoke by deed in liegi 
 poustie,(t) and still less can the mere execution of a persona] en- 
 tail have this result. (?/) 
 
 1110. Two cases have been distinguished in which an entailer, Estate ecured 
 while retaining the substantial right to his estate, may sp settle it il^ViTi.'ov 
 : it from liability to attachment Ion Id its which he may "■' i! ' r ; ii; " 
 
 x ■ v a ufercnl ; 
 
 subsequently contract. First, where the entailer is divested of the (2)whi 
 fee-simple in his lifetime, as he may be by infeftmenl upon a con- 
 veyance to himself in liferent and to an institute and heirs of en- 
 tail in fee: Secondly, where the entailer, though not divested of the 
 fee, is inieit as institute nnder a recorded deed of entail which he 
 is barred by onerous obligation from revoking. The reason of the 
 
 first case i- I bvious to require explanation;^) and it is only 
 
 necessary on this poinl to notice the distinction taken in the Bat I 
 holm case between personal entails and entails completed bj regis- 
 tration and infeftment. The former are revocable by the joint act 
 inter vivos of the liferenter and the institute, (y) and are therefore 
 liable to be defeated by voluntary alienation ; the latter are in all 
 respects protected by the Statute.(«) 
 
 Er lc 8, 8, 24, and ca («) Lord Lindon il M 
 
 cited. 
 
 (.«) Sehatoy. Houston, 17l">. M. 16 
 affirmed 10 March 1618 R • . 208. 
 
 (i) Dickson v. Ounm 
 
 I " ■ !■
 
 576 
 
 OF THE ESTATE OF AN HEIR OF ENTAIL. 
 
 chap. xxxm. 1111. The second of the two points referred to in the preceding 
 ~ . T~ paragraph is the one decided in the Sheuchan case, the leading 
 
 Doctrmfi ot ^ ox 
 
 onerous entails, authority in reference to the effect of onerosity in deeds of entail. 
 
 cnnuiniiiuune. It must be premised, that the Statute of 1685 does not confer upon 
 proprietors the power of entailing their estates to the prejudice of 
 their own creditors, either in relation to past or future obligations. 
 Accordingly in the case of Dickson v. Cunninghame, an entailer in- 
 feft upon a settlement in favour of himself and certain heirs-substi- 
 tute, and protected by prohibitions, irritant and resolutive clauses, 
 in terms of the Statute, was found to have the power of disposing 
 of the lands to a purchaser. The report bears : " The Lords consi- 
 dered the entail to be altogether ineffectual in a question with the 
 creditors of the entailer. The Statute 1685, authorising settlements 
 of that sort, related, it was observed, to the case of heirs alone, 
 whose interest might, according to the forms therein prescribed, be 
 limited or modified by the deed of the ancestor from whose gift 
 they derived the estate. But the case of the proprietor himself was 
 left to the consideration of the common law." (a) In consequence . 
 of the ultimate decision in the Sheuchan case, an attempt was made 
 many years afterwards to reduce the sales effected under the au- 
 thority of the last-mentioned judgment ; but it was held, on appeal, 
 that the original action had been rightly decided, (b) 
 
 Stewart v. 1112. The case of Sheuchan is distinguished from the preceding 
 
 VansAgneic cage ^ t k e e i emen t f onerosity. This element, which in fact de- 
 termined the case in favour of the heirs of entail, appears not to 
 have been adverted to in the original decision of the Court of Ses- 
 sion ; and it was not finally established by the House of Lords un- 
 til after the elapse of thirty years from the date of the original de- 
 cree, and after the case had been remitted to the Court of Session 
 for reconsideration. In this case the settlement was in the form 
 of a mutual entail and postnuptial contract of marriage, whereby 
 Mr Agnew (whose only daughter was married to the other entailer, 
 Mr Vans) conveyed his estate of Sheuchan to Mr and Mrs Vans, 
 and the survivor of them, and the heirs of their marriage, with cer- 
 tain other substitutions, for which causes Mr Vans made a similar 
 disposition of his estate of Barnbarroch. The entail was executed 
 in 1757, and was immediately recorded, but infeftment was not 
 taken upon it until the year 1775. Upon the death of Mr Vans, 
 the entailer, in 1781, an action was brought by his creditors, con- 
 
 1771, M. 15,579 ; Moray v. Ross, cited in 
 Sandford on Entails, p. 225. 
 
 (a) Dickson v. Cunninghame, 1786, M. 
 15,534. 
 
 (b) Dickson v. Cunninghame, 1 Oct. 1831, 
 W. & S. 657.
 
 OF THE ESTATE OF AN HEIR OF ENTAIL. 577 
 
 eluding for reduction of the entail or, at least, that all the debts of chap. xsxm. 
 the entailer were effectual against the estate of Barnbarroch. h 
 was found, in the Court of Session, that the estate was " affectable" 
 by the debts due by the entailer at the time of his death. (e) The 
 judgment of the House of Lords (moved by Lord Eldon) was - 
 follows : — " That so much of the interlocutor of the 3d March L78 !. 
 as found generally that the estate of Barnbarroch was affectable by 
 the debts of John Vans at the time of his death, be and the same 
 is hereby reversed ; and the Lords find that such estate was affect- 
 able only by the debts of the said John Vans which were due at the 
 time of the date of the deed of tailzie of the 29th of December 
 1757, and which remained due at the time of his death, and such 
 other debts of the said John Vans (if any) as had become real 
 charges upon the said estate, before the infeftment of the 20th of 
 May 1775 ; and refer the cause," etc.(<7) 
 
 1113. The grounds of the decision were substantially these : first, Statement of the 
 the entail was onerous— a price was virtually paid for the right con- Et! ds ° fiudg " 
 ferred upon the heirs of entail, in consequence of which they were 
 creditors of the entailer; secondly, the infeftment of the entailer 
 
 upon a deed which disclosed an onerous cause of granting, and set 
 forth the destination in such a way as to make the right of the 
 heirs-substitute a burden on the estate, was equivalent to the in- 
 feftment of the heirs-substitute themselves, and gave them preced- 
 ence over other creditors whose debts were not made real before 
 the date of the infeftment upon the deed of entail; and. thirdly, 
 thai the Statute oi L685 did not so limit the conditions on which 
 an entail could be constituted, as to prevent an entailer from effi c- 
 tuaUy directing the prohibitions against himself, Buch restriction 
 being for an onerous cause, and being made public by entering the 
 infeftment on the email, and by the registration of the entail in 
 the statutory record. 
 
 1114. The results of the foregoing examination of the authori- i; • fthe 
 tiea maybe stated in the following propositions: — I. Where the j 
 d< 1 'I of entail divests the granter of the fee. and Leaves him only ;i '""'" "" "'" 
 liferent of the estate, then, as long as the entail remains personal, 
 
 ii can only be binding in obligations^ and may be discharged with 
 the conseni oi the institute ; but aft< r r< gistration and infeftm* nt(< > 
 it is a compL te entail, incapable of I" ing defeat* d by the di bts or 
 deeds i ither oi the granter or the institute. 2. Wnere the granter 
 
 (r) Stewart v. Van Agnew (Sheuchan), Sh, (Ap.l I, 881 I 
 
 it- I M. 16,486. ■ / 1 
 
 ■ ■/ Agneu - ■ ■ \ July 1822, 1 G I D or {Barholm 1771 
 
 Vol,. I. 

 
 578 OF THE ESTATE OF AN HEIR OF ENTAIL. 
 
 ohap. xxxin. is not divested, but the entail is onerous, and the restraining clauses 
 are directed against the entailer as institute, the entail, while it 
 remains personal, is effectual to bar gratuitous alienation ; after 
 registration in the Register of Tailzies it is effectual in respect of 
 its onerosity against the personal creditors of the institute, whose 
 claims are subsequent in date to the registration of the deed ; after 
 registration and infeftment it is effectual against all creditors what- 
 soever, except those whose claims " had become real charges upon 
 the estate before the infeftment." (/) 3. Where the granter is not 
 divested and the entail is not onerous, the settlement may be made 
 binding inter heredes by compliance with the requisites of the Sta- 
 tute ; but the estate continues to be liable for the debts and obli- 
 gations of the entailer to the time of his death, (g) 
 
 Limits of the 1115. II. MEASURE OF LIABILITY FOR ENTAILER^ DEBTS AND REAL 
 
 subject. Lia- BTJRDENS- — it is unnecessary here to do more than merely to refer 
 
 bility under ™ J J 
 
 powers. t the case of the liability which may attach to a settled estate for 
 
 debts, whether contracted by the entailer, the institute, or the heirs 
 of entail, by reason of the entail being defective in the prohibitory 
 or restraining clauses applicable to the contraction of debt. On 
 this subject reference is made to the previous chapter, treating of 
 the statutory requisites to the constitution of an effectual entail, (h) 
 Nor is it needful to inquire as to the nature of the obligations which 
 may arise in consequence of the exercise of reserved powers in the 
 nature of exceptions to the application of some of the statutory pro- 
 hibitions. An entailer may reserve power to himself or his heirs 
 of entail to alienate certain parts of the estate, — to burden the es- 
 tate with debt to a certain amount, — to alter the succession within 
 certain limits. With reference to all such reservations the rule is 
 clear, that to the extent to which the estate may be alienated or 
 burdened it is unentailed, and maybe attached by creditors. This, 
 however, does not apply to a power of altering the succession by no- 
 minating additional heirs, for this is a power which cannot be exer- 
 cised so as to give an interest to creditors, (i) 
 Liability under 1116. An heir of entail, moreover, may be liable for the debts of 
 
 P re"entation r< or the entailer, if he represents him as heir, under the passive titles ; or 
 under direction j^ ma y p, e liable to make good the entailer's debts, either out of 
 the entailed estate or otherwise, in virtue of an obligation to that 
 
 (/) Interlocutor in the Sheuchan case, . (i) As to powers of alienation by way of 
 
 cited supra, \ 1112. feus and long leases, see section 1, supra. 
 
 (g) Earl of Lauderdale v. His Heirs of The subject of Powers of Burdening the 
 
 Entail, 1730, M. 15,556 ; Dickson v. Cun- Estate with Provisions is treated in chapter 
 
 ningham, 1786, M. 15,534; 1 Oct. 1831, 5 61, section 2; and that of the Nomination 
 
 W. & S. 657. of Heirs in chapter 29. 
 
 (h) Chapter 32.
 
 OF THE ESTATE OF AN HEIR OF ENTAIL. 
 
 effect introduced as a condition into the deed constituting the en- ohap.xxxih. 
 tail.(A-) In the case of the entailer's debts being charged upon the 
 estate by the deed of entail, or a relative settlement, the chief diffi- 
 culty consists in determining whether the intention was to make the 
 entailed estate or the heirs succeeding to it primarily liable for the 
 debts, or merely to give collateral security to the entailer's creditors, 
 and so to obviate the necessity of bringing the estate to a judicial 
 sale. On this question the decisions are of little value as prece- 
 dents, for the intention in every case must be collected from the 
 testamentary or other writings creating the liability. The leading 
 cases are discussed in a subsequent chapter,(Z) and a general re- 
 ference to them may suffice for the purposes of the present in- 
 <iuiry.(///) 
 
 1117. The heir of entail is, of course, entitled to the benefil of e 
 discussion; and unless the entailers debts are made real, or are de- 
 clared to be burdens primarily affecting the entailed estate, the 
 executry. as well as the unentailed heritage, musl be Qrs1 ex- 
 hausted, (h ) 
 
 1118. Where a bend of pro 1 * ited under a power con- Liability 
 ferred by the deed of entail, it is Like an entailer's debt, and th ! 
 entailed estate is Liable to be attached for the principal and into 
 
 . ■ ' Or under powers. 
 
 rest; so that an heir oi entail, taking up the estate, incurs a lia- 
 bility commensurate with the value of the estate.(o) And where a 
 provision constituted by the entailer is declared to be a debt bind- 
 ing upon hie heirs of entail, the heirs-substitute of entail are indivi- 
 dually bound by their acceptance of the grant, although it may nol 
 be competenl to proceed directly againsl the estate.l p) Where to 
 such an obligation there is added a clause entitling the heirs of 
 tailzie to reliel oul of the general estate, and the heir-general also 
 succeeds to the entailed i state, he is bound to pay the provisions 
 '"it of the general estate; and the obligation does nol transmil 
 againsl Bubsequenl heirs of entail.^) 
 
 (<>) Howden ■■ i I, 17 June 1884, 
 
 bion, and the Liability of Heirs 12 Sh. 784. An annuity granted by the 
 
 ;, "'l 1. entailer to bia widov i i held to be ai 
 
 I bapti '• 72. tailer'a debt, though ii i le in 
 
 -a. 17 17. M. bis lifetime; Stewart v. Denham, 8 k\ 
 
 6218; Hop t •.. Earl of Hopetoun, 17'.''.'. .M. 1742 l Cr. , 
 
 mption," '. H v. July 1846 8 D. 1217. 
 
 Skene, 29 - ; Hot Ker v. Cochrai I 1 
 
 328, 2 si,. 180, Sh. I 
 V E. L61 : 29 June L826, 1 W. & S. 678; fi h v. Murray, I I Jan. I ' 
 
 Jardine v. Lockhart, 14 Jun< 1888, II Sh. Bh. 279. And-.. H M 
 
 720. 16 1 
 
 !■'■ '•' i l: ell, 1745, M. 5211 v. Farqulu oris Tr., 10 i 
 
 ■ 
 
 •J ■
 
 580 
 
 OF THE ESTATE OF AN HEIR OF ENTAIL. 
 
 Estate hold un- 
 entailed and 
 liable to adjudi- 
 cation and sale 
 for debts affect- 
 ins; it. 
 
 chap, xxxiii. 1119. For the liquidation of entailer's debts, or of those provi- 
 sions which are charged on the estate under the powers of the 
 settlement, resort may be had to any of the modes of distribution 
 which are competent in relation to unentailed property. Creditors 
 may attach the estate by adjudication, or by a process of ranking 
 and sale.(r) In the application, however, of the Statute 1695, cap. 
 24, a distinction has been taken ; the heir of entail may bring the 
 estate to a judicial sale while the deed of entail is personal ; but if 
 infef tment have been taken by any of the preceding heirs, the estate 
 s held to be protected by the Statute, lest, under the colour of a sale 
 for debts, the heir might succeed in disentailing the estate, (s) If 
 the deed of entail expressly empowers the heir in possession to sell 
 for payment of such debts as are due from the estate, the Court of 
 Session will, upon production of the deed of entail, grant permis- 
 sion to sell in terms of it. (7) Where a power is held to be given 
 by implication, it may be necessary to have the title cleared by a 
 declarator. (u) Concerning the powers of disposition conferred by 
 the various Entail Statutes, and the procedure requisite for charging 
 entailed estates with debt under these statutory provisions, refer- 
 ence is made to Mr Duncan's Manual of Entail Procedure, (x) 
 
 1120. The debts of heirs of entail, it will be observed, may be 
 secured upon the estate to the extent of affecting the rents during 
 the lifetime of the debtor ; and to the same effect the estate may be 
 attached by real diligence for the debts of an heir in possession. 
 The like procedure is competent for the purpose of operating pay- 
 ment of provisions, which, under the powers of the deed of entail, 
 are made burdens on the right of the succeeding heir without being 
 permitted to become a permanent charge upon the estate. 
 
 1121. As to the proper form for constituting a security over an 
 
 Heir's life in- 
 terest may be 
 attached for his 
 debts, and for 
 provisions per- 
 sonally binding 
 on him. 
 
 Constitution of 
 securities on en- 
 tailed estates 
 restricted to the 
 heir's life in- 
 terest. 
 
 (r) Younger children claiming as cre- 
 ditors under marriage-contract provisions 
 have, of course, the same rights as ordinary 
 creditors ; Dundas v. Dundas, 16 May 1839, 
 1 D. 731. 
 
 (s) Mitchell v. Tarbutt, 4 Feb. 1809, 
 F.C. 
 
 (t) Scott v. Scott's Heirs, 1751, M. 15,394. 
 
 (w) Graham v. Wight, 21 Dec. 1850, 13 
 D. 420 ; and see Allan v. Glasgow's Trs., 
 28 Jan. 1842, 4 D. 494, and the previous 
 decision of the House of Lords, 1 Sept. 
 1835, 2 S. & M'L. 333. 
 
 (x) Two points of considerable import- 
 ance in practice, recently decided, may here 
 be noticed. In the case of Hay Newton v. 
 Hay Newton, 18 July 1867, 5 Macph. 1056, 
 
 it was held that the execution of a new 
 entail, with the consents required by the 
 4th section of the Entail Amendment Act, 
 had the effect of evacuating provisions 
 granted under the Aberdeen Act in the 
 character of heir of provision of the pre- 
 vious entail. In the case of Brodie, Petr., 
 6 Dec. 1857, it was held that provisions 
 under the Aberdeen Act, actually paid and 
 secured on the estate, are not to be de- 
 ducted in estimating the free fund out of 
 which further provisions may be made. 
 The effect of this, it was said in argument, 
 would be gradually to "eat up the estate," 
 a result which is nowise at variance with 
 the spirit of recent legislation in relation 
 to entails.
 
 OF THE ESTATE OF AN HEIB OF ENTAIL. 58 1 
 
 entailed estate restricted t<>the life interest of the heir, the convey- chap. xxxm. 
 ancer will do well to follow the style sanctioned by the cas< - 
 Nairnev. Gray,(y) and Boutin* v. Graham,(z) where the security 
 
 was given in the form of an heritable bond, with an assignation to 
 rents and warrant fur infeftment, subject to a declaration that the 
 annuity should not affect the lands or rents thereof for any longer 
 period than the grantor's lifetime, or be the ground of adjudication 
 or other diligence whereby the estate might be evicted. 
 
 1122. Debts of the entailer, and debts made real under the Rules of prefer- 
 authority of the deed of entail, may of course be mad.' in affed the tSfonTfor^nts 
 rents as well as the fee of the estate, and to the extent of the arrears ' , ' '' '','" " l " 
 
 . r s»»e en ditors 
 
 of interest such debts form a preferable claim upon the rents in a a, ". ! 
 question with creditors of the heir in possession. With regard to sion."" 
 the order of preference in relation to the principal, the ease stands 
 thus: In an early case(a) creditors were ranked on the rents of the 
 estate in the following order, — 1st, creditors of the entailer and of 
 the institute; 2J.J//, a creditor in an annuity granted under a power 
 by a former heir ; 3dly, creditors of the heir in possession who had 
 attached the rents by diligence. The creditors in the third class, 
 finding that there was no reversion available to them, applied to 
 the Court to have the creditors of the entailer ordained to assign 
 their security over the fee ; but the application was refused. How- 
 ever, in the subsequent case of Hawkins,(b) it was ruled thai a 
 creditor whose debt is a good charge upon the lee of the estate, and 
 who does not offer to assign his security over the Pee, is not entitled 
 to a preference over tin' rents, except lor arrears of interest. Mr 
 Sandford justly observes, that since the payment of an entailer's debl 
 
 out of tlie rents operates as an assignation of the debt in lav • of 
 
 the heir in possession,(c) the creditors of that heir would beentitled 
 to attach his claim, ami by means of it to operate paymenl ly ad 
 jndiratir.il or sale.(cZ) 
 
 1123. III. Payment ok debts by. an beir of entail, whetheb p 
 
 OPERATING AS AN EXTINCTION on as AN ASSIGNATION. — In relation to , 
 
 hi ii i nli' r not 
 
 (;/) Nairra v. Gray, 16 Feb. L810, EC. /.' ng of Earl of Bucharit Ort., liableina 
 
 (n Bontine v. Graham, 2 March 1887, L6 citedin I Buchan v. Hit Father' sC 
 
 Bh. Tl'_': ad Be Scottish Union I I7~<7. .M. 15,406; Sandford on Entu 
 
 Graham, L9 F< b. L889, I D. 682. 419. 
 
 In the cs e of Graham v. Hunter, 1 I Nov. {>') Hawk C 
 
 held that a convej 1800 M 'I ipetition " App. No. 1 ; and 
 
 •a righl and inter I G '■ I 21 I 
 
 pt, in n |" a\ that an heir of entail 18 D. 420 
 
 i nol e Liferenter, bul b limiti d B ir, Thi (e) Bee \ 1128 I 
 
 Mr Sandford, in i upporl of ' : " 
 iki d in thai case, appi ar to bi 
 well f< I pj 12 1 i
 
 582 OF THE ESTATE OF AN HEIR OF ENTAIL. 
 
 chap xxxi... payment of debts by heirs of entail, the most important question is, 
 whether in any given case the payment operates as an extinction of 
 the debt, or vests the jus crediti in the heir by whom the payment 
 is made ? The general rule is, that the distinction in the characters 
 under which the heir paying an entailer's debt sustains the relations 
 of debtor and creditor, is sufficient to prevent the extinction of the 
 debt conJusione.(e) But in order that there maybe place for the 
 distinction in question, it is necessary (1) that the heir of entail 
 should not he liable -for the debt in any general character, e.g., as 
 executor or heir-at-law ; or (2) if he is liable in either of these 
 characters, that he should be entitled to relief from the heirs of 
 entail, as he will be where the debts are declared to be primarily 
 chargeable on the entailed estate. Where entailer's debts are paid 
 by an heir of entail who is also liable without relief under one of 
 the general passive titles, they are absolutely extinguished (at least 
 to the extent of the value of the general succession), and incapable 
 of being kept up against the entailed estate. (/) 
 Bow the debt 1124. Subject to the exception noticed in the preceding para- 
 
 "s a IchaSe tUP graph, it may be affirmed generally that an heir of entail who pays 
 S S estate en " deDts or P 1 ' ^* 10118 charged upon the estate out of his own funds, 
 is entitled to keep them up as a claim against the entailed estate ; 
 and will be held to have done so in the absence of any expression 
 of intention to the contrary. (g) If an assignation,^) or a discharge 
 and assignation, (i) is taken by the heir, then the intention to keep 
 up the debts is clear. And where a creditor, at the request of the 
 heir paying the debt, assigned the claim against the estate to his 
 younger children, the debt was held to be good against the succeed- 
 ing heirs after the elapse of sixty years, interest having been paid 
 upon it for a sufficient time to exclude the plea of prescription. (k) 
 And although a creditor in a debt affecting the entailed estate suc- 
 ceed to the estate, the debt is not thereby extinguished confusione ; 
 on the contrary, his heir whatsoever will become the creditor in 
 the obligation, and have action upon it against the heir of provi- 
 sion.^) A similar right exists on the part of a creditor who takes 
 the entailed estate as institute or disponee of his debtor. (m) In- 
 
 (e) Ersk. 3, 4, 27. 764 ; Welsh v. Barstow, 11 Feb. 1837, 15 
 
 (/) Sir W. Forbes and Co. v. Lord Dun- Sh. 537. 
 
 can, 1802, M. "Tailzie," App. No. 10, and (i) Ker v. Turnbull, 1758, M. 15,551. 
 
 Boyd v. Boyd there cited. (k) JDundas v. Dundas, 12 June 1827, 5 
 
 (g) Caddell v. CaddclVs TVs., 11 July Sh. 791, N. E. 731, bis. 
 
 1845, 7 D. 1014 ; Crauford v. Hotchkis, 11 (/) Cunninghame v. Lady Cardross, 1680, 
 
 March 1809, F.C. M. 3038 ; Cuming v. Irvine, 1726, M. 3042; 
 
 (h) Lawrie v. Donald, 7 Dec 1830, 9 Sh. Gordon v. Maitland, 1757, M. 15,411. 
 
 117; and see Murray. 1,748, 5 Br. Sup. (m) Viscount Strathallan v. Drummond, 
 
 29 May 1828, 6 Sh. 881.
 
 OF THE ESTATE OF AN HEIR OF ENTAIL. 583 
 
 terest on an entailer's debt, paid by an heir, becomes a debl due ! sxxm. 
 
 the representatives, in like manner as the principal.(w) 
 
 1125. On the other hand, if an heir of entail paying a debt due 1: 
 by th -, in place of taking an assignation t ■ • it. accepts a 
 
 simple discbargej it is considered that lie intends to relieve the 
 entailed estate of the debt ; and it is accordingly extinguished, (o) 
 Where a transaction of this nature is vitiated by fraud, or breach oi 
 statutory requirements, it may he opened up, and the rights of all 
 parties are then restored to their former position.(p) Though the 
 heir in possession is bound to keep down the interesl on entailer's 
 debts, and is primarily liable to that extent, yet if he fail to pay. 
 the interest, ecmally with the principal, is a debt affecting the 
 estate, (q) 
 
 («) Campbell v. Campbell 29 Nov. 1815, (p) Cleghorn v. Eliott, 12 Nov. 1840, 3 D. 
 
 F.C. 1 : affirmed, 27 Aug. 1839, M'L. & Rob. 
 
 (o) Wauchope v. Duke of Roxburghe, 14 1033. 
 
 Dec. 1815, F.C. ; affirmed, 9 Match 1825, (q) Campbell v. Campbell, 29 Nov. 1815, 
 
 1 W. & S. 41. In this case the debt was F.C. : Erskine v. Earl of Mar, 7 July 1829, 
 
 secured on the entailed estate by means of 7 Sh. 844 ; Sands v. £ ,7 July 1835, 
 
 a wadset, and the case may lie compared 13 Sh. 1040 ; Duchess of Richmond v. Duke 
 
 with , ision in which the heir, of Richmond, 2 Dec. 1837, 16 Sh. 171'. To 
 
 having taken a conveyance to the wadset, this rule there is a statutory exception in 
 
 Id to have assumed the position of relation to the interest due on Bonds and 
 
 the creditor in the obligation; Earl of Dispositions in Security un sl7, 
 
 Peterboro v. Fratsers Crs., 1736, M. 3086. 18, and 21 of the Entail Amendment
 
 584 
 
 OF CONDITIONS IN WILLS AND 
 
 CHAP. XXXIV. 
 
 CHAPTER XXXIV. 
 
 OF CONDITIONS IN WILLS AND TESTAMENTARY 
 DISPOSITIONS. 
 
 Conditions pre- 
 cedent and sub- 
 sequent, how 
 distinguished. 
 
 Conditions po- 
 testative or 
 casual. 
 
 Conditions 
 obligatory or 
 
 unlawful. 
 
 1126. Conditions in testamentary settlements are distinguished 
 according to their mode of operation, and are either precedent or 
 subsequent '; that is to say, either the vesting of the succession is 
 made contingent on the determination of an event in favour of the 
 legatee, or the provision is so framed that the legatee is divested 
 by the determination of an event in favour of some other person. 
 Conditions subsequent are construed in a stricter sense than con- 
 ditions precedent, because the policy of the law, while it does not 
 absolutely prevent, is at least unfavourable to the imposition of 
 conditions, the effect of which is to divest a person who has already 
 acquired an interest in a succession, (a) 
 
 1127. Conditions are also divided, with relation to their object, 
 into potestative and casual conditions, (b) A potestative condition 
 makes the gift dependent on an act, the performance of which is 
 within the power of the legatee ; and the object of such conditions 
 is to secure performance, (c) Potestative conditions, accordingly, 
 become obligatory on the legatee by acceptance of the grant ; a prin- 
 ciple which has been treated by some writers as an extension of the 
 doctrine of approbate and reprobate. Casual conditions are those 
 which are determined by the occurrence of an event, such as the 
 death of a liferenter, the attainment of majority, the succession to 
 another estate, etc. Such conditions, when not dictated by pure 
 caprice, usually bear relation to some change in the circumstances 
 of the legatee, or of some other party to whom a prior interest in 
 the same subject is limited. 
 
 1128. Lastly, conditions are distinguished in relation to their 
 obligatory character. A condition which is lawful and possible is 
 
 (a) Bell's Pr., \ 50 ; Jarraan on Wills, taken bound to pay the granter's debts, as 
 chap. 27. in Moncricffv. Skene, 29 June 1825, 1 W. 
 
 (b) Bell's Pr. and Jannan, ut supra. & S. 672; Bruce's Trs. v. Hamilton, 29 
 
 (c) For example, a legacy may be bur- Jan. 1858, 20 D. 473. 
 dened with debl, or the legatee may be
 
 TESTAMENTARY DISPOSITIONS. 
 
 obligatory; the effect of conditions which are either unlawful or ohap.xxxit. 
 impossible of fulfilment, remains for consideration. 
 
 1129. In addition to the recognised grounds of distinction which Potestative con- 
 have been noticed, it is necessary, in regard to potestative condi- S^raSe 
 tions, to keep in view the practical distinction between imperative aIul F L,hibitor - v - 
 and prohibitory conditions. An imperative condition is binding, 
 
 unless the act enjoined be contrary to law. A prohibitory condi- 
 tion may be legally inoperative, on the ground of its having a tend- 
 ency (1) to interfere with the personal liberty of the legatee, or ('!) 
 to alter or interfere with the right of property, although the fulfil- 
 ment of the condition, if it had sprung from the spontaneous act of 
 the legatee, might have been harmless or even laudable. A pro- 
 hibitory condition is sometimes disguised in the form of an impera- 
 tive one; and some of the confusion which pervades this branch of 
 the law is perhaps attributable to the tendency of lawyers to look 
 rather to the form than to the substance of the injunction. Take, 
 for example, the condition that the legatee is to reside in a certain 
 place. Discarding the form of the direction, this is obviously pro- 
 hibitory; for residence someiuhere being a iu-eess;iry condition of 
 existence, the direction to reside in one place is equivalent to a 
 prohibition against residing in any other place. So an injunction 
 to marry a particular person is in effeel a condition in restraint of 
 marriage. (//) 
 
 1130. Referring to the observations introductory to the law of Effect of condi- 
 vesting, it will be seen that proper questions of vesting can only Testing of the 
 arise with reference to casual conditions; thai is, conditions which 
 
 are determined by an event and not by the will of the legat* e. A 
 potestative injunction is, in the intention of the icst.-d.n-, necessarily 
 a condition affecting the acquisition of a vested interest: but a Eventual con- 
 legacy given upon a particular event may no1 be bo, [f, for ex- 
 ample, a legacy is made payable upon the occurrence of an event 
 which i j j li—i happen, although uncertain as to time, the interesl oi 
 the !• a morte testatoris, though the period of paym< nl is 
 
 postponed ; and the inter< s1 may accordingly be assigned or attached 
 by legal diligence. It, on the other hand, it is uncertain that the 
 evenl contemplated by the testator ever will happen, the evenl Is 
 regarded as a condition — dies inc&rtus pro conditions habetur. Tin I 
 subje< t "i 1' gaci< b to hum. . - and i x< i utoi ie i Isewhere consid< red. 
 Where the legacy is given to the trustee oi executor in H I 
 racter, hie acci ptam e "I the office ie a condition aff< cting hie right 
 to the bequest.(< ) 
 
 a H87
 
 586 
 
 OF CONDITIONS IN WILLS AND 
 
 CHAP. XXX1Y. 
 
 Conditions re- 
 lating to succes 
 sion to other 
 estates. 
 
 ( londitions re- 
 lating to time. 
 
 Condition, that 
 
 the legacy is 
 claimed. 
 
 Arbitrary con- 
 ditions. 
 
 Bdberton v. 
 
 Eoberton. 
 
 1131. A condition of frequent occurrence in settlements is, 
 that the disposition shall not take effect in the event of the legatee 
 succeeding to a certain other legacy or estate, or to estate of a cer- 
 laiii value. (/) Such stipulations are effectual though expressed in 
 the form of conditions subsequent with a destination over, provided 
 there is a clear purpose of substitution, — subject always to the 
 operation of the rules of law restrictive of substitutions.^) 
 
 1132. The case of legacies contingent on the legatee's survivance 
 of a definite period of time, is exemplified by the case of Wilkie v. 
 Wilkie. The testator had directed his trustees to retain his lands 
 of Auchleshie in their management for fourteen years after his de- 
 cease, and thereafter to sell the lands, and to divide the produce 
 among all his children then in life, or their issue, the shares of pre- 
 deceasing children to accresce to the survivors. One of the sons died 
 whilst the sale was in progress, and the Court found that no share 
 of the price or value of the lands could be held to have vested in 
 the son at the time of his death, but that his share accresced, in 
 terms of the trust-deed, to the surviving children, (h) In other 
 cases, where a right of liferent was given subject to the condition 
 of survivance, the right to the fee has been held to be affected by 
 the same condition, (i) 
 
 1133. Where a legacy is left to a party on condition of his ap- 
 pearing to claim it within a certain time, failing which, to other 
 parties, the legacy will vest in the eventual legatees at the expira- 
 tion of the time appointed ;(k) and it follows, by parity of reasoning, 
 that the vesting of a provision contingent on marriage, upon suc- 
 cess in a suit, or any other arbitrary but lawful condition, will only 
 take effect upon the condition being purified. (I) A legacy having 
 been given to a parent upon the singular condition of his having 
 two children living at any time, the condition was held not to be 
 purified by the birth of a second child, which lived only three- 
 quarters of an hour, and had not been heard to cry.(m) In the 
 case of a legacy, the amount of which is left to the discretion of 
 
 (/) See Eioing v. Eicing's Trs., 12 June. 
 1857, 19 D. 835 ; affirmed 22 D. (Ap. Ca.) 
 5 ; Cunningham v. Moncreiff, 6 July 1858. 
 20 D. 1214 ; Erskine v. Williams, 14 Dec. 
 1843, 6 D. 226 ; Lawson v. Imrie, 10 June 
 1841, 3 D. 1001. 
 
 {g) Kerry. Thomsons Trs., 13 Dec, 1865. 
 4 Macph. 1 79. 
 
 (h) Wilkie v. Wilkie, 27 Jan. 1837, 15 
 Sh. 431 ; and see Earl of Lauderdale v. 
 Bogle's Exr., 19 May 1830. 8 Sh. 771 : Scott 
 v. Scott, 12 July 1860, 22 D. 1420. 
 
 (i) Somerville's Trs. v. Dickson, 3 March 
 1865, 3 Macph. 602. 
 
 (k) Stevenson v. Mcwintyre, 30 June 1836, 
 4 Sh. 776, N. E. 784 ; Neilson v. Coutter, 
 1710, 4 Br. Sup. 807. 
 
 (I) See Hunter v. Nicolson, 29 Nov. 1836, 
 15 Sh. 159 ; Scot v. Seton, 1708, M. 2998. 
 
 (m) Eoberton v. Roberton, 22 Jan. 1833, 
 11 Sh. 297; an unfortunate extension of 
 a vicious rule of evidence.
 
 TESTAMENTARY DISPOSITIONS. 587 
 
 trustees, the exercise of the power is regarded as conditional ; and, ohap.xxxiv. 
 accordingly, the legacy will lapse by the death of the trustee if he 
 has neglected to exercise \t.(n) Professor Bell remarks, that where 
 the condition si sine liberis is expressed, the mere birth of a child, 
 irrespective of its survivance, will give a vested interest ; a dis- 
 tinction which is correct in principle, though it is doubtful whether, 
 in the actual decision of such cases, sufficient attention has hen 
 paid to the difference between express and implied conditions. (o) 
 
 1134. Where legacies are given to the children of a family, or Conditions de- 
 
 „ .,. . ,.-1.-,', i,i • i pending upon 
 
 to a partv. tadmg issue of his body, and the circumstances were sucn ,>,. birth of 
 as to render it improbable that additions would he made to the children - 
 family, the Court has sometimes allowed payment to he made in 
 anticipation of the period of vesting, on security being bund for re- 
 payment in the event of the succession opening to future issue. (j>) 
 And it has been held, ou the construction of a direction to convey i 
 residue to a party who was insane, in the event of his recovery,; 
 whom failing to another, that the trustees were entitled to denude tion to sanity. 
 in favour of the conditional institute on the arrival of tin- period of 
 distribution, the party first instituted being then in a state of mental 
 alienation, (q) 
 
 1135. One of the mosl common conditions in settlements of Condition re- 
 
 ii l ouinng ill' 1 
 
 landed estates is, that the heirs of entail shad take ami bear tni 
 name and arms of the entailer. Where the condition further re- na ' 
 quires that no other surname and arms shall he used, it is under- 
 
 ; thai the heir cannot conjoin another surname or quarter other 
 arms with those of the entailer, hut the question has not, so far as 
 
 ire aware, been the subject of express decision. The stricl con- 
 struction obviously involves the surrendering of other estates to 
 which similar conditions are applicable. Where the entailer's family 
 had not received a grant of arms from the Lord Lyon, the condition 
 was held to impose upon the heir the obligation of obtaining a granl 
 of arms distinctive of the entailer's family, and descending to the 
 heirs of entaiL(r) 
 
 1136 We proceed to touch upon the Bubjed ol unlawful and i 
 
 . . ■ |!; 
 
 impossible conditions, which involves the question- — ra whai cir- ditiom bequwi 
 
 iii ■ "■ ■ ' :i ■'' *•■ 
 
 cumstancee a legatee is entitled to take the bequesi tree irom a tl 
 
 potestative condition ? On this lasl poinl our law is free from an gjjljj 
 
 /,. 10 .ln,„ 1829, 7 II June L888, LI SI I 
 si.. 71 Biggar't'i i: x 
 
 L868, 21 D i 
 I 8h.287, (q) D r i 
 241 12 D 
 
 a U 
 
 119; B B i
 
 588 
 
 OF CONDITIONS IN WILLS AND 
 
 i'ii.\r. xxxiv. 
 
 Distinction be- 
 tween unlawful 
 purpose and 
 unlawful condi- 
 tion. 
 
 Conditions re- 
 quiring or pro- 
 hibiting resi- 
 dence. 
 
 Fraser v. Eose. 
 
 element of complexity which has entered into that of England 
 in consequence of the Courts of Law there having adopted the prin- 
 ciple that a devise of real property upon an impossible or unlawful 
 condition is void, while the Courts of Equity, in the adjudication of 
 questions of personal succession, have adhered to the maxim of the 
 civil law, according to which such conditions are held pro non 
 scriptis.(s) In the jurisprudence of Scotland, it is a universal rule, 
 that a bequest, or voluntary provision, coupled with an unlawful or 
 impossible condition, is effectual, but that the condition is void. (7) 
 Legacies and bequests may be said to be unlawful, either when 
 they are granted for an unlawful purpose or when granted upon 
 a condition which the law will not enforce. The subject of unlaw- 
 ful purposes has been considered in a previous chapter, in conjunc- 
 tion with that of conditions which are void, as interfering unduly 
 with the right of property, (it) As respects conditions in restraint 
 of personal liberty, these are of rare occurrence in modern settle- 
 ments. Two examples have attracted the attention of authors ; re- 
 straints on residence, and restraints on marriage, (v) 
 
 1137. Two cases are reported on conditions as to residence. 
 In the first, Reid v. Coates,(x) the legacy was given by an uncle, 
 coupled with the condition that the legatee should not reside with 
 his mother. The Court, before deciding the question, inquired 
 whether the legatee intended to observe the condition of separate 
 residence ; and having received an answer amounting to a non re- 
 pugnantia, they refused to interfere, as it was not unlawful for the 
 legatee to fulfil the condition. In the subsequent case of Fraser v. 
 Rose,(y) the Court seems to have gone further, and to have held 
 the condition of non-residence with the legatee's mother, she being 
 of good character, altogether nugatory. The doctrine, that a de- 
 grading or contumelious condition may be disregarded, certainly 
 commends itself to reason ; but we incline to think that a condi- 
 tion enjoining residence in a particular place is lawful, on the prin- 
 ciple that the testator may desire his representative to keep up a 
 connection with the locality of his choice, and that the condition 
 is sufficiently complied with by having a home or place of resi- 
 dence in the locality, and occasionally visiting it. (s) As to re- 
 (s) 2 Jarman on Wills, 3d ed. pp. 9, 13 of the child, but shall defer in these mat- 
 
 et seq. 
 
 (0 See Bell's Pr. § 1785; Ersk. 3, 3, 
 85 ; Stair, 1, 3, 7. 
 
 (w) Chapter 16, sect. 1. 
 
 (v) Of the same nature is the condition 
 sometimes attached to a provision in favour 
 of a minor, that the parents shall not in- 
 terfere with the education or upbringing 
 
 ters to the testamentary guardians or trus- 
 tees; see Charteris v. The Lord Advocate, 
 22 Feb. 1750, 1 Cr. St. & Pat. 463. 
 
 (z) Reid v. Coates, 5 Mar. 1813, F.C. 
 
 (>/) Fraser v. Rose, 18 July 1849, 11 D. 
 1467. 
 
 (z) A donor may. of course, make it a 
 condition of a provision, that the donee is
 
 TESTAMENTARY DISPOSITIONS. 
 
 straints on residence with the legatee's parents or near relatives, ohap.xxxiv. 
 the case of Fraser v. Rose proves that the Court will not enforce 
 the condition without inquiring into its reasonableness. If, there- 
 fore, the condition be capricious or unreasonable, it may safely be 
 
 disregarded. 
 
 1138. Restraints on marriage are (dearly illegal and inoperative Conditions in 
 when they are, either in form or virtually, equivalent to a total marriage, within 
 prohibition.(o) It may he added, on the authority of the English ^ u 1 1 ' a , " its 
 decisions on wills, that a restriction of the legatee's choice to a par- 
 ticular person, or to members of a particular class or profession, is 
 
 void, as having a tendency to absolute prohibition ;(o) hut it is 
 not clear-that the exclusion of a particular person or class of per- 
 sons^) would be objectionable. Conditions as regards time are 
 only valid when coupled with a dispensing power; e.g., when it i< 
 provided that the legatee shall not marry in minority without the 
 consent of guardians or trustees.^) And conversely, conditions 
 involving the requirement of consent, seem only to be binding 
 when bearing relation to the period of legal minority, or such rea- 
 sonable period of less-age as the testator may appoint. A provi- Condition » 
 Bion to a wife, upon condition si vidua manserit <t non ut'jtst ,-it '' 
 would seem to be lawful ;(e) and in practice it is not uncommon 
 to restrict the amount of a widow's provision in the event of a 
 second marriage. 
 
 1139. In the interpretation of conditions as to marriage with Coi liti 
 consenl of trustees, two principles have been established in favour aS^Struleei" 
 of the Legatee; Brst, thai the trustees cannot refuse their consenl ' 
 exceptupon reasonable grounds ; and secondly, that it isnotneces- 
 
 sary that thi I should be declared, it being sufficient that the 
 
 trustees do qoI object to the marriage. (/) As a accessary conse- 
 
 no longer to reside with him; seePatersoru jectin.L,' the condition, was reversed, with 
 
 ;l . isi'.i. ii 1 1. ill. A A P. C. 205, whi re 
 
 •_- Jarman on Wills, mdition noi to marry a man who 
 
 ,.,1. p. :,i ; and i i ingham v. Brom- not sei ed of an i I 
 
 / v. T. .v K. 680, ■ hi i Lord Eldon rum- petual freehold, of the annual value of 
 
 t to take a title, although ' i Id tob( toogi nerahand tl 
 
 the vendor's rigW ■ d with the fore ill< 
 
 condition of i S /■ Buchanan, U 
 
 I 29 L. J. I a. B74. M. 2968; 8 Br. Bup. 885; / r v. 
 
 in Itr. S;.n. Semple, 1680, M 
 man on Wills, 8d ed. p. («) Foulit v. < 
 
 g gup. 160. \ con lition In a 
 
 i/ Rath -.. Alexander, 1712, M. po tnupti ' : 
 
 c I mi 
 
 held \ il a 8 10 
 
 thejud'g'mentof the Court ol i rion, re- K ' 
 
 D 7 lae, M. held ! Kidd, 10 1 
 
 L6 March IT'";. 8 Pat, li- ■ :
 
 doctrine. 
 
 590 OF CONDITIONS IN WILLS AND TESTAMENTARY DISPOSITIONS. 
 
 c'haf. xxxiv. quence of the first of these propositions, it follows, that if the trus- 
 tees withhold the required consent capriciously, the legatee is free 
 to marry without it, and by so doing does not forfeit the legacy. (g) 
 
 Weiiwood's Trs. Our second proposition is illustrated by the case of Wellwood's Trus- 
 tees. The truster had directed his trustees to entail and secure his 
 lands of Foleyhill upon his grand aughter, Miss Boswell, and certain 
 substitutes, with a proviso, that in the event of her marrying with- 
 out the approbation of his trustees first had and obtained, her right 
 and interest in the said lands should immediately cease and deter- 
 mine, fortified by a resolutive clause. Miss Boswell married in mi- 
 nority, without the knowledge of the trustees. In a multiplepoind- 
 ing, brought for the purpose of ascertaining on whom the estate 
 ought to be settled, the Court, on the suggestion of Lord Fullerton, 
 required the trustees to state whether they were now willing to give 
 their consent and approbation of the marriage. The trustees hav- 
 ing given their consent by a minute, it was held that the wish of 
 the testator had been sufficiently complied with. (A) 
 
 in terrorem 1140. In England, conditions in restraint of marriage have been 
 
 held void, as being in terrorem merely, (i) when the will contained 
 no destination over in default. This element has not been much 
 considered in the decisions of the Court of Session. 
 
 M. 2977, 6592; Elcli. "Provisions to mother, whose consent in writing was re- 
 Heirs," No. 13. See on this point, 2 Jar- quired, had, by making the offer to, and 
 man on Wills, 3d ed. p. 48. permitting the addresses of the intended 
 (g) Burden v. Buchanan, 1710, M. 2972; husband, given a consent to her daughter's 
 Pringle v. Pringle, 1688, M. 2972 ; 2 Br. marriage which she could not retract, 
 Sup. 126; Dalziel v. Scotstarvet, 1688, M. though no written consent had been given, 
 2971 ; Gordon v. Petrie, 1682, 3 Br. Sup. as required by the settlement. 
 433; Foord v. Foord, 1682, M. 2970. On (ft) Wellwood's Trs. v. Boswell, 21 June 
 the authority of Jarman (2, 46), it may be 1851, 1 3 D. 1211. The death of the party 
 added, that the Court of Chancery is also whose consent is required will, by render- 
 extremely liberal in construing expressions ing fulfilment of the condition impossible, 
 of consent, and it will presume consent from enable the legatee to take the bequest un- 
 the absence of dissent, agreeably to the conditionally; Grant v. Dyer, 8 Dec. 1813, 
 maxim, qui tacet consentire videtur ; Mesgrett 2 Dow. 73. Where a father granted a 
 v. Mesgrett, 2 Vern. 580 ; Daley v. Desbou- bond of provision to bis daughter, suppos- 
 verie, 2 Atk. 261 ; UAguilar v. Drinkivater, ing her to be unmarried, to be null if she 
 2 V. & B. 225. In Pollock v. Croft, 1 Mer. married without his consent, and having 
 181, where, under the circumstances, con- afterwards learned that she was married, 
 sent was not required to be in writing, a he expressed his dissatisfaction, but receiv- 
 general permission to the legatee to marry ed her into his family, the Court held that 
 according to her discretion appears to have the provision was not exigible; Hay v. 
 been deemed sufficient, without any fur- Wood, 1781, M. 2982; Hailes, 864. 
 ther consent. And in Strange v. Smith, (i) 2 Jarman on Wills, p. 40 et seq. 
 Amb. 263, Lord Hardwicke held that a
 
 OF DESTINATIONS TO HEIRS OF PROVISION. 
 
 59] 
 
 <n\r. ww. 
 
 PART Y. 
 DESTINATIONS AND LAW OF VESTING, 
 
 CHAPTER XXXV. 
 OF DESTINATIONS TO HEIRS OF PROVISION. 
 
 I. Technical Meaning of word$ descriptivt II. Words of Destination, how far cm 
 
 of Heirs. trolled by the context. 
 
 1141. In the construction of settlements of heritable estate ■ ., i„- 
 
 sucli words as heir, heir-male, heir of the body, etc., are to be con- ^^j 
 sidered ih-oikt terms of destination when preceded bv the words,' 
 
 11 - 1 ■ • grants t.> beirs. 
 
 whom failing or and,— e.g., to A. B. and his heirs-male. Ii is true 
 thai under such grants, the person who is heir in the character de- 
 scribed may succeed as institute by the predecease of the ancestor 
 named; but, everj in this case, he succeeds by virtue of a proper 
 destination; the succession being computed in precisely the same 
 way as if A. B. the institute had succeeded, and had transmitted the 
 estate to his nearesl beir-male as heir of provision. The distinc- 
 tion in regard to succession, between the position of an heir or con 
 ditional institute undi r a destination, and thai of an heir succeed- 
 ing as persona designata, are very important. In the formi ri 
 the destination is doI exhausted by the service of the conditional 
 institute, bul continues to regulate the succession as long as then 
 exisl heirs of the specified class capable of inheriting, or until the 
 destination be legally altered. In the case ol an heir of the same 
 
 class taking under a designative grant, the pur] i the 
 
 fully satisfied by his succession, and there is no room for sen t 
 
 any other heir of the Bami i I hi ir of i'i"\ i rion.(a i 
 
 (a) T! e i the ti rm Hi ir Hon to ra 
 
 when ' '
 
 592 
 
 CH \l\ XXXV. 
 
 OF DESTINATIONS TO HEIRS OF PROVISION. 
 
 SECTION I. 
 TECHNICAL MEANING OF WORDS DESCRIPTIVE OF HEIRS. 
 
 Heritable desti- 1142. As preliminary to the discussion of particular destinations, 
 "i^j'/ofa the question naturally arises, What are the limits, if any, within 
 selection of a which the principle of selection of heirs is confined ? in other words, 
 
 cluss ot heirs • 
 
 comprised in t lie What is the general character of a tailzied destination according to 
 succession. the law of Scotland ?(&) This subject has been fully considered in 
 the first of the chapters treating of Entails, (c) The results may 
 be summarised in two propositions : — First, a grant to a description 
 of persons can only receive effect as an heritable or tailzied destina- 
 tion when it is limited to individuals named, or to the heirs of in- 
 dividuals named, selected from the class of heirs who would succeed 
 by operation of law to the disponees or heirs of provision. This 
 definition excludes from the category of heritable destinations 
 grants to heirs in a line of descent distinct from that of the legal 
 order of succession, e.g., to heirs in the maternal line. A grant to 
 heirs in the maternal line can only receive effect as a designatio 
 personarum in favour of the first taker, and his heirs whomsoever. 
 It would appear, further, that the selection must be based upon the 
 consideration of blood or relationship ; but an exclusion of heirs 
 succeeding to a particular estate, coupled with a consequent devolu- 
 tion of the succession to heirs of the next or of some other branch 
 of the succession, will receive effect as a condition of the grant. (d) 
 Heritable des- 1143. Secondly, a tailzied destination cannot be constituted in 
 
 tination cannot f avour f the heirs of the legal order of succession ; whence we de- 
 be constituted ~ ° ' . . , 
 
 in favour of duce this rule of construction, that a destination to a person named 
 the^egarorder" and his heirs (not limited to a selected, class) in a grant of heritable 
 of succession. egtate intended to take immediate effect, merely denotes a fee- 
 simple estate in the ancestor. In mortis causa dispositions, or 
 where the vesting of the fee is postponed, the heir-at-law may in- 
 deed take as conditional institute under a grant conceived in such 
 terms ; but as in this case he takes as immediate disponee under a 
 designation, his succession cannot be regarded as an exception to 
 the rule which excludes gifts to heirs-at-law from the category of 
 heritable destinations. 
 
 (b) The expression "tailzied destina- (c) See chapter 31, section 2. 
 
 tion" has no necessary connection with (d) See M'Gillivray v. Soutar, 12 March 
 
 the condition of the estate as affected by 1862, 24 D. 759, where it was held that a 
 the Statutes regulating Entails, hut de- restriction to heirs-male of a particular 
 notes merely a destination to a succession clan was not a recognisable limitation of 
 of persons different from the legal order of the destination, 
 succession. In this sense it is synonymous 
 with heritable destination.
 
 OF DESTINATIONS TO HEIRS OF PROVISION. 
 
 We proceed to the consideration of the meaning of the terms chap, xxsv. 
 used for the purpose of limiting the succession to particular class - 
 of heirs. 
 
 1144. " Heirs,"— " Heirs whatsoever." Although, as we have "Heir," how 
 seen, a continuing destination cannot be created in favour of such ;*£*" 
 heirs, the expressions "heirs" and "heirs whatsoever" arc fre- £?* ^ a des " 
 quently and properly introduced into limited destinations in con- 
 nection with other terms descriptive of the course of descent. Thus, 
 
 where the general course of the succession is based on the principle 
 of preference for heirs-male, the word "heirs," occurring in a sub- 
 ordinate branch of the destination, when coupled with words of 
 reference, designates the heirs of the selected and specified class, 
 i.e., heirs-male, or as the case maybe. And therefore, where heirs- 
 general are intended to take after heirs-male, the distinctive word 
 " whatsoever" is used to mark the transition, and to prevent ambi- 
 guity. This effect of the word whatsoever is seen in the common 
 destination of entails to A. B., and the heirs-male of his body, and 
 the heirsicliatsoever of the body of the said heirs-male. 
 
