her by law, or expressing the provision to be granted in satisfaction of the terce, whereby occasion is given to relicts to claime a terce out of their husband's estates by and attour the provision conceived in their favours, contrary to the meaning and intention of the parties' contracters: For remeed whereof, the King's Majesty, with advice and consent of the Estates of Parliament, statutes and ordains, That, in time coming, where there shall be a particular provision granted by an husband in favours of his wife, either in a contract of marriage or some other writ, before or after the marriage, that the wife shall be thereby secluded from a terce out of any lands or annual rents belonging to her husband, unless it be expressly provided in the contract of marriage or other writ containing the said provision, that the wife shall have right to a terce by and attour the particular provision conceived in her favours(k): But prejudice alwayes to the Lords of Session to determine as to contracts of marriage, or provisions already made, according to the former law and custom.

V. ACT 1690, c. 26: Act anent the Confirmation of Testaments.(1)

OUR Soveraign Lord and Lady, the King and Queen's Majesties, and three Estates of Parliament, considering the great vexation occasioned to their Majesties' leidges by commissars and their clerks, fiscals and officers, charging them to confirm the testaments of their deceast relations: Do hereby discharge and forbid in all time coming all commissars and their fiscals, clerks, and officers, to charge, pursue, or require any person to confirm the testament, or give up inventary of the goods of any other persons defunct, except at the instance of the relict, bairns, nearest-of-kin, and their tutors and curators, or of a creditor(m); declaring all charges, pursuits, and executions other

(k) It has been held that the wife's acceptance of a conventional provision is necessary to an effectual exclusion of the terce. Where she did not accept a provision during marriage, she was found entitled to elect between the provision and the terce at the husband's death.-Cowan v. Kerr, 15th Dec. 1830, 9 S. 188.

(1) The forms of obtaining confirmation are now regulated by 21 & 22 Vict. c. 58, and 22 Vict. c. 30 infra.-See also §§ 188-199 supra.

(m) In the practice of the ancient ecclesiastical courts an inventory of the whole personal estate had to be given up on oath, and, in case of failure, the next-of-kin or others entitled to the office of executor were charged to confirm at the instance of the procurator-fiscal of the Court. The reason of this was, that until such an inventory was given up, the "quots" of the clergy, or their shares of the succession, were not effectually secured. By the Act 1695, c. 41 infra, creditors may either obtain confirmation themselves or request the fiscal to confirm.

ways made and given to be void and null: And further, their Majesties, with consent foresaid, declare, That where special assignations and dispositions are lawfully made by the defunct, tho' neither intimat or made publick in his lifetime, they shall be yet good and valid rights and titles to possess, bruik, enjoy, pursue, or defend, albeit the sums of money, or goods therein contained be not confirmed; without prejudice always to the competition of creditors and others, and of their rights and diligences as formerly, before the making hereof.(n)

VL-ACT 1695, c. 41: Act anent Executry and Moveables.

OUR Soveraign Lord, considering that the law is defective as to the affecting with legal diligence the moveable estate which pertained to a defunct, either for his own or his nearest-of-kin's debt, in such manner as a defunct's heritage may be affected by charging to enter heir in the known manner: Doth therefore, with advice and consent of the Estates of Parliament, statute and ordain, That in the case of a moveable estate left by a defunct, and falling to his nearest-of-kin, who lyes out and doth not confirm, the creditors of the nearest-of-kin may either require the procurator-fiscal to confirm and assign to them, under the peril and pain of his being lyable for the debt if he refuse, or they may obtain themselves decerned executors-dative to the defunct, as if they were creditors to him (o); with this provision always, that the creditors of the defunct doing diligence to affect the said moveable estate, within year and day of their debitor's decease, shall always be preferred to the diligence of the said nearest-of-kin : And it is further declared, That, in the case of any depending cause or claim against a defunct the time of his decease, it shall be leisun to the pursuer of the said cause or claim to charge the defunct's nearest-of-kin to confirm executor to him within twenty days after the charge given; which charge so execute shall be a passive title

(n) The provision with respect to special assignations is expressly reserved by 4 Geo. IV. c. 98, § 3 infra.

