of them to his sisters, (w) in the same order in which it would have gone to the brothers and sisters of the deceased if he had had any. On the failure of these it ascends to the father's father, and if he be not alive, to his brothers and sisters;(x) and so upwards, the brothers and sisters of the nearest ascendant still excluding the more remote and his collaterals. Where there is no agnate or kinsman to the deceased by the father, the king succeeds as ultimus hæres.”(y)

45. Consequences from the Rules of Succession in Heritage above laid down." Upon the rules above set forth it may be observed:-1st, That though a mother cannot succeed to her child, yet a child is as truly heir to the mother as to the father. 2ndly, The rule that the full blood excludes the half-blood holds only in the same line of succession. Thus, though a brother-german excludes a brother-consanguinean, because both are in the collateral line, yet a brother-consanguinean is preferred to the father's full brother, because these two are in different lines.(*) 3rdly, No regard is had to the question, From what quarter the estate of the deceased has come? If the right appears to be once vested in the deceased, (a) the only remaining question is, Who is his heir at law? without considering whether such heir stands related to him from whom the estate descended to the deceased. The contrary rule Paterna paternis et materna maternis obtains in England; and, in the opinion of Craig, ought also to obtain universally, on account of its equity, where the estate proceeds from an heiress; yet he admits that our supreme court rejected it in the case of one Gilbert; and a similar decision has been pronounced since Craig's death, by which a father was preferred to the succession of his son in lands in which the son was infeft as heir to his mother, to the exclusion of the brother-uterine of the deceased from that very estate which belonged to his own mother. Before going farther, we may men

tion, as an universal rule in every country, that the succession to land, estates, and all heritable subjects (b) must be governed by the law of the kingdom or state where they are situated, and not according to the lex domicilii of the proprietor, though he should happen to die abroad and have his settled residence there at his death,"

46. Right of Representation in Heritage." There is a right of representation peculiar to heritage, (c) 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.(d) Thus, where one dies leaving a younger son and a grandchild, whether male or female, by an elder son predeceased, the grandchild, though farther removed in degree from the deceased than his uncle, excludes him(e) from the legal succession; because he succeeds not in his own right but in that of his father, who was the eldest son of the deceased, and as such would have excluded the younger son had he been alive when the succession opened to him(ƒ) upon his father's death. The word representation, when applied to this right, must not be understood in that sense in which it is commonly taken by lawyers, as if the grandchild in the case now stated were liable for the debts of his immediate father, whom he represents; he represents him barely in his propinquity and not in his debts.(g) This right obtains in the succession of collaterals as well as in that of descendants ;(h) and therefore, where it is said that brothers succeed next after descendants, then sisters, &c., not only the persons themselves are meant, but all their descendants jure representationis. Thus, if one die without issue, leaving a nephew by his immediate younger brother deceased, and also two elder brothers, the surviving brothers will be excluded from the succession, though next in degree, and the nephew preferred, as

coming in the place of his deceased father. Thus also, as a sistergerman excludes a brother-consanguinean, so does a child of that sister exclude him jure representationis.(i) By the same rule, though no heritable right falls in any case to the mother of the deceased, nor to his relations by her, yet as children take by succession the heritage belonging to their deceased mother, they also succeed as representing her, in every case where the mother herself would have been entitled to the succession had she been alive at the death of her ancestor."(k)

47. Succession in Capita and in Stirpes.'-"From this doctrine arises a division of succession, well known in the Roman Law, into succession in capita and in stirpes. The succession in capita is that which divides the inheritance into as many equal parts as there are capita or heirs; as in the case of daughters only, who are all of them entitled to equal parts of the father's succession.(1) Succession in stirpes, or by the stock, makes the partition not according to the number of heirs to whom the estate descends, but according to the number of the stocks or stirpes from whom these heirs derive right. Thus, if a father die leaving one daughter behind him, and two daughters by a daughter predeceased, the surviving daughter is entitled by herself to the half of the whole heritage as one of two daughters co-heiresses, while each of the two granddaughters take only a half of their mother's half, or a fourth of the whole."(m)