 1145. A gift over at the end of a destination to heirs-whatso- Destination over 
 ever, whether of the grantor or of some person other than the last !„ 
 substitute, will be effectual as a substitution according to its tenor ■ " ] "'' ' ili " i ''""■ 
 
 i j. ■ j.i • j.1 f ' effectual as a 
 
 I >nt m this case, the grantee of the destination over takes as under substitution 
 a designative appointment to himself, and not as a member of a ' ; ' 
 proper destination. (e) It is scarcely necessary to add thai the term 
 heirs whatsoever, whether used absolutely or coupled with limiting 
 words, includes heirs-portioners. The decisions on tin's point have 
 been noticed in a previous chapter. (/) 
 
 1146. Whether, under a destination to heirs whatsoever, the sue- Destination to 
 cession devolves to the heir of line or to the heir of conquest, de- ^hetEjSa. 
 pends on the consideration whether the beir takes bv operation of tiv . e m f f vonr of 
 
 » . , • ' In ir .'i lini 
 
 law atter the an<i-.-i,,r, <>v designatively under the destination. In beir of conquest, 
 the former case, — e.g., under a destination to A. B. and his beirs 
 whatsoever, where the succession has already vested in A. B. and 
 opens to bis heirs alter his death, — the question is ruled by the law 
 oJ intestate succession. Ii A. B. is heir alioqui mccessv/ms of the 
 granter or oi the heir-substitute to whom he succeeds, as the case 
 may be, the succession will clearly devolve to his heir of line ; bul 
 ii he is n"f the heir, then it will fall to his heirof conquest./^) In 
 
 1869, 21 (;/) Short v. Short, 1771. M. 5616; 19 
 
 D. 906; bul ee contra, Henry y. Watt, L8 March 1799, 2 Pal 195 
 
 June 1882, 10 Sh. 644. v. Campbell, 16 March 1856, r, D 
 
 I Chapter 81, section 2 (Tailzied D< and chap! r 4, 
 
 ■ns). ■••II) 
 
 VOL. i. 2 i
 
 594 OF DESTINATIONS TO HEIRS OF PROVISION. 
 
 oHAr. xxxv. the case of heirs whatsoever called dcsignatively, three cases may 
 be distinguished. And first, where a succession opens to the heir 
 whatsoever of a nominatim disponee in the character of a conditional 
 institute, then, inasmuch as no estate ever vested in the disponee, 
 the estate cannot in any view be regarded as conquest of him. The 
 expression, heir whatsoever, is therefore construed designatively, and 
 is held to denote the heir of line, as representing the principal line 
 of succession, (h) Next, where an entailer at the end of a desti- 
 nation calls either his owti heirs whatsoever (i) or the heirs what- 
 soever of another person, to whom the estate is not previously 
 given, (&) in either of these cases, inasmuch as the succession is not 
 derived from the ancestor from whom the relationship is traced, the 
 estate cannot be" said to have been either heritage or conquest in 
 his person ; the destination is therefore designative, and the succes- 
 sion will follow the principal line of descent. " There is no case," 
 said Lord Neaves, " in which it has been held, and no authority by 
 which it is laid down, that an heir of conquest ever succeeds de- 
 signative under the general terms ' heirs' or ' heirs whatsoever,' 
 where the succession in dispute is to a third party, and not to his 
 own ancestor. It would be difficult of course to deny that an heir 
 of conquest may be so clearly designated as to give him a plain 
 right, as where he is expressly called by that very designation. But 
 where he is not so called, and the words used are heirs whatsoever, 
 it does not appear that an heir of conquest has ever been held to be 
 thus designated so as to succeed as heir of provision to a third party 
 who is the disponee." (I) Lastly, where, in the case supposed, of the 
 granter's heirs whatsoever being called at the end of the destina- 
 tion, if those heirs should succeed as conditional institutes in con- 
 sequence of the failure of the disponee and heirs of provision before 
 the succession opens, it would seem, as observed by Lord Neaves, 
 that the heir of conquest is entitled, if the property were conquest in 
 the person of the granter of the settlement, because in this case the 
 heir succeeds to his own ancestor. It is right, however, to notice 
 that this construction is open to the objection that it involves, as a 
 necessary consequence, that in different possible events a different 
 meaning is put upon a destination to heirs whatsoever, (ra) 
 Heir of line. 1147. " Heirs of line," — " Heirs general of line." These expres- 
 
 sions, which do not often occur in destinations, may be regarded as 
 
 (A) Miller v. Miller, 19 Jan. 1831, 9 Sh. Neaves' judgment in Robison v. Robison, 
 
 295 ; 27 Aug. 1833, 7 W. & S. 1. 21 D. 910. 
 
 (i) Robison v. Robison, 3 June 1859, 21 (I) 21 D. 911. 
 
 D. 905. (m) See observations in Robison v. Robi- 
 
 (k) Boyd v. Boyd, 1774, M. 3070; anrl son, 21 D. 909, 912-15. 
 see the analysis of this case in Lord
 
 OF DESTINATIONS TO HEIRS OF PROVISION. 595 
 
 synonymous with heirs whatsoever, excluding the heir of conquest, chap. mv. 
 The question here suggests itself, whether a grant to a person and 
 his heirs of line might not receive effect as a continuing destina- 
 tion, by construing the words in the sense that the relationship oi 
 each successor is to he traced, not from his immediate predeci - 
 but from the ancestor named in the deed:' 1 We do not think that 
 the words would be so construed ; and on the question of the pi 
 bilityof constituting a tailzied destination in favour of a successi'in 
 of heirs whose relationship is to be traced to the first taker, we re- 
 fer to the opinions of the judges in MacGregor v. Gordon. (n) A 
 destination to an individual named includes his heirs; hut an im- 
 mediate substitution of one person to another excludes the heirs of 
 the institute (0) except in gifts by parents to children. 
 
 1148. " Heirs of the body" is an expression denoting a limita- Beirsofthe 
 tion of the legal order of succession to heirs in the direct line of de- body ' 
 scent, being of the blood of the ancestor named. A destination to 
 
 heirs of the body, accordingly, cannot fail so long as there is issue 
 surviving of the ancestor. 
 
 1149. " Heirs of the marriage" has a more restricted significa- n.irs ofamar- 
 tion. It includes the children of the marriage in question, and jgffiffjjj! 
 their issue in the order of legal succession. sons. 
 
 1150. " Heirs-male" limits the succession to male heirs, whether Heir-male 
 in the direct or the collateral line, who are connected with the an- ri1 ' > : 
 cestor solely by males. It excludes female heirs and male heirs 
 connected in descent by females. In Sinclair v. Earl of Fife,(p) 
 
 the destination was " to the nearest lawful heir-male of line what- 
 soever;" and it was contended that the expression was contradictory, 
 inasmuch as heir-male and heir of line denote differenl orders ol 
 succession; but it was held that the destination migh1 receive 
 effed as a -rant in favour of the heir-male general excluding the 
 heir of conqn 
 
 1151. : - Beirs-female " denotes tie- heirs-gem ral ol the ancestor ,,,. 
 or person named, excluding his heirs-male. (q) In practice heir 
 female are usually substituted t<> heirs-male, a- thus: t" A. I'., and 
 his heirs-male ; whom Eailing to his heirs-female ; an. I the male line 
 
 for v. Gordon, I I >• c. L864 ait of the ambi 
 
 tlacph. II- the word "lineal," which in would 
 
 / yth \. Fergutson, I) June ls:; - j, imply thai In a- -maleofthi bod 
 
 10 s.i ' I 89 (Implii 'II uni 'I in tin judgmi at 
 stitution of Children). in Hi'- /• 
 
 (/>) Sinclair v. Earl of /■ L766 M. undoubted law, I 
 
 11 '.'11: affirmed 6 April 1767. female on the faih 
 (>/) ErsMne'fl definition of beirs-l tion until 
 
 18) as " h< Haw after the 1 
 failure of the lint 
 
 2 p 2 
 
 VIM, .11.
 
 rm 
 
 OF DESTINATIONS TO HEIRS OF PROVISION. 
 
 CHAP. XXXV. 
 
 Bargain) case. 
 
 Dalrymple v. 
 Hope and 
 
 Buchan. 
 
 Eldest 
 daughter or 
 heir-female. 
 
 being extinct before the destination to heirs-female comes into 
 operation, the persons who succeed under the last-mentioned des- 
 tination are the surviving heirs-general of the ancestor. Again, as 
 the substitution is to the heirs-female of A. B., and not the heirs- 
 female of the last heir-male, it follows that, on the failure of the 
 male line, the heir-general of A. B. (although wholly unconnected 
 in relationship with the last heir-male) is entitled to take up the 
 succession. Both these points were determined in the Bargany 
 case. 
 
 1152. John Lord Bargany disponed his estates to the heirs-male 
 of the body of his eldest son, the Master of Bargany; whom failing 
 to his second son, and the heirs-male of his body ; whom failing to 
 the eldest heir-female of the body of Lord Bargany, the entailer, 
 and the descendants of her body, without division ; whom failing 
 to the next heir-female to be procreated of the body of the said Lord 
 Bargany, and the descendants of the body of the said next heir- 
 female. On the failure of the heirs-male of the destination, three 
 persons claimed the succession : — 1st, Hugh Dalrymple, the nearest 
 heir-general of Lord Bargany, being a descendant of his eldest son ; 
 2d, Sir Alexander Hope, the son of Lord Bargany's daughter ; and, 
 3d, Mary Buchan, granddaughter of Lord Bargany's second son, who 
 was the last heir in possession. The Court had no difficulty in re- 
 pelling the claim of Mary Buchan, which could only be supported 
 on the theory that the succession was to be traced from the heir 
 last succeeding under the destination. But, on an erroneous con- 
 struction of the phrase " heir-female of the body " (which was held 
 to be synonymous with daughter), judgment was given in favour 
 of Sir Alexander Hope, a descendant of the entailer's daughter. 
 The decision was reversed in the House of Lords, and judgment 
 was given in favour of Sir Hugh Dalrymple, the entailer's nearest 
 heir-general, (r) 
 
 1153. In the case of Kinfauns,(s) the destination, on failure of 
 the male line, was " to the eldest daughter or heir-female " of a cer- 
 tain marriage ; and the question was, which of these words was to 
 be controlled in construction by the other. The estate was claimed 
 by the descendant of a son, as nearest heir-female ; and by a daughter 
 of the marriage, as a person designated in the grant. The decision 
 was in favour of the heir-female ; and, from Mr Sanclford's narra- 
 
 (r) Dalrymple v. Hope and Buchan, 27 
 March 1739, 1 Cv. St. & P. 237, and Elch. 
 " Provisions to Heirs," No. 2. Johnstone 
 v. Johnstone, 19 Nov. 1839, 2 D. 73. 
 
 (») Blair v. Lyon, 1739, 5 Br. Sup. 663 ; 
 and see the fuller narrative of Mr Sandford, 
 
 taken from Lord Elchies' papers (Tr. on 
 Entails, p. 64). See also the same author's 
 criticism (p. 65) on Lord Kilkerran's ob- 
 servations on this case in Ewing v. Miller, 
 1747, M. 2308.
 
 OF DESTINATIONS TO HEIRS OF PROVISION. 597 
 
 tive of the case it would appear to have been based on the assump- chap. xxxv. 
 tion that "daughter" was a term of flexible construction, while 
 "heir-female" had a technical and fixed signification; whence it 
 followed that the former must yield to the latter. The word 
 "daughter" is doubtless susceptible of construction when the 
 context shows that it is used in a peculiar sense; but tan it be 
 truly characterised as a flexible term .' We think not.(£) A better 
 reason for the decision may, we apprehend, be found in the consi- 
 sideration that the word " daughter," being properly designative of 
 an individual, is not a word <>/ destination ; and that, as the ambi- 
 guity occurred in a clause of destination, the term " heir-female,* 1 
 which denotes a succession of persons, and is therefore appropriate 
 to the purpose of a destination, is to be regarded as the governing 
 expression; "daughter" being introduced in conjunction with it 
 merely as an illustration of the female line of succession. In con- 
 struing the words " heir-male," "heir-female," etc., in clauses bear- 
 ing reference to the destination, those persons are to be understood 
 who are called in the character designated, and no\ the persons 
 who stand in the relation of " heirs-male," or "heirs-female" to the 
 granter of the deed.(w) 
 
 1154. "Heirs-male (or female) of the body." Under these des- Heir-maieof 
 
 v . tin' body. 
 
 tinations, the succession in the male or female line, as the case 
 may be, is confined to heirs who are in the direct line of descent, 
 and of the blood of the ancestor. 
 
 1155. "To A. B. ami the heirs-male of his body, and the heirs what- Di 
 soever of the bodies of the said heirs-male." Under this destination, con , ni ,,'i. ' 
 tin- gifl to heirs whatsoever of the bodies of the heirs-male is con- £SKiW. 
 strued distributively, so that the heirs-general of the body of the 
 first heir-male to whom the succession opens take precedence of the 
 second and remoter heirs-male Df the body of the nominatim dis- 
 ponee. On the failure of the issue of the first heir-male, the suc- 
 cession devolves to the next heir-male of the disponee or ancestor 
 named, (x) and the heirs-general of his body; and 8 , according 
 
 (*) The case of Lady Euet Ker t. Itmes, ing that thi 
 
 18 Nov. L810, F.O., and 26 Feb. 1812,6 dersuponhi death to 1 if he 
 
 Pat. 679, is a cleat authority, if authority had qo on, would be that, upon the failure 
 
 were needed, for the proposition thai the of Hi" line of Bucb d 
 
 word " daughter " iB not a term of flexible would never return i" the youi 
 
 in. aning, in the Bense of b I to or th< ir issue, I si ould feel th< 
 
 traction according to the probable Ln- difficulty in adopting a con fraction which 
 
 i, ,ntion» would lead to ill i bul I I 
 
 / Skene, 26 Jan. 1767, l Or. come to the conolo oh would 
 
 • 828. ""' he the coi '""'■ 
 
 I i i.i... i... in the tion adoptedbj i 1 ■ 
 
 . ace "i hold I B< U 21 1
 
 598 OF DESTINATIONS TO HEIRS OF PROVISION. 
 
 chap. xxxv. to the law of the destination. The construction of this destination 
 was so determined by the judgment of the House of Lords, affirm- 
 ing that of the whole Court, in the case of LocJchart v. Macdonald.{y) 
 The competition was between the daughters of a senior heir-male 
 and the junior heir-male next in succession ; the daughters claim- 
 ing as heirs whatsoever of the body of the heir-male who took first ; 
 and the heir-male insisting that all heirs-male of the body of the 
 ancestor must be exhausted before any of his heirs-general could 
 be let in. The judgment was in favour of the daughter ; and, not- 
 withstanding the ability displayed in the adverse opinion of Lord 
 Meadowbank,(s) the principle of the judgment — the principle, 
 namely, of distributive construction — commends itself as that which 
 is most consonant to the natural and grammatical meaning of the 
 words of the destination. 
 johnstmev. 1156. " To the heirs- female of the body of A. B., and the heirs- 
 
 'KofSi^i male of tne hod J of tlie cldest heir-female" (or " of the said heirs- 
 v. .1/ ouhjomerie. female successive"). The destination here quoted occurred (with 
 immaterial variations in phraseology) in the cases of Johnstone v. 
 Johnstone,(a) and the Earl of Eglinton v. Montgomerie.ilS) They 
 are distributive destinations ; and are in no way distinguishable from 
 that in Lockhart's case, except in that the positions of the heirs-male 
 and female in the destination are reversed. In the first mentioned 
 case, Mr Hope Johnstone, whose title was sustained by the Court, 
 was the next surviving heir-female after failure of the male issue of 
 the first heir-female. Applying, then, the rule of distributive con- 
 struction, the succession properly reverted to him at the transition 
 to the female line consequent on the failure of the sub-destination to 
 the heirs-male of the eldest heir-female. The pedigree quoted in 
 the report shows that the actual course of descent, antecedent to the 
 action, had been conformable to this construction of the destination. 
 Distinction be- 1157. " To A. B. and his heirs-male ; whom failing, to their heirs- 
 
 tween"and" female." The difference between this and the destination in the 
 
 and "whom 
 
 failing" in dis- ca se of Lockhart, consists in the employment of the words " whom 
 
 ations! 1 " 6 '' failing" in place of "and;" words which are obviously inconsistent 
 
 with the notion of a distributive succession. It would seem, therefore, 
 
 (y) Lockhart v. Macdonald, 19 Jan. J837, do not throw much light on the question; 
 
 15 Sh. 376 ; on remit from H. L. 24 Jan. for the specialty of the destination in Lock- 
 
 1840, 2 D. 377 ; judgment affirmed 15 hart's case — viz., the substitution to heirs 
 
 March 1842, 1 Bell, 202. "of the bodies of the said heirs-male " — was 
 
 (z) 2 D. 390. A narrative of the un- wanting in both the first-mentioned cases, 
 
 reported cases of Rothes and the Polwarth (a) Johnstonex. Johnstone, 19 Nov. 1839, 
 
 Peerage, so much canvassed in the opinions 2 D. 73. 
 
 of the loading case, will be found in Sand- (b) Earl of Eglinton v. Montgomerie, 22 
 
 ford on Entails, pp. 98-100. These cases Jan. 1842, 4 D. 425.
 
 OF DESTINATIONS TO HEIRS OF PROVISION. 599 
 
 that under this destination, the heirs-female do not take until alter chap. xw. 
 the failure of all the heirs-male of the nominal im disponee. But does 
 the succession then devolve to the heir-general of the last heir-mah . 
 or to the heir-general of the first keir-male, e.g., supposing both these 
 heirs have had daughters who have left issue surviving ? ^1 c Sand- 
 ford's opinion, which is given with some hesitation, is in favour of 
 the representative of the first heir-male, (c) But this construction 
 seems open to criticism on this ground, that the daughter of the 
 first heir-male and her representatives are also heirs-female of the 
 ancestor A. B. ; and if the estate had been intended to go to them, 
 the destination would naturally have been conceived in favour of 
 A. B. and his heirs-male, whom failing, to Ms heirs-female. But by 
 the use of the expression " their heirs-female," the entailer must be 
 supposed to have intended a different destination from the ordinary 
 one to the ancestor and his heirs-female. The difference is this, that 
 the word '-their," in the destination, is wholly indeterminate in the 
 mind of the settlor, though it may become determinate by the oc- 
 currence of the event which is to fix its meaning and application. 
 If this reasoning is correct, the word " their," in the destination sup- 
 posed, can apply only to the heir-male whose failure causes the suc- 
 cession to pass into the female line. 
 
 1158. "Son," — "Daughter."' It has sometimes been attempted "Son,"" 
 to affix to one or other of these words a signification indicative of a '',,','„, "as ',',Vt'- 
 class of heirs or persons other than the immediate descendants; but ';:';;;;' 
 in no instance has the construction contended lor boon admitted, J 
 except where "son" or "daughter" was, by words oi reference, 
 clearly identified with some other and governing word of destina- 
 tion. 'I'll'' case of Kinfauns,(d) formerly noticed, wh re "daughter" 
 was hold to be governed by "heir-female," exemplifies the exception. 
 The loading authority lor the general rule of construction, i> thai of 
 the Lady Essex Ker v. Tnnes,(e) one of the cases arising out oi the 
 disputed Roxburgh* succession. The destination was "to the eldesi 
 dochterof tin- said Eary Lord Ker without division, and yr airie 
 male." It had previously been fixed, in the competition between 
 General Ker and thedefender, that "eldeBl " daughter meanl eld 
 ; ,t the time the succession might devolve ; that is, daughters in the 
 order oi seniority. Lady Essex Ker was the aearesi heir femal 
 I.,, id ll.nr> Ker'e eld< si daughter (the male lino being extinct >. and 
 therefore the heir-general oi the family oi Roxbui ;h Four I 
 upon the decision in the previous competition, as an autl 3 for 
 
 (c) Sandford on Entail . | '' ■' / : '. 
 
 I
 
 600 
 
 OF DESTINATIONS TO HEIRS OF PROVISION. 
 
 I'HAF. XXXV. 
 
 Roicalktn Case. 
 
 Ell'ect of the 
 rule that, under 
 destination to 
 heirs of the 
 body, the de- 
 scent must I e 
 traced from the 
 person desig- 
 nated. 
 
 the flexible construction of the word " daughter," she maintained, 
 on considerations based partly on the context of the settlement, 
 partly on the improbability of the entailer passing over the female 
 representatives of the elder daughter in favour of the younger, that 
 the word daughter ought to receive a still more extended significa- 
 tion, and to be construed in the sense of " heirs-female." The in- 
 troduction of the words "without division," which, whether applied 
 to the individual daughters seriatim, or to their heirs-male, were 
 alike unnecessary and unmeaning, certainly argued an intention or 
 understanding on the part of the entailer that heirs-female should 
 take. But that intention, if it existed, was not carried into execu- 
 tion ; there was no express destination to heirs-female, and the 
 judges of the Court of Session and of Appeal were unanimously of 
 opinion that no such destination could be held to be implied under 
 a conveyance to daughters and their heirs-male. (/) 
 
 1159. So also in the case of the Marquis of Hastings v. Hast- 
 ings,^) where an entailer provided that, in the event of there 
 being only one son of a certain marriage, who should succeed to the 
 honours and estate of Loudoun, then the second son of this only 
 son should succeed to the estate of Rowallan ; and made a similar 
 provision, in case of their being two sons of the marriage, in favour 
 of the second son, adding, " that the succession to the estate of 
 Rowallan, in case any of the heirs of this marriage shall succeed to 
 the estate of Loudoun, shall take place according as is above men- 
 tioned in all time coming ;" it was held that by the reference to 
 heirs of the marriage in the concluding phrase, the clause of devo- 
 lution relating to the succession of sons was not extended and made 
 applicable to the case of any other heir of the marriage who might 
 succeed to the honours and estate of Loudoun. (A) 
 
 1160. In tracing the descent of heirs of provision it is necessary 
 to attend to the peculiar limitation of the line of direct descent im- 
 plied in the words " of the body." These words clearly limit the 
 
 (/) " Daughter," said Lord President 
 Blair, "is not a technical word, having a 
 particular meaning affixed to it by the law. 
 It is a word of common popular language ; 
 and when it occurs in a law book or a deed 
 has just the same meaning as in a book, a 
 letter, or in common conversation. As to 
 the established use of the word in common 
 language, argument is to little purpose ; it 
 must be determined by the popular use of 
 the language, of which every person can 
 judge as well as the most profound lawyer, 
 5 Pat. 586. 
 
 (g) M. of Hastings v. Hastings, 12 Nov. 
 1844, 7 D. 1. This ground of decision is 
 not alluded to in the judgment on appeal, 
 6 Bell, 30. 
 
 (h) Irregular Destinations. — In Council 
 v. Grierson, 14 Feb. 1867, 5 Macph. 37 ( .>, 
 an ultimate destination to the entailer's 
 " nearest of kindred," was held to denote 
 the heir-at-law or nearest blood relation 
 according to the rules of heritable succes- 
 sion.
 
 OF DESTINATIONS TO HEIRS OF PROVISION. (5Q1 
 
 OIIAV. 
 
 succession to heirs of the blood of the ancestor; and therefore, 
 where, in consequence of the failure of the issue of a female heir it ~ 
 is necessary to resort to collaterals, the heir of the body must be 
 sought among the collaterals of the heiress or of her ancestors, and 
 not, as in ordinary succession, among the husband's relatives. In 
 the case of tailzied succession under a limitation to heirs of the 
 body, the rule paterna paternis, materna mot< rnis, is therefore strict- 
 ly applicable. Whether the same rule of descent holds good under 
 destinations to heirs-female general is a more doubtful question. 
 It was indeed laid down in a recent case (7) by one of the judg< s, 
 as an unquestionable proposition, that in every case of service as 
 heir of provision the line of descent is to be traced from the stirps 
 or ancestor named in the deed, and never from the heir to whom 
 the service is obtained. To this doctrine — which implies not only 
 the preference of the maternal to the paternal line in estates de- 
 scending from a female, but also the ignoring of the distinction 
 between the full and half-blood, and which, whether true or false, 
 rests on the single authority of the judge by whom it was pro- 
 pounded — wo are not prepared to yield an implicit assent. The 
 cases cited in support of it(k) have obviously no healing on the 
 matter; because, in these, the dispute arose upon tho transition 
 from the male to the female line, where resort must necessarily be 
 had to the stirps, as the person from whom the descent is to be 
 traced. But where the question is as to the person entitled to 
 succeed to an heir-female general dying without issue, we cer- 
 tainly should not expect the heir-at-law, if descended from a Bister 
 of the full-blood, to acquiesce in the service of a brother of the 
 half-blood, or his r< pri 31 utative, and still less in that of a maternal 
 relative. In the absence oi any decisions hearing on tho point, we 
 must be permitted to consider it an open question, whether the suc- 
 ci ssion "i hi irs-fema le general is to he del need from tho nominatim 
 dispones or from the beir-female list seized in the estate. (Z) 
 
 1161. From the number and variety of destinations introduced Effect wi 
 
 -...,.. , , ■ tin- game indi- 
 
 into deeds oJ entail, it happens that t ho same pers >r class ol per- n ,i,,.,i ; 
 
 sons is not unfrequently called to the succession in diffi r< m 1 1 
 
 tin- destination. Where this is so, the rules of construction requin ' 
 
 tip 
 
 (/') Per Lord Currieh ill in Macgregor v. never pa to th( maternal lino, nor will il 
 
 Gordon, 1 Dec. 1864, 8 Macph. 14 deviate to collateral of thi inn 
 
 (/.) 'Hi.- Bargany case, 1 Cr. St. .S: 1'. til aftei th< failuri ■ lull 
 
 Johnstone, '-' l>. 7::. bl I, even where the 1 
 
 I,, deducing th< l ol h< ire- limit' d to If ire "i thi 
 
 male, Hi'- rei alt ame, pa 1 to n pr< entativi ol thi 
 
 whether th from il" line. Thia maj nol I I i"' 1 
 
 first ancestor or the la t. 1 ion, maj b< proved I I 
 
 being deduced wholly 1 1 1 r-
 
 (502 
 
 OF DESTINATIONS TO HEIRS OF PROVISION. 
 
 Ill W. XXXV. 
 
 that effect should be given to both grants, according to the order 
 in which the succession opens under them. This incident of des- 
 tinations occasionally leads to curious and unexpected results. For 
 example, a person comprised in a prior destination, say, in a des- 
 tination " to the heirs-male of A. B.," may be excluded from the 
 succession by a shifting clause, devolving the succession to a junior 
 branch in the event of any of the heirs-male of A. B. succeeding to 
 a certain title or estate ; and upon the failure of the junior branch 
 in question, the succession may again open to the same person un- 
 der an ulterior destination, say to the heirs-general of C. D. In 
 this case, it has been held that if the shifting clause did not apply 
 to the ulterior destination, the heir, though he had formerly re- 
 nounced in the character of heir-male of the substitute in the 
 primary destination, was entitled to be served as heir-general of 
 the substitute in the ulterior destination, (m) Where the succession 
 opens to an heir under two distinct branches of the destination at 
 the same moment of time, and the gift under one of these branches 
 is qualified by conditions and prohibitions which are not applied to 
 the other branch of the destination, the heir may elect to take 
 under the unqualified gift, although it is posterior in position to the 
 qualified, (n) 
 
 SECTION II. 
 
 Words of des- 
 tination con- 
 strued according 
 ing to their 
 technical mean- 
 ing when con- 
 sistently used. 
 
 Source of con- 
 struction of im- 
 perfect destin- 
 ation: (1) Im- 
 mediate context : 
 (2} Explanatory 
 provisions. 
 
 WORDS OF DESTINATION, HOW FAR CONTROLLED BY THE CONTEXT. 
 
 1162. We have now examined the meaning and effect of the 
 technical expressions which are used to designate the various lines 
 of descent in destinations to heirs of provision. Where destinations 
 are expressed in technical language, and the terms of the destina- 
 tion are used in a manner consistent with the course of devolution 
 under a tailzied destination, no question of construction can arise. 
 Wherever a construction different from the technical meaning of 
 the words has been contended for, the argument for changing the 
 construction of the words has been founded either upon explanatory 
 expressions in the context, or on some supposed anomaly, which 
 would result from giving effect to the destination, according to its 
 technical meaning. 
 
 1163. In construing the technical phraseology of destinations, 
 it is not permissible to resort to evidence extrinsic of the deed, or 
 even to reason from the intention supposed to be deducible from 
 
 (m) Fullarton v. Hamilton, 12 Feb. 1824, 
 2 Sh. 697, N. E. 580 ; 20 June 1825, 1 W. 
 & S. 410. 
 
 («) Dalyell v. Dalyell, 30 May 1809, F.C.
 
 OF DESTINATIONS TO HEIRS OF PROVISION. 603 
 
 the general strain and purpose of the deed. In the construction of < ;; '- ^^ 
 imperfect, elliptical, or ambiguous expressions in destinations, re- 
 sort may, however, be had to implication from the immediate con- 
 text; and the effect of explanatory expressions, even when occur- 
 ring in other parts of the deed, must be taken into view. 
 
 1164. Our first proposition excludes from the sources of Legiti- Wordsofdes- 
 mate construction such indications of intention as arise either Erom t^Ued n by the n " 
 the narrative, or from other deeds or collateral writings. As in the " p ram ', or !'>' 
 
 ' ateral writ- 
 
 case of Campbell v. Campbell,(o) where the testator, for the Love and ■ 
 favour he bore to John Campbell, his only son, and his other childn n 
 after mentioned (and who, accordingly, are named in the deed), dis- 
 poned certain urban subjects "to and in favour of the said John 
 Campbell, his heirs-male and assignees whatsoever, whom failing, 
 to his own other nearest heirs," under burden of certain Legacies, 
 and. inter alia, of a legacy of £5 to < rabriel Campbell, his nephew. 
 John Campbell, the institute, predeceased the settlor; and the 
 estate was claimed by the said Gabriel Campbell, as heir-male 
 genera] of provision. On behalf of the daughters, it was contended 
 that the express consideration of love and favour for his other child- 
 ren, coupled with the circumstance of the nephew being named 
 as a legatee for a trifling sum, argued an intention to prefer the 
 daughters to heirs-male in the collateral line; and therefore, thai 
 the destination to heirs-male ought to be limited in construction to 
 those of the settlor's body. But these considerations were held to 
 be insufficieni to control the technical meaning of the words of the 
 destination ; and the heir-male in general was preferred accordingly. 
 A similar decision was given in the Linplum case;( />) a case which 
 has acquired gri a1 authority from the importance attached to it in 
 the opinions of the [Vers who disposed of the lioxburghe case.(g) 
 Sir Roberi Nay. of Linplum, disponed his estate to such oi the 
 younger sons of the Tweeddale family as were then in existence, 
 nominatim et seriatim, and the heirs-male of their U<>tli<s. whom fail- 
 ing, to Alexander May and his Lawful heirs-male; ami. after somi 
 substitutions which did not take effect, to the heirs-female oi ih<- 
 body of John Marquis oi Tweeddale. It is stated in the report that, 
 Erom tin- tenor of the deed, it appeared highly probable thai the 
 change in the form of expression from "hi irs-male oi their bodies" 
 in th<; prior destination to "lawful heirs male " in the subsequent 
 destination, was ool occasioned !>\ anj difference in the intention 
 oi the -ranter, laii had crept in through the inaccuracy or waul 
 
 I bell -v. Campbell, 1770. M. 1 1,949 (?) I 
 
 ii.n i i ifflrmed Pot I II 
 
 25 M L789 l 12
 
 604 
 
 OF DESTINATIONS TO HEIHS OF PROVISION. 
 
 CHAI\ XXXV. 
 
 Earl of Selkirk 
 v. Duke of 
 Hamilton. 
 
 Extrinsic evi- 
 dence of inten- 
 tion not admis- 
 sible for con- 
 trolling words 
 of destination. 
 
 skill of the writer of the deed, who was not a conveyancer by pro- 
 fession. Alexander Hay having died without issue, a competition 
 for the estate arose between Robert Hay, his brother, and heir-male 
 general, and Miss Hay, the nearest heir-female under the ulterior 
 destination, it being maintained on behalf of Miss Hay that the ex- 
 pression " lawful heirs-male" of Alexander Hay was by the probable 
 intention to be held as restricted to the heirs-male of his body. But 
 it was found by the Court of Session that the succession must be 
 determined according to the technical signification of the term ; and 
 this judgment was affirmed on appeal, (r) 
 
 1165. So also in the case of the Earl of Selkirk v. the Duke of 
 Hamilton,(s) where Charles Earl of Selkirk, the creditor in certain 
 heritable bonds, had taken the destination in favour of himself, his 
 heirs and assignees whatsoever, intending thereby to designate the 
 heir of line, and had by his will given a legatum liberationis of cer- 
 tain of the bonds to the Duke of Hamilton, the heir of conquest, 
 thus showing his belief that those securities would not devolve to 
 the Duke by force of the destination. It was held, notwithstand- 
 ing, that the Duke of Hamilton, as heir of conquest, was entitled 
 to the succession in respect of the nature of the subject, (t) 
 
 1166. It is further to be understood, in conformity with the 
 negative proposition laid down at the commencement of this dis- 
 cussion, that evidence of intention extrinsic to the deed, whether 
 parole, etc., or belonging to the history of the transaction, (V) is in- 
 sufficient to modify the technical meaning of words of destination. (x) 
 This rule was rigorously applied to a class of transactions which in 
 former times frequently perplexed the course of faniify settlements. 
 Where, under the old election law, a charter was obtained for the 
 purpose of creating a freehold electoral qualification, the convey- 
 ancer sometimes inserted the common destination to heirs whatso- 
 ever, without any intention of thereby altering the succession, and 
 doubtless in reliance on the doctrine, erroneously laid down by the 
 
 (/•) 3 Pat. 142. 
 
 (s) Earl of Selkirk v. Duke of Hamilton, 
 1740, M. 5615; Elch. "Heritage and Con- 
 quest," No. 3; 5 Br. Sup. 684; affirmed 2 
 April 1740, 1 Cr. St. & Pat. 271. 
 
 (t) See also the cases cited upon the 
 question, in what circumstances the words 
 "of the body" maybe implied in a destina- 
 tion to heirs of provision, infra, § 1173 et 
 seq. 
 
 (u) But the Court may legitimately take 
 into consideration the circumstances of the 
 family history in reasoning from the inten- 
 
 tion apparent in the context. No better ex- 
 ample can be found of the legitimate use 
 of this kind of evidence in explanation of 
 the context, than the criticism of Lord 
 Eldon on the Linplum case, in delivering 
 judgment on the Roxburghe case. See 5 
 Pat. 432 et seq. 
 
 (x) Duke of Hamilton v. Douglas, 1762, 
 M. 4358. See as to competency of parole 
 evidence, p. 4369 ; and, upon the same 
 point, Ball v. Coutts, 6 March 1806, re- 
 ported as a note to Dykes v. Boyd, 1813, 
 17 F.C. 344.
 
 OF DESTINATIONS TO HEIRS OF PROVISION. 605 
 
 institutional writers, that a general destination to heirs whatsoever • hap. xxxv. 
 in a deed of investiture, was controlled by a destination to heirs of pr< i- 
 vision in the antecedent settlements of the estate.(y) It was. how- 
 ever, finally determined by a series of decisions, that the apparent 
 object of the transaction was an element which the Court could not 
 legitimately take into consideration ; and consequently, that where 
 a disponee or heir of provision obtains a charter from the superior 
 containing a destination to himself and his heirs whatsoever, the 
 destination must receive effect according to its technical meaning, 
 without reference to the settlements or to the purposes for which 
 the new investiture was required.^) In advising til'' case of Molle 
 v. Riddell, where it was argued that the title, having been obtained 
 for a political purpose, should be held effectual for no other, it was 
 laid down emphatically by two of the judges that the Courl would 
 not consent to construe such deeds in a way different from other 
 deeds, nor look to motives, but only to what had been done and tin- 
 consequences. It was observed with much force by Lord Grlenlee, 
 that, when such deeds are made, care was always taken that the do- 
 minium utile at least should not go against the inclination of the 
 parties; that people of moderate fortunes would take this oppor- 
 tunity of settling their estates ; or, if their minds were not made np, 
 would at least take care that nothing was done in that resped con- 
 trary to their inclinations. (a) 
 
 1167. In another class of cases, where estate is destined to a "Heirsand 
 person named and his heirs and assignees, with ulterior substitu- fl^J^jfe"^* 
 tions in favour of other heirs, it has fivuueiitly been maintained, on ■,"■"■ '"" ''"' 
 
 behalf of the substituted heirs, that the — i it to the heirs and assig-besub 
 
 • iiii l- -i i • .a condition. 
 
 in es "i the in, iiiukiI mi disponee should be so limited m construction 
 as to import either a fee-simple in the disponee, subjeel to the con- 
 dition of his surviving and taking an assignable interest, or an ab- 
 solute fee in the same perBon, with a substitution in favour of the 
 heir.- of lii< body.(6) The argument here proc< eds on the appan nt 
 absurdity of inserting destinations over to other parties, which can 
 never in any event take effect, if the prior destination to b< ire and 
 assignees is r< ad as a gifl of the fee to the hi ire g< rieral oi the | 
 
 (y) See Erek. 8, 8, 47. The cases which by the consideration that th< Courl ■ 
 
 were supposed to • thai doctrine ceeded upon b parole proof; a1 anj 
 
 &r< critici ed in b note to Mr Bandford' thi j an no Ion i 
 Treati « on Entail . p.80. Two of th («) S i I, M.- 14,956 Voile 
 
 ?iz., Marquie of ClydeeddL <r. Earl of Dun v. Riddell, 18 I 1 1811 F.I ; affirmed 
 
 thmald, 1727, M. 1276, and 8kem v. Skene, 19 J 188 
 
 1725, M. 1 1,864, are hown to baye I" • n (a) 16 I ' 189 11 
 mi interpn ted; while the remaining ca e, 1 M - ' ' '■' ,1 
 
 16, M. 11,869, Each."] K ' ' • • ' '' 
 
 Bumption,' No 17 i deprived of all weigh)
 
 COt; OF DESTINATIONS TO HEIRS OF PROVISION. 
 
 chap. xxxv. son instituted. Those cases will be examined when we come to 
 treat of the manner in which a limitation to heirs of the body may- 
 be implied. (c) It may be sufficient to say here, that such a limita- 
 tion is never held to be raised by implication in a destination to 
 heirs and assignees, except where the subsequent destination is ex- 
 pressly conditioned to take effect upon the failure of the institute 
 and his issue.(d) 
 Words of des- 1168. We now pass to the consideration of the affirmative part 
 
 tination, how f ^he proposition with which we set out, namely, that words of 
 
 affected by the X - L ,..,. . , , 
 
 context. destination may be extended or limited in construction by the im- 
 
 mediate context, or by subsequent explanatory provisions. Our ob- 
 ject can only be accomplished by a detailed examination of the 
 cases. These we shall proceed to classify according to the rules of 
 construction illustrated by them, beginning with those rules which 
 are obvious and settled, and advancing to such as are either doubt- 
 ful in themselves, or of uncertain application. 
 Dispositive 1169. And Jir st, with regard to discrepancies between the terms 
 
 clause gives the £ ^ destination as contained in the dispositive clause, and as re- 
 
 general meaning, L . 
 
 but may be ex- r> ea ted in the procuratory of resignation and precept of sasme. 
 
 plained by other L . . n „ . . 
 
 clauses. Questions of this nature are not likely to occur m future, in conse- 
 
 sequence of the changes in the forms of conveyancing introduced 
 by the Lands Transference Acts, but the decisions upon this class 
 of questions are valuable illustrations of the application of the rules 
 of construction to destinations. The leading principle is, that the 
 destination is ruled by the terms of the dispositive clause ; but that, 
 where its terms are ambiguous or imperfect, their meaning may be 
 explained, and the intention of the maker of the deed collected, from 
 the phraseology of the corresponding passages of the procuratory 
 and precept. The first branch of the rule is exemplified by the 
 Forrester v. case of Forrester v. Hutchison, (e) where, by the dispositive clause 
 Hutchison. £ t ] ie settlement, the estate was destined to William Forrester and 
 the heirs-male of his body, whom failing, to the heirs after mentioned 
 in the procuratory of resignation ; and the procuratory of resigna- 
 tion was conceived in favour and for new infeftment to be given to 
 the said William Forrester and the heirs of his body, whom failing, 
 to certain heirs therein named and designed. On the extinction of 
 the male line of William Forrester, the heir-general descended of 
 his body claimed the estate in right of the destination contained in 
 the procuratory of resignation, maintaining that the procuratory 
 was in itself a perfect conveyance ; that, as the destination was em- 
 
 (c) Infra, \ 1173, et seq. (e) Forrester v. Hutchison, 11 July 1826. 
 
 (d) See Tinnoch v. M'Lewnan, 26 Nov- 4 Sh. 824, N. E. 831 ; and see Shanks v. 
 1817, F.O. The Kirk- Session of Ceres, 1797, M. 4295.
 
 OF DESTINATIONS TO HEIRS OF PROVISION. 607 
 
 bodied solely in the procurator}- (which in fact alone constituted rn.vr. ***v. 
 the entail), that must be considered as the regulating clause of 
 the deed ; and, alternatively, that the gift to the heirs-general of 
 William Forrester in the procuratory should be regarded as a sub- 
 sequent destination, intended to take effect on the failure of the 
 prior dispositive destination to the heirs-male. The Court, how- 
 ever, were of opinion that the destination to the heirs-general of 
 William Forrester, in the procuratory, was a mere variation of the 
 terms of the prior destination in the dispositive clause to the heirs- 
 male of the same person; and, in that view, that it fell to be cor- 
 rected by reference to the latter, as the governing clause. The 
 Lord Justice-Clerk observed, that although the procuratory might 
 undoubtedly have constituted the whole entail, yet, as there was in 
 fact a regular dispositive clause with obligation to infeft the heirs 
 there mentioned, and the procuratory was for effecting this infeft- 
 ment, the destination in the latter clause could not receive effect 
 where it was inconsistent with the formi r. 
 
 1170. The case of Graham v. Graham(f) was a very clear case Grahamv. 
 for the application of this canon of construction. The destination, G 
 which was contained in a contrad of marriage, was to the granter's 
 eldest lawful son and his h, irs-male by thai marriage, whom failing, 
 
 to his heirs-male by any other marriage, whom failing, to his heirs- 
 female in the same order, with ulterior substitutions. The deed 
 contained a procuratory of resignation for new infeftmenl to Wil- 
 liam Graham and the said heirs of tailzie and provision ; and this was 
 followed by a proviso "thai the eldest sou and descendants of Ms 
 body shall always succeed preferably to the younger sons and their 
 descendants, and that the eldest female and her descendants shall 
 succeed without division." On the death of William Graham's 
 eld si son, the succession was claimed by a daughter of her si cond 
 son, as nearesl heir-general <<n,i disc, ml, mi of the body of William 
 ( rraham, and also by the third son. as heir-male < ntitled to Mice, , ,| 
 in virtue of the dispositive clause. It appeared from other parts ol 
 the deed that the word descendant was used bj the granti r to , \- 
 - heir-, I, .ah male and female; bu1 in respeel that the word 
 was is its own nature :| flexible term, ami that the destination in 
 which it occurred belonged to the procuratory of resignation, while 
 the destination in the dispositive clause was clear and unamb 
 
 it was held that the , -tale v. a - | ff< eln.dk SettL d Upon the b( 
 
 male. 
 
 1171. On the other hand, there is sufficient authority for thi 
 
 • • ill rill 1 • 
 
 position, that where, by one ol the brani hi oJ a aispositivi a< Btin 
 
 (/) Graham v. Qraha \, 20 J L81 I ' . II Jam 1826 I W
 
 COS OF DESTINATIONS TO HEIRS OF PROVISION. 
 
 chap. xxxv. tion the estate is given to an individual, without mention of his 
 ~ heirs, while in the procurator? of resignation infeftment is directed 
 to be given to the same individual and his heirs — being of the class 
 or in the order generally pointed out by the other branches of the 
 destination, — the procuratory shall stand good as a substitution in 
 favour of the heirs omitted in the leading destination. (V/) 
 Context, in what 1172. Let us next consider the construction that may be given 
 topu^iSof to terms of destination by the aid of the context of the destination 
 construction. itself> Worc i s designative of heirs may, as we shall see, have a modi- 
 fied or extended construction given to them, so as to bring them 
 into conformity with other branches of the destination to which 
 they bear reference. And where words capable of modifying the 
 whole course of a destination are introduced, either at the beginning 
 or at the end of the clause, without reference to any particular branch 
 of the destination, they shall be held to govern it in all its parts, 
 more especially where they are calculated to give effect to the pre- 
 sumed purpose of constituting an effectual tailzied destination. The 
 first part of this proposition is illustrated by the cases in which a 
 limitation to heirs of the body is ingrafted, by construction, upon a 
 subordinate branch of the destination, in virtue of the intention 
 shown by the context to confine the destination, or the particular 
 branch of it, to the issue of the nominatim substitute. The second 
 point is exemplified in the numerous cases in which a general de- 
 claration, that heirs-female or "daughters" shall succeed without 
 division, has been held to give priority of succession to the eldest 
 heir-female throughout the whole course of the succession. 
 Limitation to 1173. The cases in which a destination has been sought to be 
 
 body'-'by im- limited by implication to heirs of the body, are of two classes : first, 
 plication: dis- ^ j which it has been attempted to ingraft such a limitation 
 
 tmction between uiAWOV - " J- ■ i ■ j ■ 
 
 destinations to on a destination to a person named and his heirs and assignees or 
 and thoT/to heirs whatsoever ; secondly, where the object has been to impose the 
 ] feml\T h ° r like qualification upon a destination to a person named and his heirs- 
 male. The principles of construction applicable to destinations so 
 dissimilar, are obviously very different. A destination to A., his heirs 
 and assignees, or to A. and his heirs whatsoever, is, in legal effect, a 
 fee-simple conveyance to A. To convert a grant in fee-simple into a 
 tailzied destination by construction, implies not only an alteration in 
 the character of the estate given to the institute, but also the crea- 
 tion of substitutions which are not to be found in the operative, that 
 is the dispositive, clause of the conveyance. To ingraft a limitation 
 to heirs of the body upon a destination to heirs-male, imports no 
 
 {g) Sutherland Y.Sinclair, 1801, M. "Tail- June 1802, 4 Pat. 346; Maclauchlan v. 
 zie." App. No. 8; Halliday v. Maxwell, 9 Campbell, 1757. M. 2312.
 
 OF DESTINATIONS TO HEIRS OF PROVISION. 
 
 change in the character of the estate, and introduces no new sub- chap.xxxv. 
 stitutions into the destination; though, undoubtedly, it cuts down ~ 
 that part of the destination which would have carried the estate to 
 the collateral relatives of the person named, upon failure of the issue 
 of his body. To change the character of the estate, to import new 
 substitutions into the destination upon any other ground than that 
 these substitutions are to be found in plain terms in another part 
 of the deed, would be nothing less than making a new deed for 
 the settlor. But to warrant the restriction of an existing declara- 
 tion to a limited class of heirs, and the consequent exclusion of re- 
 moter heirs, it is sufficienl that an intention is apparent on the face 
 of the deed that some other class of ln-irs, called in the subsequent 
 part of the destination, are, in the intention of the settlor, preferred 
 to those heirs who, by the assumed construction, are held to be 
 excluded. 
 
 1174. The leading cases in which the Court has refused to con- Destination to 
 strue a destination to a person named and his heirs and assignees t££i, not co- 
 upon the ground of intention evinced in the deed, or inferred from in- ■ f b ^.- me 5 e 
 
 _ < - J implication 
 
 trinsic circumstances, have already been discussed, and need nol 
 further referred to.(A) The principle of these decisions has received 
 it- latest illustration in the recent Cluny succession case,(*) where 
 the Court was called upon to construe a direction to trustees to 
 purchase lands, and to execute an entail thereof in favour of the 
 truster's eldest natural son and his heirs whatsoever, whom faili] 
 his younger son and his heirs whatsoev* r. The younger son prede- 
 ceased the truster without issue. The surviving son could, of course, 
 have no other lairs than those of his body, and the intent inn of the 
 trust* r was very distinctly manifested to the effeel thai the estate 
 should be settled in the form of a stricl entail, — a purpose which 
 could not be accomplished by a destination in the terms directed. 
 Notwithstanding these circumstances, the Court, by a majoritj ol 
 eighl to five, di termined thai the trustees were nol entitled, with 
 the view of maki] tual the testator's intention, to execute an 
 
 entail in favour of the t raster's son and the beire of his body; and, 
 by consequence, thai the Bon, as fee-simple proprietor, was entitl< d 
 to require paymenl of the fund in money. 
 
 1175. Very clearly distinguishable from these decisions are th» i 
 in which a conveyance to an individual and hie h< ral, '■ 
 
 followed by ulterior substitutions, has I" en allowed to reo iv< 
 
 will 
 (/') B( •■ chapter 31, i ct. 2, and the ft i 
 
 / I, M. Mi. ; 
 
 1 I. 'all, 1 1,94 \; Murray?. Flint, M. 14,952 
 He, 19 Jan 1809, F.C d 
 
 \"!.. I.
 
 610 OF DESTINATIONS TO HEIRS OF PROVISION. 
 
 i'ii \r. \\\v. 
 
 as a destination, in consequence of the substitutions being expressly 
 conditioned to take effect in the event of the failure of issue of the 
 institute. In the case of Hunter v. Nisbet,(k) the deed was in the 
 form of a mutual settlement in favour of the longest liver in life- 
 rent, and the " heirs of the longest liver in fee," with certain ul- 
 terior substitutions, and with this declaration, that in case of the 
 decease of both the settlors " without heirs of their bodies" the fee 
 of the property should devolve as therein directed. In Tinnoch v. 
 M'Lewnan,(l) the settlor disponed his heritable estate to his daugh- 
 ter in liferent, in case she should survive him, " and to John Tin- 
 noch, my grandson, his heirs and assignees whomsoever, in fee or 
 property, whom failing without a lawful child or children existing 
 of his body," to his (the settlor's) heirs. In the case of Hoodie v. 
 Anderson,(m) the narrative of the deed contained equivalent ex- 
 pressions, which were held to control the meaning of the primary 
 destination to heirs whatsoever. In these cases, the expressed inten- 
 tion to bring in the substituted heirs in the event of failure of issue 
 of the institute was allowed to receive effect, the destination to heirs 
 whatsoever being restricted in its application to the non-occurrence 
 of the event on which the substitution was made contingent. But 
 the latest and most authoritative recognition of this principle of 
 construction is found in the case of Maceioen v. Pattison. (n) The 
 dispositive clause in the deed of settlement commenced with a con- 
 veyance of all the settlor's estate, heritable and moveable, to his 
 brother, his heirs and assigns, but with and under the burden of 
 payment of his debts, and of certain legacies therein provided. By 
 a subsequent provision, which was held by the Court to form a part 
 of the dispositive clause, the settlor declared, without prejudice to 
 his brother's right of disposal, that in the event of the latter dying 
 without issue and intestate, and not otherwise disposing of the es- 
 tate, it should fall and devolve, and he accordingly in that event 
 disponed it, in different portions, to certain other heirs. The Se- 
 cond Division of the Court, while rejecting by a majority the argu- 
 ment that the gift to Alexander Dunn, his heirs and assigns, was 
 limited by construction to heirs of the body, were unanimously of 
 opinion that the substituted destination imported an exclusion of 
 heirs-at-law in a certain event, and that it was effectual as a condi- 
 tional substitution of the heirs named in it. In all such cases, it is 
 to be observed, that the words " die without issue," and the like, 
 
 (k) Hunter v. Nisbet, 14 Nov. 1839, 2 (m) Moodie v. Anderson, 11 June 1824, 
 
 D. 16. 7 Sh. 743. 
 
 (I) Tinnoch v. M'Lewnan, 26 Nov. 1817, («) M acewen v. Pattison, 27 Mafch 1865, 
 
 F.C. 3 Macph. 779 ; see also Pattison v. Dunn's 
 
 Trs.. 9 March 1806, 4 Macph. 555.
 
 OF DESTINATIONS TO HEIRS OF PROVISIl »N. f, 1 1 
 
 i-HM 
 
 are connected bywords of reference with the primary destination 
 in such a way as to make its operation conditional on the non- 
 occurrence of the event upon which the substitution is to take effect. 
 
