It may generally be said that when there is any contingency, on the occurrence of which the property devolves on another party, the holder cannot defeat it by a gratuitous settlement-so, when an heritable bond was conveyed to four nieces and their heirs and assignees, with a condition appointed to be engrossed in the infeftment, that on the death of any one of them before marriage, her share should accresce to the survivors, it was found that settlements made by two who died unmarried, could not defeat the right of succession of their sisters. Where, however, an order of succession is so fixed that its alteration is placed beyond the power of any of the persons holding under it, and is protected from the effects of onerous transactions with third parties, the deed is popularly called an Entail, a species of destination reserved for separate consideration.

SECT. 5.-Deeds granted on Deathbed.

Deeds executed while the granter is of unsound mind, or deprived, by bad health or any other cause, of consciousness of what he is doing, may be rendered null at the instance of parties affected by them. (See below, p. 125.) The heir to heritable property holds the privilege of challenging all deeds granted to his prejudice while the granter is on deathbed, or, as it is technically termed, while he is not in "liege poustie.' The general rule is, that if the granter was suffering under the disease of which he died when he granted the conveyance, it may be reduced. The arbitrary limitations are as follows:-1st, If he survive the granting of the deed sixty days, it cannot be challenged. The sixty days do not include, but run from, the day on which the deed is executed; but if the sixtieth day has begun, it is held as completed (dies inceptus pro completo habetur).3 2d, If the granter of the deed have gone freely, and without support, to kirk or to market after having granted the deed, it cannot be challenged. By his going unsupported, it is meant that he should go in his ordinary manner, and so as to show to the public that he is in his usual health. It will not be ground for eliding the presumption of his being in his ordinary health, that he has gone on horseback, or in a carriage, unless it appear that these aids were employed in furtherance of a collusive project, for enabling one diseased, and

4

Lawson v. Imrie, 10th June 1841.-21696, c. 4.-3 Ogilvie v. Mercer, 10th December 1793, M. 3336.—4 E. iii. 8, 96. A. S. 29th February 1692.

E

unfit for business, to go through the ceremony by assistance. So where one had gone to church on horseback, having been in the habit of going on foot, had received assistance both in mounting and dismounting, which he had never been accustomed to previously, had entered the church during service, and departed before it was done, and appeared there to be suffering under disease, the ceremony was considered as collusive. According to the terms of an old act of sederunt, in which the court explained its views, they were not to sustain the ceremony 66 unless it be performed in the daytime, and when people are gathered together in the church or churchyard for any public meeting, civil or ecclesiastick, or when people are gathered together in the mercate place for public mercate."2 Publicity seems here to have been aimed at as the necessary qualification. It is not however considered essential that the market should be visited on a statutory market-day. Walking through a city marketplace, and doing business in the neighbouring shops, was held sufficient.3 Where a person was set down from a coach in the Grassmarket of Edinburgh, and merely crossed it during a change of horses, the act was held sufficient.4

No other indications of health, however strong, will be admitted as equivalents. Paying visits, and attending a general county meeting, and a meeting of road-trustees, were held insufficient.5 However quickly death may follow the executing of the deed, if it does not arise from a disorder of which the granter was then ill, his act cannot be challenged. So where a supervening disease, of a different nature from that under which the granter laboured at the time of executing the deed, terminated his life, he was held not to have been on deathbed. A deed was held liable to the objection of deathbed, which was executed by the granter in his ninetieth year, when he was confined to bed by infirmity, and died in fifteen days, though there seemed ground for holding that he died, not of disease, but of the decay of nature attending extreme old age.

8

Who may challenge.-The person entitled to challenge is the heir to the heritable estate. Where the estate is unfettered by any previous destination, he will be the heir-atlaw. (See above, p. 90.) Where there has been a destina

1 Faichney v. Faichney, 9th July 1776, M. Deathbed, Ap. 1.-A. S. 29th February 1692.-3 Rait v. Rait, 27th November 1818.- S. H. S. i. 94.5 Maitland v. Maitland, 16th May 1815.-6 E. iii. 8, 96.-7 Paterson's Trustees v. Johnston, 24th June 1816, 1 Mur. 71.-8 Tomison v. Tomison, 14th December 1839.

tion of heirs (by an entail, marriage-contract, &c.), the person so appointed will be entitled to challenge the death-bed deed, even if it should be in favour of one who would have otherwise been heir-at-law. If the heir neglect or refuse to reduce, his creditors may use his right of challenge.2 If the heir can neither benefit himself nor his creditors by the reduction, he is barred from urging it by want of interest.3

Homologation (see p. 127) by the immediate heir will bar reduction. It is decided that he does not homologate by an antecedent writing, promising to ratify a deed which may be executed on death-bed. Signing as witness to the granter's subscription is not sufficient.5 Where, in an old case, the heir had both written the deed and signed as witness, he was held to have approved; but it is doubted whether this is now law. An heir cannot homologate while he is minor.7 It is necessary that he should be fully acquainted with what he is giving up, and the court will protect him where he acts under the influence of fraud or concealment. It would appear that before he can homologate, he must be aware of the law by which an heir is entitled to reduce a deathbed deed.9 The heir cannot defeat the right of his creditors by homologation.10

