to those to which the deceased himself succeeded as heir. Besides other differences between the two branches of this division, their rules of legal succession are different. The law confers the antiqua feuda, or proper heritage of the deceased, upon one heir, and his conquest upon another.(v) This distinction obtains only where two or more brothers or uncles, or their issue, are next in succession. Rights that are heritable in the most strict and limited sense descend in this case to the next younger brother of the deceased, or to the next younger brother of the father of the deceased, where there are no nearer heirs as to the proper heir of line, conformably to the above-mentioned rule, heritage descends; but the succession of conquest-i.e., of such heritable rights as had been acquired by the deceased himself-ascends to the immediate elder brother or uncle, who is therefore called the heir of conquest, because his right of succession is confined to the subjects which the ancestor himself had thus acquired, or, as we long expressed it, conquished by some singular title. This doctrine has been probably introduced with the view of enriching elder brothers, who have been always more favoured by our law than the younger. Where the deceased is the youngest brother, and leaves two elder, whether they be procreated of the same or of a former marriage, (w) the youngest of the surviving brothers is not only heir of line to the deceased but his heir of conquest, because he is his immediate elder brother, contrary to the opinion of Craig, who affirms that if the surviving brothers are only consanguinean, procreated of a former marriage, the eldest of them is heir of conquest to the deceased. Without all doubt, where the deceased leaves but one brother whether elder or younger than himself, he is heir both of line and of conquest."(x) What 50. Succession to Conquest among Females. accounted(y) conquest."There is no place for this distinction between heritage and conquest where the succession divides among sisters, for seeing sisters do not succeed in heritage, as brothers, one after another, but as heirs-portioners, conquest goes in the same way without any preference in favour of the immediate elder sister. Conquest can ascend but once; or, in other words, where one who has himself acquired an estate dies, such estate, though it must go to the (v) See rules, § 257. (w) The full blood excludes the half blood, § 257; Bell's Prin. § 1671. (x) For rules in Stair see § 25 Mackenzie, § 32; Bell, § 71. (y) See § 236. 13, 8, 15. immediate elder brother as heir of conquest, does not continue conquest in the person of that brother; because it was no acquisition of his; he succeeded to it as heir; and therefore if, upon his death he should leave an elder and a younger brother, the estate does not as conquest ascend to the elder, but must descend to the younger as heir of line. (2) An heritable subject made over by a father to his eldest son, who is at the date of the right alioqui successurus, is not conquest in the person of the son, because he would have succeeded to it as heir, though there had been no disposition, and consequently if the son die after his father leaving two uncles, one elder than the father and the other younger, the subject will descend to the younger as heir of line. But an heritable grant by one, who has no lawful issue, in favour of a brother, ought to be accounted conquest in the grantee, unless the grant has been expressly made over to him as the granter's successor. For though the disponee was at the date of the right the disponer's presumptive heir, the disponer might have afterwards had issue of his own body, who would have been nearer in blood to him than the disponee." 51. Heirship Moveables."The heir of line is entitled, not only to the succession of subjects properly heritable, but to that sort of moveables called heirship.(a) By heirship moveables are understood(b) the best of certain kinds of moveable goods from which the executor, though he be the heir in moveables, is excluded, and which the law accounts heritage in respect of succession from the presumed intention of the deceased, that is, principal dwellinghouse, and the farm which he kept in his own natural possession for the use of his family, might go to the heir not quite dismantled by the executors. . . . As this is a right annexed to succession in heritage, the heir cannot be deprived of it by any deed of the ancestor, either testamentary or on death-bed, (c) but it is the heir (*) But if an heir of conquest died without making up a title, he would be succeeded by the next heir of conquest of the ancestor, Edition 1871, p. 904. (a) This right abolished as to all successions opening after 31st Dec. 1868, § 237. (b) An amusing list of heirship moveables is given in Hope's "Minor Practicks," Edition 1734. See also Oliphant, 24th Dec. 1859; Leith, 19th June, 1863; see also next section. (c) Bell states that the heir's right is protected by the law of deathbed, Bell's Prin. § 1908. Law of death-bed abolished by 34 & 35 Vict. c. 81 (1871). 13, 8, 17. of line who alone can claim it, and therefore, though the whole estate of the deceased should be conquest or entailed to heirs-male, the heirship does not accompany such estate, but belongs solely to the heir of line. Where the legal succession descends to two or more females who are heirs-portioners of line, the eldest only is entitled to the heirship.(d) . . ." 52. What is included under Heirship Moveables.'