 1176. The question whether a destination to heirs-male can be -h 
 limited by construction to heirs of the body, brines before as the v ' i ' :i 
 Hoxburghe case, celebrated for Lord Eldon's elaborate judgment ''" '•■''■"■ Prin - 
 extending over three days, in which every point connected with b 
 the construction of destinations was anxiously and minutely ex- 
 amined.^) The principle affirmed in this case is now beyond 
 the reach of criticism, ami it is qo1 our intention to criticise it. 
 We confess that the reasoning upon which Lord Lauderdale's opinion 
 
 basi d p) appears more adapted to carry conviction to the mind 
 than the more recondite, but, as we think, fallacious line of argu- 
 ment upon which the judgment of affirmance was founded. Bui 
 bo long as the canon of construction laid down by Lord Eldon is 
 kept within its just limits, there is no great risk of the technical 
 meaning of words of destination being thrown open to arbitrary or 
 speculative interpretation. That canon of construction (and it is 
 one of very limited application) may be stated as follows: where 
 an estate is settled by a destination in favour of a disponee or sub- 
 stitute byname, and bis heirs-male, and there follows in immediate 
 
 mce a substitution or a s< rii - of substitutions to ether mem- 
 bers of the family, e.g., to sisters of the first-mentioned disponee, 
 and their heirs-male or other heirs, then, it' the effect of the primary 
 destination, construed according to the natural meaning of the words, 
 would be to carry the to the heir— male general of the first 
 
 disponee, and so to defeat the right of succession of the ether mem- 
 bers of the family immediately substituted, the primary destination 
 to heirs-male shall be limited, in construction, to heirs-male of the 
 body. The commentary of the same eminenl judge upon the 
 Lin-plum case(g) establishes the converse proposition, thai where- 
 ever the effect of the primary destination to heirs-male would 1"' 
 to bring in the immediate collateral relatives of the institute (e.g., 
 where there are brothers) and their descendants preferably to 
 moter substitutes, the term heirs-male shall be construed according 
 to its natural meanii 
 
 1177. in the Roxburghe entail, the destination was "to tin 
 
 ii ii , • i . i . i i - -i e • ■ 
 
 eldest dochter ot the said BLary herd tier, without division, and 
 yr airis-male, she alwaj - marrying or b< ing marrii d to ane .• title- 
 man "i honourable and lawful descent." To understand how the 
 canon of construction above expressed could be applii II Ii a 
 
 BT, / L810 6 p 
 
 ■
 
 612 OF DESTINATIONS TO HEIRS OF PROVISION. 
 
 c hap, xxxv. destination as this, it must bo premised that Lord Eldon, upon the 
 ground afterwards explained,(r) laid down as the first step in the 
 argument, that the word eldest should be construed relatively to 
 time, and not absolutely ; that eldest daughter meant the eldest to 
 whom or to whose issue the succession had not already devolved ; 
 and was equivalent to daughters seriatim et successive. The desti- 
 nation was thus expanded into three successive destinations to the 
 daughters of Lord Harry Ker and their respective heirs-male in the 
 order of seniority. At the time when the competition arose, the 
 lineal male line of the eldest daughter had failed ; and the question 
 was, whether the succession should devolve to the heir-male general 
 of that daughter, pr to the heir-male of the body of the second daugh- 
 ter. As already explained, a construction was given to the desti- 
 nation which excluded the heirs-male general, on the ground that, 
 if they were admitted, the right of succession of the junior branches 
 of the family would be indefinitely postponed, and virtually frus- 
 trated. 
 Boxbwghe and 1178. In further explanation of the view of Lord Eldon, which 
 distinguished, ruled the decision and fixed the law in reference to all similar des- 
 tinations, it is necessary to add that, in the Linplum case, — (1) the 
 destination which was the subject of construction was expressed in 
 favour of Alexander Hay and his heirs-male ; (2) that Alexander 
 Hay had several younger brothers, but that neither they nor their 
 issue were substituted in the destination otherwise than as such a 
 substitution was implied in the technical meaning of the destination 
 to the eldest of the brothers and his heirs-male ; and (3) that the 
 destination in question was followed up by ulterior substitutions in 
 favour of remoter heirs. (s) The effect of importing the words " of 
 the body " into the destination to Alexander Hay and his heirs- 
 male, would obviously have been to deprive his brothers and their 
 issue of the succession, and to carry the estate over to remoter heirs. 
 This consideration, doubtless, had weight with the judges who de- 
 cided the Linplum case ; and the observations of Lord Eldon, con- 
 trasting the consequences of a flexible interpretation of the term 
 heirs-male in that case with the diametrically opposite consequence 
 resulting from the flexible interpretation of the same term in the 
 Roxburghe entail, form the cardinal point in that celebrated judg- 
 ment. In the one case the limitation of the technical terms, in 
 construction, to heirs of the body, was assumed to be contrary to 
 
 (r) Infra, \ 1181. both the leading cases by the circumstance 
 
 (s) Hay v. Hay, M. 2315, 3 Pat. 142. that there were no special substitutions 
 
 The case of Campbell v. Campbell, formerly subsequent to the destination to the insti- 
 
 cited, M. 14.910, is distinguishable from tute and his heirs-male.
 
 OF DESTINATIONS TO HEIRS OF PROVISION. 6 1 3 
 
 the probable intention of the settlor, while in the other it was In M ohap.xhv. 
 tn be admissible in aid of the probable intention. 
 
 1179. The rule of construction established by the decision in the Braidv. BaU 
 Boxburghe case was recognised and applied by the Second Division 8ton ' 
 of the Court in the rase of Braidv. Balston,(t) where the destina- 
 tion was to the settlor's eldest son and his heirs-male lawfully 
 gotten, and the heirs of their bodies whomsoever; whom failing to 
 the eldest daughter of the institute and the heirs of ker body, etc. 
 Upon the failure of the institute and the heirs-male of his body, it 
 was held that the succession devolved to his daughter and her de- 
 idants, in preference to the heir-male general of the institute; 
 the proximity in blood of the substituted female line being con- 
 sidered a sufficient reason for restricting the prior destination, in 
 construction, to male issue. 
 
 1180. It has been observed that the context is also a legitimate r 
 source of construction, where it contains general refi rential words ^', 1 i ',.','^ lT . 
 controlling the meaning of the preceding or subsequent parts of P rohibiti ' 
 
 ° ° - 1 ° ' * M"ii ai' 
 
 the destination. With respect to the aid to be derived from th rtwners. 
 
 context in the construction of provisions intended to prevent the 
 division of the estate among heirs-portioners, reference is made to 
 the ca>es of Mowat v. M'Culloch (u) and Swintoris Trs. v. Siointon.(x) 
 In the former case a declaration that the eldest heir-female should 
 succeed without division, interposed between two branches of the 
 ination, was, by reason of its position in the deed, held to apply 
 only to the antecedent part of the destination ; while in the hi, 
 a similar declaration, introduced at the end of the destination, was 
 held to be applicable to every part of it, including a substitution in 
 favour of the settlor's daughters, who were named collective!} in 
 one of the branches of the destination. Where no provision is m 
 with reference to priority of succession anion-' lieirs-portioners, the 
 succession necessarily divides whenever ii devolves to \<- ire ol that 
 d scription \{y) and a general reference to a prior settlement, con- 
 taining a clause of exclusion of heirs-portioners, is nol equivalent 
 to tin: insertion of the clause in the deed of destination, (z) 
 1181. Words di noting seniority, as " eldest," or " ■■ cond" son, or «j 
 
 (/) Braid .. //•■' ton, 20 . 
 22 D. 488. i < Trs. \. Sh. I 166. 
 
 I" i 
 in ;t direction to entail L862, 24 l». 278. Bi 
 
 male," the words "of the body '' mi 
 
 to 1"' implied ; and Conn v. G '* I 
 
 F\ b. ! ph. 879, whi re, in a d I 
 
 (illation in a .;■ I i I D. 121 
 
 ■ bi i, V 
 
 he body."
 
 C. 1 1 OF DESTINATIONS TO HEIRS OF PROVISION. 
 
 chap.xxxv. daughter, when used in a gifl to an individual designatively, must 
 be understood absolutely,— that is, either with reference to birth 
 or to the time of the execution of the settlement. A legacy to the 
 eldest son of A., it is thought, denotes the eldest of the sons surviv- 
 ing at the execution of the settlement, but not the eldest surviving 
 son when the succession opens. But in the case of heritable des- 
 tinations, these words come within the influence of the rule accord- 
 ing to which all expressions having a relation to time or order in 
 succession, are, if possible, to be held as applied to a series of per- 
 sons. In this view, the term " eldest " in a destination, denotes the 
 senior heir or branch of the succession remaining after failure of 
 an elder heir or branch, except where it is applied to the stirps 
 or founder of a line ; for, in each branch, the primary gift is to be 
 understood as made to an individual. Yet even in this case the ex- 
 pression "eldest daughter," when coupled with cmalifying terms 
 applicable to a plurality of persons, may fairly be held to mean a 
 Construction of series of persons ; and on this point, the judgment in the Ilox- 
 tr'r'in the Box- burghe case, (a) in so far as it found that " eldest daughter, loitliout 
 burghecase. division, and' their heirs-male/' meant daughters in the order of 
 seniority, appears to be unexceptionable. The like construction is 
 put upon the terms in the clause of style " that the eldest heir-female 
 shall succeed without division, and exclude heirs-portioners," which 
 is construed as meaning the eldest of the heirs-female capable of 
 taking the succession. (b) 
 "Second son," 1182. In the construction of shifting clauses, devolving the es- 
 
 i!l Hmlsef of' d bate upon a second son in the event of the eldest son succeeding to 
 devolution. a title, it is sometimes difficult to determine whose second son is 
 entitled to the inheritance, where the title has passed to two or 
 more brothers in succession. In dublo it is held that the heir an- 
 swering to the description, who is nearest in blood to the entailer 
 or institute, has the preferable claim. (c) 
 "Son," "daugh- 1183. Where a destination is expressed in popular language, a 
 far'flexibie as to greater latitude of interpretation is admissible than in those cases 
 where technical terms only are used. But the principles of con- 
 struction are essentially the same. The evidence of intention to use 
 language in a different sense from what it naturally bears, must be 
 found within the deed itself, and generally in the immediate con- 
 
 (a) Ker v. Innes, 5 Pat. 320 ; 6 W. & S. (c) M . of Bute v. Stuart Worthy, 4 Mar. 
 (App.) See the formal judgment upon 1803, 4 Pat. 450. As to whether the heir- 
 tliis point. substitute to whom a shifting clause is ap- 
 
 (b) See cases cited \ 1180, supra. And plied may keep the estate until he shall 
 see the Lord Justice-Clerk's observations have a second-son, seeHayv. M. of Tweed- 
 in Shepherd v. Grant, 1 Dec. 1836, 15 Sh. dale, 6 April 1773, 2 Pat. 322. and M. 
 ]7(i : affirmed, 3 S. & M'L. 255. 15,425. 
 
 iiicaiuiii;
 
 OF DESTINATIONS TO HEIRS OF PROVISION. 
 
 text. This part of the subject derives a special interesl from the ohap.xxxv. 
 frequency with which the word "daughter" is found associated in 
 destinations with proper terms ol destination, Leading to the infer- 
 ence thai it is used in the sense of heirs-female, or at Leasl in a sense 
 expressive of female relationship in a more general s< nse than that 
 of immediate descent. The cases have for the most part been al- 
 ready referred to, in illustration of the construction of the special 
 destinations in which they occurred. For our present purpose it 
 will he sufficient to indicate the application of the principles of in- 
 terpretation by which they are governed. 
 
 1184. The word " daughter," when associated in a destination «Dau g i 
 with "heir-female," is susceptible of being identified in construction 
 with the latter term. It is true that heirs-female are not alwavs wl 
 
 . c injunction with 
 
 daughters; hut daughters, tl heirs at all, are necessarily heirs-female ; tha < ,ni1 - 
 and therefore, where, as in the Kin-fauns case,(d) the estate is des- 
 tined to the eldest daughter or heir-female of a person designated, 
 and it becomes necessary either to rejecl the latter expression, or 
 i" give to the former a construction by which it is held to he iden- 
 tical with, or illustrative of, the more technical term, i hat construc- 
 tion is to be preferred which maintains the consistency of the desti- 
 nation, without sacrificing any pari of it. In this case it is to be 
 observed there was no possibility of construing the two terms con- 
 nected by the conjunction "or" as separate destinations, intended 
 to take effed seriatim ; lor there is no class of heirs known to law 
 who could he supposed to be represented by the term daughters 
 other than the class named in conjunction with them, namely, heirs- 
 female. Where, however, two distincl classes of heirs are intro- 
 duced into ;i destination, coupled with the word " or" (as, foi i 
 ample, ;; heirs-male or eldesl heir-female of the body "), the beirs- 
 female are held, in virtue of the position of the words in the di ed, 
 to be postponed or substituted to the heirs-maU of the body of the 
 institute; the words " of the body" in the destination quoted being 
 obviously intended as a restriction upon both branches of the sue 
 ion . (< i 
 
 1185. The flexible construction of the word daughter maj b< 
 
 i u ii i • i ■ i • • i ■ i n,,v 
 
 tartner illustrated by the cases m which it is used in clauses mt< nd 
 
 ed to secure the transmission of the estate without division Thus in 
 
 Martin v. Kelso,(f) when- a di ed oi i ntail - tained a clause i m- 
 
 powering t be heirs in ] it< d as t hi ir appan ol oi i 
 
 Blah v. Lyon, I , ! ; ' 
 
 S 
 :: s. and Ml.. 255, and 1". Bl 
 
 I'
 
 616 OF DESTINATIONS TO HEIRS OF PROVISION. 
 
 ohap. xxxv. sumptive heirs are females, to settle the estate upon a younger daugh- 
 ter in preference to the elder daughter, or to pass by such daughters 
 altogether and settle the estate upon the presumptive heir-male," 
 it was held that the term daughters, as used in this clause, was not 
 limited to daughters of the heir exercising the power, but included 
 his heirs-female, being daughters of a former heir in possession. In 
 this case, the proper construction of the term daughter was indi- 
 cated by the introductory part of the context, which prescribed the 
 condition or event upon which the power was to be exercised, and 
 which in its terms clearly applied to all cases of prospective female 
 succession ; and we infer from the opinions of the judges that, but 
 fur the evidence of intention afforded by the introductory part of 
 the clause, the power would not have been held to extend to colla- 
 teral succession.^) Clauses of this kind, which from their nature 
 are much less technical in their language than other parts of the 
 destination, may indeed be fairly interpreted on the principle of 
 giving effect to the intention evinced by the general tenor of the 
 destination; and accordingly, the words "excluding heirs-portion- 
 ers," which, if literally construed, would have the effect of depriving 
 female heirs of any right to the succession, are held equivalent to 
 an exclusion of the collective succession prescribed by law, with a 
 substitution of the several heirs-portioners and their issue in the 
 order of seniority. (h) 
 "Son," "daugh- 1186. We have already seen that words designative of relation- 
 used desi'gna-™ ship, as son or daughter, when used in a connection which shows 
 tiTef/naturlr tliat tne y were intended to be applied to individuals, and not to 
 meaning. classes of persons, are not to be bent from their natural meaning ; 
 
 and the case of Lady Essex Ker v. Innes (i) is an authority for 
 the proposition that such w T ords are to be interpreted according to 
 their natural meaning where they are employed to designate the 
 substitute or ancestor from whom the succession is to flow in one 
 of the branches of the destination. 
 Words of des- 1187. In the conclusion of this subject, reference may be made 
 
 sory convey- to a class of cases in which technical terms of destination are held 
 preted^con- to be subject to construction, by reason of their occurrence in a 
 furmity to conveyance of an accessory subject, or right collateral to an ante- 
 
 destmation ot >> J J 7 ° 
 
 the principal cedent grant. In such cases, where the regulation of the order of 
 succession is not the primary object of the deed, and where it is 
 
 (ff) See farther on the construction of (h) Swintons Trs. v. Swinton, 10 January 
 
 this word in money settlements, Crs. of 1862, 24 D. 278 ; Pratt v. Abercromby, 18 
 
 Redhome v. Glass, M. 2306 ; 5 Dec. 1744, 6 Nov. 1858, 21 D. 19. 
 
 Pat. 681 ; and Mr Sandford's observations, (?) Lady Essex Ker v. Innes, 26 Feb. 
 
 Treatise on Entails, p. 67. Also Ewingv. 1812, 5 Pal. 579. 
 Miller, 1717. M. 2308. 
 
 subject.
 
 OF DESTINATIONS TO HEIRS OF PROVISN IN. 61' 
 
 plainly not the intention of the granter to derogate from tlu order ohap. ww. 
 
 of succession prescribed by the destination of the principal subji 
 
 it has been held that, without any infringement of the recognisi 1 
 principles of interpretation, a grant to the person in possession and 
 his heirs and assignees, may be construed as applying to the heirs 
 of the subsisting investiture. (&) 
 
 1188. It sometimes happens that a branch of the destination i- c ostru i 
 introduced in the shape of a power to name heirs. Tims the estate SSationby 
 may be destined to a scries of substitutes, whom failing, to heirs to j 1 '!"!" 1 '' 1111 * 
 be named in a separate deed by the maker; or the heir in pos- 
 
 ion may lie empowered, in the prospect of the succession de- 
 volving upon heirs-portioners, to make a new settlement of the 
 estate upon them and their i>sue, either in the order of seniority or 
 according to discretion. (I) Where a power of nomination is <luly 
 exercised, the heirs nominated are held to be included in the des- 
 tination, and take their place in the succession according to their 
 order, (m) 
 
 (k) Greenockv. Greenock, 1736, M. 5G12 ; (;») Stewart v. P, I, 24 M ■;. L826, 
 
 Duke of Hamilton v. Selkirk, 1710. M. 2 W. ,v S. 369; and on Mi.it from the 
 
 1 1,935 ; Hay v. Crawford, 1698, M. 14,899, House of Lords, 13 Nov. 1829, 8 si,. 16 ; 
 
 cited in Sandford on Entails, p. 92 ; also judgment affirmed 23d Sept. 1831, ■ > w. 
 
 Duke of Roxburgh* v. Wauchope, 21 Jan. lV S. 515: Earl of Strathmore v. Strath- 
 
 L823, 2 Sh. 141, N. E. 130. more's Trs., 1 Feb. L837, 15 Sh. 449, af- 
 
 \fartin v. Kelso, 15 O. 950, cited nrmed 30 July 1840, 1 Rob. Is'.'. 
 supra, ',_ 1 1 85.
 
 618 
 
 OF THE SERVICE OB ENTRY OF HEIRS OF PROVISION. 
 
 CHAP. XXXVI. 
 
 CHAPTER XXXVI. 
 OF THE SERVICE OR ENTRY OF HEIRS OF PROVISION. 
 
 Limits of the 1189. In one of the chapters pertaining to another division of 
 
 to be C considered the subject,(«) we" have treated of the entry of heirs in its more 
 ^stinff°the°suc. general relations, including the subject of the different modes and 
 cession. forms of entry, and the rules applicable to competitions for service 
 
 as heir in the various characters in which that title may be sought. 
 Dispensing here with any recapitulation of doctrines familiar to the 
 profession, we proceed at once to the consideration of the special 
 questions arising in relation to the service of heirs of provision, 
 questions which, though apparently having relation to the form of 
 the proceeding, are in reality questions of vesting, intimately con- 
 nected with the general theory of destinations, and embracing some 
 of the most refined problems in the law of heritable succession, (b) 
 if the 1190. The subject of the vesting of heritable succession provi- 
 
 sione hominis, may be considered under the following subdivisions : — 
 (1) Entry of heirs, in what cases it is requisite, and to what ances- 
 tor ; (2) of the rule, that the entry must be in the proper cha- 
 racter ; (3) of the right of a contingent or subsequently born heir- 
 substitute to divest an entered heir ; and (4) of possession on 
 double titles. It may be premised that where service is spoken of 
 in the sequel, it is so because it is the most general and authentic 
 mode of entry ; but in relation to the vesting of the succession, the 
 cases make no distinction between a special service and an entry 
 by precept or writ of clare constat. Whatever is asserted with re- 
 spect to the one may be assumed to lie applicable in terminis to 
 the other mode of entry. 
 
 I (ivision 
 subject. 
 
 (a) Chapter 5 (Vesting of Heritable Suc- 
 cession). 
 
 (b) Though not properly connected with 
 this subject, we may here refer to the im- 
 portant case of Stirling v. Ewart, 4 Sept. 
 1844, 3 Bell, 129, fixing that an heir-sub- 
 stitute of entail, even when unconnected 
 by blood with his immediate predeci sor, 
 
 is entitled to be entered as an heir, and in 
 payment of relief duty. In the opinions 
 of the Judges of the Court of Session much 
 valuable information will be found respect- 
 ing the characters of an heir of entail. See 
 also Duke of Hamilton v. Baillie, 5 Sh. 31, 
 X.E. 28, and 6 Sh 94.
 
 OF THE SERVICE OR ENTR1 OF HEIRS W PROVISION. 619 
 
 1191. I. Entry, of Heirs, in what cases requisite, and to ohap.xxxvi. 
 what ancestor. — The proper object of a service as heir of provi- g ~ not re _ 
 sion is to take up an estate or righl of succession from the her* 
 
 , . . , » . a person taking 
 
 aztas 01 a deceased person who possessed under a title regulating as disj 
 his succession. (c) This excludes two cases, namely, (1) where the 
 inheritance i> thai of a person who possessed on ;i title in favour of 
 himself, his heirs and assignees, in which case the title falls t«> he 
 made up by service as heir-at-law: and (2) where the successor i> 
 the disponee of the proprietor last in possession, in which case the 
 fee vests by the words v\^ the testamentary instrument in the dis- 
 ponee; no service i> requisite to conned him with the ancestor. 
 Where, therefore, a title to heritable estate is to he completed in 
 any other character than that of heir-at-law. it i> necessary t<> de- 
 termine whether the successor is a disponee "ran heir of provision : 
 and, if an heir of provision, then to what ancestor; it I n- 
 
 tial that the service should he expede to the person in whom the 
 estate was last vested in fee.fV) 
 
 1192. Where the maker of the settlement is himself the insti- 
 tute, no question can arise. Thus, if a testator dispone to himself, "ttiement cUs- 
 whom failing to A., whom failing to B., etc., whether the succes- v° aes to uunse,f - 
 sion opens to A. at the death of the maker, or whether it opens 
 immediately to B. in consequence of the predecease of A., in either 
 
 the successor must serve heir of provision to the maker el the 
 d< i d.(< ) The case is precisely the same where the settlor, instead 
 of disponing to bimself, obtains a charter from the superior with a 
 destination to himself as institute, whom failing to other p< rsons or 
 heirs. In such a case a titlemade up by the infeftment of the firsl 
 heir-substitute, without previous service t'> the maker of the settle- 
 ment or disponee of 'he charter, would he inept. The rule is net 
 altered by the obligation to infefl being expressed in favour ol the 
 nominatim substitutes, ami net in favour of the granter, — the dis- 
 positive being the ruling clause.(/) In a disposition to the grant* r 
 
 i be remembered that an herit- ritiea in chapter 29, section 2 (Wills and 
 
 tak( ii up Dispositi ma of Herital 
 whether il Hamilton \. Hamilton, 1714, M 
 
 mi lii.s own name, or through 14,860. The revei ■>! ol 
 Hi'' intervention of a i he an ■ notia 'l in I 
 
 ■ I' an heritable right 198 
 
 falling t<. Hi.- heir of ;i beneficiary undi r 
 
 / ph. 1111, i 
 
 '.'T'.i ; 1.". May 1862, I Macq. 874. . V-Lt d I 71 I 
 
 I 
 the ch red from i 
 
 ■ , • . Young » 'i 
 
 i mi
 
 620 
 
 OF THE SERVICE OR ENTRY OF HEIRS OF PROVISION. 
 
 CHAP. XXXVI. 
 
 Case where the 
 immediate dis- 
 pom e pri 
 
 the dis- 
 poner. 
 
 Propinquity of 
 
 conditional in- 
 stitute proved 
 by service or 
 declarator under 
 former practice. 
 < 'olquhoun v. 
 ( 'olquhoun. 
 
 himself and persons named, the word " and" means whom failing, 
 and the title of the Tiominatim substitutes must be completed by 
 service, (g) 
 
 1193. The difficulty arises where a testator dispones to a person 
 who predeceases him, or to heirs who fail, whether by predecease or 
 by non-existence, whom failing to other heirs or persons. In such 
 a case, the settlement comes into operation at the testator's death 
 in favour of the " eldest" surviving member of the destination, 
 and the conveyance necessarily lapses as regards those antecedent 
 branches of the destination which have failed in the testator's life- 
 time. The person entitled to the succession is clearly in the posi- 
 tion of a conditional institute succeeding under the disposition to 
 himself, and not as heir to any previously named disponee ; and his 
 title will therefore be completed by sasine on the disposition. Why 
 any difficulty should have been felt in admitting the proposition 
 that a substitution implies a conditional institution of the same 
 person, in the event of his being the first taker, we have never been 
 able to understand. No modern conveyancer doubts that the law 
 is as we have stated it, and were it not that the authority of the 
 cases of Colquhoun and Fogo is disputed by Sandford,(7j) and that 
 even Professor Montgomerie Bell states the point as to the mode of 
 making up a title to be still unsettled,(t) we should have dismissed 
 the subject with a simple reference to those cases. It may, how- 
 ever, be proper to state more fully the position of the question. 
 
 1194. The alternative modes of completing a title which were 
 followed were — (1) to expede a general service in favour of the party 
 (whom we have described as a conditional institute) as heir of pro- 
 vision to the maker of the deed ; or (2) to expede a service in favour 
 of the same party as heir of provision to the disponee first named 
 in the settlement. The first of these courses is clearly erroneous in 
 principle, as it proceeds on the assumption that the maker of the 
 deed is the institute, which is contradictory of the terms of the des- 
 tination. Accordingly, in the case of Colquhoun, where the title 
 was made up by service to the testator, the service was held to be 
 inept by the original judgment of the First Division of the Court ;(k) 
 and the judgment was confirmed by the unanimous opinion of the 
 whole Court on remit from the House of Lords. (T) The questions 
 on which the opinions of the judges were desired were — (1) Whe- 
 
 (ff) Gordon v. M'Culloch, 1791, Bell's 
 I let. < ;t. 180 ; Young's Trs. v. Young, supra. 
 
 (A) Sandford on Entails, 2d ed. p. 512. 
 
 (i) Bell's Lectures on Conveyancing, 
 pp. 1020, 1022. 
 
 (#) Colquhoun v. Colquhoun, 16 Dec. 
 1828, 7 Sh. 200; Dalrymple v. Earl of 
 Stair, 10 March 1841, 3 D. 837. 
 
 {I) Remitted 17 Feb. 1831, 5 W. & S. 
 32; opinions reported 8 July 1831. 9 Sh. 
 911.
 
 OF THE SERVICE OR ENTRY OF HEIRS OF PROVISION. 62 1 
 
 tlier the service to the testator was valid? and ("2) Whether the ohap.xxxvi. 
 
 service should have been to the testator's eldest son, the institute, 
 
 or to any other and what person? On these questions the Court 
 
 gave their opinion — (1) That the service as heir to the testator \ 
 
 inept to take up the procuratory or precepl 1 by the testator 
 
 in favour of his eldest son and other heirs; that there was nothing 
 
 vested in the testator by such procuratory or precept, or which could 
 
 be taken out of him and transferred to another by such service: and 
 
 — by a majority — (2) That where the institute in such a deed | 
 
 deceases the testator, no right has vested in him ; that the party on 
 
 whom tin • right actually devolves is not a proper substitute b 
 
 but conditional institute or dispone* — the condition attached to his 
 
 right being the predecease of the institute before the testator ; and 
 
 that the conditional institute should establish his right by bringing 
 
 an action to declare that the condition originally attached to his 
 
 right had been purified by the predecease of the institute, and that 
 
 he was now the institute and disponee, and, as such, entitled to take 
 
 up the procuratory and precept in the deed.(m) 
 
 1195. The suggestion of the necessity of a declaratory proceed- Deci tatomiti- 
 ing, as a step to the completion of a feudal title, was not generally Hi,'.'.;,,' 
 accepted by the profession; and in a subsequent ease, where an 
 amicable suit was brought to try the question by a conditional in- 
 stitute who had served heir of provision in general to a predeceas- 
 ing institute, the title was found to be good, on the Footing that the 
 succession was either taken up by the service without declarator, or 
 
 that service was unnecessary, and could do no harm, the pursuer 
 being infeft on his ancestor's disposition, (n) 
 
 1196. The case of Fogo v. Fogo, if it does no1 advance the solu- r 
 lion of the question, as Ear as the actual decision is concerned, is, 
 we apprehend, an authoritative declaration of opinion by a majority 
 of the whole Court, that in the case under consideration, the heir 
 
 j in the character of conditional institute, service being unnei 
 saiy. The testator disponed to A. and the heirs of his body; \\ bom 
 fail i ii g. to 15. and the heirs of her body; whom failing, to C. and the 
 heirs of her body. A. and B. predi ceased the to tator without li 
 
 issue, and < '. was served heir of provision to A., the institute. 
 Sis jud: .pinion thai < '. was conditional institute, and 
 
 (ni) The m< thod of obtaii 
 ■ 
 the it 
 
 I to the i 
 
 rlopted in the pr of Mac- > 
 
 I '■ 
 3, F.C. tt i I that the 11
 
 IV2-1 
 
 OF TIIK SEKVH'K OK ENTRY OF HEIRS OF PROVISION. 
 
 OH \r. xxxvr. 
 
 Service, whe- 
 ther requisite, 
 where the per- 
 son succeeding 
 as conditional 
 institute is not 
 named in the 
 settlement. 
 
 that the fee vested in her by the words of the disposition without 
 service. Four judges were of opinion that service to the predeceas- 
 ing institute was the proper course to be taken, and that the per- 
 sonal right vested by such service in C. as heir-substitute. In either 
 view the party had a good title, and the judges were unanimous 
 in this conclusion, and also in affirming (on the assumption that 
 C. was to be regarded as a conditional institute), that a declarator 
 of her right was not required as an authority to take infeftment on 
 the procuratory or precept in the disposition, (o) The decision of 
 the Court was affirmed on appeal. The question will not be abso- 
 lutely cleared from the doubt which still encompasses it until some 
 conditional institute under an entail happen to die before a general 
 service can be expede, when the Court would be under the neces- 
 sity of determining the question whether he had taken an estate in 
 fee, which would fall to be taken out of his Jiereditas by the next 
 substitute, or whether he should be held as having died in appa- 
 rency, for want of a service, in which case the next substitute would 
 require to serve to the institute first named in the settlement. 
 
 1197. In the cases which have been considered, the disposition 
 was conceived in favour of a nominatim disponee as institute, but 
 it is not yet certain that the principle of these decisions applies to 
 the case of a destination to the heirs or heirs-male (as the case may 
 be) of the disponer, whom failing to other substitutes. If it were 
 quite clear that in this case the principle applies (as we think it 
 does) that a disposition to children unnamed is equivalent in legal 
 effect to a disposition to children nascituri, cadit qucestio. The gift 
 is a virtual fee to the granter, in trust for the heirs of his body, if 
 he leave any, otherwise for himself and the other heirs-substitute. 
 On the death of the maker of the settlement without issue, the fee 
 would fall to be taken up by the next substitute, by service as heir 
 of provision to the granter, the virtual institute. The decisions, at 
 all events, support this mode of making up the title in the case where 
 the maker dies without ever having had heirs of his body, and 
 where, consequently, the primary destination fails, (p) And the 
 analogy of a well-known class of decisions on questions of fee and 
 liferent is in favour of the view that the fee must be held to be in 
 the granter where the destination is in the first instance to issue 
 unnamed, without reference to the fact of the actual existence of 
 issue at the date of the execution of the settlement, (q) 
 
 (o) Foffo v. Foffo, 11 March 1842, 4 D. 
 1063 ; affirmed 18 Aug. 1843, 2 Bell, 195. 
 
 (p) Crs. of Gordon of Carleton v. Gordon, 
 1748, M. 14,366 ; Peacock v. Glen, 22 Juno 
 1826, 4 Sh. 742, N. E. 749. 
 
 ('/) Forrester v. Forrester, 9 Sh. 675 ; 13 
 April 1835, 1 S. & M'L. 441, and cases 
 there cited.
 
 OF THE SERVICE OR ENTRY OF HEIRS OF PROVIS 
 
 1198. A difficulty, distinct from the one involved in the question chap, xxxvi. 
 
 of conditional institution, but occasionally combined with it. some- Z \ 
 
 ' J I» whom is 
 
 times arises in the case of destinations to parents in liferent, and their - 
 children in fee, — the question being-, who is the ancestor to whom 
 service ought to be expede ? Whore a proper liferent is constituted atUmfomlrait 
 by a conveyance to one person in Liferent, and to another nominatim ' 
 in fee, the liferent is a real bunion, ami docs not aff< d the vesting 
 of the succession. If possession is given to the liar in his lifetime 
 his interest vests, and may bo taken up by bis successor by service 
 in the proper character, (r) If the deed is of a testamentary charac- 
 ter, the predecease of the institute opens the succession to the o< xt 
 member of the destination in the character of conditional institute. 
 Where, on the contrary, the destination is to a person in liferent, 
 and to his children nascituri or unnamed in fee, the intention is 
 held to be to give the fee to the parenl as institute, and to the 
 children as substitutes ; and the children's title is made up by ser- 
 vice as heirs of provision, precisely as if the fee wore given to the 
 parent in express words. (s) The distinction is illustrated by the 
 case of Lindsay v. Dott,(t) where the destination was to A. in life- 
 rent, and to I!, also in Liferent, and to the heirs procreated or to be 
 procreated of the body of B. In this case, the liferent given to A. 
 was held to be a proper liferent, while the righl of B. (nominally .-i 
 liferent right) was held to be a constructive fee in hi- person, and 
 the- nexl heir was obliged to serve heir of provision to him. 
 
 1199. Where the destination is to ;i father in liferent for his D 
 
 T-i-11 i ii-' limit* 'I ' •• 
 
 liferent use allenarly, and to his children in tee, the nominal me- rent 
 renter, in addition to his proper life interest, takes a fiduciary i< 
 the condition of the trust being, thai he shall held the fee for tin P 
 heirs of the marriage, if there are any, and if there be none, then 
 for behoof of himself absolutely, or of the partj from whom thi 
 estate is derived. In such a case it is held that the heir or child 
 ren may make up titles by apecial service as heir of provision to the 
 parenl \(u) and it would seem that the estate may also be taken up 
 by declaratory adjudication. (x) A.nd the destination l)eing as stated, 
 if the father has taken infeftmenl in favour ol him eli in liferenl 
 
 \ii.| whi re a nominal i I i /• I > ] 
 
 tuted along with childri tl 1824, 2 
 
 mi.- for I- I D D 
 
 of himself and the other mi mbera of the Sh. I I • N E 188 B 
 
 nation, s H van v. Robb, 29 I 
 March 1864, 2 Macph. 948 >/ trim's 1 < ' 
 
 ■ i D 
 
 Childn l ' 1 ' childi 
 
 /
 
 624 OF THE SERVICE OR ENTRY OR HEIRS OF PROVISION. 
 
 chap, xxxiv. only, without noticing the right of foe, the eldest son will make up 
 ~ his title by a general service, the precept, quoad the fee, being held 
 to be still unexecuted. In questions of beneficial interest or of entail 
 law, the fiduciary fee is ignored, the beneficial interest being alone 
 regarded. Thus, where the destination of an entail was conceived 
 in favour of a lady in liferent only, and her second son (unnamed 
 and unborn) in fee, the second son was held to be the institute, 
 and not to be bound by the fetters of the entail which were directed 
 against heirs only.(?/) 
 
 Service as heir 1200. II. Of THE RULE THAT THE ENTRY MUST BE IN THE PROPER 
 
 must have reia- character. — In all cases where the destination of an estate is in 
 rtementfa^df*" favour of a selected class of heirs, service as heir of provision is ne- 
 cessary to vest the right of the heirs-substitute, which service, r as 
 we have seen, is to be to the person last vest and seized in the fee, 
 whether under a feudal or a personal title. And the rule is not 
 varied by the circumstance that the heir of provision happens also 
 to be the heir-at-law of the person last seized ; for if the succession 
 is regulated by deed, the service must have relation to that deed, 
 and must identify the person entered as the heir pointed out by the 
 destination. Thus, where the destination is to A. and the heirs of 
 his body, for two generations at the least the tailzied succession 
 runs in the channel of the legal order of succession. But in the 
 service, A.'s eldest son will be described as nearest and lawful heir 
 of provision to A., under the deed regulating the succession. 
 Whore descrip- 1201. Thus, in one of the branches of the Elshieshiels case, (z) 
 
 tion incomplete, . r . .. , , c 
 
 the question was, Whether a service by a son m the character ot 
 
 must connect 
 the heir with it 
 
 whether it is 
 sufficient that 
 
 pns'l ''Xn nf the heir-male to his father was a good title to estate which was destined 
 pr0P be C mferr t d to ^ ne beirs-male of the father s second marriage f In point of fact, 
 from the words he was a son of the second marriage, but this did not appear ex 
 
 of the service. . iii- -i i i .e 
 
 facie of the proceedings ; the service was held inept, and a deed ot 
 alteration of the succession by a descendant whose title depended 
 on this service was held bad, as flowing a non habente potestatem. 
 Again, in Cathcart v. Earl of Cassillis,(ci) the service of Earl David 
 in 1776, tanquam legitimus et propinquior lucres masculus et Unece 
 (without the word provisionis) was held not to give a vested infer- 
 tile character of heirs-portioners. In the up hy a conveyance from the nominatim 
 case — which does not often happen — of a disponee, and in default, by adjudication. 
 subject being left to an individual by name (g) Logan v. Logan, 15 Sh. 291 ; 1 Aug. 
 
 conjunctly with a family of unborn or un- 1839, M'L. & Rob. 790. 
 named children, the nominatim disponee (z) Edgar v. Maxwell, 1738, M. 14,015. ' 
 
 takes a fiduciary fee for himself and bis (a) Cathcart v. Earl of Cassillis, 1802, M. 
 
 co-disponees, the interest of the latter vest- 14,447, and on appeal 24 Nov. 1807, 2 
 ing at birth ; Martin's Trs. v. Milliken, 24 Ross L. Ca. 525; 1 W. & S. 239; see also 
 Dec. 1864, 3 Macpb. 326. In such a case, Duke of Queensberrg's Trs. v. Earl of 
 the title of the children would be made Wemgss, 21 Jan. 1819, Hume, 727.
 
 OF THE SERVICE AND ENTRY OF HEIRS OF PROVISION. 625 
 
 est in the estate of Culzean, which was destined to the said Ear] chap, ixxvi. 
 nominatiiu by the disposition of 17 IS mentioned in the report. In 
 an earlier case, where tin.- heir's character, established by his service, 
 necessarily implied thai he possessed the character required in the 
 deed of provision, the service was sustained as equivalenl to a ser- 
 vice in the proper character. This was the service oi a son as near- 
 est and lawful heir to his father, which was held to be sufficient to 
 vest the succession under a destination to the father and the heirs- 
 male of his body.(ft) 
 
 1202. But the general rule undoubtedly is. as laid down by Lord Ruieiaiddown 
 Eldoninthe ease of Cathcart,(c) that the service oughl to be in the e„,,',7//'-'" 
 true legal character, and not merely in a character which by impli- 
 cation infers the existence of that character. (d) And therefore, 
 
 even where there are two deeds, with special destinations appli- 
 cable to different estates, and in these deeds the destinations are 
 actually the same, a service as heir of provision under the one deed 
 does not operate or imply service under the other deed, or vesl the 
 right conferred by it. (e) This rule is identified with the mainten- 
 ance of the doctrine of passive representation. When a person 
 inters as heir of provision under a particular A''r>\, he becomes 
 liable for all that is imposed on him by that Ai'i'd. Bui there may 
 be other deeds, with the same destination, containing obligations 
 to which he does not choose to subjed himself, and the law doi - 
 not concede to the heir the right of sen ing under an indefinite de- 
 signation which may be made applicable to one or more of theestat 
 destined to him in his option. 
 
 1203. To this rule there is, however, an exception in the caa 
 
 of destinations to heirs-male general. The character of heir-male ^J jwlthont 
 has from ancienl times been to a certain extenl recognized by the ' 
 common Law, particularly in relation to the descenl ol honours, and 
 
 Haldanev. Haldane, 1766, M. 14,443; ception. [f the casi luthority, 
 
 bnl si ' Ah on, 1796, Bume, 723. il must go to thi tbal where threi 
 
 i of the hi ir-afc-law in d, om to ! '1 of 
 
 laracter of heir ofprovuion \ the body, another 1 do of thi i 
 
 to be sufficient; the destination I and a third Bimply to 
 
 the hei of 1 nee of b 
 
 I ; Bell v. Comakers, 1749, M. 14,016. imp] !| '" 
 
 (c) 2 Ro - L. I i. 646. thri o disl th< 
 
 B ad thai an rily 
 
 ithorityofan opini ifLord Rutl of the body and I' 
 
 ford, thai the ca e of Ualda 
 
 by thai of Cathcari I I ' ■• "'"' "" 
 
 p. 1014). 1 
 the c or wh< thi i Lord 1 ' '• 
 
 eption to tl 
 and, ii 
 
 VOL I.
 
 626 OF THE SERVICE AND ENTRY OF HEIRS OF PROVISION. 
 
 chap, xxxvi. it is held to constitute a line of inheritance which may be the sub- 
 ject of a service independently of the provisions of any particular 
 deed. Where, accordingly, a person is served heir-male general, 
 the service is held to connect him with all estates destined to him 
 under that character, whether to the effect of vesting the right of 
 succession or of subjecting him to the liabilities attaching to the 
 heirs-substitute of the tailzied estates. (/) 
 Procopts loss 1204. The rule, that the character in which the heir enters must 
 
 struma" s,t- appear ex facie, of the title, has not been so strictly applied to pre- 
 vices in relation ce pts of dare constat. The precept necessarily identifies the estate, 
 
 to description of x r" , , 1 , . . . , 
 
 character. and very generally the settlement or deed of investiture on which 
 
 the title is expede. It has been considered sufficient that the pre- 
 cept is granted to the right heir, though he is not described as he 
 ought to be in a service,^) especially when the precept is preceded 
 by a clause of confirmation narrating the destination. (A) 
 Under a destin- 1205. A disposition to A. and his heirs whatsoever, or heirs and 
 hk°heLf A?a assignees, is not a destination ; and the heir of A. ought not to serve 
 heirs-general do j ie j r £ provision, but heir-at-law. As in one of the branches of 
 
 not take as heirs x 
 
 of provision. Cctthccirt v. Ccissillis ,(i) where the investiture being by Crown char- 
 ter (dated 1774) in favour of Thomas, comes de Cassilis, et liceredi- 
 bus suis et assignatis quibuscunque, service was expede by his brother, 
 tanquam legitimus et propinquior hceres masculus et Unece, and the 
 title was held to be unexceptionable. The circumstance that other 
 heirs are named after heirs whatsoever appears to be of no conse- 
 quence, heirs whatsover being inexhaustible and excluding remoter 
 substitutes. This consideration shows how erroneous is the deci- 
 sion in Woodmass v. Hy slop's Trs. (k) holding a service to A. inept, 
 under a destination " to A., his heirs and assignees," because it did 
 not bear to be a service as heir of provision. Had the destination 
 been to A., whom failing, to the heirs of B., B/s heir-at-law must 
 have served heir of provision to A. ; but where an heir-at-law serves 
 as such to his own ancestor, he is not an heir of provision, and 
 ought not to be served in that character. 
 Service must 1206. The considerations which led to the recognition of the 
 
 ofp C rovision dee rule, that the retour or decree of service of an heir of provision 
 under which the mus t specify the character in which he is served, also require that 
 claimed. the same instrument should specify the deed of provision from which 
 
 (/) Per Lord President Campbell in (h) Ogilvy v. Oyilvy, 5 June 1817, 
 
 Cathcart v. Ccissillis, 2 Ross, L. Ca. 535 ; Hume, 724. 
 
 Anderson v. Anderson, 22 June 1832, 10 (i) Cathcart v. Cassillis, M. 14,447; 2 
 
 Sh. 696. Ross, L. Ca. 525, 1 W. & S. 239. 
 
 (g) Durham's Trs. v. Graham, 1798, M. (k) Woodmass v. Hislop's Trs., 28 Jan. 
 
 15,118 ; Crichtons Crs. v. Wood, 1798. M. 1825, 3 Sh. 476, N. E. 331. 
 15.115.
 
 OF THE SERVICE AND ENTRY OF HEIRS OF PROVISION. 627 
 
 the right is derived. In two early cases, services of heirs of provi- j "^ xxx ^ 
 sion were sustained although the retours did not Bpecify the deeds 
 containing the destinations ;(/) and one of the reports bears, thai 
 on examination of the Chancery record, a great number of retours 
 were found which were defective in this particular. (m) The de- 
 cisions can only he referred to the principle of communis error, 
 and the correct practice was restored by the Service of Heirs Act,(N ) 
 which requires that in the petition for service the deed or deed- of 
 provision shall he distinctly specified. 
 
 1207. III. Of THE RIGHT OF A CONTINGENT OR SUBSEQUENTLY BORN Distinction be- 
 
 iii j_i tween t< >! 
 
 HEIR-SUBSTITUTE TO DIVEST AN ENTERED HEIR. — It ■ has been seen that, and intestate 
 
 in the case of a succession accruing by operation of law, the nearest ^tionto"" 
 heir in existence at the opening of the succession has the capacity J^J" 
 of acquiring an indefeasible title; and that, if be completes his« 
 entry before a nearer heir is horn or conceived, he will not be under 
 any obligation to denude in favour of a nearer heir subsequently 
 procreated. (o) The contrary supposition involves the recognition 
 of the principle of conditional vesting, a principle unknown to the 
 common law, and therefore incapable of modifying the course of an 
 intestate succession. But the conditions of the question are differ- 
 ent where the succession takes plaee under a deed of destination. 
 The entailer may vest the estate conditionally in his heirs of provi- 
 sion, subject to devolution in certain contingencies; and the con- 
 tingency of the birth of a nearer heir may be a cause of devolution. 
 — the question always being whether it is so in the intention of the 
 entailer. The authorities establish the doctrine thai the general 
 intention to prefer a nearer to a more remote heir is Bufficienl to 
 imply an obligation to denude on the happening of the event ol the 
 birth of a nearer heir, where there is nothing in the entail to Bho* 
 thai the heirs of provision were in every event to take an inde- 
 
 Lble interest. The case of Mountstewart{p) is uol a verj satis* 
 factory authority tor the proposition, as it appears from the report 
 thai the nearer heir (who was ultimately found entitled) was in 
 utero .-it the time of the service of the remoter heir; bul the prin 
 
 ciple was argued al greal length, and the i ase was oonsid I b 
 
 causi celebrt by the lawyers oi the time.(g) 
 
 1208. The question was, however, authoritatively determined in ;; 
 
 m Furl,,, v. Maitland, 1768, M. 14,4 I 
 
 //,„ . //..., Lmpl I, 1768, M. 14,869. 1707 1710, M 14,908 14,9 
 
 M i ) 878. it) ^ou 
 
 („, 10 & II Vict., cap. 47 I com I 
 
 <o) Chapter 4 
 
 180; Oram '■ ftU'* Tr>., 2 D 
 22 1 1
 
 628 OF THE SERVICE AND ENTRY OF HEIRS OF PROVISION. 
 
 ohap. xxxvi. favour of the subsequently born heir in the case of MacMnnon, 
 which is thus stated by the reporter: The estate of Maekinnon 
 stood disponed to John Maekinnon younger, and the heirs-male of 
 liis body; whom failing, to any other son of the body of John 
 Maekinnon elder; whom failing, to John Maekinnon, tacksman of 
 Mishinish. On the death of John Maekinnon younger without 
 issue-male, Mishinish served as nearest and lawful heir-male of 
 provision, and was infeft. Afterwards, a son being born to old 
 Maekinnon, the tutors of the child brought an action against 
 Mishinish to denude of the estate in favour of their pupil. It was 
 pleaded for Mishinish that, he being nearest heir to the deceased at 
 the time, the possibility of a nearer heir's existence was no bar to 
 his service ; and that, as the entering heir is a modus acquirendi 
 dominii, it must be perpetual in its effects, and no contingency 
 happening afterwards will overturn it.(r) The terms of the judg- 
 ment are quoted in the report of a subsequent action between the 
 same parties ; it w r as found " that upon the pursuer's birth, the de- 
 fender's right to the estate of Maekinnon resolved and became void ; 
 that the pursuer has right to the said estate from the time of his 
 birth, and that he may make up his titles to the estate as if the 
 defender had never been entered."(s) According to Lord Karnes, 
 whose reasoning substantially coincides with the views expressed 
 by Lord Colonsay in a recent case,(£) the solution of the present 
 case depends on this question : " In a destination of succession, 
 what is precisely intended by the clause quibus deficientibus ? Is 
 the person substituted in that event entitled to enter when there is 
 no nearer heir in existence ; or must he have patience till the 
 wdiole persons called before him be exhausted ? The latter is, no 
 doubt, the natural construction ; for a man must be whimsical who 
 should choose to have the succession to his estate governed by 
 chance. . . . According to this construction, there is no place 
 for a substitute while there is a nearer in hope, though not ex- 
 isting."^) 
 neir divested 1209. In principle, it is clear that the entered heir, until he 
 
 entrVhSThe' ls lawfully divested, has the equities of a bona fide possessor, and is 
 rightsofa&owa therefore entitled to retain the rents reduced into possession during 
 his tenure of the estate, and (in the case of a proprietor of a fee- 
 simple estate) to obtain compensation for fair meliorations. "Whe- 
 ther he has the higher rights of an heir-apparent is still an un- 
 determined question, (x) In the sequel of the case of MacMnnon, 
 
 (r) Maekinnon v. Maekinnon, 1756, M. (a) M. 6567-8. 
 
 14,938, and 6566. (x) See the observations of Lord Deas 
 
 (*) M. 5280. on this point, 22 D. 112. 
 (t) Stewart v. Nicolson, 22 D. 94-95.
 
 OF THE SERVICE AND ENTRV. OF HEIRS OF PROVISION. 
 
 CHAP - 
 
 a sale of a part of the estate by Biishinish, the heir whose right 
 was afterwards resolved, was sustained, but, upon this medium, 
 cording to the opinions of the majority of the Court, ".that the 
 sale to Sir James M'Donald, though an extraordinary act of ad- 
 ministration, was yet a necessary act to save the family estate from 
 being torn to pieces by the creditors," of which they w< re satisfied 
 from evidence produced in Court.(yj A claim by the widow of 
 Mrshinish for payment of a jointure of 400 merks, provided to her 
 in her contract of marriage, was likewise sustained; "in which," 
 says the reporter, '-as it appeared to me, the judges were swayed 
 more by compassion than by law." (z) 
 
 1210. In the case of Sh wart v. NicoUon, the < !ourt reduc< d a sali - 
 by one of the heirs in possession to his brother, which was effected v 
 before the birth of the heir by whom the seller was divested ; bul 
 the judgment, finding that the estate was strictly entailed, would, 
 in any view, have been a sufficient reason for setting aside the 
 attempted alienation. In the opinion of Lord Colonsay, the title 
 of the seller is assimilated to that of a person who is law fully serv< d 
 heir of provision, but is afterwards divested by the operation • 
 clause of devolution. (a) The subject may be closed with a citation 
 from his Lordship's opinion on the elemenl of knowledge on the 
 part of the purchaser: "There is the interest oi the purchasi r also 
 to be dealt with; and if he is a bona fide purchaser, transacting 
 with a party who has a right qualified by conditions limiting him 
 — not made patent to the purchaser — not under an entail recordi d, 
 it may he that the purchaser's right cannot be cut down, although 
 tin- party who sold was under these conditions. I do nol si <■ that 
 there i> any reason to hold here that there was no actual sale in- 
 tended between the parties. But .-till that does not solve the ques- 
 tion; because, although there was a real sale between the parti.-, 
 it might be a sale which both of th were perfectly con- 
 
 scious was in contravention oJ the rights under the deeds. I 
 rather think that such must have bei the position oi th'- parties 
 here."(6) 
 
 1211. IV. Ill 1 l.' I O] POSSl 3ION <>N DOUBLE TITLE8. — Thifl part P 
 
 oi the subjed is treated in the introductory chaptei on II 
 Succession. (c) W. -hall, therefore, merelj recapitulate the tl. 
 hading propositions which are there 1 samim d. Wh< r< an h< ii 
 provision makes up his title as heir-at-law, or und< r the mil 
 
 ■• 7 i> L7i 
 
 i : affirmed on app al,26 I 1 . 
 Feb. 1771. 2 Pal 
 (z) M. 5286
 
 630 OF THE SERVICE AND ENTRY OF HEIRS OF PROVISION. 
 
 cn.\p. xxxvi. investiture, neglecting a personal deed of settlement from which his 
 right really Hows, he is held to possess on both titles, — on the feudal 
 title as heir-at-law, and on the personal title as disponee or heir of 
 provision of the settlement. And (1) the completion of a title as 
 heir-at-law, by entry with the superior, is held not to have the effect 
 of evacuating the destination in the personal deed ;(d) (2) where an 
 heir who makes up his title by service or precept under the subsist- 
 ing investiture afterwards obtains a new investiture from the supe- 
 rior by charter of resignation, the destination in the personal deed 
 is evacuated, and the succession will be regulated by the destina- 
 tion in the charter ; (3) the same result follows where the heir, 
 without making up a title under the personal deed, dispones the es- 
 tate either to hims'elf or another person as institute, with a destina- 
 tion different from that of the personal deed.(e) 
 
 (d) Smith and Bogle v. Gray, 1752, M. (e) Edgar v. Maxwell (JElshieshiells), M. 
 
 10,803; Durham v. Durham, M. 11,220; 3089; 31 May 1742, 1 Pat. 334: Harvie v. 
 
 5 March 1811, 5 Pat. 482 ; Zuille v. Morri- Craig Buchanan, 12 Dec. 1811. F.C. ; Molle 
 
 son, 4 March 1813, F.C. v. Riddell, 13 Dec. 1811, F.C.
 
