First Canon. That the right of succession to land ab intestato is in the lawful issue of the person who died last vest and seized in the land.

Second Canon. That of the issue of the person last vest(n) in the land, the males (and their lawful issue in infinitum) first succeed ab intestato to the land.

Third Canon. That of the male issue, the eldest is preferred with his issue; and the rest with their issue in the order of seniority.

Fourth Canon. That, failing the male issue and their issue, the female issue and their issue inherit pro indiviso as heirsportioners. And (1.) The daughters, of whatever marriage,(0) succeed equally to subjects divisible. (2.) The issue of each daughter takes her place(p). (3.) Subjects indivisible go to the eldest daughter. (4.) The eldest has also such peerages, dignities, and titles of honour as are not limited to males. (5.) The eldest has superiorities.(q)

Fifth Canon. That where, before the opening of the succession, a descendant has died, who, if alive, would have succeeded as heir to the deceased, his place is supplied, and the succession filled by his lineal descendant. This is called representation.

2. Rules of Collateral Succession.-On the exhaustion of the line of descent (children, grandchildren, and their descendants), the succession, instead of ascending to the grandfather, deviates to the collateral line, accompanied by primogeniture, representation, and partition among females. The rules are these :First Canon. That the germain or full blood succeeds in the first place.

Second Canon. That the half-blood consanguinean succeeds after the full blood; brothers first, and next sisters; but the halfblood uterine is excluded.

Third Canon. That heritage first descends as far as possible; then ascends gradually. So, on the death of a middle brother, his younger brothers (and their issue), in their order from elder to younger, succeed before the elder. And elder brothers

(n) Heritable property is now held to vest in heirs without service, 37 & 38 Vict. c. 94, § 9.

(0) This means the father's daughters. (p) First sons in their order, then daughters equally.

(q) But not without payment, and where more than one, they must be divided. Rae, Jan. 1810, F.C. See SS 26, 48, for Stair and Erskine's dicta.

succeeding to younger are (with their issue respectively) preferred in an inverse order from younger to elder.

Fourth Canon. That, where a woman dies leaving heritage, her brothers(r) succeed before her sisters, and according to the order now stated.(8)

3. Three Rules of the Ascending Line.-After collaterals (or if there be none) the heritage goes to the father.

First Canon. That heritage ascends to the father and his relations, to the exclusion of the maternal line.

Second Canon. That the succession never ascends to the mother or her relations.

II. Mother's Estate. The rules and canons of descent are the same as in the father's estate, with primogeniture, representation, and partition among females. But,

The mother's estate, after vesting in her son or daughter, never ascends to the mother again, or through her.

The right of the Crown as ultimus hæres vests on failure of the three lines of succession now stated. This is a caduciary right; not a right of succession.

71. Law of Succession in Conquest.'(t)-In this the Law of Scotland accords neither with the law of the Feus, nor with the Law of England, but is peculiar to ourselves. 1. The conquest of a middle brother goes to his immediate elder brother alive, or to the next younger alive, failing issue of intermediate brothers who have died. 2. The conquest of a sister goes also to her next elder brother, or next younger alive (failing issue of nearer who are dead), preferably to her sisters. 3. Where there are only sisters, there is equal partition in conquest, as in heritage.

4. In conquest, as in heritage, the whole blood excludes the half; but if there be no brothers or sisters-german, or issue of them, the rule holds as to brothers-consanguinean; and 5. There is representation as in heritage.

The difference between conquest and heritage is this: that conquest is a fee coming into the person of the deceased by purchase, gift, &c., from a stranger, or from one to whom he would not by

(r) And their issue.

(s) The sisters, when the succession opens to them, are heirs-portioners, § 247.

(t) The distinction between heritage and conquest abolished by 37 & 38 Vict. c. 94, § 37.

1

S$ 524-530.

law have succeeded; while heritage is a fee in which one succeeds as heir to his father, grandfather, or other ancestor.

Conquest comprehends,-1. Heritable subjects vested by sasine, or requiring sasine to complete the transference. 2. The converse holds, that heritable subjects which do not require sasine are not conquest, but go to the heir in heritage; as leases and bonds excluding executors. 3. Teinds are not conquest, as they affect the fruit, not the land.(u)

Subjects which were truly heritage in the person of the deceased do not become conquest by the interposition of a conveyance in his favour.

Things which come by force of destination, and are taken up by service as heir of provision, are not conquest but heritage; as an estate coming to a middle brother by deed of entail.

Conquest, in descending from the heir of conquest, becomes heritage. But it seems necessary to this effect, that it should vest in the heir of conquest, otherwise, remaining in hæreditate jacente of the acquirer, it will go to his heir of conquest.

Succession to an heir of conquest, as contradistinguished from succession to the heir of line, is only where a middle brother or sister (or their issue) dies, leaving younger and elder brothers or uncles. The younger brother (or uncle) takes the heritage; the elder the conquest.