The deeds which the heir is entitled to reduce are, in general terms, all that may be prejudicial to his interest." Deeds directly alienating heritage are all distinctly within the rule; but in those cases in which the heir is indirectly affected, it is often difficult to draw a line of distinction between administration of the property and the intention of depriving the heir of part of it. If a legacy cannot be paid out of the moveable estate, and must therefore burden the heritable, the heir has an interest to reduce it; but if by the same deed he be left property, heritable or moveable, which he would not otherwise have succeeded to, he cannot take advantage of the deed, in so far as it is in his favour, and reduce it in so far as it is to his disadvantage.12 A lease for an inadequate rent, or one of unusually long duration, granted on deathbed, may be reduced.1 A tack for three nineteen years of the granter's whole estate was so reduced, though

13

S. H. S. i. 149. Hepburn v. Hepburn, 25th February 1663, M. 3177. Porterfield v. Cant, 24th July 1672, M. 3179.-2 S. H. S. i. 149. Ker v. Vaughan, 10th March 1830. App. 1st October 1831, 5 W. & S. 718.*S. H. S. i. 153- Dallas v. Paul, 13th January 1704, M. 5677.-6 Brown v. Muir, 17th June, 1736, M. 5624. S. H. S. i. 152.- S. H. S. 154.

8 Murray v. Murray, 21st January 1826.-9 S. H. S. i. 153.-10 B. P. 1816. -"E. iii. 8, 97.-12 S. H. S. i. 141-148. Paterson v. Spreul, 19th July 1745, M. 3333.-13 S. H. S. i. 138.

it was not alleged that the rent was inadequate.1 A sale of heritable property for an inadequate sum may be reduced; and it is held that if the sale is prejudicial to the heir, he can reduce it. If the money paid as a consideration in such a case has not been spent, it is refunded to the purchaser. If it has been spent onerously, as in debts or engagements which the proprietor was bound to fulfil, the heir must refund it, having recourse on the executor; but it is said that if the money have been gratuitously spent, the heir cannot be called on to refund it.3` The discharge of an heritable debt is good on deathbed; but if it is fraudulent, it may be reduced.1 Deeds which the granter has come under a previous obligation to grant, may be validly executed on deathbed.5

If the heir has taken possession of the property during the granter's lifetime, in virtue of a Disposition, with a clause reserving to the granter the power of altering it at any time, he is barred from objecting to any deed granted on deathbed, in consequence of the reserved power. But if there be such a deed of which he has not taken the benefit, no reservation in it can deprive him of his right of challenge. If a deed is granted, not on deathbed, to one not the heir-at-law, and afterwards on deathbed, a different deed is granted to another person, still not the heir-at-law, the heir cannot reduce the second deed, having ceased to be heir since the first deed was granted. But if the first deed has been cancelled, his right to challenge a deed granted on deathbed revives. If the second deed revokes the previous deed, the right of the heir to challenge the second deed revives, and it is good in as far as respects the revocation, while it is reduced in all other respects. If the deed granted on deathbed be part of a series of deeds constituting together one consistent settlement, no person taking benefit by the previous parts of the settlement can reduce the last, and if such a person be heirat-law, he must renounce or forfeit his benefits under the earlier part of the series if he reduce the last.8

SECT. 6.-Investment by Service.*

A person to whom land is directly conveyed by the proprietor is invested in the same manner as a purchaser. (See

J Christysons v. Kerr, December 1733, M. 3226.-S. H. S. i. 99.3 Ibid. 100.4 St. iii. 4, 29. B. C. i. 94.5 B. C. i. 94. S. H. S. i. 135.Bank. iii. 4, 48. S. H. S. i. 111-115.-7 S. H. S. i. 115-135. Anderson v. Fleming, 17th May 1833.- Black Watson, 9th February 1841.— * A bill introduced during the last session of parliament "to alter and amend the law and practice in Scotland as to the service of heirs has been postponed till next session.

pp. 55, 168.) It has been stated above, that destinations of land, though only to be effectual after death, must be made in the form of a conveyance from one living person to another. (See Sect. 3.) Hence, when a series of heirs is appointed, the one to succeed the other, the first person named, who is technically called the Institute or Disponee, is held to be in the position of a person to whom property has been conveyed or sold, and as such a person he makes up his titles. The others, who are called Substitutes, and who succeed in their order failing the first, are considered in the light of heirs; and to distinguish them from the Heirs-atLaw, they are called Heirs of Provision. Service is one of the forms by which an heir makes up his titles. It is the verdict of a jury as to the right of a person making certain claims, and it proceeds on a Brieve from Chancery, directed either to the Sheriff of the county or the Sheriff of Edinburgh if it be a Special Service, and to any sheriff or burgh magistrate if it be a General one.

Special service is employed where the person to whom the heir claims to be successor has been feudally invested in his property by Infeftment. The heir transmits to the jury a claim, specifying the character, whether as heir-at-law, or of provision, in which he claims. The brieve contains seven heads or questions, to be answered by the jury, the most essential of which are, whether the deceased was infeft, and was the last person infeft in the lands? and whether the claimant possesses the character in which he claims to be served? When a favourable verdict is returned, if the lands hold of the crown, a Precept is issued addressed to a Notary Public warranting him to infeft the heir. If the superior is a subject, an extract will be the means of compelling him to grant a precept. The heir, after having thus served himself, completes his feudal title to the land by taking infeftment. (See above, p. 55.) Until he has done so, he has not a right which he can transmit to his heirs; and if he die before completing the infeftment, the service is useless to his heir, who must expede a new service to the person last vest by infeftment in the property. In a special service, it is sufficient that the heir shows himself to be possessed of the character which he claims; and it can be no objection that, even admitting him to be the heir, he cannot come to the possession of the property, because another person has

1 E. iii. 8, 60-67. Jur. St. i. 374, et seq. S. H. S. i. 273, et seq. 8 & 9 Vict. c. 35, § 6.