 OF CONDITIONAL INSTITUTION IX - ON. 631 
 
 • HAP. XXXVII 
 
 CHAPTER XXXV II 
 
 OF CONDITIONAL INSTITUTION IN MOVEABLE AND 
 MIXED SUCCESSION 
 
 1212. A legatee is said to be conditionally instituted when a Conditional in- 
 
 ... l-iiii -i stitution and 
 
 legacy is given over to him in case the righl should no1 vest m tne 
 prior legatee; he is said to be substituted when his interest is p< 
 poned to that of the prior legatee, — i.e., when it is intended that he 
 should succeed to the interest of the prior legatee, in the event o 
 the latter dying without altering the destination. A destination in 
 terms sufficiently comprehensive to import a proper substitution 
 will also import a conditional institution as the lesser right;(a) 
 and, in such a case, if the institute die without having acquired a 
 vested interest, the person substituted is held to take the suc< 
 sion, cot qua substitute, but in the character of conditional insti- 
 tute.^) The present chapter is confined to the subject of destina- 
 tions of moveable or mixed succession, in relation to which the prin- 
 ciples of interpretation differ in many resp< cts Erom those which bave 
 been considered in treating of substitutions in herit 
 
 1213 A substitution in a trust-settlement, although binding I 
 upon the trustees, is uo1 binding upon the beneficiary, iJ be clio 
 
 to alter it ;(c) which he may do by disposing ol the estate either 
 for onerous causes or by way of settlement, or (after lie has come 
 int,, | m) by merely changing tin- securities. (d) 
 
 1214 Tli.- question, whal terms imporl ••• substitution, invc.lv. - 
 the consideration ot a very important cu in the construction 
 
 
 Sutherland v. Dougla ZV., 29 N 
 
 I Macph. 106; Fyffi ■ Fyffe, L8 •< ■ 
 
 .July 1841, 8 D. 1206 ; I L792 M i I 
 
 16 Fi b. 1881 9 Sh. 464 '■ ■' 
 
 :,, found in B.4 
 II,,-, ■ " QUI, l9Jun< 1847 9D 
 
 herU 29 
 
 tion ■_'/./ 
 
 md othei caaos then ■
 
 632 
 
 OF CONDITIONAL INSTITUTION IN 
 
 i hap. wwii. of heritable destinations, on the one hand, and destinations of move- 
 able or mixed succession, on the other. The words " whom failing," 
 in a direct conveyance of heritable estate, acquired, at an early period, 
 a fixed signification, as denoting an intention to create a proper 
 substitution. These, accordingly, are the words of destination usu- 
 ally employed in deeds of entail, and settlements of landed estates. 
 A direction to trustees to convey lands to A., whom failing, to B., 
 will receive the construction appropriate to the subject of disposi- 
 tion, precisely as in the case of a direct conveyance to the benefi- 
 ciary ; and this construction was extended, in the case of Ramsay 
 v. Ramsay, (e) to a trust directing the execution of a conveyance 
 of the universitas of the settlor's estate, which consisted chiefly of 
 heritable property.' The question of conditional institution or sub- 
 stitution is presented in a different and more perplexing form in 
 such cases as the Queens Remembrancer v. Dougall,{f) where trus- 
 tees were directed to realise moveable estate, and to invest the pro- 
 ceeds in the purchase of lands or in heritable security for behoof of 
 a beneficiary. In such cases, the intention deduced from the con- 
 text is the only rule of interpretation, and if it appears that the 
 testator contemplated the execution of a deed of settlement with 
 substitutions, the direction will be equivalent to a substitution, and 
 will receive effect as such, in the event of the institute dying with- 
 out having executed a deed of alteration, (g) 
 
 1215. On the other hand, in a destination of moveable or mixed 
 succession, whether in the form of a conveyance or of a direction 
 to convey in a trust-settlement, the presumption is adverse to sub- 
 stitution, and in favour of conditional institution, (h) And the con- 
 struction is similar in the case of destinations in marriage-con- 
 tracts.^') It is settled that the words " whom failing" import only 
 a conditional institution ; (k) and although there maybe room for 
 differences of opinion as to the construction of the older cases, it 
 would seem that there is only one reliable formula for creating a 
 
 20 D. 473. Professor Montgomerie Bell, 
 
 Presumption 
 adverse to sub- 
 stitution in con 
 veyances of 
 moveable in- 
 terests. 
 
 (e) 23 Nov. 1338, 1 D. 83. See also 
 Ogilvie v. Ershine, 26 May 1837, 15 Sh. 
 1027 ; and cases in Br. Syn. p. 2328. 
 
 (/) 12 Feb. 1841, 3D. 548. 
 
 (g) Lawson v. Imrie, 10 June 1841, 3 
 I). 1001. 
 
 (h) Greig v. Johnston, 1 July 1833, 6 W. 
 & Sh. 40G, affirming 9 Sh. 806, where the 
 older rases are cited; Christie v. Christie, 
 1681, M. 8197; Campbell v. Campbell, 1740, 
 M. 14,855; Brown v. Coventry, 1792, M. 
 1 1,8(53. See also Tail v. Lady Duncan, 11 
 July 1837, 15 Sh. 1273. 
 
 (i) Henderson v. Hamilton, 20 Jan. 1858, 
 
 founding upon two early cases, states that 
 in bonds of provision to children the pre- 
 sumption is for substitution. The circum- 
 stance of such bonds being charged on 
 heritable estate is favourable to that view, 
 yet it may be doubted whether the distinc- 
 tion would now be admitted ; 2 Lect. on 
 Conv. p. 857, citing Ronghead v. Rannie, 
 1794, M. 6403; Macreadie v. Macfadzean. 
 1 752, M. 4402. 
 
 (A) Allan v. Fleming, 20 June 1845, 7 
 D. 908; Henderson v. Hamilton, supra; 
 LocMart v. Ross, 1 July 1814. 6 Pat. 31.
 
 MOVEABLE AND MIXED SUCCESSION. 
 
 substitution in moveables, namely, by the words, "whom failing, chat. xxxvh. 
 either before or after the interest has vested," or words of equivalent 
 meaning. It was, indeed, justly observed by Lord Brougham, in 
 the case of Greuj v. Johnston,(l) that it could nol be said "that -■ 
 there is any technical form of expression which shall alone amount 
 to a valid declaration of the intention of the party disposing of his 
 property to exclude conditional institution and to provide substi- 
 tution ;" still, the intention to substitute must be expressed, either 
 in proper technical Language, or by a direction to trustees to insert 
 a clause of substitution in the conveyances^OT securities of the trust- 
 estate. 
 
 1216. In Ogilvie v. Cumming, trustees were directed, after pay- Ogti 
 
 i • i •• i i 1..1 una. 
 
 nieiit of debts and special provisions, to lav out ami employ the re- 
 sidue of tin/ estate for the use and behoof of the truster's grandson, 
 and the heirs of bis body, " in such way and manner as may se< m 
 most expedient to them, till he or they may arrive at majority, when 
 they arc to denude in his or their favours, with such conditions that 
 they shall not dispose of the same nor alter the succession thereof, 
 either gratuitously or onerously, as to the said trustees may seem 
 proper;" failing which, the residue was to go to any other son thai 
 might be born to tin- truster's son, and the heirs of his body : " and 
 failing of him without lawful issue, then such residue is to pertain 
 to the daughters of the said Thomas* lumming, equally among them," 
 etc. By a codicil -it was declared, that in the event of the buci 
 sion opening to heirs-female, the estate should pertain solely to the 
 eldest and herissue. The succession opened to the grandson while 
 in minority; and he having died major withoul calling upon the 
 trustees to denude in bis favour, hi- representatives claimed the 
 succession, maintaining that the destination to beirs-female was 
 merely a conditional institution, and v ated when the grand- 
 
 son attained majority. The decision oJ the Eou I [firming 
 
 that of the Court oi Session, was in favour of the eldesl lieir-f< male 
 oi the- truster's son ; their Lordships being oi opinion th.it. although 
 a vested interesl undoubtedly accrued to the grandson a mortt testa- 
 taris, there was yel an effectual substitution in favour of the said 
 beirs-female, which bad not been altered by the institute. (m) The 
 same principle appears to bave been n cognised in an ..Id. r • 
 where a fathi r gave a right oi survivorship to on,- 1 hi- childri n in 
 theevenl of another child dyin majorityor rn on-' i | tin 
 
 it isdoubtful wheth. i this case ought not rather to b< 
 
 • w. & Sh. i 14 D 
 

 
 634 OF CONDITIONAL INSTITUTION IN 
 
 chap, xxxvn. those in which the vesting was postponed until majority or mar- 
 riage, (n) 
 Substitution 1217. A general testamentary settlement is held to have the 
 
 I'v'a will or u effect of evacuating a substitution of moveable or mixed estate, and 
 uientaiy settle- ^ ns e ^ GC ^ i s attributed even to a will executed before the right vested 
 ment. [ n f] ie institute, provided it includes acquirenda. In the case of Fyffe 
 
 v. Fyjfe,{o) we have a striking example of the defeasance of a sub- 
 stitution by the act of the institute in this manner. A legacy was 
 given, in the first instance, to an insane person, and, in the event 
 of his death, to two persons jointly, who were intrusted with the 
 management of the fund during his lifetime. The institute never 
 recovered the use of his reason ; but it appeared that he had made 
 a will before he became insane, and before the legacy vested in him. 
 It was held that this will was sufficient to defeat the substitution, 
 although, in consequence of the legatee's state of mind, he never 
 could have entertained any intention either of confirming or al- 
 tering the destination. A conditional institution may either be in 
 favour of individuals named in the will, or of heirs, executors, or 
 other persoiue designates, or of survivors. Where the institution is 
 of individuals by name, no question is likely to arise. The subject 
 of survivorship, in its various and complicated relations, is reserved 
 for separate discussion. The conditional institution of heirs in its 
 general relations may here be briefly noticed, under reference to a 
 subsequent chapter on the construction of designative destinations. 
 A conditional institution of heirs may be made in any terms suffi- 
 ciently expressive of the intention of the testator to prefer the legal 
 representatives of the beneficiary to his own representatives, as ap- 
 pears from the following, among other cases, in which gifts over to 
 heirs or representatives of legatees, have received effect as condi- 
 tional institutions, (p) 
 Conditional in- 1218. In Inglis v. Miller, {q) and Boston v. Horsburgh,(r) the 
 
 slitution of heirs, j ,• ,• , ,,i • ■ • » • sy i 
 
 executors, ami destination was to heirs, executors, or assignees ; in brraham v. 
 
 miuT" <te,!/ " Hope,{s) and Torrie v. Munsie,(t) to "heirs and assignees ;" in Suttie 
 v. Suttie,(u) to "heirs and assignees whatsoever;" and in Laivson 
 v. Stewart, (x) to "executors or next of kin." In all these cases, 
 
 (n) Robertson v. Robertson, 10 Dec. 1819, ment," No. 11 ; Innes v. Innes, 1670, M. 
 
 Hume, 273. 14,880, 4272. 
 
 (o) Fyffe v. Fyffe, 13 July 1841, 3 D. (r) Boston v. Horsburgh, 1781, M. 8099. 
 
 1205. See contra, Campbell v. Campbell, (s) Graham v. Hope, 1807, M. "Legacy," 
 
 17 Feb. 1743, 1 Cr. St. & P. 343. App. No. 3. 
 
 (p) Reference is made to chapter 28 (t) Torrie v. Munsie, 31 May 1832, 10 
 
 (Lapse) for the cases where the testator is Sh. 597. 
 
 held to have failed to make an effectual (w) Suttie v. Suttie, 19 Jan. 1809, F.C. 
 
 institution. {%) Lawson v. Stewart, 20 June 1827, 2 
 
 (?) Inglis v. Miller, 1760, M. 8084. See W. & S. 625. 
 also Lyon v. Gray, 1751, Elchies, '-Testa-
 
 MOVEABLE AND MIXED SUCCESSION. 
 
 the destination was sustained as a conditional institution in favour ohap.xxxyii. 
 of the next of kin of the beneficiary or legatee. In Torrie's case, 
 the doctrine was laid down, that the Crown was not comprehended 
 in the destination to heirs where the Legatee was a bastard, Lord 
 Glenlee observing that the gift of bastardy was in its inception dif- 
 ferent from that of ultimus hceres ; for thai a bastard had, at common 
 law, no heirs except the heirs of his body.(y) In the case oi Hun- 
 terv. Nisbet,(z) two unmarried sisters executed a mutual settlement 
 conveying their whole heritable and moveable estate to the longesl 
 liver in liferent, "and to the heirs of the longesl liver in Pee ;" and 
 this was followed by a destination over to heirs of a particular class. 
 It was held that the word "heirs" in the conditional institution 
 must be construed heirs of the body ; because, unless the expression 
 were so limited, the effect of the settlement would be to lei in heirs 
 whatsoever, to the exclusion of those specially favoured in the sub- 
 sequent destination. A declaration that a legacy shall be "held and 
 enjoyed" by the beneficiary, his heirs and assignees, will receive 
 effect as an implied trust for the benefit of the heirs in the evenl 
 of the legatee's non-survivance.(a) It is doubtful whether a mere 
 power to a legatee to distribute a fund amongst his children imports 
 a conditional institution, if there is no destination over in the evenl 
 of his failure to exercise the power. (6) 
 
 1219. But a destination to a legatee and his heirs and assignees 1. 
 will not be construed as a conditional institution of heirs where the v 
 -.use of the passage is adverse to such a construction ; and in th< 
 
 ae of .'i direction to trusters to convey in these tonus, it is nec< - 
 
 iii x 
 
 sary to look to the context to see whether the testator meanl to ai- 
 red a fee-simple conveyance, or a conveyance to the legatee with a 
 substitution in favour of his heirs. In the case oi a direction to 
 convey to A. or his heirs, the heirs are clearly instituted on the 
 failure of A.; but a direction to convey to A. and his heirs and 
 assignees (especially where the subjeel is heritable estate) would 
 rather appear to point to a conveyance to A. in fee-simple, heir- bi 
 ing men tii a nd merely by way of " limitation." Such was the inter- 
 pretation put upon a direction in these terms in the recenl ca 
 Donald's 7V.s v. I)<nuiid.(r) The testator directed his tro 
 allow his son J, D. the liferenl use and enjoymenl oi certain lands, 
 and, in the event iii his having any lawful childn n, to dispone the 
 
 o/j 10 sii. 608. (A) S 
 
 \z) Hunt \ • i t N L889, 2D D 
 
 r \PLeum 
 
 1817 r< [797 M 11 
 
 (a) Earl of Moray ' Stuart 1782, M.
 
 63G 
 
 OF CONDITIONAL INSTITUTION IN 
 
 chap, xxxvii. same to him and his heirs ; but in the event of his having no law- 
 ful children, then to dispone the same to his son W. D. and his heirs 
 and assignees, and that on his attaining the age of twenty-one years 
 complete. W. 1). died without attaining majority. It was held 
 by Lord Kinloch that the whole right under this bequest was made 
 conditional on W. D. attaining twenty-one ; that the heirs of W. 
 D. were only intended to take in succession to him, and were only 
 mentioned as persons to whom, as well as to W. D., the conveyance 
 in favour of W. D. was to be made if the event happened on which 
 the right to a conveyance was contingent, (d) In this opinion the 
 First Division of the Court, by a unanimous judgment, concurred. 
 Interests in sue- 1220. This is probably the most convenient place to notice the 
 umi'r'onnhmct suu J cc t of the construction of conjunct destinations in reference to 
 destinations. the question in which of the parties the right of fee is vested, (e) 
 The expressions " fee," "liferent," " conjunct," etc., when used in mar- 
 riage-contracts and family settlements, have, as is well-known, re- 
 ceived an interpretation depending on the relationship of the par- 
 ties and the source from which the estate is derived, and differing 
 from the meaning which would be given to the same terms in des- 
 tinations to strangers. 
 
 1221. In the case of destinations to strangers, the general rule 
 is, that an estate given simply, without reference to time, imports 
 a fee. Accordingly, a destination to such persons in " conjunct 
 liferent," or in " conjunct fee," imports a joint estate for life or in 
 fee, as the case may be, with right of accrescion to the survivor, or, 
 as it is sometimes called, the " benefit of survivorship." (/) In the 
 case of a destination to strangers in conjunct fee and liferent, the 
 grantees, according to Professor Bell, ((7) are joint fiars during their 
 joint lives ; but the survivor enjoys his own fee of the one half and 
 only a liferent of the other, the fee of which descends to the heir 
 of the predecessor. In other words, the disponees have only a right 
 in severalty in the fee. This construction is adopted in order to 
 give a meaning to the words " and liferent; " for if the survivor took 
 the whole estate, the right would be undistinguishable in its proper- 
 ties from a joint estate in fee, and the gift of the liferent would be 
 rendered nugatory. A destination to the parties jointly, and to the 
 
 [mport and 
 
 effect of con- 
 junct destin- 
 ations to 
 strangers. ■ 
 
 (d) 2 Macph. 925. 
 
 (e) On the subject of the nature of the 
 right taken by the children under a desti- 
 nation to parents in liferent and children 
 in fee, see chapter 38, section 2 (Disposi- 
 tions to Children), and chapter 29, section 
 2 (Wills and Dispositions of Heritable Es- 
 tate). Reference is also made to chapter 
 
 60 (Powers of Disposal), as to the effect of 
 the doctrine that a liferent by reservation 
 is equivalent to a fee. 
 
 (/) Stair, 2, 3, 41 and 42 ; Ersk. 3, 8, 
 35; Bisset v. Walker, 1799, M. "Death- 
 bed," App. No. 2 ; and see Bell's Prin. § 
 1879, 5th ed. 1882. 
 
 (ff) Bell's Prin. g 1709.
 
 MOVEABLE AND MIXED S ON. 
 
 surviv&r and their heirs, imports a joint-interesl in the fee with the ohap. xxxvn 
 
 right of survivorship, and a substitution to the heirs of the sur- 
 vivor. 
 
 1222. Next as to destinations in marriage-contracts or family !' r:! ' 
 
 . , ..... , -ii* construction ap- 
 
 settlements, the construction oJ which appears to be precisely to 
 same in the class of destinations under consideration as in those oi atTons ^family 
 a purely heritable character. " The decisions of the Scotch Courts,' 1 i 
 it has been observed, " make qo distinction between land and moni y 
 in this respect ; and, with regard t" money, treat a disposition t«» the 
 parent for life remainder to the children nascituri, without the 
 word ' allenarly,' as in effect a simple destination, which may he 
 defeated by tin/ parent, who is considered the fiar."(^) [n such set- 
 tlements, accordingly, a destination to a parenl in liferent, and t" 
 his child or children ,t<>,ni„<i//'ni in fee. receives effeel according to 
 the natural meaning of the words, whether the conveyance proceed 
 from a stranger or from the parent himself ;(*') though in the latter 
 case, as the liferenl is one by reservation, the adjection of a power 
 of disposal is held equivalent to a reservation of a fee-simple inter- 
 during the grantor's lifetime. (A 1 ) 
 
 1223. A destination to spouses "in conjuncl fee and liferent," ««i 
 in the general case, gives the entire Eee to the husband, burdened ™ nat ' ( 
 with a' liferent in favour of the wife,(Z) contrary to the Datura! | 
 meaning of the expression, which would import a joint pro indiv ' ■ :,,i - 
 righl to the fee with a liferent in the survivor of the share which 
 
 fell to the heirs of the other.(m) And it makes no difference in 
 the result whether the conveyance proceeds from the husband him- 
 self, from a stranger,(w) or from the wife'- father ;(o) nor does the 
 form in which the liferenl interest is limited affeci the construc- 
 tion.^) Bui ii the subjed of the conv< yance be the w il rate 
 estate, it is settled that a destination in " conjunct fee and lifi rent " 
 doi - not transfer the fee to the husband ; the presumption in such 
 - being, that the granter intended to n -, rve the n . . and to give 
 only a liferent interest to the surviving spouse.(g) And an int. 
 in the fee of property conveyed by the husband or a Btranger, may 
 
 17 April It !"■ 1709- 
 
 I Bell, 106 I I9,per Lord I l! »v. Ofen.ai W 
 
 Hackinto h v. Mackintosh, 28 Jan. T 
 I - 12, I'.' '. ' "• 
 
 ing v. Adv.-Oeneral, 17".''.. M. 7 D. 1 
 / ( 28 Feb. H 
 
 1809, F.I ../'■-. /'• . ' ! 
 
 1780 l! 366. 8b. I 
 
 R m v. Glen, II Dec. 1819 P.O. ; 1 I ' ' 
 
 Madd i 12, 4 D. 1 
 
 749
 
 638 OF CONDITIONAL INSTITUTION IN SUCCESSION. 
 
 chap, xxxyii. be conferred upon the wife by a clause of conditional institution in 
 
 favour of the survivor, (r) 
 conjunct lirVnnt 1224. The construction of destinations by which a joint or con- 
 to children °" jnnct liferent is given to spouses (without using the word allenarly, 
 SraeduTSe or on ty)> aiR l a ^ ee to children nascituri or not named, is precisely 
 
 toonespouse the same as that of destinations in conjunct fee and liferent ; that 
 niul ;i liferent to . ° ' 
 
 the other. is to say, a conveyance by a stranger to spouses in conjunct life- 
 
 rent gives the fee to the husband, unless the survivor is condition- 
 ally instituted as fiar in express terms ;(s) while, on the other hand, 
 a conveyance by either of the spouses to themselves and the longest 
 liver in liferent, with a nominal fee to the heirs of the marriage, 
 leaves the fee untransf erred in the person of the granter.(^) In 
 such destinations, 'the right of both spouses may be restricted to a 
 liferent by the word allenarly, or only. The object of this is to vest 
 the fee effectively in the children of the marriage. The subject is 
 elsewhere considered, (u) 
 
 (r) Burrowesv. M'Farquhars Trs., 6 July (t) Jameson v. Strachan, 27 Jan. 1835, 
 
 1842, 4 D. 1484; M'Gregor v. Forrester, 13 Sh. 318 ; Mackellar v. Marquis, 4 Dec' 
 
 infra; Scott v. Maxwell, 12 D. 932; 22 1840, 3 D. 172. 
 
 June 1854, 1 Macq. 791. (?/) Chapter 38, section 2. 
 
 (s) M'Gregor v. Forrester, 13 April 1835, 
 1 S. & M'L, 441, affirming 9 Sh. 675.
 
 DISPOSITIONS AND BEQUESTS TO CHILDREN. 
 
 639 
 
 CHAP. X\\\ III. 
 
 CHAPTER XXXVIII. 
 
 DISPOSITIONS AND BEQUESTS TO CHILD I! KN 
 
 I. Description of Objects and Mode of Suc- 
 cession. 
 II. Rule that Fee cannot Vest in Children 
 
 nascituri. 
 III. What Class of Objects in relation to 
 Period of Birth are comprehend d. 
 
 IV. Conditional Institution of Child. 
 
 whether Right contingent on Surviv- 
 
 anc of I 'ribulion. 
 
 V. Destination over, as referring to I > 
 
 without having, or without baling. 
 
 Children. 
 VI. Provisions to Younger Children. 
 
 ^F.CTIOX I. 
 
 < (INSTRUCTION OF THE TERM AS TO THE DESCRIPTION OF OBJEI TS 
 AND MODE OF SUCCESSION. 
 
 1225. I. Whether grandchildren aim: included. — The term«ctuidr 
 
 how coi 
 
 tination. 
 
 children, in the law of Scoi la ml. receives an interpretation correspond ' 
 
 ing to the natural meaning of the word, and denotes the immediate 
 lawful descendants of the person designated. We bave seen that, 
 in association with the term '•heir/' it is in certain casi - construed 
 in a -iii-- synonymous with thai term :(") hut we apprehend there 
 i- no instance in which the expression "children" or "bairns," 
 when used alone, has been confined by construction to the eldesl 
 son, or heir-at-law. (b) The decisions make no distinction betw< i n 
 succession in lands (c) and beritable securities, (d) and thai ol per- 
 sonal property .(< ) 
 
 1226. Tip' law oi England, while coinciding with thai oi thi 
 country in confining tin- meaning "i the term "children" to iimni 
 diate descendants, admits "i ;> construction oi the U mm. [d C( rtain l -"" 1 - :: 
 
 eptional cases, by which it i> mad. in apply to grandchildren. 
 
 hap, '11 (Bequi I to Hei 
 /. L680 
 
 Feb. 188 
 1 1 sii. 48 i. i 
 
 . . , \faitland Vailland 16 J 
 2 Macph. 417-1 20 
 
 // • 
 ii ii 14 J in 
 
 684 . i 
 
 <
 
 640 DISPOSITIONS AND BEQUESTS TO CHILDREN. 
 
 ohap. xwvm. Tt is so construed when, at the time of the making of the will, there 
 
 were no children of the person designated in existence^/) And 
 
 whore, on this ground, the word children is extended beyond its 
 
 primary meaning, it will include issue of every degree, unless the 
 
 terms of the will necessarily confine it to one degree. (g) In such 
 
 a case, construction is necessary to give a meaning to the bequest, 
 
 and it is reasonable that the word should be so construed rather than 
 
 that the bequest should fail for want of an object. 
 
 Construction of 1227. The cases in which powers granted to heirs of entail to 
 
 co^rehendkg settle provisions on younger children, have been held to be com- 
 
 iisueofthe petently exercised in favour of grandchildren, are discussed in an- 
 
 second degree in r J ° . . ._. 
 
 powers of grant- other part of this work, to which reference is accordingly made, (n) 
 
 A power to settle an estate upon a younger son cannot be exercised 
 
 in favour of a grandson, and an obligation to settle estate upon 
 
 children of a marriage is not fulfilled by giving it to the son of an 
 
 only daughter, under burden of an annuity to the daughter, (i) 
 
 Flexible con- 1228. The question whether grandchildren, or issue of a de- 
 
 clminenanted in ceased child, are comprehended along with immediate issue in a be- 
 
 cases to which ques t in favour of children, can only arise in cases where, in conse- 
 
 the condition si * ^ . . 
 
 sine liberis is ia- qaence of the legatee being a stranger to the testator, the conditio 
 RhintfsTrs. v. si sine Uberis decesserit is inapplicable. It is quite clear that the 
 adoption of such a construction of the term children would involve 
 either an extension of the implied condition to a class of cases to 
 which it is in principle inapplicable, or an admission of grand- 
 children to share per capita contrary to the spirit of the bequest. 
 On this ground, in the recent case of Rhind's Trs. v. Leith, (k) the 
 Second Division of the Court unanimously refused to construe a be- 
 quest to the testator's aunt, and in the event of her death (which 
 happened) to her children, in the sense of admitting the issue of a 
 deceased child to share with the survivors. On this point, the ob- 
 servation of Lord Cowan is conclusive. " In a certain class of cases," 
 he says, " the term ' children' has sometimes been construed to in- 
 clude grandchildren, but this has never been held in circumstances 
 similar or analogous to the present. Under the presumed condition, 
 when applicable, grandchildren have taken as coming in place of 
 their parents, but there is no instance of the term ' children' being 
 construed to embrace grandchildren as well as the immediate issue. 
 They may have been held entitled to take as coming in place of 
 
 (/) Fenn v. Death, 23 Beav. 73. (t) Cunyngham v. Cunyngham, 1777, 2 
 
 (g) Crook v. Whitley, 7 D. M. & G. 496, Pat. 434 ; Ormiston v. Ormiston, 24 Jan. 
 
 per Lord Cranworth ; Pride v. Fooks. 3 De 1809, Hume, 531. 
 
 G. & Jo. 275, per Turner, L-J. (*) Rhind's Trs. v. Leith, 5 Dec. 186G, 
 
 (h) Chapter 61 (Powers of Appointing 5 Macph. 104 ; and roc Wishart v. Grant, 
 
 Provisions), sect. 2. 1763, M. 2310. 
 
 Leith.
 
 DISPOSITIONS AND BEQUESTS TO CHILDREN. 641 
 
 their parents ex presumpta voluntate, but not as direct legafc 3; iap.xxxviii. 
 and I think it clear that the grandchildren of Mrs G. were not called 
 along with her immediate issue. Were this held, they must all be 
 entitled to take per capita, which cannot be inferred with any rea- 
 son to be intended by the testator." (I) 
 
 1229. II. Children described as consisting of a spe< lfied e 
 
 Af ^, . cifical 
 
 MMBER WHICH DIFFERS FROM THE A.< TUAL NUMBER. — < >t till- SOUTCe numb 
 
 of ambiguity an illustration is offered by the case of Maclehosi \. 
 Bogle. (m) The testator conveyed his estates, heritable and move- Sntention ' 
 able, to trustees for uses and purposes, comprising certain legacies 
 and a residuary bequest. One of the legacies was thus expressed : — 
 "To each of the daughters procreate of the marriage 
 
 betwixt A. B., merchant in Glasgow, ami M. X. 
 
 K., spouses, Four hundred pounds sterling, . £1200." 
 All the legacies were written in the same form; the sum be- 
 queathed was engrossed in words in the body "1' the deed, and the 
 amount was stated in figures in the margin. At the time of exe- 
 cuting the testamentary writing, there were four daughters, all >>i 
 whom survived, and it was admitted that the birth of the fourth 
 daugditer had been duly notified to the testator. Kadi of the four 
 daughters was held to he entitled to a legacy of 6400, notwith- 
 standing tie- specification in the will of an aggregate sum corre- 
 sponding to three such legacies. (n) 
 
 1230. The principle being thus established, that a mis-statemenl fa * 
 
 • --ill ''"' B l 
 
 of the number oi individuals comprised m a specified class doi - nol 
 
 invalidate the bequest, the application of the principle is merely a ,,"{',,'. 
 
 matter of interpretation of testamentary language, in illustration oi 
 
 whirh resort may be had to the decisions of the English Courts oi 
 
 Equity on similar cases. According to the English authoril 
 
 where a legacy of so much is given to each of a specified number 
 
 of children, every one of the children in existence at the dati 
 
 6 M.. iph. 1 Tl 
 
 {,„) Macl , 28 1 b. 1815, able from thai in An 
 
 P.I .. Bume, 274. 'I : learlydis- March 1784, 1 Cr. ! h< re 
 
 m Olanvilk v. Glanville, it wa provided that in tl 
 .1. Ch. 817, whi re a bi qui I bi ing b ing th 
 ived in favour of " my four neph 
 and ni ce, children of mj brother R., cerl tin pecifled 1 
 naming three w 
 
 I ,1 the numeral four 
 intended to incl 
 
 thai a fourl phew of tin ame family, in the texl th« 
 
 med in the b 
 tit!,. I to parti, ip 
 
 VOL l 
 
 ,
 
 642 
 
 DISPOSITIONS ANE BEQUESTS TO CHILDREN. 
 
 chap, xxxviit. the will is entitled to a legacy equal to what is given, whatever 
 may he their number ;(o) but where an aggregate sum is given to 
 be divided amongst the children, the amount of the legacy is not 
 to he increased, but the sum given is to be divided among the ac- 
 tual children, (p) Where the number of children mentioned in the 
 will exceeds the actual number, the legacy is payable without di- 
 minution, as in a case where a bequest to the Jive daughters of 
 E. was found to apply to a sole daughter, her brothers, of whom 
 there were five, not being allowed to participate, (q) The circum- 
 stance that the testator knows the true number of children does 
 not interfere with the application of the principle. (r) But where a 
 limiting designation is added, which only applies to a certain num- 
 ber of the children corresponding to the number stated in the 
 will, there is obviously no ambiguity admitting of a construction 
 in extension of the meaning ;(.s) and so, where the number men- 
 tioned in the will represents the number of individuals of the family 
 in existence at its date, the bequest will not be extended so as to 
 admit children subsequently born to a participation on the ground 
 of presumed intention, (f) 
 "Children," 1231. III. Illegitimate Childken. — Bequests to the testator's 
 
 prSndingTiie- children or to the children of another person, are uniformly con- 
 gitimate issue s trued as applying solely to lawful children, nor does it appear that 
 no lawful child- in any case a claim has been put forward in our courts on behalf of 
 the descrlptilfu. illegitimate children, to the benefit of a designative bequest. The 
 mere fact that there were no legitimate children answering the de- 
 scription could scarcely be regarded as a sufficient reason for giving 
 to a designative bequest a construction which would admit persons 
 who in law are regarded as strangers ; and it would be necessary to 
 show from expressions in the context, or from other parts of the 
 will, that the bequest was intended to apply to illegitimate children. 
 
 (o) Tomkins v. Tomkins, cited 2 Ves. 564, 
 19 Ves. 126, •' To the testator's three child- 
 mi, 50£. each," the actual number being 
 four ; Scott v. Fmoulhett, 1 Cox, 79, "£500 
 to each of his daughters, if both or either 
 of them should survive," the actual num- 
 ber being three ; Garvey v. Hibbert, 19 
 Ves. 125, "To the three children of D., 
 £600 each," the number being four. 
 
 {p) Stebbing v. Walkey, 2 Br. Ch. Ca. 
 85, " To the two daughters of T., in equal 
 shares," there being three; Berkeley v. 
 railing, 1 Russ. 496, Residue divided into 
 "eight equal shares," there being only- 
 seven disposed of. 
 
 (q) Lord Selscy v. Lord Lake. 1 Beav. 
 151. But where legacies of £100 a-piece 
 were given to four sons, and there were 
 three sons and a daughter, the daiighter 
 was held to be entitled to a legacy of £100 
 as well as the sons ; Lane v. Green, 4 De 
 G. & S. 239. 
 
 (r) See Hume's report of the case of 
 Maclehose v. Bogle, p. 275 ; Daniell v. 
 Daniell, 3 De G. & S. 337 ; Yeats v. Yeats, 
 16 Beav. 170. 
 
 (s) Wrightson v. Calvert, 1 Johns. & H. 
 250. 
 
 (t) Shererv. Bishop, 4 Br. Ch. Ca. 55.
 
 DISPOSITIONS AND BEQUESTS TO CHILDREN. 
 
 The reports offer many examples ofbequests to illegitimate children ohap. xxxvm. 
 by name,(«) and we sec no reason to doubt the validity of a desig- 
 native bequest to all the illegitimate children of an individual in 
 existence at the date of the will, although nut named.! ' 
 
 1232. The validity of a bequest t<i illegitimate issue, couched ft ■■•■ 
 in such terms as to include children nascituri, is, to say the least, •' ■ 
 open to serious doubts. No case has yel been presented for deci- JJ2J 
 sion in the Courts of Scotland, and we do not intend to offer an 
 opinion on the point, though we conf< ss that the conception of an 
 immoral tendency seems to us to he applied with little reason to 
 
 the case of a gift by will, which can neither take effect, nor, in the 
 general case, be known to the mother of the children until ii \ 
 by the death of the testator in favour of objects then in existi . 
 Nevertheless, the doctrine of immoral consideration has been un- 
 hesitatingly applied by the Courts of Equity in England to such 
 gifts, and their decisions, proceeding as they do, upon principles 
 jurisprudence common to both countries, must command a certain 
 decree of authority. We shall, however, confine our citations to 
 the most recent case, that of Howarth v. MilU,{y) in which the 
 principle was applied to a testamentary provision in favour of the 
 issue of a marriage between a man and the sister of his deci as< I 
 wife. "After the well-known case of Prattv. Matth. w,"(z) said Wo 
 V.-C, " the policy of the law, that a man cannot make a legal he- 
 quest to the future children of his marriage with his deceased wife's 
 sister, is clearly established. In the present case two classes of 
 children were mentioned by the testatrix, ' legitimate or others ise,' 
 and to hold that the one could take with the other would bi 
 direct encouragemenl of an unlawful cohabitation. . . . The 
 oJ Brook \. Brook(a) ha.- decided thai a marriage with a de- 
 d wife's sister is no1 to be n garded with greati r favour than 
 any other description of illegitimate connection." The bequesl was 
 however, sustained as a gifl in favour of an illegitimate child horn 
 before the date of the will, children subsequently born being ■ 
 eluded. 
 
 1233. Ilh ritimate children are nol entitL 'I to the benefil of tin i 
 
 
 
 («) Hamilton v. /'■ G 1766, M. daughter, was held 1 
 
 '.'17 1 : Smith v. On ■ . I -"I. ML " Subs, the li g cj to tl 
 
 and < kradl. Int.." App. No. 1 : A. v. B., 
 
 21 M iyl816 i ' '/ I' '■' ' i 17 1 
 
 24 Dec. 1864,8 M cph. 826. In Dougla v. 1814 
 
 Dougla . 21 I' c. IS 18 8 D. 81 
 
 I " in the I 
 ii li.mt law! i 
 
 hi of £60 |
 
 G44 
 
 DISPOSITIONS AND BEQUESTS TO CHILDREN. 
 
 (II \1\ WWII! 
 
 Children of dis- 
 tinct families 
 take /» /• stirpes. 
 
 ( Ihild in utero 
 
 comprehended 
 fur the purpose 
 (if enabling it to 
 take a benefit 
 under the will. 
 
 equitable rules which are admitted in the construction of gifts to 
 children. For example, they cannot claim for themselves or their 
 descendants the benefit of the conditio si sine libcris.(b) Nor, as it 
 would seem, is a bequest to illegitimate children viewed as a gift to 
 a elass, to the effect of securing to the survivors the benefit of ac- 
 crescion irrespective of the terms of the destination, (c) And, under 
 a trust to distribute a fund among poor descendants of the testator, 
 it was held that illegitimate descendants were not entitled to par- 
 ticipate.^?) A bond of provision in favour of illegitimate children 
 in esse, was held to be onerous in a question with creditors, (e) 
 
 1234. IV. Whether children take per capita or per stirpes. 
 — Where children of different families are substituted in a bequest, 
 the division is helcl to be per stirpes ; where they are nominated as 
 original legatees, it is presumed to be per capita. In a subsequent 
 chapter it is shown that this rule applies to all designative bequests. 
 The cases, whether illustrating the rule, or the terms which give 
 rise to exceptional construction, relate for the most part to destina- 
 tions to children, and to avoid repetition, reference is made to the 
 passage. (/) 
 
 1235. V. Eight of child in utero. — To this part of our subject 
 may be referred the doctrine of the civil law which has long been 
 received in our system of jurisprudence, — that a child born after the 
 period at which the vesting of a right falls to be determined, but 
 proved by the period of its birth to have been in utero at that time, 
 is entitled to the rights of an existing person from the period of its 
 conception. The leading case in the law of Scotland is that of 
 Mountstewart,(g) where the question was elaborately discussed, with 
 reference to the rights of a child in utero to take as heir of provi- 
 sion in preference to a collateral substitute, and was decided in con- 
 formity with the rule of the civil law. The fiction of law, which 
 treats the unborn child as actually born, applies only for the pur- 
 pose of enabling the child to take a benefit to which, if born, it 
 would be entitled ; and therefore, where the right of a stranger is 
 conditioned to take effect on the birth of a child within a certain 
 
 (£) Earl of Lauderdale v. Royles Exrs., 
 19 May 1830, 8 Sh. 771. 
 
 (c) Torrie v. Mwisie, 31 May 1832, 10 
 Sh. 597. 
 
 (d) Cairnie v. Caimie's Trs., 14 Nov. 
 1837, 16 Sh. 1. 
 
 (e) Ballantyne v. Dunlop, 17 Feb. 1814, 
 F;C. As to the effect of legitimation upon 
 such provisions, see Nasmyth v. Connell, 
 19 Dec. 1833, 12 Sh. 243, where it was 
 
 found that the child must elect between 
 the special provision and a prior provision 
 in favour of all the father's children. 
 
 (/) Chapter 41, § 1382, et seq. 
 
 (g) Lord Mounstewart v. Mackenzie, 1707, 
 M. 14,903 ; Grant v. Fyffe, 22 May 1810, 
 F.C. The rule was established in England 
 in the same sense by the decision of Sir.T. 
 Leach, V.-C, in Troioer v. Butts, 1 Sim. & 
 S. 181.
 
 DISPOSITIONS AND BEQUESTS TO CHILDBEN. 
 
 time, the right will not accrue unless the child be actually born chap, xj 
 
 within the time limited. (h) 
 
 SECTION II. 
 OF THE RULE THAT A FEE CANNOT VEST IN CHILDREN NASCITURI. 
 
 1236. The construction oi destinations to children nascituri (in Preliminary, 
 which category all gifts to children unnamed (i would appear to be 
 included) is liable to be affected by the consideration thai the right 
 cannot vesl in a class of persons who are non-existent. One con- 
 sequence of this doctrine is the establishment of the rule according 
 
 to which, in certain ci te destined in general terms to child- 
 
 ren in fee. is held to vest in the parenl or parents to whom the 
 liferent is previously given. To understand the application of this 
 rule, and the exceptions which have been engrafted upon it. our 
 attention must be directed, in the firsl place, to the primary con- 
 structions given to the different forms of destination under whicha 
 liferent interest may be secured to one or both of the parents, and 
 . real or nominal, to the children. 
 
 1237. A destination to spouses "in conjund fee and liferent," I 
 in the general ives the entire fee to the husband, burdened 
 with a liferent in favour of the wife,(&) contrary to the natural " ; 
 meaning of the expression, which would import a joinl pro indiviso 
 right to the fee, with a liferenl in the survivor of the share which 
 
 n 11 to the heirs of the other.(7) And it makes uo difference in the 
 resull whether the conveyance proceeds from the husband himself, 
 from a stranger, (to) or from the wife's father ;(») uor does the form 
 in which the liferenl interest is limited affeel the construction 
 Bui if the subjeel of the conveyance be the wif s si parate esl 
 it is settled that a destination in " conjund fee and liferenl " d 
 do1 transfer the fee to the husband ; the presumption in Biich ca 
 
 /. • 1 I.. .1. Ch. is-, appi .ir from the report of th( 
 
 I. v. opinion, which \* case whether th born 
 
 founded on the limitation of tip- doctrine b< fore the dati of the will, but I 
 in the text of the Civil Law, Dig. lib. 1. children i 
 
 l- hominum), fr. 7. ••<.", i in di athol tl ' 
 
 humanis waa held not t- ail'. 1 1 
 ditur, quoti 
 
 juam alii ante- Madden \ I 
 quam 
 
 fr. 26 -i !!.• rani title, and 
 mentary on tl.. , 
 1 
 
 1780, 2 Pat. 687; 1 ; ' 
 
 D 1807, M 
 
 // 11 Wilton v.
 
 64() DISPOSITIONS AND BEQUESTS TO CHILDREN. 
 
 chap, sxxvni. being, that the grantor intended to reserve the fee, and to give only 
 a liferent interest to the surviving spouse.(p) And an interest in 
 the fee of property conveyed by the husband or a stranger, may be 
 conferred upon the wife by a clause of conditional institution in fa- 
 vour of the survivor, (g) 
 
 ConjunctHferent 1238. The construction of destinations, by which a joint liferent 
 
 with destination . . . . ., , , N 
 
 to children is given to the spouses (without using the word allenarly or only), 
 and a fee to the children nascituri, or children not named, is pre- 
 cisely the same as that of destinations in conjunct fee and liferent ; 
 that is to say, a conveyance by a stranger to spouses in conjunct 
 liferent gives the fee to the husband, unless the survivor is condi- 
 tionally instituted as fiar in express terms ;(r) while, on the other 
 hand, a conveyance by either of the spouses to themselves and the 
 longest liver in liferent, with a nominal fee to the heirs of the mar- 
 riage, leaves the fee untransferred in the person of the granter.(s) 
 Restriction to With reference to this class of cases, it is sufficient to observe, that 
 aiienariy makes the construction of the word "liferent" as equivalent to "fee," 
 hferenter a fidu- w ] iere th e f ee j s ex fiqura verborum given to children nascituri, was 
 
 ciary fiar. J J » 
 
 originally adopted hy the Court in order to prevent the anomaly of 
 a fee of feudal estate being kept in suspense until the birth of child- 
 ren, (t) Afterwards, when the intention to limit the parents' in- 
 terest to an estate for life was strongly manifested, as by the use of 
 the word " allenarly" or " only" in connection with conjunct life- 
 rent, the fiction of a fiduciary fee to be taken by the liferenter for 
 behoof of the unborn children was admitted, (u) And it has lately 
 been ruled that where a nominatim disponee is associated with the 
 
 (p) Cameron v. Young, 28 June 1837, in the construction) ; Deivar v. M'Kinnon, 
 15 Sh. 1205; Murray v. Blair, 4 April 5 May 1825, 1 W. & S. 161 (where the 
 1739, 1 Cr. St. & Pat. 251 ; Myles v. Cal- rule was applied to a destination to the 
 man, 12 Feb. 1857, 19 D. 408. " heir-male of the marriage," under reser- 
 (q) Burrowes v. M'Farquhars Trs., 6 vation of the parents' liferent, proceeding 
 July 1842, 4 D. 1484; M 1 - Gregory. Forres- upon an obligation to dispone). 
 ter, infra; Scott v. Maxwell, 22 May 1850, (■«) Newlands v. JVewlands' Cr., 1794, M. 
 12 D. 932. 4289 ; 26 April 1798, 4 Paton, 43 ; Thorn- 
 ier) M'Gregor v. Forrester, 13 April 1835, son v. Thomson, 14 Dec. 1812, 1 Dow, 417, 
 1 S. & M'L. 441, affirming 9 Sh. 675. and 5 Paton, 654 ; Watherston v. Renlons, 
 (s) Mackellar v. Marquis, 4 Dec. 1840, 1801, M. 4297 ; Harvie y. Donald, 26 May 
 3 D. 172; Jameson v. Strachan, 27 Jan. 1815, F.C. ; Allardice v. Allardice, 1795, 
 1835, 13 Sh. 318. Bell's Fol. Ca. 156 ; Napier v. Scott, 14 Feb. 
 (t) Frog's Crs. y. His Children, 1735, M. 1826, 2 W. & S. 550; Dixon v. Fisher, 1 
 4262; Lillie v. Riddell, 1741, M. 4267; July 1833, 6 W. & S. 431. The word 
 Lindsay v. Dott, 1807, M. " Fiar," App. " alimentary " seems to be of equivalent 
 No. 1 (where it was held that the circum- force; Douglas y. Sharpe, 9 Mar. 1811, 
 stance that children were in existence at Hume, 173; Kennedy v. Allan, 19 Feb. 
 the execution of the deed, and that none 1825,3 Sh. 554, N.E. 383; Gerranx. Alex- 
 were afterwards born, made no difference ander, 1781, M. 4102.
 
 DISPOSITIONS AND BEQUESTS TO CHILDREN. 647 
 
 children in the destination, lie takes the fee for behoof of himself chap, mvni, 
 and the children who may come into existence.(v) 
 
 1239. But a restriction of an estate in " conjunct fee and liiV- ■ , ■ 
 rent" to the liferent use aUenarly of one or botl 
 
 will not prevent the fee from vesting in the spouse who. as formerly li " li,i: . 
 explained, is entitled to it in respect of the source from which thereat, 
 property is derived. For as the restriction to a liferent use is in- 
 consistent with the force of a destination in " conjunct fee and life- 
 rent," the Court will endeavour to reconcile the expressions by sun- 
 posing an intention to confer a fee on the party from whom the 
 estate has come, or on the husband j'/'"j>f< r f rsonce dignitaU m. and 
 to restrict the righl of the ether to a liferenl use.(y) And it would 
 seem that, even in a destination to the spouses by one of themsi Ivi - 
 " in conjunct liferent," the restrictive construction which has been 
 put on the word "aUenarly" will yield, as in thi case oi other lite- 
 rent rights by reservation, to the presumption which a power oi dis- 
 posal is held to furnish of the granter's intention to retain the fee. (z) 
 
 1240. The destinction established between the words - " Liferenl " E 
 and "liferent use only" in relation to heritable estal 
 
 mately extended to all family provisions by way of direel destina- 1 
 tion or bequest, irrespective of the uature oi the subjeel oi convey- 
 ance. "The decisions of the Scutch Courts," said Lord Campbell, 
 •■ make no distinction between land and money in this i ind 
 
 with regard to money, treat a disposition to the parenl for hie. 
 remainder to the children nascituri, without the word 'aUenarly/ 
 as in effect a simple destination, which may be defeated by the 
 parent who is considered the fiar."(a) The extension of the feudal 
 maxim, thai a fi e cannot remain in suspen jtinations oi por- 
 
 Bonalty,was regretted bj manj of the eminenl lawyers of the ] 
 
 generation; so much so, that. Lord Corehouse said thai the C i 
 
 would decline to go further in thai direction than was warranl 
 by the exad terms oi former judgments, or to extend a doctrine in 
 itself 30 questionable.^) Eowever, il d that the con- 
 
 struction of words determining the extenl oi the inl ao1 
 
 affected by tic- quaUty oi the subjeel of conveyance. 
 
 (v) •■ ■ MMiken, 24 D I y 
 
 l-, I 8 Macph. 826; Macgowan v. Robb, L. TulliaUanv. I < 
 1 Macpb. ill. "J Macph. 948. 
 
 I ; 19, P.O.; M- I 
 
 , ,. 28 Jun i ■ ■ I 
 
 i. 
 / / /. 26 Maj 1868, I 
 
 / i | Q 
 / ■ Itr, 1
 
 6±S DISPOSITIONS AND BEQUESTS TO CHILDREN. 
 
 c ii.vr. xxxvni. 1241. A dot iiiation to a parent in liferent, and to his child or 
 Effect of a children nominal im in fee, receives effect according to the natural 
 grant in liferent, meaning of the words, whether the conveyance proceed from a 
 
 with destination ° . 
 
 over to children stranger or from the parent himself ;(c) though in the latter case, 
 as the liferent is one by reservation, the adjection of a power of 
 disposal is held equivalent to a reservation of a fee-simple interest 
 during the granter's lifetime. (d) The construction is not affected 
 by the circumstance of children nascituri being associated in the 
 conveyance with children named, the fee in the latter being suffi- 
 cient to support the title of the unborn children ; and the use of 
 the word " allenariy" in the grant of the liferent is in this case un- 
 necessary, (e) 
 Effect of omis- 1242. Where h father, being infeft, conveys to himself in life- 
 
 chiidren as fiars, rent, for his liferent use allenariy, and to his children in fee, and 
 upon this conveyance takes infeftment in liferent only, and in the 
 instrument of sasine no mention is made of the children's right to 
 the fee, the lands remain attachable by the father's creditors. (/) 
 But in a question of succession, the personal right remains in the 
 children, and may be taken up by declaratory adjudication, or, in 
 the case of an heir, by service to the father, (g) No special title is 
 necessary for vesting the fee of a legacy under a destination of this 
 nature, (h) 
 Continuing trust 1243. The efficacy of words of express trust to restore the natu- 
 wOTdToTexpress ra ^ meaning of the word " liferent" in marriage settlements, depends 
 restriction. upon the form in which the purpose of the trust is expressed. The 
 interposition of a continuing trust in the liferenter (?) or in trustees, 
 is in most cases sufficient to preserve the contingent fee for unborn 
 children, without the employment of the taxative word allenariy. (&) 
 We mean, where the settlement provides either expressly or by 
 implication for the retention of the liferented funds in the hands of 
 the trustees until the fee emerges ; otherwise the destination is 
 governed by the rules of construction applicable to direct destina- 
 tions. 
 
 (c) Mackintosh v. Mackintosh, 28 Jan. (h) Andrews v. Lawrie, 12 Dec. 1849, 12 
 
 1812, F.C. D. 344. 
 
 ((/) dimming v. Adv.-Genl. 1756, M. (0 Mem v. Taylor, 23 Feb. 1830, 4 W. 
 
 15,854, 4268 ; Baillie v. Clark, 23 Feb. & S. 22 ; Ross v. King, 9 D. 1327. 
 
 1809, F.C. ; Dickson v. Dickson, 7 Feb. (7c) Ramsay v. Beveridge, 3 March 1854. 
 
 1780, Hailes 865. 16 D. 764; Watson v. Watson, 8 March 
 
 (c) Dykes v. Boyd, 3 June 1818, F.C. 1854, 16 D. 803 ; Douglas v. Sharpe, 9 Mar. 
 
 (/) Falconer v. Wright, 22 Jan. 1824, 2 1811, Hume, 173 ; Jamieson v. Strachan, 27 
 
 Sli. 633, N. E. 537 ; Houlditch v. Spalding, Jan. 1835, 13 Sh. 318; Cameron v. Young, 
 
 9 June 1847, 9 D. 1204. 28 June 1837, 15 Sh. 1205 : Ewan v. Wait, 
 
 (, n Dundas v. Dundas, 23 Jan. 1823, 2 10 July 1828, 6 Sh. 1125. 
 Sh. 145, N. E. 133.
 
 DISPOSITIONS AND BEQUESTS TO CHILDREN. 
 
 W. XXXV11I. 
 
 V. //,. 
 
 1244. It lias been solemnly decided, that by no latitude "1 con- om 
 stmctiou can a simple direction to trustees to pay or convt i durins 
 
 . - , . ' .->,.-- m the 
 
 the subsistence of the marriage, to a parent in liferent, and tl 
 children in fee, receive effect as a trust of the Fee for the children. w 
 For, it is argued, the trustees are bound to execute a conveyance 
 in the precise terms of the destination ; and as soon as the fund lias 
 been transferred to the parent in terms of the destination, it be- 
 comes his own by virtue of the artificial rule of construction already 
 adverted to. (I) Ib.wvwr, it is settled that a conveyance to trust 
 in implement of a marriage-contract obligation to invest money for 
 behoof of a parent in liferent and children in fee, or to pay over the 
 fund at the dissolution of the marriage, is to 1"- construed according 
 to the intention, on the principle that guides the Courl in the con- 
 struction of directions for the execution of entails or settlements of 
 land.(wi) In the case of a direction to pay at the dissolution of a 
 marriage, when the beneficiaries are specifically ascertained, there 
 does not seem to be any room for the application of the doctrine 
 that a fee cannot remain in pendente. 
 
 1245. The latest decision upon the effecl of a liferent destine 
 tion embodied in a trust-deed, is that of Ferguson's Trs. x. Hamil- 
 lijii.(n) <>ne of the directions >>\ the settlemenl was, "to pay to 
 the persons after-named and described respectively, the se\ 
 sums after specified," a1 tin- Eirsl term after the elapse of twelvi 
 months from the testator's death. In the enumeration of benefi- 
 ciaries following this direction, there occurred the following desti- 
 nation : — " To James Hamilton, tailor in [rvine, in liferent, and Lis 
 children, equally anion-- them, in fee, £5000. To John Eamilton, 
 baker in [rvine, in liferent, and bis children, equally anion- them, 
 in fee, £20,000." As to the legacy bequeathed to tli-' family ol 
 James Eamilton, who had no children when the succession open* d, 
 tl,,.,-,. could I- no doubl it was payable directly and immediately t" 
 himself in fee. A- to the other legacy, it was argui d, thai a- John 
 Hamilton had sevi ral children surviving the i- atator, tl < 
 to his family al leasl oughl not to be construed on the same prin 
 ciples a. ;. bequesl to children nascituri, and reliance v, I on 
 the cases oJ Dykes v. Boyd, and Scott \. Napier,(o) which • 
 
 i /' Button, 11 !•■•'•. L847, Bh. 120 I ; '' 
 
 g i). 68 • K /' ■ •/ ■ '/ LacfUan, 1 I J in. L8 18, 12 I' 
 1881 '• 2 ■ I 
 
 II! 
 I. 1219; ■' 
 / D i D. 
 
