grandchildren, but only to the immediate children; who, by receiving it, are not deprived of their share of the dead's part (if it be unbequeathed), as nearest of kin. The jus relicta and legitim cannot be defeated by a testament. The husband and father, however, having the complete disposal of the goods in communion, a gift or sale of the property during his lifetime cannot be questioned. He cannot, however, by a collusive deed professing to be a definite transference at the time, but virtually only an arrangement to take place after death, disappoint his widow and children. So, where the father retains possession of the property professed to be transferred, or the deed is revocable, or contains any interest which his creditors might attach, it is ineffective. This right of disposal he loses on deathbed, fraudulent intention or undue influence being then presumed as the cause of any disposal of his property to the prejudice of the widow or children.3 (See p. 97.)

In the general case of a fund being accepted of in place of legitim, by one child, what remains of the legitim will go to the others; but where there was a settlement of all a father's estate in favour of a general disponee, burdened with provisions to the children, and one child agreed to accept of his provision in lieu of legitim, but another did not, it was found that the share which fell to the latter was not increased by the other's renunciation, but that the difference went in favour of the general disponee. In a continuation of the case, it was found, that where a child who would be entitled to legitim is made general disponee, another child repudiating a special provision, and betaking himself to his legitim, the fund from which he draws it is reduced by the amount of legitim which would appertain to the brother the general disponee.5

That part of the goods in communion, then, already described as Dead's part, is the only portion which descends to the nearest of kin as executors, when there is no will, and is the only part which can be conveyed by a testament or will.

SECT. 3.- Wills or Testaments.

A will or testament requires to be in no particular form; it is sufficient that it clearly express the intention of the

E. iii. 9, 19.- E. iii. 9, 16. Bankt. iii. 8, 26.-3 E. iii. 9, 16. Fraser, i. 547,552.-4Fisher v. Dixon, 16th June 1840, affirmed 6th April 1843, ii. B. App. 63, and see Pringle v. Breadalbane's Trustees, 15th January 1841. Dixon v. Dixon, 6th July 1841.

maker. It may be made at any period of life after pupillarity, and is not, like a destination of landed property, reducible if done on deathbed. It must be a written deed, but a Nuncupative will, or verbal direction, proved by witnesses, is valid to the amount of a hundred pounds scots (£8, 6s. 8d.), and should the verbal will exceed that sum, the person in whose favour it is uttered will have a claim to that amount.1 All who are capable of consent may make a testament. Minors without the consent of their curators, wives without the consent of their husbands, and persons interdicted without the consent of their interdictors. (See pp. 25, 39, 44.) Until a late period, a bastard could not make a testament, but that law has been repealed.3

The grounds for reducing a will are insanity or idiocy; such imbecility, permanent or temporary, as may render one incapable of understanding what he is about; and fraud. That the testator's hand was directed as he signed, that the letters of his name were traced with a pen, and probably that a written copy was placed before him for imitation, would be objections.4 It is no ground of reduction that the will is signed by a blind man.5 A will requires the attestation of two witnesses, according to the form pointed out under the subject of deeds. If the testator cannot write, he may execute the deed notarially, in the manner pointed out under the same head, observing that one notary with two witnesses are sufficient, and that a parish clergyman may act as notary." A will which is Holograph or written by the granter is valid without witnesses, but in such a state it will not prove its date, and will be presumed to have been made at the period most unfavourable to the person whom it favours in competition with other claimants; so, if a tested will be found, the Holograph one will be presumed the earlier in date of the two, and revoked by the other, but such a presumption may be defeated by circumstances.7 Where the intention is clear, irregularities are excused in the case of wills, which would be fatal to other deeds; thus, a will was sustained where the minister had signed the testator's name instead of his own, but had signed his own name to a statement certifying that fact, and a testament or codicil was sustained, though neither

E. iii. 9, 5. Tait on E. 305.-2 E. iii. 9, 15.-3 6 & 7 Wm. IV. c. 22.4 Duff on Deeds, 13. Crosbie v. Pickens, 30th November 1749, M. 16814, see Suttie v. Ross, 23d July 1838.-* See below, Part IV. Chap. II.-5 Duff . Fife, 30th November 1819, App. 17th July 1823. 1 W. & S. 498.See below, Part V. Chap. III. E. iii. 2, 23.-7 Ibid. 22.-3 Trail v. Trail, 27th February 1805, M. 15955.

holograph nor attested, its terms being adopted by an addition which was holograph. It was found, however, that a document commencing with the writer's name, thus, I William Dunlop," and very solemnly composed as the substance of a will, but unsigned, could not, though it was holograph, be given effect to.2

The last will or testament is the effectual one, and if there are any previous wills, they are considered as revoked, in as far as inconsistent with it. It is sometimes a nice point how far a later document, in the form of a will or a codicil, is intended as a substitute for, or an addition to the preceding one. Where a person by will bequeathed a sum of money to her niece, and subsequently by codicil, in which alterations were made on the will, bequeathed to her the like sum without explanation whether it was in substitution or addition to the previous bequest, it was held to be in addition.3 A will is revokable at any time by the granter, though it expressly renounce the power to revoke, though it bear to be granted for past services, or though it be delivered to the person in whose favour it is made; but where a later will revoking a previous one is cancelled, the previous one revives.4

