20. Succession in Heritable Rights.'-"Succession in immoveable and heritable rights(e) proceeds wholly in a different manner; for succession in moveables is more near to the course of natural succession and to the civil law of the Romans, especially their ancient and middle law; but the succession in heritable rights agreeth more to the recent feudal customs of most nations, whereby primogeniture is established for the honour and preservation of noble families, and in them for the good and safety of their kings and countries."

21. Kinds of Heirs in Scotland."-"Succession in heritable rights in Scotland are either by the will of the fiar,(ƒ) or by law provisione hominis or legis. Heirs by the course of law are called heirs of line, as befalling by the line of succession appointed and known in law; all other heirs do cross or cut that line, and therefore are called heirs of tailzie, from the French word tayler, to cut.(g) ... As regards heirs of line, the law hath ordered them thus: first, The eldest lawful son and his descendants in order, by right of primogeniture, excludeth all other descendants, male or female; (h) failing sons, the daughters and their descendants do all succeed equally, (i) except in rights indivisible,(k) which fall to the eldest; failing descendants, the next degree is of the next immediate brother-german and his descendants, and among middle brethren the immediate elder brother succeedeth in conquest, () whereunto the defunct did not, nor could not succeed as heir; but in all others the immediate younger brother succeedeth, (m) and therefore is called the heir of line, and the other the heir of conquest.(n) If the fiar be a woman, her brother-german (0) excludeth sisters-german, and of her brothers, the immediate elder brother succeedeth in conquest,(p) and the immediate

(e) Heritable rights defined, § 235. (ƒ) Fiar here means proprietor, but ordinarily term now applied to person vested in heritable property subject to a right of liferent in another.

(g) See §§ 28, 40, 242; heir-ofline is synonymous with heir-at-law, heir-general, heir whatsoever.-Bell's Prin. § 1696.

(h) The right may be subject to terce or courtesy. See §§ 261, 264. (i) Daughters succeed equally; but 1 Tit. 26, sec. 25.

younger in heritage ;(q) failing brothers-german,(r) sisters-german and their descendants(s) exclude both brethren and sisters by the father's side only; failing brothers- or sisters-german,(t) brothers by the father's side succeed to the defunct, whether male or female, the immediate elder in conquest, (u) and the immediate younger in heritage.(v) Failing all brothers and sisters,(w) the father, or other masculine ascendant of his line succeeds to the defunct, whether male or female, and excludes the brothers or sisters of that ascendant, as a grand-grandfather excludes his brethren, but not father's brethren to the defunct.(x) Failing ascendants, (y) the father's brothers, and father's sisters and their descendants, succeed in all points as brothers and sisters, the double blood excluding the single blood, (2) and the immediate elder brother succeeding in conquest,(a) and the immediate younger in heritage ;(b) and all failing, the grandfather; and failing him, his brothers and sisters the same way; and so upward till there can be any propinquity of blood proved; which all failing, the king taketh place as last heir."(c)

22. No Place for adopted or Cognates(d) in Succession.1"In this line of succession observe-(1.) That there is no place for adopted children, or their issue, but only for the natural issue of the vassal, which cannot be changed by a voluntary act of adoption, without consent of the superior in the investiture ;(e) neither is adoption in use with us in any case. (2.) These natural heirs must

(9) See note (m).

(r) And their descendants, § 246. (s) Sons in order of seniority, and daughters equally, § 246.

(t) And their descendants, § 253. (u) See note (m).

(v) Failing brothers on the father's side and their descendants, sisters on the father's side succeed equally and their issue, § 254; see also note (m). (w) German and consanguinean and their descendants, § 256.

(x) This passage is a little involved; it means that the father and grandfather, each in his own line, excludes his own brothers and sisters.

(y) For "ascendants" read "father."

(*) This means half blood consanguinean, not uterine, § 255. (a) Altered, see §§ 236, 257. (b) See note (m).

(c) For rules in Mackenzie's Inst. see §§ 28-30; Bankton's, § 38; Erskine's, §§ 40-48; Bell's, §§ 69,

70.

(d) "Adopted" does not mean that legal descent cannot be altered by deed, Bell's Prin. § 1691; Cognates means relatives on the mother's side; Agnates, relatives on the father's side; Bell's Prin. § 2078.

(e) Legal descent may be altered by deed without the superior's consent, Bell's Prin. § 1692.

1 Tit. 26, sec. 34.

...

also be lawful, whereby bastards are excluded. (f) . . . (3.) There is no place for cognates, as to the mother, grandmother, or other feminine ascendant, or those of their side, but only to agnates conjoined by the father, grandfather, &c., which holdeth, even though the heritage descended from the mother or those of her side.(g) (4.) In all this line of succession there is place for representation of descendants, in place of their defunct parents;(h) so that females of a further degree, by the right of representation, exclude males of a nearer degree; as the eldest son's daughter will be preferred in the grandfather's inheritance to his other sons in private rights, though that be controversed by the more common feudal customs, as is largely and learnedly disputed by Tiraquellus."(?)

23. Parents Succeed to their Children, and exclude Collaterals, &c.-"In this lineal succession the father, grandfather, or other ascendants of the paternal line, succeed in heritable rights, next unto brothers and sisters, (k) and before all other collaterals or agnates. (1) . . . The reason why brothers and sisters of the defunct are preferred to the father with us, may be, because such fees do commonly proceed from the father, and therefore, by the continuance of that same fatherly affection, are derived to the brothers and sisters, and because they are in more need of provision than the father."