 / 
 / S ' 
 
 ;
 
 650 DISPOSITIONS AND BEQUESTS TO CHILDREN. 
 
 ohap. xxxvni. blishcd the principle that in the case of any of the children being 
 mentioned nominatim in the settlement, their interest was sufficient 
 to keep the fee distinct from the liferent. But it was ruled that, 
 in consequence of the direction being for an immediate payment in 
 terms of the destination, the fee vested in the parent, and the judg- 
 ment was affirmed in the House of Lords. 
 Implied trusts 1246. The effect of a continuing trust in modifying the common 
 
 vaticmo?fflerent ^ ;IW instruction of destinations in liferent and fee, was also the sub- 
 interests. j ec {, f consideration by the Second Division of the Court in Ramsay 
 
 Ramsay v. J _ ^ , u 
 
 Beveridge. v. Beveridge.(p) The truster, by a deed of direct conveyance, gave 
 all his property to his two brothers and his sister in liferent, without 
 taxative words, and to the children of the sister procreated, or to be 
 procreated of her marriage, in fee ; and ho also appointed the life- 
 renters or the survivor of them, whom failing the fiars, to be his 
 executors, under certain conditions and declarations, which virtually 
 raised a continuing trust in the executors. One of the declared pur- 
 poses was, that the annual rents and interest arising from his estate 
 should be divided into three parts, and applied as above mentioned ; 
 provision being also made for the events of the survivance of any of 
 the joint liferenters, for the management of the estate during the 
 minority of the children, and, finally, for a division of the residue 
 amongst the children, after the death of the longest liver of the 
 liferenters. The Lord Ordinary held that, as the deed contained a 
 direct conveyance to the disponees, without the use of words in the 
 dispositive clause limiting their right to a fiduciary fee, they were 
 entitled to the fee-simple estate under the terms of the destination. 
 But the judges of the Second Division were of opinion, that the de- 
 claration of trust embodied in the conveyance must receive effect as 
 a qualification of the general words of disposition, and that, when 
 read in the light of the testator's intention, it imported a restriction 
 of the interest of the disponees to a bare liferent. 
 
 Opinions of the 1247. Referring to the terms of the declaration of trust (" that 
 these presents are granted under the express conditions and declara- 
 tions after written"), Lord Justice-Clerk Hope thought it was too 
 clear for argument, that such a clause must qualify the right given 
 ex figura verborum in the preceding words of conveyance ; because, 
 had the grant even been in the form of a fee, the fiar's interest 
 might have been modified and defined to any conceivable extent 
 by the declaratory clause, (q) The dictum of Lord Cottenham, in the 
 
 not named in the settlement ; but the Lord J.-C. Inglis in Donaldson's Trs. v. 
 
 direction was to hold, not to pay. Cuthbertson, 2 Macph. 435. 
 
 (p) Ramsay v. Beveridge, 3 March 1854, (q) 16 1). 771. 
 
 16 D. 764. See also the observations of
 
 DISPOSITIONS AND BEQUESTS TO CHILDREN. 651 
 
 case of Mackintosh v. Grordon,(r) to the effect that the word " al- chap, hitiii . 
 lenarly"was the only expression of intention hy which a trust could 
 be created in the nominal liferenter, was thought to be inconsistent 
 with principle and with previous authorities; and it was ohserved 
 by Lord Wood, that if the word "allenarly" had sufficient force to 
 restrict the parent's right to a liferent, it was impossible to hold 
 that a clear declaration of intention should not have the same foi 
 when introduced into the deed, as one of the conditions and burd 
 under which the conveyance was given.(s) In a case decided soon Watson v. 
 afterwards, where a residue was left to the testator's daughters under 
 the declaration that one-half of each share was vested absolutely, 
 the other half " being left to each of them in liferent, and to their 
 children in fee," but not to 1m- payable till after the death of the 
 testator's widow and the majority of the youngest daughter, the 
 Court again gave effect to the apparent intention, and found that 
 it was the duty of the trustees to retain the second half of the 
 daughters' shares for the benefit of their children; on tin- ground, 
 apparently, that the direction to pay over the one-half of the pro- 
 vision implied that the other half was to be retained for the purp 
 of investment, {t) 
 
 SECTION III. 
 
 WHAT CLASS OF OBJECTS IN RELATION TO THE PERIOD OF BIRTH 
 51PREHENDED IN A BEQUEST TO I HILDREN. 
 
 1248 In the case of a designative d< stination to the children of si i 
 A., when and in what circumstances is it to lie underst I as com- 
 prehending all thechildren existing or who may come into exist< 
 
 an d when i- it to I- confined in construction to the childn 
 
 I sriod of distribution ? In the detenu 
 involving this question, much weighl is naturally allowed to the 
 elemenl of intention; and the rules which have been established 
 must be I rather as guides to the discovery oi the intention 
 
 than a- positive canons of construction. 
 
 1249 To begin with the simpL st case: where the destination 
 contained in a will, and is to take effect at the U 
 
 ; ,t ; , pr , scribed period, and where there were children in i 
 :,, thedafc of the execution of the will, the presumption 
 those children alone are entitled who are ab 
 BUC( the distribution ot the • 
 
 L7 April U 
 
 l'l 
 
 799
 
 652 DISPOSITIONS AND BEQUESTS TO CHILDREN. 
 
 CHAT. XXXVIll 
 
 In the case of Wood v. Wood, a testator provided, with respect to 
 that portion of his estate of which his wife had a liferent under 
 their marriage-contract, that the money was at her death to he 
 given " to my nephews and nieces — that is, to the children of my 
 brothers I. W. and P. W.," and he gave his widow a power of ap- 
 portionment, which she did not exercise. One of the brothers pre- 
 deceased the testator, leaving issue ; the other survived both the tes- 
 tator and his widow, leaving issue, some of whom were born before 
 the death of the liferentrix, and some thereafter. It was held by the 
 Second Division of the Court that the death of the liferentrix was 
 the period appointed for distribution ; that the bequest was to be 
 construed as in favour of the children in existence at that period, 
 and that children Subsequently born were not entitled to share in 
 the distribution. (x) 
 Authorities 1250. The decision to which we refer, while entitled to rank as 
 
 children born a leading case for its lucid exposition of the principles applicable to 
 after succession fj ie question, did not introduce any new rule of construction. The 
 
 vests, not en- x ... 
 
 titled to partici- presumption in favour of children existing at the period of vesting 
 is established by the earlier cases on the vesting of designative be- 
 quests, and the exceptions introduced by later decisions do not 
 destroy the rule. In Mackenzie v. Holte's Legatees, {y) the destina- 
 tion was to the children of parties named, to be paid upon the ex- 
 piration of a liferent right, and the judgment of the Court was, that 
 the children alive at the death of the liferentrix were entitled ; while 
 it is assumed in the statement of the case that the children subse- 
 quently born would not have participated in the division. In a 
 subsequent case, reported by Hume, (z) it was held that a legacy 
 given to certain persons nominatim, as individuals, and " to the 
 children" of another person, embraced the whole children per capita, 
 each child alive when the succession opened being entitled to par- 
 ticipate with the nominatim legatees, and this decision also pro- 
 ceeds on the footing that children post nati would not participate. 
 
 (x) Wood v. Wood, 18 Jan. 1861, 23 D. 2 Vera. 705, in the case of a pecuniary 
 
 338. Under the law of England, also, an legacy; and more recently, in relation to 
 
 immediate gift to children, whether to the destinations of residue in Armitage v. 117/- 
 
 children of a deceased person or of a per- Hams, 27 Beav. 346 ; and see Shepherd v. 
 
 son in life, and whether there he a gift over Ingram, Amh. 448 ; Genery v. Fitzgerald, 
 
 in case of the decease of any of the children Jacoh, 468. There appears to be some 
 
 under age or not, comprehends the child- doubt as to whether the rule applies to the 
 
 run living at the testator's death (if any), case of a failure of objects at the expira- 
 
 and those only ; 2 Jarman on Wills, 3d tion of a life interest ; see the subject dis- 
 
 ed. p. 142, and cases there cited. Where cussed in 2 Jarman, p. 157 et seq. 
 
 no objects exist at the time of the testator's (y) Mackenzie v. Holte's Legatees, 1781, 
 
 death, the gift will embrace all the child- M. 6602. 
 
 ren who may subsequently come into ex- (z) M'Courtie v. Blackie, 15 Jan. 1812, 
 
 istence, as was held in Weld v. Bradbury, Hume, 270.
 
 DISPOSITIONS AND BEQUESTS TO CHILDREN. 
 
 These decisions were followed by the case oi Grant \ . sxxviu. 
 
 where it was held, on the construction of a designative bequest 
 children, that a child in utero at the opening of the succ< ssion 
 entitled to the same benefit which it would have taken it' it had 
 then been Lorn. Had the bequest been regarded as embracing all 
 the children of the family, whether born before or after the p< riod 
 of distribution, there would not have been any necessity for con- 
 sidering the special case of a child in utero a1 thai period. 
 
 1251. The rule according to which the benefil of a designative Extensa nof 
 bequest is confined to persons existing at the period of distribution i'. : ~,: ;: 
 
 is not peculiar to designations of "children," bu1 extends, as we hav< 
 elsewhere seen, to designative bequests to "issue, (o) to "heirs,"(c) u> "issue, 1, 
 and to collateral relations such as "nephews and nieces ; "(d) the 
 principle being, that where a testator directs his estate to be <li\ ided 
 
 amongst a class of objects at a certain time, he musl be undersl I 
 
 as designating the individual objects thai maj be in i xistence at 
 that time. 
 
 1252. In cases where children are conditionally instituted in The point 
 place of their parents, the point does not arise, since, after the chiidi 
 death of the parents, the class, of course, do< s not increase.(< I A 
 provision by a testator to his own children is obviously in the Bame 
 position, with respect to the ascertainment of the class being com- 
 plete al the time the Lnteresl vests. Where, in a provision to child- 
 ren, the sum was fixed at £5000 in the evenl of there being only 
 
 one child of the marriage, to be increased to 610,000 in case of 
 there being three or more children, subjecl to the usual conditions 
 oi survivorship, and three children were born, onlj one of whom 
 survived the dissolution of the marriage, it was held thai the sur- 
 viving child was a conditional institute in the largi c provision. 
 
 1253. It would appear thai where a testator baa specifically ' 
 
 ..... 
 pointed out the objects of the class amongsl whom the division is I i 
 
 be made, e.g., by directing the fund to be divided al a certain r( 
 
 time among the "children surviving al the iim< ."(</) or ami 
 
 the children or heirs "then Living"(A) or "in existence,"(t) such 
 
 designation is inconsistenl with the supposition oi an} righi in thi 
 
 (a) Orani \. Fyffe, 22 Maj L810 ! ; 
 
 (/,, Macdougall v. Macdougall, 6 Fob. Sh. I ■"■ I 
 i ph. 872. >'■ 
 
 < , 28 June L826, I L4 1 
 Sh. 1 19, N. E. 120; Kirkw i E >»:/. '■ ' '■' '" M 
 
 I, L842, I D. 878 Black v. Vol 
 
 J Feb. 1844, 6 D. I '' ' 
 
 ;/ D ...//, J .1,,,,. 1861 D 
 i D. 971 ii ii D riot ii " 
 
 ... Dougla ,81 March 1864,2 Ma«
 
 654 
 
 DISPOSITIONS AND BEQUESTS TO CHILDREN. 
 
 CHAP. XXXVIII 
 
 Whore will con- 
 sistent with 
 supposition of 
 distribution 
 
 after parent's 
 death, all the 
 children are 
 entitled to par- 
 ticipate. 
 
 children born after the specified period. And where, in a certain 
 event, it was provided that the residue of the testator's estate should 
 "fall and accrue to the lawful children of J. B., and to the sur- 
 vivor of them, whom failing to the said J. B. himself," it was justly 
 considered that the destination must receive a construction consist- 
 ent with the possibility of the father succeeding on the failure of 
 his children, and the estate was accordingly held to vest in the 
 children in existence at the period of the testator's death. (k) 
 
 1254. Where no precise period of distribution is prescribed, or 
 where the scheme of disposition is consistent with the supposition 
 of a final distribution after the death of the person to whose child- 
 ren the subject is given, a bequest to " children" will in general 
 be construed as comprehending all the children of the person named. 
 This construction will, of course, prevail where the bequest is ex- 
 pressly conceived in favour of children nascituri, or " procreated 
 and to be procreated."(7) And wherever the estate is to be liferented 
 by the parent before the children are let into possession, a strong 
 presumption arises that the legacy is in favour of issue generally, 
 and is not confined to those in existence at the death of the testa- 
 tor, (m) In cases where it is ascertained that there were no child- 
 ren in existence at the death of the testator, (n) or at the execution 
 of the will,(o) the circumstance constitutes a strong argument in 
 favour of the claims of children nascituri ; and as it is an improb- 
 able supposition that a testator should propose to make a selection 
 from a class of persons which was not in existence at the time of 
 making his will, the fair inference in such cases is, that all the 
 children of the person named, at whatever time born, are intended 
 to share in the distribution, (p) But it is not on this account to be 
 supposed that the vesting of the fee remains in suspense until the 
 death of the parent. It may be that it is suspended by reason of 
 
 (k) Biggars Tr. v. Biggar, 17 Nov. 1858, 
 21 D. 4 ; see p. 8, per Lord Colonsay. 
 
 (I) Shaw v. Shaw, 6 Sh. 1149 ; Kennedy 
 v. Crawford, 20 July 1841, 3 D. 1266. 
 
 (to) Scheniman v. Wilson, 25 June 1828, 
 6 Sh. 1019 ; Martins Trs. v. Milliken and 
 Carleton v. Thomson, infra. The same 
 principle of construction appears to prevail 
 in the law of England. Where, says Jar- 
 man (3d ed. vol. 2, p. 143), a particular 
 estate or interest is carved out with a gift 
 over to the children of the person taking 
 that interest, or the children of any other 
 person, such gift will embrace not only the 
 objects living at the death of the testator, 
 but all who may subsequently come into 
 
 existence before the period of distribution. 
 And this rule of construction applies equal- 
 ly to limitations of real estate, to direct 
 gifts of personalty, and to executry gifts 
 (by way of conditional institution) in de- 
 feasance of a prior gift ; 2 Jarman, 144, 
 citing Haughton v. Harrison, 2 Atk. 329 ; 
 Ellison v. Airey, 1 Ves. sen. Ill ; and Bald- 
 win v. Rogers, 3 D. M. & G. 649. 
 
 (n) Martin's Trs. v. Milliken, 24 Dec. 
 1864, 3 Macph. 326 ; Scott v. Scott, 7 Feb. 
 1843, 5 D. 520. 
 
 (o) Carleton v. Thomson, 3 Macph. 514, 
 30 July 1867, 5 Macph. ILL. 151 ; L.R., 
 1 Sc. Ap. 232. 
 
 (;j) 3 D. 1271, per Lord Fullerton.
 
 DISPOSITIONS AND BEQUESTS TO CHILDREN 655 
 
 some contingency in the destination, <v/.. by a provision of but- peat . x: 
 vivorship.(g) But the mere circumstance of a righl being given 
 which extends to children who may be thereafteT bom, will not 
 prevent the succession from vesting in the objects of the class who 
 are in existence. In such cases, where the legal estate is given to 
 trustees, each child is held to take a vested interest in the est 
 at birth, subject to be diminished by the emerging claims of child- 
 ren subsequently born,(r) and where the settlemenl is in the form 
 of a direct conveyance to the beneficiaries, the nominatim liar, or 
 the liferenter, as the case maybe, takes a fiduciary fee for behoof 
 of the objects of the class, according to the rules which were previ- 
 ously explained in treating of the subjeel of destinations to children 
 nascituris.(s) 
 
 1255. The circumstance, that a parent to whom a liferenl inter- Vesting of 
 
 .... i • , , 1 • ■ l i ■ S inter- 
 
 est in a provision is given repudiates the provision and claims ,„, ,„,, 
 
 legitim in place of it, does not affect the vesting of the gift of the ^^iL^'i'ii. 
 
 fee in the children. Their interests are precisely what they would 
 
 have been if the gift of the liferent had been accepted.(£) 
 
 1256. Referring to the ensuing chapters, upon the subjects ofHowti 
 
 , , . . . . i ii going ru 
 
 survivorship and the vesting of testamentary provisions, we shall affec tcd by tho 
 here merely point out the results of the application of the preced-°] 
 ing rules to cases in which the vesting of children's provisions is wmorehip. 
 made contingent on survivorship or on Borne other element of con- 
 tingency. 
 
 1257 (1) Where the destination is contained in a contract of M 
 
 . . . 
 
 marriage which makes provision for the children ot the m 
 
 but without Betting apart a fund in the granter's lifetime, the provi- 
 sion vests in tho children surviving at the dissolution of the mar- 
 riage.^) 
 
 1258 Where marriage-contract provisions are secured to th< m 
 children, either by a direct conveyance to the parent or parents m 
 liferent, for his or their liferent use only, and to the children in I 
 
 ,, r by a conveyance to trustei - in trust for the children of the m 
 
 . ,.;,,.), child takes a vested inten si at birth, subject to diminu- 
 tion upon the birth of o1 ber children. 
 
 (q) 1 1 ., chap. 1126 I 
 
 (r) Carleton v. T 
 
 I. : 3 
 
 Dicl I « 
 
 it i 
 
 gowan v. Robb, 29 March 1864, 2 Macpb. I M 
 
 R 
 
 Euan • R " 10 !'•
 
 656 
 
 DISPOSITIONS AND BEQUESTS TO CHILDREN. 
 
 CHAP, xxxvm. 
 
 Bequest for im- 
 mediate distribu- 
 tion. 
 
 Provision of fee 
 to the children 
 of a liferenter. 
 
 Effect of power 
 of division given 
 to parent. 
 
 Provision 
 limited to child- 
 ren surviving 
 the parent. 
 
 Effect of condi- 
 tion making 
 provision pay- 
 able at majority. 
 
 1259. (3) In the case of a bequest to the children of a person nam- 
 ed, where the distribution is immediate, and no intention is expressed 
 to include objects born after the death of the testator, the legacy 
 vests in the surviving children at the death of the testator, to the 
 exclusion of those previously deceased or subsequently born.(y) 
 
 1260. (4) Where a liferent is given to the parent, and the desti- 
 nation to the children is not contingent on survivorship, the legacy 
 vests « morte testatoris in the objects surviving the testator,(a) but 
 subject to a claim of participation on the part of children who may 
 subsequently come into existence, (a) assuming that there is no 
 expression of an intention to exclude them. (b) 
 
 1261. (5) A power of division given to the parent does not prevent 
 the fund from vesting in his lifetime ;(c) on the contrary, the parent, 
 if he exercises the power, must allot a share to the representatives 
 of a child previously deceased, (d) 
 
 1262. (6) Where the legacy is to children surviving at the 
 death of a parent to whom a liferent is given, the fund will vest in 
 the children surviving the liferenter, whether born before or after 
 the testator's death ;(e) and the same rule applies in the case of the 
 gift being followed by a destination over conditioned to take effect 
 on the death of the parent without leaving issue. (/) 
 
 1263. (7) The circumstance of the legacy being made payable 
 to the children at majority, if it necessitates a postponement of the 
 distribution to a period subsequent to the death of the testator, 
 argues an intention to include children born after his decease.^) 
 
 Feb. 1862, 24 D. 519, and cases there 
 cited; Romanes v. Riddell, 13 Jan. 1865, 
 3 Macph. 348 ; Sivright v. Dallas, 27 Jan. 
 1824, 2 Sh. 643, N.E. 543, and F.C. 
 
 (y) Mackenzie v. Ilolte's Legatees, 1781, 
 M. 6602, and other cases cited supra, \ 1250 ; 
 Fyffe v. Kerr, 13 July 1841, 3 D. 1205 ; 
 Mind's Trs. v. Leith,b Dec. 1866, 5 Macph. 
 104. 
 
 (z) Forbes v. Lvckie, 26 Jan. 1838, 16 
 Sh. 374 ; Ewan v. Watt, 10 July 1828, 6 
 Sh. 1125. 
 
 (a) Colder v. Dickson, 4 D. 1365, per 
 Lord Jeffrey; Baillie v. Seton, 16 D. 220, 
 Lord Rutherford's note ; Hunter's Trs. 
 v. Carleton, 3 Macph. 520, per Lord Currie- 
 hill. But it must be remembered that this 
 construction does not apply to the case of 
 a fee given to children under burden of 
 a liferent to a stranger ; see Wood v. Wood, 
 23 D. 338 ; Watson v. M'Dougall, 18 D. 
 971, and observations supra, \ 1249 et seq. 
 
 (b) Watson v. Marjoribanks, 17 Feb. 
 
 1837, 15 Sh. 586. Here the destination 
 was to the children, or "such of them as 
 shall survive me," an expression which im- 
 plied a definitive vesting of the fee at the 
 death of the testator. 
 
 (c) Sivright v. Dallas, 27 Jan. 1824, F.C, 
 2 Sh. 643, N.E. 543. But an absolute 
 power of disposal in the parent is incom- 
 patible with the immediate vesting of the 
 fee ; Robertson v. Houston, 28 May 1858, 
 20 D. 989, and Lord Curriehill's observa- 
 tions, p. 994. 
 
 (d) Watson v. Marjoribanks, 17 Feb. 1837, 
 15 Sh. 586. 
 
 (e) Johnston v. Johnston, 9 June 1840, 
 2 D. 1038. 
 
 (/) Thomson v. Scougall, 12 Sh. 910; 
 31 Aug. 1835, 2 S. & M'L. 305; Proven 
 v. Proven, 14 Jan. 1840, 2 D. 298 ; Balfour 
 v. Balfour, 20 Jan. 1864, 2 Macph. 467. 
 
 (g) Scheniman v. Wilson, 25 June 1828, 
 6 Sh. 1019; Shaw v. Shaw, 6 Sh. 1149 ; 
 Kennedy v. Crawford, 20 July 1841, 3 D.
 
 DISPOSITIONS AND BEQUESTS TO CHILDREN. 
 
 
 1264. In conclusion, where there are no objects answering the chap, sxxvm. 
 
 designation at the death of the testator, hut a possibility of children .",-, 
 . ... . J "i 
 
 being born, the provision is considered to he in favour of children 
 
 nascituri, and the trust must be kept up during the lifetime of the d 
 parent to await the event of the birth of issu< .(h) But where there ! 'i\. 
 was no probable expectation of issue, the Courl has authorised the 
 payment of the interest of the fund to a conditional institute, on 
 caution to repeat in the event of issue of the designated class com- 
 ing into existence. (*) And where a legacy is held to be for behoof 
 of all the children of a person named, and from the age oi the 
 mother there is no prospect of any addition being made to the 
 family, the children in existence (and in whom, as we lia\ 
 a right is vested) are entitled to payment upon finding security, or. 
 if the Court think fit, upon a personal undertaking to account to 
 the children who may be born after t ho distribution of the estate. (k) 
 
 1265. "With respect to the destination of the intermediate in- ';■ - 
 come of the subject of the bequest, where thi re are no objects in ■ i iccumu- 
 existence at the period of distribution,^) it is now settled that, in J;','^.^. 1 ' 
 the absence of any special destination, the imome follows the prin- 
 cipal ami falls to he accumulated for the purposes of the trust.! 
 
 12G0. The condition of payment at majority- 
 lias been held not inconsistent with vest- 
 ing in tin: class; Maitlandv. M'Dermaid, 
 28 I». 736 : Bee also Matthew v. Scott, 21 
 1'. I., is it. 6 D. 718. [n England the old 
 
 was, that v. hcrevi.-r the [in 
 tribution \ med until the attain- 
 
 ment of a given age by the children, the 
 gifl would apply to those who were living 
 .•a the d( ath oi the h tator, or v. bo m 
 come int'i existence before the firsl child 
 attained that age ; but the li udi ucy of the 
 later d< ci rion appi ai to be in favour of 
 iding all the children v. ho attain the 
 and this consti rally pre- 
 
 containing 
 othi r i h mi ht- of co 2 Jai man 
 
 on Wills, 8d ed. p. 1 16 154. 
 
 (h) 8, !,7 Feb. 1848,5 D 
 
 Mai .1 Dec. 1864, 8 
 
 Macph. 
 
 .. Blackwood T l I 
 June 1888, 1 1 Bh. 69 I i judgh* at, 
 for which it i . difficult to find a principle, 
 
 irt of Lord M< adow- 
 bank, who d« lai A 1 ' 1 1 
 
 much right to order the mom j to bi 
 to the Cli il; at the I ■ in 
 
 Vol.. I. 
 
 whom no right had legally vested. His 
 Lordship observed, v ith n fi n ncei N 
 man's case, that the p< rson to w bo 
 
 female, and 
 afti t a ci rtain there 
 
 could be uo ii mi : 1 ui t lial ae to a male 
 there was uo such rule. 
 
 Schenimanv. Wilson, 25 June 1858 
 6 Mi. 1019; Shaw \. Shaw, 6 Bh. II 19. 
 I 
 
 the in- 
 terval between the birth 
 
 ; nl has 
 
 to I" anj di tincl authority in the law oi 
 
 I. In Ei 
 early co ic (and thi 
 red in principle), that the childn n 
 I lie whole ; I 
 
 titled to sh an in tlio 
 
 ■ 
 
 -../'■■ i 
 
 I 
 well, 12 Bcav. 104. 
 (m) /
 
 i;;>s 
 
 DISPOSITIONS AND BEQUESTS TO CHILDREN. 
 
 i-hap. xxxvin. The case of Pursell v. Newbigging, in which this doctrine was esta- 
 blished, applies to heritable estate as well as to the residue of per- 
 sonalty. (») Questions of this kind cannot often occur in relation 
 to bequests to children, seeing that the interest of the fund is most 
 commonly given to one of the parents at whose death the money 
 or subject vests in possession. In the case of a pecuniary legacy 
 to children unborn, as the sum of money actually given would not 
 vest until the birth of the child, it would most probably be held 
 that the interest of the fund set apart for payment of the legacy 
 should fall into the residue, (o) 
 
 Statement of the 
 question. 
 
 Whether the 
 righl (if issue 
 succeeding as 
 conditional in- 
 stitutes may vest, 
 while that of 
 the co-legatees 
 is suspended. 
 
 SECTION IV. 
 CONDITIONAL INSTITUTION OF CHILDREN— WHETHER THE RIGHT 
 IS CONTINGENT ON SURVIVANCE OF THE PERIOD OF DISTRI- 
 BUTION. 
 
 1266. Clauses of conditional institution of children or issue, on 
 the failure of the parents, have given rise to two interesting gene- 
 ral questions. One of these — the question whether, or in what cir- 
 cumstances, issue can be admitted to participate under a clause 
 of survivorship — is discussed in a subsequent chapter, in relation 
 to clauses of survivorship. The other is the question stated in the 
 title of this section. 
 
 1267. Questions of the vesting of family provisions arising in 
 the Courts of Scotland are usually, and perhaps too exclusively, con- 
 sidered with reference to the question, at what time the right vests 
 under the terms of the provision ? The possibility that the interests 
 of different members of a family, taking under the same provision, 
 may vest at different times, or that one member may take a vested 
 right while the interest of the others is contingent, appears to have 
 
 the trustees, having been directed " to in- 
 vest and hold the fee of one-half of the 
 residue for behoof of certain parties, who 
 are described as the heirs of the bodies of 
 E. H. and T. H., whom failing, the sub- 
 stitutes mentioned in the settlement, . . . 
 and these parties not being at present in 
 existence, and their existence being still 
 a matter of contingency, the said half of 
 the funds . . . ought in the meanwhile 
 to be retained and held by the trustees for 
 behoof of such parties in the event of their 
 existence ;" 5 D. 529. 
 
 (n) Lord Westbury's judgment, how- 
 ever, is partly founded on the circumstance 
 that the real aud personal estates were 
 blended into one mass, and were therefore 
 
 (as in most questions on the distribution 
 of mixed estate) subject to the same rules 
 as a residue composed exclusively of per- 
 sonalty. See the judgment, 4 Macq. 993. 
 In the law of England, it would seem that 
 the intermediate rents of real estate de- 
 vised separately from the personalty would 
 devolve to the heir-at-law; 2 Jarman on 
 Wills, 3d ed. p. 155. 
 
 (o) In the case of Edmunds v. Waugh, 
 L. R. 1 Eq. 418, the income of a fund be- 
 queathed to certain children, and payable 
 at majority, accruing prior to the birth of 
 a child, was held to fall into residue. The 
 income accruing during the period of mi- 
 nority vested in the child under tin- terms 
 of the will.
 
 DISPOSITIONS AND BEQUESTS TO CHILDREN. 
 
 en \r. wwin. 
 
 escaped attention. Yet, on principle, it seems clear that, wl, 
 the vesting is suspended solely in consequence of a clause of sur- ~ 
 vivorship or other contingent destination, if the contingency ci 
 with respect to one of the shares of the provision, the right to that 
 share ought to vest, although, as regards other shares, the vesting 
 may be suspended. Such a rase may easily arise under the com- 
 mon destination to a plurality of persons or the survivors of them 
 (at the expiration of a liferent), and to the children of Buch as ma y 
 die leaving issue. Here, it will be observed, the condition of sur- 
 vivorship does nut apply to the gift in favour of the children of the 
 deceasing legatees, but only to the gift to the original or firsl in- 
 stituted Legatees. Under such a form of destination there is no 
 element of contingency to prevent the children of an original lega- 
 tee from acquiring a vested interest, at his death, in his original 
 share; and there is no reason for postponing the claims of children 
 then existing to the date of the death of the liferenter. It is re- 
 markable that this point should never have been raised in our 
 courts, while in England it has given rise to a multitude of con- 
 flicting decisions. The point is now finally settled in favour n\ the 
 theory of immediate vesting by a judgment of the Eouse of Lords. 
 
 1268. The case to which we refer is that of Martin v. Hoi- q 
 gate,(p) on appeal from the present Masterof the Rolls. The app. I 
 was taken for the purpose of ol it a in in-' an authoritative d cision on 
 the prin ei pie of the question which has been stated, the authorities on 
 either side being very numerous and nearly equally balanced. The 
 question related to the vesting ,,f the residue of a trust-estate un- 
 der the following destination, — " And as to the rest, residue, and re- 
 mainder of my -aid trust-estate ami i ft cts, in trust to p,,\ ,,\, r the 
 annual proceeds thereof unto my dear wife, S. J., for and during 
 the term of her natural life; and from and immediately after her 
 decease, to distribute and divicU the whole of my said residua 
 
 te and effects unto ami anion- such oi in\ four nephews and 
 nieces (naming them), as shall l>< living at the time of her d 
 in equal shares and proportions as tenants in common, and no! 
 joint tenants ; hut ii any or either of them should then bt dead, la 
 ing issue, then it is my will and meaning thai such issue shall 
 entitled to their fal heir's or mol her's -hare, hut in equal proportio 
 Three ol t he nephews died in the lifetime oi the I 
 the tenant for life, two of them \\ ithoul i Id. 
 
 one of them leaving a daughti r. This dau ;ht< r Ii 
 fore the widow, and the question was, whether hei personal re] 
 Bentative was i ntitled to a share in th< distribution, on th< I 
 (p) u
 
 660 DISPOSITIONS AND BEQUESTS TO CHILD11EN. 
 
 cn.vr. xxxvim. t j ia t s i lc took a vested interest by survivance of her parent, Lord 
 Romilly held that she did not take a vested interest, but recom- 
 mended an appeal to settle the conflicting decisions on the ques- 
 tion ; and, on appeal, the Lords were unanimously of opinion that 
 the order of the Master of the Rolls should be reversed. The ratio 
 of the ultimate decision appears to be applicable to destinations in 
 trust-settlements in the Scotch form ; and there can be little doubt 
 that it would be held binding in any similar case originating in the 
 Courts of Scotland. 
 
 1269. Lord Cran worth, after alluding to the argument which 
 was maintained on the special terms of the will, " if any of them 
 should then be dead," which were supposed to have reference to the 
 period of distribution, observed, that the inference deduced from 
 this expression was " encountered by another rule, namely, that we 
 are never to construe a gift as contingent unless the context re- 
 quires us to do so, and it is very difficult to say that in this case 
 there is any such necessity. When we speak of a person having 
 died leaving a child or children, we mean leaving a child or child- 
 ren at his death ; . . . and, if that be so, it is hard to say that 
 any difference is to arise from the circumstance that the words are 
 not ' shall then have died leaving issue,' but ' shall then be dead 
 leaving issue.' " The authorities being equally balanced, his Lord- 
 ship moved the House to declare that the child took a vested in- 
 terest.^) Lord Chelmsford was of the same opinion. He observed: 
 " The Master of the Rolls says, ' The testator did not intend by 
 these expressions to substitute a dead person for a dead person.' 
 But, with submission to his Lordship, this is not the correct mode 
 of dealing with the question. It does not appear that the testator 
 had at all contemplated the event of the death of a child surviving 
 a nephew or niece, and dying in the lifetime of the tenant for life ; 
 and therefore he made no provision for it. . . . The words 
 ' leaving issue ' must necessarily apply to the period of the death of 
 the nephews or nieces, and not to the death of the tenant for life ; 
 because it forms part of the compound events connected with the 
 nephews and nieces, upon the happening of which the gift to the 
 children is to take effeet."(r) 
 Opinion of Lord 1270. Lord Westbury's opinion also proceeds upon principles of 
 Westbury. construction which are of general application, and in no way pecu- 
 liar to the jurisprudence of England. He says, " The testator be- 
 queaths his residuary estate to his wife for life, and then to such 
 of his nephews and nieces as should be living at the death of the 
 tenant fur life. This form of gift is contingent, and vests in such 
 
 (</) 1 Law Rep. Eng. Ap. 185. (r) Id. p. 187.
 
 DISPOSITIONS AND BEQUESTS TO CHILDREN. ''1 
 
 of the nephews and nieces as shall be living when the tenant for ohap. xxxvm. 
 life dies. To this bequest the testator adds another, in favour • i 
 the issue left by any nephew or niece who may predecease tin- 
 tenant for life. This last is an independent bequest \ - 
 
 cording to its plain effect and meaning, nnl< ss thai meaning be 
 altered by the implication of additional words, the issue living at 
 the death of a nephew or niece, who may predecease the tenanl for 
 life, take an immediate vested interest in that share which would 
 have been taken by the parent, if he or she had been living at the 
 time of distribution. The interesl of the issue is vested and imme- 
 diate, although the amount of the share is uncertain until the death 
 of the tenant for life."(s) 
 
 section v. 
 
 DESTINATION OVER, AS REFERRING TO DEATH WITHOUT //.I VING 
 
 OR WITHOUT LEA VI NO CHILDKKW 
 
 1271. The question to be considered is. whether a destination pi 
 over, in the event of the liferenter or prior Legatee dying wit/wut] 
 issue, means without having had, or without leaving a child ? In 
 its primary meaning the expression, die " without issue," appi ars to 
 bo Bynonymous with childless, and to refer to the contingency oi 
 death without having ever had a child; and this meaning is the more 
 readily to be ascribed to it by reason of the elliptical nature <>!' the 
 expression, and because the settlor or testator, by the omission oi 
 the word "leaving," which is generally employed in such provi- 
 sions, may be supposed to have intended a corresponding change in 
 the Miise of the clan 
 
 1272. In marriage-contract provisions, where the presumption] 
 alwavs i- in favour of immediate vesting, this is accordingl} to I- 
 considered the proper construction oi the ti mi ; — that, u a rund 
 be provided to the wife in liferent, and to the children oi the mar- 
 in fee, and incase of her death without issue, thi n over,— the 
 
 !, ,. v sts in the children of the marriage al the period oi birth, and 
 the conditional institution only takes effi 1 1 in the evi al of the m 
 riage being dissolved without the birth of a child. /) Thi 
 struction was put upon b clause of conditional institution in 
 mentary settlement, in the absence of other el( an nta bavin 
 dencj t- h i r thi v< ating in Buspi nse during tie i the 
 
 life intereet.(w) The provision was primarily in ravour oi tl 
 
 (,) 1 I. I. I 
 
 It) See opinion R * '• •'-:■ l "' 7 : 
 
 8Ma jph.858 rod R P D " ' , ' 1 
 
 .. Macph. 690 B\ Mie's T ' 
 / ill. b 1862, 24 D 619.
 
 662 DISPOSITIONS AND bequests to children. 
 
 ohap. xxxvm. tor's daughter in liferent, and of her children in fee, with a destina- 
 tion over to nieces. At the father's death, the daughter had two 
 children, and five were subsequently horn to her. The succession 
 was held to vest in the children at birth. Lord Jerviswoode, in the 
 note to his interlocutor, observes, (x) " The subsequent provision for 
 the event of the decease of the lady 'without issue of her body,' 
 must be read as having application only to the case of her decease 
 without having had issue of her body capable of taking the fee 
 under the immediately preceding direction." And this reading is 
 confirmed by the opinions of the judges of the First Division of the 
 Court, who say, " The condition is not that she should die without 
 leaving children, but only that she should die without issue. As 
 soon as she had issue, the contingency in which the provision to 
 the nieces was to take effect, was excluded, (y) These views are 
 confirmed by Lord Colonsay's opinion on appeal. 
 Dennistoun v. 1273. With this decision it is difficult to reconcile an earlier 
 
 case, (2) where the circumstances were precisely similar , r the destin- 
 ation being contained in a will, and being in favour of the truster's 
 daughters, and their or her issue in fee, " and in case any of the 
 said daughters shall decease without issue," to the survivors. In 
 this case it was found that the provision of survivorship " is not to 
 be understood as applying only to the case of any of the daughters 
 predeceasing the truster, but as applicable to the case of any of 
 them dying without children quandocunque." (a) Perhaps a dis- 
 tinction maybe found in the circumstance of the ulterior gift in the 
 case of Dennistoun, being of the nature of a right of survivorship ; 
 for as in that case the gift over would take effect at the death of 
 the daughters by whom the estate was liferented, it might naturally 
 be inferred that it was intended to apply to the event of the failure 
 of issue before that time from any cause, — i.e., either by the non- 
 existence of issue, or by the death of those who should have come into 
 existence. (6) 
 whether eondi- 1274. A legacy to a person in liferent, with remainder to the 
 oTchiidren is' " testator's next of kin in the event of the liferenter's "decease with- 
 l m P 1 . ied . from a r out lawful issue," was, in the case of Douglas v. Douglas, held to imply 
 applicable to the a conditional institution of the children of the liferenter in the event 
 
 event of failure 
 of issue. 
 
 (x) 3 Macph. 518. a class of children, subject to an annuity 
 
 (ll) Joint opinion per Lord Curriehill, to their father, " and failing any of them 
 
 3 Macpli. 521. hy death without lawful children, to the sur- 
 
 (z) Deimistoun v. Dalgleish, 22 Nov. vivors," was held to vest at the death of 
 
 1838, 1 D. 69. the father, as the period when the class 
 
 (a) Interlocutor, 1 D. 72-3. would be complete. Here, therefore, the 
 
 (b) In the case of Kenned;/ v. Crawford, words were impliedly read as equivalent 
 20 July 1841, 3 D. 1266, n destination to to ''without leaving issno."
 
 DISPOSITIONS AND BEQUESTS TO CHILDREN. 
 
 of his dying leaving issue him surviving.(c) A somewhat different chap, zxxtiu. 
 
 principle of interpretation was recognised in the case of L'Amy v. 
 
 Nicolsoris Trs.,(d) where a declaration — that in the event of the 
 
 truster's residuary legatees, or either of them, "having no children, 
 
 or having children who shall not survive their parent," then his 01 
 
 her interest should be limited to the liferent enjoymenl of the moi 
 
 — was held not to have the effect of preventing the acquisition of a 
 
 vested interest by one of the residuary Legatees who had children at 
 
 the time. In this case there was qo prior life interest necessitating 
 
 a suspension of payment. 
 
 1275. Clauses referring to the death of a Legatee without leaving Words'^ 
 issue, obviously apply to failure by non-existence as well as by death 
 before the period of vesting, (e) and the only question thai can arise 
 
 upon their construction is as to the period within which the failure death - 
 must take place to entitle the conditional institute to take under the 
 destination. (/) But where the words were "and failing the said 
 E. M., and children of the said J. ML, by death before the said J. 
 M." it was observed thai the destination introduced by these words 
 would nut take effect in the event of the non-existenct of children 
 of the person designated.^) 
 
 SECTION VI. 
 PROVISIONS TO YOUNGER CHILDREN 
 
 1276. In the construction of provisions to " younger children," 
 the popular signification of the term, as comprehending the rn< in 
 bers "i the family tiol provided for, so far prevails and controls the''" 
 
 literal imporl of the Language of the gift, thai it is undersl 1 to 
 
 apply to children who do not take the family estate, whether younger 
 or not, to the exclusion of a child taking the estate, whi ther elder 
 or aot.(h) " The English cases," said Lord St Leonards in Dickson 
 
 v. Dickson,(i)—" and the Scotch i to the Bame effect,— have 
 
 VouglMV. DougUu,21 Dec. L84 bief difflcu 
 
 j, (I,, pi nod of paymi of ie orbiti 
 
 L'Amy v. r ■> Dec. i d, •■;/.. without a Lift - 
 
 M to Hi' i '■' on wl 
 
 children" obvi- paymenl 
 oualy include th ■ « 
 
 /, M L8 Jai 
 
 the d. tination, p. 849) ; G 
 
 I I Feb. I I ph. 
 
 Wrighty I ] '. L840, 2 D. D 
 
 i 
 1857, Looo.
 
 664 DISPOSITIONS AND BEQUESTS TO CHILDREN. 
 
 cn.\p. xxxvin. established beyond all controversy, that if younger children as a 
 class are intended to be provided for, they who really stand in the 
 position of yonnger children, although they may be elder children 
 one or more of them by birth, yet are within the provision. There 
 may be half-a-dozen daughters born in a family, and then a son. 
 The estate is limited to the son, and provision has to be made for 
 the younger children. Speaking with reference to the estate, those 
 are younger children who do not take the estate, and who, because 
 of their inferiority to the head of the family, are regarded by the 
 law as the younger branches."^) 
 Rule not re- 1277. It would appear that in England the rule under considera- 
 
 EngianMo " tion is confined to parental provisions, and provisions by persons 
 parental provi- taking upon them the office of a parent. (7) This qualification or 
 restriction of the rule could not be admitted, with reference to the 
 decisions of the Scotch Courts, without giving to the expression, 
 parental provision, a signification so extensive as virtually to in- 
 clude provisions by relations of any degree in favour of the younger 
 sons and daughters of proprietors of landed estates. Cases may in- 
 deed be figured in which the expression younger children would be 
 construed according to the strict signification of the term, as, if a 
 person should leave a legacy or estate expressly to the eldest child 
 of a family, and another to the younger children ; but in such cases, 
 if there be any, it will be found that the criterion of construction is 
 tire intention of the testator, as deduced from the general scheme of 
 his dispositions, and by no means from his relationship, real or as- 
 sumed, towards the family. 
 Whether 1278. From the principle of interpretation which has been 
 
 chide" a^'eidest affirmed, it would seem to follow, that where a provision is settled 
 son who stands upon " younger children" by a person having power, and in terms 
 entnii from the which clearly vest the gift in the family, the eldest son would be 
 entitled to a share of the provision in the event of his not succeed- 
 ing to the family estate. (m) But this conclusion, legitimate as it 
 
 (k) It is scarcely necessary to add that 7th ed. 271), the distinction is not much 
 we do not here treat of the construction of regarded at the present day ; and it will 
 terms denoting order of birth, such as "eld- be observed that the rule is laid down witti- 
 est, " " younger," etc., when used as words out qualification in his Lordship's opinion, 
 of destination in settlements of heritable cited supra, §1776. In the case of gifts by 
 estate. Upon this subject, reference is strangers, the Court looks to the intention 
 made to the concluding part of chapter 35, of the granter ; Livesay v. Livesay, 13 Sim, 
 sect. 2. It is explained by Jarmau (vol. 33, 2 H. L. C. 419. 
 
 2, p. 191), that in England, also, the popu- (m) The heir in possession is held, on 
 lar construction of the term younger child- this view, to be entitled to provide for 
 ren is confined to pecuniary provisions, and daughters, in the event of the estate pass- 
 is not applied to devises of lands. ing to heirs-male in a different line : 14 
 
 (I) 2 Jarman on Wills, 3d ed. 190. But D. 433, per Lord J.-C. Hope, 
 according to Lord St Leonards (Powers,
 
 DISPOSITIONS AND BEQUESTS TO CHILDREN. 
 
 may be in the general ease, must yield to the expression of a eon- chap. u 
 trary intention. For example, in the case of CruicJcsJiank's Trs. v. 
 CruickshanJc,(n) the truster, by Lis antenuptial contract, upon the 
 narrative that his eldest son would be sufficiently provided for out 
 of an estate in the 'West Indies, bound himself t'> secure and t<> 
 make payment to any other child or children who mighl be pro- 
 created of the intended marriage, of certain sums therein specified ; 
 and further, in the event of anything happening by which the eld- 
 est son " might be unprovided fur. or deprived of the succession as 
 aforesaid," the truster bound himself to provide and secure "to 
 such son an estate or provision in money equal at the least t" the 
 other provisions hereby made fur any one of the other children of 
 the intended marriage." It was In Id by Lord Anderson,(o) upon 
 the terms of the contract, that the intention of the truster was not 
 to give hi- eldesl son any share or interest in the fund se1 apart for 
 the younger children, but to give him a claim on his general estate 
 for a provision equal in amount to the fortune received by any oi 
 his brothers or sisters, and to this judgment the Court adhered. 
 But even if we admit the title in equity of the eldesl Bon to a Bhare 
 of the younger children's provision in eases where ho does not in- 
 herit, it is clear that this equity will not extend to the case \\1 
 the succession actually opens to him, but where the free estate is 
 exhausted by the' younger children's provisions; and accordingly, 
 in such a ease, it was held that the beir did not take any Lnti I 
 under the provision, either by way of institution or by survivor- 
 ship.^) 
 
 1279. Under a general power to make provision lor the youngi i 
 children of heirs of entail, i1 was beld that an beir might appo 
 to the younger children of his son and heir-apparent. (q) Bui und< 
 a power in the ordinary terms, an heir of entail lb uo1 entitled to 
 carve ou1 oi Ha- fund a succession of interests in lifi renl and i. e 
 for the Imip lit of his descendants. (r) WTiere provisions are granted 
 to daughters or younger children, without m< ution oi thi ir hi irs, 
 the conditio si sine liberie is hold to qualify the grant, and the i 
 
 (,, : ' Vt Trt. v. < ; 
 
 1868 16 I'. 7. >' ' ' 
 
 L6 1 1. 1 1, note. 6D 20 
 
 26 Feb. 1885, 18 underthe i 
 Sli 661 
 
 (g) Earl of Wemyn v. Trail, 
 1810 F.O.; Smollet'i ca e, cited 
 
 l8,note. SeecbapterCl 
 
 „, i Stralhallan D I </ her lii i
 
 666 DISPOSITIONS AND BEQUESTS TO CHILDREN. 
 
 chap, xxxviu. succeed to their parents' share in preference to the surviving child- 
 ren, (s) 
 Import of the 1280. Powers given to heirs of entail are usually expressed in the 
 
 expression . ^ ... ', ., , , 7 , 7 
 
 ••other than the form of a faculty to grant provisions to younger children other than 
 h,u ..ititkdto ^ g j ( ^- r en{ ;u e ^ to succee d to the entailed estates, a form of expres- 
 sion which, by making the exclusion from the benefit of the provi- 
 sion contingent upon the succession to the estate, obviates any am- 
 biguity resulting from the use of the word younger in the event of 
 the estate accruing to a daughter or eldest surviving son. (7) But 
 this very expression may become itself a source of ambiguity, if 
 eventually the estate should devolve under the destination to an 
 heir who is not a descendant of the granter of the provision. In a 
 case, already cited", where the power was given to be exercised in 
 favour of younger children " other than the heir in the said lands," 
 and the heir in possession had two children, a son and a daughter, 
 neither of whom succeeded, it was held in the Court of Session and 
 in the House of Lords, that the phrase, " children other than the 
 heir," was a relative expression applicable to the case of a family 
 in which there was a child who was the heir, and that a bond of 
 provision granted in favour of the children in question, was invalid 
 in relation to both of them, (u) 
 Construction of 1281. In the case just cited, it is evident, upon the construction 
 grutedto adopted by the judges, that the power was contingent upon the cir- 
 £g hSrs-maie 1 ' cumstance of the estate descending to a member of the family of the 
 of the body." person appointing. Another example, of a contingency affecting 
 younger children's provisions, is presented in the case where a pro- 
 prietor, having no sons, settles his estate upon his eldest daughter, 
 failing heirs-male of his body, under burden of provisions to younger 
 daughters. In such a case, the birth of a son destroys both the des- 
 tination and the provision consequent upon it.(sc) A provision to a 
 younger child, according to the English authorities, is not contingent 
 
 (s) Wilkie v. Jackson, 9 July 1836, 14 {x) Mitchelson v. Mitchelson, 15 Nov. 
 
 Sh. 1121. So also, a posthumous child was 1820, F.C. ; Cochran v. Paterson, 5 June 
 
 found to have right to a share of a provi- 1824, 3 Sh. 109, N.E. 72. In the case of 
 
 sion granted to children nominatim ; OH- II. M. Advocate v. Drummond, 3 April 
 
 phantv. Oliphant, 1794, Bell, Fol. Ca. 125, 1753, G Pat. 692, a provision of large 
 
 5 Br. Sup. 648. amount to daughters was held to be limited 
 
 (t) Where a provision by a stranger to by the context to the event of the estate 
 
 children, limited in these terms, became passing out of the family under the clesti- 
 
 due in the lifetime of the parent, the ex- nation to heirs-male ; see also Murray v. 
 
 elusion was held to apply to the eldest son Murray, 1744, Elch. " Mutual Contract," 
 
 and heir-presumptive; Clarke v. Clarke, 18 No. 21 ; Muirhcadv. Dickson, 1754, Elch. 
 
 Dec. 1832, 11 Sh. 220. " Provision to Heirs," No. 20 ; Sommer- 
 
 (u) Dickson v. Dickson, 13 D. 1291, 14 ville v. Scott, 1761, M. 2959. 
 D. 432 ; 13 June 1854, 1 Macq. 729.
 
 DISPOSITIONS AND BEQUESTS TO CHILDREN. 
 
 on there being more than one in the family, but is payable to an ohap. cestui. 
 only child, (y) 
 
 1282. Where a provision was expressed to 1"' in favour of chUd- H«r««titi 
 ren, without the qualifying word younger, it was found that the] 
 eldest son, who had accepted a disposition of the landed estate En ; 
 
 his father, was not thereby excluded from a claim to a share of t 1 
 provision in the character of a child of the marriage.(a A s 
 latitude of construction has been admitted in reference to provi- 
 sions in favour of daughters. On the one hand, a daughter who 
 did not succeed was held entitled under a clause binding the heir 
 to nay a certain sum to the daughti rs "//</ In irs-ft male of the gran- 
 tor;^') on the other, an eldest daughter's son, to whom the Lam 
 estate was eventually disponed, was not allowed to claim, a- r< | 
 sentative of his mother, a share of :i provision destined to daugh- 
 ters, without restriction. (b) 
 
 1283. We have elsewhere seen,(c) that the words "el 
 "second," etc., when applied to heirs in heritable destinations, a 
 generally construed, not in the sense of seniority in order of birth, 
 but as having relation to the first or second son. or daughter, as th< 
 case may be, capable of taking under the designation at the opening 
 of the succession ; and this construction is admitted, a fortiori, in the 
 construction of pecuniary provisions, of which the case of Ershim (d) 
 \- .hi apt illustration. An heiress of entail in possession under a 
 deed of entail, by which her second or otht r younger son was called 
 to the succession (the eldesl being passed over because he was heir 
 to a pi erage), exercised a power given by the deed to the heirs "t 
 entail •• to provide the children of their eldest sons marrying during 
 their own lives in such patrimony as they shall think proper." 
 This she did by binding herself, in the marriage-contrad ol her 
 second son, to provide a patrimony to the yam.:, r children of the 
 intended marriage. Alter full considi ration f the authorities, and 
 chiefly in respeel of the principle ol construction established by 
 the Roxburgh* case, this was found to be ippointm< m. h 
 was consid< red that the expression "eldest son," in the de< d 
 
 tail, was int< tided to designate the hi ir m d i ntitled to I to 
 
 the heir in possi ssion, and thai th< - cond >it oi th< jrant< rol the 
 
 (y) Emery v. England, 8 V( .282. 
 