48. Succession of Heirs-Portioners. Præcipuum to the Eldest of the Mansion-House and Garden. Patronage Divisible."— "In the succession of heritage ab intestato, the law in special cases does not confer the whole heritable subjects belonging to the deceased upon a sole heir, but divides the succession into parts among two or more.(n) Thus-1st, where females succeed, it has been said that the eldest does not by any right of primogeniture exclude her younger sisters, but that they succeed equally as heirs-portioners. In female succession by the line of descendants, all the

daughters of the deceased succeed in this manner, though they should be procreated of different marriages, if there be no special destination by the father to the contrary. But though each heirportioner has an equal interest in the succession, in so far as it is divisible, yet the eldest daughter enjoys this privilege from necessity, that rights which are indivisible ex sua natura, fall to her alone-e.g., titles of dignity. . . . Where the deceased happened to be vested with one single superiority, the right of it goes to the eldest not so much because a right of superiority is hardly capable of division, as because the condition of a vassal is not to be made worse by splitting the superiority into parts; for no vassal can be compelled to hold his lands of two or more superiors in the place of one. Where different superiorities were vested in the deceased, the eldest would probably have the option or election of what she judges best, then the second, and so in their order, till all the superiorities be exhausted. Craig is of opinion that in the superiority of lands holden feu, the feu-duties, being a constant yearly rent, ought to be deemed part of the property rather than of the superiority; and consequently to be divided among the heirs-portioners even in the case of a single superiority. But, in truth, feu-duties are proper parts of the superiority, and the only title for poinding the ground for the arrears is the right of superiority; so that, if the yearly feu-duty were divided among the sisters, as Craig would have it, it is only that part of it which remains with the eldest that would be debitum fundi, since she only as superior could poind the ground for its payment. But though feu-duties cannot, for this reason, suffer a separation from the right of superiority, yet because they are a fixed yearly rent, and so of a different nature from the casualties of superiority, which depend upon accidents, the younger sisters have compensation for their shares of them out of the other estate of the deceased, in so far as the division of the several superiorities hath been unequal.(o) The principal mansion-house of the lands is accounted an indivisible right; but because that subject admitted of valuation, our old law directed that the younger sisters should be recompensed out of the deceased's other estate, to the amount of its value. But by our later customs the eldest is entitled to it, even without recompense to the other sisters, as she

(0) It is now settled that superior- | superiority as a præcipuum without ities yielding substantial feu-duties recompense to the others, Edition fall to be divided, but the eldest heir- 1871, p. 902. portioner is entitled to a blench

is also to the garden and orchard belonging to it, since the one ought not to be separated from the other.(p) Upon this ground, the heirship moveables(q) fall also to the eldest alone, for the right of these ought to accompany that of the mansion-house. Houses within borough, especially if they lie discontiguous from the other estate of the deceased, and all country houses except the principal mansion-house, are accounted common pertinents of the ground on which they stand, and are therefore equally capable of division with the lands themselves. Patronage is a divisible right,(r) for our statutes admit that the patronage of the same church may be vested in two different persons, 1617, c. 3. It carries also a patrimonial interest to the patron, 1619, c. 23,(s) and upon both accounts it divides equally among the sisters, who may present to the benefice and levy the vacant stipend by turns, the first vice, or turn, falling to the eldest. As the title-deeds of an estate cannot be in the custody of two different persons, the eldest sister is preferred to the keeping of them, who may be compelled to give transumpts to any of the other sisters that may have occasion for them, she herself bearing an equal share of the expense." (t)

49. Heirs of Conquest." The legal succession of heritage is also broken into parts, in the case of an heir of conquest . . . the terms by which this division is expressed in our law are fees of heritage and fees of conquest ;(u) so that heritage thus limited includes not all heritable subjects without exception, but is confined

(p) Præcipuum held to extend to mansion-house, offices, barn-yard, and garden. Estate divisible by sheriff; the eldest heir-portioner receiving that part where the house and its pertinents are situated; the others cast lots for remaining parts, Edition 1871, p. 903.

(q) Heirship moveables abolished, § 237.

(r) Church patronage abolished or transferred to congregations by 37 & 38 Vict. c. 82 (1874).

(s) These references appear to be inaccurate. Patronage was first recognised and regulated by 1567, c. 7; 1592, c. 110; 1612, c. 1.. It was

abolished by 1649, c. 23, and 1690, c. 23; was restored by 10 Anne, c. 12, and again abolished as in preceding note.-Barclay's Digest.

(t) The right of the eldest heirportioner to præcipuum is excluded except where she succeeds by disposition of law. No room for the claim where the parties succeed as joint disponees. Denniston, 17th June, 1830. For rules in Reg. Mag. see § 5; Mackenzie, § 26.

(u) Distinction between heritage and conquest abolished as to all successions opening after 1st Oct. 1874, § 236.

1 3, 8, 14.