L A W. 



679 



hit no 

 pti^ : 



fro,..., 



me- 



lo- 

 rn 



Of (,r.,... 



He r. Of 



Ptg . n, 



of r-.,r- 



without recompense to the younger sisters; but all 

 other houses are divided amongst them, together with 

 the lands on which they are built, as parts and perti- 

 nents of these lands. 



6. Those heritable rights to which the deceased did 

 himself succeed as heir to his father or other ancestor, 

 get sometimes the name of heritage in a strict sense, in 

 opposition to the feuda nora, or feus of conquest ', which 

 he had acquired by singular titles, and which descend 

 not to his heir of fine, but of conquest. This distinc- 

 tion obtains only where two or more brothers or un- 

 des, or their issue are next in succession ; in which 

 case the immediate younger brother, as heir of line, 

 succeeds to the proper heritage, because that descends; 

 whereas the Conquest ascends to the immediate elder 

 brother. It has no place hi female succes ? ion, which 

 the law divides equally among the heirs-portioners. 

 Where the deceased wa* the youngest brother, the im- 



"~ eider brother, whether of the same or of a for- 

 mer marriage, is heir both of line and of conquest. An 

 rstau, disponed by a father to his eldest son, is not 

 conquest in the son's person, but heritage ; because the 

 son would have succeeded to it thmigh there had been 

 no disposition. The heir of conquest succeeds to all 

 rights affecting land which require seisin to perfect 

 and consequently to dispositions or heritable 

 bonds, though they should not be actually followed by 

 seisin. Rut teinds go to the heir of line, because they 

 are merely a burden on the fruits, not on the land. 

 Tack* do not fall under conquest, because they are 



rte rights without seisin ; nor personal bonds 

 taken to heirs excluding executors, both for the reason 

 just mentioned, and because they are heritable, not ex 

 MM natnra. but bv the force of destination ; and there- 

 Are that heir is underetocxl in the destination, who is 

 heir in the most nroper sense. 



rhe heir of line hi entitled to the - , not 



only of subjects properly heritable. I>i,t to that ^>rt of 

 rooveable* called heirtkiji, which is the N-t of certain 



trine has been probably 



-luced that the heir might not h.r. -e anil 



estate to succeed to, quite dismantled by the executor. 

 ft. As to succession by destination, no proprietor can 

 settle any heritable estate in the proper form of a testa- 

 ment, not even bonds secluding executors, though 

 these are not heritable r.r tua naltira. But where a 

 testament is in part drawn up in the style of a deed 

 inter stMf, such part of .tain a settlement of 



heritage, though executors should be named in the tes- 

 



All heir* by destination may properly enough be 

 I called, by a general name, heirs of tail/ie, from taillrr 

 to cat, because the lineal succession i* cut off in their 

 firrour ; but they are usually distinguished into heirs 

 ttftaihir and nf pror'uio*. The appellation of tailzic, 

 or entail, i* chiefly used in the ca*e of a land-estate, 

 which i* nettled on a long series o lU-tituted 



one after another; whereas heirs pointed out in con- 

 tracts of marriage, or in bonds containing clauses of 

 substitution, are more commonly ci.llcd heirs of provi- 

 sion. The person first called in the tailzic is the insti- 

 tml'. the rr"t the hrin vftatlzir, or the tuhitiliit,-*. 



10. Heirs of prix-ition are those who succeed to any 

 subject, in virtue of a pro\iioii in the investiture or 

 other deed of settlement, and the appellation, as has 

 just been observed, i* given most commonly to heirs of 

 a marriage. l*hev are more favourably regarded than 

 heirs by simple destination ; for hn.,-- of a marriage, 

 ' ' provisions are constituted by an onerous 



contract, cannot be disappointed of them by any gra- Law 

 tuitons deed of the father; and they may sue him or of Scotland. 

 his cautioner to purge incumbrances, or to make good > ~v"~ " 

 their provisions in the event of his death. 



1 1 . An heir is, in the judgment of law, eadcm per- All heirs 

 totia cum deftmcto, and so represents the deceased uni- represent 

 versa]ly, not only in his rights, but in his debts. In the d ^e,is- 

 the first view, he is said to be heir active ; in the se- ed umver - 

 cond patsiee. From this general rule are excepted cept heh-s 

 heirs substituted in a special bond; and even substitutes substituted 

 in a disposition omnium bonorum, to take effect at the in a bond, 

 granter's death ; for such substitutes are considered as or lleirs of 

 singular successors, and their right as an universal le- P rovision > 

 gacy, which does not subject the legatee ultra valorem. 



But heirs male or of tailzie, though their right be li- 

 mited to special subjects, are nevertheless liable, not 

 merely to the extent of the subject entailed or provided, 

 but in solidum, because such rights are designed to car- 

 ry an universal character, and so infer an universal 

 representation of the granter. 



12. Before an heir can have an active title to his an- Service of 

 cestor's rights, he must be entered by service and retour. heirs. 

 The service of heirs is either general or special. A ge- General 

 neral service vests the heir in the right of all heritable service. 

 subjects, which either do not require seisin, as rever- 

 sions, bonds secluding executors, heirship moveables, 



Sec. or which have not been perfected by seisin in the 



person of the ancestor, as dispositions, heritable bonds, 



itc. ; but it can carry no right clothed with int'eftment, 



not even the personal" obligation contained in a right of 



annualrent on which sei>in had followed, so as to be a 



title to demand payment i'rom the debtor. A special Special serr 



service, followed by seisin, vests the heir in the right vice ' 



of the special subjects in which the ancestor died inl'eft. 



All services proceed on brieves issuing from thechancery, How scr * 



and the judge to whom they are directed is required to Vlc " I"' ' 



try the matter by an inquest of fifteen sworn men. 



13. Practice has introduced an anomalous sort of Entry by 

 entry, without the interposition of an inquest, by the prcpt oC 

 sole consent of the superior, who, if he be satisfied that cl " rc m '~ 

 the person pply ing to him is the next heir, grants him " * 



a precept (called of dare consist, from the first words 

 of it" recital,) commanding his bailie to infeft him in 

 the subjects that belonged to his ancestor. These pre- 

 cepts are, no doubt, effectual against the superior who 

 grants them and his heirs; and they may, when follow- 

 ed by seisin, afford a title of prescription. But, as no 

 person can be declared an heir by private authority, 

 they cannot bar the true heir from entering after twenty 

 years, as a legal entry would have done. Of the same by hasp and ' 

 nature is the entry by hasp and staple, commonly used staple, 

 in liiirgoge tenements of houses, of which the bailie, 

 without calling an inquest, cognosces or declares a per- 

 son heir upon evidence brought before himself; and, at 

 the same time, infetts him in the subject by the symbol 

 of the hasp and staple of the door. 



14. An heir, by immixing with his ancestor's estate Passive ti- 

 without entry, subjects himself to his debts as if he lies in he- 

 had entered ; or, in our law phrase, incurs a passive ''"age. 

 title. 



1.5. Our law, from its jealousy of the weakness of Right of re- 

 mankind while under sickness, and of the importu- 

 nity of friends in that conjuncture, has declared that all 

 deeds affecting heritage, if they be granted by a per- 

 HD on deathlicd, (i. e. after contracting that sickness 

 which ends in death,) to the damage of the heir, are to JJJ 

 ineffectual. And the privilege of setting aside deeds ex jion of heir> 

 co/ii<e Ifcti, is competent to all heirs, not to heirs of line 

 only, but of conquest, tailzie, or provision; and pot only 