 / / I ; 1 1 . I : 
 
 17. ■ 
 R G 6 D. - 1744 I I 
 
 I
 
 668 DISPOSITIONS AND BEQUESTS TO CHILDREN. 
 
 ciTAr. xxxvm. provision, was, quoad her estate, the eldest son, — being the heir 
 
 next entitled to succeed in the order of the destination. 
 At what period 1284. With respect to the period at which the objects of a gift 
 the S'faii'io to younger children are to be ascertained, no distinction has as yet 
 be ascertained. | jcen rec0 gnised between such provisions and destinations of per- 
 sonal or mixed succession, (e) The vesting of the succession will 
 therefore fall to be regulated by the usual rules, and will depend, in 
 the first place, on the consideration whether the provision is grant- 
 ed by or in implement of a contract of marriage, or is of a testa- 
 mentary character ; and, in the next place, upon the term at which 
 it is made payable, whether at the death of the granter or upon the 
 children respectively attaining majority or being married. The 
 element of postponement for the purpose of securing a liferent does 
 not usually enter into this class of cases. 
 
 (e) See, for example, Oswald v. Oswald, 20 Dec. 1821, 1 Sh. 225, N.E. 215; Burnett 
 v. Burnett, 4 March 1854, 16 D. 780.
 
 OF THE IMPLIED CONDITION. SI SINE LIBERIS DECESSERIT. 
 
 CHAT. \\\ \ 
 
 CHAPTER XXXI X. 
 
 OF THE IMPLIED CONDITION, SI INSTITUTUS SINE 
 
 LIBERIS DECESSEUir. 
 
 1285. Where a legacy is given by a parenl 1" a child or grand- i 
 child, or to persons 1.. whom he stands in loco parentis, withoi I 
 mention of the legatee's heirs, a presumption arises thai the testa- ••" 
 
 O ' J. i |, a , 
 
 tor has overlooked the contingency of the death of the Legatee, I av 
 ing issue; and that, if he had contemplated thai event, he would 
 have made provision for substituting the children of the Legatee 
 to their parent. On this ground, < guity holds the ulterior righl ol 
 the residuary Legatee,(a) or of the conditional institute to whom the 
 legacy may be given over,(6) to be qualified by the implied condi- 
 tion, si institutus sine lih ris decessi rit.(c) The same condition ap- 
 plies to the eventual right of succession of the testator's personal 
 representatives, failing a residuary clause or other ulterior d< stina- 
 tion.(c£) 'I'll- presumption againsl the intentional exclusioD oi the 
 testator's descendants, although not absolute, is very strong. In 
 the case of destinations to collateral relatives, as brothers and sis- 
 ters, or nephews and nieces, the presumption is weaker; and the 
 condition does not apply a1 all to L« gacii > in - or 
 remoter relatives, to whom th< c did not stand in loco paren- 
 tis.^ i It will I- seen thai the extension of the benefil ol thi c h- 
 
 tion to collaterals is founded on the assumption that the c< 
 
 L, gat i - are favoured on the ground ol relationship, and asa i ly. 
 
 An individual Legatee in the collateral line ol r< Lationshi] 
 Led a persona prcedilecta, and bis shan ' ool di voh 
 children in virtue of the implied condition. Destinati itu- 
 
 (a) Wilk, J L4 I 8, tit. 4 
 
 SI,. 1121 A infra, pa I' 85, tit. 1 
 
 lb) II fv. i 
 
 Glm R I ' 
 
 si,. 287 \. i: 241. 
 
 t|„- civil law on D 
 
 whicb this doctrine • 
 
 lib. 6, tit. 25, 1. 6 !'■ I ""
 
 670 
 
 OF THE IMPLIED CONDITION, SI SIXE LfBERIS DECESSERIT. 
 
 eii.vr. xxxix. 
 
 Reason of the 
 implied condi- 
 tion, and extent 
 of its applica- 
 tion. 
 
 Condition held 
 to qualify a be- 
 quest to an in- 
 dividual child 
 of the testator, 
 as well as lie- 
 quest to child- 
 ren collectively. 
 
 ral children, whether of the testator himself or of a member of his 
 family, are not affected with the implied condition ;(/) nor can the 
 benefit of the condition be claimed by the children of a legatee who 
 is called in the character of an heir whatsoever or next of kin, even 
 where that legatee is a descendant of the testator, (g) The benefit 
 of the condition has been held to accrue to the eldest son in tho 
 case of a heritable destination, (ft) 
 
 1286. I. Application of the condition. — With one or two in- 
 considerable exceptions, these distinctions will be found to be con- 
 sistently maintained in the numerous decisions on this interesting 
 doctrine of our jurisprudence. Provisions to children or grand- 
 children are presumed to spring from the pietas paterna, and are 
 supposed to be intended for the benefit of the grantee's family. 
 Equity accordingly implies in such provisions an institution of de- 
 scendants, whether the legatees named comprise the whole of the 
 testator's existing issue or certain individuals only. The simplest 
 case is that of a bequest of the testator's property to his children 
 as a class : here there is no room for dispute as to the applicability 
 of the condition, apart from intention ; though the question may be 
 raised, whether the exclusion of issue was not intentional, (i) 
 
 1287. The case of bequests to individual children of the testa- 
 tor is equally free from dubiety. Thus in Dixon v. Dixon,(j) the 
 testator left the residue of his succession, heritable and moveable, 
 to his eldest son, who had a family at the date of the settlement ; 
 and the son having predeceased the testator, the Court sustained a 
 claim on the part of his children to the entire residue, in preference 
 to that of the testator's other children, to whom general legacies 
 had been bequeathed. In Wilkie v. Jackson, (k) provisions to the 
 testator's daughters, which had been made burdens upon their 
 brother's share of the succession, were held to be transmissible to 
 the children of predeceasing daughters, although one of the sums 
 was expressly destined to heirs and assignees, while the rest were 
 not ; thus proving, according to the argument of the defenders, that 
 the contingency of a failure of immediate descendants had been 
 within the contemplation of the testator. These two cases are 
 direct authorities for the proposition that a legacy or residuary be- 
 
 (/) Martins Trs. v. Milliken, 24 Dec. 
 1864, 3 Macph. 326. 
 
 (</) Cockburn's Trs. v. Dundas, 10 Juno 
 1864, 2 Macph. 1185. 
 
 (h) Grant's Trs. v. Grant, 2 July 1862, 
 24 D. 1211 ; and see Bell's Pr. § 1776. 
 
 (?) Mags, of Montrose v. Robertson, 1738, 
 M. 6398 ; Rattray v. Blair, 8 Dee. 1 790. 
 
 Hume, 526 ; Booth v. Black, 16 July 1832, 
 6 W. & S. 175, affirming 9 Sh. 406. 
 
 (,/) Dixon v. Dixon, 14 Sh. 938 ; 9 Feb. 
 1841, 2 Rob. 1 ; see Lord Brougham's 
 opinion, p. 22. 
 
 (k) Wilkie v. Jackson. 9 July 1836, 14 
 Sh. 1121.
 
 OF THE IMPLIED CONDITION. SI SIXE LIBERIS DECESSERIT. 671 
 
 quest to a child is affected by the implied condition si sine /'■' V bap. xxxix. 
 although other children of the family have been dealt with upon a 
 different footing. 
 
 1288. The institution of grandchildren as testamentary heir- 
 may have place either in the event of the failure of immediate di - 
 scendants, or in consequence of the testator having chosen to re-] 
 strict his children's interest to a liferent, with remainder to their ti 
 issue in fee. In either of those cases, the interests oi predeceasing 
 grandchildren will transmit to their issue as conditional institut 
 
 in virtue of the implied condition, si sine liberie, — notwithstanding 
 the addition of a destination over or clause of survivorship; and 
 whether the interest consist of a share of the succession, (I) of a 
 joint universal legacy, (m) or of a general Legacy to all the children 
 of one of the testator's sons.(») 
 
 1289. It has not been expressly decided that the condition in whether th« 
 question will affect a legacy in favour of an individual grandchil 
 
 to the exclusion of his brothers and sisters; hut if, as Lord Glei 
 ohs.'Wed in the case of Hamilton v. Hamilton,(p) the application 
 of the equitable condition to the case of grandchildren •• is founded 
 upon the obligation to provide for children and descendants" we 
 are warranted in expressing the opinion, thai the issue of a favoured 
 grandchild is as much entitled to the benefit of the condition, as 
 the issue of a child individually favoure I. 
 
 1290. With regard to collaterals, the rule seems to be that, in 
 the case of a legacy being left to all the children ol a family (th< 
 testator being in loco parentis), the issue of any member of tl 
 familv predeceasing the testator will be .admitted to the succi Bsion * 
 as implied conditional instituti -. in preference to the heirs-at-law. 
 The benefit of the implied condition was extended, to the i 
 
 Legacy to all the children of a nephew, in Wallaci \. R ;(p) 
 
 and in the earlier case of Mackenzi v. EoUe's legatees,(q) to the 
 children of several I who appear to have bi en collate ral 
 
 Lativea of the testator. The extension of the doctrine to cousins, in 
 the cas< ot Christii v. Patei • ■ be o\ doubtful ; 
 
 priety ; and the authority of the < denied in the r< ci ut i 
 
 ol RhinoVs Trs. v. L< ith.{s) 
 
 (I) Thorn 1884,12 R 
 
 910; 81 ku -. L885, 2 S. & M'L. 806. "CI ■ " 
 
 (m) R I 11 ,T " '' ; "' 
 
 H 
 "ii ] i Christie v. 1 
 
 II iUon v. Bamiltot 
 
 ; " '
 
 G72 
 
 OF THE IMPLIED CONDITION, SI SINE LIBERIS DECESSERIT. 
 
 OHAP, XXXIX. 
 
 Thomson's Trs. 
 v. liobb. 
 
 Condition held 
 not to apply to 
 bequests to indi- 
 vidual members 
 of a family col- 
 laterally related 
 to the testator. 
 
 Whether condi- 
 tion excluded 
 where testator 
 provides spe- 
 cially for the 
 event of a 
 failure of the 
 legatee leaving 
 issue. 
 
 1291. In the case of Thomson's Trs. v. Robb,(t) where the fa- 
 voured legatees were all the nephews and nieces of the granter of 
 a trust-settlement, it was strenuously maintained that the doctrine 
 of implied institution was inapplicable, by reason of the destination 
 having been conceived in favour of two of the parties nominatim, 
 while the others were described under the general designation of 
 " the lawful children of the said Mrs P. T. or Y., whether of a first or 
 of a second marriage, alive at the time of my decease." But the Court 
 disregarded this specialty, and by a unanimous judgment gave the 
 children of two predeceasing nieces the benefit of the condition ; 
 Lord Cuninghame observing, that the condition, si hares decesserit 
 sine liberis, had been liberally admitted in our practice, and that 
 the case before them was stronger than the previous cases of Mac- 
 henzie, Wallace, and Christie. 
 
 1292. On the other hand, it has been decided that a legacy to 
 one sister among several, (u) or to nephews and nieces called indi- 
 vidually, to the exclusion of others in the same degree of relation- 
 ship, is not capable of being affected by the implied condition si 
 sine liberis decesserit ;{x) the presumption being, that the bequest 
 is given to them as personal praidilectce, — a presumption which, of 
 course, applies a fortiori to the case of a destination to strangers in 
 blood or to the testator's heirs whatsoever. (y) 
 
 1293. II. Exclusion of the application of the condition. — It 
 is agreeable to reason, and has been settled by decision, that where 
 special provision is made by the testator for the child of one of a 
 family of legatees, whose parent has died before the execution of 
 the settlement, such child^hall not be entitled to rank with uncles 
 and aunts as one of the family. In this case, there is neither the 
 element of unforeseen contingency, nor the omission to provide for 
 one in the favoured degree of relationship, which are the two grounds 
 upon which the conditional institution of the issue is raised by im- 
 plication, (z) But in the case of collateral relatives, the mere fact 
 that one of the family had died before the date of the settlement 
 does not necessarily imply an exclusion of that legatee's children ; 
 because it may happen that the testator, in making his will, has 
 overlooked the fact, or has not been aware at the time who the 
 parties are that occupy the position of nearest relatives. On this 
 
 5 Macph. 104, and case of Wishart v. Grant, 
 17G3, M. 2310, there cited. 
 
 (t) Thomsons Trs. v. Robb, 10 July 1851, 
 13 D. 1326. 
 
 («) Fleming v. Martin, 1798, M. 8111. 
 
 (x) Hamilton v. Hamilton, 8 Feb. 1838, 
 16 Sh. 478. 
 
 (;/) Black v. Valentine, 17 Feb. 1844, 6 
 D. 689 ; Cockbum's Trs. v. Dundas, 10 June 
 1864, 2 Macph. 1185. 
 
 (z) Sturrock v. Binny, 29 Nov. 1843, 6 
 D. 117, seep. 122.
 
 OF THE IMPLIED CONDITION. SI SIX/: LIBERI& . Kir. 673 
 
 point Lord MoncreifT observed, that he did not think it "consistent ohap. xvmx. 
 with the principles of human nature in men of good feelings, that ~ 
 it should make any difference in the view taken, that a particular 
 nephew or niece of the precise class favoured, and against whom 
 no expression of disfavour is anywhere found, unhappily had died 
 many years before the date of the will." (a) 
 
 1294. It is quite settled that the fad of grandchildren being in Omissionto 
 existence at the date of a settlement in favour of children, without ; : '-' k 'J . 
 being mentioned in the settlement, dors not deprive them of their' 
 
 nope of succession under the condition si mu wo< ns. The contrary 
 was maintained in the case of NeiUon v. Baillu ;(b) hut the right of 
 the- children was established by a decision of the whole ( lourt, aft. r 
 a hearing in presence. The objection was revived in the cases of 
 Christie v. Paterson,(c) and Booth v. Black,(d) where the fad that 
 the testator, after becoming a party to his son's marriage-contract, 
 had lived many years after the birth of grandchildren and after 
 the death of his son without altering his will, was much pressed in 
 argument. But Lord Brougham gave effect to the implied condition, 
 disregarding all special circumstances. The result of the arguments 
 that have been raised in later eases hails to the conclusion, that it 
 is only in the case of an express provision being made for the issue 
 of deceasing legatees within the prescribed limits of relationship, 
 that such issue can he held to he excluded from the bi qi lit oJ the 
 doctrine of implied institution. (e) 
 
 1295. 111. Extension of the condition to remoteb descend-"] 
 ants. — In the event of a legatee predeceasing the period of \ 
 without leaving children, hut leaving a grandchild, it i> not unn 
 sonable to suppose that the 1 testator, had he foreseen the even! 
 would have instituted the grandchild conditionally, on the > ■ 
 
 md of favour to representatives which has led to the recogni- 
 tion of the doctrine si sine HI" ris in the case oi immediate descend- 
 ants. The extension of the doctrine to the whoL oi the n presi nta- 
 
 tivesofan institute in the direcl li f descent has now received 
 
 the sanction oi a decision oi the Court in the Outer House ;(/) and 
 whether we regard the I i i e ra l meaning oi the word " libi ri" in the 
 languagi oi the civil law, as including the whole familia, or look 
 
 (a) r, i). 128. I 
 
 ] ; 22, l Bh. 607, itli /■ / 
 
 '.. E. TJT. R i : ' 
 
 (c) ' / ■ i ii I 
 
 S!i. 648, \. E. I 
 
 (d j Booth \. Black, 16 J 
 & S. 17-".. affirm (/ ' 
 
 Vol.. I. 

 
 674 OF THE IMPLIED CONDITION, SI SIA'E LIBERIS DECESSERIT. 
 
 CHAP. XXXIX. 
 
 simply to the reason of the maxim, the opinion that grandchildren 
 of the institute are entitled to the benefit of the condition, seems to 
 be well founded. 
 
 1296. IV. Whether issue take as survivors or only as ori- 
 ginal legatees. — The subject is fully discussed in the immediately 
 following chapter, on survivorship, (g) from which it will be seen 
 that the authorities are not unfavourable to the claims of issue, suc- 
 ceeding under the implied condition, to take what would have fallen 
 to their parents by way of survivorship, as well as in the character 
 of original legatees. 
 
 {g) Chapter 40, section 2, \ 1309, et seq.
 
 OF SURVIVORSHIP. 
 
 
 rii.u . 
 
 CHAPTER XL 
 
 OF SURVIVORSHIP. 
 
 When a Destination to Survivors is ii 
 plied. 
 
 II. In what cases Issue take as Sun 
 III. Words of Survivorship, to what 
 reft ruble. 
 
 SECTION I. 
 
 WHEN A DESTINATION TO SURVIVORS IS IMPLIED. 
 
 1297. The right of survivorship may be defined to be the con- 
 ditional institution of all the individuals of a class who may sun h < 
 a certain event, consequent upon the failure of those who may die 
 before that event. Survivorship is either express or implied. 
 "Where an interest in a succession is given to certain persons and 
 to those who shall survive at a specified period of time, the terms 
 of the grant denote a conditional institution of the legatees surviv- 
 ing the specified period of vesting, and no question oi construction 
 can arise. (a) Again, where a legacy or share oi succ< ssion is giv< n 
 to a plurality of persons collectively, without any words importh 
 severance ot interests, each of the li - und< ret I to b< in- 
 stituted i" the entire bequest, subject only to the condition of sh 
 in-- it with any of the others in whom a right may vest. Under 
 such a form of bequesl the testator ie und< rstood to mean thai any 
 of the instituted Legatees should take the subject in prefei 
 
 lii- beir-at-law.(ft) 
 
 1298. But in order to raise the implication of survivorship, it ie 
 necessary that the same estate should I"- giv< □ jointly to th< '■ 
 
 if a definite sum I"- givi n to on< or m 
 residue to the othi c or othi rs, thi r< ion. Thi 
 
 lion on the t. rm ■ ol the di ed 01 
 wheth i 
 
 illy intendi d. s '/ '/ 
 v. M'M I), 18 D. 187; 
 
 16 I' I 
 
 / 
 
 .. i _
 
 676 OF SURVIVORSHIP. 
 
 ohaptbb xi.. is strongly exemplified in a recent case,(c) where a truster disponed 
 ( ertain estate to his nephew Dr P., for his own use, under burden of 
 an annuity of the interest of £2000 to a niece, adding, " in regard 
 his (the nephew's) legal heirs are not my natural heirs, it is hereby 
 provided and declared that, failing the said Dr P. and C. P. (the 
 niece), who are equally near to me, without leaving legitimate child- 
 ren by one or other of them, the property hereby conveyed to them 
 shall devolve upon and belong to the children of my cousins-german." 
 Here the intention to favour the families of the two individuals 
 named is very strongly manifested in the explanatory part of the 
 provision ; yet it was held by the House of Lords that under that 
 form of gift, the niece took nothing by way of survivorship, and 
 that on the death of the nephew the whole fund (subject to her 
 annuity) went over to the testator's second cousins. 
 Words of sur- 1299. A conditional institution by way of survivorship is under- 
 
 simiefto refer stood to be operative during the whole period in which the vesting 
 ' s ,h y ,wiod of of the succession may remain in suspense, under the provisions of 
 the will or settlement. The right of accrescion is of course indisput- 
 able when it is expressly referred to the period of distribution ; and 
 this rule applies to legacies of heritage, and provisions payable out of 
 entailed estates, as was held in Aitchison v. Allan, where the trust- 
 deed declared, that in the event of the death of any of the granter's 
 children before marriage or majority, the provision should be equally 
 divided among the surviving children. This was found to import a 
 conditional institution in favour of the survivors to the share of a 
 predeceasing legatee, and not merely a substitution, ((f) Questions 
 sometimes arise as to which of the objects of a destination the con- 
 dition of survivorship is applicable, of which the case of Chalmers v. 
 Chalmers (e) offers ari illustration. A father disponed mortis causa 
 four different subjects, one to each of three children by a first mar- 
 riage, and the fourth to two children of the second marriage, equally 
 between them, all in liferent, with remainder in fee to the children 
 of the liferenters respectively. There was a general proviso, " that 
 in the event of the decease of any of my children without lawful 
 issue, the share or shares of such deceaser or deceasers shall ac- 
 cresce and belong to the survivors or survivor of them equally in 
 
 (c) Pursell v. Elder, 24 March 1835 (re- examined in a subsequent section of this 
 ported under date 13th June), 3 Macph. chapter, which are very numerous, the only 
 H. L. 59. question raised was, as to whether the force 
 
 (d) Aitchison v. Allan, 16 Feb. 1831, 9 of the clause of survivorship extended to the 
 Sh. 454 ; and see Burnett v. Burnett, 4 period intermediate between the death of 
 March 1854, 16 D. 780 ; Smith v. Smith, the testator and the term of distribution. 
 1710 ; Denholm v. Denholm, 1726, M. 6346. (e) Chalmers v. Chalmers, 22 May 1827, 
 Accordingly, in the cases on survivorship, 5 Sh. 687, N. E. 641.
 
 OF SURVIVORSHIP. 
 
 liferent, and to the lawful issue per stirpes in fee, but without pn - 
 judice to the former destinations." On the predea ase without issue _ 
 of one of the two children of the second marriage to whom on< 
 the subjects was disponed in liferent, it was held that the survivor 
 of these two was entitled to the entire subject jun acerescendi, to 
 the exclusion of the children of the first marria 
 
 1300. Onderthe doctrine of accrescion, the right of survivorship 
 is implied wherever a legacy is conceived in terms which, in tl ;,"„'" 
 
 contemplation of law, amount to nj'<>;, t f destination. Ti. be atk ' us ' 
 
 word "jointly" implies survivorship^/) and according to Prof. 
 Bell, the addition of the word "severally" does not detracl from 
 the force of the joint bequest. Where the legacy is destined simply 
 to two or more parties, without the addition of words importing 
 either joinder or severance, it has been held, in conformity with the 
 principles of the civil law, that the jus acerescendi was implied. 
 Thus, a liferent to three daughters "during all the days of their 
 lives respectively," was held to be total in the person of the sur- 
 viving daughter; Lord Gienlee observing, thai the li 
 conjunct et re et verbis. (g) So also, in a later case, where there 
 
 a conveyance of a succession to several parties in shares^ fol- 
 lowed by a simple destination to the same parties as residuary lega- 
 tees, Lord J.-C. Inglis observed, thai the latter destination would 
 have the effeel of preventing an intestacy in the evenl ol the failure 
 of any of the beneficiaries, (h) 
 
 1301. It maybe affirmed, on the authority of the Breadalbam v. 
 Trust case,(i) thai where a joint destination i- so expressed as I 
 imply ;i substitution to the surviving grantee, it will also opei 
 as a conveyance of the entire subjed to any of the donees who i 
 cept, in the evenl of the others declining tin- bequesl or betaking 
 themselves to their legal rights. The principle o ion,nami 
 
 thai the testator prefers thai either oi the li e it< • - should sm ceed 
 rather than his heir-at-law, is clearly applicable whether the joinl 
 destination tail through non-acceptance or through aon-survivai 
 The recenl case ol Duff's Trs. k) raised the question, whethoi 
 
 •ion could take place under a joint beqi 
 particular class in certain towns ; some of th< se towi no 
 
 (/) Stair. ::. 8, 27 ; I- U' Pi 1879 
 
 B FmdlaUr, 6 Fel L886, 18 1841, 8 D 
 
 Si,.' 122; Tvlloch ■■ Welsh, 28 Nov. 1838, I 
 I D. 94; B\ ' Tt». v. /.</</.</ E 
 
 i ./.. L6Jan. 1841, 8 l>. 867 81 I B ' 
 
 i. t " b L864, L6 I' 780 /•' 
 
 , ! L861 28 l' 24 D 
 
 712 718
 
 678 OF SURVIVORSHIP. 
 
 chaptkr xl. organisation of the kind contemplated. It would appear that the 
 revocation of a joint interest given by a prior will does not cause 
 the revoked interest to accresce to that which is not revoked ; but 
 that the benefit accrues to the residuary legatee. (I) 
 Doctrine of 1302. Where a legacy is given to a plurality of persons in shares 
 
 not extend to a (whether of unequal or of equal amount), the death of any of the 
 shares? '" * number during the lifetime of the testator will cause a lapse, as to 
 the share of the predeceasing legatee ; for although here the lega- 
 tees are formally conjoined, the manifest intention is to give sepa- 
 rate legacies to each out of a common fund. It was at one time a 
 favourite topic of discussion with the civilians, whether the jus ac- 
 crescendi did not extend to legacies in which the grantees were 
 conjuncti verbis tantum, as well as to the case of legatees conjuncti 
 re et verbis. Vinnius was of opinion that the right of accrescion 
 had place in both cases, (m) But ultimately the more limited ap- 
 plication of this right, as expounded by Yoet,(n) was received ; and 
 this view of the case was adopted by Lord Stair, in the passage to 
 which we have already referred, where a full discussion of the 
 question will be found, (o) 
 What terms im- 1303. It is therefore a settled point in the law of Scotland, that 
 oipersonai'suc- the survivor of two or more legatees has not the right of accrescion 
 cession in equal -w] iere the bequest, although conceived in favour of a plurality of 
 persons, is in substance a right to separate shares ; as in the case 
 of a legacy to certain persons " in equal shares," " equally and pro- 
 portionally," (p) or " equally between " the legatees ;(g) or "to be 
 equally divided" between them;(r) or "equally betwixt them, 
 share and share alike ; " (s) or in any other form denoting a sever- 
 ance of interests. This construction was applied to a bequest of 
 residue, in a case which received great consideration, and in which 
 the nature of the interest was relied on as creating a distinction, (t) 
 Jus accrescendi 1304. The operation of the rule which gives to words of sever- 
 quests to indi- ance the force of an exclusion of the jus accrescendi appears to be 
 vduais by name. con fi ne( i i bequests given to individuals by name.(w) The cases 
 
 (l) Scott v. Scott, 7 Feb. 1843, 5 D. 520. of words, of severance may, however, be 
 
 (m) Vinn. Inst. 2, 20, 16. controlled by the context ; and it would 
 
 (n) Voet ad Pand. 30, 1, 59 et seq. (De seem that a destination over in certain 
 
 Legatis.) events, adjected to a destination in favour 
 
 (o) Stair, 3, 8, 27. of individuals conjuncti verbis tantum, is 
 
 (p) Paterson v. Paterson, 1741, M. 8070. favourable to the implication of survivor- 
 
 (q) Breadalbane Trs. v. Pringle, 15 Jan. ship, where the event does not happen on 
 
 1841, 3 D. 357. which the survivorship is contingent. See 
 
 (/■) Rose v. Rose, 1782, M. 8101. Lord Moncreiff's note in Tulloch v. Welsh, 
 
 (s) Torrie v. Munsie, 31 May 1832, 10 1 D. 97. 
 
 Sh. 597. (u) The suggestion in the text as to the 
 
 (t) Torrie v. Munsie, supra. The effect limitations of the application of the jut
 
 OF SURVIVORSHIP. 
 
 cited in the preceding paragraph were of this description, being in ohaptkbxl. 
 all the instances bequests to persons named and desig - me- 
 tinies with and sometimes without reference to their relationship 
 to the testator. Legacies given to a class of persons, designate I - 
 bearing a certain relationship to the testator, '1" riot appear to fall 
 within the rule. In another chapter it is shown that Buch legs 
 are held to be given to the members of the class answering the 
 description at the period of the vesting of the succession : (.' ) and 
 this construction holds good whether the destination is to the Lega- 
 tees jointly, or " equally among them."(#) 
 
 1305. The best exposition of the doctrine of implied survivor- 
 ship, in the case of legacies to a class of persons, will 1"- found in 
 the opinions delivered in Doughs v. Doriglas t (z) where it v. 
 pressly ruled that the use of words of severance in such a I 
 did not prevent the right from vesting in those of the class who D 
 survived the testator; and consequently, thai uo pari of bin 
 lapsed by reason of the non-survivance of other persons answering 
 the designation. The testator conveyed his estates to trust • - Foi 
 the purpose, inter alia, that one-third part of the residue thi • 
 should be received by his wife as her absolute property, and as to 
 
 the other two-third parts of the residue thai theyshould be p I 
 
 by his wife in liferent, and after her death be paid and delivi 
 "to mynephewsand nieces, children of <!. !>.. M. D., J. D., and 
 A. D., equally among them, share and share alike, and their heirs, 
 executors, and successors." The testator was survived b} his widow, 
 and by twenty-two nephews and nieces, children oi the persona 
 named in the will. The question was whether two niec< a who sur- 
 vived the testator, but died before the liferentrix, took a vest< ■! in- 
 terest transmissible by will. Tin- Lord I Irdinary laid thai th< y did 
 ia>t. and that the shares which would have fallen to them pa 
 to their legal representatives under the subsequenl destination. U 
 Lordship's judgment, however, was recalled bj Ha Firsl Divisioi 
 
 rem v.nit. o I- fore Up- publico- M ' ' 
 
 tion of the n porl of the judgment of the 888 (anm odchildren 
 
 i: ! i Carleton .. i : "<" ' 1,m ' 
 
 Jul L867 6 Macph. E. L. L67; I ; ' 
 
 I . . A,,. 241. Lord I opinion, 1866, 4 
 
 b nol very definite, appeal "equally" In 
 
 itement of the law substantially. 
 i BequeststoB 
 of Kin 
 
 (y) Rutherford s. Turnbull 
 1 Sh. 88, N. E. 87 I i children ' 
 
 tually divided"); Rutiell ■ B '' 
 
 26Feb 1886 18 b. 661 (1
 
 680 
 
 OF SURVIVORSHIP. 
 
 CHATTER XL. 
 
 Whether jus 
 accrescendi in 
 juint bequests 
 has the force of 
 a substitution. 
 
 the Court, who found that the succession vested at the death of the 
 truster in all the nephews and nieces then surviving. It is assumed 
 in both judgments that the bequest operated in favour of those mem- 
 bers of the class who survived the testator. Lord Kinloch observed, (a) 
 " The bequest here made is in favour of a class, and it appears to 
 the Lord Ordinary that the sound construction of the deed is to hold 
 the bequest to pass to all who should be members of that class at 
 the death of Mrs C. D. (the liferentrix), which is the date of pay- 
 ment and distribution." Lord Curriehill, delivering the opinion of 
 the Court, said, (b) — " The provision is in favour of a class, which 
 means that an equal pro indiviso share of the residue was provided 
 to each individual included in that class ; and the vesting of the 
 right to such a share in each of these individuals at the death of 
 the testator was quite consistent with their number being either 
 diminished by deaths or increased by births before the arrival of 
 the term of payment. In the former of these alternatives, the effect 
 of the death of any one or more of the twenty-one nephews or nieces, 
 would only have been that the legal, testamentary, or conventional 
 successors of each of such defuncts, would take his or her one-twenty- 
 first share. And in the latter alternative, it might be a question 
 whether any nephew or niece, born during the survivance of the 
 widow, would have been entitled to share in the residue." 
 
 1306. The case of Wright's Exrs. v. Robertson (c) raises the ques- 
 tion whether the jus accrescendi implied in joint bequests has the 
 force of a substitution as well as of a conditional institution. The 
 question is of considerable importance in practice, since, if answered 
 in the affirmative, the result would be that even where a right of 
 succession was held to vest in persons constituting a class, a morte 
 testatoris, the bequest would continue to be affected with the con- 
 dition of survivorship until the money were paid or the destination 
 lawfully evacuated. The share of a legatee dying before payment 
 would in that view be carried by his will, if he left one ; but if he 
 died intestate, it would pass to the survivors of the class, and not 
 to the legatee's next of kin.(cT) 
 
 (a) 2 Macph. 1010, note. 
 (6) 2 Macph. 1014. 
 
 (c) Wright's Exrs. v. Robertson, 20 March 
 1855, 27 Jur. 341. 
 
 (d) In the case of marriage-contract pro- 
 visions to children, where a vested interest 
 is held to be taken at birth, a destination 
 
 to survivors necessarily imports a substitu- 
 tion, since no other meaning can be as- 
 signed capable of satisfying the words of 
 the provision. It is clear that there can 
 be no conditional institution where every 
 member of the class takes a vested interest 
 at the moment of coming into existence.
 
 OF SURVIVORSHIP. 681 
 
 CH M ". 
 
 SECTION II. 
 IN WHAT CASES ISSUE TAKE AS SURVIVORS. 
 
 1307. Under the ordinary style of a destination oJ personal 
 
 to a family, provision is made for two contingencies, namely— first, 
 
 the death of any of the children, or persons instituted, bavin- issue; 
 
 and secondhi, the death of any of these persons without leaving: L^ 
 
 . . . 
 
 issue. The first-mentioned contingency is usually provided for by ■ 
 
 a clause instituting issue in the place of their parents; the second 
 contingency is the one to which a clause of survivorship is appli- 
 cahle, and in correctly drawn wills the shares <>i Buch of tin- ! 
 as may die without leaving issue are given to the survivors or sur- 
 vivor of the original legatees, and to the i^sue of such of the h 
 tees as may die leaving issue, per s/irj»s. 1'ut whether by inad- 
 vertence or design, it frequently happens thai clauses of survivor- 
 ship make no mention of the issue of predeceasing legatees, and 
 the question thus arises, whether issue can he held t<> he included 
 in a clause of survivorship by implication ?(e) The question is 
 complicated by the consideration that either of the forms of con- 
 ditional institution here referred to may be raised by implication, 
 independently of the other. The conditional institution of issue 
 may he implied from the relationship of the granter and -Tan' 
 in virtue of the conditio si sine liberis : the conditional institution 
 
 (c) In the construction of destinations to I Cole v. Sewell, 4 D. 
 
 survivors in English wills, the word " sur- & War. 1. issue were held bj 
 vivor" in certain been construed I- to be comprehended in a < 
 
 as "others," so us to include the issue of nation to the surviv< 
 
 . where Buch issue BettL L, B, and < 
 
 ore previously instituted. The rule of quel enl limitation to the 
 
 a ii. re referred t<. is of ■ ■ phew "in ' B, 
 
 limited and technical a character to be and C should happen to die witl 
 
 available for the pnrj - of illustration. Upon the authority of tl 
 
 It appear fined in in..,!, rn | 
 
 ti.-,- to cases where th 
 
 i e-iif ..fill.- failure ol all tl 
 and //<■„■ , tue, a limitation whi a is held fl ov( r, in ca • (A I 
 
 to imply ;i!i int. ntion that 
 
 I 
 
 i,, )!,.■ p rsona to whom th 
 
 given over. Thus in Dot </. Walt v. whereth 
 wright, ■'• 'I. R. 127, a limitation I 
 of a family of children, foil 
 
 Id i.. to ' 
 ;, proportion <■'. I ; ' 
 
 who died with. 
 body of •' child who had |
 
 6S2 OF SURVIVORSHIP. 
 
 ohapteb xl. of survivors may, as we have clearly seen, be implied from the form 
 
 of the destination. 
 F,.ur cases 1308. In the circumstances to which allusion is made, the ques- 
 
 qnestion of im- tion, whether issue are entitled to take by survivorship, is presented 
 &Up d «Sr r " under a variety of conditions, which, however, may be reduced to 
 four combinations. These are — First, where the will does not con- 
 tain clauses providing for either of the events of the failure of the 
 legatees leaving issue, and their failure without leaving issue ; 
 secondly, where the will makes reference to both these contin- 
 gencies, yet without completely providing for all the events ; 
 thirdly, where the will contains a clause substituting children to 
 parents in general terms, without reference to the contingency of 
 death without leaving issue ; fourthly, where the will makes pro- 
 vision for the contingency of the death of some of the legatees 
 without leaving issue by giving the succession to the survivors, but 
 makes no reference to the contingency of the death of a legatee 
 leaving issue. 
 Where will 1309. (1) Where the will does not make provision for either of 
 
 for^rath^f™ e the events of the death of the legatees leaving issue, or their death 
 wfthout issue" or without issue: — In this case the claim of the issue to the parent's 
 leaving issue, original share is founded on the conditio si sine Uteris decesserit, 
 and can only be maintained by the issue of legatees to whom the 
 testator was in loco parentis.(f) The claim of the issue to take, 
 along with the surviving original legatees, the shares of other lega- 
 tees who died without leaving issue, is founded on the jus accre- 
 scendi implied in joint destinations. The argument is that under the 
 conditio si sine liberis, the names of the issue of the deceased lega- 
 tee must be read into the destination, and the destination thus 
 modified must be taken to be subject to the implied condition of 
 survivorship in relation to all the persons comprised in it. We do 
 not apprehend that that is any objection in principle to the com- 
 bination of the two implied conditions in the manner suggested, 
 and we observe that the right of the issue to take by survivorship 
 in such a case is recognised in several decisions, the ratio of which 
 is not affected by the judgment in Young v. liobeiison.^g) 
 import of the 1310. The cases referred to are Rattray v. Blair, reported by 
 
 Hume, and Thomson v. Scougall. In the former case, (Ji) the pro- 
 vision was contained in a contract of marriage, wherein the hus- 
 band bound himself to invest certain sums, amounting to 6300 
 
 (/) RhinoVs Trs. v. Leith, 5 Dec. 1866, 5 (h) Rattray v. Blair, 8 Dec. 1790, Hume, 
 
 Macph. 104. 5^6 ; Binning v. Binning, 1767, M. 13,047. 
 
 (g) Youngv. Robertson [Donaldson's Trs.), 
 4 Macq. 337. 
 
 decisions.
 
 OF SURVIVORSHIP. 
 
 merks, on heritable security, and to take the securities in favour of ohapibbxl. 
 tlie spouses and longest liver in liferent, and to (Jit- children to be~ 
 procreate of the marriage, in fee; failing which, the funds w< re to 
 return to the spouses, their respective heirs an - ven 
 
 children were born of the marriage, whereof three survived both 
 parents, and one left issue, three daughters, by whom an action 
 was Drought fortheir shares. Upon thai simple form oi destination 
 it was held that the pursuers, as coming in place oJ the mother, I 
 right to a fun rili part of the 6300 merks. Had they nol been en- 
 titled to the jus accrescendi, the grand-children would only 1. 
 taken a one-seventh share, and the three surviving children would 
 have taken the remainder, or two-sevenths to each. In Thomson v. 
 Scougall,(i) the destination was contained in a testamentary settle- 
 ment, whereby the truster, inter alia, provided a share of the d 
 clue of his estate to his daughter J. F. or \\\. and her husband in 
 liferent, and to his trustees in fee, >- as trustees for the children -i 
 the said J. F., of her present or any subsequenl marriage, equally 
 among them," whom failing, to her heirs and as Here 
 
 also, there was no express conditional institution either of issue or of 
 survivors. The lif erentrix had four children, noneof whom Burvived 
 her ; but she was survived by grandchildren, the issue of two >>i the 
 deceased children ; and under thejudgmenl of the Court, the issue 
 were found to have right per stirpes to the fee oi the entire fund 
 liferented by their grandim \\ her. 
 
 1311. (2) Where the will makes reference to the two contin^ 
 gencies of some of the legatees dying leaving issue, and others dying 
 without leaving issue, Ian without expressly pro\ iding for the distri- ;. 
 bution of the succession in both evi tits: — < lasea of this description 
 solved by the application of a general rule, which is, thai 
 testator has contemplated the evenl of the death of the l< 
 leaving issue, there is qo room for the introduction oi the conditio 
 si dm liberie. The will, accordingly, falls to be construed accord- 
 ing to the express terms of the destination, and where thes< imporl 
 thai the shares of legatees dying withoul issue are given to the 
 Burvivors, the issue oi other legatees can take nothing bj waj 
 survivorship, but succeed (and thai only ii the will bo directs) to 
 their parent's original Bhares. There is a consid< rable body oi au- 
 thority on this point. 
 1312. In thecaseoi the EovrlofLcmderddU v, /.'/•'■ E 
 
 (») Thorn jail, 12 Sh. 910; 81 
 
 i, 2 S. & M'L. 806; h :1 
 
 // ton, 28 May 1868, 20 D 
 v BaUlie, I Jun< 1822, I 81 I
 
 684 OF SURVIVORSHIP. 
 
 ohaptbb xl. residue of a trust-estate was given to the truster's widow and his 
 four natural children (so designed), in equal shares, with this de- 
 claration, " that in case of any of the said four natural children 
 dying before receiving their share of the said John Forbes' effects 
 hereby settled on them, the same shall be paid to their children, if 
 they shall leave any ; and failing thereof, it shall be divided equally 
 amongst the said surviving natural children." Here there was no 
 room for the implication of the conditio si sine liberis, and the 
 judges were clearly of opinion that, under the terms of the bequest, 
 the issue of a legatee who failed, had right to the original share 
 only of the parent. The next case is Greig v. 3Ialcolm,(l) where the 
 destination was expressed to be in favour of the testator's nephews 
 and nieces nominatim, " and their heirs, executors, and assignees" 
 (words which were held equivalent to a substitution of issue to pa- 
 rents), " and failing any of them before they attain the age of twenty- 
 one years complete, or be lawfully married, the deceased's share to 
 fall and belong to the survivor, or equally to the survivors of them, 
 and to the survivor's heirs, executors, or assignees in fee." The 
 question was, whether any interest by way of survivorship accrued 
 to the issue of a legatee who failed, either in virtue of the implied 
 condition or under the terms of the will? The decision was in the 
 negative ; and it was observed, in the luminous note of Lord Cor- 
 house, that the institution of the heirs of the legatees excluded the 
 presumption upon which the condition is founded, namely, that the 
 testator has overlooked or forgotten the contingency of the insti- 
 tute having children, (m) 
 Effect of clause 1313. But the form of destination which has most frequently 
 sSoul given rise to questions as to the extent of the interest given to the 
 ceased original j ggue Q | ^ie original legatees, are those in which, either in the event 
 wrors, without f the failure of issue of the original legatees, or, in the event of the 
 Tnorsu/viving death of any of the original legatees without leaving issue, their 
 original legatees. ^ are g j ven over to SU rvivors, without any provision being 
 made for the contingency of the failure of others of the original 
 legatees leaving issue. This form of destination has been the sub- 
 ject of no less than four concurring decisions of the Court of Session, 
 the last decision having been affirmed by the House of Lords, (n) 
 The construction established by the decisions embraces two points : 
 first, that the restriction of the provision of survivorship to the 
 special case of the failure of any of the original legatees ivithout 
 
 (l) Greig v. Malcolm, 5 March 1835, 13 286; Vines v. Hillou, 13 July 1860, 22 D. 
 
 ay. £Q7 1436 ; Young v. Richardson [Donaldson's 
 
 ' (m) 13 Sh. 611. Trs.) 22 D. 1527; 15 Feb. 1862, 4 Mac* 
 
 {n) Cldland v. Gray, 15 June 1839, 1 D. 337. 
 1031 ; Walker v. Park, 20 Jan. 1859, 21 D.
 
 OF SURVIVORSHIP. 
 
 leaving issue is tantamount to a conditional institution of the issue chapwbxl. 
 of such of the original legatei - as may die Leaving issue to the 
 extent of the share that was originally given to their respective 
 parents; and secondly, that such issue are excluded from participa- 
 tion in the shares which become vacant by the death of any of the 
 original legatees without leaving issuej in consequence of such 
 shares being given over in express terms to the "survivors" ol the 
 original legatees. The best exposition of the ratio decidendi is 
 contained in Lord Mackenzie's opinion in Clelland v. Grayed) 
 which must be regarded as the leading case ; the judgment ol the 
 House of Lords in Young v. Robertson having be< d given without 
 much reference to principle, and avowedly in deference to previous 
 
 decisions. 
 
 1314. (3) Where to a destination to a plurality of persons there i 
 is added a clause of conditional institution of their issue, ex] 
 
 in general terms, and without reference to the contingency of any ,! 
 of the original legatees dying withoul leaving issue, the conditional ■ 
 institutes are joint legatees, and may take by way ol accrescion as 
 well as under the words of the bequest. Issue so nominated arc 
 evidently in the same situation as those who Bucceed without 
 striction in virtue of the implied condition.! p) 
 
 1315. The question of the extenl of the interesl taken undei 
 such a nomination was raised very purely in the recenl case ol 
 Laing v. Barclay, (q) under a direction to trustees, upon the expira- 
 tion of a joint Liferent of certain heritable subjects, " to divide and 
 pay the free proceeds to and amongsl my children; and in the 
 evenl of any of my children predeceasing the said term ol division, 
 Leaving Lawful issue, it is my desire thai such issue shall represenl 
 and be entitled to the proportion which would bave bi i d payable 
 to their parents." Upon the death ol the Long< si liver ol the lif< 
 
 renters, there were children of the t< stator surviving; bul one 
 
 of the children had I. ii issui . a daughter, who, in accordance with 
 the principle above enunciati d was found to bave right to the i otiro 
 subject. The observations oi Lord Cowan upon the limits ol the 
 application of the principle f Clelland \. Gray and >■ 
 bert8on(r) will command g< w ral assi tit. " It is impoe il l< 
 
 , hold that principle applicable to i 
 
 l D. L087. It will beobserved I 
 \ I. 
 I 
 
 thai the r< fi r< nee to 
 isaueot 
 the <-.,i,e 
 
 i to the mind of tl
 
 086 
 
 OF SURVIVORSHIP. 
 
 CHAPTER XL. 
 
 Where will pro- 
 vides for case 
 of death of the 
 primary lega- 
 tees without 
 leaving issue, 
 but does not 
 include heirs of 
 other legatees. 
 
 clause of survivorship, and where, as in the present deed, there is 
 an express declaration of the extent of the interest in the succes- 
 sion to be taken by the issue of predeceasing children. The same 
 considerations exclude the application of decisions in cases to which 
 the implied condition si sine liberis has been held applicable, 
 whether there has occurred in the deed a proper clause of survivor- 
 ship or not. . . Here it is declared ' that such issue shall repre- 
 sent and be entitled to the proportion which would have been pay- 
 able to their parent.' I cannot read these words as importing any- 
 thing else than that the issue are to stand in the place of their 
 parent, and be entitled to take whatever he could have taken had 
 he survived the term of division." (s) 
 
 1316. (4) Where the will makes provision for the contingency 
 of the death of some of the legatees without leaving issue, by giving 
 their shares to the survivors, but contains no expressions showing 
 that the contingency of the death of other legatees leaving issue 
 was present to the mind of the testator : — In such a case, the issue 
 of a predeceasing legatee is clearly entitled to the benefit of the 
 implied condition (assuming that the testator is so related to the 
 legatees as to be in loco parentis to them). And there does not ap- 
 pear to be any reason for confining the right of the issue in such a 
 case to the parent's original share, because, in reason, the implied 
 condition attaches to everything which the parent would take under 
 the will, whether as an original legatee or as conditional institute 
 under the clause of survivorship. Accordingly, in the absence of 
 expressions showing that the contingency of issue being left was 
 present to the mind of the testator when he gave over the estate 
 to the survivors of the original legatees, issue have uniformly been 
 admitted to participate with survivors in the gift over, (t) Although 
 
 (s) 3 Macph. 1150. (followed by a clause of survivorship). 
 
 (<) On this point we shall simply cite Thornhill v. Macpherson, 20 Jan. 1841, 3 
 
 the cases with the material words of the 
 respective destinations : — Rougheadv. Ran- 
 m'e,1794, M. 6403 : "To mysaid five daugh- 
 ters, or such of them as shall be in life, 
 my whole heritage and moveables, at the 
 decease of my said wife and son and long- 
 est liver of them two, if my said son die in 
 minority, and without lawful children " 
 (see obs. on this case per Lord Corehouse, 
 13 Sh. 611). Wallace v. Wallace, 1807, 
 M. "Clause," App. No. 6: "To the child- 
 ren, whether male or female, of the said 
 Alexander Wallace . . . that may be in 
 life at the decease of the longest liver of 
 me and my said spouse, and that equally 
 amongst them, share and share alike " 
 
 D. 394 : " That the whole of my property 
 be equally divided amongst my children, 
 with benefit of survivorship, if any of them 
 shall die under age, or before the security 
 of their mother's dowry shall justify a 
 partition. Cattanach v. Birnie, 2 July 1858, 
 20 D. 1206 : " To pay to A, B, and C, or the 
 survivors of them, share and share alike, 
 one-half of the whole residue of said move- 
 able and personal estate." ..." To A, B, 
 and C, and the survivors of them, and their 
 heirs, equally among them, share and share 
 alike, or to the survivor of them alone." 
 See also Tulloch v. Welsh, 20 Nov. 1838, 1 
 D. 94.
 
 OF survivorship. 687 
 
 the case of Young v. Robertson may he supposed to have casl hawbbxin 
 
 discredit on the authorities cited in support of this distinction, 5 
 having regard to the number of those authorities, and to the sub- 
 stantial elements of distinction which, as we think, separate this 
 class of cases from that which was the subject of decision in the 
 House of Lords, we do not apprehend that the latter decision ouj 
 to be regarded as having subverted the settled law in relation to 
 this part of our subject. 
 
 SECTION III. 
 WORDS OF SURVIVORSHIP TO WHAT PERIOD REFERABLE. 
 
 1317. According to the received interpretation of destinatioi 
 of personal and mixed succession, the words of destination 1 
 understood to have reference to a definite period of time, when the \ 
 right is held to vest either in the original legate • 8, 01 in those who, 
 in virtue of a provision of survivorship or destination ov< r, are en- 
 titled to it on the failure of the original legatees. Where a proper 
 substitution is created, as in the case of destinations of heritable 
 estate, a provision of survivorship ma^ admit of an indefinite appli- 
 cation in point of time; but in the case of ordinary trusl destina- 
 tions, where the right vests absolutely in the first taker, the deter- 
 mination of the " period of vesting," i.e., the period to which the 
 words of survivorship relate, is obviously the key to the interpn 
 tion of the provision. 
 
 1318. The mere implication of survivorship, arising from the 
 
 ■ ■ -, 111 1 1 
 
 terms of a joint bequest, clearly does no1 aneel the \< sting ol tl 
 .■Mate; and as in this case no particular time Le specified, the legacj 
 will vest in the survivors a1 the death of the t. 3tator.(w) 
 
 1319. Where the distribution of the .Man- la appointed to tab 
 place at the time when the settlement comes into operation, which , 
 is generally at the death of the granter, but Bonn times (as in th< 
 
 of marriage-contracts) al the dissolution of the marriage, no 
 difficulty can arise. In such a case the provision of survivorship 
 can only be intend* d to provide against th< d< ath oi the obj< i ta in 
 the granted lifetime, or during the Bubsisti nee ol the i 
 the case maybe. In such cases, accordingly, the grantee sur 
 ing the evenl taki - an immediate \. sted inn : 
 
 1320. Where, however, the distribution ol the 
 postponed in cons< qui oce oi the • -' ■ >■ bi in bui l< n< d with a I 
 rent or othi rlimited inti r< st.or wh< re tb< | lowborn I 
 
 I iven are in minority, so thai th< n 
 
 (u) D ' ■ I
 
 CSS 
 
 OF SURVIVORSHIP. 
 
 niArTFi; xi 
 
 the event of survivance may be referred, a question of construction 
 is presented, in which regard must be had to various elements, and 
 more especially to the reason of the postponement, and the terms 
 in which the conditional institution of survivors is declared. 
 Words of sur- 1321. The general rule is, that words of survivorship are prima 
 
 /^referable to facie to he understood as having relation to the period of distribu- 
 bution.° f dlSt "" ti° n > so that where a legacy is given to certain persons and the 
 survivors or survivor of them, without reference to time, those 
 persons only who survive the period of distribution are held to take 
 vested interests, to the exclusion of those who survive the testator 
 but die before the distribution. " It is," said Lord Westbury, in 
 the leading case of Young v. Robertson, (x) "a settled rule of con- 
 struction that words of survivorship occurring in a settlement (that 
 is, in a will) should be referred to the period appointed by that 
 settlement for the payment or distribution of the subject-matter of 
 the gift. That undoubtedly is the rule now finally established in 
 this country ; (y) and it has been ascertained from the authorities, 
 that the rule was established in Scotland even before it was finally 
 recognised in this country." 
 
 1322. This presumption or canon of construction may be re- 
 ferred to the principle of presumed intention. We have already 
 seen that a legacy to a class of objects is held to vest at the death 
 of the testator in the surviving individuals of the class, without the 
 necessity of any express conditional institution of survivors. Where, 
 therefore, to a bequest in such terms there is added a destination to 
 
 Rule founded 
 upon presumed 
 intention. 
 
 (x) Young v. Robertson, 4 Macq. 314 ; 
 see the case stated infra, \ 1327. 
 
 (y) According to the older English autho- 
 rities (2 Jarman, 672 et seq.), the presump- 
 tion was, that clauses of survivorship in 
 wills had relation to the time of the testa- 
 tor's death, hut the exceptions to the appli- 
 cation of the rule became so. numerous as 
 virtually to create a presumption the other 
 way. Finally, in the case of Cripps v. 
 Wolcott, 4 Mad. 11 (which immediately 
 became a leading authority), it was laid 
 down by Sir J. Leach, V.-C, as now settled, 
 that if a legacy were given to two or more 
 persons, or to the survivors or survivor of 
 them, and there were no special intent to be 
 found in the will, the survivorship was to 
 be referred to the period of division ; and 
 that where a previous life estate was given, 
 the period of division was the death of the 
 tenant for life. Mr Jarman (2, 684) refers 
 to this change in the law in illustration 
 
 of the mode in which an established doc- 
 trine is overturned. Lord Loughborough, 
 he observes, first departed from the rule, 
 founding that departure upon a circum- 
 stance which furnished no real distinction, 
 but with an anxious recognition of its 
 authority. Sir W. Grant, probably disap- 
 proving of the rale as well as the distinc- 
 tion engrafted upon it, applied the prin- 
 ciple of the exception to a case not war- 
 ranted by the former decision, giving to the 
 rule only a nominal recognition {Daniell v. 
 Daniell, 6 Ves. 297). In a subsequent case, 
 the same eminent judge, while applying 
 Lord Loughborough's construction to an 
 exactly similar case, boldly denied the 
 existence of any contrary rule of interpre- 
 tation, and thus brought about the condi- 
 tion of the law in which his successor could 
 declare that it was "now settled" that a 
 legacy to survivors vests at the period of 
 distribution.
 
