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which is recorded in the register of tailzies on the

day of (or as at length set forth in the above-mentioned recorded charter, &c., forming the last investiture, or as at length set forth in any other recorded deed or conveyance. And in every case where there are any real burdens, conditions, provisions, or limitations proper to be inserted or referred to, insert them here, or refer to them in or as nearly as may be in the form of schedule (D)]; and that the said C. D. [or if the heir has not been previously named, here say], and that C. D. [here insert his name and designation] is eldest son and nearest lawful heir(h) of the said E. F. [or whatever relationship and character of heir the party holds, here state it]. Therefore I hereby declare the said C. D. to be the heir entitled to succeed to the said E. F. in the said lands, to be holden of me and my successors in manner and for payment of the duties specified in the [here specify or refer to if previously specified a charter or other writ containing the tenendas and reddendo. If the reddendo is different from that in the charter or other writ specified or referred to, or if the vassal should desire, specify the reddendo here]. In witness whereof [insert a testing clause in usual form].

4. Precept of Clare Constat by a Subject Superior.

I, A. B. [here insert name and designation of superior]: Whereas, &c. [as in No. 1 of this schedule], it clearly appears that E. F. [here insert the name and designation of the ancestor] died last vest and seised as of fee in, &c. [as in No. 1 of this schedule, down to and including the statement of the relationship and character of heir which the party holds]; and that the said lands and others are holden of me and my successors, as superiors thereof, in free blench farm [or feu farm, as the case may be], for ever, for payment of [here specify the reddendo]. Therefore I desire any notary-public to whom these presents may be presented to give to the said C. D., as heir aforesaid, sasine of the lands and others above described. [If there are conditions of entail, &c., or other burdens or qualifications, here add, but always with and under the conditions, provisions, and prohibitory, irritant, and resolutive clauses (or clause authorising registration in the register of tailzies), (or with and under the real burdens, conditions, provisions, and limitations, as the case may be), above specified or referred to, as the case may be]. In witness whereof [insert a testing clause in usual form].

5. Writ of Clare Constat in Burgage Subjects.

We, the provost and bailies of the burgh of [insert name], being the magistrates of said burgh, acting under and in terms of "The

(h) See note (n), p. 261.

Titles to Land Consolidation (Scotland) Act, 1868": Whereas it clearly appears that C. D. [insert name and designation of the ancestor] died last vest and seised as of fee in, &c. [as in No. 1 of this schedule, down to and including the statement of the relationship and character of heir which the party holds]: Therefore we hereby declare the said A. B. to have right to the said lands as heir foresaid. In witness whereof [to be signed by the provost or acting chief magistrate for the time, and the town-clerk (or by one of the town-clerks where there are more than one), and tested in usual form.]

It is no objection now to any precept or writ from Chancery, or of clare constat, that the character in which an heir is entitled to succeed is erroneously stated therein, provided such heir was in truth entitled to succeed to the lands specified therein.(i)

A precept or writ of clare constat may be challenged at any time within twenty years.(j)

275. Subjects which formerly vested at common law.— Previous to the passing of the Conveyancing Act, 1874, the following subjects vested in the person of an apparent heir by survivance without service: The udal lands of Orkney and Shetland(k), allodial lands(), unregistered leases(m), titles of honour and hereditary offices(n), moveables made heritable by destination(o), rights to rents and proceeds of heritage(p), and all rights having a tract of future time, as usufructuary interests in personal property, pensions, &c.(q), also jus crediti under marriage-contracts (r); but where the beneficiary entitled to heritage under marriage-contracts or trust settlement died intestate after the period of vesting and before obtaining a conveyance from the trustees, a general service was necessary to vest the right in his heir-at-law, although the feudal title was vested in the trustees. (s)

(i) 37 & 38 Vict. c. 94, § 11.
(j) 37 & 38 Vict. c. 94, § 34.
(k) M'Laren, § 181; Bell's Prin.

§ 1825.

(1) Bell's Lect. p. 999.

(m) Murdoch, 27th Jan. 1863, 2 Macph. 330.

(n) Ersk. 3, 8, 77.

(0) Veitch, 25th May, 1808, F. C. (p) Bell's Prin. § 1682.

(q) Bell's Prin. § 1681.

(r) Ogilvie, 16th Dec. 1817, F. C. (s) Buchanan, 15th May, 1862, 22 D. 979; M'Laren, § 183.

INTESTATE SUCCESSION

IN

REAL ESTATE IN ENGLAND.

276. Governing Statutes.-The statutes governing the present law of inheritance in England are 3 & 4 Will. IV. c. 106, and 22 & 23 Vict. c. 35-the former passed in the year 1833, and the latter in 1859.