(0) As to the procedure under this Act see Greig v. Christie, 1st March, 1837, 15 S. 697. Where the debt is not constituted by writing or decree, the creditor must proceed to constitute it under the provisions of this Act.

Where the next-of-kin neither confirmed as executor nor renounced the succession, they were sued as vitious intromitters, and decerned against cognitionis causa tantum. -Davidson v. Clark, 13th Dec. 1867, 6 Macph. 151. If the pursuer insists in the action against the heir personally, it would seem that he must go through the preliminary of giving a charge, otherwise the heir will be entitled to absolvitor.-Forrest v. Forrest, 26th May, 1863, 1 Macph. 806.

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against the person charged, as if he were a vitious intrometter, unless he renounce, and then the charger may proceed to have his debt constitute, and the hæreditas jacens of moveables declared lyable by a decreet cognitionis causa, upon the obtaining whereof he may be decerned executor-dative to the defunct, and so affect his moveables in the common form. (p)

VII. ACT 1696, c. 20: Act anent Vitious Intrometters.

OUR Soveraign Lord, considering that many times the nearest-ofkin and others doth intromet with the moveables of persons deceast, without confirmation(q), and imbazles the saids moveables, in defraud of lawful creditors; and when they come to be pursued at the instance of any of the creditors for being lyable to the defunct's debt, as vitious intrometters, they ordinarly defend themselves with this pretence, that there is an executor-creditor confirmed before the intenting of the action; whereas a third party confirming executorcreditor in a particular subject, ought not to free the intrometter from the passive title of vitious intromission, when the intrometter has no right from the executor-creditor: Therefore, for obviating such frauds in time coming, His Majesty, with advice and consent of the Estates of Parliament, statutes, ordains, and declares, That the nearestof-kin, and others intrometters with the moveables of any defunct, who are not executors confirmed to them, nor hath right from the executor-creditor before his intromission, are and shall be lyable as vitious intrometters, notwithstanding that there is a third party confirmed executor in a particular debt or subject.(r)

VIII-ACT 1701, c. 14: Act Discharging the Quoats of Testaments.(s)

OUR Soveraign Lord, considering that by the twenty-eighth Act of the first parliament of King Charles the Second, quoats of testa

(p) See §§ 196-199 supra as to procedure now in appointment of executors-dative. (9) Confirmation in certain cases unnecessary, § 195 supra.

(r) See on this subject § 134 supra.

(s) The quote of the testament formed the twentieth part of the moveable estate left by a deceased person, and was in early times payable to the bishop of the diocese. The right of the bishop came to be acknowledged soon after the reign of David I.,

ments are discharged to be exacted from any of His Majesty's leidges by commissars or the clerks and fiscals, or any others, but prejudice of the ordinary fees due to the said commissars, their clerks and fiscals as accords; which Act was only taken away by the restoring of Episcopacy, which is now abolished: Do therefore, with advice and consent of the Estates of Parliament, revive and ratify the said twenty-eighth Act of the first parliament of King Charles the Second, and discharges all quoats of testaments fallen due since the Act of Parliament, 1689, abolishing prelacy, to be exacted from any of His Majesty's leidges, either by commissars or their clerks and fiscals. And farder declares, any bonds or securities given for the said quoats to be void, and ordains the same to be given up to the granters thereof, but prejudice to His Majesty, to cause call the said commissars, their clerks and fiscals, to an account for any sums of the saids quoats hereby discharged, received by them before the making of this Act.

IX.-4 Geo. IV. c. 98: An Act for the better Granting of Confirmations in Scotland.-[19th July, 1823.](t)

WHEREAS it is expedient that provision should be made for the better granting of confirmations in certain cases in Scotland: Be it therefore enacted by the King's Most Excellent Majesty, &c., that from and after the passing of this Act, in all cases of intestate succession, where any person or persons who, at the period of the death of the intestate, being next-of-kin, shall die before confirmation be expede, the right of such next-of-kin shall transmit to his or her representatives, so that confirmation may and shall be granted to such representatives, in the same manner as confirmations might have

and at first was regarded as preferable even to the rights of creditors. This preference, however, having become a grievance, the Act 1641, c. 61, was passed, prohibiting the exaction of quote for the future, and this Act was revived after the Restoration by the 1661, c. 28. The quote was, however, restored to bishops in the following year by 1662, c. 1; but by 1669, c. 19, it was declared that it should be paid only out of the free gear. The present Act of 1701, it will be seen, revives the Act of 1661 discharging the quote, but it reserves certain fees which came afterwards to be known under the name of "composition dues."