In treating of the interests of the several kinds of heirs, Lord Stair says:—

24. Heirship Moveables." Heirs have also right to moveable heirships.(m) ... Heirship moveable is the best of every kind of moveables, belonging to the defunct, which the heirs of line may draw from the executors, whereof there is an ordinary list.(n) . . . Heirship moveables is established by the Act of Parliament, 1474,

(ƒ) As to bastards, see § 126. (g) Heritage acquired from or through the mother never ascends to the maternal line after it has vested, § 249; Heritage now vests without service, § 239.

(h) Representation is also admitted among collaterals, § 245.

(i) For rules in Mackenzie's Inst. see § 30; Erskine, § 46.

1 Tit. 26, sec. 35.

...

(k) And their descendants, § 259. (1) This means that the father excludes his own collaterals, and that these succeed in manner mentioned in § 21, to the exclusion of the grandfather, and so forth, § 259.

(m) This right abolished as from 31st July, 1868, § 237.

(n) See Darg. 23rd Dec. 1808.

2 Tit. 27, 7 and 9.

cap. 53. . . . It is not always a single thing, but goeth sometimes by pairs, and sometimes by dozens, as in spoons. So the heirship of oxen was found to be a yoke, and not a single ox. . . . And heirship taketh place only in corporibus, but not in quantitatibus, as in(o) money, cloath, mettal, &c. And so the shell of a salt-pan which was out of use was accounted but iron, and not to fall under heirship moveable."(p)

25. Heirs of Conquest." Heirs of conquest (q)... have only place where there is an elder and younger brother, or an elder and younger father brother, &c., and their issue to succeed: in which case the law alloweth two heirs, the immediate elder succeedeth in conquest, and the immediate younger in the heritage. (r) Therefore the one is specially called the heir of conquest, and the other retaineth the common name of the heir of line. Conquest is feudum novum, whereunto the defunct did not succeed as heir to any person, or whereunto the defunct could not succeed as heir, for if that were disponed to him by the defunct, whereunto he would have succeeded, it were but Preceptio hæreditatis, and so remained to be repute as heritage to descend to the younger, and not to ascend to the elder." (s)

...

26. Heirs-Portioners.2-"Heirs-portioners are amongst heirs of line, for when more women or their issue succeed, failing males of that degree, it is by the course of law that they succeed; and because they succeed not in solidum, but in equal portions, (t) they are called heirs-portioners; and though they succeed equally, yet rights indivisible fall to the eldest alone, without anything in lieu thereof to the rest. As (1.) Dignity of lord, earl, &c. (2.) The principal manse, (u) being tower, fortalice, &c., which doeth not extend to houses in burghs, nor to ordinary country houses, the former being divisible, the latter falls under division,

(0) "Victual" introduced in last edition.

(p) See notes to last edition of Stair, p. 330. For rules in Mackenzie's Inst. see § 31; Erskine, § 51; Bell, § 73.

(q) Conquest abolished as from 1st Oct. 1874, §§ 236, 257.

(r) If there be no immediate 1 Tit. 27, 10.

younger, the immediate elder brother succeeds in heritage, § 253.

(s) For rules in Mackenzie's Inst. see § 32; Erskine, § 49; Bell, § 71.

(t) I.e., in the case of females only; the issue of females except they be all females, succeed not equally, but sons first in their order, with their issue, then daughters equally, § 248. (u) Mansion.

2 Tit. 27,

11.

as pertinents of the land whereupon they stand, and are not as separata jura or distinct rights. (3.) Superiorities are accounted indivisible, (v) and befall only to the eldest daughter and her issue, and thereby all the casualties of the superiority, either preceding or following the defunct's death." (w)

MACKENZIE'S INSTITUTES.

27. Estimate of Mackenzie's Work.-Three years after the publication of Stair's Institutes, Sir George Mackenzie, or “the bluidy Mackenzie," published his Institutions of the Law of Scotland, namely, in the year 1684. Sir George was born in 1636, and, like his coadjutors, studied law in France. He thereafter passed advocate; entered Parliament in 1669; was named King's Advocate in 1677, and died in 1691. Sir George, in the midst of his professional labours, prosecuted literature with much assiduity, and published several well-known literary works. His devotion to literature is probably the reason why his Institutions contain so little of what might be expected in commentaries of the law. The work is meagre for a commentary on the law. Lord Bankton speaks of it as "a kind of epitome of Lord Stair's work, and as comprehending in miniature most of the principles of our law." The size is 250 pages 12mo. We extract the following from the fourth edition published in 1706:

I. HERITAGE.

28. Kinds of Heirs. With us there are several kinds of heirs, distinguished by their several denominations. The first and chief kind of heirs are the heirs of line who are so called because they succeed lineally according to the right of blood, and they succeed thus:

"First descendants according to the proximity of their degree, in which the eldest son is preferred to all his brothers, and all the brothers to the sisters, and if there be only sisters they succeed all equally. (x) The next degree is grandchildren and

(v) Superiorities where substantial fall to be divided; see note (o), § 48. (w) For rules in Erskine's Inst. see

§ 48.

(x) Indivisible rights go to the

eldest sister, § 247; Rule of descent too broadly stated here, see § 259; the heir's right may be subject to terce or courtesy, §§ 261, 264.