-"The act establishing heirship moveables is 1474, c. 54, and it refers to the Borough Laws for the catalogue of the particulars included under that appellation (L. Burg. c. 125). But all lists of heirship moveables must, in the nature of things, be imperfect, and increase with every new piece of furniture which the vanity or taste of a proprietor may add to a house or farm. (e) This, however, may be observed after Stair, that by the words of the statute, the best of everything, we must not understand fungibles, which are estimated by quantity, as coin, wine, uncut cloth, bullion, &c., for heirship consists only of subjects quae non recipiunt functionem as beds, grates, tables, chairs, mirrors, plate, bed and table linen or other such household stuff. And in like manner, in what is called outside plenishing, or moveables without doors, the heirship may be drawn of horses, cows, oxen, and of all the implements of agriculture, as ploughs, harrows, carts, &c., but not of corn or hay, because those last are fungibles. In moveable subjects, which go by pairs or dozens, as in table plate, bed and table linen, &c., the best pair or dozen is the heirship, and, for the same reason, where the deceased had any number of cattle proper for tillage, the heirship is the best yoke-i.e., as many as make a plough. There are some particular kinds of moveables which fall under heirship though the heir should be but one individual of that kind belonging to the deceased, as the family's seal of arms, the carpet or cushion belonging to the seat in the church, and, by our ancient practice, the whole furniture of the hall." In regard to moveable succession, Professor Erskine says:— 53. Rules of Moveable Succession." The order of succession (f) in moveables ab intestato is the same as in heritage, with the following limitations or exceptions: 1st, It is an universal rule (d) This controverted by Bell, ! Bell's Prin. § 1906. For rules in (e) See note (b). (f) See statement in § 129. 23, 9, 2. in the legal succession of moveables, that the next in degree of blood to the deceased, or the next-of-kin, (g) succeeds to the whole; and if there be two or more equally near, all of them succeed by equal parts, (h) without the prerogative which males enjoy above females in the succession of heritage, or any right of primogeniture in the eldest male above the younger. 2nd, The right of representation in heritage, by which remoter heirs represent their ascendants, has no place in the succession of moveables. Thus, where one dies without issue leaving two sisters, and a nephew or niece by a third sister deceased, the two surviving sisters succeed to the whole moveable estate, excluding the child of the sister predeceased; and in the same manner, immediate children surviving exclude the grand-children by a child predeceased.(i) Yet in questions between the full and the half-blood, representation is admitted, even in moveables. Thus, where one deceased leaves a sister consanguinean, or by the father only, and a nephew by a sistergerman, or full sister predeceased, the nephew, though more removed by one degree from his uncle than the sister by the half-blood, shall take the whole moveable succession, as representing his mother, who was sister to the deceased by the full blood."(k) 54. The Heir who Succeeds to the Heritage has no Share in the Moveables. () Collation by the Heir." Where the estate of the deceased consists partly in heritage, and partly in moveables, the proper heir in heritage has no share of the moveable estate, if there be others as near(m) in degree to the deceased as himself. Thus, in the line of descendants, the eldest son gets the whole heritage ;(n) and all the other children, whether sons or daughters, divide the moveable estate among them in capita.(o) among the descendants and certain collaterals of the intestate, § 125. (k) For rules in Reg. Mag. see $$ 11, 12, 13; Stair, § 19; Mackenzie, § 33; Bankton, § 38; Bell, § 72. (1) See § 120. (m) Or nearer, §§ 123, 245; unless he collates, § 120. (n) Subject to contingent rights of terce or courtesy, §§ 261, 264. (0) If one or more of the younger children be dead, leaving issue, the division is per stirpes, § 125. 13, 9, 3. Thus also, in the collateral line, that brother, who, as heir-at-law, is entitled to the whole heritage, is excluded by his other brothers and sisters from any share of the moveable succession. But where the heritable estate of the deceased is so inconsiderable, in proportion to the moveable, that the heir finds it his interest to renounce his exclusive claim to the heritage, and betake himself to his right as one of the next-of-kin, the law allows him to collate or communicate the heritage with the other next-of-kin, who, in their turn, must collate the executry with him; so that the whole estate belonging to the deceased is thrown into one mass, and distributed by equal parts among all of them.(p) And even though the heir be not one of the next-of-kin-e.g., if he be a grandson, by the eldest son of the deceased-he seems entitled (q) to the privilege of collating with the deceased's immediate children; for, since he succeeds to the heritage as representing his father, who was one of the next-ofkin to the deceased, he ought to enjoy all the privileges which would have been competent to his father as heir had he survived the grandfather.(r) Where the deceased leaves only one child, he is both heir and executor without collation;(s) for where the right of the whole estate, heritable and moveable, descends to the same person, there is no room for collating the one with the other. This kind of collation is admitted, not only in the succession of descendants, but of collaterals; so that a brother who succeeds as heir to the deceased, if he judges the moveable succession the most profitable of the two, may collate with his younger brothers and his sisters,(t) and so come in as equal sharers with them to the whole succession; for as collation was admitted into our law, that the heir might, in no event, be in a worse condition than the other next-of-kin, that reason has equal force in the succession of collaterals, and of descendants. It is only the legal heir, or the heir ab intestato, who (p) Foreign heritage must be collated by an heir claiming a share of a Scotch executry. But where the executry is foreign, the Scotch law of collation has no place, Edition 1871, p. 990. (q) The right is now given by statute, and may be exercised by heirs-portioners coming in place of the heir-at-law, §§ 120-123. (r) The common law is stated fully in Anstruther, 20th January, 1836. By the recent statute, if the heir of a predeceasing heir does not collate, the other issue of the predeceasing heir are entitled to claim out of the moveable estate the difference between the value of the heritage and the share their parent would have taken on collation, § 123; also Intestacy Act, 1852, App. (s) And not bound to collate with widow, § 123. (t) Or other next-of-kin, § 129. |