Ascendants.-If the deceased has left neither descendants nor collateral relations, the succession falls to the Ascendants, but only to those on the father's side, for the mother never can by the law of Scotland succeed to the heritable estate of her child; whence arises the principle that brothers and sisters uterine do not succeed to each other. The first in the order of ascendants is the father. Failing him the uncles and aunts, and their issue by representation, succeed, in the same order as if they were succeeding to their brother, the father of the deceased.1

Last Heirs.-If no legitimate relations of the deceased can be found, the crown succeeds to the property as ultimus hæres or last heir. If the property is held of a subject superior, and not a freehold, as it is said that the monarch cannot be vassal to his subject the superior of the lands, it has been the invariable practice to gift it to a subject, who is from this circumstance termed the Donatory. If the land holds immediately of the crown such a gift may also be made, but it is not in that case a matter of routine.2 If a bastard have no legitimate children, no other relations can succeed to him, and the crown succeeds as last heir, generally making a gift of the property to the relation who would have succeeded had the deceased been a legitimate child. The reason assigned for this rule is, that a bastard's father is not, in the eye of the law, presumed to be known, and the mother and her relations never succeed to the heritable property of her son.3

Heirship Moveables, as above defined (p. 46), fall to the heirat-law; and though the whole landed estate should be left to a different person from the heir-at-law, they will not fall to that person unless specially destined to him. Where heirsportioners succeed, the eldest is not entitled to the whole of the heirship moveables; each succeeds to a proportional share. The simple appropriation of heirship moveables is a sufficient title to them without Service. (See below, Sect. 6.)

SECT. 2.-Collation.

Collation is a practice derived from the spirit of the feudal -law, by which, in certain cases, the heir succeeding to the Heritage is entitled to throw it into one mass with the Move

1 S. H. S. i. 6.-- E. iii. 10, 2, 3.-3 Ibid. 5, 6.--4 E. iii. 8, 17.—5 Cruickshanks v. Cruickshanks, 27th May 1801, M. Heir-Port, Ap. No. 2. -S. H. S. i. 42.

ables, and take an equal share from the whole, along with the Executors, or those who succeed to the moveables. The heir who can do so must be one of the persons who would have succeeded to a share of the moveable property, if there had been no heritage, viz. one of the next of kin to the deceased.1 (See below, Chap. II. Sect. 1.) So where one succeeds to his grandfather's heritage by representing his father, he cannot call on his uncles, who succeed to the moveables as nearest of kin, to collate with him. If one of the next of kin succeeds to heritable property, not in the ordinary course of law, but in terms of a deed of succession, he is entitled to claim his share of the moveables. If the property is such as he would not have succeeded to without the deed of destination, he can claim his share of the moveables without collating; but if he would have succeeded to the property independently of the deed of destination, then he cannot have a share of the moveables without collating.2 On the same principle it has been held that the heir in heritage, if he claim a share of the moveables, must collate heritage disponed to him by his father during his lifetime.3 An heir succeeding to landed property in another country, if, by the deceased being domiciled in Scotland, the Scottish rule of succession as to moveables is to prevail (See Chap. II.), must collate in the same manner as if the heritable property had been in Scotland; but if the succession to the moveables is regulated by the law of another country which does not require collation, the heir may claim a share of the moveables without collating, though he succeed to landed property in Scotland.4

SECT. 3.-Succession by Deed of Provision.

It is of the very essence of a deed, providing for the destination of landed property, that it should be in the form of a disposal of the property to the person in whose favour it is made, to take place at the time of the granting of the deed, and that it should not bear that the property is to pass to him after the granter's death. It is a doctrine of the law of Scotland that heritable property cannot be disposed of by will or testament, but only by gift; a form of conveyance which has arisen out of the principle of the early feudal law, that the vassal had no power to fix the destination of his

1 M'Caw agt. M'Caws, 28th November 1787, M. 2383.- S. H. S. i. 46. Br. St. 599.3 S. H. S. i. 46. Ibid. 53. Br. St. 599.

estate after his death. An apparent exception to this rule, of very early date, however is, that, disponing his estate to any individual, he might fix the order of succession to the estate in the deed, and this exception has been extensively taken advantage of in Deeds of Settlement. There are three forms by which one may destine his heritable property to a successor. He may dispone or make over the subject to himself, destining it to pass on his death to the person whom he wishes as a successor; he may destine it directly to that person, reserving to himself the liferent; or he may make it over directly to him in the form of a gift, to take effect from the moment of signing the deed,-in which case a power to alter is generally expressly reserved. If the maker of the deed do not intend to deliver it during his lifetime,* it is necessary that it should have a clause dispensing with delivery, to make it effectual when found in his repositories after his death.2