(t) This Act is not retrospective.-Greig v. Malcolm, 5th March, 1835, 13 S. 607, But the expression "any person or persons who being next-of-kin shall die before confirmation be expede," has been interpreted to extend the benefit of its provisions to all next-of-kin surviving the passing of the Act, although the succession opened previous to its date.—Cunningham v. Farie, 15th Jan. 1856, 18 D. 312.

been granted to such next-of-kin immediately upon the death of such intestate.(u)

II. And be it further enacted, that from and after the first day of January, 1824, caution shall not be required to be found by executorsnominate; and in all other cases the court granting confirmation shall fix the amount of the sum for which caution shall be found by the person or persons to whom confirmation shall be granted, not exceeding the amount confirmed. (v)

III. And be it further enacted, that from and after the first day of January, 1824, every person requiring confirmation shall confirm the whole moveable estate of a deceased person known at the time, to which such person shall make oath: Provided always that it shall and may be lawful to eik to such confirmation any part of such estate that may afterwards be discovered, provided the whole of such estate so discovered shall be added upon oath as aforesaid: Provided nevertheless that nothing herein contained shall affect or alter the provision made with respect to special assignations by an Act of the

(u) Previous to the passing of this Act confirmation was necessary, not only to give the executor a title, but also (except in the cases stated in § 195 supra, where the title was unnecessary) to vest the beneficial interest in the next-of-kin, so that when the latter died without having obtained confirmation, no right transmitted to their creditors or personal representatives.-Ersk. 3, 9, 30. But this Act vests the right of succession in the next-of-kin by mere survivance, to the effect of transmitting it not only to their legal representatives, but to assignees (Smith v. Thomson, 9th Feb. 1830, 8 S. 468), and creditors (Mein v. M'Call, 7th June, 1844, 6 D. 1112). Whilst the characters of the next-of-kin and personal representatives became thus irrevocably fixed at the time of the death of the predecessor as regards moreable succession, it was held in Robertson v. Gilchrist, 25th Jan. 1828, 6 S. 446, that in heritable succession the right vested only by service; and this strange anomaly in the law of succession continued until the passing in 1874 of the 37 & 38 Vict. c. 94. -See § 9 of that Act below.

An interest is said to vest in a beneficiary when he acquires an indefeasible right to it. The vesting cannot take place until the predecessor's death, and then only after the elements of time, person and interest are specifically ascertained. Where the distribution is to take place at the death of the predecessor no difficulty usually presents itself, but where the distribution is postponed difficulties not infrequently arise. Generally, however, in a bequest, say-(1) to one person in liferent and to another in fee, the fee will vest at the death of the testator even though a trust be interposed (Nimmo v. Murray's Trs., 3rd June, 1864, 2 Macph. 1144; Jackson, 18th March, 1876, 3 R. 627; Taylor, 12th July, 1878, 5 R. (H. of L.) 217); (2) to a parent in liferent allenarly, and children nascituri in fee, the right of the children vests as they come into existence (Douglas v. Thomson, 7th Jan. 1870, 8 M. 374); (3) to children equally in liferent allenarly and the survivor, and to their children equally in fee, the share of a liferenter accresces to the surviving liferenters, and on the death of the last liferenter the property passes to the fiars (Fergus, &c., 13th July, 1872, 10 M. 968).

As to the effect of the birth of a nearer heir after the succession opens, see Logan Home v. Logan, 13th July, 1880, 7 R. 1137.

The subject of vesting is fully discussed in M'Laren, § 1391 et seq. See also § 80

supra.

(v) As to finding caution see §§ 182-187 supra.