Succeed.'-(1.) It happens sometimes that a man has had sundry wives, and has begotten daughter or daughters with each one of them all the daughters shall succeed to their father's heritage in such a manner as if they were born all of one mother.(v) (2.) And this is to be understood of the father's heritage descending from him to them. (3.) For if the heritage descend and come of the mother's side, each daughter(w) shall succeed(x) to the heritage of her own mother.(y) 8. The Succession of Grandchildren.2—(1.) If a man decease without son or daughter, and has grandsons or granddaughters by son or by a daughter, they all succeed to him in the same manner, and with the same distinction as is before said of a son and daughter.(2) (2.) For they who descend in the right line are always preferred to them who descend of the collateral or side line. (a) 9. Of an After-born Son and a Son of a First-born Son.3 (1.) If a man decease having an after-born son,(b) and a son of his first begotten son already deceased, a great doubt and question used to be, which of them should be preferred to other in the succession of their father, whether the son or the grandson. (2.) Some allege the after-born son to be more righteous heir than the grandson; (3.) Because the first-born son deceased before his father, and so did not live nor remain to be his father's heir; (4.) And therefore the after-born son did live after his father and his elder brother; they affirm that he rightly succeeds to his father. (5.) Others are in the contrary (and true opinion), and say that the grandson gotten by the first-begotten son, by the law should be preferred to his father's brother ;(c) (6.) For the grandson is descended of the first-born son, and is begotten of his body; if his father were as yet living, and happened not to decease before him, he would succeed to all the heritage pertaining to his father. (7.) And this I say to be of verity, if his father was not forisfamiliate (by the gudscher).(d) (8.) The son in the father's lifetime may be forisfamiliate, if the father gives and assigns to him a portion of land, and before his decease gives him sasine thereof, at the desire and goodwill of his son, so that he stand content, and confesses himself to be satisfied with so much of the land. (e) (9.) The heir of the son gotten of his own body may crave no more from his father's brother of the rest of his gudscher heritage (than that part which was assigned to his father).(ƒ) (10.) Moreover, if the first-born son in his father's lifetime did make homage for his father's heritage to his chief over-lord, albeit he decease before his father, there is no doubt but the son of the first-born son (that is the grandson), will be preferred to his father's brother.(g) (11.) But in this case, a pley may be betwixt the grandson and the chief over-lord, if the over-lord refuses to receive his homage (to receive him as heir to his father). (12.) And likewise a pley may arise betwixt the over-lord and the father's brother, if the over-lord receives homage from the grandson and warrants the same to him, and hereanent the matter may come to singular battle betwixt them. (13.) If it cannot be proven that the homage was made between the grandson and the father's brother, he shall be preferred who is in possession; for the condition of the possessor is best.(h) 10. Of Collateral Heirs.'-(1.) Failing of them who are descended in the right line, the brother or brothers succeed.(i) (d) See § 118. (e) The father may now disinherit the heir without compensation. Bell's Prin. § 1692; 32 & 33 Vict. c. 116, § 20; 37 & 38 Vict. c. 94, § 27. (f) See note (e). (g) Homage to, or confirmation of title by, the superior not now necessary, 37 & 38 Vict. c. 94, § 4. (h) Possession of no avail without a title, §§ 267-70. For rules in Stair, see § 22; Mackenzie, § 30; Erskine, § 46; Bell, § 70. (i) Brothers succeed in order of seniority, or inversely, each as he succeeds transmitting to his issue; first sons in their order, then daughters equally, § 253. 1 R. M. 2, 34; Glan. 7. 3; Num. 27, 10 c. 36, 1. (2.) And if there be no brothers the sisters succeed.(k) (3.) And after their decease their bairns are heirs. (4.) After them, being male or female, the father's brothers, or their bairns, have the right of succession.() (5.) Last of all the father's sisters, or their bairns, are admitted to succession.(m) (6.) But it is necessary to observe the distinction before mentioned, between the son of a knight, and the sons of a soccoman, and amongst grandsons, and also the distinction betwixt male and female.(n) 11. The Division of the Goods in a Testament.1—(1.) When a man in time of sickness not charged with debts will make his testament, all his moveable goods shall be divided in three parts equally; (2.) Whereof one part pertains to the bairns,(o) the second part to his wife, (p) the third part is reserved to him who makes the testament ;(q) (3.) Of the which third part the maker of the testament has free power to make disposition thereof as he pleases. (4.) But if he has no wife at the time of his decease, the one half of the goods is reserved to him, to be disposed as he pleases, and the other half (r) to the bairns.(s) (5.) In his latter will he may make no disposition of his heritage, as is said before.(t) 12. Rules in Quoniam attachiamenta.