got a legal right to it by a conveyance. But if any other person is infeft in the property, the objection is valid, because the jury cannot answer that the person, to whom the heir wishes to be served, died last infeft. In order to enable heirs to reduce such infeftments, when given to one who has not a proper title, a general service is had recourse to.

A general service proceeds on a Brieve similar to that of a Special Service, but the answers of the jury are only to the effect that the ancestor died at the king's peace, and that the claimant is his next and lawful heir. No person can appear as objector to a general service, but a person claiming a right of propinquity preferable to that of him who has obtained the brieve. In such a case a brieve is obtained by each party, and a competition takes place, in which the jury must decide according to the evidence. One who has obtained a right to the property by conveyance, cannot therefore oppose the service, though it proceed on defective evidence; but he may bring a reduction of it on such a ground. A general service is not an act by which the person served is put in possession of a right over any subject. It is a mere declaration of his propinquity; and, as such, enables him to enter into possession, first, of such rights requiring infeftment as the ancestor had not been infeft in; and, second, of such heritable property belonging to him as does not require infeftment; and by declaring him to be the heir, it places him in a situation to pursue a reduction of such deeds as interfere with his right.1

SECT. 7.—Investment by Clare Constat, and by Trust-Bond.

Clare Constat.-An heir whose ancestor has been infeft in property holding of a subject, may make up his title as heir without the ceremony of a service, by the consent of the superior. The deed by which the superior consents is termed a Precept of Clare constat, from the words of style with which it commences. It is an intimation by the superior of his belief that the person in whose favour it is granted is the heir of him who died last infeft in the lands, and a mandate to infeft the heir. Though considered applicable only to an heir-at-law, it has been admitted in the case of an heir of provision. A Precept of clare constat is not effectual, unless the superior is infeft in his superiority; but if he have granted one before being infeft, the heir's infeftment on it will be

1 E. iii. 8, 66. Jur. St. i. 392, et seq. S. H. S. i. 287, et seq.

effectual, whenever the superior is infeft. A precept of clare constat does not prescribe till forty years, while a service prescribes in twenty; that is to say, while the former may be challenged at any time within forty years, the latter cannot be affected after twenty years have elapsed.'

Trust-Bond.-Another mode of entering was invented, for the purpose of enabling an heir to challenge deeds adverse to his right, without immediately rendering himself liable as heir; it is termed entry by Adjudication on Trust-Bond. The heir grants a bond to a confidential person, for a sum equal at least to the value of the estate. The holder of the bond adopts the means which the law has provided for enabling creditors of an heir to realize the succession, when the heir refuses to enter on it.* Having so adjudged the property, he brings a reduction of the adverse deed, and, if successful, conveys the bond and the Adjudication on it to the heir.2

SECT. 8.-Investment in Burgage Tenements.

In tenements held Burgage+ there is a method of entering as heir, similar to that by precept of clare constat, termed by hasp and staple. A magistrate of the burgh, and the town-clerk, meet the claimant at the tenement. In all towns, except Edinburgh (where a different practice has existed), the magistrate cognosces or declares the claimant heir, on proof of his being so, by two or more witnesses. The heir then, as a symbolical ceremony, takes hold of the hasp and staple of the door, enters the house, and bolts the door. On coming out he takes instruments in the hands of the townclerk, as a notary. By this process he is not only declared to be heir, but he is infeft, and the Instrument of Sasine is recorded in the burgh register. Where the ancestor has not been infeft in the property, the magistrates require the heir to expede a general service as above. Where the heir claims under the destination of a deed, he must be served as heir of provision.3

E. iii. 8, 71. S. H. S. ii. 1, et seq. Durham v. Graham, 3d January 1798, M. 15118.-* See Index "Charge to enter heir."- E. iii. 8, 72. S. H. S. ii. 9, et seq.-+ See above, p. 58.-3 E. iii. 8, 72. S. H. S. ii. 7,

et seq.

CHAPTER II.

SUCCESSION TO MOVEABLES.

SECT. 1.-Order of Succession.

THE moveable estate of the deceased is called the Executry, and those who succeed to it by will, or by the natural course of law, are collectively termed Executors. It will be observed that the portion of the moveable property, open to be disposed of by will, is affected by the existence of a widow or children. When not regulated by will, the order of succession is the same as in heritage (see above, p. 90), the Descendants according to their degrees succeeding in the first place, the Collaterals where there are no Descendants, and the Ascendants where there are neither Descendants nor Collaterals. The whole-blood excludes the half-blood.2 All the nearest of kin succeed equally, without any preference to males over females, or to elder over younger, so that where there are three children, the moveable estate will be equally divided among them, and where there are no children, but three brothers, a similar division will take place.