For the rules of descent prior to 1833 the reader is referred to the "Commentaries of Blackstone,"(a) and to Watkin's "Essay on the Law of Descent."

The following is a summary of the present rules of descent(b):

277. First Rule.—That inheritances shall, in the first place, lineally descend to the issue of the last purchaser in infinitum.

The term "purchaser" implies every person who takes otherwise than by descent; and descent is in every case traced from the last purchaser or the last person entitled who did not inherit.

Where there is a total failure of heirs of the purchaser, or where any land is descendible as if an ancestor had been the purchaser thereof, and there is a total failure of the heirs of such ancestor, the descent is traced from the person last entitled to the land as if he had been the purchaser. (c) Thus, the purchaser may die intestate, leaving an only child and no other relation: on the child's death also intestate there would be a total failure of the heirs of the purchaser; but if the child should have relations on the side of his mother, or if his mother should be living, they would succeed in the order mentioned in the Sixth Rule.

278. Second Rule.-That the male issue shall be admitted before the female.

279. Third Rule.-That where two or more of the male issue are in equal degree of consanguinity to the purchaser, the eldest only shall inherit, but the females shall inherit all together. Thus,

(a) 2, 14.

(b) Abridged from Williams on

Real Property, 7th Ed. pp. 92-107. (c) Paterson's Comp. § 755.

if a man has two sons, A. and B., and two daughters, C. and D., A. excludes B. according to the Third Rule, and he excludes C. and D. according to the Second Rule, even if C. and D. should be his seniors in years. If, however, A. should be dead without issue, B. would exclude C. and D. by the Second Rule; but if B. also should be dead without issue, C. and D. would succeed in equal shares by the Third Rule.

Females or their heirs taking equal shares as co-heirs in the inheritance are called in law coparceners or parceners, a term derived from the circumstance that the law will constrain them to make partition. The eldest daughter or parcener, unlike the eldest heir female in the law of Scotland, (d) is not exclusively entitled to the whole of the mansion-house on the country estate, nor to the custody of the title-deeds, nor to a peerage dignity or title of honour, the latter being in abeyance until the Crown prefer one of the sisters. (e)

Coparceners do not by partition become purchasers, but continue to be entitled by descent.

280. Fourth Rule.-That all the lineal descendants in infinitum of any person deceased shall represent their ancestor; that is, shall stand in the same place as the person himself would have done had he been living. Thus, in the case above mentioned, if A. the eldest son was dead leaving a son, that son would exclude his uncle B. and his aunts C. and D.; or if A. left a son and daughter, such daughter, after the death of her brother without issue, would exclude B., C., and D.

281. Fifth Rule.-That on failure of lineal descendants or issue of the purchaser, the inheritance shall descend to his nearest lineal ancestor.

282. Sixth Rule.-That the father and all the male paternal ancestors of the purchaser, and their descendants, shall be admitted before any of the female paternal ancestors or their heirs; all the female paternal ancestors and their heirs, before the mother or any of the maternal ancestors, or her or their descendants; and the mother and all the male maternal ancestors, and her and their descendants, before any of the female maternal ancestors or their heirs. Thus, the father takes first where the issue of the purchaser has failed. If the father be dead, his sons, other than the purchaser, (e) Paterson's Comp. § 777.

(d) § 247 supra.

and being the brothers of the purchaser, take in the place of the father according to the Fourth Rule, unless they are of the half blood to the purchaser, which case is provided for by the next rule.

283. Seventh Rule.-That a kinsman of the half blood shall be capable of being heir; and that such kinsman shall inherit next after a kinsman in the same degree of the whole blood, and after the issue of such kinsman, when the common ancestor is a male; and next after the common ancestor, when such ancestor is a female.

284. Eighth Rule.-That in the admission of female paternal ancestors, the mother of the more remote male paternal ancestor, and her heirs, shall be preferred to the mother of a less remote male paternal ancestor, and her heirs; and in the admission of female maternal ancestors, the mother of the more remote male maternal ancestor, and her heirs, shall be preferred to the mother of a less remote male maternal ancestor, and her heirs.

The first four of the preceding Rules apply as well to the descent of an estate tail,(ƒ) if not duly barred, as to that of an estate in feesimple. The remaining Rules apply exclusively to the descent of an estate in fee-simple.

285. Vesting of Real Estate.-When a possessor of real estate dies intestate, the estate vests in the heir-at-law without any process or form of law, subject to the debts of the ancestor; but the heir is not liable for these debts beyond the value of the estate to which he succeeds.

(f) See § 209 for definitions of estates in English law.

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