unless the rights are expressly provided to other heirs. This happens where one takes a 'right to himself and his heirs-male;' for then the heir-male succeeds, though in a remoter degree, in exclusion of a nearer heir-female and her issue; and, in this case the heir-male must connect his propinquity to the deceased by males. And the privilege of primogeniture and representation takes place here, as in all succession to heritage. An heir-male may be termed an heir of tailie: because the lineal succession is frequently thereby cut or set aside-viz., where the heir-male is not likewise the heir of line. But generally an heir of tailie is understood where one provides his estate to divers successive branches, limiting it 'to one and the heirs-male of his body, which failing, another and the heirs-male of his body,' and so on to such a series of heirs substitute as the tailier thinks proper; when all the branches of the tailie fail, it becomes a fee simple. Though heirsmale and of tailie are heirs of provision, yet more commonly heirs of provision are meant where there are not more branches, but the right is taken to one, and the heirs of such a marriage, and then they are likewise termed heirs of the marriage.1 . . . The lineal succession in heritage takes likewise place amongst heirs of provision, so that the eldest son inherits lands provided to heirs of a marriage; but if it is a sum of money, it goes to all of them male and female as in moveables. It is otherwise if a sum of money is provided to heirs-male of a marriage; for then the eldest son of the marriage succeeds as heir of provision to the whole; because, amongst males, the eldest always takes without division." ERSKINE'S INSTITUTES. 39. Estimate of his Work.-The next legal work of note is the Institutes of Professor Erskine, which were published in 1773. This is undoubtedly the law book most read and referred to at the present day, excepting, perhaps, the later works of Professor Bell. It stands as a sort of land-mark in our juridical literature. It states the law clearly, fully, and yet tersely. Erskine was born in 1695, and was called to the Bar in 1719, but "did not succeed as a practitioner of the law." In 1737 he was appointed Professor of Scots Law in Edinburgh, and retained the appointment for 28 years. In 1754 he published his "Principles 1 3, 4, 31. of the Law of Scotland," and on his retirement from the Professorship in 1765, he devoted his time to the preparation of the Institutes, but the work was not published until five years after his death, which occurred in 1768. As to heritable succession he says1: "Succession in regard to its subject is either of heritage(w) or of moveables. . . . Heritable rights descend by succession to the heir;(x) for though the executors to whom the moveable succession falls are sometimes called the heirs in moveables, yet he only is heir in the most proper sense who represents the deceased in his heritable rights." 40. Order of Legal Succession in Heritage.-"The heirs. pointed out by law succeed to the deceased in the following order:2, (1.) Descendants in the first degree. The three lines of propinquity-. viz., of ascendants, descendants, and collaterals-have been already described, and the nature of degrees of propinquity explained. (y) The preference given to the line of descendants in the article of legal succession is established by nature itself and confirmed by the universal consent of nations, as well as by the authority of the Sacred Text, which makes the right of succession to be consequent upon the relation of a child. It is not so clear whether, in a competition among descendants themselves, sons ought, by the natural rule of preference, to have a larger share than daughters, or whether the eldest son should be regarded above the rest. By the Roman Law the succession of the father's whole estate was divided equally among all the immediate descendants of the deceased, whether sons or daughters, but it may be safely affirmed that the preference of the sons before daughters in heritage is, at least, not adversary to the law of nature, since the judgment given by God Himself in the case of the daughters of Zelophehad(2) is grounded on the supposition. that daughters have no claim to the inheritance of the father while sons exist. By the law of Scotland also, sons are preferred to daughters in the succession of heritage; (a) one reason of which may be deduced from the first feudal maxims which subjected all pro (w) Heritage defined, § 235; move ables, § 83. 13, 8, 3. (y) See §§ 84, 259. 