 OF SURVIVORSHIP. 
 
 the survivors or survivor of the class of objects, the rule which re- chapti 
 quires that a meaning shall be found if possible for every distinct 
 provision of the will, obliges us to look for some period to which 
 the words of survivorship may be referred, where their operation 
 will be different from that of the survivorship implied by law. This 
 explanation of the rule is in harmony with the distinction ubtii 
 in the sequel, according to which a right of survivorship that i> 
 merely implied from the form of the provision ha- not the effect of 
 preventing the interest from vesting at the death of the testator.(2) 
 In such cases, where a trust is to be kept up for the pur] 
 ing a life-interest, and the division of the fee amongst thesurvivin 
 legatees is postponed to the death of the liferenter, it i> -aid hut w< 
 think inaccurately, that the succession v< sts at tin- period "l distri-d 
 bution. This way of stating the rule does not include tin- case -i 
 a sole survivor, who, according to the authorities, takes a vested in- 
 terest from the time when he I - such by the death of the I 
 of the legatees named in conjunction with him.(a) We prefer this 
 statement of the ride that, in the construction of destinations to 
 survivors, the condition of survivorship has relation to the failure 
 of tin- co-legatees at any time before the period of distribution. 
 
 1323. The case to which the presumption is most constantly « 
 applied is that of a trust of residue or oi specific estate for beho I 
 of a parent in liferent (usually the truster's wife or daughter), 
 and the children or the survivors of Main in fee. [n this class ol 
 cases, the current of authority is uniform in the direction oi the 
 raJ rule. Without entering upon an enumeration of the early 
 authorities, it may be sufficient t" cite the i Robertson \. 
 
 Richardson, decided by the Second Division of the Court in L843, 
 and tla- series of decisions following upon if. terminating with the 
 judgment of the House of herds in Young \. Robertson. In the 
 first mentioned case,(6) where there was a ri siduary destination t" /. 
 the testator's nephews and nieces in liferent and to their children 
 in fee, with the usual institution ot issue, and in case "i death 
 without issue then t., the survivors, an elaborati judgment \ 
 pronounced by Lord Medwyn, in which the principle was affirm 
 that the institution of sun ivore had refcrenci to tin period of i 
 tribution. In the case of a trust with an ulterior di stination 
 observed, if there were /"> indication of a the 
 
 (z) Win tin r f hi - r< i on ■[ ! : ' ' 6 D. 1117 
 
 < ; 
 iden ■! infra, ch • [ t< r 48, sect. 1 ' 'I' 
 
 / 182. 
 
 h 
 
 VOL I
 
 690 OF SURVIVORSHIP. 
 
 ohaptekxl. Court would nut easily allow that destination to be defeated by 
 holding the subject of the bequest to vest. If there were no trust, 
 the presumption against immediate vesting was weaker. A resi- 
 due, he thought, would not vest so easily as a bequest or legacy, 
 the one being a definite sum, the other being indefinite and de- 
 pending upon an ultimate result ; the payment of the one being ex 
 sua nalurd immediate, whereas the other is necessarily postponed, 
 and may easily be made contingent. (c) 
 • v ' "''"" v - 1324. This decision was followed a few years after by a case in 
 
 Thomson. . . ... , ,. 
 
 the First Division, in which an instructive opinion was delivered 
 by Lord Fullerton.(c?) The testatrix gave the interest of £1000 to 
 a lady as a liferent annuity, and directed, as to one-half of the capi- 
 tal, that it should be equally divided between her two nieces " or 
 the survivor of them." In the rubric of the report it is somewhat 
 ambiguously stated that the interest of one of the nieces (who pre- 
 deceased the liferentrix, having previously assigned it to her hus- 
 band) was held to have lapsed. But the report shows that the 
 judges had no difficulty in sustaining the claim of the survivor of 
 the nieces to the whole fund, on the ground, as explained by Lord 
 Fullerton, that a direction of this kind necessarily excluded the 
 possibility of one of the parties defeating, by any deed prior to the 
 extinction of the liferent, the contingent right attached to survivance 
 by the will of the testator, — the survivance in question not being 
 the survivance of both legatees at the time of the testator's death, 
 but the survivance of one legatee in relation to the other. 
 Riehanhon's 1325. The interpretation of the destination in Bicliardson's Trus- 
 
 tee v. Cope (e) was thought to be attended with considerable diffi- 
 culty, by reason of the circumstance that the testator, after giving 
 a liferent of residue to M. E., a married lady, and the fee to her 
 children, A. and C, with a clause of survivorship in the event 
 (which happened) of the death of one of them without issue, pro- 
 ceeded to declare, that in case the said children or the survivor 
 should not have arrived at majority when the liferent expired, the 
 trustees were only to pay them the interest during minority, with 
 a further destination in the event of either of them dying childless 
 during the period of nonage. The Second Division of the Court, 
 by a unanimous judgment, adhered to the principle laid down in 
 Neivton's case, and found that " the whole residue must be paid to 
 the survivor at the time of the death of the said M. K. (the liferent- 
 rix) in consequence of the death of C, without issue, before the 
 term of payment." (/) 
 
 (c) 5 D. 1125. (e) Richardson's Tr. v. Cope, 8 March 
 
 (d) Newton v. Thomson, 27 Jan. 1849, 1850, 12 D. 855. 
 11 D. 452. (f) 12 D. 867. See also Walker v. Park, 
 
 Tr. v. Cope.
 
 OF SURVIVORSHIP. 
 
 
 1326. In several of the subsequent cases the destination 
 complicated by the circumstance of the lift n fit interest being given , ,. 
 to a plurality of persons successively,^) 01 jointly and to the Long- 
 est liver. It is very clear that variations in the liferent destina- 
 tion cannot affect the decision of the question, to what periods 
 destination of the fee, by way of survivorship, has relation. 'I 
 cases of Buchanan v. Downie,(h) and Vines v. HiUou(i) are exam- 
 ples oi suspended vesting during the currency of joint liferents, — 
 the ground of suspension being, in the forme] destination 
 over to other legatees, and in the latter, a righl of survivorship. In 
 Robertson v. Houston } (k) where the destination occurred in a mar- 
 riage-contract givingthe liferent to the longest liver oi thespoi 
 
 and the fee to the surviving children, the survivorship was held, in 
 accordance with the general presumption, to have relation to the 
 death of the longest liver, which, it was observed, must be the ter- 
 minus in view of the testator in a deed which derived it- \\1. 
 operative qualities from the event of survivorship. (I) 
 
 1327. To this body of authority we have to add that of the judg- 
 
 1 1 
 
 
 ment of the House of Lords in Young v. Robertson,(m) a case which 
 muel now be considered the leading authority in relation to tin- law B 
 of vesting. In this case the testator burdened his estate with a 
 liferent of the whole residue in favour of his widow, and the ulti- 
 mate purposes oJ the trusl were expressed in the following terms: 
 — " I will and direct the said trustees to accounl for, pay, and di- 
 vide, or convey . . . the whole residue and remainder oi my 
 property, subjects, means, and estate, heritable and moveable, real 
 and personal, or proceeds thereof, after the death of the last liver 
 of me and my said \\ ife, equally to and among [five persons desi 
 nated], equally, or share and share alike, ami to their respective 
 heirs or assignees, declaring thai ii any oi said residuary I 
 die without Leaving Lawful issue befori his or her shart vest in th< 
 party or parties so deceasing, the same shall belong to, and be 
 divided equally, or share and share alike, among the Burvivoi 
 my said grandnephews," etc. The testator was survived by bis 
 willow; two oi the residuarj died during the cun 
 
 her Life interesl ; and the question was, whether any inl 
 
 20 Jan. 1869, 21 D. 286, hi re the effect 1 
 
 ned I ' I ; 
 Clerk Ingl i I R 
 
 [g) Cklland v. Gray, 16 J 'I 20 D 
 
 I). 1031 : II right l 
 6 D. 78. ' ' 
 
 (A) Bueha D 12 1 
 
 8 Sli. .",!»', 1/
 
 692 
 
 OF SURVIVORSHIP. 
 
 I'll M'TI'I! XI . 
 
 ( (pinion of Lord 
 Westbury. 
 
 Variations in 
 the form of 
 provisions of 
 survivorship. 
 
 in the deceased legatees. A majority of the judges of the Court of 
 Session, putting a special construction upon the words printed in 
 italics, held that the testator meant by that expression to refer the 
 operation of the clause of survivorship to the period of the 
 opening of the succession. But the Court of appeal, taking, as we 
 think, a sounder view of the construction of the clause, held that 
 it did not contain any specification of a determinate period of vest- 
 ing, and that the general rule must be applied. 
 
 1328. The view taken in the House of Lords of the construction 
 of clauses of survivorship, in relation to time, is sufficiently indi- 
 cated in the introductory part of Lord Westbury's opinion. After 
 stating the general rule in the terms already quoted, (w) his Lord- 
 ship continued : — " The application of that rule would lead to this 
 determination in two cases. If a testator gives a sum of money or 
 the residue of his estate to be paid or distributed among a number 
 of persons, and refers to the contingency of any one or more of them 
 dying, and then gives the estate or the money to the survivor, in 
 that simple form of gift which is to take effect immediately on the 
 death of the testator, the period of distribution is the period of 
 death, and accordingly the contingency of death is to be referred 
 to the interval of time between the date of the will and the death 
 of the testator. In such a case, the words are construed to provide 
 for the event of the death of any of the legatees during the lifetime 
 of the testator. By parity of reasoning, if a testator gives a life es- 
 tate in a sum of money or in the residue of his estate, and at the 
 expiration of that life estate directs the money to be paid, or the 
 residue to be divided among a number of objects, and then refers to 
 the possibility, of some one or more of those persons dying, without 
 specifying the time, and directs in that event the payment or dis- 
 tribution to be made among the survivors, it is understood by the 
 law that he means the contingency to extend over the whole period 
 of time that must elapse before the payment or distribution takes 
 place. The result therefore is that, in such a gift, the survivors are 
 to be ascertained in like manner by a reference to the period of dis- 
 tribution, namely, the expiration of the life estate." (o) 
 
 1329. In the cases cited, the destinations, for the most part, con- 
 tained clauses of conditional institution of such of the legatees as 
 might die without leaving issue. Such clauses, while raising ques- 
 tions in relation to the extent of the interest to be taken by the 
 issue of deceased legatees, ought not to affect the construction of 
 the accompanying provisions of survivorship ; nor has any weight 
 been attributed to them, in this sense, in the decisions. As to the 
 («) Supra, I 1327. (o) 4 Macq. 319.
 
 OF SURVIVORSHIP. 
 
 forms of clauses of survivorship, the decisions embrace all thi U6 
 examples; and whether the destination be to the legal si 
 subject to a declaration that the shares of those who may die with- 
 out leaving issue shall go to the survivors, or whether the destina- 
 tion gives the whole estate to the survivors on the failure oi the 
 primary institution, or immediately to the surviving individuals of 
 the class, the presumption holds g I, and the right of survivor- 
 ship is referred to the period of distribution, (p) 
 
 1330. In the class of cases under consideration, the separation - 
 of the interests of the liferenters and Bars Is mos1 usually effect 
 by means of an appointment of trustees, to whom the estate is 
 veyed for the purposes of conservation and distribution. In tl 
 greater number of the reported cases, if not in all of them, the trust 
 consisted either of personalty, or of blended heritable and moveable 
 estate treated as one succession. It is nol undeserving of considera- 
 tion, whether the construction established ly the decisions would 
 hold good where there was a difference of circumstances involving 
 either or both of these material elements. Where estate is put into 
 the hands of trustees for the purposes of distribution, we think that 
 it.- quality, as heritable or moveable, ought not to affect the qu 
 tion of vesting.(g) But in the cast of a dired conveyance of herit- 
 able estate to one person in liferent, and to certain othi rs and the 
 
 (p) The rule was also applied, in D ' ' 
 
 dldson'a Trs. v. Macdougall, 15 Jan. 1864, I.. J. Ch. II. where, upon 
 2 Macph. 428 (a diffi renl branch of the i state to tl 
 
 f orm( ,1, cib -I |, to a '1' jtination in iiiL' that,on hi rdi ath, ii liould 
 which, "a t!i>- failure of the I ] share :'lil>- 
 
 grandnieci nominatim or il- 
 
 survivors of them and my grandnephev. 
 thus bringing in m w Ii gati i along with Bru 
 Burrivore. Such a destination partaki of 
 the nature of a distincl conditional in 
 tntion or destination ovi r, bul the elemeni which the Burvi> 
 f survivor ! involved in it aa to as prevented th I 
 
 nee 
 
 tribution for the a c. rtainment of the oh- and thai ii 
 
 jecta of the beq ' '''"" tho v 
 
 ( g ) Mr Jannanon erv< i (vol. ii 
 
 . which alth ugh often di 
 
 approved of b 
 
 forhid the application of the rule in quea- n I ' 
 
 tiontoi mdthatthi 
 
 ofr 
 
 be Lefl to future deci iona to deti rn 
 the actual ml. 
 sired del
 
 OF SURVIVORSHIP. 
 
 chapter xl. survivors or survivor of them in fee, the question is different, and 
 it will he found to resolve into this, whether conditional institution 
 or substitution is the law of the succession. If the decision is for 
 substitution, as in dubio it must be according to the settled rules of 
 interpretation of heritable destinations, then past all question the 
 vesting is immediate, and the destination to survivors assumes an 
 indefinite signification as to time, being operative as a simple des- 
 tination until it is evacuated by the act of the disponee. One ex- 
 ception to this theory of construction must be admitted, — the case 
 where children nascituri are comprised in the destination of the fee. 
 In this case, although a vested interest is undoubtedly taken by the 
 fiars in esse at the opening of the succession, yet the destination is 
 not susceptible of being defeated by their acts, until the estate shall 
 vest in the individual objects of the class who may eventually come 
 into existence. The right of the flar in esse in such a case may be 
 considered as a fiduciary estate, or, more correctly perhaps, as a 
 vested estate in fee, subject to the condition of being divested to a 
 certain extent, in the event of other objects of the class coming into 
 existence. 
 
 Martin's Trs.v. 1331. This was the view taken by the Second Division of the 
 
 MiUiken. Court in the cage of 2fartm f a Trs. v. Milliken{r), where a testator, 
 
 by his settlement, gave and disposed his heritable and moveable 
 estates " to and in favour of his sister J. M. in liferent, for her life- 
 rent use allenarly, and to and in favour of E. M., and of the lawful 
 children of the said J. M. in fee," with an ulterior destination. The 
 judgment bears " that according to the sound construction of the 
 disposition mortis causa of the deceased, the fee of his entire estate 
 was conveyed to the now deceased E. M., subject to the condition, 
 that if J. M., the liferentrix of the estate, should have children, 
 such children should be entitled to the beneficial enjoyment of one- 
 half of the fee of the said estate." It was further found that no 
 such children ever existed ; that a disposition granted by the dis- 
 ponee during the lifetime of the liferentrix was effectual, and that 
 the ulterior destination of the settlement was thereby evacuated, (s) 
 The reasoning by which these conclusions are reached is unexcep- 
 tionable, and the doctrine of conditional vesting recognised in this 
 case must be regarded as a valuable addition to the theory of vest- 
 ing, to which resort may be had for the solution of cases of com- 
 plexity in which effect cannot be given to the testator's intention 
 by any of the ordinary methods. 
 
 Effect of death 1332. The rule by which words of survivorship are referred to 
 
 ofciTe e g n at e ees 0r on (r) Martin's Trs. v. MiUiken, 24 Dec. («) 3 Macph. 335. 
 
 the vesting of 1864, 3 Macph. 326. 
 the fee.
 
 OF SURVIVORSHIP. 
 
 the death of the liferenter must be understood as qualified by the 
 condition that the liferenter survive'- the testator. Accordingly, 
 where the gift of the liferent lapses by the predecease of the obj 
 of it, the fee will vest immediately on the death <>t the testator in 
 the surviving legatees. And where, according to t : ption of 
 
 the will, the vesting of the fee, or reversionary Lnteresl in a succession, 
 is postponed to the period of distribution (by the operation of a clause 
 of survivorship), if all the beneficiaries but one should either die or 
 renounce the succession before the arrival of the period of distri- 
 bution, the surviving beneficiary takes an immediate \- sted inter- 
 est, because the cessation of the contingent interests which suspend 
 the payment, removes the only obstacle to the acquisition of a 
 vested right.(tf) Similarly, where the issue of such legatees as maj 
 die leaving issue arc called to the succession along with the surviv- 
 ing original legatees, the succession will vesl absolutely in such 
 issue after the death of all the original Leg yen it the failure 
 
 should occut before the arrival of the period of distribution. This 
 is the principle of the cases of Gattanach v. Tham's Exv8.,{v) whi re 
 the beneficial interest in the residue "fa trust-estate was held to 
 vest in the only <■/,;/</ and heir of the Last surviving residuary Lega- 
 tee, and of Maitland'8 Trs. v. WDermaid^x) where the residuary 
 estate was held to vest in the testamentary heir ol the lasl surviv- 
 ing legatee — tli«' heir of the last survivor in both cases having died 
 in minority, before the arrival of the period of distribution. 
 
 1333 Accordingly, where a joint inti real in a li gacy or residu- wi 
 ary bequest, which is subject t<> a liferent, comes to vesl in the 
 surviving Legatee, the trustees are bound, if the Liferenter tender a 
 discharge of his interest, to denude in favour oi the fiar.(y) Tin 
 existence of a power of disposal on the pari of the Liferenter might 
 inter),.]',, with this resull unless the faculty were also renouna d 
 
 (/) Fotdiav. Foulit, 8 Feb. 1867, 19 D. wa . whether tl 
 
 v /.■ 1826, I Sh. 659, N. E. c< 
 
 665; < ougoU, 12 Sh. 910, 81 tenanl for lit 
 
 2 S. & M'l,. 805: Maxwell ?. ano of I 
 
 006. *e the full I 
 
 Cattanach v. Thorn Exrt., 2 July I 
 20 D. 1206 (fli ' ■' " ,l " whicb 
 
 i/ // maid, L6 tl estate I I 
 
 D. 782. T 
 leadtoth. 
 WhiU /• where thi f< to L" 
 
 A. for la., an I after the death of A. to B. th I 
 and C. equal] . and it' either B. or I I ' ' 
 
 should die in the lifeti fA.,1 
 
 to the survivor ; and both the joinl I 
 died in the lifeti.
 
 696 OF SURVIVORSHIP. 
 
 ohaptee xi. With respect to the effect of a destination over in preventing the 
 ~ acquisition of a vested interest by a surviving original legatee, re- 
 ference is made to the subsequent chapter on vesting, (a) Where, 
 as in the case of Pretty v. Newbigging,(l) the original legatees are 
 evidently the favoured objects of the will, and their heirs or issue 
 are instituted merely by way of limitation or to prevent a lapse, the 
 right would certainly vest in a sole survivor ; but where the ulte- 
 rior destination is of the nature of a proper conditional institution, 
 the interest of the substituted legatees would most probably be held 
 to be sufficient to prevent the vesting of the estate, (c) 
 Rule that sur- 1334. The rule that survivorship has relation to the period of 
 
 reiat'inn'to'dL distribution, applies only to the institution of survivors by express 
 tribution does destination, and not to the survivorship implied by the law in lega- 
 
 not apply to be- ' ..:.-,-,. r • 1 • i 
 
 quests to a class cies to a class of objects. The principle of the doctrine of implied 
 survivorship is, that a testator, when he gives a specific subject or 
 a sum of money to several persons jointly, or under a collective 
 designation, gives the whole to each of the legatees subject only to 
 the interest of the others, his intention being, that any one of them 
 should take the subject rather than his heirs-at-law. The condition 
 of survivorship being implied only for the purpose of avoiding a 
 lapse in the case of any of the legatees dying before the legacy has 
 vested, the implication ceases at the earliest period at which the 
 legacy can vest, namely, at the death of the testator. 
 Douglas's Trs. 1335. The decided cases offer many illustrations of this proposi- 
 
 v. Douglas. ^ Qn . -^ j g Ql ^ necessary to refer to some of the more recent. In 
 the important case of Douglas Trs. v. Douglas, (d) where the tes- 
 tator provided, as to two-thirds of the residue of his estate, that it 
 . should be held by trustees for behoof of his wife in liferent, and 
 after her decease, for payment and delivery thereof to his nephews 
 and nieces, children of A. B., C. D., etc., equally among them, 
 share and share alike, and their heirs, executors and successors ; 
 it was held by the First Division of the Court that the nephews and 
 nieces surviving the testator took a vested interest. Lord Currie- 
 hill, delivering the opinion of the Court, said there was here an 
 absence of the usual indications of an intention to suspend vesting 
 to the date of payment. " In the first place, the survivance of the 
 term of payment is not an express condition of this provision. The 
 provision is granted to the nephews and nieces without qualifica- 
 
 that a mere power of division among the (c) Ferrie v. Ferrie, 23 Feb. 1849, 11 D. 
 
 objects of the destination is vacated as 704. 
 
 soon as the right becomes vested by sur- (d) Douglas' Trs. v. Douglas, 31 March 
 
 vivanee in one individual. 1864, 2 Macph. 1008 ; and see observations 
 
 («) Chapter 43, section 1. per Lord Corehouse in Forbes v. Luckie 16 
 
 {b) Pretty v. Newbigging, supra. Sh. 378.
 
 OF SURVIVORSHIP. 
 
 tion, and not to them and the survivors of them. In this res] 
 this case is distinguished from the case of Donaldson, (< ) wl 
 difficulty was. whether a certain clause in the deed in question did 
 or did not import a condition of survivorship.*^/) It should be 
 mentioned that there was an exception from the destination of tin- 
 personal estate applicable to the person who should succeed to the 
 testator's heritable estate; but their Lordships were of opinion that 
 this was a resolutive condition, importing merely a liability to 
 divested upon the occurrence of the contingency.^) 
 
 1336. In Romanes v. Riddell,(h) where the destination was in 
 contract of marriage a joint liferent was given to the spouses, and 
 the fee was destined "to the child or children of the marriage, in 
 such proportions, if more than one child, as the father and mot) 
 
 or the survivor of them, may dired ;'" it was held thai the provision 
 vested at the dissolution of the marriage. And where, in a mutual 
 testamentary settlement, a legacy of £6000 was given, after the 
 death of the longest liver, to one person in liferent, and after the 
 death of the liferenter to another legatee, ••whom failing, to bis 
 children equally between them, share and share alike;" and the 
 father of these children died before the trusl came into operation, 
 his children were hold to have taken a vested interesl at the di ath 
 of the longesl liver of the testatoi 
 
 1337. While, in various instances, deferred l< gacii - to a plui 
 lity of persons without words of survivorship have been held to v< -' 
 only at the death oi the liferenter, it will be found that in such 
 
 a the suspension of the vesting had no reference to any im] I 
 right of survivorship, bul was consequent either upon an ulteri 
 destination to other legati es, taking i fleet upon that event, or up' 
 some other contingency, (k) h d< servi 9 to be • onsid< n i wheth< r 
 
 ( e ) 4 to tl 
 
 ph. 1013. '" Mitchell v. ' 
 
 ph. 101 1. 
 (h) I . Riddell, 1 
 
 /■.hi .11 whU< in / 
 
 j„] A . imil -i di 2 ">i '•■ ■ 
 
 in height* 
 
 si. In 
 wit],- • 
 
 n that tl,. 
 till iid. 
 
 Jtill conflning our ill 
 the moi 
 
 • d to in the text, it * 
 •
 
 698 
 
 OF SURVIVORSHIP. 
 
 OHAFTFTi XL. 
 
 Presumption 
 that words of 
 survivorship 
 refer to period 
 of distribution 
 overcome by 
 evidence of con' 
 trary intention. 
 
 Where period 
 of survivorship 
 fixed by the 
 terms of the 
 will. 
 
 in the case of a joint bequest followed by a destination over, the con- 
 struction does not require that the legacy should he held to vest in 
 the original legatees a morte testatoris, subject to the condition of 
 being divested in the event of the death of all the legatees before 
 the liferenter. If the legacy in such a case were held to vest at 
 the period of distribution, and if any of the original legatees should 
 survive that period, the result of this construction is, that while 
 the substituted legatees, whose contingent interest was the cause of 
 the suspension, would take no benefit by it, the surviving original 
 legatees would take the estate to the exclusion of those who died 
 in the interval between the death of the testator and that of the 
 liferenter, which in effect is equivalent to the importing a condition 
 of survivorship into the will. By the method of vesting the right 
 in the original legatees for their respective interests, subject to the 
 condition of divesting in the event of none of them surviving the 
 liferenter, the right of the substituted legatees under the destina- 
 tion over is saved, while, inter se, the original legatees have the 
 full right of their shares, and are in a position to dispose of them 
 without being trammelled by the condition of survivorship. The 
 proposed construction has the merit of satisfying the words of the 
 will, and it is not open to the objections which may be urged against 
 substitutions in moveables, because, in the meantime, the fund re- 
 mains in the custody of the trustees for the benefit of those who 
 may ultimately be entitled to it.(Z) 
 
 1338. The presumption that a bequest containing an institution 
 of survivors vests at the period of distribution is only conclusive in 
 cases where, in the language of Sir J. Leach, " there is no special 
 intent to be found in the will,"(» or, as Lord Westbury puts it, 
 where the provision of survivorship is made without specifying the 
 time, (ft) The presumption therefore is overcome if the will con- 
 tains either a specification of a definite time when the provision of 
 survivorship shall take effect, or a declaration of purposes inconsist- 
 ent with the supposition of vesting at the period of distribution. It 
 only remains that we should briefly indicate the recognised excep- 
 tions to the operation of the presumption. 
 
 1339. (1) Where the condition of survivance has relation by the 
 
 (l) After an anxious examination of the 
 English decisions on the doctrine of vesting 
 and divesting, it appears to us that the 
 law on this suhject cannot, in its present 
 condition, be made auxiliary to our own. 
 But the principle has much to recommend 
 it, and is susceptible of being applied o 
 the explication of the class of cases referred 
 
 to in the text, upon considerations quite 
 independent of the special applications 
 which it has received in the law of Eng- 
 land. 
 
 (m) Cripps v. Wolcott, 4 Madd. 11, cited 
 supra, \ 1321, note (y). 
 
 (n) Young v. Robertson, 4 Maoq. 319-20.
 
 OF SURVIVORSHIP. 
 
 terms of the clause to a specified time. As, for example, in Rogt r- • 
 son's Trs. v. Bogerson,(o) where tnis - re directed to hold a fond 
 for behoof of the husband and wife in certain events, and 
 decease of both spouses the money was to be paid to the child or child- 
 ren of the marriage, and if there should be more than one such child 
 "to be divided in equal proportions amongst the children surviving 
 at the time." And again, in Mitchell v. MitcheU,(j>) where a lift i 
 was given to the testator's grandchildren and the survivors of them, 
 and it was provided that " upon the death ofiht said grandchildren 
 .... the fee and full riijlit <>[' the capital fund or stock of my said 
 estates sin ill pertain and l„ l,,n<j to the lawful children ol their bodi 
 In such cases the period of vesl ing is pointed out by the Bettlen 
 itself, and the presumption is therefore excluded. So, where a U sta- 
 ter, having appointed a definite period of vesting in relation to i 
 part of his estate, proceeds to dispose of another part of it to the 
 survivors of a class of objects, withoul special reference to time, it 
 may legitimately be inferred, in the absence of distinguishing cir- 
 cumstances, that the condition of survivorship has relation to the 
 time appointed in the previous part of the destination. (q ) < >n this 
 principle, a reversionary interesl given by a testator to his nephew 
 "in case of hie survivance of me," failingwhom, toother heirs, \ 
 held to vest in the nephew a morU testatoris.(r) After stating the 
 import <if the presumption established in th< D 
 
 Trustees, the Court observe, "Bui giving fulleffecl to this presump- 
 tion, we musl also take into account the rest oi the d< ed before we 
 
 can get all the elements for judging ol the intenti 1 the U Btator, 
 
 which no mere general principle is to be allowed to overrule. '1 be 
 trust* e says thai the estate shall go to A. 1'. ' in i as< ol bis surviv- 
 ance ot me.' This, taken by itself, imports that ii A. F. butvi 
 the truster, the estate was to vt si in him, although he was qi I 
 come into the beneficial enjoymenl till the death oi the widow.' 
 1340. (2) Where the distribution of the succession is i 
 
 (o, Roger son' t T 
 L866 8 Macph 68 I 
 
 8 Macph 721. 
 
 Lord Ki„v 
 / Boreloy,2Ql ■>'• '''■■"'•' 
 
 ill.; ill.; in .1, , 
 
 fifth and sixth pun - th« I th« 
 
 (r) Campbell v. C pbeW, Tr.., 21 D 
 
 ph. 206. 
 5 Macph. 211, per Lord I- , In 
 ralofthe] 
 pfauryivorsbipl 
 other ]■ rio I than that
 
 ■|)0 
 
 OF SURVIVORSHIP. 
 
 chapteb xi.. merely for the purpose of providing for the payment of an annuity 
 ~ or annuities, the presumption against vesting is very much weakened. 
 Although in special cases the condition of survivorship has been 
 held to have relation to the period of the death of the annuitant,^) 
 yet slight indications of a contrary intention will be sufficient to 
 satisfy the Court that the radical interest was meant to vest at the 
 period of the testator's death, (u) and, in general, the presumption 
 would appear to be in favour of vesting at the earliest possible 
 period. (x) In the latest and most authoritative case of this de- 
 scription, it was observed by Lord Cran worth, that it would require 
 much stronger language to satisfy the Court that there was an in- 
 tention to suspend in the case of an annuity than in that of a life- 
 rent, (y) 
 where object of 1341. (3) Where the distribution of the estate is postponed 
 !Tmereiy n t'ii I e merely for the protection of the interests of the legatees, as in the 
 protection of case f a f imc | destined to minor children and the survivors of them, 
 
 the interest of , ...... 
 
 minor legatees, payable to the legatees on their respectively attaining majority or 
 being married, we should consider that to be the more reasonable 
 construction, which would vest the succession at the death of 
 the testator. If the question is to be determined by precedent, it 
 is necessary to leave out of view the cases in which the ultimate 
 destination is preceded by a grant of a liferent interest, that element 
 being sufficient in itself to raise a presumption for postponement of 
 vesting. Again, where the profits of the estate accruing during the 
 minorities of the children are either undisposed of, or are subject 
 to accumulation for the benefit of the surviving children, or are ap- 
 plicable to other purposes, the gift of the reversionary estate is in 
 substance as well as in form a legacy payable on an uncertain event ; 
 the maxim dies incertus pro conditione hahetur is applicable, and 
 the right does not vest until the condition is purified. But where 
 the income of the estate is applied by the will to the maintenance 
 of the children during the period of nonage, the right does not ap- 
 pear to be dependent, in any fair view of its nature, upon the con- 
 tingency of the attainment of majority. There is not much autho- 
 rity in reference to the species of destination to which we immedi- 
 ately refer, but what we have been able to discover is in favour of 
 the principle of immediate vesting in such a case ; and, in particu- 
 lar, the point appears to be so ruled in the case of Maitland's Trs. 
 v. 3ri)ermaid.(z) In this case an interest in a residuary estate 
 
 (t) Pearson v. Casamaijor, 15 Sh. 275; (x) Pursell v. Newbigging, 10 May 1855, 
 
 18 July 1839, M'L. and Rob. 685, 687; 
 Johnston v. Johnston, 9 June 1840, 2 D. 1038. 
 (u) Watson v. Macdougall, 4 June 1856, 
 18 D. 971. 
 
 2 Macq. 273. 
 
 (y) 2 Macq. 276. 
 
 (z) Maitland's Trs. i 
 March 1861, 23 D. 732. 
 
 M'J)e 
 
 id. 15
 
 OF SURVIVORSHIP. 701 
 
 given in the terms under consideration, was held to ha"\ 
 the longest liver of three children, who all died in minority, thot 
 whether the two-thirds primarily destined t<> the othi in 
 
 1 1 i in by survivorship or as nexl of kin of his deceased brotl 
 not expressly determined. Lord J.-C. Inglis observed, thai h< could 
 conceive no stronger character of a gift of residue than that the 
 testator should wish his trustees to hold it for b< his children, 
 
 and to pay out of it such sums as should bi ry for tl 
 
 maintenance and upbringing, (a) and there are other passages in I 
 opinions of the judges favourable to the suppi sit ion of immediate 
 ting. Some of the Later cases exhibit a leaning on the part of 
 the Court to this construction, without affirming it as mattei 
 positive decision.(ft) 
 
 1342. (4) The presumption is much stronger in favour of vesting I 
 in the ease of provisions to children in marriage-contracts than . 
 that of testamentary bequests. Such provisions are m 
 declared to be giv< o in satisfaction of legitim, and have, tl, 
 
 .. f the qualities of obligations. From tin i ircumsfc i 
 
 j, i s natural to infer that the intention is to gh I at 
 
 the time when the righl to legitim would accrue. Accordingly, it 
 appears to be settled by the mosl recent decisions that marria 
 contract provisions, even when aol secured bya fund set aparl in the 
 father's lifetime, vest al the dissolution of the marriage, or, at 
 events, at the death of the father, which, a< ly, is tob 
 
 tne period to which the provision of survivorship n 
 Where a pr< Eer( ntial right is constituted in favour oi childn a by 
 the conveyance of a fund to trustees in the parent's lifetime, the 
 children are held to take vested interests al birth, subje< 
 or diminution, by the coining into existence oi otl 
 provision or their removal by death durii 
 marriage.(d) W< n f< r to a subsequent cl ra fulli i 
 
 timi of this Bubject.(< ) 
 
 1343. In conclusion, r< f< renci may b( made to I 
 destination of a liferent interesl to a plurality. 
 Burvivors or survivor oi them. Such a dcstinatioi 
 theforceboth ofa conditional institution and • ' 
 
 the former sense the conditio i 
 t j lown to the period of actual] 
 
 ... n - - i" " 
 
 I
 
 702 OF SURVIVORSHIP. 
 
 chaptek xl. strictly personal cannot vest in the persons to whom it is destined 
 until it takes effect in possession. But as equity requires that the 
 provision of survivorship should be construed in a sense favourable 
 to the legatees, the destination will also be held to attach to the 
 right as long as it is capable of enduring, insomuch that on the 
 death of any of the joint-liferenters the entire life interest will con- 
 tinue to be enjoyed by the survivors or survivor, and the fiar will 
 not come into possession until the death of the longest liver of 
 the annuitants. (/) 
 
 (/) Tulloch v. Welsh, 23 Nov. 1838. 1 1837, 15 Sh. 1005 ; Johnston v. Johnston, 
 D. 94 ; and see Maxwell v. Wylie, 25 May 9 June 1740, 2 D. 1038.
 
 BEQUESTS TO HEIRS. NEXT OF KIN, EXECUTORS, ETC. 
 
 
 CHAPTER XU. 
 
 BEQUESTS TO HEIKS, NEXT OF KIN. EXECUTORS 
 ISSUE. FAMILY, AM' RELATIONS 
 
 1344. The class of destinations which is imw to be consider* I I 
 is distinguishable from that which is the subject of a pn 
 chapter by one general characteristic. In proper heritable destin- 
 ations, words descriptive of heirs comprehends series of pen 
 taking the estate in succession; in designative designations, the 
 Words of designation apply cither to one person, or to a plurality 
 of persons taking the estate at the same time. The construction 
 of designative designations presents many interesting questions, 
 and although the law of the subject cannot be considered to h 
 attained maturity, a considerable amounl of authority has accumu- 
 lated in reference to the construction of the more common d< - 
 native appellations. 
 
 1345. I. General designative destinations.—" ffi V>." •• // 
 and Assignees."— -The term "heir" or "heirs," when us< 
 designatio personarum, has a fixed and invariable signification m] 
 the law oi Scotland. It means the person who would be entitled 
 by operation of law to Bucceed to the ancestor or j 
 
 1:". t i..u to the >iil,j.-,-i of disposition. Where, tl 
 
 s j (l ii is heritable, a destination to heirs is a destination in 
 
 of the heir-at-law. (a) Wh. re th< rion ie mov< abl( . a •!• 
 
 cation to heirs was Eormerly equivalent to a 1< gacj to the in xt of 
 
 kin. an. I now to the persons i ntitled tosu I under tl 
 
 Succession Act.(6) And jo firmlj rooted is this rul< 
 
 I In II,- '■' 
 
 trf r. ..] - 
 
 tatoi ' 
 
 l 
 
 appointed by la* 
 
 tateinqm '■ D ' 
 
 man on W 
 
 /,.„-„, .1. 
 
 lectiTi
 
 '04 
 
 BEQUESTS TO HEIRS, NEXT OF KIN, EXECUTORS, 
 
 <'ii.\rTi:i; \i.i. 
 
 Destination to 
 "heirs" operates 
 as a conditional 
 
 institution. 
 
 " Heir" not 
 
 flexible in rela- 
 tion to the per- 
 son, and does 
 not denote heir 
 under a pre- 
 viously executed 
 disposition. 
 
 tion, that in the case of a mixed succession of heritable and move- 
 able estate, it is held that a general destination in favour of heirs 
 and assignees carries the heritable estate to the heir-at-law and the 
 moveable estate to the next of kin,(c) contrary to the general rule 
 against giving different meanings to the same words in the same 
 place. 
 
 1346. This result was not attained without some conflict of 
 judicial opinion, but undoubtedly the tendency of the decisions has 
 been uniformly in the direction that has been indicated. At an 
 early period in the development of this branch of the law, it was 
 supposed by some that the addition of the words " heirs and as- 
 signees " to a legacy in favour of an individual was only intended 
 to give him the power of bequeathing or assigning, in case of his 
 acquiring a vested right. This was strongly maintained in the case 
 of Inglis v. Miller, (d) on the construction of a bequest to an indi- 
 vidual, her heirs, executors, or assignees ; but the Lords found 
 " that the legacy in question having been left to Isobel Inglis, her 
 heirs, executors, or assignees, did not become caduciary by her pre- 
 deceasing the testator, but found that the same did fall and belong 
 to Kichard Miller, her son, as conditional institute," and that the 
 same was effectually carried by confirmation. A similar decision 
 was pronounced in the case of the Earl of Moray v. Stuart, (e) 
 
 1347. There was then a struggle to give to the words " heirs 
 and assignees " the character of an expression of flexible meaning 
 applicable to heirs designed under a former will or deed of investi- 
 ture. But this mode of construction was condemned by the judg- 
 ment of the House of Lords in Baillie v. Tenna?it,(f) reversing that 
 of the Court of Session ; and in subsequent cases it has received but 
 
 sentatives ; but that slight indications of 
 intention will be sufficient to impress that 
 meaning upon the word. Where the gift 
 to the heirs is by way of substitution (or, 
 as we should say, conditional institution), 
 this will generally be sufficient to deter- 
 mine the construction in favour of the per- 
 sonal representatives, because the testator 
 is presumed to mean the same persons to 
 whom the legacy would have descended if 
 it had vested in the institute ; per Lord 
 St Leonards, ut supra, and cases of Vauz 
 v. Henderson, 1 J. & W. 388, n., and Git- 
 tings v. M'Dermott, 2 My. & K. 69. In 
 some cases the term " heirs " has been con- 
 strued in the sense of children; cases cited, 
 2 Jarman, 3d ed. p. 76. 
 
 (c) Blair v. Blair, 12 D. 97. Where 
 real estate in England is conjoined with 
 
 personalty in a gift to the heirs of A., the 
 difficulty of giving different meanings to 
 the same words in the same place is held 
 to be an argument for construing the gift 
 in favour of the heir-at-law, as to both 
 species of property; De Beauvoirs case, 
 supra ; Tetlow v. Ashton, 20 L. J. Ch. 53. 
 
 (d) Inglis v. Miller, 1760, M. 8084. 
 
 (e) Bad of Moray v. Stuart, 1782, M. 
 8103. See chapter 37 (Conditional In- 
 stitution) as to the subsequent cases on 
 this point, and the distinction taken in the 
 case of a direction to convey estate to an 
 individual and his heirs and assignees. 
 
 (/) Baillie v. Tennant, 1766, M. 14,941; 
 26 March 1770, nom. Chatto v. Baillie, 2 
 Pat. 243. See also Earl of Selkirk v. Duke 
 of Hamilton, 27 March 1779. 2 Pat. 449.
 
 ISSUE. FAMILY. AND RELATION 
 
 little encouragement. (g) A legacyto the heirs of A. B. tails I 
 next of kin, not to his testamentary representative 
 
 1348. In this view of the construction of the term, th< 
 in the case of Okie's Trs. v. '/'/'« Kirk-S 
 
 to serious observation. The testator by his settlement 
 
 sidue of his estates to trustees for curtain charitable purpoe 
 
 by a subsequent testamentary writing he directed t] 
 
 to be invested on heritable security,™ the name of his trustees, for 
 
 behoof of his son in liferent, the fee to his son's child or childi 
 
 failing whom, he provided that the said sum "should fall and be 
 
 paid to his own nearest heirs and a 
 
 competition betweeD the truster's Haw and the trusl 
 
 the charity, claiming as residuary legal es, th< < nrl pi . rred the 
 
 latter, chiefly in respect of the presumption that t! uld 
 
 not mean to die partly testate and partly intestate. (k) I 
 
 of the decisiou appears to involve a fallacy ; because, in re ility, the 
 
 heir-at-law did not claim the legacy ab intestate, but as a conditio 
 
 institute under the destination. 'I Paton v. Hamilton,* 
 
 i by the judges as a precedent, depends upon different prin- 
 ciples. The question there was as to the succession to a fund 
 cured by marriage-contract to the children of the marriage, whom 
 failing to the husband by nam.', and his heirs and I 
 
 provision was merely in obligatione, and the object of the ultim 
 di stination was obviously to reinstate the husband in the i 
 the marriage being dissolved withoul issue surviving ; "heirs and 
 signet - " being adjected merely as pari of the styl 
 conveyance, or, in English p] limitation. In tl 
 
 case it was rightly held that the fund fell iindei the hu 
 in the ev< nt. which happ< w d, of his death without D 
 
 do not think that this is a mode ot construction which • 
 applied for the purpose oi eliminating lar conditional in 
 
 tution of heirs from a legacy in a will or codicil. 
 
 1349. The rule thai the word " '■ 
 
 an interpretation coi r< sponding to the qualit) i 
 position, has been consistently maintain 
 The poinl was firsl elaborately argu< d in a i 
 obligation in a contracl of i 
 spouses in liferent, and th< hi ii - ol tin 
 
 i 
 (h) s i' 
 
 97. /. 
 
 D 
 
 Vol. i. 

 
 706 
 
 BEQUESTS TO HEIRS, NEXT OF KIN, EXECUTORS, 
 
 ohapteb xi.i. ing, to the wife's heirs or assignees. (m) In this case the argument 
 "for the heir-at-law prevailed, though the subject was undoubtedly 
 moveable. But the true principle was asserted not long after in a 
 case which went to the House of Lords ;(«.) and in Robertson v. 
 Kerr,(o) — where also the competition between the heir and the exe- 
 cutors had relation to a money provision in a marriage-contract 
 containing a destination over to heirs and assignees, — it is stated by 
 Elchies, who reports the case, that the Lords found that the heir 
 had no claim on the contract, for they thought that such a substi- 
 tution of money provisions in a contract, failing issue of the mar- 
 riage, to the man s heirs and assignees, which is common in mer- 
 chants' contracts, is not intended to make the man's whole stocking 
 heritable, nor to hinder him, failing issue, from the power of test- 
 ing. And again, in the case of Bowie v. Bowie,(p) a majority of 
 the judges were of opinion, " that the term heirs must always be 
 interpreted according to the nature of the subject with respect to 
 the succession of which it occurred as a word of destination ; that 
 in a destination of an heritable subject it denoted the eldest son 
 the proper heir of heritage ; that in a moveable bond it would have 
 designated the executors the proper heirs in mobilibus ;" and that, 
 where there was nothing in the settlements specially to explain the 
 meaning of the term " heirs," the Court must be guided by the legal 
 presumption, (q) 
 
 1350. The leading modern case in this branch of the law is that 
 of Blair v. Blair,(r) where certain testamentary estate, consisting 
 mixedbTHtabif °hi e % °f personal property, was given to trustees upon trust that 
 and moveable they should render a just and true account to W. B., " or his heirs 
 
 SIH'CcSSlOll 
 
 or successors," of their whole intromissions, etc., and should make 
 payment, or dispone, etc., the whole rest, residue, and reversion of 
 the testator's estate, to and in favour of the said W. B. and his fore- 
 saids. In the argument for the heir-at-law (in which all the pre- 
 vious authorities are examined) reliance was placed on the absence 
 of the term " executors," and the use of the word " successors" in 
 its place. A majority of the Court, however, were of opinion that 
 the subjects belonged to the executors or next of kin, as heirs in 
 mobilibus ; and, on it being afterwards ascertained that a certain 
 part of the estate was heritable property, their Lordships found that 
 the heir was entitled to take the heritable subject in question, as his 
 father's heir in heritage, under the said conveyance of the residue, (s) 
 
 (m) Simpson v. Walker, 1714, M. 5475. (p) Bowie v. Bowie, 23 Feb. 1809, F.C. 
 
 (n) Stevenson v. Fife, 1715, M. 14 : 852, (g) Id., p. 215-16. 
 
 14,926; 20 Feb. 1718-19, Roberts. 216. (r) Blair v. Blair, 16 Nov. 1849, 12 D. 
 
 (o) Robertson v. Kerr, 1742, Elch. " Mu- 97. 
 
 tual Contract,'' No. 19. («) Interlocutor, 12 D. 117. 
 
 Distributive 
 construction of 
 
 the term " h< ii-
 
 ISSUE, FAMILY, AND RELA1 [ONS 
 
 thus giving a double or alternative construction to I 
 ation. 
 
 1351. Accordingly, it is now settled thai a d< 
 where the subjects of conveyance are moi 
 
 Bums ofmoney,(£) personal bonds, the interest in a c< titracl 
 
 partnery,(w) or a residuary interest under i 
 
 — will carry 1 he subjeel to tl tors or nexl of kin. 
 
 subject of the conveyance is heritable, as Ian I 
 
 heritably secmv<l.(//) or bonds secluding execut tination 
 
 to heirs, however inconsiderable the property may be, will : 
 
 strued as a settlement in favour of the heir-at-law. If tin 
 
 ment embrace both heritable ami moveal directioi 
 
 convey t" heirs or sn ; - held to import a trust I 
 
 at-law as regards the lie; 
 
 moveable property 
 
 1352. Where the testator's children are tl whom tin 
 succ< ssion would accrue in virtue oi a destination I 
 
 are oo1 n yarded as favoured parties; and therefor* . 
 
 merly stood, the issue of predeci asing children ; Luded fi 
 
 onditiou si /<■ 
 was held to apply only to the institution of heirs specially i 
 • in the ground of relationship. (6) But since tin the 
 
 Moveabl S Ldchildren take an into r< ' in 
 
 succession by wa itation. 
 
 1353. Where th 
 
 subject to a trust for sale, the law oi conv< 
 the quality of the estate, and, 
 who are entitled to buci eed under i tion to 1 
 
 nees.(d) In one ol the modern cas< — not 
 
 87 : Kinloch 
 
 ;ph. 106. 
 1867. 
 
 I 
 
 M. • ■ I I' 
 
 I . . i 
 i 
 
 /e I ] fi 
 
 B 
 
 .inn. IT'.T. •'. Br. Su] ■ " i " 
 
 Farquh D.I 
 
 \1 ;. 

 
 708 
 
 BEQUESTS TO HEIRS, NEXT OF KIN, EXECUTORS, 
 
 CIIAFTEIi XLI. 
 
 Effect of des- 
 tination over i" 
 heirs-genera] a1 
 the termination 
 of an heritable 
 destination. 
 
 The Crown held 
 not to he com- 
 prehended in a 
 destination to 
 heirs-general. 
 
 " Heirs" con- 
 strued as child- 
 ren, in respect 
 of intention de- 
 duced from the 
 context. 
 
 effect of a direction to sell upon the quality of the succession ap- 
 pears to have been overlooked, (e) 
 
 1354. A substitution to heirs-at-law, where introduced into an 
 heritable destination, is effectual according to its tenor as a dis- 
 position to the person answering the designation when the succes- 
 sion opens ; as, for example, if a testator should destine heritable 
 estate to different members of his family in succession, " whom all 
 failing the said children before majority or marriage, to the nearest 
 lawful heirs of A. B."(/) And so, in the case of a destination to 
 heirs and assignees whatsoever, excluding a certain person and his 
 issue, the exclusion will take effect at the first opening of the suc- 
 cession to heirs and assignees ; the clause being held equivalent 
 to a disposition to the person next in the order of succession.^) 
 We have elsewhere seen that a continuing destination cannot be 
 created in favour of heirs-at-law. Destinations of heritable estate 
 to heirs-general sometimes give rise to competing claims on the 
 part of the heirs of line and of conquest. The cases have been al- 
 ready examined. (It) 
 
 1355. It has been solemnly determined that the Crown cannot 
 take under a conditional institution of heirs, on the principle that 
 the Crown is not one of the " heirs of line," who alone are held to 
 be comprehended under a general designation of heirs, (i) Lord 
 Glenlee, to whose opinion we refer, alluded to the privilege which 
 had been successfully claimed by the Crown of reducing a deathbed 
 deed. This, his Lordship observed, was a privilege not confined 
 to heirs of line, but belonging to any heir alioqui successurus.(k) 
 
 1356. If it appear from the immediate context that a testator 
 uses the expression "heirs" to designate children, (I) or some other 
 
 (e) Buff v. Duff, 14 May 1824, 3 Sh. 12, 
 N. E. 9. 
 
 (/) Kirlcivood v. Keeling, 5 March 1842, 
 4 D. 878. 
 
 (g) Crs. of Birkhill v. Aytons Heirs, 
 1742, Elch. " Succession," No. 7 ; M. 14,935. 
 In the case of Goodtitle v. Pugh, 3 Br. Par. 
 Ca. Toml. 454, where estate was devised 
 to certain heirs, whom failing, " to the 
 right heirs of me (the testator) for ever, 
 my son excepted, it being my will he shall 
 have no part of my estates, real or per- 
 sonal," it was held by the House of Lords, 
 reversing the judgment of the K. B., that 
 the words quoted were inoperative, as tin: 
 testator had no right heirs except his son. 
 This is characterised by Mr Jarman (ii, 
 71) as an extraordinary decision, and most 
 lawyers will agree with Lord Mansfield 
 
 that the gift fell to be construed in favour 
 of " those who would have been the right 
 heirs, if the son were dead." 
 
 (h) Chapter 35, I 1146 (Destinations to 
 Heirs of Provision). 
 
 (i) Torriex : King' 's Remembrancer, 31 May 
 1832, 10 Sh. 597. In England, the Crown 
 has no claim under a bequest to next of 
 kin; Hawkins v. Hawkins, 7 Sim. 173; 
 Rook v. Att.-Gen. 9 Jur. N. S. 9. 
 
 (A) 10 Sh. 603. 
 
 (I) Matthew v. Scott, 21 Feb. 1844, 6 D. 
 718 ; Baillie v. Seton, 16 Dec. 1853, 16 D. 
 216. see Lord Rutherford's note. The in- 
 termingling of the words children and 
 "heirs," in clauses providing for the dis- 
 tribution of personal property amongst dif- 
 ferent families, has been held in England 
 to warrant a construction of the latter term
 
 ISSUE. FAMILY. ,\XI> RELATIONS. 
 
 limited class of heirs, effect must of necessity be given to the i: 
 pretation of the term furnished by the will Ltseli But the c 
 are rare in which the inference supposed ran be clearly dedu 
 from the contexl : and without the clearest evidence of intention, a 
 court of construction would not allow the general term " h< ire" to 
 lie bent from its natural signification. Eowever, where by a mutual 
 settlement the granters' estates, heritable and moveables 
 tined to the longesl liver of them in liferent, " and to the heirs of the 
 longest liver in fee," with ulterior substitutions; and it was farther 
 provided, that in case of the decease of both the testators "without 
 heirs of their bodies," the fee should be burdened with a certain life- 
 rent interest, — it was held that the firel mentioned designation oi 
 heirs was interpretated by the proviso in the sense oi heirs of the 
 body.(m) And where the testator directs his trustees to inv< b1 the 
 produce of his estate for the benefit of his heirs, and afterwards, in 
 a subsequent pari of the deed, specifii s the h< ire to whom it is to 
 go, it cannot be doubted that the specific designation of heira explains 
 or controls the more general designation. (n) A good illustration ol 
 this rule of construction is supplied by the destination in ( hmpbelta 
 Y'/x v. Campbell,(o) which vvas expressed as follows, "That my said 
 trustees shall pay over the whole free residue and remainder of my 
 means and estate above disponed to A. C, my son, and his /•■ 
 executors, and successors, hereby declaring my will to be that my 
 said trustees shall entail the whole amounl on the heir the 
 
 said A. C. ; whom failing, on the heire-male oi I ' C. ; whom failing, 
 on the heirs of J. C. ; whom failing, on thi I P." [1 
 
 held by Lord Jeffrey and the Court, that, as the tri 
 plained the b< nse in which he used the words heirs and su 
 by setting forth the specific destination which b< di sin 1 I 
 
 ; d in the entail, that destination must I"- h< M to bo i om] 
 and thai the entail oughl ool to contain ■• 
 nation to the beire and sui of A. C. 
 
 in the senseof the former. ' Nov. 1817, F.I 
 
 dayv.B 
 
 • 
 
 heii £61 [ give 1 
 
 ehUdn B1000 I in J" 
 
 v. Hobson, 22 L 
 
 vivin - 
 
 childi 
 
 D 
 
 l. I. 
 
 i /, i I v i 
 
 D. 16 1 
 
 cnAPTi 
 
 rt a
 
 710 
 
 BEQUESTS TO HEIRS, NEXT OF KIN, EXECUTORS, 
 
 OHAPTKB S1I. 
 
