INTESTATE SUCCESSION IN HERITABLE ESTATE IN SCOTLAND. 234. General View.-The leading general rules under this branch may be stated thus:— 1. That the lineal descendants of the intestate, to the remotest degree, exclude all other relatives. 2. That the collaterals of the intestate and their lawful issue succeed after lineal descendants. 3. That on the failure of collaterals and their issue, ascendants succeed.(a) 4. That males exclude females in the same degree of relation ship.(b) 5. That where two or more males are in the same degree, this distinction obtains: If in the descending line, the eldest only shall succeed, but if in the collateral line, the next younger, or if there be no younger, the next elder male, shall succeed to the exclusion of the other or others. (bb) 6. That where two or more females in the same degree are the nearest heirs, they succeed equally, excepting that the eldest is entitled to certain indivisible rights.(c) 7. That the doctrine of representation is not, as in moveable succession, confined to lineal descendants and to brothers and sisters and their descendants, but extends to ascendants and their descendants without limitation.(d) These rules may be briefly illustrated in this way: If the intestate leave two sons, A and B, and two daughters, C and D, the eldest son A excludes B under Rule 5, and he excludes C and D under Rule 4, even although C and D should be his seniors in years. If, however, A die without issue, then B succeeds under Rule 4, to the exclusion of C and D; if B also die without issue, C and D succeed equally under Rule 6. But if A or B leave a son or daughter, or a grandson or granddaughter, such son or daughter or grandson or granddaughter excludes B and C and D under Rule 7. 8. That the full or german blood exclude the half-blood consanguinean, the half-blood consanguinean succeed after the full blood, while the half-blood uterine is entirely excluded.(e) 9. That the husband and wife never succeed to one another; but in certain circumstances, the husband, if he survive his wife, is entitled to a liferent of any heritable estate she may possess, called his right of courtesy,(ƒ) while, if the wife survive her husband, she is entitled to the liferent of part of any heritable estate vested in the husband at his death, called terce.(g) 235. Heritable Property: what Term comprises.-In questions of succession it is of importance that the lines which separate property into heritable and moveable be clearly distinguished, as the things which are deemed heritable go to the heir in heritage; while the things which are deemed moveable go to the next-of-kin or legal representatives of the intestate. The leading rules which govern the separation of property into heritable and moveable having been already considered (h); it will be sufficient here to state in general terms the nature of the rights regarded as heritable property. As a general rule, all things which are in their nature immoveable, as land and houses, and all rights in or connected with either, are heritable. Like moveable property, heritable property is divided into rights corporeal and incorporeal; and in both divisions, a thing may be heritable either (1) by its nature; or (2) by its accession to or connection with other things; or (3) by the destination impressed on it. These divisions may be briefly illustrated thus: I. Corporeal Heritable Rights. (1.) By nature all things incapable of being moved are heritable, as land and all minerals and substances therein. (2.) By accession or connection, things, though in themselves by nature moveable, may become heritable. Thus, things annexed to land artificially, so that they cannot be removed without destroying or changing the nature of the other subject, as houses, fixtures in houses, (i) mills, machines or vessels immoveable or fixed, &c., are heritable. So also are trees, natural fruits, and all crops, which are not annual, so long as attached to the soil; also second crops of hay from seed sown.(j) (3.) By destination, things in their nature moveable may be rendered heritable, and that either by express words, or by using them in such a way as to show a manifest purpose of annexation or connection. Thus, jewels, arms, pictures, books, or furniture, may be made heritable by destination; while materials prepared for completing the wainscoting or windows of a house, or the like, are made heritable by annexation.(k) II. Incorporeal Heritable Rights. (1.) By their natural character, all rights to land, whether of property or of liferent, made real by registration, are heritable. So also are rights having a tract of future time as liferents, annuities, titles of honour, and offices to continue after the patentee or officer's life.() (2.) By accession or connection, feu-duties and casualties of superiority, rents of land, &c.,(m) are heritable, though arrears be moveable. So also are rights affecting land, though not feudalised, as servitudes, teinds, reversions, &c.(n) (3.) By destination, the exclusion of executors in a personal bond makes the bond heritable.