-In the Quoniam attachiamenta there are very few references to the law of intestate succession, and these mainly relate to the distinctions which for (k) Equally as heirs-portioners, the eldest getting indivisible rights, § 247. (1) The father takes precedence of his collaterals, § 256. The rule in the text was in accordance with the Jewish and ancient Roman law, Stair, 1, 26, 11-17. It was not until the Roman Empire and laws were trodden down, and the feudal law arose and became mixed with the civil law of the Romans and local customs, that the father obtained a place in the succession of his own children, Stair, 1, 26, 20-22. (m) Sisters equally; their bairns, sons of each in their order, and daughters equally, §§ 247, 248. Relationship does not stop here. See § 68. (n) See notes above as to soccoman and knight under § 4. For rules in Stair, see §§ 21-23; Mackenzie, §§ 29, 30; Erskine, §§ 43, 44, 46: Bell, § 70, infra. (0) Now calledlegitim, § 100. (s) As legitim, § 100. (t) A father may now disinherit his heir. Bell's Prin. § 1692; 32 & 33 Vict. c. 116, § 20; 37 & 38 Vict. c. 94, § 27. 1 R. M. 2, 37; Glan. 7, 3; Magna Charta, c. 18; Leg. Burg. c. 124. See §§ 57-60, as to meaning of testament. 2 cc. 88, 89, 97. merly obtained between successions in conquest and in heritage, and to the rules which exclude the half blood in competition with the full blood in the same line of succession.(u) 13. Rules in "Burrow Lawes."-Here also the rules of succession are meagre. The chief rules in heritage are that if a burgess owning "any lands within burgh dies leaving a son, a daughter and a widow, the heritage goes to the son, failing him to the daughter, while the widow, as long as she remains a widow, gets a part of the deceased's house.(v) If a burgess owning more lands and tenements than one has sundry bairns by sundry wives, all the lands, as well the heritage as the conquest which were purchased in the time of the first wife and pertained to him at his death, go to the heir gotten betwixt him and the first wife : and sicklike is to be understood of the lands conquest in the second wife's time, except the same lands were given by him to any other before his decease: and, as to the second wife, she shall not remain in the house of the first heir after her husband's decease but the space of forty days.”(w) The heir has a right to heirship moveables.2(x) The husband of an heiress has a right to courtesy.(y) As regards moveable estate, the rule of division is stated thus:4 "The custome is within the burghs of this realme, passed memorie of man, quherof there is na memorie in the contrair, that quhen ane burges hes children begottin with his awin wife and thereafter deceisses, the third part of all the gudes and geir perteines to the sonnes and dochters lawfully begottin. 2. And the eldest sonne and heire of that man and wife sall have the like parte and portion as the other bairnes, that is, equal with any of them except he be forisfamiliat of his father."(2) 14. How the Law Administered at this Period.-Such were the lines upon which legal succession appears to have been based at one time in Scotland. But how long these continued to be so cannot now be determined. For several centuries no work exists through which our legal history can be traced, nor have we any earlier judicial reports than those of Lord Stair, which com mence in 1661, and end in 1681. The private collection of Lord Durie(a) was not published till 1690. This want of history may be attributed to various causes. In the first place, Scotland was in almost constant state of warfare with England for several centuries. Printing was not introduced into Scotland until the Reformation; and, until that time, the Roman clergy were the judges in the Consistorial Courts, and, with the exception of two volumes, all their judicial records were either destroyed or carried abroad during the violent commotions which preceded the final subversion of Popery in Scotland.(b) The "Lords of Session" were also "mutable and ambulatory "(c) until the College of Justice was perfected in 1540 by James V., and, like their confrères the clergy, they conducted their proceedings for a long time with closed doors and in secret. The Civil Courts remained so closed until 1693, and the Commissary or Consistorial Courts until 1812.(d) No wonder, therefore, that much obscurity should now exist as to the early history of our Law. Lord Kames, (e) who made an attempt to trace that history, gives it as his opinion that the Laws of Scotland and England were originally the same in almost every particular. This opinion is certainly strengthened by the fact that, in the Regiam Majestatem, the English works of Glanville, Bracton, and Fleta, which were published successively in the reigns of the three Henries of England, are frequently quoted as authorities. Indeed a large portion of the Regiam Majestatem is almost a copy of Glanville's Regiam Potestatem.(ƒ) At this period it was the law in personal succession in England that, after payment of debts, the residue of the estate of a person deceased was to be divided into three parts where there were children and a widow; the children got one part, the widow another part, and the third part was dead's part. Where there were children but no widow, one half went to the children and the other half was dead's part. Where there was a widow but no children, the division was also into two parts. And where the (a) A Lord of Session from 1620 till his death in 1642. (b) In Bain's Calendar of Documents already referred to, it is stated (p. 10) that after the Restoration, all the Scotch papers that were supposed to remain in the Tower of London were shipped for Scotland and were (d) Ferguson's Consis. Law, p. 18. (f) Robertson on Personal Succession, p. 23. |