It is necessary that the terms made use of should be applicable to heritable property, and though they need not be minutely specific, they must be such as show that the granter does not mean to include merely his moveable property. So, where a person "assigned and disponed" every subject moveable and "immoveable, of whatever denomination," which belonged to him, the destination was held sufficiently explicit.3 As the method of disposing of heritage in Scotland is regulated by the forms of Scotland, and not by those of the country in which the proprietor resides, a destination of Scottish heritage, even by a person living in a country by the laws of which heritage may be bequeathed by will, requires to be according to the Scottish form of destination. There is one method by which, through an obligation on his heir, one may dispose of heritage in terms of bequest. If one has left to the person who would have been heir to his heritage, moveable property to which he would not have succeeded, and by the same deed bequeaths heritable property to another person, the heir, if he take advantage of the deed by succeeding to the moveables, cannot impugn the bequest of heritage.4

Technical Terms.-There are certain technical expressions which, when employed in the destination of landed property, must receive their usual acceptation, and cannot be explained away by any extraneous evidence to prove that the granter

1 B. P. 1692. See Part IV. Chap. II. Sect. 8.-2 E. iii. 2, 44.—3 Welsh v. Cairnie, 28th June 1809.-4 S. H. S. i. 77.

intended a different person from the individual so designated to succeed. The following expressions, "Heirs," "Heirs-atlaw," "Heirs-General," "Heirs Whomsoever or Whatsoever," and "Heirs of Line," of any individual, are synonymous, and point out the persons who would succeed in the regular course of law, to landed property left by that individual undestined. The term "Heirs-Male" applies to males connected through males. The term "Heirs-Female" applies to that female and her heirs (whether male or female) who is most nearly connected on feudal principles with the deceased. In this view, a granddaughter who is the daughter of a son (or her son if she is dead) is a nearer heir-female than a daughter. The term Heir-Male of line, applies to the heirmale, excluding the heir of conquest. Heir-Male of the body is the nearest heir-male in the direct line of descent.1

SECT. 4.-Substitutions in Deeds of Provision.

In Marriage-contracts and other deeds which provide for parties becoming connected with each other, and for such events as, the birth of children, survivorships, and the like, some care is requisite in using expressions which will give parties the exact rights intended to be destined to them.

Fee and Liferent.-Where heritage is destined to more than one person, the rights of the parties are generally either rights of Fee or rights of Liferent. A right of Fee is a full right to the property, without any other person having a claim upon it. A right of Liferent is a mere right to enjoy the subject during life, the Fee or absolute property of it being in another person.

It is often the wish of the maker of a destination that it should be left to circumstances to point out who shall be fiar, and who liferenter. In these cases the more ordinary destinations, and the interpretations given to them, are as follows:-In the case of strangers, where a right is destined in conjunct fee to A and B, they enjoy the subject in common while they live; on the death of either, his heir enjoys it in common with the survivor; and on the death of the survivor, the heirs of both enjoy it in common. Where a right is destined to A and B, in conjunct fee and liferent, and their heirs, the two enjoy the fee of the subject in common while both are alive; after the death of one, the survivor enjoys the liferent of the whole, and after the survivor's

E. iii. 8, 48. S. H. S. i. 160-170.

death, the fee is divided equally between the heirs of both. If the right be destined to A and B jointly, and the longest liver and their heirs, the words their heirs are held to point out the heirs of the longest liver. If the right be taken to A and B and the heirs of A, A is the fiar or proprietor, and B is merely a liferenter. So where the title was taken to A and B in conjunct fee and liferent, and to the survivor, and their heirs, it was found that the survivor has the fee, and may dispose of it.2

Husband and Wife.-In questions about destinations between husband and wife, there are limitations on these rules. Where property, which has not come from the wife, is destined to the husband and wife in conjunct fee and liferent, and to the heirs of their body, or to their heirs, the husband is the fiar, and his heirs succeed, the wife being merely liferenter. But if the property have come from the wife and her relations, she is fiar, and the husband liferenter, unless the subject have been given in name of Dower or Tocher, when it is considered as the property of the husband.3 Where property is destined to the husband and wife in conjunct fee and liferent, and to the heirs of the marriage, whom failing, to the heirs of the wife, the wife is fiar.4

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Property destined to one in liferent, and to his children. nascituri (to be born) in fee, is the property of the father, which he can dispose of, and to which the children have only a hope of succession if it exists at his death, unless some restrictive term be used, such as "for his liferent use allenarly," or alimentary," in which case the father is said to hold only a Fiduciary Fee for the benefit of his child. But if the property is destined to a father in liferent, and to a child though named and existing in fee, if a power to dispose of or to burden the property, or to alter the succession, is reserved to the father, he must of necessity be considered the fiar, even if the term allenarly is used.5 Where the property is simply destined to the father in liferent, and to a child existing and named in fee, the fee is in the child, and the father has only the use of the property. The purpose of conveying property to children may be effected by conveying it to trustees for their behoof. If in such a case the destination be to one in liferent, and to his children unborn in fee, the trustees preserve a fiduciary fee for the children during the running of the liferent.6*

1 E. iii. 8, 35. S. H. S. i. 208, et seq.-2 Burrowes v. M'Farquhar's Trustees, 6th July 1842.-3 S. H. S. i. 211.- Ibid. 214.—5 Ibid. 216, 228. - S. H. S. i. 228, &c.-* See Part IX. Chap. I.