(0) So also in a heritable bond; but although not so conceived, such a bond is heritable quoad fiscum, the husband's jus mariti, the jus relicta, and the children's legitim.(p) 236. Conquest Heritage. This term was at one time applied to such heritable subjects as were acquired by industry, economy, purchase or donation, or by what was technically called "singular title." It was used in contradistinction to such heritable rights as the deceased inherited from his father or other relative, termed heritage.(q) The distinction between the two fees was abolished (i) See § 83 as to the rules regulating the law of fixtures. (j) M'Laren, § 369; Bell's Prin. § 1473. (k) Bell's Prin. § 1475; Bailie, 21st May, 1859, 21 D. 838. (1) Bell's Prin. §§ 1476-81. (m) § 124. (n) Bell's Prin. § 1484; Capledræ, (p) 31 & 32 Vict. c. 101, § 117. 8, 14. by the Conveyancing Act of 1874, (r) with respect to all successions opening after 1st October, 1874, and it was by that Act provided that, thereafter, fees of conquest should descend to the same persons, in the same manner, and subject to the same rules as fees of heritage. Conquest did not include leases, annuities, pensions or personal bonds excluding executors, as these do not require sasine, nor teinds, as teinds affect the fruit, not the land.(s) But conquest heritage did not long continue to be conquest. So soon as the heir in conquest completed his title to the property, it became heritage proper in his person,(t) and consequently, on his death intestate, descended in the same way as heritage proper. But if the heir died without having completed his title, the succession passed to the ancestor's next heir of conquest.(u) 237. Heirship Moveables.-Formerly the heir-at-law could, on succeeding to heritable property, claim certain moveables called heirship, which usually consisted of select articles of household furniture, implements of husbandry, farm stock, &c. But, as already noticed, the right was taken away by the Conveyancing Act, 1868.(v) 238. Lines in Consanguinity.-These lines are the same as those already mentioned in treating of Moveable Succession.(w) 239. Opening and Vesting of Successions.-The circumstances under which successions in heritable estate open and vest are the same as those in Moveable Successions, to which the reader is referred.(x) 240. Rights of Aliens.-Aliens, as already explained, are now entitled to acquire, hold and transmit heritable property within the United Kingdom, and they possess nearly all the privileges of British subjects.(y) 241. Collation.-This is a privilege the heir may claim where he finds that the moveable estate is of more value than the heritage. (r) 38 & 39 Vict. c. 94, § 37. (s) Ersk. 3, 8, 16. (t) Bell's Prin. §§ 1675, 1676. (u) Aitchison, 7th March, 1829, 7 S. 558. (v) 31 & 32 Vict. c. 101, § 160; see also §§ 31, 51, 73, 237. (w) §§ 84, 88. (x) § 80. In such a case he is entitled to require that the heritage and moveables be massed into a common fund, from which he may draw a share equal with each of the next-of-kin. The heirs entitled to this privilege, as well as the subjects of collation, and the mode of collation, have been already explained.(z) 242. Kinds of Heirs.-The expressions, "heir," "heir-at-law," "heir-of-line," "heir-general," and "heir whomsoever or whatsoever," of any person are synonymous, and point out the person succeeding in the regular course of law to property undestined by the ancestor. The person succeeding is called "heir-at-law," because he succeeds by the operation of law; "heir-of-line," because he succeeds in a certain recognised line of propinquity; "heir-general," because he may enter by a general service, as nearest and lawful heir to the ancestor whom he represents generally; and "heir whomsoever or whatsoever," in contradistinction to special heir, called by particular destination. The term "heir-male" applies to a male connected through males; and the term "heir-female" applies to that female and her heirs (whether male or female), who is most nearly connected with the ancestor. Heir-apparent" applies to the person to whom a succession has opened, but who has not completed his title to it; before the succession has opened such person is called "heir-presumptive."(a) 243. Heirs must be Legitimate. The heir must be legitimate at the time he succeeds to heritage. Illegitimate children do not succeed at common law, even to their own father or mother, as succession is through the father only, and illegitimate children have, in the eye of the law, no father.(b) 244. Heirs-descent: how traced.-In every case the heirsdescent must be traced from the person, male or female, who died last vested in, or held an unrecorded disposition to the property, irrespective of the manner in which that person acquired the property.(c) Estates now vest in heirs without service.(d) 245. Right of Representation.-In case of remote issue, the succession is regulated by the law of representation, which has a 2063, 1627. See how this rule now (*) §§ 120, 123. (a) Ersk. 3, 8, 54; Bell's Prin. § affected in moveable succession, § 126. 1677. See also §§ 21, 28. (c) Bell's Prin. §§ 1663, 1671. (d) 37 & 38 Vict. c. 94, § 9. (b) Ersk. 1, 6, 51; Bell's Prin. §§ |