If one of the next of kin is heir to the heritage, he is excluded from any share in the moveable estate, unless he collate the heritage, or add it to the bulk of the moveable estate, If the heir to the heritage is the only person next of kin, he succeeds to both heritable and moveable estate. An only child will succeed to both. A family consisting entirely of daughters will have both divided equally among them. In the succession to moveables there is no Representation of persons deceased as in heritage, so that, if the deceased leave a son, and a grandchild by a deceased son, the surviving son will succeed to the exclusion of the grandchild.3

Domicile. Succession to heritage situated in this country is regulated by the law of Scotland, wherever the death of the last proprietor may have taken place; but it has been the custom over the rest of the civilized world, and has of late become law in Scotland, to regulate succession in moveables by the law of the country in which the deceased had his domicile when he died. Mere residence in a country at

E. iii. 9, 2.2 Gemmil v. Gemmils, 5th July 1729, M. 14877.—3 E. iii. 9, 2. Bruce v. Bruce, 25th June 1788, App. 15th April 1790, M. 4617. Robertson on Personal Succession, 118.

the time of death will not mark the domicile to the effect of regulating the succession; but it is difficult to say what concomitan circumstances are necessary. Where a man has died in a different country from that in which he was born and brought up, to change his domicile with his residence, it will in general be necessary to show that he has established himself as a citizen of the country of his new abode,—a circumstance which may be evinced by his adoption of a permanent residence, procuring a situation, entering on business, or forming connexions.1

SECT. 2.-Distribution.

It is to be observed that man and wife are considered as holding their mutual moveable property in communion. When either of them dies, therefore, a certain portion of the property goes to the spouse surviving. The practical effect of this rule, where there are no conventional stipulations, is as follows:-If a man dies leaving a widow and children, his moveables are divided into three parts, one goes to the widow, and is called Jus relicto, another goes to the children, and is called Legitim, or Bairns' part, and the third is called the Dead's part. It is the share of the common property, which is presumed to be properly the husband's, and it is therefore employed to pay whatever legacies or bequests he may have left, and if not so exhausted, it goes to his children as next of kin. If the deceased leave a widow and no children, one-half goes to the widow, the other is dead's part. If he leave children and no widow, one-half goes to the children, the other is dead's part. If he leave neither widow nor children, the whole is dead's part, liable to payment of debts and legacies in the first place, and in so far as not exhausted by these, going to the nearest of kin.2

On the death of a wife leaving a husband who has no issue, one-half goes to the husband, the other to the wife's next of kin (who will be her children of a former marriage, if any), or to her legatees. If there are children of the marriage, or of the husband by a former marriage, the husband receives two-thirds, one of which is considered as the children's legitim. It is only subject, however, to their claim of legitim after their father's death; and it is estimated, not according to the amount of the common property at the time of the wife's death, but as a half of what belonged to the father

1 Hog v. Hog, 7th June 1791, M. 4619. See the English Case of Somerville v. Somerville, 5 Vesey, 750. Robertson, 168.-2 E. iii. 9, 17, 18, 19. Robertson, 367, et seq.

at his death. The remaining third being dead's part, goes according to the wife's bequest, or to her children, or other next of kin.1

Renunciations and Exclusions.-This distribution may be altered by the resignation or presumed resignation of the rights of any of the parties. The wife may renounce her jus relicta, either by agreement or by implication; as where a widow had down to the period of her death (being twelve years after that of her husband) taken payment of an annuity settled on her by her husband, without making any claim for her jus relicto. A son who is heir-at-law to the heritable estate, and who succeeds to it, whether by representation or provision, has no share in the moveables unless he collate.3 The legitim of a child may be excluded by his renunciation, or by a reasonable provision having been made for him in a contract of marriage, which excludes the right to legitim. It has to be observed that the legitim is not excluded in the general case by a contract made after the marriage of the parents, unless the child have acceded to it. Advances made from the moveable estate to the child for establishing him in trade, for a marriage-portion, &c., will be imputed to his legitim, and if he claim a share after death, he must collate, or add what he has so obtained to the whole legitim, taking his share of the mass.5 In other words, it is presumed that his legitim, or a portion of it, has been advanced to him, unless it be clear from the terms of the grant that it was intended to be given in addition to his share of the legitim. A child claiming legitim must renounce any advantages he may have under a general settlement. And it was held that a husband, by concurring in his wife's claim of legitim, is held to have barred himself from claiming property left to himself, in the settlement of his wife's father. A married woman may choose to take a provision in her parent's settlement, instead of legitim, though the choice be against the interest of her husband's creditors.9

6

Legitim vests in a child by simple survivance, though its amount should not have been ascertained. It is not due to

E. iii. 9, 21. Fraser, i. 532. Lashley v. Hog, App. 16th July 1804, Robertson, 145.- Milne v. Innes, 5th December 1822.-3 Murray v. Murray, M. 2374. Stewart v. M'Naughton, 2d December 1824.- E. iii. 9, 23. Fraser, i. 561. Cullen v. Cullen, 16th November 1838. Howden v. Howden, 20th January 1841.-5 E. iii. 9, 24.- Ibid. 25.-7 Fraser, i. 563. Henderson v. Henderson, M. 8191. Menzies v. Livingstone, 27th February 1839. Breadalbane's Trustees v. Buckingham, 5th March 1840.8 Buckingham v. Lauderdale, 15th December 1843.9 Stevenson v. Hamilton, 7th December 1838.