Executor.-In a Will drawn up according to the ordinary form, an Executor is named, but the nomination is not necessary, and if omitted, will be supplied by a legal provision. (See Sect. 7.) The executor named by the testator, if he does not succeed to any portion of the dead's part as nearest of kin, or is not provided for in the testament, is entitled to a third part of the dead's part after the debts and legacies are paid. If there is no remainder, he has no claim. The eldest son, who is heir to the heritage, and the widow, are, when named executors, entitled to this allowance. Legacies left to such executors, if less than the third, to which the law entitles them, do not supersede it, but stand in part payment of it.5

In England the law regarding wills, formerly in a state of great perplexity, has been regulated by statute (7 Wm. IV. and 1 Vict. c. 26). It is believed that mischief has occasionally arisen from the supposition that the rules of this act apply to Scotland. If it were to be followed, especially in those provisions which refer to real property, it would be very apt to defeat the testator's object.

1 M'Intyre v. M'Farlane, 1st March 1821.-2 Dunlop v. Dunlop, 11th June 1839. Straton's Trustees v. Cunningham, 10th March 1840.E. iii. 9, 5. and Iv. n.-5 St. iii. 8, 53. E. iii. 9, 26.

SECT. 4.-Legacies and Bequests.

A legacy is defined as the "donation of a sum or subject to be paid or delivered by the executor out of the moveable estate of the deceased to a third person."1 The person so favoured is termed the Legatary or Legatee. A legacy may be granted in the body of the will itself, in a separate writing supplementary to the will termed a Codicil, or by indorsing a bill to the legatee-but not by granting one to him.2 There are three distinct kinds of legacy, Universal, General, and Special, distinguished from each other by differences of considerable practical importance.

1st, A Universal Legacy is a bequest of the whole moveable estate, or of the residue of it, after deducting the widow's portion, debts, other legacies, &c. &c. It places the legatee in the situation of representative to the deceased in as far as respects his moveable estate.

2d, A General Legacy is a legacy of something not farther particularized than by its generic description and the quantity of it bequeathed, as of money £50, without a specification of any sum of £50 which the testator may have in a particular situation; so many yards of blue cloth of a certain quality, without saying any thing to make it be understood that the testator had in his eye a particular piece of blue cloth. The legatee of a general legacy has action against the executor for the amount, and it will be no defence that a subject of the same nature was set apart by the testator, or by the executor, for the legatee, but has ceased to exist. If the fund which remains after all other claims are satisfied, is insufficient to pay the general legacies, they all suffer a proportional diminution.

3d, A Special Legacy is a legacy of a particular subject so described that it is distinguished from all other things of its kind (as, the sum of £50 due to me by A. B., the piece of blue cloth marked No. 100 in my warehouse, &c.) The legatee in this case is not confined to an action against the executor, he is entitled to consider the subject as his own, and to vindicate his title to it by action against any person in whose hands it may be. If the subject has ceased to exist the legatee loses his legacy, and has no claim on the_testator's estate. Special legacies are preferable to general ones, so that if, after paying debts, there should only remain the sum or piece of property left in a special legacy, it goes to that legatee, and the general legatees get nothing. If the

1 E. iii. 9, 6.2 Ibid. Th. 18, 20.

debts cannot be paid, however, without encroaching on the special legacies, these must suffer.1

SECT. 5.-Conditions and Substitutions.

A legacy in the ordinary case is only called into existence by the legatee surviving the testator, so that the representatives of a legatee who has predeceased the testator have no right to it. It is an implied condition of a bequest (as of a settlement of heritable property) that, if made in favour of a stranger at a time when the testator was childless, it is not to take effect if he leave lawful children.2 But the presumption would appear to depend on the great extent of the bequest in comparison with the whole estate of the deceased, and to be weakened in proportion to the length of time which may have intervened between the birth of the first child and the testator's death.3 Where the bequest is in favour of a child of the testator, on the same principle it does not lapse if the child predeceasing the testator have left offspring.4

When a legacy is fettered by a condition, it will depend on the nature of the condition at what time the legacy is said to "vest," so that being considered the property of the legatee, or due to him, it may be bequeathed by him, or go to his representatives if he die intestate. If the condition is an impossible one, it is held as not existing. If it can be performed by the legatee, he must have performed it before the legacy vests. If the condition is one over which the legatee has no control, but which is not certain to take place in the course of nature (as the legatee's reaching the years of majority, his having a living child, &c.), the legacy does not vest previous to the condition being accomplished; but if it is an event which must take place in the course of nature, whether the time when it will take place is known (as in the case of a particular day being named for the payment of the legacy), or is not known (as in the case of the legacy being paid on the death of an individual named), then the legacy is said to vest, and though the condition should not take place during the legatee's lifetime, yet the legacy may be bequeathed in his will, and will be payable to his proper representatives when the condition takes place.5

E. iii. 9, 11, 12, 13, see Peat v. Peat, 14th February 1839.- E. iii. 8, 46. Colquhoun v. Campbell, 5th June 1829.-3 Yule v. Yule, 20th December 1758, M. 6400.- Neilson v. Baillie, 4th June 1822. Booth v. Black, 8th February 1831.-5 E. iii. 9, 9. M. St. cccxlvi. B. P. 1881. Dill v. Houston's Trustees, 7th December 1839. Campbell v. Reid,

12th June 1840.