23, 8, 5. This rule had at first the prietors of land to military service. (b) effect of excluding females in every case where there was no special destination in their favour ; (c) and though daughters succeed by our later customs in feudal rights where there are no sons, yet the original rule continues to have this effect, that where sons exist they are preferred before daughters. In the case of daughters only, they succeed equally and are called heirs-portioners." (d) 41. Right of Primogeniture in Great Force in Scotland.'"Though by the law of Moses the eldest son's right of primogeniture over the rest was but partial, extending only to a double portion, it has been from our most early times considered as total by the usage of Scotland, so as to exclude the younger sons from the least share of the heritable succession. (e) This was originally made part of the feudal plan out of favour to superiors, that they might not be in danger of losing their vassals' services, by the fees being divided into small parcels; and was soon after adopted into our law with universal approbation as the most effectual expedient for perpetuating the dignity and influence of great families, and for the security and defence of our country in the times of public trouble. All heirs ab intestato succeed according to the proximity of their several degrees,(ƒ) under the exceptions to be hereafter mentioned, (g) so that a grandson cannot succeed to a grandfather while his immediate father is alive. In default of immediate descendants, grandchildren succeed, and upon their failure great-grandchildren and so in infinitum; still preferring males before females, and the eldest male before the younger."(h) 42. Succession of Ascendants. "If the law of nature be considered abstractly, ascendants ought to have the next place in the legal succession after descendants; for though it is not conformable to the order of nature that parents should outlive their children, yet when that case happens they ought not to be deprived of the sorrowful comfort, as it is expressed in the Roman law, of succeeding to their own issue, nor to suffer at the same time the loss both of their children's person and of their goods.(i) The first feudal law did, however, in no case admit ascendants to the succession. For which Cujacius assigns this reason: That feus were originally granted only posteris to descendants, and therefore in their default returned to the granter. This was also agreeable to the ancient usage of Scotland. And Craig assures us that the first instance in which a service was attempted by a father as heir to his son was towards the middle of the 16th century, in the case of the Earl of Angus, who had put his son in the fee of his estate, and, after his son's death, wanted that it should return to himself. Yet this is certain that by our later customs, which seem more agreeable to the natural law, fathers are every day served heirs to their children without opposition.(k) Ascendants, though they be capable of succeeding by our present practice, yet come not immediately after descendants, for in default of children of the deceased his brothers and sisters are preferred to the father, for which Stair gives this reason (1): That as such fees proceed for the most part from the father, and as these brothers and sisters are the father's own issue equally with the deceased himself, paternal affection is presumed to operate as strongly for them as for the deceased."(m) 43. Succession in Heritage of Collateral Brothers- and Sisters-German, Uterine excluded.'-"These brothers and sisters succeed in the following order: Brothers-german have the first place; that is, brothers both by the father and mother. But as, by the law of Scotland, the legal succession of heritage is not divided, except in the special cases to be soon explained,(n) the brother-german next youngest to the deceased succeeds to him as heir-at-law according to the natural rule, heritage descends. Where the deceased is himself the youngest brother of three or more, the succession goes (i) In the Reg. Mag. no account is taken of the father in heritable succession, § 10. (k) In Stair's time, parents succeeded next to intestate's collaterals, § 23. (1) § 23. (m) For rules in Stair, see §§ 21, 23; Mackenzie, § 28; Bankton, § 28; Bell, § 70. (n) § 48. 1 3, 8, 8. to the immediate elder brother, and not to the eldest of all; because where there is no room for heritage to descend, which is its natural course, it is the least deviation from the rule that it ascend not per saltum but by the slowest degrees. If there are no brothers-german, the sisters-german succeed equally as heirs-portioners, (o) though there should be brothers-consanguinean-i.e., by the father only; for even a sister by the full blood excludes a brother by the half-blood. In default of sisters-german, brothers-consanguinean succeed one after another, in the same order as brothersgerman ;(p) and in default of these also, the sisters-consanguinean take the succession equally as heirs-portioners. Brothers or sisters of the deceased by the mother only, who are called uterine, are by the law of Scotland incapable of succession either in heritage or in moveables;(q) which, indeed, is the case of all cognates-i.e., relations of the deceased by the mother.() This doctrine, at least as to succession in heritage, may be deduced from the choice or delectus of a special family made by the superior in his feudal grant, which would be elided if the fee were descendible to the kinsmen of the mother, whom the law considers as of a different family from the vassal." (s) 44. Order of Succession of Ascendants in Heritage. The Mother cannot Succeed] to her Child." If the deceased leave neither child, brother, nor sister,(t) the succession mounts upwards to the father, as the only ascendant in the first degree capable to succeed ;(u) for the mother, though an ascendant in the same degree, is as incapable of succeeding to her child as any of the child's relations by the mother are.(v) If the father be already dead, the succession goes to the father's brothers, and in default |