72. Of the Law of Succession in Moveables." Moveable succession differs from heritable in these points:-1. That there is no preference of males. 2. That there is no law of primogeniture. 3. That there is no representation of the deceased parent by the child.(v) 4. That there is no distinction of conquest.

The whole moveable estate, if the deceased die unmarried; or the dead's part, if married, descends thus :

1. The free moveable estate divides among the nearest-in-kin at the death.(w)

(u) This seems incorrect. See M'Laren on Wills, i. 77. See § 236.

(v) By the Act 18 Vict. c. 23 (1855) representation is introduced into moveable succession among descendants and their issue, and brothers and sisters and their issue.

(w) In the enlarged sense of the

Act of 1855. Under that Act also the father, and failing him, the mother of the deceased, takes a share if he left no descendants. Uterine collateral relatives have now a contingent right to one-half of the estate, § 87.

1 § 671.

2. The full blood excludes the half.

3. The lines of succession follow the same order as in heritable successions, descendants, collaterals, ascendants with their collaterals.

4. If one of the next-of-kin be also entitled as heir to an heritable estate which he does not choose to communicate to the other next-of-kin, he will have no share of the moveables.(x)

5. The succession in moveables is regulated by the law of the domicile at the time of death. (y)

73. Doctrines bearing Relation both to Heritable and Moveable Succession.1

I. Heirship Moveables." The heir of a baron or burgess, though excluded from the moveable succession, has right to the best of certain moveables, that he may not enter to his predecessor's dwelling-house quite dismantled by the executors.(z)

1. A baron, in this question, is any feudal proprietor, vest and seised in lands, houses, or annual rents forth of lands; but one who holds a mere liferent, or conjunct fee, or personal right to lands, is not a baron.

2. A burgess must be either infeft in a burgage tenement, or a trading burgess, in order to entitle his heir to heirship moveables.

Heirship moveables may be claimed although the land is settled on another than the heir. Heirs-portioners (contrary to Erskine's opinion) divide the heirship. If the heir renounce heirship moveables, they go to the executor.

Subjects of heirship are moveables appropriated to the person, and insight and outsight plenishing. It is held-(1.) That heirship is not limited to the moveables left upon the lands in which the deceased was infeft. (2.) That the heir is entitled, not to the furniture of the best house, but to the best articles of furniture in every house belonging to the deceased. (3.) That farm stocking, raised or fed for sale, is not heirship.

The heir's right to heirship moveables is protected by the law of death-bed.(a)

(x) The heir of a predeceasing heir may now collate with the next-ofkin, and if he does not do so, the other issue of the predeceaser are not now precluded from claiming the difference between the value of the heritage and the share their parent would have taken in collation. Act of 1855.

(y) See § 82.

(2) The right to heirship moveables was abolished in 1868 by 31 & 32 Vict. c. 101, § 160.

(a) Law of death-bed was abolished by 34 & 35 Vict. c. 81. It takes effect from 16th August, 1871. 1 §§ 7117-20.

II. Collation.(b)—" Although heritage goes to the heir, and moveables to the next-of-kin, the heir (provided he is also one of the next-of-kin) may throw the heritage into the common stock, and insist for an equal share with the other next-of-kin. This is called Collation. The heir is, in some cases, entitled to claim a share without giving up the land. These cases will be considered in their order.

"1. Right to Collate. This right belongs to the heir ab intestato, where there is both an heritable and a moveable estate. And (1.) if the heir be sole executor, he is not bound to collate with the widow. (2.) A collateral heir is entitled to collate. (3.) The heir of conquest is entitled to collate. (4.) If the heir be not one of the next-of-kin, he is not entitled to collate.(c) (5.) There is no collation in heritage amongst heirs-portioners.(d) (6.) The privilege of collation may be excluded by the will of the deceased.

"2. Right of the Heir to Moveables without Collation.—(1.) Where one, who is also next-of-kin, takes as heir of provision, not being heir alioquin successurus, he is entitled to his share of moveables without collation. (2.) He is so entitled, if he takes the heritage, not directly from the deceased, but from one more remote. (3.) If he be heir alioquin successurus, he cannot claim without collating, although he should take the land by deed. (4.) Although the heritable estate be in another country, the heir must collate in claiming a share of moveables in Scotland; but not if he claims the moveables under the English statute of distributions.(e)

"3. Mode of giving Effect to Collation.-(1.) Where the heir is one of the next-of-kin, but not bound to collate, he is entitled to confirm as an executor. (2.) Where the heir must collate, he is entitled (on making up his titles to the heritage and disponing) to assume the character of executor. (3.) The transaction is commonly settled by private contract, the heir and executors completing their respective titles, and dividing the funds. (4.) If judicial proceedings be necessary, the heir raises his action against