 Destination to 
 " heirs" of a 
 li atee does Dot 
 render his right 
 contingent, or 
 suspend the 
 vesting of the 
 
 Marchbarika v. 
 Brockie. 
 
 t Cochrane v. 
 < bchrane's Exr 
 
 1357. A destination to heirs and assignees, although it imports 
 a conditional institution of the persons designated in the event of 
 the previously named legatees predeceasing the testator, does not 
 render the prior destinations contingent so as to suspend the vest- 
 ing of {lie fee during the currency of a liferent. For, as heirs-at- 
 law arc not supposed to he nominated in the character of favoured 
 persons, the right of inheritance given to them is sufficiently satis- 
 fied by holding it to apply to the event of the failure of the prior 
 destinations during the testator's lifetime. After there is a possi- 
 bility of the succession vesting in the favoured legatees, the gift 
 over to their heirs ceases to have any operative meaning, or means 
 only that the succession shall vest — being simply the expression of 
 the legal doctrine that a vested interest transmits to heirs and as- 
 signees, (p) 
 
 1358. Thus, where a lady conveyed the sum of £1000 to trustees, 
 with a direction to apply the yearly interest as an annuity to her 
 nephew during his life, the principal to be " divided and applied" 
 to certain other legatees named, " and to their respective heirs in 
 case of their death," and one of these legatees, Mrs Brockie, sur- 
 vived the testatrix, but died before the expiration of the life inter- 
 est, it was held that the legacy had vested in her on the death of 
 the testatrix, and was carried by her general disposition to her 
 husband, to the exclusion of her next of kin.(g) " The mere men- 
 tion of her heirs," said Lord Jeffrey, " can never, after the cases 
 of Crawford (r) and Leitch,(s) warrant the supposition that the 
 trust was created in any degree for the purpose of protecting the 
 conditional institution of unknown parties, by depriving the only 
 named fiar of the power of disposal ; it being manifest, in the Lord 
 Ordinary's apprehension, that these words were introduced, not 
 with any view of suspending the vesting, but solely to meet the 
 contingency of Mrs Brockie herself predeceasing the testator, and 
 the legacy consecprently lapsing."(f) In the subsequent case of 
 Cochrane v. Cochrane s Executors, (u) where a legacy of £150 and a 
 share of residue were made payable to John Cochrane, " or his 
 heirs," six months after the testator's death, and when the same 
 was freed from the liferent right of his spouse, the case was treated 
 as one of first impression ; Lord Colonsay observing, as to the 
 
 (/') See joint opinion in Donaldson's Trs. 
 \ . Macdougall, 22 D. 1535, which on this 
 ] " lint is not affected by the reversal. 
 
 (q) Marchbanks v. Brockie 18 Feb. 183G, 
 14 Sh. 521. 
 
 (/■) Russell v. Crawford's Trs., Feb. 
 L824, F.C. 
 
 (&) Smith v. Leitch, 4 Sh. 659, N.E. 665 ; 
 17 Feb. 1829, 3 W. & S. 366. 
 
 (t) 14 Sh. 524. 
 
 (n) Cochrane v. Cochrane 's Exrs.. 29 Nov. 
 1854, 17 I). 103. See also L'Amy v. 
 Nicolsons Trs., 5 Dec. 1850, 13 D. 240.
 
 E, FAMILY. A.ND KKI.A. 
 
 711 
 
 
 meaning of the phrase " or his heirs," that it was only introdi* 
 for the purpose of preventing the lapsing of thi 
 
 1359. A destination to ■ - is held I 
 
 with one in favour of heirs, and to apply to th< entitled 
 
 operation of law to 31 I to the subject of the inheritani 
 
 Accordingly, where the residue of a tn - destined to 1 
 
 • heirs or successors" of a person named, it was held thai th< 
 must be interpreted according to the nature of the subject, and 
 that, this being a nnn -lon.it fell to be divided amoi 
 
 the children of that person.(y) 
 
 1360. "Assignees." — It is scarcely n to add that the 1 
 conjunction of th< -" with heirs or - 
 
 of. conditional institution of heirs has qoI the effect oi making tl 
 able before the period of vesting, or ol l( tting in the 
 mentary heirs. The term when used in this 
 mere surplusage, importing only that the subjecl may be as 
 by the person in whom it vests.(z) 
 
 1361. " Next of Kin." — No doubt can 1 
 meaning oi a Legacy in favour ol 
 
 known leg tion. A legacy to next of kin 0] 
 
 favour of the nearest in d tor or propositus^ who 
 
 common law were enl itled toil 
 and .-till have a preferable righl to the offici 
 sons entitled to e distribution ol inl 
 
 under the M< n A.c1 h lim under 
 
 cy limited to n< \t of kin. 
 
 i 
 
 I 
 
 i 
 
 
 16 1 1 
 
 1.1144. 
 Vl D. 
 
 1 / 
 ■ 
 
 and afl 
 
 I 

 
 712 BEQUESTS TO HEIRS, NEXT OF KIN. EXECUTORS, 
 
 chapteb xlt. 1362. The recent case of Council v. Grierson(h) raised a singular 
 ~ (>xt of kin question as to the meaning of a similar expression in a destination 
 whenusedina u f heritable estate. The settlor, by separate deeds of entail, des- 
 ation, whether tincd his lands of Over-Kirkcudbright and others, and his lands of 
 argcahletothe Auchilu . liai]lj to certa in series of heirs-substitute, whom all failing 
 to such heirs as he should afterwards nominate, " and in case of no 
 such nomination, to my own nearest of kindred, and their heirs and 
 disponees whomsoever." Omitting in this place the consideration 
 of the point about the construction of the term " heirs-female,"(c) 
 the question was, whether the ultimate destination was tantamount 
 to a destination to all the next of kin equally, or was limited to 
 heirs in succession claiming according to the rules of lineal descent. 
 Lord Kinloch decided in favour of Miss Grierson the next of kin ; 
 the First Division of the Court altered, and gave judgment in favour 
 of Mr Connell, the lineal representative. We have not been able to 
 discover either from the pleadings, the judges' opinions, or the in- 
 terlocutor, what was the precise legal character in which the suc- 
 cessful claimant asserted his title. We rather infer from the report 
 that he was the entailer's heir-at-law ; if so, we are unable to sub- 
 scribe to the doctrine that the heir-at-law is the person designated 
 by the words " nearest of kindred," even when the subject of the 
 destination is heritable estate. 
 Observations on 1363. In any view of the case, we should be disposed to concur 
 GrkrloJ: in the views expressed by the Lord Ordinary in the following pas- 
 gage : — « The words, 'nearest of kindred' have a defined and well- 
 known meaning in Scottish law, signifying simply the nearest in 
 blood, or those standing in the nearest degree of relationship, . . . 
 and the Lord Ordinary cannot regard the expression as meaning 
 anything else than the better known and more common phrase 
 ' next of kin.' What the pursuer pleads is, that the ' nearest of 
 kindred ' must be considered as signifying ' the nearest of kindred 
 according to the rules of legal succession in heritage.' But, besides 
 that this implies the interpolation of words not used by the en- 
 tailer, it is obvious to remark, that there is no such thing as a dif- 
 ference in nearness of kin according as the subject is heritage or 
 moveables. The nearest of kin are always the same, never vary. 
 The heir is different, according as the subject is the one or the 
 other, . . . but he does not, by his succession, in the least vary 
 his nearness of relationship to the predecessor. When the entailer 
 uses the words ' nearest of kindred/ he uses words which have in 
 themselves a fixed and definite signification, altogether irrespective 
 of the subject of succession." (d) 
 
 (b) Connell v. Grierson, 14 Feb. 1867, 5 (c) Chapter 35 (Destinations to Heirs of 
 
 Macph. 379. and see 4 Macph. 465. Provision). 
 
 (d) Connell v. Grierson, 5 Macph. 386.
 
 ISSUE. FAMILY, AND RELATIC 
 
 1364. "Personal Repret ■." — This is, in its literal si - 
 an indefinite expression signifying those who are liable to th 
 creditors of the ancestor under any of the titl< s. B 
 struction, for reasons too nl.vii.ii> to require explanation, this 
 (when used designatively) is understood to applj to 
 
 senting the ancestorbya beneficial title. In the only case inwhi 
 so far as we arc aware this expression was made th 
 judicial construction, the competition was between an executor- 
 nominate and the children and next of kin of the propositus. ! 
 ('curt, by a unanimous decision, sustained the claim of the nexl "i 
 kin.(<?) Where a lady, by holograph will, directed that her pi 
 and other articles should "be divided equally," without specifying 
 among whom, the legacy was laid to be in favour of the i 
 kin, (/) a safe decision, since the result would have been the -ana- 
 had the bequest been held void for uncertainty. It i- to beobsi rv< d 
 that bequests to "personal representatives," and similar indefinite 
 nominations relating to personal • ming int.. operation aft 
 
 the passing of th.- Moveable Succession Act, will fall to be distri- 
 buted in conformity with its provisions. 
 
 1365. " Executors" — " Heirs and Executors." — As a qu 
 intention, it scarcely admit- oi doubl thai the fair construction ol 
 a bequest to " executors " is thai which operates in favour 
 persons who would bucci ed to the moveable esl 
 
 But when it is remembered that the title of an execute] 
 common law. a beneficial title, it will nol appeaT surpris 
 the interpretation of a bequest in this form should have b< 
 to be a question of difficulty . The question arose, in th. 
 I \. Stewart,(g) on the construction of a mutual Bcttlen 
 
 • 
 App. 
 Lisfa 
 
 - 
 admin 
 
 ■ 
 lit the persons 
 'J'., undi r 
 2 J 
 
 ttend to i 
 whii 
 to li . 
 
 ition. In • 
 11 v v. li. r< I 
 
 i to mi ettl 
 during th« 
 and u>r the poq
 
 714 BEQUESTS TO HEIRS, NEXT OF KIN, EXECUTORS, 
 
 chapter xm. in which Legacies were bequeathed subject to a general declara- 
 tion, that in the event of the death of any of the legatees prior to 
 the death of the surviving testator, his, her, or their legacy or legacies 
 should thereby fall and belong to their executors or next of kin. 
 Under this proviso a legacy was competed for by the husband of the 
 Legatee, claiming in the character of executor-nominate and univer- 
 sal disponee, and by the legatee's next of kin. The judges seem to 
 have been much embarrassed by the question, whether the words 
 executors or next of kin were used disjunctively, or as terms of 
 equivalent import. At first they were equally divided on the ques- 
 tion, but after a hearing in presence, judgment was given in favour 
 of the next of kin, and that judgment was affirmed on appeal. In 
 the House of Lords the two expressions were treated as identical 
 for the purposes of the settlement. (Ji) 
 Destination to 1366. A designative bequest to executors, under the existing 
 
 v^r^onstrued as law, is a direct gift to the heirs in mobilibus of the propositus. It is 
 iJddaecatos not equivalent to a disposition to the persons holding the office of 
 in trust. executors in trust for the persons to whom they are accountable 
 
 for the free succession, which might imply a claim on the part of the 
 creditors of the executry estate. The legacy, however, will fall to 
 be distributed according to the provisions of the Moveable Succes- 
 sion Act, as has been held in various cases that have occurred since 
 the passing of the Act.(«) And, even in the case of an alternative 
 bequest to "executors or next of kin," we may safely affirm that 
 the presumption would be held to be in favour of the heirs in mo- 
 bilibus according to legal order of distribution, (k) 
 what words 1367. A testator may, however, so frame a designative bequest 
 
 !he P £<LSa% to heirs or executors, as that it shall pass to the testamentary re- 
 presentatives preservatives. As in the case of Dove v. Smith, (I) where a farmer, 
 
 (A) Seethe opinion of the M.-R., 2 W. & where the ultimate decision of Lord 
 
 S. 636 ; compare Earl of Stair y. Dalrymple, Brougham was given in this sense. Where, 
 
 6 D. 904. on the contrary, the designation is held to 
 
 0') Maxwell v. Maxwell. 24 Dec. 1864, 3 apply to the person holding the office of 
 
 Macph. 318 ; and see Nimmo v. Murray s executor or administrator, the law is well 
 
 Trs., 2 Macph. 1144 ; and Cockhurris Trs. settled that he does not take the fund 
 
 v. Dundas, 2 Macph. 1185. beneficially, but as part of the personal 
 
 (k) The distinction stated in \ 1364, estate of the propositus ; Stocks v. Dodsley, 
 
 note {e). with reference to the construe- 1 Keen 325 ; Dixon v. Dixon, 24 Beav. 129 ; 
 
 tion, in England, of bequests to personal unless an intention to give the fund bene- 
 
 representatives, is also applicable to a de- ficially is expressed, as in the case of Wallis 
 
 signation of " executors and administra- v. Taylor, 8 Sim. 241, where a fund was 
 
 tors." Where such legacies were given to given to the testatrix's daughter for life, 
 
 take effect immediately on the testator's and after her death to her executors, etc., 
 
 death, they have hern held to operate in " for their use and benefit absolutely." 
 
 favour of the next of kin, including per- (7) Dove v. Smith, 31 May 1827. 5 Sh. 
 
 taking under the Statute. Sec par- 734, N. E. 684. 
 ticularly Palin v. Hills, 1 My. & K. 470,
 
 QE, FAMILY. AND RELATIONS. 715 
 
 ha-ving disposed of his general estate by will, and of the farm - haptkhxii. 
 
 ing by special assignal ion, afterwards appended a codicil to the I 
 mentioned writing, in which he declared that the said farm-stocking 
 "should be considered as pari of his executry, and be regulated by 
 the general law of moveables in its appropriation." Here the codicil 
 was held to have the effect of subjecting the < I scribed in it 
 
 to the provisions of the previously executed will. 
 
 1368. We are nol aware of any case in which a claim has 
 made by the widow in respect of a designative bequest to heirs, 
 executors, or personal representatives. In tl r number oJ 
 the cases the form of the bequest was thai of a liferent t" a widi . 
 with a tee to her children, whom failing, to their [or t<> the n stato 
 heirs or executors. In these casi • laim would a: 
 until after the widow's death. But the question might arise under 
 an immediate bequest to the heirs, etc. "i' A. 1'.. where A. I'.. 
 leaving a widow ami children surviving him. In such a case, ii 
 tin- bequesl were conceived in favour next oi kin. 
 the widow would clearly have no claim ; bill she would seem to he 
 
 Lprehended in the expression lentatives;" ami. 
 
 even in the case oJ a bequest to " heirs and assignees," it is by no 
 means clear thai a claim ioijus ■ might qo1 be < illy 
 
 maintained, (m ) 
 
 1369. II. A STMENT OF OBJECTS 0NDER A GENERA] Dl 
 
 tion ok persons. — The chief <l i fncull ies Lncidenl to the in1 
 tion of designative bequests to hi 
 are those which arise in the determination ol the ol< m 
 ami locality, where these are involved in the ascertainment oi tin ■ 
 objeel of the disposition. The question, at what period <>i ; 
 persons answering to the designation are to b< tied, invol 1 
 
 the consideration <>i chan cting the r< lati( u 
 
 heir; which changes are due either to ev< i 
 .,1 inheritance,— as births, mat 
 the lav. .a -ii, i . - ion subsequent to tin 
 instrument. locality, I 
 
 oi bequi ats to heirs is onlj affi ct< d by ii in tin 
 domicile on the pari oi the t< stator, in which i \ 
 arise., to which system ol law thi tiou ol In 
 
 whether to the law of the testator 1 
 -. 
 
 to tl. ■ I 
 
 dorwif. v 
 cl, other; but Hi
 
 16 
 
 BEQUESTS TO HEIRS, NEXT OF KIN, EXECUTORS, 
 
 I'll VPTHB XI.!. 
 
 Question stated 
 with reference 
 to changes de- 
 pending on the 
 elemenl of time, 
 
 Bequest to tes- 
 tator's execu- 
 tors, vesting at 
 death. 
 
 Bequest to tes- 
 tator's execu- 
 tors, vesting 
 being post- 
 poned. 
 Lord v. Colvin. 
 
 cution of the will, or to the law of his ultimate domicile. These 
 questions we shall consider in their order. 
 
 1370. First, as to the period of time at which the relation of 
 ancestor and heir is to be ascertained for the purposes of the be- 
 quest. Strictly speaking, those only ought to be considered heirs 
 to whom that title devolves by the death of the ancestor, or, in the 
 case of heritable estate, by service as heir. But it is not to be 
 overlooked that a testator may designate as heirs persons who are 
 not strictly entitled to the designation ; and where a bequest is clearly 
 designed for the benefit, not of the actual legal representatives, but 
 of those who would be entitled to succeed in respect of proximity 
 of relationship at some subsequent period, effect must be given to 
 the expressed intention. Several cases may be distinguished. 
 
 1371. (1) Where the bequest is to the testator's executors or heirs 
 in mobilibus, and the succession vests at death, no difficulty can 
 arise. The fund is then immediately divisible amongst the persons 
 who would be entitled to the succession in the case of intestacy.(w) 
 
 1372. (2) Where the bequest is to the testator's executors, and the 
 vesting of the succession is postponed, the simplest, and in principle 
 the correct rule, is that which gives the succession to such of the 
 testator's heirs in mobilibus as survive the period of vesting, or their 
 representatives. (o) This was the principle adopted in the ascer- 
 tainment of the persons who were entitled as next of kin to the 
 proceeds of accumulations of income beyond the period allowed by 
 the Statute. The rule was so determined in the first case of Lord 
 v. Colvin,(p) where the judges formally overruled the case of Dick 
 v. Gillies (q) as an authority for the proposition that the resulting 
 interest fell to the persons who were nearest in degree at the time 
 of the occurrence of the lapse. In the second case of Lord v. Colvin, 
 the same principle was applied to a case of simple lapsed succession, 
 
 (n) " Whore," says Mr Jarman, " a de- 
 vise or bequest is simply to the testator's 
 own next of kin, it necessarily applies to 
 those who sustain the character at his 
 death. It is equally clear that where a 
 testator gives real or personal estate to A . 
 (a stranger) during his life, or for any 
 other limited interest, and afterwards to 
 his own next of kin, those who stand in 
 that relation at the death of the testator 
 will he entitled, whether living or not, at 
 the period of distribution." (Vol. ii. p. 114, 
 citing Harrington v. Harte, 1 Cox. 131.) 
 
 (o) This is also the rule of construction 
 in England, as fixed by the case of Spink 
 v. Lewis, 3 Br. Ch. Ca. 355. The testator 
 
 directed his personal estate, and the pro- 
 duce of certain real estate, to be laid out 
 for accumulation for ten years, and then a 
 certain part thereof to be divided amongst 
 such of his next of kin and personal repre- 
 sentatives as should be then living. Lord 
 Thurlow ruled that the next of kin at the 
 testator's death, surviving the specified 
 period, were entitled ; for, said his Lord- 
 ship, it was plain that the testator meant 
 some class of persons of whom it was 
 doubtful whether they would live ten years. 
 
 (p) Lord v. Colvin, 7 Dec. 1860, 23 D. 
 111. 
 
 (q) Dick v. Gillies, 4 July 1828, 6 Sh. 
 1065.
 
 ISSUE, FAMILY, AND RELA 717 
 
 whore the lapse was occasioned by the death of thi 
 
 the prescribed period of vesting— Dick v. G ""■ s I 
 
 raled in terminis.(r) But it is not always possible to a] \\\ this | rin- 
 
 ciple to the inment of heirs-designate, without - 
 
 the testator's intention. For example, the actual heirs 
 
 kin may have wholly failed before the arrival of the tern 
 
 in which case a lapse ran only he avoided in one of two 
 
 either by the supposition of a provisional vesting of thi 
 
 at the testator's death, conditional on the failure ol the prii i 
 
 tees, or by the method of a new ascertainment of heirs-d< Bignat 
 
 the period of distribution in place of the heirs which I 
 
 become extinct before that time. 
 
 1373. The method of a new ascertainment at thi 
 ing was adopted in the recent Cockburrit , 
 
 and we think rightly adopted, to prevent a total failure of objects in 
 a gifl of this description. The testator directed his trust es to ] 
 over the income of his trustn state to his widow during her life, and 
 to his daughters J. and M. so hum- as they should remain unmarrii 
 ami upon the expiration of these liferents he bequeathed the n siduo 
 of his said estate "to and in favour oi bis own Dearest heirs and i i 
 cutors whatsoevt r alive a1 the time of distribution, and residing 
 Scotland, equally among them, share and share alik 
 was survived by nine children, who were the prop< r ol 
 designation of heirs, had the ascertainment taken place at bis death, 
 
 irding to the rules of intestate succession. Ai th< 
 survivor of the two unmarried daughters, only on< of tin 
 
 M. was in life, and he, being r< sid< nt in [ndi 
 the terms of the bequest from the distribution. In tin ira- 
 
 Btances, the 8< i ond I >i\ ision ol the • loui : b< Id I : 
 designation in the will required construction; and that the inl 
 was to give the 9ucc< asion to " thi 
 be hi irs in mobilibus, which at the time oi distributi 
 by persons alive and r< siding in Scotland. w (0 'I I • 
 according i . found to be di\ isible among -i th< li i 1*1- 
 
 ,-, i, /„ rcapita. k\ ■ ording to the tin 
 the testator's death, the di> ision would 
 stirpes, the grandchildren in th 
 Thejudgm< at ol the Cou I 
 d< signate are to be as< i 
 bucci asion : thi Court find, I 
 
 / i 
 
 i i
 
 18 
 
 BEQUESTS TO HEIRS, NEXT OF KIN, EXECUTORS, 
 
 chapti:i; mi. 
 
 To the execu- 
 tors of A.. 
 where A. pre- 
 deceases the 
 testator. 
 
 To the execu- 
 tors of A. where 
 A. survives the 
 testator. 
 
 tion of the said settlement, if any of the children of the testator were 
 alive and resident in Scotland at the time of distribution, they would 
 have been entitled to take the residue to the exclusion of all others; 
 but there being no persons answering that description at the time of 
 distribution, those of the grandchildren of the testator who were 
 alive and resident in Scotland, are entitled to take the residue among 
 them, to the exclusion of all others."(») 
 
 1374. (3) Where the bequest is to the executors of a person 
 named, who predeceases the testator: — In this case the primary law 
 of succession, that the legatee must survive the testator, confines 
 the benefit of the bequest to surviving executors. According to 
 principle, and to the analogous determination in the case of Lord 
 v. Colvin,(v) the character of personal representative is fixed by law 
 at the death of the propositus ; accordingly, the shares of such of the 
 representatives as survive that event, but do not survive the testa- 
 tor, do not transmit to their children, but accresce to the survivors, {x) 
 If none of the legal representatives survive the testator, the legacy 
 lapses. In a recent case of this description, which was complicated 
 with the question of the application of the Moveable Succession Act, 
 the First Division of the Court held that the ascertainment of per- 
 sons to satisfy the designation of heirs, fell to be made at the period 
 of the death, not of the propositus, but of the testator, (y) We do 
 not find in the terms of the will any sufficient reasons for departing 
 in this case from the settled rule of construction ; and, after giving 
 to the decision that consideration which is due to a deliberate judg- 
 ment of the Court, we adhere to the opinion that, where no contrary 
 intention is manifested, a legacy to the executors of a person who 
 predeceases the testator, vests in his surviving legal representatives. 
 1375. (4) Where the bequest is to the executors of a person 
 named, who survives the testator:— In Pearson v. Corrie,{z) a legacy 
 was given in this form, — " To my sister Helen the sum of £1000 
 sterling, for her use during her lifetime ; £800 sterling of which, at 
 her death, to revert to the lawful heirs of my sister Elizabeth ;" and 
 the testator further bequeathed the whole of the residue of his estate 
 to the lawful heirs of his said sister Elizabeth. Elizabeth survived 
 the testator, and the question then arose, whether the residue should 
 be paid over immediately to her children as presumptive heirs, or 
 
 (u) Interlocutor, 2 Macph. 1194. 
 
 (v) Lord v. C'olvin, 23 D. Ill ; and 3 
 Macph. 1083, supra, § 1372. 
 
 (x) Vaux v. Henderson, 1 J. & W. 388, n. 
 Here the legacy was given to the parties 
 jointly, which had the effect of vesting the 
 right to the whole in the surviving legatees. 
 
 The bequest may, of course, he given in 
 terms which exclude the jus accrescendi. 
 
 {y) Maxwell v. Maxwell, 24 Dec. 1864, 
 3 Macph. 318. 
 
 (z) Pearson v. Corrie, 28 June 1825, 4 
 Sh. 110, N. E. 120.
 
 ISSUE. FAMILY. AND RELATIONS. 7 l'J 
 
 should be accumulated during her lifetime for the benefit of her chapter xli. 
 legal representatives. On behalf of the children, it was urged that 
 
 it was the evident intention, both from the will and from the let- 
 ters of the testator, that he intended to bequeath the money to the 
 children of Elizabeth who were alive at his own death, and that 
 this was confirmed by the circumstance of ids having made no 
 trust, nor anyprovision (it might have been added), for the disposal 
 of the intermediate proceeds of his estate. These considerations 
 prevailed with the Court, and we think justly, having regard to the 
 intention manifested by the general frame of the will. But, we 
 apprehend, where no contrary intention is evinced, a legacy to the 
 heirs or executors of a person who survives the testator would re- 
 main in suspense during the lifetime of the propositus, when it 
 would vest in bis legal representatives; and this is the construction 
 which has been adopted in the jurisprudence of England.(a) 
 
 1376. (5) In the case of a conditional institution of heirs to a herit- Designate gift 
 able subject, contingent on the event of the institute dying before eftatTtotfL 
 
 a vested interest could be acquired, il would seem that the desig- heirs of a P er " 
 
 1 _ ' _ ° sen na 1. 
 
 nation applies to the person entitled to serve heir at the time when 
 the succ< ssion opens to him by the death of the institute. (6) This 
 i-, in accordance with the rules applicable to continuing heritable 
 destinations, lint in this class of cases, also, the rule of construc- 
 tion musl yield to the declared intention, if the intention can be 
 discovered. Therefore, where a testator directed the residue of his 
 estate, after the expiration of certain life interests, and in case of 
 the failure of the heirs previously nominated, to he paid over by 
 his trustees "to the heirs who, by law, would have been entitled 
 to succeed to my heritable property, had no set! lenient t hereof been 
 executed by me," it was justly held that the relation of heirs-desig- 
 o ate was constituted at the testator's death, and the residue was 
 accordingly divided amongsl the persons who were entitled l> be 
 served heirs-pi irl ioners at i hat period.(c) 
 
 1377. Secondly, we have to consider how the construction of Construction of 
 designative bequests to heirs may be affected by changes in the law '!',.,',' ''',''/,' 
 
 of i ion, oi which the Moveable Succession Axl is V; i ',' , ';,; , ;lj' v 
 
 an example. A.8 this is a matter of temporary interest, il is unne- 
 i iv to enter upon ii at Length. The importanl poinl to be ob- 
 
 
 (,,) I,, t ■ a gift to the next of quenl period; 2 : '-! i I. 115, cit- 
 
 kio, or relations of a person who outli Cruwyt v. Colman, 9 V< s. 819. 
 
 the testator, il B ood v. Keeling, 6 March 1842, 
 
 death, and will apply to thi I I '. s 7*. 
 
 ription, withoul regard to (c) Maxwell v. Wylie,2b Ma) 1887 I • 
 Bh 1006
 
 720 BEQUESTS TO HEIRS, NEXT OF KIN, EXECUTORS, 
 
 chapter xii. served is, that as a will speaks from the last moment of life, if a 
 testator have survived the passing of the Statute, being at the time 
 of disposing mind, he is held to have contemplated the statutory 
 alteration of the law of succession, and to have adopted it in so far 
 as necessary for the explication of his will. This is the principle 
 of construction that has been adopted by both Divisions of the 
 Court in reference to wills in favour of heirs or executors made 
 prior to 1855, where the testator has survived the passing of the 
 Moveable Succession Act.(d) " It is quite fixed," said Lord Cowan, 
 adopting the words of Lord Corehouse in Hyslop v. Maxwell, {e) 
 " that a testamentary and revocable deed is to be held as the ul- 
 tima voluntas testatoris — that is, as approved of and confirmed down 
 to the last hour he is of a disposing mind ; because, if it were not 
 so, it would have been revoked or altered. When, therefore, this 
 testator died, leaving to his ' nearest heirs and successors' the re- 
 sidue of his estate, the same construction must be applied to the 
 bequest as if the deed had been written out and executed by him 
 at the last moment of his being of a disposing mind."(/) 
 Such bequests We apprehend that when a testator bequeaths anything to heirs- 
 
 contain a tacit a t-law or executors eo nomine, he does so because he has no prefer- 
 laws in force at ence for any particular heirs, and is willing that the succession 
 the succession, should be regulated by the law of the land. The same motive may 
 be presumed to be operative in his mind down to the last moment 
 of life, if he does not alter his will. The law is to designate the 
 heir, and therefore the interpretation must be furnished by the law 
 in operation at the time when the designation comes into effect. 
 Where, therefore, in a case already commented on, the Court were 
 of opinion that the ascertainment of heirs fell to be made at a period 
 long subsequent to the testator's death, the representatives of the 
 deceased's next of kin were not admitted to the succession as under 
 the Statute ; but the distribution was made according to the law of 
 descent in force at the time of the testator's death, (g) 
 Construction of 1378. With respect to the element of the testator's domicile, 
 d uSs a how be " tne general opinion of jurists is, that the construction of a design a- 
 affected by tion of heirs is not affected by the testator's change of domicile, 
 
 changes in the . , . . , 
 
 testator's domi- but that the testator must be held to have intended to give the 
 succession, in the case of personal estate, to the heirs answering 
 the description according to the law of his domicile at the time the 
 settlement was made ; and, in the case of real estate, to the heirs 
 
 (d) Nimmo v. Hurrays Trs., 3 June (/) 2 Macph. 1148. 
 
 1864, 2 Macph. 1144; Maxwell v. Maxwell, {g) CocUurns Trs. v. Dundas, 10 June 
 
 24 Dec. 1864, 3 Macph. 318. 1864, 2 Macph. 1185. 
 
 0) 12 Sh. 416.
 
 ISSUE, FAMILY. AND RELATIONS 72] 
 
 according to the lex loci n i sitce ; and thai [uent chai nmniu. 
 
 domicile affords no evidence of a change of intention resi 
 bis testamentary succession. (h) The authorities in the law i - 
 land support this view of the matter. (t) And where, in a i 
 of marriage disposing of estate in England and Scotland, and con- 
 taining testamentary provisions, it was declared that the import 
 and effect of the contract, as weD as all matters and questions con- 
 nected with the intended marriage, should be construed and regu- 
 lated by the law of Scotland, it was held that this " interpretation 
 clause" was applicable to the construction of a designation • 
 contained in the deed, to the effect of excluding the relations of the 
 half-blood from the succession. (&) 
 
 1379. III. Special designativk destinations.—" // 
 Children"— hi marriage-contracl destinations, the terms "chi 
 ren" and " bairns" are sometimes used in connection with tl, 
 " heir." In such cases, the word " heir" is the governing term, and 
 gives the law of the succession, unless this construction is conti 
 dieted by an intention manifested in Borne other pari of the settle- 
 ment. Thus, a destination of moveable to heirs and children 
 of the marriage, would in the ordinary case 1"- equivalent to a be- 
 quest of the subject to the granter's personal representativi 8, though 
 it is said that a power reserved to provide for the young r childn 
 would by implication give the fee to the heir-at-law; for the law 
 would not presume an intention to create a burden on the fee in 
 favour of the fiars themselves.(Z) On the other hand, a destinati 
 of heritage to heirs and bairns has been interp I to the 
 whole child I'd i ; as in settlements ol burgage property ;(m) orwh< re, 
 from the position of the settlor, it \ imed thai be could Dot 
 have intended to preserve the i 3tate in bis fainily;(n) or wh< 
 intention to provide for the whole family was deducible from the 
 tonus of the settlement. (o) With n gard to conqu< si hi ritage, the 
 authorities are conflicting,^) although the Latesl di 
 
 (A) Chapter 2, Bection 8 (International l 
 Law). 
 
 (i) Macharg v. Blain, L760, M. 161 1 . R ir.fl 
 
 Bendenon v . W\ 16,8 ; J 
 
 (/,■) Earl of Stair v. Dairy 
 1844, 6 D. '.'"l I 
 
 (/) Bankt. v.. I. ii., p. Bap. 21 1. 
 
 168 1 M 12,842 I ■. ■ /■ w v. ii " 
 
 Dollar, 17'.'-!, .M. I k„. 
 
 [m i White, 1789, M. 2817; I i 
 
 • I lands, DoUar \ 
 
 Dollar, tupra. St • 
 
 (») Rankim v. Rankiru, 1786, M : I 
 
 Prii 
 
 
 Vol.. I. 

 
 722 BEQUESTS TO HEIRS, NEXT OF KIN, EXECUTORS, 
 
 ohaptbe m, vourable to the right of the whole children in the case of a general 
 destination of conquest to heirs. (q) The reason for giving a pre- 
 ference to the whole children in destinations of conquest heritage is 
 thus forcibly stated by Lord Eskgrove, in a passage preserved by 
 Mr Fraser:(r) "Where it (the expression 'heirs and bairns') oc- 
 curs in settlements of money, I am clear that the sum descends 
 among the whole ; and this is also just in considering settlements 
 of conquest, where land is acquired under them, because it is ac- 
 quired with money. But in settlements of special heritage, espe- 
 cially if not burghal, the word heirs limits the application of the 
 word bairns, and indicates that the bairns were meant to take in 
 their order seriatim, as the law should call them." (s) 
 <• children/' 1380. Where terms designative of issue are used without the ad- 
 
 suSct to™ 1 jection of the word " heirs," construction is excluded ; and accord- 
 flexible con- mgly, whether the destination be to bairns, (t) or to children of the 
 in conjunction marriage, the succession, whether in lands, (u) heritable securities, (x) 
 with "heirs." ^ movea ble estate, (y) vests in the whole children equally, subject 
 to the conditions of the will. In a destination of money or move- 
 able estate to " daughters or heirs-female," daughter is held to be 
 the governing term, and it is not necessary that the daughter tak- 
 ing the provision should be an heir-at-law. (z) A general assigna- 
 tion by a father to children of a second marriage, of an equal share 
 and proportion, along with his other children by his former mar- 
 riage, of all his estate and effects, heritable and moveable, vests the 
 succession in the children of both marriages equally per capita.(a) 
 If a testator declares that the provisions secured by his antenuptial 
 contract in favour of " the children of the marriage" shall be taken 
 in satisfaction of legitim and executry, the exclusion of legitim is 
 held to apply to the heir as well as to the younger children, though 
 the heir's provision consists of an heritable estate upon which the 
 younger children's provisions are secured, (b) 
 «i SS ue" com- 1381. " Issue," "Descendants." —The word "issue," when not 
 
 prehends de- 
 
 every'detrfe. (a) ronton v. Trotter, 24 Jan. 1832, 4 534; Kibble v. Stevenson's Trs., 16 Feb. 
 
 Jur. 401. 1832 ' 10 Sh - 34L 
 
 (r) 1 Pers. and Dom. Rel. 786. (x) Carnegie v. Clark, 1677, M. 12,840. 
 
 (s) MS. note on Fairservice v. White, 1789, (y) Waddell v. Pollock, 19 June 1828, 6 
 
 Hume's Sess. Papers. On this subject see Sh. 999. 
 
 the cases collected in Mor. Die. " Provi- (z) Crs. of Redhouse v. Glass, M. 2306 ; 
 
 sions to Heirs and Children," section 1. 5 Dec. 1744, 6 Pat. 681 ; Ewing v. Miller, 
 
 (0 Brown v. Brown, 1680, M. 12,842 1747, M. 2308. 
 and 2375. See Grant v. Gmm's Trs., 28 (a) Bannerman v. Bannerman, 15 Dec. 
 
 Feb. 1833, 11 Sh. 484. 1801, Hume, 130. 
 
 (u) Herries v. Ilerries, 1806, Hume, 528 ; (b) Maitland v. Maitland, 14 Dec. 1843, 
 
 Wilson v. Wilson, 14 June 1811, Hume. 6 D. 244; Keith's Trs. v. Keith, 17 July 
 
 1857, 19 D. 1040.
 
 ISSUE.. FAMILY. AND RELATIONS 
 
 
 restrained by the context, is construed accordii a I the natui 
 
 meaning of the term, and comprehen - 
 
 gree alive at the period when the - q ia held to 
 
 is exemplified by the decision in reference to the claim i 
 
 Lawford Young in the noted case of Donaldson's 1 
 
 this case the succession was held to vest at the di ath of tl. 
 
 er's widow, who had a liferent interest ; and a< to the din 
 
 tions of the will and codicils, certain shares of the : 
 
 go (upon the failure, which happened, of a prior substitute 
 
 the survivors of the truster's grandnieces (named in th< m i 
 
 and his grandnephews, ah 1 in the ttlemenl 
 
 codicils, equally in liferent, and their it equally in 
 
 claimant was the son of a grandnephew who took no I 
 
 having predeceased the truster's wiiluw. Lord Kin! m- 
 
 ion that the issue were intended to take only to I the 
 
 shares liferented by their respective parenl [uently I 
 
 Mr Young stood excluded. But it was held by the Second I 
 
 of the Court that this was a substantive bequesl i" all tb 
 
 answering the designation, and that the distribution "i I 
 
 not subordinated to that of the liferent. The term "descendai 
 
 when used designatively (not as a term of destination in a 
 
 ment of heritabL nonymous with i- 
 
 1382. Where a legacy is givi o to issu i ollectively, whethi 
 one person or "i several, the distribution i- in g< q< ral i" i 
 per capita. In ord r that the distribution should tak< 
 stirpes, it musl appear from the I of the will tb 
 
 portion in the distribution is to go to each of several families, (e) I 
 
 very clearly distinguished in the opinions deliv< 
 subsequent stage ol the case oJ Donaldson * 
 held, on the construction of the words quoted in tl. 
 
 ph, that as there was no indication of intention thai tin 
 of each family should succeed to th< •! ■■■•■ ited bj I 
 
 tive parents, the fund must be equally di\ i 
 
 (c) D i Tr*. V. C i 
 
 Jan. l-' I. 2 Macph. I 
 Wills, 8d < d. i 
 
 1814, F.O. '• ' ' 
 word • 
 
 tinati '• ' ' ' ' 
 
 ; 864. [nthe I 
 
 ; 
 beld by tl I. 
 
 tinbloodofl
 
 724 
 
 BEQUESTS TO HEIRS, NEXT OF KIN, EXECUTORS, 
 
 CHAPTER XLt. 
 
 Principle of 
 distribution per 
 capita applies 
 to all original 
 gifts to a plural- 
 ity of persons. 
 
 Whether de- 
 scendants of any 
 degree are en- 
 titled to share 
 along with, or 
 only in substi- 
 tution to their 
 parents. 
 
 observed, (gr) the construction would have been different had the 
 question arisen upon the effect of the antecedent destination of the 
 same fund, which was " to pay the shares bequeathed to my said 
 grandnieces by the deed of settlement to them and their respec- 
 tive husbands in liferent, etc., and the fee of stick shares to the 
 lawful issue of my said grandnieces equally ; " for here the fee 
 was expressly given in shares corresponding to the shares of the 
 parents by whom the fund was liferented. (Ji) 
 
 1383. The principle of equal distribution applies also to all ori- 
 ginal bequests, whether given to the children of different individuals 
 in one gift, or to a plurality of persons collectively. The circum- 
 stance that the testator in one part of his will gives legacies of dif- 
 ferent values to certain persons, and afterwards divides the residue 
 amongst the same persons, is no reason for departing from the prin- 
 ciple of equal distribution in relation to the residue, (i) Nor does 
 the relationship of the legatees to the testator, or to one another, 
 constitute a reason for importing into the will a principle of distri- 
 bution which he has not authorised, and which is opposed to the 
 presumption of equality. (&) Accordingly, legacies to two or more 
 families jointly,(Z) or to a family in conjunction with individuals 
 mentioned by name,(m) fall to be distributed per capita, and not 
 per stirpes. 
 
 1384. Where a bequest is given to issue in general terms, and 
 so as to be distributable per capita amongst descendants of different 
 
 providing for unequal distribution, and it 
 may be well to keep in view that this has 
 been recognised by very authoritative judg- 
 ments of this Court;" per Lord Cowan, 
 p. 379-80, citing the cases of Mackenzie, 
 Grant and Blackie, infra. 
 
 (g) 4 Macph. 378, per Lord J.-C. Inglis. 
 
 (A) The presumption that bequests to 
 " issue " are given per capita, is recognised 
 in many English cases. In Davenport v. 
 Hanbury (3 Ves. 257), the bequest was to 
 M., or her issue. M. predeceased the tes- 
 tator, leaving a son and two children of 
 a deceased daughter, and it was held by 
 Sir R. P. Arden, M.-R., that the bequest 
 should be shared by the three objects per 
 capita. In Leigh v. Norbury, 13 Ves. 340, 
 it was held, on the construction of a trust 
 to A. for life, with a power of appointment, 
 and in default to A.'s issue, that the pro- 
 perty was divisible amongst all the child- 
 ren and grandchildren of A. at his death. 
 " It is clearly settled," said Sir W. Grant, 
 M.-R., " that the word issue, unconfined by 
 
 any indication of intention, includes all 
 descendants. Intention is required for 
 the purpose of limiting the sense of that 
 word, restraining it to children." In this 
 as well as in the earlier case of Freeman v. 
 Parsley, 3 Ves. 421, grandchildren were ad- 
 mitted to share with their parents, Lord 
 Loughborough desideratiug, in the latter 
 case, some medium by which the admission 
 of grandchildren should be confined to 
 those whose parents predecease the tes- 
 tator. 
 
 (i) Pitcairn v. Thomson, 8 June 1853, 
 15 D. 741. 
 
 (k) But see infra, § 1384-6, as to the in- 
 ference to be drawn from a substitution of 
 issue to their parents. 
 
 {I) M'Kenzie v. Holte's Legatees, 1781, 
 M. 6602. 
 
 (m) M'Courtie v. Blackie, 15 Jan. 1812, 
 Hume, 270 ; Grant v. Fyffe, 22 May 1810, 
 F.C. ; Rennie v. Crosbie, 8 Dec. 1822, 2 Sh. 
 60, N. E. 53.
 
 ISSUE. FAMILY. AND RELATIONE 
 
 degrees, the question arise-, whether the issue of th< 
 are entitled to share in the distribution along with theii 
 only in the event of the parents' dec< s . Thie [uesti 
 
 i the subject of express decision in Scotland; but it - 
 aduiits of doubt that the principle of a distribution^ in- 
 
 cludes persons whose parents are alive at the period ol distributi 
 Where the more remote descendants are only named as in 
 tution to the nearer, consistency requires that the division should 
 be per 8tirpes.(n) 
 
 1385. We have soon that a bequesl to issue in the form of 
 
 of the fee of the shares previously given in liferent to the par< uti 
 argues an intention to distribute the fund /• A.nd I 
 
 inference arises a fortiori where issue are nominate ditional I 
 
 institutes on the failure of their parents.(o) But the presumption 
 even in this case is not absolute; Eor the testator may, as in the 
 case formerly adverted to, so frame the destination an 
 
 intention of substituting the whole body oi i- iprising the 
 
 designated class oi issue on the failure oi any on,- .,[ d. 
 named legatei b, and it he does so, the issue i bus collectively 
 tuted will take /<</• capita.( p) In Bryden v. Bryden,(q) a d< Btina- 
 tion of heritable estate to the children oi two neph< wa v. is held by 
 Lord Brougham to be divisible per stirpes, chiefly on the ground 
 of a preference being given to males over fi males in each family, 
 which implied a partition oi the estate between the two families. 
 
 1386. Where, in a gift to two or more i" rsons and th< ir 
 it is provided that the issue shall take the share that would 1 
 fallen to their pan nts respectively, it seems to be implied that 
 distribution is to be made per stripes^ not only as between th< 
 
 lies of the individuals named, bul a- between issue of th nd 
 
 (w) Tin- view ! ; by with <"> < 
 
 the I. I nan v. Pat 
 
 bury, cit< d «*pj 
 | h ) . 
 
 mberland, 16 N v. 1814 /■ 
 F.C. Ib Ei 
 the principle of distribution 
 
 • 
 tli. word •■ i held to mi 
 
 i ' 
 Lord S 
 
 176. 'I 
 
 eluding tl 
 
 an except th< rnli I 
 
 introduced bj Lord I 
 
 thatwhei '
 
 726 
 
 BEQUESTS TO HEIRS, NEXT OF KIN, EXECUTORS, 
 
 OlIArTER XLI. 
 
 " Family," 
 " house," equi- 
 valent in mean- 
 ing to children 
 or issue. 
 
 " Eelations" 
 means heirs in 
 mob itib us, unless 
 a different 
 meaning given 
 by the context. 
 
 and more remote degrees in the same family ; and also that de- 
 scendants in any degree only come in by way of representation on 
 the failure of their respective ancestors. This is the received con- 
 struction of such clauses, according to which a large proportion of 
 all the personal successions in the Kingdom have been distributed 
 without question ; and in such a matter, the general understanding 
 of the profession is sufficient to fix the law. In whatever way the 
 distribution is made, it must be confined to issue born before the 
 period of vesting. In the case of a distribution per capita, the ad- 
 mission of the claims of post nati involves a manifest interference 
 with the vested rights of the other legatees, (r) 
 
 1387. " Family" " House" — In the only case, so far as we have 
 observed, in which the term " family " fell to be construed as a word 
 of designation, it was held to be synonymous with children, (s) and 
 this is evidently its usual and proper signification. Whether 
 grandchildren are comprehended, would seem to depend on the 
 consideration whether the family were so nearly related to the tes- 
 tator as to admit of the application of the condition si sine liberis 
 decesserit.(t) Where the will of a father contained an expression 
 of a wish that the share of one of his sons should be so invested as 
 that there might be something "for his family" at his death, this 
 was held not to have the effect of limiting the son's interest to a 
 liferent, or of creating a trust for his children. (u) The word 
 " house," when used in the sense of family, being indefinite as to 
 number, seems to admit more readily of a construction which would 
 carry the subject either to the heir in heritage or to the personal 
 representatives, according to the nature of the subject. In the re- 
 cent case of Maitland v. Maitland, this expression, used desig- 
 natively in a bequest of residue, was held to designate the heir-at- 
 law, in respect of the intention deduced from the context, (x) 
 
 1388. "Relations" " Nearest Relations." — A legacy to relations 
 
 (r) Macdougall v. Macdougall, 4 Macph. his nephew might require control, he di- 
 
 372 (3d point). 
 
 (s) Fyffe v. Fyffe, 13 July 1841, 3 D. 
 1205. The English cases are too numer- 
 ous to admit of an abstract being given. 
 The rule is, that the word "family" is 
 presumed to mean the heir when employed 
 in a devise of real estate, and to mean the 
 personal representatives when used in re- 
 lation to personal estate. The law is 
 now settled by the judgment of the Lord 
 Chancellor in White v. Briggs, 15 Sim. 17, 
 where the testator gave his real and per- 
 sonal estate to his wife for life, and after 
 her death to his nephew; but apprehending 
 
 rected it to be secured for the benefit of 
 his family. Lord Cottenham held that the 
 intention was to secure the succession 
 in the course prescribed by law, and de- 
 creed the real estate to be secured to uses 
 in strict settlement on the sons and daugh- 
 ters in succession, and the personalty to all 
 the children as joint tenants. 
 
 (t) Chapter 38, sect. 1. 
 
 (u) Alexander v. Alexander, 12 Dec. 1849, 
 12 D. 349. 
 
 (a;) Maitland v. Maitland, 16 Jan. 1864, 
 2 Macph. 417.
 
 ISSUE. FAMILY. AND RELATIONS 727 
 
 is not void for uncertainty, (y) Prima facii , tin ;i„n applies «ui . 
 
 to the next of kin, or heirs in molnlibus, but it may be explai 
 
 by the context to include relatives (e.g., collaterals of th 
 
 blood or maternal relations), who, though nol ol thi kin 
 
 according to law, are popularly consid< r< d as in the same d< 
 
 proximity.(a) Where no special meaning 
 
 text, a bequest of personal estate in favour of relations, wh 
 
 the testator or of a person named in the will, vests in the heirs ' 
 
 mobilibus of the prop cording to the provisions of th< M 
 
 able Succession Act, as was held in WtUtamst i 
 
 latest authority. For the Bame n is< us, w< should consider that 
 
 where the subject of the legacy was heritabL oa- 
 
 tion would apply to the heir-at-law. (6) 
 
 1389. A different principle of interpretation comes int 
 tion where a faculty of distribution or selection is annexed to tl 
 legacy. In such cases, the circumstance that the benefit of tl 
 bequest is confined to selected persons, is a For inferring that 
 
 the selection is to be made from a wider range of obj< cts than tl. 
 comprised in the legal order of succession. Accordingly, 1 
 of persona] estate, to be divided "equally amongst relations nol 
 
 in named,"(c) — or to any of the t< stater's " bl I relations" thai 
 
 the disponee Bhould think the most \\\.(<h — to Buch of tl 
 
 tor's "mother's relations" as his trust ould appoint, (e) — to 
 
 such of the testator's "friend lations" as might 
 
 (v) Williamson v. G 
 
 (z) .- '. II D. 1067, 1" M ;. I ". 
 
 2 R&acq. 281. So also, in 
 
 iprehend ;i di phe^ an I a ai< c< . tbo 
 children oi terino, in i 
 
 intention inf< rr< d from tl 
 
 Hamilton v. Whitehead, 22 J 
 11 Sh. 802. In i 
 
 i: 
 I ' ' 
 
 ■ 
 
 butioi 
 
 ■ 1 1 
 
 / ii ii 
 
 M int. : 
 
 " 
 tainment of the 
 foT the compnt ition of th 
 taken i and if the will
 
 728 
 
 BEQUESTS TO HEIRS, NEXT OF KIN, EXECUTORS, ETC. 
 
 chapter xli. ou t by his wife, with the approbation of the majority of his trus- 
 tees^/) — to tlie testator's " poorest friends and relations, whom he 
 might have forgot," (j/) — and bequests to " poor descendants,"(A) — 
 have been construed as implied trusts, to be administered at the dis- 
 cretion of the executors or trustees for the benefit of selected persons 
 answering to the designation. It would seem that, in the case of a 
 trust for behoof of descendants, or other relations to be selected by 
 trustees, the declinature or failure of the trustees will cause the 
 legacy to lapse ;(i) for in this case the power of selection is held to 
 be essential to the execution of the trust purpose, and not merely 
 incidental to it, as in the case of a selection of objects of charity. (Jc) 
 Power of distri- 1390. A trust in favour of relations to be selected or nominated 
 StionTmay be by trustees, includes relations of the mother's side as well as of the 
 exercised in father's. (I) And in a recent case, where a trust was created to 
 
 favour of ma- v. / • » 
 
 tema] relatives divide a certain part of the testamentary estate " among my rela- 
 patemai. tions, in such proportions as the trustees may think proper, or as 
 
 I may direct," and the surviving trustee executed a deed of dis- 
 tribution assigning large shares of the estate to distant relatives of 
 the testator, and smaller shares to his next of kin, the deed was 
 sustained as a valid execution of the power, the judges being of 
 opinion that the term " relations" comprehended all who could show 
 a traceable relationship to the testator, (m) 
 
 (/) Crichton v. Grierson, 4 Sh. 553, N. E. 
 561 ; 25 July 1828, 3 W. & S. 329. 
 
 (g) Brown's Trs. v. His Relations, 1762, 
 M. 2318. 
 
 (h) Cairnie v. Cairnies Trs., 14 Nov. 
 1837, 16 Sh. 1 ; Macnair v. Macnair, 1791, 
 M. 16,210. 
 
 (?) Dick v. Ferguson, 1758, M. 7446 ; 
 and see Hamilton v. Whitehead, 22 Jan. 
 1833, 11 Sh. 302. 
 
 (k) In the construction of simple bequests 
 to poor or necessitous relations, these epi- 
 thets have been disregarded by the English 
 judges as being too uncertain ; see the 
 cases in 2 Jarrnan on Wills, 3d ed. p. 112. 
 
 When accompanied by a power of distri- 
 bution, such bequests appear in several 
 cases to have been considered as a species 
 of charitable trust; Isaac v. Defriez, 17 
 Ves. 373, n. ; Brunsden v. Wooldridge, Amb. 
 507. In Mahon v. Savage, 1 Sell. & Lef. Ill, 
 it was laid down by Lord Redesdale that, 
 in cases of this description, the executors 
 have a discretionary power of distribution, 
 and need not include all the testator's poor 
 relations. 
 
 (I) Brown's Trs. v. His Relations, 1762, 
 M. 2318. 
 
 (m) M'Cormack v. Barber, 25 Jan. 1861, 
 23 D. 398. 
 
 END OF VOL. T. 
 
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